R v Gapper & Mazzeo - [2007] SASC 119

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GAPPER & MAZZEO
[2007] SASC 119
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Sulan)
5 April 2007
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION
Mr Gapper and Mr Mazzeo were tried before a Judge in the District Court on counts arising from the appellants' attendance at the homes of men whom they believed were responsible for the theft of "mag wheels" belonging to Mr Gapper - the appellants attended at the houses with a can of petrol, two firearms, knives and a baseball bat - Mr Gapper was convicted on 14 counts and Mr Mazzeo on 12 counts - relevantly, the appellants were convicted of two counts each of aggravated serious criminal trespass in a place of residence, one count of serious criminal trespass in a non-residential building, one count of unlawfully discharging a firearm, one count of threatening a victim with a firearm, one count of assault, one count of theft and one count of unlawful imprisonment - it cannot be said that the jury's verdict of guilty in respect of the count of serious criminal trespass in a non-residential building with the intention to commit the offence of theft is safe for the reason that they found the appellants not guilty of theft - the verdicts of guilty of aggravated serious criminal trespass in a non-residential building must be set aside - the appellants complain that the conviction for assault is unsafe because the prosecution put to the jury an inconsistent case as to the conduct they relied on to constitute the assault - the verdicts of assault must be set aside - the verdicts of guilty of unlawfully discharging a firearm must be set aside for the reason that the Judge directed the jury that they could convict the appellants on two counts of unlawfully discharging a firearm even if only one discharge was proved - Mr Gapper alone was charged with two counts of possessing a firearm without a licence - this point was not proved in the prosecution case although it emerged in cross-examination that firearms in his possession were unlicensed - whether the Judge erred by failing to rule in relation to the error in the presentation of the prosecution case as to the count of possessing an unlicensed firearm that there was no case to answer - whether the Judge was bound to intervene to overrule the question, or whether the question improperly deprived the appellant of a chance of acquittal - the Judge was not requested to rule that no case had been presented to answer nor was the Judge required to overrule the question nor has the appellant lost a chance of acquittal because defence counsel failed to ask the Judge to so rule - no miscarriage made out - in cross-examination the prosecutor invited the appellant Mr Gapper to explain conflicts between evidence given by witnesses - an accused person is not required to explain inconsistencies between conflicting evidence - although the cross-examination, and the trial Judge's failure to make corrective directions, raise concern, no miscarriage of justice has been made out - since the complaint as to the conviction for false imprisonment rests on the submission that the cross examination gave rise to unfairness to the accused, the appeal as to convictions for false imprisonment fails - Mr Gapper was cross-examined as to certain lies he told - the Judge did not remind the jury of Mr Gapper's explanation for the lies - no miscarriage made out - examination of directions given by the Judge as to honest claim of right and convictions for serious criminal trespass in a place of residence - no miscarriage made out - the convictions on count 10 (unlawful discharge of a firearm) count 11 (assault) and count 14 (aggravated serious trespass in a non-residential building) should be set aside and a re-trial ordered - in all other respects the appeal is dismissed.
Criminal Law Consolidation Act 1935 (SA) s 168(1), s 353(1), referred to.
R v Leak [1969] SASR 172; Palmer v The Queen (1998) 193 CLR 1; R v Manuntu (1990) 54 SASR 17; R v Bennett (2004) 88 SASR 6; R v Langham (1984) 36 SASR 48; The Queen v Prasad (1979) 23 SASR 161; TKWJ v The Queen (2002) 212 CLR 124; Nudd v The Queen (2006) 80 ALJR 614; R v Buckley (2004) 149 A Crim R 122; R v Birks (1990) 19 NSWLR 677; MWJ v The Queen (2005) 80 ALJR 329; R v Sanders (1991) 57 SASR 102, discussed.

R v GAPPER & MAZZEO
[2007] SASC 119
Full Court: Doyle CJ, Debelle and Sulan JJ

DOYLE CJ: Mr Gapper and Mr Mazzeo were tried before a Judge in the District Court on an Information alleging 17 offences. Mr Gapper was convicted on 14 counts, and Mr Mazzeo on 12 counts. They each appeal against their convictions.
The appeal raises a number of issues. The appellants complain about the Judge’s directions on several counts. Other grounds of complaint relate to the course of the trial. I propose to summarise the facts, providing a background to the issues that arise. I will then deal with the grounds of appeal.
Facts
What follows is a simplified summary of the relevant events.
In early 2004 Mr Goss came into possession of a stolen car. Fitted to this car were “mag wheels” belonging to Mr Gapper. Mr Gapper said that the mag wheels were worth about $3,500.
Sometime later Mr Gapper received information that Mr Goss might have his wheels. He and Mr Mazzeo went to Mr Goss’s home. Mr Goss denied knowledge of the stolen car, and said that Mr Jaeger might have the mag wheels.
Mr Gapper and Mr Mazzeo then went to Mr Jaeger’s home. They arrived early in the evening. Mr Jaeger was not there. Mr Burt, who lived there also, was home. He did not know the men. He told Mr Gapper and Mr Mazzeo that Mr Jaeger should be home fairly soon. After a while the men left.
Mr Jaeger had left the house on an errand. He received a phone call telling him that there were people at his house looking for the stolen car. He was warned that he should not return to his home. He stayed away until about 11.00 pm.
Meantime, Mr Gapper had contacted two friends, who became co‑accused in the case. He told them that he knew where his wheels were. Mr Gapper went to his home and got two firearms, a tin of petrol and a baseball bat. The two friends joined him, armed with knives. Mr Gapper fitted a trailer to his car.
