R v Baring & Leonard - [2005] SASC 262

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BARING & LEONARD
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Sulan)
15 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS
Appeal against conviction – appellants jointly charged with aggravated serious criminal trespass in a place of residence and threatening a person with a firearm – appellants found guilty of both charges – whether trial judge’s direction to the jury about lies was adequate considering the unusual features of the trial – counsel for the appellant Leonard put questions to the witnesses suggesting Leonard was not at the premises – the prosecution was permitted to re-call the witnesses who identified Leonard’s voice which had been recorded during the incident - one of the occupants had dialled triple zero and left the phone on during the incident – Leonard’s counsel then cross-examined the witnesses suggesting Leonard was present but not inside the house – whether the trial judge adequately directed the jury about how to treat Leonard’s change of instructions – whether trial judge adequately put the accused Leonard’s explanation about the change of instructions – whether the prosecutor sufficiently clarified how the prosecution sought to rely upon the alleged lies of the appellant Leonard – application of the proviso – both appeals allowed – matter remitted to the District Court for a retrial.
Criminal Law Consolidation Act 1988 s 170(2), s 47(a), referred to.
Edwards v R (1993) 178 CLR 193; Harris v R (1990) 55 SASR 321; Krakouer v R (1998) 194 CLR 202; R v Collie (2005) 91 SASR 339; R v Lander (1989) 52 SASR 424; R v Robinson [1977] Qd.R. at 387; R v Sargent (2001) 80 SASR 184; Wilde v R (1988) 164 CLR 365; Zoneff v R (2000) 200 CLR 243, considered.

R v BARING & LEONARD
[2005] SASC 262
Court of Criminal Appeal: Doyle CJ, Perry and Sulan JJ

DOYLE CJ: I agree with the orders proposed by Sulan J. I agree with his reasons for making those orders.
PERRY J: I would allow the appeals against conviction and direct a re-trial.
In those circumstances, it is unnecessary to deal with the application for leave to appeal against sentence brought by the appellant Baring.
I agree in substance with the reasons of Sulan J.
I add some comments on the question of the adequacy of the direction by the trial judge as to the allegation by the prosecutor that Leonard had changed his instructions to his counsel after the tape of the 000 call was played to the jury.
The use which the prosecutor made of this evidence went no further than to label Leonard as a liar. He alleged as much in the question which he put in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Baring & Leonard

Details

AGLC: R v Baring & Leonard [2005] SASC 262
Case: [2005] SASC 262
Decision Date: 15 July 2005

CaseChat Overview and Summary

The appeal, R v Baring & Leonard, involved the appellants jointly charged with aggravated serious criminal trespass in a place of residence and threatening a person with a firearm. The trial concluded with the appellants being found guilty of both charges. The primary legal issue before the court was whether the trial judge adequately directed the jury about how to assess the credibility of the appellants' testimonies, particularly in light of Leonard's change of instructions to his counsel. This change of instructions occurred during the trial, and the court needed to determine if the trial judge sufficiently conveyed the appellant Leonard's explanation about this change to the jury.

The court found that the trial judge did not adequately address the unusual circumstances of the trial, such as the timing of the triple zero call made during the incident and the subsequent identification of Leonard's voice from the recorded tape. The judge's direction to the jury about assessing lies was deemed insufficient, particularly given the appellant Leonard's counsel's contradictory cross-examinations. The court held that the trial judge did not clarify how the prosecution intended to rely on Leonard's alleged lies, which was crucial for the jury to properly evaluate the evidence. The court applied the proviso and found that the trial judge's directions were inadequate, warranting a retrial.

The appeals of both appellants were allowed, and the convictions were set aside. The matter was remitted to the District Court for a retrial, ensuring that the jury would be properly informed about the assessment of evidence, including the handling of Leonard's change of instructions and the significance of the triple zero call and voice identification.

