R v Hart - [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.

WORDS AND PHRASES CONSIDERED/DEFINED
"post trial statements"

R v HART
[2004] SASC 363
Court of Criminal Appeal: Perry, Nyland and Gray JJ

PERRY J. In my view, the appeal should be dismissed. I agree with the reasons of Nyland and Gray JJ. I have nothing to add to those reasons.
NYLAND and GRAY JJ:
Introduction
This is an appeal against conviction.
The appellant, Scott Anthony Hart, was charged on information filed in the District Court with the offences of false imprisonment, threatening life and common assault.[1] The offences were said to have occurred on 30 October 2002. The victim with respect to each count was said to be Martin Cameron Bottroff.
[1] First Count False Imprisonment (Common Law)
The appellant pleaded not guilty. On 21 April 2004, a jury, by majority verdict, found the appellant not guilty of the charge of false imprisonment. However the jury returned a majority verdict of guilty to the offence of threaten life and a unanimous verdict of guilty with respect to the offence of common assault.
On appeal complaints were made about directions given by the trial judge relating to the appellant’s decision not to give evidence and to the appellant’s character. Complaint was also made that the jury’s guilty verdicts were unreasonable and could not be supported having regard to the evidence. It was said that the jury ought to have entertained a reasonable doubt as to guilt. Finally, it was said that there had been a miscarriage of justice as further statements provided to the police after verdict indicated that Mr Bottroff had given false testimony in the trial.
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”.
The appellant had a bandana with a cord attached to it wound around his right hand and wrist. He lifted the knife and screamed at Mr Bottroff “Ears, eyes, nose and mouth”. He said “That’s what the knife’s meant for, not gutting you”. Mr Bottroff staggered back as the knife was thrust at him. He felt that if he did not get out of the way he would have ended up with the knife in his head.
By this time Mr Bottroff was afraid. He thought he was going to die. He told the appellant to put the knife away. The appellant put the knife on the edge of the table, wrapped it in paper and the bandana and put it into the front of his trousers. The appellant then took some keys and pushed one of them between his fingers and swung his hand at Mr Bottroff, saying “I’ll show you what a concealed weapon is”. Mr Bottroff said he fell away from the threatened blow and out towards the door.
Mr Bottroff did not know what to do. He decided to act normally. He continued mopping the floor while the appellant remained in the service room although he came out on occasions to look out the front window. On occasions when traffic went past, the appellant would run back to the service room saying “That’s them”. Mr Bottroff said that as he continued to work, the appellant spoke to him about corruption and life inside prison. He did not take much notice as he was thinking of ways to escape.
At one point the appellant told Mr Bottroff to turn off the lights so that they could play “murder in the dark”. Mr Bottroff said that he could not do so as the lights were permanently on. The appellant followed Mr Bottroff’s movements around the room and he felt unable to leave. He thought the appellant would chase him. After some time Mr Bottroff suggested to the appellant that they go to the Cumberland Park laundromat as Mr Bottroff had to clean up there. The appellant agreed.
They drove to the Cumberland Park laundromat. When they arrived the appellant said he was hungry and wanted something to eat. They went a short distance to a service station and parked. The appellant told Mr Bottroff to wait in the car but said “Don’t think about pissing off because I’ll gut the bloke over the front counter”. Mr Bottroff felt concerned and agreed to stay in the vehicle. The appellant went inside, returned, and they went back to the Cumberland Park laundromat. Mr Bottroff said that after they entered the Laundromat he did not see what happened to the knife. Mr Bottroff switched the alarm off and put on the lights. The appellant wanted to move into the service room but it was in darkness. Mr Bottroff using a screwdriver, undid the power board and put the light on in the service room. He then proceeded to clean the premises whilst the appellant stood near the service doorway.
Eventually, Mr Bottroff told the appellant that he had to get going and return to his home at Murray Bridge. The appellant was variously telling him to go or to stay. At one point they were in the courtyard at the back of the premises. The light was off and the appellant again said they would play murder in the dark. Mr Bottroff said he had a chance to run to his car at the front. The appellant followed and was at the shop door when Mr Bottroff reached his car. Mr Bottroff called out to the appellant that if he let the door close he would be locked out. The appellant jumped back in and Mr Bottroff drove away.
