R v Buckoke

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BUCKOKE
[2011] SASCFC 147
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice David and The Honourable Justice Blue)
6 December 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION
The appellant was convicted by a jury of aggravated serious criminal trespass in a place of residence, theft and assault causing harm - inadmissible evidence introduced as a result of questioning by the trial judge - whether a direction to disregard the evidence should have been given - whether miscarriage of justice occurred - whether a propensity warning should have been given - whether the verdicts of guilty are unsafe and unsatisfactory.
Held (allowing the appeal): convictions set aside and matter remitted for retrial.
Criminal Law Consolidation Act 1935 (SA) 20(4), 134(1) and 170(1), referred to.

R v BUCKOKE
[2011] SASCFC 147
Court of Criminal Appeal: Sulan, David and Blue JJ

SULAN J: I would allow the appeal and remit the matter to the District Court for a retrial. I agree with the reasons of Blue J.
DAVID J: I would allow the appeal and order a retrial. I agree with the reasons of Blue J.
BLUE J:                The appellant, Ms Buckoke, was convicted by jury verdict of aggravated serious criminal trespass in a place of residence,[1] theft[2] and assault causing harm.[3]
Background facts
[1]    Criminal Law Consolidation Act 1935 (SA) s 170(1).
[2]    Criminal Law Consolidation Act 1935 (SA) s 134(1).
[3]    Criminal Law Consolidation Act 1935 (SA) s 20(4).
Prelude
The appellant and the complainant, Ms D, had been friends for about two years prior to 17 May 2010, the day of the alleged offences. One or more weeks prior to 17 May 2010, the appellant and Ms D had argued, which led to the appellant pulling Ms D’s hair and “kicking” her out of the house. It was the prosecution case that, prior to the two women falling out, they had both used drugs including methylamphetamine. This evidence was led to inform the jury about the background events leading to the incidents the subject of the charge.
Events of 17 May 2010
Ms D gave evidence that on Monday 17 May 2010 at about 2.45pm, she was present at her boyfriend’s flat. Upon opening the door in response to a knock, the appellant and another female, whom she did not recognise, entered, assaulted her and stole her laptop computer.
The appellant gave evidence denying that she visited or saw Ms D at all on that day. She testified that she was at the house of a friend, Mr Ford, throughout that afternoon. She said that she arrived at about 1.00pm, she and Mr Ford drove to a local chicken shop to buy a takeaway lunch, returned to his house to eat it and she remained there all afternoon until about 6.30pm. When the appellant was interviewed by police officers on the evening of 17 May 2010, she told them the same thing and gave the police officers a detailed account of her movements on that day.
The prosecution accepted that the appellant had been present at Mr Ford’s house at about 1.00pm and at about 6.30pm, but contended that she had left the house in between, travelling to Ms D’s boyfriend’s flat and arriving there at about 2.45pm and committing the offences.
Mr Ford was interviewed by police officers that night. He informed them that the appellant had arrived at his house at about 11.00am and left by 12.30pm.
Mr Ford was a prosecution witness. He testified that he had last seen the appellant on the Saturday or Sunday before the police attended (being a Monday). Later, in evidence-in-chief, he said that he might have been confused, and it might have been on the same day that the police attended. He gave various inconsistent answers. At times, he was certain that it was on the Saturday or Sunday and, at times, he accepted that it may have been on the day in question. In cross-examination, he accepted that it was possible that the appellant was present continuously at his house between 1.00pm and 6.30pm. Mr Ford’s evidence was unsatisfactory. He gave a number of conflicting accounts of his recollection of the appellant’s movements. It is clear that his recall of the day’s events was unreliable.
During the course of cross-examination, Mr Ford gave evidence that he had provided and signed a written statement to the police. He said that the statement probably would have been more accurate because it was much closer in time to the day in question. He claimed that he had memory damage from his youth. I observe that Mr Ford volunteered, in a non-responsive manner, the fact that he had provided and signed a written statement to the police. The fact that Mr Ford had provided a statement to the police was irrelevant. It would have been helpful to the jury if they had been told that the reference by Mr Ford to the prior statement was not relevant and that they should disregard it.
After the conclusion of his evidence, the jury sent a note to the trial Judge asking whether it was possible to read Mr Ford’s police statement. The trial Judge correctly refused the request and directed the jury that they could only rely on the evidence given in Court.