About 10.00 pm the four men returned to Mr Jaeger’s home. Mr Jaeger was still not there, but Mr Burt was.
Mr Burt gave evidence that at about 10.00 pm the door of the house burst open, and Mr Gapper, Mr Mazzeo and two other men entered. One of the men had a .22 rifle that he pointed at Mr Burt. Another one held a rifle across his chest, and pushed him on to a sofa. One of the men (not one of the appellants) smashed the television set with a baseball bat. One man was wielding a knife. There were demands for information about the car. A rifle was fired close to Mr Burt’s head. He gave evidence that he was very scared. One of the men stood guard over him, and the other three men began to ransack Mr Jaeger’s room. Items of property were taken from the house and were put in the trailer. This went on for about 30 minutes. Mr Burt could smell petrol coming from one of the rooms.
Mr Burt said that he was then marched out of the house at gunpoint to a car. The men then drove off with Mr Burt, apparently looking for Mr Jaeger.
I will refer to the events during this visit to Mr Jaeger’s house as “the first incident”.
The men drove to a nearby town, looking for Mr Jaeger’s van. They did not find it. They returned to the house about 11.00 pm.
Mr Jaeger had returned to the house meantime with Ms Northey. His room had been ransacked. The mattress of his bed was soaked in petrol.
Not much later four men burst into the house. They were Mr Gapper, Mr Mazzeo and the other two men. They had guns, a baseball bat and a knife. Mr Gapper pointed a gun at Mr Jaeger and someone else pointed a gun at Ms Northey. They demanded to know where the stolen car was. A shot was fired from one of the guns near Mr Jaeger’s head. One of the men hit Mr Jaeger on the leg with a baseball bat. Mr Jaeger told the men that the car was at Mr Goss’s house. The men told Mr Jaeger that he was coming with them. Mr Jaeger and the men went outside and got into a car.
While this was happening Mr Burt was waiting outside. The men had told him to wait there.
I will refer to the events during this visit to Mr Jaeger’s house as “the second incident”.
The men drove to Mr Goss’s house, arriving about midnight. They were still armed. Not surprisingly, when Mr Jaeger knocked at the door as directed by the men, Mr Goss did not answer. Mr and Mrs Goss were in the house. They were speaking to the police by telephone.
The men then forced open a roller door to a shed. They took two motor bikes from the shed and other items of personal property. The men put these things in the trailer. I will refer to these events as “the third incident”.
The men then drove back to Mr Jaeger’s home. They allowed Mr Jaeger to get out of the car, and the men drove off.
At about 12.25 am the police, responding to the telephone call from Mr Goss, stopped the car. Mr Gapper was driving. Mr Mazzeo and the other two men were in it. They still had the weapons with them. Attached to the car was the trailer containing the property removed from Mr Jaeger’s home and Mr Goss’s shed.
Mr Gapper gave evidence at the trial. Mr Mazzeo did not. Much of what is outlined above was not disputed.
Mr Gapper admitted that during the first incident he was holding a firearm when it discharged near Mr Burt. He said that was accidental. He agreed that the television set was damaged, but said that the man who did that did so on his own initiative, and that Mr Gapper had not intended that to happen. Mr Gapper admitted that property was taken from the house.
As to the second incident, Mr Gapper admitted that he intended to frighten whoever might be in the house. He admitted discharging the firearm he held, to scare Mr Jaeger, and to get information from him.
Mr Gapper admitted breaking into Mr Goss’s shed and removing the property from it.
The thrust of Mr Gapper’s defence was that he had information that Mr Goss might have his mag wheels, which had been fitted to the stolen car. When he first spoke to Mr Goss, Mr Goss told him that Mr Jaeger might have the wheels. Then when Mr Gapper and Mr Mazzeo first went to Mr Jaeger’s house, Mr Burt indicated that the stolen car was somewhere near, but Mr Burt said he had had nothing to do with it, and was not in a position to tell Mr Gapper to take the parts.
That was the background to Mr Gapper arming himself, and getting some friends to help him. Mr Gapper said that his intention during the first incident was to scare Mr Burt, to get his mag wheels and then to leave. Mr Gapper said that he believed that Mr Jaeger might be associated with bikies, and wanted to get his property as quickly as he could and then go. He said that he had expected Mr Jaeger to be at the house. He claimed that Mr Burt left the house with them willingly, and not as a result of force.
As to the second incident, Mr Gapper said his intention was to scare Mr Jaeger and to find his wheels. He said that Mr Jaeger went with them willingly to Mr Goss’s house.
As to the property taken during the incidents, Mr Gapper said that his purpose in taking Mr Jaeger’s property was to make Mr Jaeger return his wheels. If Mr Jaeger did that, Mr Gapper intended to return Mr Jaeger’s property. He took Mr Goss’s property because Mr Goss had lied to him when he denied having the stolen car or parts from it. He intended to return Mr Goss’s property when Mr Goss had given him his wheels.
The first incident
Mr Gapper and Mr Mazzeo were charged with aggravated serious criminal trespass in a place of residence. The particulars allege that they entered the premises “with the intention of committing an offence therein, namely an offence against the person”. The jury convicted them.
They were each convicted on a charge of threatening Mr Burt with a firearm. As I understand the submissions, no challenge is mounted to this conviction nor is there any basis for a challenge.
They were both acquitted on charges of illegal discharge of a firearm and damaging property, being the television set and the bed. The acquittals almost certainly reflect the fact that the jury accepted, as a reasonable possibility, Mr Gapper’s statement that the relevant acts were committed by the other two men, and that in this respect they went beyond any arrangement or joint venture to which the accused were a party.
