R v Edwards
[2007] SASC 202
•8 June 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v EDWARDS
[2007] SASC 202
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Sulan)
8 June 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE
Appeal against conviction and sentence - appellant convicted by jury of manslaughter and sentenced to be imprisoned for four years with a non-parole period of eighteen months - whether failure of trial Judge to declare mistrial, on the basis that jury had been presented with inaccurate information and evidence regarding the times at which events occurred in relation to the offence of which the appellant was convicted, resulted in a miscarriage of justice - whether re-trial necessary - Held: Appeal against conviction allowed - appellant did not receive a fair trial because there is a real risk the jury convicted on an erroneous factual basis - re-trial ordered.
Criminal Law Consolidation Act 1935 (SA) s 13, referred to.
R v ADW (2002-2003) 84 SASR 178; R v Birks (1990) 48 A Crim R 385; R v Gas (1997-1998) 98 A Crim R 80; R v Szabo (2000) 112 A Crim R 215; R v Tran (2000) 118 A Crim R 218; Webb v The Queen (1994) 181 CLR 41; Whitehorn v The Queen (1983) 152 CLR 657, applied.
R v Arthur (1966) 84 WN (Pt 1) NSW 121; R v Crowe [1985] 2 Qd R 389; R v Davis (No 2) (1960) 4 Cr App R 235; R v Green (1950) 34 Cr App R 33; R v Ion (1951) 34 Cr App R 152; R v Kachikwu (1968) 52 Cr App R 538; R v Rabey [1980] WAR 84; R v Townsend (1982) 74 Cr App R 218, considered.
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS
Further grounds of appeal - whether evidence admitted by trial Judge was hearsay - Held: Appeal dismissed on these grounds.
Consideration of directions under s 15, s15A and s 15B of Criminal Law Consolidation Act 1935 (SA) in respect of self-defence, defence of another and assisting the lawful arrest of an alleged offender. Held: There was no misdirection.
Criminal Law Consolidation Act (1935) (SA) s 15, s 15A, s 15B, referred to.
Subramaniam v Public Prosecutor [1956] 1 WLR 965; Walton v The Queen (1988-1989) 166 CLR 283, applied.
R v EDWARDS
[2007] SASC 202Court of Criminal Appeal: Doyle CJ, Bleby and Sulan JJ
DOYLE CJ: I would allow the appeal, set aside the conviction and sentence and order that there be a retrial of the Information.
The prosecution case and a significant part of the defence case was put to the jury on the basis of an error as to the time at which certain events occurred, in particular the time at which the police arrived at the hotel.
Because of the error there was a real risk of a miscarriage of justice. The facts had been presented to the jury on a false basis.
The error came to light too late for the error to be corrected satisfactorily, and for the risk of a miscarriage to be removed. The only solution was and is for the trial to be terminated, and to start again.
I agree with the reasons of Sulan J on this matter, and on the other matters argued.
As Sulan J says, it is regrettable that a re-trial is necessary. But this is the only way in which justice can be done.
BLEBY J: In my opinion the appeal should be allowed and a retrial ordered for the reasons given by Sulan J. I also agree that the other grounds of appeal fail.
SULAN J: The appellant, Paul John Edwards, was charged and convicted by verdict of a jury of the manslaughter of Dominic Jason Esposito on 27 February 2005, contrary to s 13 of the Criminal Law Consolidation Act 1935 (“The Act”). On 2 March 2007, he was sentenced to imprisonment for four years, with a non-parole period of eighteen months.
The appellant appeals against the conviction and the sentence.
Introduction
The primary issue raised in the appeal is whether the failure of the trial Judge to declare a mistrial resulted in a miscarriage of justice. The prosecutor opened the case on the basis that events surrounding the incident, which resulted in the deceased’s death, happened at certain times. Counsel for the defence had no basis to challenge that assertion. During the evidence of a defence witness, it was discovered that the assumption made by the prosecutor and defence counsel about time was wrong. One of the police witnesses had been aware of the correct position before the trial commenced, but had failed to inform prosecuting counsel. The case was left to the jury without the error being corrected. In order to understand how the situation came about, and the consequences that flowed therefrom, it is necessary to give a detailed account of the facts and how the trial proceeded.
Background
The conviction of the appellant arose out of an incident at the Ramsgate Hotel on the evening of 27 February 2005.
The appellant was employed at the hotel as a security officer. Mr Esposito was at the hotel that evening with two friends, Wade Mills and Kane Reid. They had arrived at the hotel at about 8 p.m., having attended the Henley Food and Wine Fair earlier that day. During the evening, shortly before the incident, the three men were at a bar in the gaming room.
The entrance to the gaming room is from the lobby area, which is west of the gaming room. One of the entrances to the hotel is from a porch on the western side of the hotel which leads into the lobby. The lobby is approximately 2.4 metres wide and about 11 metres long. On the northern side of the lobby there is an alcove containing an ATM machine. The ATM machine is approximately 5 to 6 metres east from the entrance to the hotel and about 5 to 6 metres west from the door to the gaming room. There is a staircase on the northern side of the lobby approximately 8 to 9 metres from the western entrance. On the north side of the hotel is a large front bar which extends almost the length of the northern perimeter of the building. On the southern side of the lobby is a bistro. The entrance to the bistro is opposite the alcove in which the ATM is situated. Immediately east of the bistro is the kitchen area.
Throughout the hotel there are a number of security cameras. There was a camera in the lobby at the foot of the staircase, about 2.6 metres from the floor, which was pointed to the alcove focussing on the area of the ATM. The camera is pointing in a south-westerly direction giving a view of part of the lobby, including the ATM alcove, in an area west of the stairs and capturing part of the western and southern areas of the lobby. There were a number of cameras in the gaming room, one of which pointed towards the door of the gaming room.
The footage from each camera was recorded on a system which had been developed from a computer program (“DVR”). It is not necessary to detail the technical aspects of that system. It was possible to retrieve footage and observe what the camera had filmed by use of that computer program. The program enabled a person to view activities in the hotel at any point in time during which the cameras were operating. So, for each camera, it was possible to view the DVR and observe what the camera had observed at any particular time. The time was shown on the picture so that, if an incident was recorded, the time at which the incident was recorded would be seen on the screen. The system enabled a person to view the disc after events had occurred, and it was possible to re-create activities which had been recorded in different parts of the hotel at a given time. It was possible to search the images from a camera at blocks of time. Therefore, it was possible to take a segment of time and view the activities picked up by a camera in a particular position at any second of time. A central part of the appeal related to the time shown as the time of the events which had occurred and the accuracy of the time when compared to the actual time during which those events occurred. I shall refer to the time shown on the DVR as “Ramsgate time” and the actual and correct time when events occurred as “Real time”.
