Falkiner v The Queen - [2019] SASCFC 118

Supreme Court of South Australia
(Court of Criminal Appeal)
FALKINER v THE QUEEN
[2019] SASCFC 118
Judgment of The Full Court
(The Honourable Justice Peek, The Honourable Justice Parker and The Honourable Auxiliary Justice David)
3 October 2019
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - POINTS AND OBJECTIONS NOT TAKEN BELOW
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE
On 27 April 2017, at the Elizabeth Shopping Centre, Falkiner killed the deceased Watts by stabbing him once with a large knife. He was convicted of the charge of Murder and appeals.
Falkiner was in a relationship with Renee. Immediately prior to the stabbing, there was a good deal of talking or yelling between Watts and Falkiner. Renee could be heard to say things such as "do it already" and/or "just do it". Immediately after the stabbing, Renee was heard saying that Watts was “a dog” and he "deserved it".
Ground 1 of Appeal complained that the Judge erred in admitting the statements made after the stabbing as being irrelevant or more prejudicial than probative. Ground 2 of Appeal complained that the Judge failed to direct the jury as to the use that could be made of the statements made before and after the stabbing. No objection was taken at trial concerning any of these matters.
Held, per Peek J (Parker J and David AJ agreeing), dismissing the appeal:
1. As to Ground 1.1: It is generally the role of a Judge to receive evidence that is not objected to and to adjudicate upon objections as and when they arise. The evidence was prima facie admissible as being spoken words that were part and parcel of the subject incident. R v Pali; R v Buckingham (2018) 132 SASR 201; R v C, CA [2013] SASCFC 137; Ali v The Queen (2005) 79 ALJR 662 discussed. There was no miscarriage of justice.
2. As to Ground 1.2: Where the Judge has not been asked to exercise the Christie discretion, an appellate Court could do so only in exceptional circumstances. Here it is highly unlikely that the Judge would have exercised the discretion in favour of the defendant. The Queen v S, DD (2010) 109 SASR 46 discussed. There was no miscarriage of justice.
3. As to Grounds 2.1 and 2.2: The decision not to ask for directions was consistent with the actions of competent counsel. Ali v The Queen (2005) 79 ALJR 662 discussed. There was no miscarriage of justice.
Criminal Law Consolidation Act 1935 (SA) s 353; Criminal Procedure Act 1921 (SA) s 158, referred to.
Ali v The Queen (2005) 79 ALJR 662; R v C, CA [2013] SASCFC 137; R v Pali; R v Buckingham (2018) 132 SASR 201; Police v Dunstall (2015) 256 CLR 403; The Queen v S, DD (2010) 109 SASR 46, discussed.
R v Christie [1914] AC 545; Filippou v The Queen (2015) 256 CLR 47; Fleming v The Queen (1998) 197 CLR 250; Nudd v The Queen (2006) 80 ALJR 614; TKWJ v The Queen (2002) 212 CLR 124, considered.

FALKINER v THE QUEEN
[2019] SASCFC 118
Court of Criminal Appeal: Peek and Parker JJ and David AJ

PEEK J: On Thursday 27 April 2017 at the Elizabeth Shopping Centre (the Centre), the appellant, Mr Shaun Falkiner (Falkiner) killed the deceased, Mr Alex Watts (Watts), by stabbing him once with a large knife. Late night shopping was in progress and a number of people who were present, some of whom knew Falkiner or Watts, gave evidence of what they saw and heard.
Relevant events and relationships leading up to 27 April 2017
Before proceeding to that evidence, a number of relevant events (and relationships between certain persons) leading up to 27 April 2017 are largely undisputed and can be summarised thus.