Subsequently, the investigating police officer gave evidence. She was cross-examined about her interview of the appellant and inquiries which were or were not made as to the appellant’s movements on 17 May 2010. In the course of her answers, she said that she had asked the appellant about her movements to establish an objective time line.
The investigating officer was asked by the trial Judge:
HIS HONOUR:    How far was it from the Clovercrest Chicken Shop to Mr Ford’s home and from Mr Ford’s home to Ms [D’s] flat or the flat where she was where the alleged offence occurred.
AI’m trying to work out whether or not you would be able to – I haven’t gone straight from the chicken shop to Mr Ford’s, but it would only be a short drive, I’m not sure if it is within walking distance. Then to go from there to Ms [D’s] house is probably about a 20 minute drive. That’s roughly from, I guess Ingle Farm to Elizabeth……..
HIS HONOUR:    You accept that she had been to the chicken shop.
AYes, I do.
HIS HONOUR:    You accept that she had been to Mr Ford’s house.
AYes.
HIS HONOUR:    So if she had committed the alleged crime, the accused would have left Mr Ford’s house sometime prior to 2.45.
AYes that’s correct.
HIS HONOUR:    Travelled to Elizabeth –
AYes.
HIS HONOUR:    - Committed the crime and then returned to Mr Ford’s house.
AYes, I believe that was quite possible.
After some further cross-examination by counsel for the defendant, the trial Judge then asked the following questions.
HIS HONOUR:    I would like to get the timeline clear in my own mind. The alleged offence occurred at 2.45pm.
A.That’s correct.
HIS HONOUR:    If we work back from that, you said it would take 20 minutes to get from Mr Ford’s house to the site of the alleged offence.
A.Yes.
HIS HONOUR:    So that would get us back to 2.25pm.
A.Yes.
HIS HONOUR:    If we accept that the accused had gone to the chicken shop, then from the time when she attended at the chicken shop she had to get back to Mr Ford’s home, which might be a few minutes perhaps.
A.The information that I was working on is that she had arrived at Mr Ford’s house at about 12 o’clock and had left there at 1.30pm.
Given the evidence the jury had heard that Mr Ford had provided a statement to the police on the night in question, the jury may possibly have inferred that the investigating officer’s reference to “information” was a reference to a statement provided by him to the police. However, the investigating officer did not identify him as the source of that information.
The questioning by the trial Judge then proceeded as follows:
HIS HONOUR:    Can I just put this to you: she was at the chicken shop and she had to get back from the chicken shop to Mr Ford’s house.
A.Yes, if she went back there, yes.
HIS HONOUR:    She also had to eat the meal, the hamburger.
A.It’s a bit hard without going into the other information that we were in possession of, but –
HIS HONOUR:    Have you got other information. Could you tell us what the other information is.
A.The other information that I have been given that had come from Mr Ford.
HIS HONOUR:    What was that.
A.    The information that he had provided is that she’d gotten to his house at about 12 –
At that point, counsel for the appellant objected. The trial Judge implicitly rejected the objection and continued questioning the investigating officer, as follows:
HIS HONOUR:    You are talking about what Mr Ford told you.
A.    Yes, what was provided in his statement.
HIS HONOUR:    If I can go back to my time line again. If the offence occurred at 2.45 and it takes 20 minutes to get from Mr Ford’s house to the site of the alleged offence, she must have left Mr Ford’s house at approximately 2.25pm.
AThat’s correct.
HIS HONOUR:    She had to get from the chicken shop to Mr Ford’s house and consume the hamburger before she set off for the site of the crime.
AMs Buckoke also stated in her record of interview that she got there at about 1 or 2ish, at Mr Ford’s. So she wasn’t certain on that 2 o’clock time.
HIS HONOUR:    Just follow what I am saying though.
AYes, I understand what you are saying.
HIS HONOUR:    She must have left Mr Ford’s house at around 2.25pm.
AYes.
HIS HONOUR:    Before that she had to get back from the chicken shop to Mr Ford’s house and consume a meal.
AYes.
HIS HONOUR:    If we, say, allow half an hour for that, that would put her at the chicken shop at about 1.55.
AThat’s if she’s accurate in her times. She also says further –
HIS HONOUR:    No this doesn’t take into account her times, this is going on your times. The alleged offence was 2.45.
AThat’s right.
HIS HONOUR:    It is your evidence that to get from Mr Ford’s place to the site of the crime is 20 minutes.
AYes.
HIS HONOUR:    So that sum gets us to 2.25.
AYes but –
HIS HONOUR:    Then we make an allowance – nothing to do with her evidence – we make allowance for her to get from the chicken shop to Mr Ford’s house and for her to eat the meal – and this is guesswork, but if we assume half an hour then she would have been at the chicken shop at about 5 to 2.