Thereafter Mr Bottroff returned to Melrose Park where he had left his mobile telephone. He sent a text to the appellant to say that he had spoken to the police and that the appellant was to stay away from him. Mr Bottroff remained at Melrose Park for 10 to 20 minutes. He felt physically sick and was still in shock when he left. He looked for a phone box as his mobile was low on battery. He stopped on Goodwood Road where he tried to ring Jodie, his partner at Murray Bridge. When he arrived at his home, he telephoned his sister, Natalie Mickan. She telephoned detective Derryn Phillips, a family friend, who advised Mr Bottroff to contact the Murray Bridge police station. He attended at the police station later that day.
Mr Bottroff was closely cross-examined. It was suggested to him that his account of these events was false. The cross-examiner sought to establish inconsistencies about the sequence of events and times. Many inconsistencies are evident on a reading of the transcript. A surveillance video from the Laundromat was shown to Mr Bottroff. This video demonstrated some inconsistencies with his earlier version of events.
Mr Bottroff was challenged about his alleged employment of Ms Williams. He claimed that but for one occasion when she helped him out he had not employed her. He then admitted having written a letter of reference in which he had recorded that Ms Williams had worked for him for a lengthy period. This was said to be very relevant to Mr Bottroff’s credit.
Inconsistencies arising from out of court statements made to the police were put to Mr Bottroff. These inconsistencies were established. Counsel for the appellant also drew to Mr Bottroff’s attention a number of other records of telephone calls between him and the appellant that could not be explained.
Counsel for the appellant cross-examined Mr Bottroff about a document that it was suggested he had written to Ms Williams about an account that she and Mr Bowen might advance. Mr Bottroff eventually agreed that he had prepared the particular document but he denied that he had written it as a letter to Ms Williams. He explained it as notes of a storyline that he prepared. Mr Bottroff said that somebody had stolen the notes.
Other Evidence
David McCrostie
David John McCrostie, a householder who resided in Caulfield Avenue, Cumberland Park said that he was woken by his dog barking during the morning of 29 October 2002. He saw a man within his property. He called the police, went outside, and had a conversation with the man. He said that the man was incoherent. He then left. The police arrived soon after.
Constable Tetlow
Constable Christopher William Tetlow was the police officer who responded to Mr McCrostie’s call shortly after about 5.09 am on 29 October 2002. After receiving information about a male person being in the vicinity, Constable Tetlow was approached by a man who identified himself as the appellant. The appellant said he was hiding from people that were following him. He said he had closed the nearby laundromat and there was some takings there and he thought the people might steal the takings and attempt to rob him. He said he was doing this for a friend who was running another laundromat at Melrose Park. The friend had said he would come back to pick him up but had not returned. The appellant claimed that he had been afraid to leave in case he would be robbed and so he was hiding in the street. The people who had tried to rob him were nearby. He said he had not taken the money with him but he had seen a group of people and was fearful for his life.
As a result of this discussion, Constable Tetlow and his partner took the appellant to both the Cumberland Park and Melrose Park laundromats. They did not see anybody at either Laundromats. Both laundromats appeared closed. They then took the appellant home. Neither Tetlow nor his partner searched the appellant
When first spoken to by Constable Tetlow, the appellant made no mention that Mr Bottroff or others were out to kill him. However the appellant made claims during the records of interview subsequently conducted by the police on 30 October 2002.
Constable Wilby
At about 2.15 am on 30 October 2002, George Robert Wilby of the Sturt police station received a phone call from a person who identified himself as the appellant. He said he understood the police were looking for him and he sounded very angry. Constable Wilby did not know what the report was about but was aware there was a patrol message that the police wanted to speak to the appellant. The appellant told him where he was and Wilby arranged for a patrol car to meet him. Constable Slattery was the officer who subsequently met the appellant at Goodwood Road. When they returned to the police station, a thorough search was conducted and a black handled knife was found in the sock of the appellant’s right foot.
Ms Testa
Gina Testa, a social worker, who had been in contact with the appellant during 2002. On 29 October 2002, she received a phone call from the appellant who wanted to see her. She went to his house. When he answered the door he was wearing a towel. She told him to dress. She went into the house. She said there was a mattress against the window and he seemed distressed. He told her that he had been “picked up by the police” and that “people were trying to kill him”. He referred to a situation in which he had been involved the night before which he believed to be a set up. He told Ms Testa that he had gone to the laundromat to keep company with a friend. His friend had said he would be back in 30 minutes but had not arrived so he began to walk home. He sensed he was being followed because he saw cigarettes in the dark and heard dogs barking. He had sat on a fence but had been told by the owner to leave. He had later spoken to police and they had given him a lift home. Ms Testa said the appellant appeared to be very distressed and angry.