The jury convicted Mr Gapper and Mr Mazzeo on a charge of false imprisonment of Mr Burt. Subject to one point, there is no basis for challenging these verdicts. The prosecution case is overwhelming. Mr Gapper’s claim that Mr Burt accompanied the men willingly is, in the circumstances, an unlikely one. In any event, on the evidence Mr Burt was unlawfully imprisoned at the house during the first incident.
The second incident
The jury convicted Mr Gapper and Mr Mazzeo on a charge of aggravated serious criminal trespass in a place of residence. Once again, the particulars allege that they entered or remained in the premises “with the intention of committing an offence therein, namely an offence against the person”.
The jury convicted each of them of threatening Mr Jaeger with a firearm. In his submissions Mr Henchliffe, counsel for the appellants, did not suggest that there is any basis for challenging these verdicts.
The same applies to convictions of each man on a charge of unlawfully discharging a firearm so as to frighten Mr Jaeger, and on a charge of threatening Ms Northey with a firearm.
The jury convicted both men on a charge of unlawfully discharging a firearm without reasonable cause, so as to frighten Ms Northey. Mr Kimber, counsel for the Director of Public Prosecutions, acknowledged that this conviction should be set aside. The prosecution case was presented on the basis that two separate shots were fired during the second incident. In answer to a question from the jury, apparently with the concurrence of counsel, the Judge told the jury that they could convict on the two counts of unlawful discharge of a firearm even if they thought that only one shot had been fired. Having regard to the manner in which the case was conducted that direction was erroneous. The convictions on this charge should be set aside.
The jury convicted both men on a charge of assaulting Mr Jaeger. The prosecution case was opened and conducted on the basis that the assault occurred when Mr Jaeger was hit on the leg with a baseball bat. During his closing address counsel for the Director at trial told the jury that the accused could be convicted on this count either on the basis of Mr Gapper forcing Mr Jaeger down into a chair, or on the basis that one of the other men hit Mr Jaeger with a baseball bat, or on each of these bases. That was wrong. It amounted to a complete change in the prosecution case. The Judge did not repeat this statement, but nor did he correct it. The result is that one cannot identify the incident, the basis upon which the jury has convicted the men, and as well there is the potential for unfairness. Mr Kimber conceded that these verdicts should be set aside. I agree.
Both men were charged with aggravated robbery, the charge being based on the taking of property using the threat of force or force against Mr Jaeger. The jury found Mr Gapper and Mr Mazzeo not guilty, but convicted them on the alternative count of theft. Mr Mazzeo challenges his conviction.
The jury convicted both men on a charge of unlawfully imprisoning Mr Jaeger. Once again, subject to one point there is no basis for challenging this conviction. Mr Gapper’s claim that Mr Jaeger accompanied the men voluntarily is not a credible one.
The third incident
The jury convicted Mr Gapper and Mr Mazzeo on a charge of aggravated serious criminal trespass in a non-residential building, this count being based on the forced entry into the shed at Mr Goss’s property. The particulars of the offence allege that the men entered the shed as trespassers, with the intention of committing an offence “namely theft or an offence against the person”. However, in the circumstances, it seems clear that the case was conducted on the basis that their entry was with the intention of theft.
The two men were also charged with the theft of the property removed from the shed. The jury found them not guilty on this count. I agree with the submission by Mr Henchliffe that the only basis for these verdicts was that the jury accepted, as a reasonable possibility, that Mr Gapper and Mr Mazzeo did not act dishonestly in taking the property. The jury must have accepted the claim by Mr Gapper that he believed that he had a right to take Mr Goss’s property with the intention of holding the property until Mr Goss gave him his mag wheels. I add here that Mr Gapper claimed that when he left Mr Goss’s premises, he shouted out (believing that Mr Goss was in the house) that if Mr Goss gave him his wheels, he would return Mr Goss’s property.
I cannot identify any basis upon which the jury could have been satisfied, in light of their verdict on the theft count, that the men entered the shed with the intention of committing the offence of theft. If it was a reasonable possibility that Mr Gapper genuinely believed that he was entitled to remove Mr Goss’s property, leading to an acquittal on a theft count, that same reasonable possibility required an acquittal on the charge of aggravated serious criminal trespass with intention to commit the offence of theft. There is nothing in the evidence to justify a different conclusion in relation to the moments before the forced entry, and what happened after the forced entry.
Although Mr Kimber did not concede that the relevant verdicts were inconsistent, he accepted that it was difficult to explain them.
I am satisfied that the verdicts are inconsistent, and that the verdicts on the charge of aggravated serious criminal trespass in a non-residential building should be set aside. Verdicts of acquittal should be substituted.
Other charges
Mr Gapper alone was charged on two counts of possessing a firearm without a licence. These counts related to the two firearms which he had with him on the night in question. It is common ground that Mr Gapper did not have a licence for the firearms. However, the prosecutor overlooked proving this matter as part of the prosecution case, and the proof came only when Mr Gapper acknowledged in cross-examination that he did not have a licence. That raises the issue of whether the verdict should be set aside, having regard to the fact that (although no-one raised the point) a submission of no case to answer at the conclusion of the prosecution case had to succeed, unless the prosecutor was allowed to re-open the prosecution case.
Prosecutor’s cross-examination
In the course of cross-examining Mr Gapper, the prosecutor put to Mr Gapper a number of conflicts between his evidence and that given by Mr Burt, Mr Jaeger, Ms Northey, Mr and Mrs Goss and a police officer.

On about ten occasions the prosecutor invited Mr Gapper to respond to the suggestion that, on his account, the other witness must be mistaken or lying.