As at 27 April 2017, Falkiner was in a relationship with Ms Renee D (Renee) and they are the parents of a child. Prior to Renee’s relationship with Falkiner, she had for a time shared a house with a couple, Ms Michelle S (Michelle) and her partner at that time, known to all as ‘Kiwi’; that couple had two children. On an occasion (not witnessed by Kiwi), their six-month old daughter was injured through being dropped accidentally while in front of the house; Michelle blamed Renee for that incident. Bad feelings between the Kiwi/Michelle couple and Renee ensued and the couple moved out of the house; the bad feelings persisted ever after that.
Kiwi was a very large man. He stated at trial that he was six feet four inches tall and then weighed over 188.2 kilograms in comparison with the appellant who is about five feet nine inches tall and 65 kilograms in weight. He gave evidence that on an occasion roughly nine to eleven months prior to 27 April 2017, he had had a fight with Falkiner at the Centre. The circumstances were that Kiwi and his partner Michelle were changing their daughter’s underclothing at the public toilet when Renee approached them and started an argument, yelling obscenities at the couple and saying that she was going to get her man (Falkiner) to sort Kiwi out. Soon after, Falkiner arrived on the scene and had a loud verbal argument with Kiwi. Kiwi then turned his back and started to walk away and was then hit from behind to the back of the head by Falkiner. Punches were thrown by both and Kiwi then walked away.
On 27 April 2017, Falkiner and Renee were shopping at the Centre with Renee pushing their child in a pram. They had gone there with their friends Mr Graham G (Graham) and his partner Ms Kaitlyn P (Kaitlyn). I will refer to these witnesses collectively as “the Falkiner group”.
As at 27 April 2017, Watts had not met Falkiner. Watts was in a relationship with Ms Cheree G (Cheree) who was also present at the Centre. Cheree was friends with Michelle, who was also present, and Kiwi (who only arrived much later). Also, later in attendance was another friend of Watts, Mr Wyatt R (Wyatt). I will refer to the friends or associates of the deceased as “the Watts group”.
Apart from Renee, Falkiner and, of course, Watts, all the above-mentioned persons and a number of other members of the public (with no connection to either group) gave evidence of their observations, to which evidence I return below.
Events at the Elizabeth Centre leading up to the stabbing
The following general pattern of events is common ground. On 27 April 2017, Falkiner and Renee happened to encounter Michelle at the Centre (they being enemies as explained above) and harsh words were exchanged by the two women. At the time of, and after, this altercation Renee was making comments directed to Falkiner that he was weak, did not stand up for her and so forth. Falkiner eventually attempted to intercede to calm things down and this led to Michelle slapping him. Unfortunately, Falkiner retaliated by pushing Michelle to the chest and head, which caused her to stumble to the ground.
Michelle then loudly accused Falkiner of assaulting her and said “You’re dead. You didn’t learn from the last time”, this being a reference to the fight that Falkiner had previously had with Kiwi.
Kiwi in fact lived quite nearby and Falkiner thought that he might well appear in the very near future if he were telephoned by Michelle, as he considered likely. Again, unfortunately, rather than leaving the Centre, Falkiner went into Woolworths (in the company of his friend, Graham) and surreptitiously stole a large knife. After leaving the store, he unpacked the knife from its plastic package. At this time, Graham’s partner, Kaitlyn, heard Falkiner say “I’ll show him I’m not fucking around”, this being a reference to Kiwi. Graham gave evidence that Falkiner was scared of Kiwi and what he might do.
In the meantime, while Falkiner was procuring the knife, Michelle was complaining to multiple acquaintances that he had assaulted her, with the seriousness of it being exaggerated in the telling and retelling. As recounted to a number of witnesses in the case, the retaliatory pushing by Falkiner had become something like the infliction by him of two punches to the face.
One recipient of such complaint by Michelle was Kiwi. He gave evidence that she telephoned him and stated that Falkiner had punched her in the face. Kiwi had replied that he would come to the Centre and get her.
Another recipient of such complaint by Michelle was her friend, Cheree, who was at the Centre in the company of her partner, Watts, the deceased. Watts did not know Falkiner but was informed (as was the fact) that he had a distinctive tattoo on his neck. Watts set out to walk around the Centre in order to find and “talk to” Falkiner about the matter of him assaulting a woman.