ASorry, I’m confused. It was – when I did the investigation I guess I was running by the time that Mr Ford provided and also Ms Buckoke has stated that she was uncertain about the times, but that she was working on about 1 or 2 o’clock.
HIS HONOUR:    The point of my question is to ascertain whether she was at the chicken shop at about 5 to 2.
AI have no idea what time she would have been at the chicken shop.
In his summing up, the trial Judge referred to the evidence of Mr Ford, but made no reference to the evidence given by the investigating officer as to the content of his written statement to the police.
The trial Judge in his summing up did not refer to the evidence of drug use or the altercation which occurred some weeks prior to 17 May 2010.
Grounds of appeal
The appellant relies upon three grounds of appeal, as follows (renumbered for ease of reference):
1.(a)The conduct of the Learned Trial Judge in compelling the prosecution witness to give evidence about what another prosecution witness had told the police concerning the whereabouts of the Appellant at about the time of the alleged offences, led to the introduction of inadmissible and highly prejudicial evidence such that the Appellant failed to receive a fair trial.
(b)And further, the Learned Trial Judge erred in not instructing the jury that what the prosecution witness had said to the police about the Appellant was not evidence that they could act upon and should be disregarded.
2.There has been a miscarriage of justice by reason of the failure of the trial Judge to direct the jury as to the permissible and impermissible uses of the evidence of the Appellant’s illicit substance abuse and to previous aggressive behaviour towards the complainant.
3.Having regard to the state of the evidence, the verdicts of guilty with respect to each of the three counts on the information were unsafe and unsatisfactory.
Ground 1: Evidence of investigating officer
The questioning of the investigating officer by the trial Judge in the presence of the jury concerning the timeline was unfortunate.
While the first reference by the investigating officer to “information that I was working on” might be regarded as unresponsive to the question put to her by the trial Judge, the trial Judge went on to press her to identify both the source of that information, which she identified as Mr Ford, and the content of that information, which she identified explicitly and implicitly as that the appellant had arrived at 12 o’clock and left at 1.30pm.
Evidence of the content of what Mr Ford had said to the police on a prior occasion was inadmissible. The only way in which it could have been admissible would have been if Mr Ford had been cross-examined about his statement to the police, and if he had denied making it. The evidence could only be led to contradict the evidence of Mr Ford and impugn his credit. That was not done in this case.
In any event, the evidence elicited by the trial Judge from the investigating officer of the contents of Mr Ford’s statement to police was inadmissible as evidence of its contents and should not have been permitted to be used by the jury to determine the objective fact of the times at which the appellant was present at Mr Ford’s house of that day.
Given that the jury had made an explicit request to the trial Judge to see Mr Ford’s statement to the police, the confusion inherent in his oral evidence, his own evidence that his police statement was made when events were fresh in his mind and the fact that the evidence was elicited by the trial Judge himself, there was a very large risk that the jury would give, and did give, substantial weight to the evidence of what Mr Ford had said to the police as to her movements on that day when the events were still fresh in his memory.
Given that the prejudicial evidence went to the heart of the central issue in the case, namely, the appellant’s whereabouts at the time of the offence, and given that Mr Ford’s evidence was the only evidence on that topic apart from the conflicting testimony of the appellant and Ms D, it is impossible to conclude that no substantial miscarriage of justice occurred. It follows that the convictions must be set aside.
The trial Judge, having elicited the evidence, at the very least should have directed the jury that they should disregard the evidence of the investigating officer insofar as she had referred to the content of Mr Ford’s statement to the police. As I have said, the evidence was inadmissible. However, it having been elicited by the trial Judge, his failure to direct the jury that they could not use it as evidence of the appellant’s movements on the day in question amounts to an error.
It is not necessary to determine whether such a direction would have sufficiently negated the prejudice to the appellant from the eliciting of the evidence in the first place. However, given that it was evidence elicited by the trial Judge, it would have required a strong and unequivocal direction to ignore it in order to uphold the conviction.
Ground 2: Propensity direction