These questions were impermissible. In R v Leak [1969] SASR 172 at 173-174 the Court (Bray CJ, Hogarth and Walters JJ) said:
In our view a witness ought not to be asked whether another witness is telling lies or has invented something. Any witness, of course, can be asked if what another witness has said is true. He can be asked if he knows of any reason why the other witness should be hostile to him or should tell a false story about him. But if he says that what the other witness has said is not true, he should not be asked to enter into that witness’s mind and say whether he thinks the inaccuracy is due to invention, malice, mistake or any other cause. To do so is to ask him for opinion evidence and in our view the normal objections to that type of evidence apply. It is for the jury to decide which witness is telling the truth and how far what they think to be an inaccuracy on the part of any witness is deliberate or otherwise and what effect such inaccuracy has on the rest of the witness’s testimony. No attempt should be made by the cross-examiner to drive any witness, least of all the accused, into saying that any other witness, least of all a detective, is a liar.
See also Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 at [7] and R v Buckley [2004] VSCA 185; (2004) 149 A Crim R 122 at [9]-[15].
An accused person is not required to identify the reason for, or to explain, a conflict between the evidence of the accused and that of prosecution witnesses, other than in quite limited circumstances that will not often arise. The objection to questions of the kind asked by the prosecutor is that they carry the suggestion that the accused should be able to explain why the accused’s evidence differs from that of the other witness. The questions carry the further suggestion that if the accused is unable to explain the difference, that reflects adversely on the accused’s evidence and on his credit. There is a danger of reversing the burden of proof.
Surprisingly, counsel at trial for the appellants did not object to the questions. The Judge was not asked to give the jury any particular direction about them. Nor did the Judge do so.
For what it is worth, although this is not an answer to the complaint, I add that Mr Gapper dealt well with the questions, judging by his recorded answers.
The prosecutor also cross-examined Mr Gapper on about six particular topics, suggesting as to each of them that the relevant matter was something “we’ve heard for the first time” during Mr Gapper’s evidence, and in one or two cases suggesting to Mr Gapper that the matter had not been put to an earlier witness who had given evidence to the contrary. Whether each of the relevant matters was raised for the first time in Mr Gapper’s evidence is open to argument. I do not need to decide that.
The prosecutor did not pursue this approach in his address to the jury. No more was said about it.
The Judge was not asked to give the jury any directions about how they should assess this evidence. Nor did the Judge do so.
In relation to these questions, I agree with the observations by King CJ in R v Manunta (1990) 54 SASR 17 at 23-24:
… It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. …
See also R v Birks (1990) 19 NSWLR 677 at 691-692 Gleeson CJ and MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at [18] Gleeson CJ and Heydon J, at [38]-[41] Gummow, Kirby and Callinan JJ.
Mr Henchliffe submits, rightly, that Mr Gapper’s credibility was an issue at the trial. He was relying on a claim that he genuinely believed that he was entitled to enter Mr Jaeger’s house and take property, and to enter Mr Goss’s shed and take property, as a means of regaining his mag wheels. Mr Gapper also claimed that Mr Burt and Mr Jaeger went with the men voluntarily. There were other matters on which the evidence of Mr Gapper conflicted with the evidence of other witnesses, and in relation to which the jury would have been influenced by their assessment of his credibility. I have given careful thought to the submissions on this point. The prosecutor’s cross-examination raises real concern.
However, I am satisfied that the cross-examination, coupled with the Judge’s failure to take any corrective action, could not have given rise to a miscarriage of justice.
This was a ten day trial, raising many different issues. The cross-examination in question was not prolonged. Nothing was said on either topic in addresses. In fairness to the Judge, he might have taken the view that the safest course in relation to each matter was to say nothing, although to my mind it would have been better if something had been said. The fact that defence counsel at trial neither objected to the questions, nor asked for a direction relating to them, is of some significance. It suggests that they were not cause for any particular concern at the time. The jury verdicts indicate that Mr Gapper’s claim of an entitlement to take the property of Mr Jaeger and Mr Goss was not rejected out of hand. The verdict of acquittal on the charge of theft from Mr Goss’s shed must be based on the jury having accepted Mr Gapper’s claim as being a reasonable possibility. It is also relevant that the Judge gave clear and firm directions in relation to the burden of proof.
In short, I am satisfied that having regard to the conduct of the trial as a whole, the risk of the cross-examination giving rise to unfairness to the accused did not materialise. I reject this complaint.
This complaint is the only basis on which the convictions for the false imprisonment of Mr Burt and Mr Jaeger could be challenged. It follows that the appeal against those convictions should be dismissed.
Directions as to lies
When the police stopped Mr Gapper, Constable Weeks spoke to him. After some preliminary questions he asked Mr Gapper who owned the motor bikes in the trailer. Mr Gapper said they belonged to Max. That was a reference to Mr Jaeger. He told Constable Weeks that he had them because he was fixing them up for Max.
These were lies. Mr Gapper admitted that at trial. He said that he did not want to complicate things by telling Constable Weeks that he had taken the motor bikes from “the guy that stole my mags”. The prosecutor relied on the lies as evidence of guilt. If Mr Gapper believed that he had the right to take the property, why not say so?
The Judge directed the jury about their use of the lies. The Judge identified the lies. The Judge told the jury that a person might lie for all sorts of reasons. He warned them about the need for caution. The directions are generally adequate.
The Judge did not remind the jury of Mr Gapper’s explanation for the lie. He should have done so. But in my opinion the explanation that Mr Gapper gave was so clear, and was such an obvious one, that in the circumstances the jury could not have overlooked it. The Judge did not remind the jury that they would have to reject the possible explanations, other than guilt, for the lies, before they could use the lies as evidence of guilt. The Judge should have reminded the jury of that.