While Watts was striding around the Centre, looking for Falkiner, others of the Watts group followed him, but they remained some distance behind. Witnesses in that group described Watts as being agitated, angry and concerned. As misfortune would again have it, Watts did eventually locate Falkiner, still in the company of Renee pushing the pram. Renee then yelled abuse at Watts, including “Stop following us”.
Immediately prior to the stabbing there was a good deal of talking or yelling as between Watts and Falkiner with Renee being heard to say such things as “do it already” and/or “just do it” shortly before Falkiner stabbed the deceased. Immediately after the stabbing, Renee and/or Kaitlyn were heard saying that the deceased was “a dog” and that “he deserved it”. It is this conversation that forms the subject of this appeal and it is considered in more detail below.
The appellant did not give evidence, or call, or tender any evidence. The defence case, which was put in counsel’s final address to the jury as well as I think it could have been, was to contest that the required mental element had been proven and that self-defence had been negatived. There is no complaint in the grounds of appeal about the Judge’s treatment of those matters. Rather the grounds raise complaints that were never raised at trial and I now turn to them.
The Amended Grounds of Appeal
The amended grounds of appeal are as follows.
Ground 1
1. The learned trial judge erred in admitting evidence that Renee D and/or Kaitlyn P said after the stabbing that the deceased ‘was a dog’ and that ‘he deserved it’.
1.1 The evidence was not relevant to any fact in issue;
1.2 The evidence was more prejudicial than probative.
Ground 2
2. The learned trial judge’s failure to direct the jury as to the use that could be made of statements made by Renee D and Kaitlyn P at or around the time of the stabbing led to a miscarriage of justice.
2.1 The trial judge failed to direct the jury as to the circumstances in which the jury could use a statement made by Renee D apparently to the appellant to ‘just do it already’ immediately prior to the stabbing and if used what it could be used for;
2.2 The directions failed to warn the jury against the impermissible use of statements made by eyewitnesses Renee D and Kaitlyn P that the deceased was a dog and deserved it (in the alternative to Ground 1).
The grounds are in reverse chronological order in that the comment “just do it already” referred to at Ground 2.1 chronologically preceded the comments that the deceased was “a dog” and that he “deserved it” referred to at Ground 1. I will consider the grounds by first referring to the acts and words immediately before and after the stabbing, and then addressing the following questions:
-First, did the Judge err in admitting the evidence of talk by persons just after the stabbing (Ground 1.1)?
-Secondly, did the Judge err in failing to exclude talk by persons just after the stabbing as a matter of discretion (Ground 1.2)?
-Thirdly, did the Judge err in failing to adequately direct the jury concerning talk by Renee and Kaitlyn just before, or during or just after the stabbing (Ground 2)?
The acts and words immediately before and after the stabbing
The only witness who gave evidence as to talk both just before and just after the stabbing was Ms Sarah A (Sarah). The other witnesses only gave evidence as to talk just before the stabbing; they were: Cheree, Graham, Kaitlyn, Christine H, Liesl G, and Neil C and I will refer to the witnesses in that order.
Sarah was present alone at the Centre on 27 April 2017 and knew none of the persons referred to above. She described the Falkiner group as comprising two males (established by other evidence to be Falkiner and Graham) and two females, one of whom was pushing a pram (established by other evidence to be Renee and Kaitlyn (the partner of Graham)). Sarah stated that the Falkiner group was indulging in a great deal of profanity. She described a confrontation between that group and Watts, the deceased, and that the Falkiner group were swearing at Watts who was offering a challenge to Falkiner to fight (but doing so in a relatively “calm” way).
Sarah gave evidence that one of the two females in the Falkiner group said, “Just do it”. Sarah initially stated that this was the woman without the pram, but later stated that she had been mistaken about that and that it was the woman with the pram, that being Renee.