During the evening, Mr Mills left the gaming room to go to the ATM machine. Whilst he was away, there was an altercation between a barperson and Mr Esposito. Security guards were called and Mr Esposito and Mr Reid were escorted from the gaming room to the lobby, which led to the exit at the western end of the lobby. Mr Reid stopped to wait for Mr Mills who saw that Mr Reid and Mr Esposito were being escorted from the premises. Mr Mills joined them. The three of them were walking through the foyer in a westerly direction towards the door of the hotel leading to the porch. Following behind them were a number of security officers, including the appellant. The area is a relatively narrow section of the hotel.
As they were walking towards the door, an altercation occurred between Mr Mills and a security guard. It quickly developed into a chaotic situation, as Mr Reid and Mr Esposito came to the assistance of Mr Mills, and other security officers joined in. A brawl broke out.
Mr Esposito was grabbed around the neck by a security guard, Mr Courtney. The appellant went to the assistance of Mr Courtney. He also grabbed Mr Esposito around the neck. The two of them went to ground, with the appellant holding Mr Esposito in a headlock and lying across Mr Esposito whilst holding him. During this time, the situation was chaotic and the fight was continuing.
It was the prosecution case that the appellant continued to hold Mr Esposito in a headlock for a considerable length of time in excess of 8 minutes until the appellant and others noticed and realised that Mr Esposito was not breathing. He had died of asphyxiation.
The events of the evening were witnessed by a number of people, including security officers, friends of Mr Esposito, other staff and patrons. There was evidence from police officers who attended the scene and restrained and arrested Mr Mills and Mr Reid. The events were recorded by the various cameras, which included cameras in the gaming room and in the lobby area.
Grounds 1-4 – the failure of the trial Judge to order a mistrial
In opening the case for the prosecution, the prosecutor said:
Most importantly though, ladies and gentlemen, what you will see is that there was a camera located in the corridor just over an ATM machine and that camera picked up a lot of what had occurred in that area. Now there are obviously some portions that occur off camera, you don’t see those, and there are other times when the camera is obscured by people walking in front of it, for example, but despite those limitations you will see a significant proportion of what occurred in that corridor.
Ladies and gentlemen, you will see Dominic Esposito being forced to the ground. You will see the accused holding him around the neck in a headlock. You will see the accused leaning into the back of Dominic Esposito in such a way that his [sic] using his body weight to restrain him on the ground, keeping him in place, and you will see him in that position, then other security guards come and help by leaning on Mr Esposito. Ladies and gentlemen, very importantly for the prosecution, you will see that for quite some time, prior to the discovery that Mr Esposito was no longer breathing, he didn’t move. He was motionless as he was restrained on the ground and as the accused continued to restrain him.
Another benefit that arises from having this video footage is that there is also a timer on the bottom of the screen. You will hear some evidence today very shortly from the witness who was responsible for installing this equipment in the Ramsgate for setting it up. He is a Mr Palmer. He will give you an overview about this system, explain how it works. What he will tell you is that the time that is on the screen is in fact an accurate time. You can take it if the time says ‘8.45 p.m. and 20 seconds’ that is accurate. What he will also tell you about that timer is that it times correctly. So if it appears on the screen from looking at the figures that something starts at 8.30 and it finishes at 8.32, will [sic] you can accept that those events took two minutes. Ladies and gentlemen, in terms of the times you will see that it was at about 8.42 p.m. that Dominic Esposito was first taken to the ground by the accused.[1]
[1] T 14-5. (Underlining is mine)
The prosecution case, as opened, was that Mr Esposito was taken to the ground by the appellant at about 8.42 p.m. and it was at about 8.50 p.m. – some eight minutes later – that it was discovered that Mr Esposito was not breathing. The appellant was observed getting up and walking away.
The prosecutor opened that events occurred quickly. The first police officers on the scene were Constable Valassakis and Constable Pearson. They first restrained Mr Mills and Mr Reid. After that, they turned their attention to Mr Esposito. One of the officers heard someone say, “He is not breathing” and, when the officers observed Mr Esposito, he was not breathing and, it seemed he was dead.
The prosecution case, as opened, was that Ramsgate time and Real time were both the same and accurate. According to the recording of events, Ramsgate time showed that the appellant took Mr Esposito to the ground at 8.42.40. The recording of events showed Constable Pearson leaning over Mr Esposito at 8.51.11 after the appellant got up from holding him. It follows that the appellant had Mr Esposito in a headlock on the ground for approximately 8½ minutes. That was not in dispute.
Mr Palmer is the Assistant General Manager of R&B Security Services. His company is involved in the commercial and domestic security and surveillance industry. The company was responsible for the installation of a number of cameras at the Ramsgate Hotel. He explained how the DVR system recorded all of the footage that came from the different cameras installed throughout the hotel. He explained how the various images contained a watermark of the date and time. He said that the sections of the video as they are recorded are stored on a hard drive and the date and time is watermarked into it. He said that it cannot be manipulated or changed, and any attempt to do so would render the image irretrievable. He gave evidence that the time, as shown on the DVR, was the correct time. He was asked:
Q.So when we look at one in a minute and it says say for example ‘8.45 and two seconds’ that was the time the actual recording was made.
A.Correct.[2]
[2] T 41.
Based upon this evidence, counsel for the appellant proceeded on the assumption that Ramsgate time and Real time were the same.
Constable Fitzpatrick gave evidence that, according to police communications records, the police received the first communication about the melee at the Ramsgate Hotel at 8.40 p.m. Real time. The first record of police arriving at the scene was at 8.43.38 Real time. A request for ambulance officers to attend was recorded at 8.48.05 Real time.
It follows, that on the assumption that there was no difference between Ramsgate time and Real time, the first police officers were at the hotel about one minute after Mr Esposito was taken to the ground by the appellant. Therefore, the appellant was holding Mr Esposito in a headlock from 8.43.38 to 8.51.11 (Ramsgate time) after the police arrived. That is, the police officers were at the hotel for over 7½ minutes after the appellant had placed Mr Esposito in a headlock. The trial proceeded on that assumption by both the prosecution and defence counsel. That is, that Real time and Ramsgate time were the same. Counsel for the appellant cross-examined the witnesses on the basis that the police were at the scene shortly after the fight commenced.
A number of witnesses were shown footage of parts of the incident. In each case the time was exhibited on the screen. Many of the witnesses recalled events by reference to the film. There was no suggestion that Ramsgate time was not correct. A number of witnesses could only recall events by viewing the DVR and refreshing their memory. All the witnesses assumed that the times shown were accurate.
