R v Hart

Case [2004] SASC 363

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HART

Judgment of The Court of Criminal Appeal

(The Honourable Justice Perry, The Honourable Justice Nyland and The Honourable Justice Gray)

12 November 2004

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - VERDICT AGAINST EVIDENCE AND WEIGHT OF EVIDENCE - VERDICT AGAINST WEIGHT OF EVIDENCE - WHEN NEW TRIAL REFUSED

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - GENERAL PRINCIPLES AS TO GRANT OR REFUSAL OF NEW TRIAL

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - EVIDENCE NOT AVAILABLE AT HEARING

Appeal against conviction - appellant charged with false imprisonment, threatening life and common assault - jury, by majority verdict, found the appellant not guilty of the charge of false imprisonment; guilty by majority verdict of threaten life and guilty by unanimous verdict of common assault.

Convictions appealed on grounds that the trial judge erred in directions relating to the appellant’s decision not to give evidence and to the appellant’s character - that the jury’s guilty verdicts were unreasonable and could not be supported having regard to the evidence - that the jury ought to have entertained a reasonable doubt as to guilt - that there had been a miscarriage of justice as further statements provided to the police after verdict indicated that the victim had given false testimony in the trial - consideration of victim's evidence at trial - consideration of other witnesses' evidence at trial - discussion of principles relating to unreasonable verdicts - consideration of trial judge's directions in relation to appellant’s decision not to give evidence and the appellant's character - consideration of post trial statements of victim.

Held - there was evidence that the jury were entitled to accept that justified the verdicts reached - trial judge's directions relating to the appellant's failure to give evidence and character were adequate - post trial statements of victim did not affect the result of the trial - no real risk of a miscarriage of justice having occurred - appeal dismissed.

Criminal Law Consolidation Act 1935 (SA), referred to.
Jones v The Queen (1997) 191 CLR 439; H v R (1994) 181 CLR 487; MFA v R (2002) 213 CLR 606; R v Pahuja (No 2) (1989) 50 SASR 551; R v Kilby (1973) 129 CLR 460; R v Green [2001] SASC 25; R v Knight (1966) 50 Cr App R 122; R v Sparrow [1973] 1 WLR 488; RPS v R (2000) 199 CLR 620; Azzopardi v R (2001) 205 CLR 50; Van Beelen (1974) 9 SASR 163; R v Geesing (1985) 38 SASR 226; R v Poulter (1978) 19 SASR 370; Davies v R (1937) 57 CLR 170; R v Drummond (No 2) (1990) 46 A Crim R 408, considered.

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R v Hart [2004] SASC 363
Case
[2004] SASC 363
Decision Date

CaseChat Overview and Summary

In the matter of R v Hart, the appellant contested his conviction on charges of false imprisonment, threatening life, and common assault. The jury returned a majority verdict finding the appellant not guilty of false imprisonment, guilty of threatening life, and guilty by unanimous verdict of common assault. The appeal was based on several grounds, including the trial judge's alleged errors in directions regarding the appellant's decision not to give evidence and his character, the unreasonableness of the jury's verdicts, and the potential for a miscarriage of justice due to post-trial statements by the victim suggesting she had given false testimony.

The court was required to determine whether the trial judge's directions to the jury were adequate and whether the jury's verdicts were unreasonable, taking into account the principles established in relevant case law. Specifically, the court needed to assess whether there was a real risk of a miscarriage of justice, as well as the impact of any fresh evidence provided after the trial.