Sarah gave evidence of seeing the stabbing; she stated that Falkiner was holding a knife and walked up to the deceased at quite a brisk pace. He then “did a very sharp, just very forceful stab into his stomach area.” She said that the deceased then “stumbled back and collapsed.” In cross-examination, she stated that “He walked up and stabbed him in the stomach and it was very - he used force. There was a good amount of force.” Sarah gave the following evidence concerning what then happened:
AThey turned around and they started walking the same direction as me and I was scared that something was going to happen to me. The girl was then saying 'Fucking the slut's going to call the police, let's leg it'. So the females were telling the males to run.
QIs that one or both of the females.
ABoth of them.
QTheir tone of voice as they said that.
AAggressive.
QAfter that was said, what did the males do.
AThey ran to the direction to where my car was and they ran heading towards the Elizabeth Skate Park.
QIs that over the road on the other side.
AThat's correct.
QWhen you say 'the males ran' were they together.
AI wouldn't say right next to each other but yes, they were together.
QThe male who had the knife, did he still have the knife at that stage.
AYes.
QDid you see at any stage what he did with the knife from that point on.
AThe females were telling him to get rid of the knife and to just 'leg it'. At that point in time, he still had the knife as that's when I was getting into my car to call the police straightaway.
QAfter the males ran off, what did the females do.
AThey just casually walked like nothing had happened saying 'Fucking dog deserved it'.
The following witnesses (in general order of their appearance) only gave evidence as to talk before rather than after the stabbing.
Cheree – the deceased's partner
Cheree gave evidence that she heard a female voice just before the stabbing say, “Just do it already”. The tone was “[v]ery eager and annoyed”.
Graham – a friend of the appellant
Graham gave evidence that he heard Renee say to the deceased aggressively “Fuck off you fucking dog” and “Stop fucking following us you cunt” and “Can you just fuck off”. Graham gave evidence that Watts was later saying to Falkiner “You woman basher”; his tone was “[a]ggressive, I suppose”. Watts also said, “Why don’t you fight me” and “Why don’t we sort this out now”, loudly and in an aggressive tone. Graham also gave evidence that Renee said, “Just fucking do it already” in an “[i]rritated, angry” tone.
Kaitlyn – the partner of Graham
Kaitlyn gave the following evidence:
QAnd what did Renee do.
AShe turned back and said something to Alex.
QWhat did she say.
A'Stop fucking following us and fuck off'.
QWhere was Alex at the stage that you stopped by those signs.
AHe was getting closer.
QWhat happened next.
AShaun told Renee to keep walking and he just wanted - he just said 'I just want to go fucking home, just keep walking'.
QDid you at that stage move closer to the crossing.
AYes.
QWho were you with.
ARenee.
QWhere was Shaun and Graham as you reached the crossing.
AAs I reached the crossing they were on the other side of the crossing.
QWas there anything being said between Graham and Shaun that you could make out at that stage.
ANo, they were too far away.
QAnything being said between yourself and Renee.
AI said just I wanted to go home.
QWhat about Alex, where is he at the time that you reach the crossing.
AAt the cement pavements. The five slabs of cement.
QIs he saying anything at that point.
AYes, he did.
QWhat did he say.
A'You hit a fucking girl. Don't hit a girl. Hit a man'.
HER HONOUR
QWhat happened then.
AShaun had got angry and said 'Fuck off or I'll stab you'. He got -
HER HONOUR: We might take the morning break. [Morning break taken]
QBefore the break you had said that Shaun got Andrew and said 'Fuck off or I will stab you'. What happened next.
AHe grabbed the knife out of the bottom of the pram.
QHow was he holding it.
AAbove his head.
QWhat did he then do.
ASaid 'Fuck off or I will stab you.'
QAfter that.
AAlex said 'Are you going to hit a girl?'
QWhere was Shaun when he got the knife.
AIn the middle of the crossing.
QWhat did he do then.
AHe went back to the end of the crossing where Graham was.