Dr Gilbert, who performed the post-mortem on Mr Esposito, was of the opinion that Mr Esposito died of asphyxiation. It resulted from blood being cut off to the brain, either through the carotid artery or through the veins in the neck. Dr Gilbert said considerably more force would be required to cut off blood supply by the carotid artery than via a vein. In the case of jugular veins, both sides needed to be blocked. If the arteries are blocked, a person will normally lose consciousness after about ten seconds. If the veins are blocked, then consciousness will be lost in about thirty seconds. If the pressure is maintained, a person will die within 2½ to 3½ minutes after the loss of consciousness. Dr Gilbert said that to block an artery needed significant pressure. He said:
… While someone is still conscious they can make a conscious effort to breathe more deeply and resist that and they can compensate for it, they are still able to breathe irrespective of what’s going on with the neck compression. However if they become unconscious it’s possible that, or more likely that they are then no longer in a position to sort of consciously fight to breathe. If consciousness is lost and there is still pressure on the chest then the compensatory mechanism of actively trying to breathe deeper to get more air in might fail and therefore this compromise of respiration may be an additional factor in causing the death in that their blood oxygen level may start to drop if they are not breathing effectively.[3]
[3] T 428.
As to the cause of death, Dr Gilbert expressed the following opinions:
Q.Can you differentiate though that if there was not the other person there death might not have resulted or is that too difficult.
A.You are talking about the effect of the second amount of pressure on the back?
Q.Yes.
A.I can’t say one way or the other, no. Really I’ve given the major cause of death as this interference with the blood supply to the brain on the clear account from witnesses; it’s backed up by physical evidence, focal areas of bruising in the neck, petechial haemorrhages.
Q.And also the factors other than the theoretical proposition you’ve told us about the carotid artery, other than that’s [sic] there’s no reason from your post-mortem examination that could explain death I take it.
A.No, but if this was one or more people exerting pressure over his chest that’s going to reduce his chances of survival in this situation.
Q.But what I wanted to understand is this; that all goes to the question of blood not being supplied to the brain.
A.As far as the chest goes that goes to the ability to breathe effectively and maintain an adequate level of oxygen.[4]
[4] T 429.
In cross-examination, Dr Gilbert agreed that pressure of no more than three to four kilograms can block venous circulation.
The appellant gave evidence. He told the court that he had no previous convictions, that he was in regular employment and also did security work for a company which had contracted with the Ramsgate Hotel to provide security services. He worked there on Friday and Saturday nights if his other job as a fireman permitted. On the night he was on door duty. His superior, Adam Spencer, had allocated him to the main door on the northern side of the hotel. The appellant was the second-in-charge that evening.
During the evening, the appellant was in the vicinity of the gaming room when he heard another security officer, Travis Pix, asking Mr Esposito and Mr Reid to leave. The appellant anticipated that there might be trouble and he went to assist. The appellant indicated to the men that he wanted them to leave. The security officers were in the process of walking the three out of the hotel, leading to the foyer. By then there were others in the area. The appellant cannot recall exactly how many people were there. As the three men were being escorted from the premises, a fight broke out in the foyer. The appellant was hit. He was hit several times in the body and face. He recalled struggling with Mr Esposito. He was dazed from having been hit. His vision was blurred. Mr Esposito was very violent and aggressive. The appellant thought he had to stop him. His recollection of the events was vague. He did not recall other people coming up to him, or hearing people saying, “Police, police”.
Whilst struggling with Mr Esposito, he said he remembered wanting the police to arrive so that it could all be over. When he saw the police, he finally thought, “It’s over, it will be finished”. He said he held Mr Esposito, waiting for help. He does not recall how he got off Mr Esposito. He has a vague memory of going to casualty at the hospital, and then going to his parents’ home. Mr Edwards received injuries to his face and to his neck. He was off work for twelve days after the incident. The appellant told the Court that at no stage did he intend to hurt Mr Esposito. He held Mr Esposito down to stop and restrain him as best as possible.
The appellant was cross-examined and shown the DVR commencing at 8.38.65. He was asked to identify two other security people who were shown on the screen at 8.39.11. They were Travis Pix and Jaie Phypers. The appellant was shown on the DVR near Travis Pix at 8.40.18. The prosecutor identified the appellant’s movements according to the time shown on the DVR (Ramsgate time). The appellant said he was knocked out and then he came-to when he was in the south-west corner. He had no memory of how he moved from one point in the room to the position where he regained consciousness. He recalled that he was near the ATM wall with Mr Esposito on the ground. He did not recall putting a headlock around Mr Esposito.
He was shown footage at 8.41.30 and 8.41.45, which showed Jamie Courtney restraining Mr Esposito. Travis Pix was also shown. It was after that that the appellant was shown stepping in. Much of the appellant’s evidence was given by him trying to work out what he saw on the DVR. The DVR was shown at 8.42.27 Ramsgate time, with the appellant’s arm around the neck of Mr Esposito. At 8.42.40, he had taken Mr Esposito to the ground. At 8.44.15, Travis Pix is shown down on the ground in the vicinity of Mr Esposito. At 8.46.02, Melissa James is shown restraining Mr Esposito’s legs. At 8.46.27, Mr Spencer is shown leaning over. The appellant said that at no time did he think the situation was under control.
A number of questions were put to the appellant suggesting times at which other security officers were either nearby or leaning over him and Mr Esposito. All the times put to the appellant were Ramsgate time. It was put to the appellant that at 8.50.40, Ramsgate time, a police officer approached him and that at 8.51.52 he was getting up and walking away.
Adam Spencer gave evidence that he was in a position near the main door when the fight broke out. He said it was chaos. He described the scene in the foyer:
When I got into the foyer there was a big melee going on, fighting between security staff and a number of patrons. There was – as far as I can remember there was all of the security staff in there at that point in time and they were wrestling with a number of mates. They all looked extremely distressed, a number of them had ripped shirts.[5]
[5] T 1256.
He said some of them had blood on their faces and the scene was “pretty scary”. He said that he recalled two police officers arriving, one male one female, and they were able to restrain two of the men in the foyer by handcuffing them. He said that he had taken Mr Mills to ground in a headlock. He said he then moved towards the appellant and Mr Esposito. He said that Mr Esposito was still moving, kicking and screaming and Mr Edwards was restraining him at the upper end of his body. He said he was trying to restrain Mr Esposito’s legs and Melissa James was trying to apply an arm lock. He said that he was speaking to the police, trying to get them to restrain the male. By that stage, the police had restrained the other two males. He recalled asking the police officer if she had any more handcuffs and she said no. The male police officer said that they would just have to hang on to Mr Esposito until backup arrived. Mr Spencer said he then told the appellant that he would have to hold the male where he was. He said that there was still chaos in the foyer. He said that, shortly after he had spoken to the appellant, a second group of police officers arrived, and when they went to move Mr Esposito into the position where he could be handcuffed, they realised that he was unconscious. He said that is when he asked the police officers to call an ambulance.
In cross-examination, Mr Spencer was shown the DVR. His attention was drawn to times on the DVR and to events which appeared to be occurring at certain times. When it was put to him that his earlier evidence was inconsistent with the DVR, he agreed that the footage was obviously correct.