On appeal the Director concedes that the trial Judge should have given a warning to the jury against the use of propensity reasoning by reference to the use by the defendant of methylamphetamine and the earlier physical altercation.
In relation to the evidence of the use of methylamphetamine, the question of whether the absence of a warning gave rise to a miscarriage of justice needs to be considered in the circumstances. Those circumstances include that the case turned principally upon the word of Ms D as against the word of the appellant as to what occurred on 17 May 2010, the fact that both the appellant and Ms D were users of methylamphetamine and the fact that the use of drugs by them was an inseparable part of the relationship between them prior to the alleged offences.
In relation to the evidence of the altercation some weeks prior to 17 May 2010, the circumstances included that, on Ms D’s own evidence, there were strong grounds for the appellant having become upset on the day in question by the events which occurred, and the nature of the physical altercation was limited to pulling hair and “kicking” out of the property.
In relation to both matters, the Director had given strong admonitions to the jury during both opening and closing addresses against the use of propensity reasoning.
In the above circumstances, the Director contests that the absence of a propensity direction by the trial Judge gave rise to a miscarriage of justice. The fact that prosecuting counsel submitted to the jury that they should not reason in an impermissible way does not alleviate the necessity for the trial Judge to direct the jury as to how they may rely upon such evidence. The trial Judge is required to direct the jury as to the impermissible manner of reasoning when considering such evidence. A failure to do so is an error. Whether ultimately that would lead to the conviction being overturned will depend on the circumstances and the other evidence in the case. However, having regard to the miscarriage of justice I have earlier identified, it is unnecessary to decide whether the error in the failure to give an adequate direction in this case would lead to the conviction being set aside.
Ground 3: Verdict unsafe and unsatisfactory
The appellant argues that the injuries to Ms D following the events of 17 May 2010 were inconsistent with the severity of the assault which she described. There is no substance in this contention. There was objective evidence that Ms D sustained physical injuries (however caused) and it is impossible to say that they are inconsistent with the events which she said caused them.
Next, the appellant refers to two aspects of the conduct of Ms D immediately after the commission of the alleged offences. Ms D telephoned her boyfriend before telephoning the police, and then after they arrived at the flat she wished to consult with her boyfriend before attending at the police station for interview. She also gave evidence that she had collected her hair, which had allegedly been pulled out by the appellant, from the floor and a single clump and bundled it together on the coffee table prior to the arrival of the police. The conduct of Ms D in these respects was a matter for the jury to assess and there is nothing inherent in her conduct which is inconsistent with the events having occurred as she described them.
Next, the appellant refers to three matters. There was evidence that Ms D had previously engaged in self harm. The appellant contends that she may well have inflicted the injuries in question upon herself. She also contends that Ms D had a motive to fabricate a story against her, being the previous altercation and the loss of her source, through the appellant, to methylamphetamine. The appellant submits that there was no DNA evidence, no other eye witness and no corroboration of Ms D’s account of the events of 17 May 2010. These three matters were all matters for the jury to assess and do not necessarily give rise to a reasonable doubt as to the veracity of Ms D’s account.

Finally, the appellant points to a discrepancy in Ms D’s description of the second female who attended at the flat. In her police statement, she described that person as having light brown hair, whereas in her evidence she described the hair as dirty blonde with bits of brown through it. In her police statement she described the person as chubby, whereas in her evidence she described the person as slim. In her evidence, she mentioned freckles which were not mentioned in her police statement. These were matters the subject of cross-examination and were matters for the jury to assess. It is not possible to conclude that to the extent that there were inconsistencies in the description they necessarily gave rise to a reasonable doubt as to Ms D’s account.
The matters referred to by the appellant were matters for the jury. They do not demonstrate that the verdict of guilty by the jury is unsafe or unsatisfactory.
Conclusion
I would allow the appeal. I would set aside the convictions, and remit the matter to the District Court for retrial.

[2011] SASCFC 147

6 December 2011

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Sentencing