Mr Henchliffe submits that the Judge erred in telling the jury that the lies might be used in relation to the charge of aggravated robbery of Mr Jaeger’s property. I disagree. Granted, the lies related to Mr Goss’s motor bikes. But Mr Gapper raised the same defence in answer to the charges based on the taking of Mr Jaeger’s property. A lie in relation to his reason for taking Mr Goss’s property was capable of reflecting on the claimed defence relating to Mr Jaeger’s property, because it could reflect on the genuineness of his claim that he believed he was entitled to act as he did.
I do not accept Mr Henchliffe’s submission that that the lies were not capable of reflecting on the defence raised in relation to the forced entry into Mr Goss’s shed and the taking of property from the shed. They were clearly relevant. In any event, the jury acquitted Mr Gapper and Mr Mazzeo in relation to the theft of Mr Goss’s property, and I have concluded that the conviction based on the forced entry to Mr Goss’s shed should be set aside, and that verdicts of not guilty should be substituted.
I agree that the Judge erred in telling the jury that the lies might be used in relation to the charges of possessing firearms without a licence. There is no link at all to these charges. However, the error cannot have mattered because there is no dispute that this offence was proved.
Mr Mazzeo has no cause for complaint about the directions. The Judge made it clear that the directions related only to Mr Gapper. Although Mr Mazzeo’s defence to a number of charges rested on Mr Gapper’s claim that he was entitled to enter premises and take property as a means of retrieving his mag wheels, the Judge did not suggest to the jury that the rejection of Mr Gapper’s evidence was fatal to Mr Mazzeo’s claim.
Directions on trespass and claim of right
In answer to the charges of aggravated serious criminal trespass, Mr Gapper relied on a claim that he believed that he was entitled to enter Mr Jaeger’s house with a view to, or for the purpose of, retrieving his mag wheels. His answer to the charges based on or involving the taking of property was much the same – that he took the property to encourage or to make Mr Jaeger return his wheels to him.
While dealing with this topic I will refer only to Mr Jaeger’s house and property, because I have already decided that the conviction based on the entry into Mr Goss’s shed should be set aside and a verdict of acquittal should be substituted. However, most of what follows applies to that count as well.
At trial these claims by Mr Gapper seem to have been referred to as a claim of right, no distinction being drawn between the issue of trespass and the issue of the dishonest taking of property.
In R v Bennett [2004] SASC 52; (2004) 88 SASR 6, referring to the section that creates the offence known as aggravated serious criminal trespass, I said at [28]:
It is consistent with principle to treat s 170 (1) of the Criminal Law Consolidation Act 1935 (SA) as requiring proof that the person charged knew that he or she was a trespasser, or was recklessly indifferent as to whether he or she was a trespasser. The section creates a serious criminal offence. Parliament should not be taken to have intended to punish merely unknowing or careless conduct that amounts to a trespass at law. The law of trespass is complex in some respects. Requiring proof that the person charged knew that a trespass was occurring, or was reckless as to that, will help ensure that the application of the section is appropriate. As well, High Court authority dealing with a somewhat similar provision indicates that the state of mind of the accused should be treated as an element of the offence: Barker v The Queen (1983) 153 CLR 338 at 344, 348, 361, 365-356.
I remain of that view. The consequence is that if Mr Gapper genuinely believed that he had a legal entitlement to enter Mr Jaeger’s house, he would not be guilty of a trespass for the purposes of that section.
I also accept that it was an answer to charges based on or involving the taking of property, that Mr Gapper believed that he had a legal entitlement to take the property in question: R v Langham (1984) 36 SASR 48 at 51-53, 58 and 64. As King CJ said at 51:
… what is required is simply a genuine belief in the accused’s legal entitlement to the property taken and not necessarily to his right to take it, either in the particular way in which he has taken it or in any other way. I think that the older authorities referred to in Skivington confirm that view.
The Judge directed the jury that the appellants could be found guilty of the offences of aggravated serious criminal trespass only if “knowing that they were trespassers [they] intended to enter or remain as trespassers without an honest claim of right”. The Judge went on to explain in some detail what amounted to an honest claim of right. He made it clear that this claim must be negatived or disproved by the prosecution, and was not something that the accused had to establish. Mr Henchliffe complains that in directing the jury the Judge told them that the claim of right, as it was called, had to involve a belief not just that there was a legal entitlement to enter the property, but that there was an entitlement to act in the manner in which the accused acted when they entered the property.
We heard detailed submissions on this issue. Some time was spent considering the Judge’s directions relating to the trespass that occurred when the accused entered Mr Goss’s shed. That raised a slightly different issue. The offences arising out of the first and second incident were pleaded as trespasses with the intention of committing an offence against the person. The offence arising out of the third incident was pleaded as a trespass with the intention of committing theft or an offence against the person. But having regard to the conduct of the prosecution case it was an entry or trespass for the purpose of theft. It is not necessary, as I have already said, to deal separately with the directions relating to this offence.
Mr Henchliffe’s complaint is based on the manner in which the Judge expressed himself. In the course of directing the jury the Judge said:
The claim of right to act in that way must involve a belief as to the right to act in that way to ensure the recovery of property in the possession of another. The claim of right to act in that way must be honestly held, it not being to the point whether it was well-founded in fact or law or not. It need not be reasonable.
The belief must not be specious or implausible. The belief must be as to a legal and not merely a moral entitlement. The belief must be as to the legal right to recover the property in that way, and I emphasise the words “in that way” and not simply a moral entitlement so to recover it.
The existence of such a claim of right, when genuinely held, constitutes an answer to a crime in which the means used to enforce the recovery of property involves the use of offensive weapons.
