R v Garner; R v Webb

Case [2021] SASCA 68

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

R v GARNER; R v WEBB

[2021] SASCA 68

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Bleby)

8 July 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW

The respondents, Garner and Webb, were members of the Rebels motorcycle gang. After a trial by judge alone, Garner was acquitted of the charge of blackmail; Webb was acquitted of the charge of attempting to dissuade a witness from attending at judicial proceedings. The Director of Public Prosecutions ("DPP") appealed both acquittals.

In relation to Garner, the DPP contended that the Trial judge erred in excluding expert evidence relating to the culture and activities of the Rebels. In relation to Webb, the DPP contended that the Trial Judge erred in finding Webb's proven conduct did not, at law, constitute the offence charged.

Held (by the Court) in relation to Garner:

1. The Trial Judge erred in her assessment of the admissibility of the expert evidence by failing to properly apply the test for admissibility of discreditable conduct evidence which amounted to an error of law;

2. The error of the Trial Judge is an error of well understood principles which can be explained by the appellate court without it interfering with the acquittal verdict;

3. Permission to appeal is granted but the appeal is dismissed. 

Held (by the Court) in relation to Webb:

1. The Trial Judge erred in concluding that there was no case to answer on the charged offence or the alternative statutory offence;

2. The Trial Judge misapplied R v Hamnett and had regard to irrelevant considerations when considering whether the evidence could, at law, establish the offence charged or the statutory alternative offence;

3. There are strong reasons of public policy which demand permission be granted and the appeal be allowed;

4. Permission to appeal is granted and the appeal is allowed;

5. The acquittal is set aside and the matter is remitted to the District Court for retrial before a different judge.

Criminal Law Consolidation Act 1935 (SA) ss 20(3), 172(1), 244(3), 248(1), 256 ; Criminal Procedure Act 1921 (SA) s 153(4); Evidence Act 1929 (SA) ss 34P, 34R, referred to.
Abrahamson v The Queen (1994) 63 SASR 139; Doney v The Queen (1909) 171 CLR 207; Elrick v The Queen [2021] SASCA 13; Everett v The Queen (1994) 181 CLR 295; Hamra v The Queen (2017) 260 CLR 479; HML v The Queen (2008) 235 CLR 334; Hughes v The Queen (2017) 263 CLR 338; Imm v The Queen (2016) 257 CLR 300; Johnson v The Queen (2018) 266 CLR 106; Kadir v The Queen (2020) 267 CLR 109;

Continue reading R v Garner; R v Webb

Sign in free to access the full text

Details
AGLC
R v Garner; R v Webb [2021] SASCA 68
Case
[2021] SASCA 68
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions appealed the acquittals of the respondents, Garner and Webb, in the District Court of South Australia. The appeal concerning Garner related to the Trial Judge's exclusion of expert evidence concerning the criminal activities and culture of violence of the Rebels motorcycle club. The appeal concerning Webb concerned the Trial Judge's finding that the evidence presented did not, as a matter of law, establish the offence charged or the alternative statutory offence.

The central legal issues before the Court were whether the Trial Judge erred in excluding the expert evidence in Garner's case, and whether the Trial Judge correctly determined that there was no case to answer for Webb on the charges of attempting to dissuade a witness or attempting to pervert the course of justice. The Court was required to consider the admissibility of propensity and tendency evidence under the Evidence Act 1929 (SA), particularly in relation to s 34P, and the application of legal principles established in cases such as *R v Hamnett*.

In relation to Garner, the Court found that the Trial Judge erred in her application of well-understood principles regarding the admissibility of evidence. While the Trial Judge had concerns about the reliability of prosecution witnesses, the exclusion of the expert evidence was deemed an error. However, the Court noted that the prejudicial effect of the evidence was not as high as the Trial Judge found, and that similar prejudice arose in Webb's case. For Webb, the Court held that the Trial Judge erred in concluding there was no case to answer, misapplying *R v Hamnett* and considering irrelevant factors. The Court determined that there were strong public policy reasons to grant permission to appeal and allow the appeal.

Consequently, permission to appeal was granted in both matters. The appeal in Garner's case was dismissed, with the Court content to explain the error without interfering with the verdict. However, the appeal in Webb's case was allowed, the acquittal was set aside, and the matter was remitted to the District Court for retrial before a different judge.