QThen.
AHe held the knife above his head.
QIf you can keep talking about what happened after that.
AShaun had then said 'Fuck off' again 'Or I will stab you'. And then Alex said 'You want to hit a girl hit me'. Renee said 'Just do it already'. Shaun went up to Alex and stabbed him.
…
QYou said Renee D said 'Just do it already.'
AYes, she did.
QWhat was her tone.
AShe was angry.
QWhat about what she said makes you say she was angry.
AShe screamed it.
QWhere was she when she said that.
AIn the middle of the crossing.
Christine H (independent witness)
Christine H, an independent witness, gave the following evidence:
AI saw a glint and then I believe Hailey grabbed Neil and said there was a knife involved and then I looked over and I saw the glint of metal and I realised he was holding a knife.
QWhen you say he was holding a knife, who are you referring to.
AThe accused.
HER HONOUR
QCould you hear anything at this time.
AAfter the weapon was drawn I remember hearing a female voice saying something along the lines of 'Just do it, get it over with'. But other than that, no.
QYou heard the female voice, did you see who said that.
ANo.
QThose comments, can you say anything about the tone that was used.
AIt wasn't an angry tone, it was just 'Get it over with, we have better things to do' sort of thing. It was sort of like an impatient 'Hurry up and get it over with'.
QYou heard those words at the time that the incident happened.
ASomething along those lines. I am not exactly sure what was said but it was something along those lines.
Liesl G (independent witness)
Liesl G, an independent witness, gave the following evidence:
QThe people who were on the other side of the crossing are they saying anything at that point.
AThere was some yelling that I was not sure what was said, I was too far away but the female was heard clearly yelling 'Just do it already'.
QYou've described hearing a female voice, could you hear male voices.
AI could hear male voices but not what they were saying.
QCould you hear one voice or more than one voice yelling.
ATwo.
QYou said that the female voice said 'Just do it already,' can you describe the tone that that was said in.
AI'm going to screw up how to pronounce this word; exasperated.
QI understand what you mean. Could you see where that female with the pram was at the time she said those words.
AShe was standing right in the middle of the walkway on the other side of the zebra crossing.
Neil C (independent witness)

Neil C, an independent witness, gave the following evidence:
QHer Honour asked you a question; you didn't hear anything at the crossing.
AI did not hear the guy, the male, say anything, I did hear someone yell out 'Just fucking do it,' I believe it was a female voice but I can't say who it was or where it came from.
QThat was 'Just do it,' are they the words you remember.
A'Just f'ing do it'.
HER HONOUR
QDid you say that was male or female.
AFemale, I believe.
Ground 1.1: Did the Judge err in admitting the talk just after the stabbing?
In the ‘chapeau’ to Ground 1 of Appeal, it is asserted that the Judge “erred in admitting evidence …”. That suggestion is quite inappropriate here since no objection was raised at trial as to the admission of the evidence referred to. To err means to make a mistake; a Judge may err or make a mistake in summing up or in certain other duties required to be performed during a trial.[1] However, in the case of reception of evidence, it is generally the role of a Judge to receive evidence (oral or written) that is not objected to by opposing counsel and to adjudicate upon objections as and when they arise. A trial under our system can only function in this way.[2]
[1] For example, see the decisions of the High Court in Fleming v The Queen (1998) 197 CLR 250 and Filippou v The Queen (2015) 256 CLR 47.
[2] Of course, there are exceptions such as a Judge erring in failing to draw certain important matters to the attention of an unrepresented litigant. Nothing of that sort occurred here.
Recently in R v Pali; R v Buckingham,[3] it was stated that “it is well to refer to the jurisdictional basis of this appeal” and reference was then made to the relevant statutory provision:[4]
353—Determination of appeals in ordinary cases
(1) The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
[3] (2018) 132 SASR 201, 216 [35].
[4] The relevant provision then was s 353 of the Criminal Law Consolidation Act 1935 and is now (in substantially the same words) s 158 of the Criminal Procedure Act 1921.