Ms Mickan and Mr Mickan
Mr Bottroff’s sister, Natalie Mickan, said that she had received a phone call from her brother at about 8.30 am on 29 October, 2002. He asked her to pick up the video from Melrose Park laundromat. She said he sounded terrified. She went to the laundromat at about 9.00am. She said that she or her husband usually collected the takings from the machines at Melrose Park between 5.30 am and 7 am. Darren Mickan confirmed the evidence of his wife about the collection of monies from the machines.
Ms Williams
Sandra Williams said that she had introduced Mr Bottroff to the appellant. She confirmed Mr Bottroff’s evidence about their meeting. She said that whilst she was seeing the appellant she came across Mr Bottroff at the laundromat and he had been to her house on a couple of occasions. She was shown the storyline document and said she had seen it recently when shown to her by a detective. She said that it had not been in her possession at any time.
In cross-examination she rejected the suggestion that she had been shown the storyline document by Mr Bottroff. She was shown the reference that Mr Bottroff had written for her and agreed that it had been prepared at her request.
The appellant did not to give or call any evidence.
Consideration of Issues on Appeal
An 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 450-452
In 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.
Counsel for the appellant submitted that Mr Bottroff’s evidence was tainted by significant inconsistency and was generally unsatisfactory. This tainting it was said led to the conclusion that there had been a miscarriage of justice.
The first of these complaints related to the suggested inconsistency between Mr Bottroff’s evidence and his statement to the police as to the way he said that he had been informed about the appellant’s background. Counsel for the appellant drew attention to inconsistencies in Mr Bottroff’s evidence in court and out of court statements on this topic.
Counsel relied upon the evidence disclosed by the surveillance video. The defence position at trial was that the video instead of providing some support for the Crown case, disclosed further discrepancies in Mr Bottroff’s evidence. This was said to indicate that his evidence was unreliable. Further, it was claimed that the general behaviour of both Mr Bottroff and the appellant on the video tape was inconsistent with the account of terror and trauma to which Mr Bottroff said he had been subjected. Counsel suggested that if the incident had occurred as described by Mr Bottroff in the public area it would have been captured on video but it was not.
Counsel referred to inconsistency disclosed by the telephone records which showed that Mr Bottroff had sent messages to Mr Bowen and Ms Williams several times before the appellant arrived at the laundromat and then after Mr Bottroff had left the appellant at the Cumberland Park laundromat, but not during the time he and the appellant were together at the laundromat. It was said this was inconsistent to Mr Bottroff’s claim that he had sent text messages to their phones whilst the appellant was present and was irate that they were not responding.
These inconsistencies were drawn to the attention of the jury by counsel. The judge in the course of his summing up reviewed the evidence of Mr Bottroff in considerable detail and he reminded the jury of the cross examination concerning inconsistencies. The judge also reminded the jury of the points made about inconsistencies in the address of counsel for the appellant.
Counsel for the appellant further submitted that the evidence of Mr Bottroff lacked credibility, displayed inadequacies or was otherwise unsatisfactory concerning a number of other matters. Many related to the nature of his relationship with the prosecution witness Ms Williams.
Counsel referred to the reference written by Mr Bottroff for Ms Williams which was acknowledged to be false.
Counsel also referred to Mr Bottroff’s repeated references to his being traumatised when he was confronted with cross-examination on difficult questions which suggested that he was using this as an excuse to avoid answering to many questions. The questions concerned included such topics as the destination to which he had asked the taxi to take the appellant, the way in which he had found out about the appellant’s previous convictions, the reason for writing the storyline and various passages in it and his behaviour as shown on the surveillance video.
Counsel submitted that having regard to these matters, and the acquittal of the appellant on the false imprisonment charge, it was difficult to see how the jury verdicts were other than unsafe and unsatisfactory and a verdict of acquittal should be returned with respect to each count.