Orders

Orders of the court

Held (by the Court) in relation to Webb:

1. The Trial Judge erred in concluding that there was no case to answer on the charged offence or the alternative statutory offence;

2. The Trial Judge misapplied R v Hamnett and had regard to irrelevant considerations when considering whether the evidence could, at law, establish the offence charged or the statutory alternative offence;

3. There are strong reasons of public policy which demand permission be granted and the appeal be allowed;

4. Permission to appeal is granted and the appeal is allowed;

5. The acquittal is set aside and the matter is remitted to the District Court for retrial before a different judge.

Background

Background to the litigation

The Director of Public Prosecutions (“DPP”) appeals the acquittals. In relation to Garner, the appellant contended that the Trial Judge erred in excluding expert evidence relating to the criminal activities of the Rebels and their culture of violence. In relation to Webb, the appellant contended that the Trial Judge erred in finding that Webb’s proven conduct did not constitute at law the offence charged.Background It is necessary to set out in some detail the events preceding the alleged offending, as they contextualise the alleged offending and relationships between the parties involved. As the issue on Garner’s appeal concerns the admissibility of discreditable conduct evidence pursuant to s 34P of the Evidence Act 1929 (SA), the assessment of that evidence must be made on the assumption that a trier of fact would accept the prosecution’s case. It is necessary therefore to summarise the prosecution’s case. The complainants to the alleged offending were Noel, and his son, Brodie. Noel’s other son, Ty, worked as a tattoo artist for three outlaw motorcycle gangs: the Rebels, the Mongols and the Hells Angels. Ty became addicted to methamphetamine in around 2015/2016. Both Noel and Brodie were aware of Ty’s drug addiction. Between mid-2016 and late-2018, Mr Lyndsay Garner (“Lyndsay”), the older brother of the respondent Garner, was alleged to have attended Noel’s home on at least 11 occasions searching for Ty. Brodie knew Lyndsay as they played rugby together when they were teenagers. On the first occasion in mid-2016, Lyndsay confronted Noel and stated that Ty owed him $5,000 for a drug debt. After an exchange between Lyndsay and Noel, during which Lyndsay became aggressive, Noel retrieved Ty from the house. Ty left with Lyndsay in his car, returning later that day. Noel was told that Ty was going to “sort it out”. Each visit thereafter was similarly related to pursuing drug debts said to be owed by Ty. According to Noel, various verbal threats were made to him by Lyndsay, to the general effect that debts were owed, that the Joneses’ possessions were at risk if the debts remained unpaid, that Lyndsay would “do what he had to do” to get the money owed, and that Ty would be pursued continually for the debts. On two occasions during the period of the visits, Noel raised a total of $10,000 which he provided Ty to repay the alleged debts. Visits from Lyndsay ceased temporarily after such payments were made. It was unclear whether the respondent Garner accompanied Lyndsay on each of these occasions. However, it was not in dispute that Garner attended Noel’s home on at least two occasions, namely with Lyndsay in early-2018 and unaccompanied on 23 December 2018 (the date of the charged offending). In early-2018, Garner and Lyndsay attended Noel’s home together. They were advised by Noel that Ty was not present as he had “thrown him out”. Garner and Lyndsay insisted upon speaking to Ty. Noel contacted him via telephone and Garner spoke to him over the phone. Noel stated that during the call, Garner demanded money and made threats. The incident ended when Garner and Lyndsay claimed to have obtained an address where they could locate Ty. Lyndsay returned unaccompanied a couple of weeks later and reported that Ty was not at the address provided and that it was “out of his hands now”.Garner’s alleged offending on 23 December 2018