It was then observed as follows:[5]
At least one may say this. First, there was in fact no wrong decision on any question of law because none of the matters now sought to be raised were raised before the trial Judge. Secondly, there is no ground of appeal that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. Thirdly, the assertion in the chapeau that “the Appellant was deprived of a fair trial” can only be a reference to the third of the above three branches, that there was a miscarriage of justice.
[5] (2018) 132 SASR 201, 217 [36].
And so here. The words “The learned trial Judge erred in admitting evidence” in the chapeau to Ground 1 of Appeal do not engage any of the three branches of jurisdiction. The only option available here was to plead the third of the three branches, that “there was a miscarriage of justice”. On an assumption that it is here wished to engage the broad miscarriage of justice ground, the position is that the onus to establish a miscarriage of justice is very much on the appellant; and the fact that the matter was not raised by trial counsel looms large. As Kourakis CJ observed in R v C, CA:[6]
…There can be no wrong decision on a question of law within the meaning of s 352 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) unless a question of law was raised and wrongly decided by the trial Judge. Therefore, there can be no appeal brought on the ground that there was an error of law in holding a joint trial of the counts relating to SG and MG. Insofar as the foundation of the ground is a complaint that there was a miscarriage of justice by the reason of a joint trial of the counts relating to SG and MG, then the failure of the appellant’s counsel to make that application is a very weighty consideration to the contrary. [Emphasis added]
[6] [2013] SASCFC 137, [53].
Here, the only objection that was made occurred at the very beginning of the trial and was solely directed to a recording by a bus recorder of some of the conversation deposed to by a witness(es) to be called at trial; and the sole basis of the objection was that the recording was “quite indistinct”. It was obvious that witnesses were to be called to give original evidence of the talk that they heard and any objection (as to relevance or any other ground) could and should have been ventilated in that context. No further mention of any kind was made of any form of objection to the evidence.
In the present case, the evidence was prima facie admissible as being spoken words that were part and parcel of the subject incident as it was seen and heard by the witnesses. Thus, as exemplified in the evidence of Sarah above, the evidence of words being heard flows into the stabbing, which in turn flows into further words being heard which in turn flows into Falkiner running away from the scene – all within a very short time indeed.[7]
[7] In my view, there is no need here for the prosecution to resort to the doctrine of res gestae to justify admissibility because there is no suggestion that the words spoken tended to state or infer a substantive fact. (But I would add that if res gestae authorities were considered to be relevant, the requirements of contemporaneity and spontaneity therein referred to were satisfied here.)
As to the decision of counsel not to object, the following observations in the decision of the High Court in Ali v The Queen are particularly apposite to all Grounds of Appeal in this case.[8] Gleeson CJ stated:[9]
9. Furthermore, the record of trial counsel's final address to the jury reveals a tactical approach that explains why some of the evidence relating to aspects of the appellant's character was elicited in cross-examination or was not the subject of objection. Counsel depicted the appellant as an earthy type who had adopted Australian ways, who may have had some of the characteristics of a larrikin, but who would never do the things alleged by the prosecution. Some of the plainly admissible evidence inevitably was going to show that the appellant had a number of human failings. It was a justifiable forensic decision to go along with that, rather than to present to the jury an appearance of desperately attempting to resist the irresistible. Ordinary standards of professional competence do not require trial counsel to object to every piece of evidence that is arguably inadmissible, especially in front of a jury. The reception of inadmissible evidence, in a given case, might produce a ground of appeal, but it does not necessarily mean that there has been unfairness or a miscarriage of justice.
[8] See also: TKWJ v The Queen (2002) 212 CLR 124 and Nudd v The Queen (2006) 80 ALJR 614.
[9] (2005) 79 ALJR 662, 664-665.