The prosecutor, in his opening address told the jury that the main plank of the Crown case lay in their acceptance of Mr Bottroff as a witness of truth. The prosecution case depended upon the jury accepting the evidence of Mr Bottroff on the essential elements of each offence. His credibility was a critical consideration for the jury. In his summing up the trial judge reminded the jury of that matter and set out in some detail matters raised by both prosecution and defence in the course of their closing addresses, which were relevant to Mr Bottroff’s credibility and reliability.
In the consideration of this appeal, this Court must have due regard to the fact that the jury saw and heard Mr Bottroff give evidence. As earlier observed, counsel for the appellant contended that Mr Bottroff’s evidence lacked credibility, displayed inadequacies and was otherwise unsatisfactory. All these matters were put to the jury during the course of the address of counsel and were the subject of directions by the trial judge.
It is evident that the jury must have accepted Mr Bottroff’s evidence. The evidence revealed that the appellant was behaving irrationally and strangely on the night. The appellant appeared to believe that he was being followed by others who wanted to kill him. He believed, it appears, that Mr Bottroff was behind a plot to kill him and it is these beliefs that, on the prosecution case, explained his actions on the night.
There was a body of independent evidence supporting the beliefs of the appellant that night. The evidence of Ms Testa provided support. Records of interview of the appellant conducted by Constable Williams and later by Detective Murgatroyd also provided support. Evidence of observations made of the appellant that night also confirm that he behaved strangely. In that respect, reference may be had to the evidence of Mr McCrostie and Constable Tetlow.
Mr Bottroff’s evidence received independent support from a number of sources. The surveillance video depicting the appellant’s behaviour at the Melrose Park laundromat confirmed aspects of Mr Bottroff’s evidence. Telephone records revealed communications between the appellant and Mr Bottroff, both before and after the appellant’s attendances at the laundromats. Importantly there was the discovery of the knife concealed in the appellant’s sock when he was searched following his arrest on 30 October 2002 at the Sturt Police Station.
Counsel suggested that the finding by police of a knife in possession of the appellant which was similar to that allegedly used by the appellant in assaulting Mr Bottroff did not exclude the reasonable possibility that the knife was not in the appellant’s possession on the evening in question or was not used by the appellant in the manner alleged.
The jury were also entitled to consider the evidence of Mr Bottroff’s state of distress and the complaints made to his sister, Natalie Mikon, that morning when assessing Mr Bottroff’s credibility. Evidence of a victim or witnesses’ distressed state immediately after the alleged offending is admissible for the limited purpose of evidence of consistent behaviour and as part of the whole circumstances surrounding an alleged offence. It may be evidence of a witness’s credibility, however it cannot be used as evidence of guilt of the accused. As observed in R v Pahuja (No 2),[4] evidence of complaint and distress is not probative but may assist a jury in determining the credibility of the witness. In the case of Knight,[5] referred to by Olsson J in Green,[6] the court warned against over emphasising the probative value of evidence of distress, re-iterating that evidence of distress will normally only be admissible as evidence of consistency of behaviour.
[4]R v Pahuja (No 2) (1989) 50 SASR 551 at 575. See also R v Kilby (1973) 129 CLR 460 at 468 and R v Green [2001] SASC 25
[5] (1966) 50 Cr App R 122
[6] [2001] SASC 25 at [145]
The difficulty confronting the appellant’s complaints is that all the matters raised were “fairly and squarely” before the jury for their consideration. The jury were entitled to accept or reject the evidence as they saw fit. The jury were entitled were to accept part of a witness’ evidence. The jury were entitled to give what weight they thought appropriate to anomalies, inconsistencies and inadequacies in the evidence when assessing the credit of the witnesses.
Notwithstanding the submissions of counsel for the appellant, a review of the evidence discloses that there was evidence that the jury were entitled to accept that justified the verdicts reached. There was no application to the trial judge to conclude that there was no case to answer or to direct the jury to acquit. Counsel at trial accepted there was a case to go to the jury for consideration.
This ground of appeal should be rejected. The evidence was capable of supporting the verdicts and the verdicts of the jury have not been shown to be unreasonable.
Challenge to the Adequacy of the Directions of the Trial Judge
The Appellant’s Decision Not to Give Evidence
The trial judge gave the following direction to the jury:
In this matter, the accused has not, himself, given evidence and you should understand that this is his right. As I have said before, he carries no onus to prove anything and you should not draw any inference adverse to him from the fact that he has made that decision not to give evidence. He spoke to the police when he was first arrested and you will have regard, of course, in your deliberations, to those records of interview.