Evidence

Evidence Before The Court

The respondent Garner submitted that no such errors were made by the Trial Judge. In the event such errors were found, Garner contended that the Court could identify and explain the errors, and provide guidance without interfering with the verdict.Relevant principles: admissibility of evidence Evidence is information which, according to certain governing general principles and more detailed rules, will be received by a court for the purpose of deciding issues of fact that arise for its decision.[9] In South Australia, when considering questions of evidence and its admissibility, the applicable law is the common law supplemented by provisions of the Evidence Act 1929 (SA) (“the Act”). [9] HML v The Queen(2008) 235 CLR 334 at [4]. When dealing with the question of the admissibility of evidence, the first question is whether the evidence is relevant. Evidence is either relevant or it is not. If it is not relevant, no further question of admissibility arises. It is only if the evidence is relevant that questions of admissibility arise. Facts having rational probative value are relevant and admissible unless a specific rule prevents admission.[10] [10] Smith v The Queen (2001) 206 CLR 650 at [6]. There is no definition of “probative value” in the Act. The expression is to be understood in the way it is defined in the Uniform Evidence Acts.[11] Evidence is of probative value (relevant) if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. As the probative value of evidence will vary depending on the issue that it is adduced to prove, two interrelated questions naturally arise for consideration. First, for what purpose is the evidence led and, secondly, to what fact in issue, does the evidence go to prove (or disprove)?[12][11] Johnson v The Queen (2018) 266 CLR 106 at [18].[12] R v W, CT [2019] SASCFC 18 at [30]. Not all evidence admitted in a trial is direct evidence of a fact in issue, or more particularly, a fact proving an element of the offence. Often evidence is indirect in its effect. A fact is relevant to another fact when it is so related to that fact that, according to the ordinary course of events, either by itself or in connection with other facts, it proves or makes probable the past, present, or future existence or non-existence of the other fact.[13] That is, the evidence increases, as a matter of human experience, the probability of the existence of that fact.[14] In cases involving circumstantial evidence, relevance must be resolved by reference to the whole of the evidence in the case.[15][13] Nicholls v The Queen (2005) 219 CLR 196 at [37].[14] R v MJJ; R v CJN (2013) 117 SASR 81 at [19].[15] Ribbon v The Queen (2019) 134 SASR 328 at [210]–[211]. Depending upon the way in which the prosecution seeks to prove its case, or the way in which the defence is conducted, it may appear, as a matter of fact, that an element of the offence charged will not be established beyond reasonable doubt unless some subsidiary fact, relevant to a fact in issue, is proved. Thus, in a criminal case, attention must be directed to the elements of the offence charged, the particulars of those elements and any circumstances which bear upon the assessment of probability.[16] Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. That is, it may explain a statement or an event that would otherwise appear curious or unlikely; it may cut down, or reinforce, the plausibility of something that a witness has said; or it may provide a context helpful, or even necessary, for an understanding of a narrative.[17] This evidence may be relevant and admissible if it provides an explanatory framework for other evidence. [16] R v H,T (2010) 108 SASR 86 at [64].[17] HML v The Queen(2008) 235 CLR 334 at [6].

Decision

Reasons for decision

We generally accept the submissions of the respondent. The Trial Judge’s error was in the application of well understood principles. The Trial Judge did have doubts about the reliability of the prosecution witnesses. While it is correct to observe that the failure to admit Detective Reinhardt’s evidence may have affected the Trial Judge’s assessment of the prosecution witnesses, her reasoning generally suggests that the reliability of some of the prosecution witnesses was affected by other matters. Further, we do not accept the appellant’s submission that there is no prejudice to the accused in facing a retrial. The Trial Judge convicted the respondent of assault and did so on a basis favourable to him, namely that he acted in excessive self-defence. This conviction was not appealed by either party. If the matter is remitted for a further trial, there is a potential for inconsistent findings to arise. That is, on a retrial, if the respondent was convicted of Count 2 (the blackmail charge), it could only be on the basis that the trier of fact accepted the prosecution case that the respondent behaved in an intimidating and brazen fashion. That would be inconsistent with the basis of the conviction for assault (Count 1).Conclusion Given the principles espoused earlier regarding DPP appeals, in our view, while the appellant has established error in the approach of the Trial Judge, it is sufficient that the Court explain the error without interfering with the verdict. Given the nature of the error and its significance to the appellant’s case at trial, we grant permission to appeal but for the reasons outlined above we dismiss the appeal. Orders in relation to Garner 1.We grant permission to appeal; and2. We dismiss the appeal.The appeal regarding Webb The background leading to the alleged conduct of Webb is set out above. Webb was charged with attempting to dissuade Noel from attending as a witness or giving evidence at judicial proceedings in contravention of s 244(3) of the Criminal Law Consolidation Act1935 (the “CLCA”).[54] Webb was charged, in the alternative, with attempting to pervert or obstruct the course of justice contrary to s 256 of the CLCA. The Trial Judge accepted the evidence of Noel and her findings, on appeal, were not challenged. Despite accepting Noel’s evidence, the Trial Judge acquitted Webb on the charged offence on the basis that there was no case to answer. The appellant appeals the acquittal (Ground 1). The Trial Judge also acquitted Webb of the statutory alternative offence of attempting to pervert the course of justice. The appellant appeals that acquittal in the alternative (Ground 2). [54] While the particulars were stated in the alternative the case appears to have been conducted on the basis that Webb attempted to dissuade Noel from attending as a witness at judicial proceedings. No question of potential duplicity was raised at trial or on appeal. Ground 1 The appellant contended that the Trial Judge erred in finding that Webb’s proven conduct did not, at law, constitute the charged offence of attempting to dissuade a witness from attending as a witness or giving evidence at judicial proceedings. The appellant also contended that the Trial Judge misapplied the decision of R v Hamnett (“Hamnett”).[55][55] (2018) 132 SASR 155.A case to answer