And Hayne J (with whom McHugh J concurred) stated:[10]
23. Showing that objection could have been taken to some questions that were asked by other counsel during the course of a trial does not show that trial counsel was incompetent or show that there has been a miscarriage of justice. Counsel is not bound to take every objection that is open. Objecting to the form in which evidence is led, or objecting to evidence on a subject about which other evidence has been or is to be heard, may convey an impression of obstructionism detrimental to the interests of the party for whom counsel is appearing. Demonstrating that counsel could have objected to certain evidence does not demonstrate that counsel should have made that objection.
24. Where it is alleged, as here, that there has been a miscarriage of justice because counsel did not object to the reception of evidence, it is necessary to exercise considerable care when considering whether counsel should have objected. There are at least two reasons why that is so. First, it is necessary to put aside the benefit of hindsight. Whether counsel not only could have but should have objected, must be judged, as far as possible, having regard both to the state of evidence at the time the question was asked and to what might then reasonably have been expected to be the likely future course of the matter. So, in a matter like the present, it is necessary to take account of the possibility (perhaps even the then known probability) that the appellant would not give evidence on his own behalf. If it was possible, even probable, that the jury would not hear from the appellant, it would ill serve his cause to have the jury form the impression that he feared the facts of the matter being fully elicited.
25. An appellate court does not and may not know what information trial counsel had when deciding whether or not to object to evidence. That is why, in TKWJ, I concluded that the question of miscarriage does not turn on a factual inquiry into why trial counsel acted or did not act in a particular way. That kind of inquiry cannot be made. Rather, the question is whether there could be a reasonable explanation for the course that was adopted at trial. If there could be such an explanation, it follows from the fundamental nature of a criminal trial as an adversarial and accusatorial process that no miscarriage of justice is shown to have occurred.
[10] (2005) 79 ALJR 662, 666-667.
I reject Ground 1.1 for all of the above reasons.
Ground 1.2: Discretionary exclusion of evidence
On the hearing of the appeal, senior counsel made clear that Ground 1.2 seeks to engage the Christie discretion.[11] However, there is a substantial problem here in that trial counsel did not object to this evidence and never asked the Judge to exercise an exclusionary discretion concerning it. That being so, an exercise of an exclusionary discretion by the appellate Court could only occur in the most exceptional circumstances. Thus, in The Queen v S, DD, it was stated:[12]
120. … while the point is appropriately taken in the grounds of appeal, unfortunately the rule 9 application and argument at trial (by counsel other than counsel on appeal) was restricted to questions of legal admissibility as distinct from discretion. The trial judge was never asked to exercise a discretion and nor did he purport to do so.
121. If the trial judge had been asked to exercise his discretion, and had done so adversely to the appellant, a review of that exercise of discretion on appeal would be required to proceed in accordance with the precepts adumbrated by the High Court in House v The King and Dinsdale v The Queen. The position of the appellant is very difficult here because the judge was never asked to exercise the discretion and therefore there are no reasons suggestive of error.
122. While I allow for the possibility that in an appropriate case a discretion may be exercised on appeal even though counsel below failed to ask the judge to do so, it would need to be very clear both that such was the only appropriate exercise of discretion and that a miscarriage of justice would clearly occur if the discretion were not to be so exercised on appeal. Although I consider that it was arguable that a discretion should have been exercised at trial in favour of the appellant here, it cannot be said that such was the only appropriate exercise of discretion.
123. Accordingly, I therefore reject the grounds of appeal dealing with discretionary exclusion of the complaint evidence. [Citation omitted]
[11] R v Christie [1914] AC 545.
[12] (2010) 109 SASR 46, 75-76.
It will be noted that the present case is a fortiori in that in The Queen v S, DD the evidence was at least objected to below (with the omission to apply as well for discretionary exclusion) whereas here no objection had been taken at all.
Speaking generally, to make good such a ground an appellant would presumably have to establish that a Judge, faced with the situation that defence counsel was not objecting to the admission of certain evidence,[13] should of his or her own motion exclude evidence as an exercise of “discretion”. Of course, if a Judge were to do so, and the defendant were to be later convicted, it is not difficult to imagine the likely protests and associated grounds of appeal concerning the Judge’s conduct.