He said his recall was as he had given his evidence, but the footage appeared to be slightly different. Mr Spencer was cross-examined about the time when he went back to Mr Esposito after having restrained Mr Mills. He said that Mr Esposito was still struggling at that stage, and it was at that stage that the police were in the corridor. The DVR was played to him at 8.46.05 and at 8.46.40. He said that it was only after the police had arrived that he saw Mr Esposito in a headlock. He said at 8.47.26 the police were there.
The following questions were asked:
VIDEO SHOWN
Q.20:47:26, is that you walking back on the screen now.
A.Yes, I believe so.
Q.Someone else has sort of come back at the same time as you.
A.Yes, Jaie again.
Q.So again the two of you are sort of wandering around not restraining anyone at this point.
A.The other two males had been cuffed at this point in time, there was no need for us to restrain Mr Esposito at this stage.
HIS HONOUR
Q.And the police were there then, were they.
A.Yes, I believe so.
VIDEO SHOWN
XXN
Q.You just walked off the screen at 20:47:30.
A.Yes
Q.Do you recall walking off in that direction at about this stage.
A.I don’t recall exactly when I walked off, no.
Q.Isn’t this the point at which you actually go off and assist the police in restraining Wade Mills.
A.I don’t recall.
Q.It was at this point, and not earlier on like you’ve told us.
A.I don’t recall. I remember that when I came back in that’s when I restrained Mr Mills.
Q.You see you’ve suggested to us that this effort in restraining Mr Mills, struggling on the floor and all sorts, occurred between when we saw you go out into the front bar, and then we see you reappear on the screen.
A.That’s how I remember it.
Q.You see, I suggest there’s three minutes between the time we see you go off the screen to deal with the incident in the front bar and then seeing you coming on the screen and milling around with where Mr Edwards and the deceased were.
A.No.
Q.So is it your evidence in those three minutes you’ve gone into the front bar, dealt with another incident, come back around, got involved with all this carry-on with Mr Mills and the police and then made your way back down to sort of mill around by Mr Edwards.
A.Yes, that is my evidence.
Q.In those three minutes.
A.Yes.[6]
[6] T 1293-4.
Later in the cross-examination it was suggested to Mr Spencer that it was nonsense for him to suggest that Mr Esposito was still kicking, yelling and carrying on when the police arrived. Mr Spencer said that he did not believe it was nonsense.
It was during the cross-examination of Mr Spencer that defence counsel were provided with a statement from Constable Fitzpatrick which, for the first time, informed defence counsel that Ramsgate time and Real time were not the same. Counsel for the appellant then submitted to the trial Judge:
At the times as depicted on the footage when he was being cross-examined my learned friend put to the witness that the police hadn’t arrived yet and that he had gone to Mills after a certain time which I think was 20:47:05. We have records which have been given to us by the prosecution from the South Australian Police Department Communications Centre which make it clear that the police were certainly on the scene at 20:43:38. What has been put to the witness is incorrect and could be of some significance. I wish to tender those records.[7]
[7] T 1298.
The trial Judge declined to permit defence counsel to tender the records.
The effect of the error was that, up to that time, the case had proceeded on the misunderstanding that the police had been in the building approximately one minute after Mr Esposito was taken to ground when, in fact, it was five minutes after Mr Esposito went to ground before the police arrived.
During the defence case, counsel for the Crown advised the trial Judge that she intended to make an application to re-open her case, based on the statement of Constable Fitzpatrick who had undertaken an investigation some time ago about the times on the footage and Real time. She told the trial Judge the following:
… What the police ascertained from comparing the times on the footage with reference points, so, for example, we can see someone make a telephone call, and we can trace that to police communications, is there is a four-minute difference between the times used by police communications as compared to the time within the computer. That’s supported, when I look back, by evidence from the ambulance officers, in particular Mr McKenzie, the first paramedic to arrive at the scene, talks about arriving at 20:56 from communications time. When one looks at the DVR paramedics don’t appear until 21:01:50.[8]
[8] T 1358.
The trial Judge observed that was new information because the Court had been assured that the times on the DVR and Real time were accurate. Counsel submitted that the new evidence raised an issue relating to the time when the police arrived and its correlation with the time on the DVR. She said:
What it boils down to is this: on officer Fitzpatrick’s statement they were there for about two minutes. If one assumes that the DVR time matches the police communications time, it’s six minutes. That’s the only way this issue is now relevant to the trial.[9]
[9] T 1359.
She went on to say:
I know it’s a dramatic step to apply to reopen the prosecution case in any circumstances, but here it has really occurred as a result of some communication breakdown between the police and prosecution.[10]
[10] T 1359.
The trial Judge expressed concern that the defence had fought its case on the basis of the material as everyone had assumed it to be, and it was later revealed that the DVR was four minutes out. The trial Judge indicated that he did not want the jury to have before them material that was not true. The trial Judge commented that it would be unfortunate if the jury were left with evidence that was not correct but, on the other hand, the defence position was that they had presented their case on a certain basis which had changed.
Defence counsel submitted that the timing of how long the police were on the premises and when they arrived was crucial. It was crucial to the credibility of Spencer and another witness, Melissa James, as to when events occurred. Defence counsel submitted that to permit the prosecution to re-open its case would prejudice the defence case in a number of respects. First, it would prejudice them in respect of the credibility of two defence witnesses, Spencer and James. Secondly, it indirectly affected the evidence of the appellant and, in particular, conversations he claimed he had and conversations he heard after the police had arrived. It also affected the exact timing of other witnesses’ evidence as to events which occurred at various times and whether the police were present or not. Defence counsel submitted that there were witnesses who had not been cross-examined about times when the police were said to have been present because it had been assumed by the defence that the times were correct. He submitted that if the prosecution were permitted to re-open and the correct times were put to the jury, he would be required to restructure his whole case.
Counsel for the prosecution agreed that if she had known the correct position at the commencement of the prosecution case, she would not have opened the case on the basis that the times on the DVR were accurate
The trial Judge ruled that he would not permit the evidence to be led. He said that he considered the prejudice to the accused was far too great and that he would not get a fair trial. He said:
However, I do not want to stop the parties making any application to me whereby this evidence could still be led if it’s fundamental to this case, and bearing in mind my ruling I will await other applications.[11]
[11] T1376.
The prosecutor indicated that no further application would be made at that stage. She said that she wanted to consider the position. If there was to be a further application, she would make it the next day. Defence counsel indicated that the defence case had been based upon the times as led, and the times were extremely important.
The trial Judge reiterated that he was not permitting the prosecution to re-open its case because the prejudice would be too great. In his words, if he were to permit the prosecution to re-open, the defence would have to “unscramble a lot of eggs and that is unfair”. He indicated that if the Crown wished to make an application to abort the trial, he would listen to that application.