As I understand Mr Henchliffe’s submission, it is that the Judge’s references to recovery of the property “in that way” would have left the jury thinking that Mr Gapper’s belief had to relate not only to his entitlement to enter Mr Jaeger’s house, but also as to his entitlement to enter it in the manner in which he did – with three other persons, with weapons and, depending on how far one takes it, behaving aggressively and making threats.
I do not agree that the jury would have so understood the Judge’s directions. The directions were not, with respect, as clear as they might have been. It is arguable that they should have distinguished between the belief in an entitlement to enter the premises (going to the issue of trespass), and a belief in a legal entitlement to take property (going to the lawfulness of the taking of property).
But, overall, in my opinion the Judge’s directions were unduly favourable to Mr Gapper, and indirectly to Mr Mazzeo. In the last paragraph of the portion of the direction set out above, the Judge told the jury quite plainly that if Mr Gapper believed he had a right to recover his property, that belief:
… constitutes an answer to a crime in which the means used to ensure the recovery of the property involves the use of offensive weapons.
That might have been favourable to Mr Gapper. It ignores the issue of whether he genuinely believed that he had a legal entitlement to enter Mr Jaeger’s house. The charge was one of trespass (in effect) with the intention of committing an offence against the person. The relevant issue was Mr Gapper’s belief about his right to enter the property. Had the issue of trespass been highlighted more clearly for the jury, one might doubt whether Mr Gapper could have succeeded. But in the passage just referred to the Judge, in a sense, brushed past that issue and focussed only on the belief in the entitlement to take property as a means of Mr Gapper recovering his mag wheels. The Judge told the jury that if there was such a belief, that covered the use of offensive weapons. If there was any risk of error as a result of the Judge’s use of the expression “in that way”, that risk was eliminated by what the Judge said. This approach was favourable to the defence.
A little later the Judge said to the jury:
Conversely, if you are satisfied that the accused was maintaining an assertion or if you conclude that it is reasonably possible that he was maintaining an assertion that he acted in that manner to ensure (or facilitate) the recovery of his wheels, then you should find the accused not guilty of the charge of aggravated serious criminal trespass which you are considering.
Once again, the attention of the jury was directed to the belief in the entitlement to recover the wheels. No complaint can be made about this direction.
In short, the Judge’s directions were favourable to Mr Gapper and indirectly to Mr Mazzeo. They removed any risk of error as a result of the use of the expression “taken in that way”, which, standing alone, might have suggested that the belief had to extend to the manner in which entry was made. Having regard to the summing up as a whole, there is no risk of the jury having applied an incorrect test.
For those reasons I do not accept that the Judge’s directions were erroneous, or that they gave rise to a risk of a miscarriage of justice.
Directions relating to Mr Mazzeo
For present purposes I am prepared to assume that Mr Mazzeo had an answer to the two counts of aggravated serious criminal trespass if he genuinely believed that Mr Gapper had a legal entitlement to enter Mr Jaeger’s house with a view to retrieving his mag wheels. I refer to my earlier consideration of this issue, and to the passage cited from the decision in Bennett. If Mr Mazzeo genuinely believed that Mr Gapper had a legal entitlement to enter the house, and that he (Mr Mazzeo) was entitled to assist in that enterprise, their entry or their decision to remain in the premises would not amount to a serious criminal trespass for the purpose of s 168(1) of the Criminal Law Consolidation Act 1935 (SA). I am prepared to accept that as Mr Mazzeo and Mr Gapper were joint offenders, Mr Mazzeo could rely upon the legal entitlement to enter claimed by Mr Gapper, having regard to the fact that Mr Mazzeo entered the property with Mr Gapper and with a view to assisting him: see R v Sanders (1991) 57 SASR 102 at 105 King CJ.
I also accept, applying the principle in Sanders, that if Mr Mazzeo genuinely believed that Mr Gapper had a legal entitlement to take the property of Mr Jaeger, then to the extent that Mr Mazzeo assisted him to do so Mr Mazzeo would not be guilty of theft or of any crime relating to that property that required proof of dishonesty. It is not necessary to consider that point further in relation to the charges of aggravated serious criminal trespass based on the entry into Mr Jaeger’s house, because those entries were pleaded to be with the intention of committing an offence against the person, and not with the intention of committing the offence of theft.

Mr Henchliffe submits that the Judge failed to direct the jury adequately in relation to Mr Mazzeo’s claim that he was not guilty of the two relevant offences, because he believed that Mr Gapper had a legal entitlement to enter Mr Jaeger’s house. Mr Henchliffe’s complaint is that while the Judge’s directions were generally adequate, the Judge failed to direct the jury as to how the claim of right (as the Judge called it) applied to Mr Mazzeo. The Judge did not adequately relate his directions to the circumstances of Mr Mazzeo.
I agree that the Judge did not explain to the jury how the relevant principles were to be applied in relation to the claim made by Mr Mazzeo.
As I said earlier in these reasons, the Judge did not make clear the distinction between a belief as to an entitlement to enter Mr Jaeger’s house, and a belief as to an entitlement to take property from the house. The directions that the Judge gave focus mainly on the recovery of property, with little reference to the belief in an entitlement to enter the premises. The Judge referred to a claim of right, which he said must extend to the recovery of property. The Judge said on a number of occasions that the relevant belief “must be as to the legal right to recover the property in that way”. When introducing the topic to the jury, in a passage that I set out above, the Judge said:
… if a person, otherwise a trespasser, has a claim of right to act in that way, then there would be an absence of the essential mental ingredient (or guilty mind) which this second element is concerned with. Such a claim of right extends to any other person who acts in collaboration with the first person who he believes has an honest (genuine) claim of entitlement to the property sought to be recovered.