[13] And, for all the Judge knew, may have been intending to use it to advance his case.
I consider that that is enough to dispose of Ground 1.2. However, I add that if the Judge had been asked to exercise the discretion, it is highly unlikely she would have exercised it in favour of the defendant. The Christie discretion is to exclude evidence which, though admissible, would probably have a substantial prejudicial influence on the minds of the jury which would be out of proportion to its true evidential value.[14] In Police v Dunstall, the plurality of the High Court stated it thus:[15]
In criminal proceedings, there are two settled bases for the discretionary exclusion of non-confessional evidence, including "real" and circumstantial evidence. The first is where the probative value of the evidence is outweighed by the risk of prejudice to the defendant ("the Christie discretion"). [Citation omitted]
[14] R v Christie [1914] AC 545, 559 (Lord Moulton).
[15] (2015) 256 CLR 403, 416-417 [26] (French CJ, Kiefel, Bell, Gageler and Keane JJ).
Nettle J in Dunstall offered the following expanded form:[16]
Conceptually, the difficulty is the essentially different exclusionary bases of each of the recognised discretions and the consequent intractability of deducing an overarching principle which is capable of explaining them all. In the case of the Christie discretion, evidence is excluded where and because it would be unfair to an accused to admit evidence of which the capacity to lead a jury to reason correctly to a conclusion of guilt is outweighed by its capacity to lead the jury to reason incorrectly to a conclusion of guilt, and consequently would expose the accused to an unacceptable risk of being wrongly convicted of a crime of which he or she is presumed to be innocent. [Citation omitted]
[16] (2015) 256 CLR 403, 430 [62].
While it may be said here that the probative value of the evidence is not high, there is simply no significant risk that the evidence would have had the required prejudicial influence on the minds of the jury to warrant exclusion. The words appear to be aimed at the deceased rather than Falkiner, perhaps suggesting that the deceased had done something that brought about his own death, and hence “deserved it”. In any event, the words amount to no more than insulting comment made after the stabbing and cannot possibly require exclusion by an appellate Court where no application was made to the trial Court. I reject Ground 1.2 (and thus the whole of Ground 1).
Ground 2.1: Jury directions as to “Just do it already”
On the appeal, it was expressly confirmed by Senior Counsel that it was not contended that Renee’s exhortations prior to the stabbing to “Just do it”, etc, were inadmissible. It is clear that the jury could properly consider whether such pressure coming from his partner, against the background of her earlier statements that night about him not sticking up for her and so forth, tended to explain why he stabbed the deceased as he did.
Defence counsel never asked the Judge to give directions concerning this topic and it is obvious, as discussed above, that this decision was in accordance with the conduct of competent counsel. Any such directions by the Judge would have touched upon the process of reasoning just alluded do and “spotlighted” it; such directions may have been highly counter-productive for the defendant, to say the least. I reject Ground 2.1.
Ground 2.2: Jury directions as to “the deceased was a dog and deserved it”
Once again, the Judge was never asked to give any directions concerning the comments made very shortly after the stabbing by Renee (and possibly Kaitlyn as well) that the deceased was “a dog” and “deserved it”.
The matter of requesting the Judge to give directions was very much for counsel. As discussed above, the decision to not make any such request was in accordance with the conduct of competent counsel who could well have considered that the less said the better and that directions by the Judge might well spotlight the matter. There is no ground of appeal claiming incompetence of counsel (and nor should there have been). The position here falls far short of establishing miscarriage of justice.
I reject Ground 2.2 (and thus the whole of Ground 2).
No ground of appeal being established, I would dismiss the appeal.
PARKER J: I would dismiss the appeal. I agree with the reasons of Peek J.
DAVID AJ: I have read the judgment of Peek J. I agree with it and would dismiss the appeal.