There was then an adjournment for the prosecutor to obtain instructions. Upon resumption, she made two applications. The first was to renew her application to re-open the prosecution case, and to allow the witnesses to be further cross-examined by the defence. She submitted that if the trial Judge refused that application, her application was that the trial be declared a mistrial. She submitted that it would not be in the interests of justice for the jury to proceed to a verdict on information that the prosecution, the defence and the Court knew was inaccurate. She submitted it would be unethical for her to attempt to address the jury on evidence that she knew was incorrect, and misleading to the jury. She submitted that any conviction would be tainted by virtue of the jury having been misled. Defence counsel opposed both applications. As to the application for a mistrial, defence counsel referred to the cost and expense of a retrial.
It is surprising that defence counsel did not support the application for a mistrial. In opposing the Crown’s application to re-open, defence counsel made much of the prejudice his client would suffer, as his case had been presented on an incorrect assumption. If the error was so significant, it is curious that counsel was prepared to agree to the case going to the jury on a false assumption.
The trial Judge suggested that the prosecution could put to the jury in her address that there may be a difference between Real time and Ramsgate time. He suggested that there was some evidence that showed there was a discrepancy, although the evidence was not specific. The prosecution could allude to that evidence. The prosecutor responded that that was a middle ground.
The trial Judge said:
If you put an argument that’s open on the evidence that it’s not as long as six minutes, on the evidence, and Mr Lyons disagrees with you, on the evidence, that’s all right, isn’t it? I haven’t got a problem with that. I don’t think anyone would have a problem with it, as long as it’s on the evidence. Say what you like. There’s no agreement that it’s necessarily six minutes. The agreement is that that time read the time, and there’s an assumption it’s the same as the other time, but there’s some other evidence like the medical people that puts an inroad into that. There’s [sic] all up for grabs, isn’t it?[12]
[12] T1382.
The suggestion that was put by the trial Judge left the situation in the same unsatisfactory position it would have been in had he refused permission to the prosecutor to make any submissions about the difference in time. It is unfortunate that the jury was left to decide the case not knowing the true position. On the one hand the defence was arguing on the basis of a position which was known to the Court to be incorrect. On the other hand, the prosecutor was being permitted to suggest that the times might be inaccurate when, in fact, it was known that they were inaccurate and by how much. The trial Judge ruled:
Thank you both for your comments. I’m going to rule that this trial goes on. I’m going to allow counsel to address on the evidence as if that other statement didn’t exist, and I will keep an eye on the addresses, and we will see where we go from there and be like any other evidence in the case. I think that’s the only way to deal with this. If I think there’s any – not misrepresentation but if I think there’s any violence done to the logistics of the situation I will tidy that up in my address and give counsel a chance to answer anything I’ve got to say. That’s the best I can do. I think when it’s getting down in a counting situation to a matter of minutes I think on balance I would rule that the trial goes on. Is that clear to everyone? Clear as mud I suppose, not clear to me even but at least it gives us something to work with. You can proceed on the evidence that’s before you. For instance, I could imagine a comment being made – I think it would be I [sic] an improper comment, but if you are comparing the police log to the television, there is no evidence that they are ad idem, that would be a perfectly proper submission. ‘It would be safer, ladies and gentlemen, to compare apples with apples, namely the police log with the police log, or the video with the video’. That might be a submission that could be put to the jury, it would be for them to decide, is that clear to everyone?[13]
[13] T1378-8.
The trial proceeded.
At the close of the defence case, the prosecution again applied to re-open and that application was refused.
In her address, the prosecutor made the following submission to the jury:
Ladies and gentlemen, we have to actually be very careful with times in this trial because there are actually two separate sets of times, if you like. You have got that evidence about the times recorded by the paramedics and the police through Police Communications. What you also have is a clock on the DVR. Now what we do know is a second is a second, so if we see five seconds elapse on the screen it means it took five seconds. What we know is that time was put into the system, into the computer, the DVR, by virtue of some Microsoft program that I don’t pretend to understand. But there is no evidence to suggest that the two clocks are running simultaneously, that means they are both running according to Telstra time. That is just not there. Some of you might have experience with computers and things yourself that sometimes there is [sic] a couple of minutes out or whatever. But there is no evidence to link those two sets of times. In fact if you look at it, if you look at the time the paramedics say they arrive, it looks like it is five minutes later that we actually see them walk on the screen in the Ramsgate Hotel, which of itself would suggest to you that there is clearly a difference there. The paramedics say they get there at one time and it is five minutes before they actually approach the deceased. You might think that is not right. Equally if you sort of tried to compare the two, you will see that if we look at when Michael Richards walks out according to the time on the DVR, so when he gets up and goes, according to the time on the DVR, you compare that to the time when communications say the police arrived, they are already in that lobby wandering around. No-one is suggesting the police were in there at that very early stage when Michael Richards left.
So, ladies and gentlemen, I suggest to you that when you are looking at times it is important to compare apples with apples and oranges with oranges. So if you are looking at the police communications records to look at what times were according to those records or if you are looking at the DVR, you are working out five minutes to look at just the DVR, not to cross-reference.
Because if you do I suggest what is going to happen is it is all going to become very confused because there is no evidence to link those two sets of times to say they are exactly the same. Who knows if one is minutes before the other. In fact as I suggested to you, there are occasions, if you look at the paramedics’ evidence, that there is in fact a difference with the DVR running at least some minutes ahead of the time that the police are using. I just mention that as an aside.[14]
[14] T1533-4.
The submission was in conflict with the prosecutor’s opening and with the case as had been presented by the prosecution witnesses. Defence counsel and the trial Judge make no reference to the prosecutor’s address. The jury was left with a submission by the prosecution that the times may not correlate. This was an unsatisfactory position for the jury, when it was known as a fact that there was not a correlation in times and when it had been defence counsel’s submission that the case would have been presented in a different way, had he known the true position.
Submissions on appeal
Ms Powell QC submitted that the first inkling that Ramsgate time may be inaccurate was in the cross-examination of Mr Spencer by counsel for the Crown. By that stage, the appellant had been cross-examined extensively by reference to Ramsgate time. Much of his evidence was dependent on what he saw on the DVR because of his vague memory of events. He was reconstructing and recalling events by reference to the DVR. Further, other witnesses for the prosecution and witnesses for the defence had been examined and cross‑examined on the assumption that Ramsgate time and Real time correlated.
Ms Powell submitted that there was prejudice to the appellant because he had been cross-examined on a wrong assumption. Defence counsel had made decisions about whom to call and how to present the defence case on that incorrect assumption. The jury, the Judge and counsel all worked on the assumption that when the police arrived at 8.43.38 Real time, the deceased had been taken to the ground for almost a minute when, in fact, he had been on the ground for five minutes. It was assumed that, after the police arrived, the deceased and the appellant were on the ground for approximately eight minutes. In truth, that time should have been approximately four minutes, because the police arrived approximately five minutes after the melee commenced, not one minute after the melee commenced. Ms Powell submitted that when the two police officers arrived the situation was chaotic. They first arrested the two other men, before attending to Mr Esposito. She submitted that there was an issue of what had occurred prior to the police arriving on the scene. She submitted that it would be a very different position if the appellant was holding Mr Esposito for eight minutes after the police arrived, rather than four minutes.