Orders

Orders of the court

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Background

Background to the litigation

In order to understand how the issue arose, it is necessary to deal in some detail with the evidence and the course of the trial.Background The offences occurred on 19 December 2002 at the home of Jason Clark and Janette Riley, who lived together at 18 June Street, Mansfield Park (“June Street”). On that evening, Mr Clark and Janette Riley were at home. Two of Janette Riley’s sons, Brett Faulkner and Luke Faulkner and their girlfriends, Rebecca Dunstall and Christy Adams, were also at the home. There were other members of the family present, including another brother, Shaun Faulkner, and two of Mr Clark’s children, James and Kane. The Crown case was that Baring and Leonard were known to Brett and Luke Faulkner and to their girlfriends, Rebecca Dunstall and Christy Adams. Brett and Luke Faulkner and their girlfriends lived at a house at 21 Brister Street, Angle Park (“Brister Street”), which was a short distance from June Street. On the day in question, at about lunchtime, Baring had approached Brett Faulkner and Ms Dunstall in the driveway of their home. Later that day, Brett and Luke Faulkner and their girlfriends were in a car driven by Christy Adams when they saw the appellant Leonard and his girlfriend at a service station. There was an altercation between Leonard and the occupants of Christy Adams’ car. After the incident at the service station, Christy Adams drove to June Street and Brett and Luke went inside. She and Rebecca Dunstall drove on to Brister Street. They saw the appellant and they immediately returned to June Street. About 9.30 p.m. there was a knock on the front door. Janette Riley answered the door. It was the Crown case that Leonard entered the house. He was armed with a sawn-off shotgun. He was yelling out and asking, “Where is Luke?” He was asking for $15. Baring also entered the room. A third person was standing outside on the doorstep. Leonard was threatening people, so Janette Riley took $20 from Christy Adams and gave it to the third man at the door. She told the two men to get out. After about five minutes they left.The Crown prosecutor’s opening In opening the case to the jury, the Crown prosecutor gave a general overview of the evidence. He did not deal in detail with the evidence of the witnesses who were to be called. In the course of telling the jury who were present at the house that evening, he said:Both Luke Faulkner and James Clark are unable to give evidence. Kane Clark was two and a half at the time the incident occurred. After the two accused left Ms Riley’s house, a call was made to the police by either Ms Riley or Brett Faulkner, or a combination of both. As a result of the information received by way of a triple zero call, two uniformed police officers in the Mansfield Park area, Schroeder and Clover, were on lookout for an HQ Kingswood sedan. They saw one driving east on Ridley Grove, Woodville Gardens at about 9.37 p.m.[4][4] Appeal Book Volume 2 page 9 The making of that triple zero call became very significant later in the proceedings, and I will return to it in due course.

Evidence

Evidence Before The Court

Each of the witnesses was cross-examined by Mr Apps, counsel for the appellant Leonard. In respect of the witnesses, Shaun Faulkner[5], Janette Riley[6], Brett Faulkner[7], Rebecca Dunstall[8] and Christy Adams[9], it was put to them that their identification was incorrect and that Leonard was not at June Street that evening.[5] Appeal Book Volume 3 page 381[6] Appeal Book Volume 2 page 61[7] Appeal Book Volume 2 page 148[8] Appeal Book Volume 2 page 252-253[9] Appeal Book Volume 2 page 334The evidence of Jason Clark Mr Clark gave evidence that he was present in the lounge room when he saw the appellant enter after Janette Riley had answered the door. He saw the appellant take a double-barrelled shotgun, with the barrel and stock sawn off, out of a green bag. The appellant asked for Luke. Mr Clark said by that stage Luke had left. It was then that he took his four-year-old son, Kane, and told Leonard he was leaving. Leonard agreed that Mr Clark and Kane could leave the room. They went to the front of the next-door neighbour’s house. It was at that stage, Mr Clark saw a third man. He also saw a grey-brown coloured Holden HQ motor vehicle. He saw three people leave in the car. He did not see anyone other than the appellant Leonard in the lounge room. During cross-examination by counsel for the appellant Baring, the following evidence was given[10]:[10] Appeal Book Volume 3 page 389Q.There was a knock at the door and Janette answered the door and then there was a male voice, I think, wasn’t there.A.Yes.Q.At that stage, you were still inside, is that right.A.Yes.Q.You grabbed a phone, I think you said, and rang triple zero.A.Yes, that’s correct.Q.Whose phone.A.My phone.Q.What was that, a mobile phone, was it.A.Yes.Q.How long were you on the phone for.A.I picked up it (sic), dialled the three numbers. I didn’t even listen to hear anybody on the other end and put it down. I wasn’t even sure the call actually went through.Q.Did you dial the numbers or not.A.Yes.Q.Then you put the phone down.A.Yes.Q.When you did this, Janette was still at the front door, was she.A.Yes.An unusual occurrence During the cross-examination, there was a mid-morning break. After the break, in the presence of the jury, counsel for the prosecution informed the judge that, as a consequence of the evidence that had been given just prior to the break, he had had discussions with counsel for each of the appellants about the timing of the triple zero phone call. Counsel said that it had been his understanding that the triple zero call had been made after the events had taken place in the lounge room, but it now appeared, as he realised for the first time, that the phone call may have been made as the events were taking place in the lounge room. He said that those events may have been recorded on the police tape. He informed the judge that he had listened to the tape before the trial, but regretted not listening to it as carefully as he should have. He said his original understanding was that the call was made after the events had occurred. He informed the judge that the tape contained a number of voices. He indicated that Mr Clark’s evidence had taken him by surprise, and he now wanted to speak to the witnesses in order to give them an opportunity to listen to the tape and determine if they may be able to identify the voices on the tape.

Decision

Reasons for decision

The jury may well have been influenced by the direction and, on that ground alone, I would allow the appeal in respect of Baring.Conclusion I would allow both appeals and set aside the convictions, and order that the matter be remitted to the District Court for a retrial.

Ratio Decidendi

Legal Principle Established

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