This was a sufficient direction. This direction clearly informed the jury that it was the appellant’s right not to give evidence, that he carried no onus of proof and that they should draw no adverse inference against him as a result of his decision not to give any evidence.
It would have been unwise and dangerous for the judge to direct the jury that there may be reasons unknown to them for the appellant’s decision not to give evidence as it may have caused the jury to speculate impermissibly about that matter. It is well established that the failure of the accused to give evidence cannot be treated as an admission of guilt.[7]
Appellant’s Character
[7] See for example, R v Sparrow [1973] 1 WLR 488; RPS v R (2000) 199 CLR 620; Azzopardi v R (2001) 205 CLR 50
Prior to trial, the appellant sought the discretionary exclusion of the two records of interview which he had with the police. The application was advanced on the grounds that in the course of the interviews he disclosed complicity in murders of which he had previously been convicted, and in respect of which he was on parole at the time of the offence with which he was charged. Defence counsel then amended the application to seek the exclusion of those parts of the evidence of Mr Bottroff where he related conversations with the appellant in which the appellant provided some detail of those murders and of his life in prison.
The judge refused the application with respect to the statements made by the appellant to Mr Bottroff. He considered that those statements were part of the conduct giving rise to the offences charged. They were contemporaneous statements with the alleged conduct. If they were uttered, they were plainly capable of inducing fear in Mr Bottroff and ensuring his compliance with the appellant’s wishes. The judge was, however, persuaded that the statements made by the appellant to the police as to his past criminal and associated conduct should not be led. He exercised his discretion to exclude those statements.
The disclosure of what Mr Bottroff claimed was said by the appellant about his criminal conduct was relevant and admissible evidence. On the prosecution case it formed part of the events. The jury were entitled to hear the evidence of what was said in the course of the relevant events. To exclude the evidence would have left the jury with only part of the picture. The jury would have been exposed to a materially deficient account of what Mr Bottroff said had occurred.
Counsel for the appellant complained of the direction given by the judge with respect to the appellant’s character. It was submitted that the judge should have ‘strongly’ directed the jury that there was no direct evidence that the appellant had been involved in murders or that he had spent time in prison, and that when directing the jury as to the use of the evidence of the appellant’s character, the judge should have referred to the contradictions in the evidence given by Mr Bottroff on this topic.
Counsel for the appellant was correct to contend that a strong warning was required as to the proper use of the evidence. The jury needed to be warned about impermissible use or reasoning.
The judge’s direction to the jury was as follows:
I want to say something to you about character. The general rule of our law is that evidence that an accused has been previously convicted of an offence, or is otherwise of bad character, is not admissible in a criminal trial. His guilt must be proved by evidence of the conduct charged against him and the verdict is not to be influenced by any prejudice that might arise from anything that person might have done in the past. In this case there has, however, been put before you some evidence which suggests that the accused was in the past involved in the murders of two people and spent time in prison. That evidence was put before you through the witness Bottroff, who said that the accused told him these things and spoke of other matters, including things that had happened to him in prison. Bottroff said that the accused spoke of those things during the time that he, Bottroff, was being detained. He said that Sandra Williams also said something to him on a previous occasion about this.
I want to say these things to you about that evidence. In the first place, it was put before you not as evidence that the accused had, in fact, done and experienced those things, because, as I have said, that evidence is not normally admissible, anyway, but because, if you think the accused did say those things to Bottroff, the making of such statements is a matter relevant to whether the accused intended to put Bottroff in fear of him, or to restrict his liberty, or to threaten his life. If any or all such statements were made by the accused they would also be relevant in serving to explain Bottroff’s claim that he was, indeed, in fear of the accused and that is why he did not attempt to escape from what he says were the restraints on his liberty. So, that is the reason the evidence has come before you.
Secondly, even if you think that the accused said any of those things to Bottroff, it does not follow that they are, in fact, the truth. Perhaps they were said falsely, if you think they were said at all, in order to put Bottroff in fear and so that he would comply with the accused’s wishes. You must not conclude that they were true merely because you might think they were said.
The third and most important thing I want to say is that whatever you may think about such statements, assuming, of course, you think any of them were made, it would be very wrong to reason that because you think the accused had been involved in any of those things in his past, that he is, therefore, more likely to have committed any of the offences here charged. That is impermissible reasoning. The law and proper fairness require that an accused person is not to be judged by anything you may think of his past, but solely upon the evidence in the case in hand.