The gravamen of the complaint is that in cross-examination the appellant had put to him the proposition that at certain times, as shown on the DVR, events were ‘well and truly under control’. That was not consistent with the evidence of the police constables who arrived on the scene and who described events as being chaotic when they entered the foyer area. The suggestion by the prosecutor that events were under control at 8.46.27 was not correct. It was submitted that, because of the time differences, the jury would have been left with an unfair picture about what the appellant was doing at different times. It was submitted that the cross-examination of the appellant was grossly unfair, because when it was being suggested to him that events had calmed down the jury would have assumed the police were on the premises when, in fact, they were not. The police evidence was that when they arrived things were chaotic and that was at 8.43.38 Real time, which would have been approximately 8.39.38 Ramsgate time. The evidence on the DVR had to be considered with oral evidence. The oral evidence and the cross‑examination of witnesses was unfair because it was based upon a wrong assumption.
Ms Powell submitted that the position, as put by defence counsel to the trial Judge during the application by the prosecution to re-open, demonstrated the prejudice that had occurred in counsel having accepted the prosecution’s contention in opening that Real time and Ramsgate time were one and the same. She submitted that the position put by the prosecutor in her address might have misled the jury. That had not been addressed by the Judge or by defence counsel.
Ms Powell referred to the evidence of Dr Gilbert. She submitted that there was an issue of the exact time when the deceased died. If the appellant’s actions were lawful when he first placed the deceased in a headlock, then there is a question of when, if at all, the conduct became unlawful. The time at which the police arrived may be crucial. If it was reasonably possible that the deceased had died prior to the arrival of the police, whilst the situation was chaotic, then the jury might not have been satisfied that the prosecution had negatived self‑defence. On the other hand, if the jury had concluded that the police officers were at the hotel for eight minutes, during which time the appellant continued to hold the deceased, then whether the appellant’s conduct was reasonable in the circumstances might be viewed differently. The question with which the jury might be confronted was when did the holding down of the deceased become unlawful? At what point in time were the police there? What was the threat at any point in time, and what was the appellant’s state of mind? The suggestion to the appellant that the police had the situation under control at 8.46.27 Ramsgate time, just less than four minutes from the time when the appellant released Mr Esposito, was factually not correct. According to Real time, that interval of time was less than one minute. There was an irregularity in the trial in that the security footage at the hotel recorded Ramsgate time, which was not the same as Real time.
Counsel for the Crown on the appeal submitted that the consequence of the irregularity did not result in the appellant suffering irredeemable prejudice resulting in an unfair trial. Counsel acknowledged that once the discrepancy had been discovered, the period during which the police were present and the appellant held the deceased in the headlock, was reduced from eight minutes to three minutes and twenty four seconds. However, counsel submitted that this did not change the fact that the appellant had the deceased in a headlock for in excess of eight minutes. Counsel submitted that the question of whether the appellant genuinely believed that what he was doing was reasonably necessary for a defensive purpose or to make or assist in an arrest, was not dependent upon the period of time during which the police were in attendance. He submitted that the appellant’s awareness of the police arrival and his interaction with the police once they arrived was a relevant consideration. However, the question was whether or not the appellant’s conduct was reasonably proportionate to the threat he genuinely believed to exist. He submitted that the time difference did not adversely impact upon the defence case.
Discussion
The question is whether the irregularity which I have identified and the course adopted by the trial Judge resulted in a miscarriage of justice.
In Szabo,[15] the accused had not been informed that his counsel and counsel for the prosecution had been involved in a prior personal relationship. During the trial, that personal relationship was not current, but subsequently both counsel renewed their personal relationship. Thomas JA considered whether there had been a miscarriage of justice. He observed that the case was one in which there was no complaint about the summing up or the jury verdict. The complaint was based on a perceived rather than an actual miscarriage of justice. He referred to the decision in Whitehorn,[16] in which it was stated:
… a court of criminal appeal should allow an appeal if, having regard to all the evidence, it concludes that it would be unsafe, unjust or dangerous to allow a verdict of guilty to stand.[17]
[15] R v Szabo (2000) 112 A Crim R 215.
[16] Whitehorn v The Queen (1983) 152 CLR 657.
[17] R v Szabo (2000) 112 A Crim R 215, 226 [51].
He noted that verdicts have been set aside on a perception rather than an actual miscarriage of justice. Examples were in cases where the judge and jury have communicated, or some unauthorised person has communicated with the jury.[18] Thomas JA observed that in those cases the accused had not had a trial according to law in that material was received by the jury other than through proper process.
[18] See Green (1950) 34 Cr App R 33; Rabey [1980] WAR 84; Arthur (1966) 84 WN (Pt 1) NSW 121; Kachikwu (1968) 52 Cr App R 538; Townsend (1982) 74 Cr App R 218; Davis(No 2) (1960) 44 Cr App R 235; Ion (1951) 34 Cr App R 152; compare Crowe [1985] 2 Qd R 389.
There are occasions in which something will occur during a trial which will involve or cause a miscarriage of justice. It is not possible to specify every such occasion.
In this case, material was received by the jury which it was later revealed was inaccurate, and the situation was not rectified. The prosecutor had discovered the error late in the piece. She had not been informed by the police, who had been aware of the discrepancy between Ramsgate time and Real time prior to the trial commencing. Counsel for the Crown was correct to seek a mistrial.
It does not follow from the fact that defence counsel opposed the application that a trial Judge should allow the trial to continue if the result might be that the accused would not receive a fair trial. I refer to the observations of Lusher AJ in Birks:
At this point I come to the final observation I wish to make concerning this cross-examination. A trial judge in a criminal trial carries a heavy burden. He must see that the accused has a fair trial. He has an obligation to see the trial is conducted fairly and in accordance with law. He must exclude evidence which is not shown to be admissible. In short, the principle is that an accused should not be convicted on any but legal evidence “… If a mistake had been made by counsel, that would not relieve the Judge from the duty to see that proper evidence only was before the jury.” In Shaw (1952) 85 CLR 365 at 381, the joint judgment said plainly that the prosecution must take responsibility for leading inadmissible evidence and the failure of the prisoner’s counsel to object did not make it admissible. Similarly, in Stirland v DPP [1944] AC 315; (1944) 30 Cr App R 40 it was said an improper question should be disallowed even though no objection be taken, the basis being that justice is to be done as far as possible according to law; see per Viscount Simon (at 327-328; 55-56) speaking for their Lordships. In the light of these principles it is not to the point to say the accused or his counsel may have sought some tactical or other advantage from the questions being considered by not objecting.