Ratio Decidendi

Legal Principle Established

That is not to say, however, that the Trial Judge must have inevitably found, had she considered the probative capacity of the evidence correctly, that the evidence did substantially outweigh the prejudicial effect of the evidence. Such a decision would require a proper assessment of the probative capacity of the evidence. Consideration of s 34P(3) When considering the admissibility of the evidence pursuant to s 34P(2)(a) of the Act, it was also necessary for the Trial Judge to consider the operation of s 34P(3). Section 34P(3) directs the attention of a trial judge to consider whether the permissible use of the evidence can be kept sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that impermissible purpose. If the terms of the sub-section cannot be complied with, the evidence is inadmissible even if it meets the other criteria contained in s 34P(2)(a). When considering the operation of s 34P(3), the Trial Judge stated:[36]The prejudicial effect of this evidence is very high and, even sitting as a judge alone, I consider that any permissible use of the evidence in respect of the likelihood the accused acting in a manner alleged could not be kept sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.[36] Ruling at 6. It is strictly unnecessary for us to consider this aspect of the Trial Judges’ reasons. However, we make the following comments. We are unable to accept that the prejudicial effect of the evidence is “very high”. The evidence that Garner was a member of the Rebels and that he was wearing their colours on the day in question was admissible in any event, as part of the surrounding circumstances. Indeed, as the Trial Judge remarked in her ruling, Garner choosing to wear the Rebels’ colours might lead to an inference that he intended to intimidate Noel irrespective of the evidence of Detective Reinhardt. Whether the prejudicial effect of the evidence is high or not, the same prejudice arose in the matter of the other respondent, Webb. The permissible uses in the cases of the respondents, while not identical, overlap. Like Garner, Webb may well have been a law-abiding member of the Rebels. The Trial Judge’s finding, that in relation to the case against Garner, she could not keep any permissible use of the evidence sufficient and distinct from the impermissible use is somewhat incongruent with her ability to keep the same type of evidence separate and distinct in the matter of Webb. This is particularly so when the Trial Judge, in the matter of Garner, was able to clearly articulate the similar permissible and impermissible uses of the evidence. The Trial Judge found in Webb’s matter:[37]I admitted the evidence of Detective Reinhardt against the accused Webb with the exception of VDP19. I accept his evidence regarding the culture, activities and reputation for violence of the Rebels and OMCGs generally. I have paid particular regard to his evidence of the propensity of OMCG members to use violence in public places and practices of intimidation towards members of the public and of the reputation of OMCGs for violence and the effect of this reputation upon members of the public, including an unwillingness to proceed with criminal charges for fear of reprisals. I have also had regard to his evidence that news of an arrest of a member is disseminated rapidly. I have used his evidence in assessing the likelihood of the conversation occurring as alleged by NAJ and AKT and in drawing inferences regarding the meaning of the words spoken and any intention that can be inferred from them. I have not used this evidence to reason that the accused Webb is the sort of person who is likely to have committed the offence charged.(emphasis added)[37] R v Garner & Webb [2020] SADC 143 at [157].