I repeat that the only use you can make of Bottroff’s evidence as to what the accused said about these things, or what Williams said to him about these things, if, indeed, you accept any of it - and that is, of course, a matter for you - is in considering whether it proves something about the intentions of the accused with respect to any or all of the offences, and/or whether it might explain the conduct of Bottroff in connection with them.
The jury were specifically directed not to engage in any process of propensity reasoning. The judge made it clear that it was for the jury to reach a conclusion as to the facts and whether any of the alleged statements were made. The direction also included an appropriate direction as to the limited and proper use that could be made of the evidence. This direction was a strong direction. It drew attention to the permissible use. It explicitly warned against misuse. The dangers of impermissible propensity reasoning were pointed out. The direction was clear, strong, accurate and sufficient. There is no substance to this complaint.
Post Trial Statement of Mr Bottroff
At about 8.30 am on the morning after the verdict had been returned, Detective Murgatroyd telephoned Mr Bottroff to inform him of the outcome of the case. Mr Bottroff then proffered a further explanation about the document described as ‘the storyline’. He said that he had written the notes and wanted to explain them. Mr Bottroff told Detective Murgatroyd that he was contacted by a third person who told him that the appellant would kill his parents if he thought that he was going to be found guilty and was going to go to gaol. He said he wrote the notes because he knew what the appellant was capable of doing and he did not want his parents to be killed. After he wrote the notes he gave them to a third party to be handed on to the appellant. He said the notes were to be put into the appellant’s car. He thought the appellant was going to be in custody when the matter went before the court and he would then explain the notes. However, when he learnt that the appellant remained on bail he did not know what to do so he sent an e-mail to the witness assistant officer asking her what he could do if he did not want to answer any questions. The following day the judge spoke to him about not answering questions that might incriminate him. His concern was that he did not want to say anything about the threats at that time as the appellant was still on bail.

Detective Murgatroyd subsequently conducted an interview with Mr Bottroff on 19 May 2003. He asked Mr Bottroff about the notes. Mr Bottroff said:
… through a friend which was a witness at the trial, Sandra Ms Williams made a comment to a third person who was associating with her at the time … that if I thought that Scott Hart wasn’t going to, if he looked like he was going to go back to jail, … you know without having some revenge against myself or my family that that wasn’t going to happen, so the only way I thought that that couldn’t happen is by leaving these notes in his path through another friends, … so that he would think that there was, like he was going to get off and … you know that’s really like all could put them down as, like they were just notes simply as that and Scott obviously when he got hold of them you know, thought to himself that he was going to get off and like my parents weren’t hurt, neither was any of my family and you know really they just served the purpose of what they were. They were just simply notes to reassure him that he wasn’t going to jail because he would have without doubt you know harm my family. They only live (five) streets away from him.
He went on to say that he asked the third person to hand the notes on but that this did not occur. He said the notes were not put directly in the appellant’s path. They were not handed on to the appellant.
Mr Bottroff made a further statement on 28 May 2004 at a meeting at the office of the DPP in the presence of Detective Jolly. At that time he provided further information namely: that he handed the notes to a friend James McKenna; that he told Mr McKenna to place the note in the appellant’s path to get him off; that Mr McKenna drove away in his vehicle with the notes; that Mr McKenna and Ms Williams’ son knew each other; the appellant was living with Ms Williams at Brighton; Mr McKenna had telephoned him two days later and told him that he would not do it; and that he saw Mr McKenna two weeks later and was informed that Mr McKenna’s mother had thrown the notes away.
Mr Bottroff claimed that at the trial the appellant said to him outside the courtroom “We’ve got something for you”. He took this comment as a form of threat. He could not remember whether he had told the prosecutor at the trial about the comment. Mr Bottroff said that the notes from his diary reflected different thoughts that he was having. He accepted that he had not told the court about the notes and had withheld information. He thought that the appellant would “get his family” as it was still days to go before the trial finished.
At trial counsel for the appellant produced the notes and presented them to Mr Bottroff in cross-examination. No explanation was offered at trial or on appeal as to as to how the appellant’s counsel came into possession of the notes.
There is no suggestion in Mr Bottroff’s further statements to either Detective Murgatroyd or to the DPP and Detective Jolly that his evidence about the incident the subject of the charges was other than accurate and honest.