The passage wherein the trial judge expressed his concern as to the validity of the cross-examination as to the accused’s instructions has been quoted earlier. As I read it, his instinct was against the cross-examination; if the trial judge was in any doubt about it he could have taken steps to have it clarified then and there since it went to admissibility.[19] (Citations omitted)
[19] R v Birks (1990) 48 A Crim R 385, 410-11.
In Szabo, Thomas JA concluded:
… In my view an ordinary fair-minded citizen in the position of the appellant with knowledge of all relevant circumstances would have at least a lingering suspicion that the appellant did not have the benefit of fair play.[20]
[20] R v Szabo (2000) 112 A Crim R 215, 233 [79].
The appeal was allowed on the basis that it may be perceived that the appellant did not have a fair trial.
In ADW,[21] the appellant was tried by judge alone. The trial Judge made an error of fact. Doyle CJ observed:
… [the] Court of Criminal Appeal may set aside a verdict of guilt even though it is not demonstrated that the verdict was, on its merits, flawed.[22]
[21] R v ADW (2002-2003) 84 SASR 178.
[22] (2002-2003) 84 SASR 178, 184 [39].
The question of whether an appellate court will set aside a conviction, even in a case where it has not been demonstrated that the verdict was, on the merits, flawed, will depend on the circumstances in each case. It does not follow that in every case in which there has been an irregularity, or the accused perceives that he has not had a fair trial, or even when it might be said that there is a perception of a miscarriage of justice, the verdict will be set aside. However, if there is an irregularity which is fundamental to the trial, then that may have the effect of vitiating the conviction.[23]
[23] See Webb v The Queen (1994) 181 CLR 41, 62.
In Tran,[24] the appellant complained that the prosecutor had opened to the jury a body of evidence which was not thereafter led. The Court, Black CJ, Weinberg and Kenny JJ, observed that the prosecutor’s duty in presenting a case to a jury is to act fairly. The prosecutor, in opening, had put a theory to the jury which was later found not to be supported by the evidence and to be wholly unreasonable. The Court concluded that the prosecutor’s conduct in opening had led to a miscarriage of justice. The Court said:
… It is impossible to know whether the jury arrived at the verdicts in this case upon the basis of the unsustainable theory improperly and unfairly pressed by the prosecutor, or whether they did so by a route which was permissible …[25]
[24] R v Tran (2000) 118 A Crim R 218.
[25] (2000) 118 A Crim R 218, 245 [168].
The Court quashed the convictions and ordered a retrial.
In Gas,[26] the complaint was that the trial Judge put to the jury a hypothesis upon which a jury could arrive at its verdict, which was a factual hypothesis that had not been part of the prosecution case. That theory was put forward in a redirection to the jury. Batt JA, with whom Brooking and Ormiston JJA agreed, said:
I consider that the redirection, supported by the Crown, involved such a change in the course of the trial at such an obviously late stage that, in accordance with the principle acknowledged in King at 432; 442, the conviction cannot be allowed to stand.
[26] R v Gas (1997-1998) 98 A Crim R 80.
…
In my view, the introduction of two different bases for a conviction, admittedly falling within the offence as charged and open on the evidence, occurring after the final address of defence counsel, was a radical enlargement of the case which the applicant had to meet without any opportunity for his counsel to address the jury on those additional bases of guilt. In short there was a miscarriage of justice.[27] (Citations omitted)
[27] (1997-1998) 98 A Crim R 80, 97.
Conclusion
The case, as presented by the prosecutor in her opening, and the way in which the evidence proceeded was that Ramsgate time and Real time were the same. At a very late stage in the piece, it became known that that assumption was an error. Defence counsel had presented his case, cross‑examined witnesses and made decisions about calling evidence based upon an erroneous assumption.
As the trial Judge correctly observed, it was difficult at that late stage to “unscramble” the position. Counsel for the Crown correctly sought a mistrial. The initial view of the trial Judge seemed to have been that that application was justified, but he appeared to have been influenced to refuse the application because defence counsel opposed it.
It is undesirable to speculate about what facts influenced the decision of the jury. It is not possible to decide whether the jury might have viewed the appellant’s conduct differently had they known that the appellant was holding Mr Esposito for approximately five minutes before the police arrived, during which time the situation was chaotic.
This was a case of acting for a defensive purpose. The defence case was that the appellant genuinely believed that his conduct was necessary and reasonable. As well, the defence case was presented on a false basis, influenced by the error in the prosecution case. It is not possible to know whether, if the jury had been aware of the correct position that might have influenced the jury’s decision. The appellant did not receive a fair trial because there is a real risk that the jury assessed the case on a false basis and because the defence case had, through no fault of the defence, been presented on a false basis.
The case was left to the jury in an unsatisfactory manner. The jury was not informed of the correct position as to time.
I would allow the appeal on this ground.
Hearsay grounds
Grounds 5 to 8 are that the trial Judge erred in admitting evidence about statements allegedly made by unidentified bystanders.
A number of witnesses gave evidence that they heard others comments during the melee, such as “Leave him alone, you can’t do that to him”; “Stop it, you’re going to kill him”; “Get off him” and “You’ve got him in an illegal choke hold, you’ll kill him”.
The trial Judge directed the jury that the evidence was not evidence of the truth of what people were calling out, but was only evidence to assist them to understand what was going on, and to understand the atmosphere. He directed the jury that the evidence could only be used to a very limited extent and they cannot use the evidence as going to the truth of what had been said.
Counsel for the appellant submitted that the problems in permitting the evidence to have been led were, first, that there was no evidence that the appellant heard the comments; secondly, that because there were other men being restrained, it was impossible to know to which situation the comments were directed; and, thirdly, there was no evidence, apart from one witness, that the appellant reacted to any of the statements.
Counsel for the appellant conceded that if the evidence was going to the state of mind of the appellant, it was not hearsay. Counsel for the Crown submitted that the trial Judge correctly characterised the evidence, that the evidence was admissible, and the direction was correct in law.
The evidence did not offend the hearsay rule. In Subramaniam v Public Prosecutor,[28] the Judicial Committee of the Privy Council said:
Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart form its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.[29]
[28] [1956] 1 WLR 965.
[29] [1956] 1 WLR 965, 970.
In Walton v The Queen,[30] Wilson, Dawson and Toohey JJ said:
When a person’s state of mind is relevant, evidence tending to prove that fact is admissible. That evidence may, of course, take the form of conduct on the part of the person whose state of mind is in question from which the state of mind might be inferred. But it might also take the form of statements made by the person or by another from which a similar inference might be made …[31]
[30] (1988-1989) 166 CLR 283.
[31] (1988-1989) 166 CLR 283, 300.
The evidence was led and admitted as evidence which was relevant to the appellant’s state of mind and understanding of the situation. It was relevant to the subjective and objective questions of whether the appellant’s conduct was proportional to the threat. The jury was directed that they could only use the evidence if they were satisfied that the appellant had heard any of the comments. The statements were not used as testimonial statements. They did not offend the hearsay rule.