In the latter part of this passage the Judge clearly extended to Mr Mazzeo the benefit of the claim of right. As I have already said, the Judge’s approach might have been unduly favourable to the accused, because it directed the jury’s attention to the taking of property rather than to the entry on to the property, and in that respect directed the attention of the jury to an aspect of the matter where the claim by the accused had more merit.
However, subject to that point I agree that the Judge should have drawn to the jury’s attention the point that even if they were satisfied it was not a reasonable possibility that Mr Gapper genuinely believed he had a legal right to enter the premises, or remain in the premises, or to take property, it did not necessarily follow that Mr Mazzeo was guilty. It was necessary for the jury to consider separately whether it was a reasonable possibility that Mr Mazzeo believed that Mr Gapper had the relevant belief. The Judge did not do this.
However, I am satisfied that the deficiency in the Judge’s directions could not have given rise to a risk of a miscarriage of justice.
The claim of a belief or an entitlement to enter Mr Jaeger’s property was a flimsy one. The claim by Mr Mazzeo and by Mr Gapper of a belief in a legal entitlement to take property was a stronger one, although to my mind even that claim faced difficulties.
But although the Judge should have drawn to the jury’s attention the distinction that Mr Henchliffe identifies, I do not accept that the jury might have rejected the claim by Mr Gapper, but accepted, as a reasonable possibility, the same claim in relation to Mr Mazzeo. I can find no evidentiary basis upon which the jury might have drawn a distinction between the two men. Mr Mazzeo did not give evidence. There is nothing in the evidence given by Mr Gapper, or in any other evidence, that might have provided a basis for the jury to accept the claim of right (as the Judge called it) made by Mr Mazzeo, even though they rejected that same claim by Mr Gapper. So, for that reason, I am satisfied that the flaw in the Judge’s summing up could not have given rise to a miscarriage of justice.
In the course of his submissions Mr Henchliffe made the same complaint about the Judge’s directions relating to Mr Mazzeo and the entry into Mr Goss’s shed. It is not necessary to deal with that complaint, because the conviction on that count should be set aside, and a verdict of not guilty should be substituted.
Mr Henchliffe makes a similar complaint about the Judge’s directions relating to the charge of aggravated robbery. The jury acquitted Mr Gapper and Mr Mazzeo on that count, but convicted them on the alternative charge of theft. The acquittal reflects the fact that the charge alleged the use of force against Mr Jaeger, but on the evidence he was not present when the property was taken from his house. Accordingly, the charge of aggravated robbery was bound to fail.
Mr Henchliffe accepts that the Judge’s directions to the jury in relation to the alternative charge of theft were generally adequate. The complaint is that the Judge failed to apply the directions to Mr Mazzeo’s circumstances. The particular complaint is again that the Judge did not explain to the jury that the claim of right by Mr Gapper, to the property in question, might be rejected by the jury, but that it did not necessarily follow that it would be rejected in relation to Mr Mazzeo. Mr Mazzeo’s circumstances required separate consideration.
As it happens, the Judge invited the jury to acquit Mr Gapper and Mr Mazzeo on the alternative count of theft. He said that it could be expected that they would conclude that the claim of right had not been negatived by the prosecution, and that their verdict would be not guilty on the charge of aggravated robbery and on the alternative charge of theft. The jury did not accept this invitation.
I agree that the Judge’s directions are deficient in the respect identified by Mr Henchliffe. But I make the same answer as I made to the previous submission. There is no basis upon which the jury could have distinguished between Mr Gapper and Mr Mazzeo in this respect, even though Mr Henchliffe is right to say that strictly their cases required separate consideration. The fact that Mr Mazzeo did not give evidence, and the fact that in the other evidence in the case there is simply no basis upon which a distinction could have been drawn between the two men, leads to the conclusion that the Judge’s error could not have given rise to a miscarriage of justice.
Firearm offences – no case to answer
The prosecutor at trial failed to establish as part of the prosecution case that Mr Gapper did not have a licence for the two firearms involved in the offences before the Court. No point was taken by defence counsel at the close of the prosecution case. In cross-examination Mr Gapper admitted that he did not have a licence for the firearms.
The Judge cannot be said to have erred in law in failing to rule at the close of the prosecution case that there was no case to answer. No such ruling was sought from the Judge. It is not the duty of a trial judge to search for a possible deficiency in the prosecution case, and to bring that deficiency to the attention of defence counsel. That is not to say that a judge might not raise a matter which possibly warrants a no case submission, should the judge notice some such matter. But it is another thing to suggest that the judge errs in law if the judge fails to identify a deficiency in the prosecution case, and fails to raise it with defence counsel.
There is nothing in the submission that the Judge’s failure to rule that there was no case to answer on the relevant charges was an error of law, or gave rise to a miscarriage of justice.
During the course of Mr Gapper’s cross-examination, as a result of a preliminary question by counsel for the Director, counsel for Mr Gapper obviously realised that the gap in the prosecution case was there, and that the prosecutor was about to close the gap. Counsel objected to the vital question. The Judge overruled the objection, and Mr Gapper then admitted that he did not have a licence for the firearms.
Mr Henchliffe submits that this gave rise to a miscarriage of justice. I do not agree. The argument that the Judge, at that stage, should have directed the jury that there was no case to answer (that is, before the vital question was answered) cannot be sustained. The time for such a ruling had passed.
There was no basis for an objection to the question that the prosecutor was about to ask. The question could not be objected to on the basis that it would remedy a deficiency in the prosecution case.