At trial his evidence about the notes was unsatisfactory. The jury was clearly on notice of the defence submissions about the notes. The fact that there may have been another motive for the preparation of the notes would not add substantially to the defence case against Mr Bottroff. If anything the further explanation if true could be viewed as being prejudicial to the defence case. A further possibility is that the post-trial statements made by Mr Bottroff were an attempt to engineer a circumstance where the conviction would be set aside.
The general principles concerning the reception of further evidence discovered after trial were summarised in Van Beelen[8]. They can be summarised as follows:
-the ultimate question is whether there has been a miscarriage of justice
-the evidence must be such that it would have been admitted at the trial
-the evidence must be of such substantial importance and of such cogency, plausibility and relevancy when considered with the other evidence given at the trial, the result would have altered the minds of reasonable men to remove the certainty of the guilt which the former evidence produced
-in considering whether a miscarriage of justice has occurred it is important to consider whether the defence made any decision not to call the evidence.
[8] (1974) 9 SASR 163 at 183-4
The mere fact that a witness at the trial wishes to change his story is not to be received as fresh evidence on an appeal unless the appeal court is satisfied that there has been a miscarriage of justice in all of the circumstances[9].
[9]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 46A Crim R 408
At trial the notes were tendered in evidence by the appellant. The case put to the jury that the notes evidenced an attempt by Mr Bottroff to have other witnesses, Ms Williams and Mr Bowen, follow a particular “story line”. It was the defence case that Mr Bottroff was attempting to manipulate the evidence of other witnesses. This it was said reflected adversely on his credit. At trial Mr Bottroff was not able to satisfactorily explain the notes. On this topic he was evasive and his evidence lacked conviction. The jury were well aware of the unsatisfactory nature of his evidence on this topic. In the course of his summing up, the trial judge said:
[Mr Bottroff] was then shown [the notes]. He said it was his handwriting. He spent some time considerable time, you will remember, looking at it and then marking on the [the notes] those words that he did not think were in his handwriting.
On the next morning, however, you will recall that he said that, whilst it didn’t look like his writing, the whole document probably had been prepared by him. He had not, however, sent [the notes], or any part of [them], to Sandra Williams. It was simply some things he wrote down. It had never been sent to anybody. It had either been taken out of his rubbish bin or stolen.
…
[Mr Bottroff] was then taken to [the notes] again. He denied that nay part of it constituted a letter to anybody. They were just his thoughts which he wrote down. Why otherwise would he say that he was going to sue the Parole Board for a million dollars?
….
The fact that he had used the word ‘story-line’ did not mean that he had made it up.
…
It was put to him that he made up the whole story, but he denied that.
…
It was put to him that he had made up the whole story as some form of defence to the conflict he had with Hart, but he denied that.
…
[Counsel for the accused] asked you to consider Bottroff’s reaction when he was shown [the notes]; his slowness in considering it, his hesitation about acknowledging it was all his hand writing and the apparent shift in his evidence about whether or not it was. All of this, said [counsel for the accused], might lead you to conclude that Bottroff’s evidence could not be relied upon, that it was not satisfactory and that he may, indeed, be lying.
The further statements provide a different and possibility a more plausible account for the preparation of the notes. Had the jury had this further explanation it is unlikely that it would have reasoned in such a way as to adversely affect the view of Mr Bottroff as a witness.
The further statements of Mr Bottroff do not have any particular cogency or credibility about them. As earlier observed they may have been advanced in some misguided attempt to assist in the upsetting of the verdicts.
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.

Scott Anthony Hart between the 27^th day of October 2002 and the 30^th day of October 2002 at Melrose Park and other places, unlawfully imprisoned Martin Cameron Bottroff and detained him against his will.

Second Count Threatening Life (Section 19(1) of the Criminal Law Consolidation Act 1935)
Scott Anthony Hart between the 27^th day of October 2002 and the 30^th day of October 2002 at Melrose Park, without lawful excuse, threatened to kill Martin Cameron Bottroff, intending to arouse a fear that the threat was likely to be carried out, or being recklessly indifferent as to whether such a fear was aroused.

Third Count Common Assault (Section 39 of the Criminal Law Consolidation Act 1935)
Scott Anthony Hart between the 27^th day of October 2002 and the 30^th day of October 2002 at Melrose Park, assaulted Martin Cameron Bottroff.