Admissibility of Mr Jurkovic’s evidence
Mr Jurkovic was at the hotel. He observed a security officer who had the deceased in a headlock. He spoke to the security officer It appears that there might have been some confusion about whether Mr Jurkovic was referring to the appellant or the security officer, Courtney, who had first placed the deceased in a headlock. It was contended that the trial Judge erred in admitting the evidence of Mr Jurkovic. Counsel for the appellant complained that the Judge failed to direct the jury that if the witness was giving evidence about the wrong security officer the jury should ignore it. It was the Crown case that Mr Jurkovic was mistaken and that it was open to the jury to conclude that he had made the statements to the appellant and not to the security officer, Courtney.
The complaints have no substance. The trial Judge was correct in ruling that Mr Jurkovic’s evidence was admissible. If Mr Jurkovic was speaking to the appellant, then the evidence was relevant. If, on the other hand, Mr Jurkovic was mistaken and the jury concluded that there was a reasonable possibility that he had been speaking to another security officer then they would disregard Mr Jurkovic’s evidence. It was not for the Judge to make that determination.
The trial Judge reminded the jury that counsel for the prosecution put to them that Mr Jurkovic was a very important witness in the trial; that it was conceded that he got something wrong in that he described the first person who put a neck restraint on Mr Esposito as the accused, and he was clearly wrong, as it was Mr Courtney. The trial Judge referred the jury to the criticism by defence counsel of Mr Jurkovic’s evidence. Counsel had put to the jury that Mr Jurkovic was confused between Mr Courtney and the appellant, and that the incident that Mr Jurkovic was describing involved Mr Courtney, not the appellant.
The jury was well aware of the issue which arose in relation to the evidence of Mr Jurkovic. They were aware that, if there was any confusion, they could not rely on his evidence.
This ground of appeal must fail.
Self defence and making or assisting in the lawful arrest of an alleged offender
Section 15 of the Act relevantly provides:
(1)It is a defence to a charge of an offence if –
(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(2)…
(3)For the purposes of this section, a person acts for a defensive purpose if the person acts –
(a) in self defence or in defence of another; or
(b) …
(4)…
(5)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
Section 15A relevantly provides:
(1)It is a defence to a charge of an offence if –
(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable –
(i)…
(ii)…
(iii)to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and
(b) …
(c) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(2)…
(3)…
(4)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
Section 15B provides:
A requirement under this Division that the defendant’s conduct be (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist does not imply that the force used by the defendant cannot exceed the force used against him or her.
The trial Judge directed the jury:
… that it is a defence to a charge of manslaughter if the defendant himself genuinely believed the conduct which caused the death of the deceased was necessary and reasonable for either the defence of himself or another person … and that that conduct was in the circumstances, as he genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
The trial Judge explained both the subjective test and objective test.
Ms Powell submitted that the trial Judge erred in failing to direct the jury when directing them about the objective aspect of the test of proportionality that it does not imply that the force used by the appellant cannot exceed the force used against him or her.
The trial Judge did not use the words of s 15B. When the summing up is read as a whole, and when the trial Judge’s directions on defensive purpose is considered in context, it is clear that the jury would have understood that the defence of self-defence, or assisting in the unlawful apprehension of person, was established if the prosecution failed to prove that the conduct was disproportionate. The jury would have understood that, even if the force applied exceeded the force used against the appellant, the defence was established if the prosecution failed to prove that the conduct was subjectively and objectively disproportionate. The trial Judge was not required to use the exact words of s 15B.
The jury would have been left in no doubt that if they concluded that the appellant used greater force against Mr Esposito than had been used against the appellant, then that did not conclude the matter. They were to convict only if satisfied beyond reasonable doubt that the force applied was disproportionate. This ground of complaint fails.
Section 15A direction
In the course of his direction, the trial Judge directed the jury in the following terms:
But there is another aspect to that defence of assisting in the lawful arrest of an offender. It must also be the situation that the defendant did not act recklessly, realising that the conduct could result in death. In other words, it cannot be a defence if in making or assisting in the lawful arrest he just continues on recklessly, that is not caring, realising that the conduct could result in death. So the prosecution must prove to you that the defendant did not act recklessly realising the conduct could result in death, and also they must prove to you that the conduct was not, in the circumstances as the defendant genuinely believe them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
The direction that the prosecution must prove that the defendant did not act recklessly was an error. The prosecution must prove that the accused’s conduct was reckless.
Ms Powell submitted that the jury may have understood that the onus of proving that the conduct was not reckless was upon the appellant. Alternatively, the jury may have understood that the appellant was required to prove that his conduct was reasonably proportionate.
The direction was an error. Taken in isolation, there is force in Ms Powell’s submission. However, the error was made in the first section of the Judge’s summing up when he was giving general directions about defences. He repeated the directions and related them to evidence later in his charge to the jury. He directed the jury in clear and unambiguous terms that the prosecution carried the burden of proof beyond reasonable doubt. He made it clear that the appellant did not have an onus to prove self-defence, or to prove any part of his defence. The prosecution was required to disprove each and every element of self-defence, or the defence of lawful apprehension. The jury could have been left in no doubt that the prosecution carried the burden of proof. This ground of appeal is not made out.
Conclusion
The appellant did not receive a fair trial. For the reasons expressed, there was a miscarriage of justice.
Further matters
Ms Powell submitted that if the Court concluded that there was a miscarriage of justice, the proper order is to direct an acquittal. She submitted that a re-trial would be unfair because witnesses had given their evidence on a wrong assumption and, if they were cross-examined in a re-trial about their previous evidence, this would lead to unfairness. She further submitted that this would apply if the appellant gave evidence at the re-trial. She submitted that it would be an unfair advantage to the prosecution if they were able to bind the appellant to his evidence at the first trial in circumstances in which he had been misled by his acceptance that Ramsgate time and Real time were the same.
I reject the submission. Upon a re-trial, it is open to the trial Judge to disallow any cross-examination of witnesses about their previous evidence if the Judge considered it would be unfair to permit such cross-examination. Any prejudice can be cured by the Judge refusing to permit the evidence from the first trial to be led.
It is unnecessary to consider the appeal against sentence.
It is regrettable that a re-trial is necessary. The Court recognises that a re trial will cause anxiety for the relatives of the deceased and for witnesses. However, the Court must ensure that the appellant has received a fair trial. For the reasons given, he did not receive a fair trial. The Judge and counsel were confronted with a difficult situation late into the trial. The Judge was, understandably, reluctant to stop the case and start again. Counsel for the appellant and the appellant were faced with making a decision without much time to consider the ramifications of their decision. Nevertheless, a re-trial was the inevitable consequence of what had occurred.
I would allow the appeal, set aside the conviction and sentence and order a re-trial.
7
7
1