It was not the Judge’s duty to intervene before the question was asked, and to invite the jury to bring in a not guilty verdict. Mr Henchliffe invoked the well-known passage in The Queen v Prasad (1979) 23 SASR 161 at 163 where King CJ said:
It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may do so then or at any later stage of the proceedings …
The prosecutor was about the close the gap in the prosecution case. A fair trial did not require the Judge to intervene to prevent the prosecutor from doing so, with a view to the Judge then inviting the jury to acquit. If there was no legitimate ground of objection to the question that the prosecutor was about to ask, it was not appropriate for the Judge to prevent the prosecutor from asking the question, so that the Judge could invite the jury to bring in a not guilty verdict.
Mr Henchliffe finally put his submission in an alternative form. In a nutshell the submission is that Mr Gapper lost the chance of an acquittal on the two counts in question, due to the failure of trial counsel to take the point, at the close of the prosecution case, that there was no case to answer.
I do not accept this submission.
Had the submission of no case to answer been made, it is likely that the trial Judge would have given leave to the prosecutor to re-open the prosecution case. The omission of the prosecutor to prove that the firearms were not licensed could not have affected the conduct of the defence case in any way. No unfairness would result if the prosecution were permitted to re-open its case. The failure to prove the required matter appears to have been attributable to a mere oversight.
Mr Henchliffe further submits that the failure of trial counsel to submit no case to answer is the result of an error or oversight by trial counsel, and that that error has deprived Mr Gapper of a chance of an acquittal that was fairly open to him. I accept that there is no reason to think that the omission by trial counsel reflects a tactical decision. Mr Henchliffe argues that the present case falls within the statement in a number of cases that when an error of counsel has deprived an accused of a chance for an acquittal fairly open to him, that will amount to a miscarriage of justice.
Once again, I do not agree.
The power to allow an appeal when there has been a miscarriage of justice is to be found in s 353(1) of the Criminal Law Consolidation Act. The South Australian provision is in substantially the same form as equivalent provisions in the other States and Territories. The scope of this power, and the content to be given to the expression “miscarriage of justice”, has been considered in some detail by the High Court in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 and in Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614. I have considered the reasons of the members of the High Court in each of those cases. The reasons of the members of the High Court deal with the meaning of “miscarriage of justice” in this context in considerable detail, and deal also with the significance of a mistake by trial counsel when considering whether there has been a miscarriage of justice.
For present purposes it is convenient to focus on a point made by Gleeson CJ in Nudd, to the effect that the concept of a miscarriage of justice has two aspects, the outcome of the trial and the trial process. As Gleeson CJ says, the aspects are different but related: Nudd at [3].
When one comes to consider those aspects in relation to the present case, a number of points emerge. The error by counsel has not given rise to a situation in which the verdict is in any way unreliable, or unable to be tested adequately by a court of appeal. In no sense can the error be said to have produced a result that is unsafe. To the extent that the concept of a miscarriage of justice is based on the outcome of the trial, I find nothing in the reasons in TKWJ or Nudd to support a conclusion that what has occurred here amounts to a miscarriage of justice.
As to the process, there has been no irregularity in the conduct of the trial. An oversight by counsel is not, of itself, an irregularity. Nor, in the present case, has the oversight given rise to an irregularity. To my mind it cannot be said that the trial process has been rendered unfair. There are many cases in which, in the course of the defence case, the prosecution case is strengthened. There are cases in which significant weaknesses in the prosecution case are remedied in the defence case. The fact that the prosecution is able to remedy a deficiency in its case, as a result of an oversight by counsel, cannot be said to make the trial unfair. It would be going too far, I consider, for the court to hold that an oversight of the kind that occurred here, with the consequence that it had, makes the trial unfair.
While I recognise that this is a case where an oversight by counsel has deprived Mr Gapper of the chance of an acquittal, I do not accept that that test for a miscarriage of justice can be applied literally as it were, yielding the result that an appeal must be allowed whenever it can be said, literally, that the test is satisfied.
For those reasons I reject this ground of appeal. I am satisfied that there has not been a miscarriage of justice.
The proviso
I have concluded that there were some irregularities in the course of the trial. I have referred to the inappropriate cross-examination of Mr Gapper and to the failure of the Judge to remind the jury of the possible explanations for the lie that Mr Gapper told to the police. I have referred to a number of the directions in respect of Mr Mazzeo which were deficient.
As to these irregularities, I have considered all of the evidence. The case against both appellants was compelling. I am satisfied that the evidence proved the guilt of the accused beyond reasonable doubt. I consider that the irregularities to which I have referred did not result in any substantial miscarriage of justice, and to the extent that the appellant relies upon these matters, the appeal should be dismissed.
Conclusion
The convictions recorded on count 10 (unlawful discharge of a firearm) and count 11 (assault) should be set aside, and a retrial should be ordered.
The conviction on count 14 (aggravated serious criminal trespass) should be set aside, and a verdict of acquittal should be substituted.
Apart from that, the appeal should be dismissed.
In the light of that it will be necessary further to order that the sentence imposed on Mr Gapper and Mr Mazzeo be set aside, and that they be re‑sentenced. However, the re-sentencing should await the disposition of the two counts on which a retrial has been ordered.
DEBELLE J: I agree with the substance of the reasons of the Chief Justice and with the orders he proposes.
SULAN J: I agree with the reasons of Doyle CJ. I agree that the convictions recorded on count 10 and count 11 should be set aside and a re-trial should be ordered. I agree that the conviction on count 14 should be set aside and a verdict of acquittal should be substituted. As to the appeal by Mr Gapper and Mr Mazzeo in respect of other counts, the appeal should be dismissed.