The court found that the evidence presented at trial was sufficient for the jury to convict the appellant of threatening life and common assault, despite the acquittal on the charge of false imprisonment. The trial judge's directions regarding the appellant's decision not to testify and his character were deemed adequate. Furthermore, the post-trial statements from the victim did not undermine the jury's verdicts. The court concluded that there was no real risk of a miscarriage of justice and dismissed the appeal. The court emphasised that the jury's advantage of seeing and hearing the witnesses should be given full regard, and the appeal was ultimately dismissed as the evidence was sufficient to support the jury's verdicts.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Before coming to discuss the grounds for appeal it is necessary to summarise the evidence given at trial.Mr Bottroff’s Evidence The principal witness for the prosecution was Mr Bottroff. He had interests at laundromats at Melrose Park and Cumberland Park. He worked from time to time at both laundromats. In or about July 2002, Sandra Williams introduced the appellant to Mr Bottroff. At that time Ms Williams was in a relationship with the appellant. That relationship ceased in about September 2002. Shortly before the incidents the subject of the charges, Mr Bottroff had been told by Ms Williams that the appellant had been involved in a double murder at Monteith near Murray Bridge. In the days before 30 October 2002, the appellant asked Mr Bottroff to collect him and drive to particular places. The appellant claimed that his motor vehicle had broken down. On occasions Mr Bottroff complied with these requests. On the evening of 29 October 2002 the appellant telephoned Mr Bottroff at about 8.30pm. The appellant complained that Mr Bottroff had not arrived in the city to collect him. Mr Bottroff said that he was too busy. The appellant responded saying “Just fucking get here. I need a lift. I don’t have any money”. At about 9.00pm Mr Bottroff collected the appellant. He said the appellant ran across the road to Mr Bottroff’s car. He described the appellant as being high spirited and agitated. Mr Bottroff drove to several locations and then to the appellant’s home. He described the appellant as being ‘stupid’. He said the appellant jumped a fence and was talking to himself. Mr Bottroff returned to the Melrose Park laundromat and continued cleaning. Later in the evening the appellant and Mr Bottroff exchanged text messages. The appellant was suggesting that “some people” were “after him” and requested that Mr Bottroff pick him up. Mr Bottroff rang a taxi company to arrange for a taxi for the appellant. Mr Bottroff said that he did not want the appellant at his shop. He instructed the taxi company to take the appellant to Glenelg. The appellant continued to send text messages to Mr Bottroff to the effect that “the bastards are here”. Mr Bottroff said he did not understand what the appellant meant. At or about midnight, whilst at the Melrose Park laundromat, Mr Bottroff saw two or three taxis arrive and a man running across the road towards the laundromat. He then described the appellant crashing through the laundromat door with his hands in the air. The appellant ran towards the back of the laundromat saying “Get in the back room. There are people behind me with guns”. There was nobody to be observed behind the appellant. Mr Bottroff went into the service room at the back of the laundromat with the appellant. The appellant then said to Mr Bottroff “You’re in this. I will gut you alive you fucking bastard”. The appellant then pulled out a black handled steak knife from the front of his trousers and said that he was going to “gut” Mr Bottroff. The appellant then said “You know what I did to the old couple”. Mr Bottroff told the appellant that he did not know what he was talking about. The appellant said “Yes you do. You know, I did the old couple in at Monteith”.

Decision

Reasons for decision

PERRY J
Although a further explanation has been offered and placed before the court as to Mr Bottroff’s motives in writing the notes, it does not follow that the verdict is unsafe. We do not consider that the further account provided by Mr Bottroff would have made any difference to the result of the trial. Applying the tests identified in Van Beelen it cannot be concluded that there is any real risk of a miscarriage of justice having occurred.Conclusion There is no substance in the appellant’s complaints. This appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

The appellant did not to give or call any evidence. Consideration of Issues on AppealAn Unreasonable Verdict Section 353(1) Criminal Law Consolidation Act 1935 provides that:The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. Counsel for the appellant pointed to the many suggested inadequacies and inconsistencies in the evidence of Mr Bottroff and the other prosecution witnesses. It was contended that those inconsistencies and inadequacies were so stark that it was an inevitable conclusion that a reasonable doubt should have arisen in the minds of the jury. Counsel for the appellant submitted that the verdicts with respect to counts 2 and 3 should be set aside on the basis that they were unreasonable and could not be supported having regard to the evidence. It was said a miscarriage of justice had occurred. The relevant principles to be considered with respect to this matter are conveniently summarised in Jones v The Queen[2] where the High Court reviewed the basis on which a verdict may set aside on the ground that it is unreasonable and cannot be supported by the evidence. Gaudron, McHugh and Gummow JJ observed:[3][2](1997) 191 CLR 439. See also H v R (1994) 181 CLR 487 at 493-494; MFA v R (2002) 213 CLR 606[3] (1997) 191 CLR 439 at 450-452In M, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was "open to the jury" to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that: “in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”The majority judges explained the application of the test as follows: “In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”Gaudron J agreed with the majority formulation of the test, as did Brennan J, although his Honour said that the question as to whether it was "open to the jury" to be satisfied of guilt beyond reasonable doubt was to be resolved by asking whether the jury was "upon the whole of the evidence ... bound to have a reasonable doubt" or whether "the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused".McHugh J said that the correct test for determining whether a verdict should be set aside on the ground that it was unreasonable was "whether a reasonable jury must have had a reasonable doubt about the accused's guilt". McHugh J did not adopt the "open to the jury" test because his Honour thought that such a test came "perilously close to applying the test for determining whether there was a sufficiency of evidence to convict the accused" and would constitute "an unwarranted intrusion into the jury's right to determine the facts in a criminal trial" . However, the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory.