R v Haydon No. Sccrm-99-89 Judgment No. S375

R v HAYDON
[1999] SASC 375

Court of Criminal Appeal: Millhouse, Duggan and Lander JJ

MILLHOUSE J. When we heard this appeal we agreed that it should be allowed and that there be a retrial. Our brother Duggan has now set out the reasons for our decision. I agree with them.
DUGGAN J. The appellant appealed against his conviction on two charges of assault occasioning actual bodily harm. He was tried by judge alone. At the hearing of the appeal it was allowed, the conviction set aside and a new trial ordered. I now set out my reasons for agreeing with those orders.
The charges arose out of an incident which took place at Millicent on 14 July 1996. The alleged victim of the assaults, Mr Wiese, lived with his wife and children at Millicent. He was at home on leave at the time of the incident. His wife and children were away on holidays. At about 6.00 am on 14 July he went to the front door of his house after hearing someone knock on the door. Upon opening the door he was struck a heavy blow to the right side of the face. He then saw two men at the door. One was holding a bat and the other had a sawn-off shot gun. They were wearing balaclavas over their heads.
Mr Wiese turned, ran through the house and left through the rear door. He then jumped over a fence and ran onto the road at the front of the premises. He stood in a position which he estimated to be 50 to 100 metres away from his house and called out to the men who were still at the front door. He asked what was going on and, without saying anything, they walked slowly onto the road. The person with the gun then raised it to his hip and fired it in the direction of Mr Wiese who felt something hit his leg. The two men then walked off. Mr Wiese was treated later in hospital for wounds which were caused by shotgun pellets hitting him in his right thigh and right forehead. He told police he could not identify the men.
Enquiries by police officers led them to a Mr Dempsey who was an acquaintance of both the appellant and Mr Wiese. Mr Dempsey and his partner, Ms West, gave evidence at the trial. Mr Dempsey said that the appellant rang him at his home at Penola shortly before 9.00 am on 14 July 1996 and asked Mr Dempsey to go to the appellant’s house at Millicent. The appellant said “The shit’s hit the fan”.
Mr Dempsey and Ms West said they then went to see the appellant. They arrived at his house at about 11.00 am. Both gave evidence that the appellant then told them that he and a person named Eddie had gone to the home of Mr Wiese that morning. One had hit him with a baseball bat and the other shot him after he ran down the road. The appellant did not identify the specific role played by each man. According to Dempsey’s evidence the appellant said he disposed of the gun near a bridge.
When the police officers first spoke to Mr Dempsey on 16 July 1996 he denied any knowledge of the shooting. He suggested to the police that the Gipsy Jokers might be responsible for the incident. In evidence he said he did not tell the police about the matter at that stage because he did not want to become involved. However, he said he reflected on the matter and decided to tell Mr Wiese about the appellant’s statements, which he did on 22 July 1996. He said Mr Wiese asked him to go to the police at Beachport and make a statement. He went to the police station and told the police officers what he alleged had been told to him by the appellant, but he would not sign a statement to that effect until March 1998. He said in evidence that in March 1997 he made a complaint to the police about a threat the appellant made to him, but he did not avail himself of the opportunity to say anything about the alleged confession by the appellant to the assaults on Mr Wiese. Nor did he say anything about the matter during various conversations he had with the police concerning his complaint between March 1997 and March 1998.
Ms West gave evidence which supported Dempsey’s account of the confession alleged to have been made by the appellant. She said that she made a statement to the police in March 1997 concerning Dempsey’s allegation of a threat made to him by the appellant. She said that she made no mention of the appellant’s alleged confession at the time she made this statement to the police. She also signed a statement relating to the making of the alleged confession when she spoke to the police in March 1998. This was the first occasion she mentioned it to the police.
The appellant did not give evidence and there were no witnesses called on his behalf.
I have summarised the evidence which was led at the trial of various out of court statements made prior to the hearing by Mr Dempsey concerning the alleged confession to him. The evidence relating to the making of these statements by the two witnesses was led as part of the prosecution case. The appellant has argued that the learned trial judge erred in permitting the evidence to be given over the objection of the appellant’s counsel at trial.
Mr Wiese gave evidence first. He was followed as a witness by Mr Dempsey. In the course of his evidence-in-chief, Dempsey was permitted to give evidence of his conversations with the police on 16 July and to explain why he told the police that he knew nothing about the Wiese incident. He was then permitted to give evidence of his visit to Wiese on 22 July when he said he told Wiese that it was the appellant who had been involved. He was then questioned by the prosecutor about the visit to the police at Beachport. He said he told the police about the conversation with the appellant and he gave the details of the conversation in his evidence. He explained how he came to sign the statement in 1998.
The out of court statements alleged to have been made by Dempsey were admitted as previous consistent statements. However it is obvious that the requirements necessary for allowing such evidence to be admitted as an exception to the hearsay rule were not met.
As a general rule, prior consistent statements by a witness are inadmissible; the witness cannot corroborate his or her own evidence. One of the exceptions to this rule arises when an imputation or allegation is clearly made “that the witness’s testimony is a recent fabrication, in the sense of being invented at or after a particular time”. (The Nominal Defendant v Clements (1960) 104 CLR 476 at 494).
It is for the trial judge to decide whether the imputation of recent invention has been made but, as Windeyer J pointed out in Clements’ case (495):
“... the evidence is only to be let in when the grounds for doing so clearly exist. It is not enough that a witness has been cross-examined as to credit, however much his credibility may appear to have been shaken (Britton v Commissioner for Road Transport (1947) 47 SR (NSW) 249; 64 WN 16; Smith v Commonwealth Life Assurance Society Ltd (1935) 35 SR (NSW) at p556). There must be an imputation, clearly made and not unequivocally disclaimed, that the witness is not speaking from his own recollection of events, but is recounting a story subsequently made up by him or for him.”

Dixon CJ said (47):

“But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court. It is evident however that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack.”

In the present case it is not in dispute that no imputation of recent invention had been made against the witness Dempsey. It follows that the evidence of the prior inconsistent statements was plainly inadmissible.
The credibility of the witnesses Dempsey and West was crucial to the case. If their evidence could not be accepted beyond reasonable doubt, the appellant had to be acquitted. The trial judge admitted the impugned evidence on the basis of consistency and he referred to the previous out of court statements in his reasons for judgment, although he did not specifically comment on their relevance to consistency. However, it cannot be said that the statements were not used for the improper purpose for which they were admitted and this is a sufficient ground, in itself, for setting aside the convictions.
In view of the order for a retrial it is appropriate to deal with another criticism made relating to the trial judge’s process of reasoning. Count 1 of the information alleged the offence of assault occasioning actual bodily harm arising out of the blow which Mr Wiese said he received when he opened the door. The second count concerned the firing of the shotgun and alleged the offence of shooting at with intent to do grievous bodily harm. The third count which alleged assault occasioning actual bodily harm was an alternative to the second count.
In the course of his reasons the learned trial judge said:
“It is not possible to find which of the two men was the Accused. There is a suggestion in the evidence that he was the person with the gun, but it is no more than a suggestion and does not enable a finding beyond reasonable doubt to be made.
That, however, is of no real significance because the men were obviously involved in a joint enterprise and as such must each bear full responsibility for what occurred.
Mr Wiese was assaulted at his door and was occasioned actual bodily harm. I find Count 1 proved beyond reasonable doubt.
Count 2 is not so proved because there is no evidence that there was, in the mind of the Accused or his co-offender, the necessary specific intent to shoot at Mr Wiese so as to do him grievous bodily harm. The evidence of Mr Wiese that the shot was fired in his direction from hip level is not indicative of a specific intent to so harm. It is more indicative of recklessness as to where the discharged pellets might go. Recklessness is not an element of this offence. I find the Accused not guilty of Count 2.
I go then to the alternative Count 3. Again, Mr Wiese was clearly assaulted in circumstances where a specific intent is not an element of the alternative charge. Mere recklessness will be sufficient if the action which is proved to have caused the actual bodily harm was undertaken not caring whether Mr Wiese was assaulted or not. He clearly was. I find the Accused guilty of Count 3.”
With respect to the trial judge, it is not clear how he applied the doctrine of joint enterprise; nor does it seem to have been relevant to raise the question of recklessness. The fact that it was not possible on the evidence to identify the roles played by the men rendered it appropriate to have regard to the issue of common enterprise and, alternatively, whether each participant could be said to have aided and abetted the other.
When the trial judge concluded, as he did, that the appellant was one of the two men who went to Wiese’s house, it became relevant to consider whether they went there as part of a common design to carry out an unlawful purpose. If his Honour was satisfied that there was such an unlawful purpose it would be necessary to decide whether the particular assaults alleged, namely, the blow to the head and the shooting could be held to fall within the ambit of the common design. They would fall within the common design if the assaults were within the contemplation of the two men and were foreseen as a possible incident of the execution of the planned enterprise. (Johns v The Queen (1980) 143 CLR 108 at 131.)
In the alternative, it was appropriate to consider whether the two men aided and abetted each other in carrying out the alleged assaults. In either case it was unnecessary for the prosecution to establish who struck the blow and who fired the gun. (R v Lowery and King(No 2) [1972] VR 560.)
I am unable to see that recklessness was relevant to a consideration of the charges which were laid. The prosecution based its case on the appellant being involved in two deliberate assaults. There was no need to consider whether there could be a reckless assault in the circumstances. (cf Macpherson v Brown (1975) 12 SASR 174; R v Venna [1975] 3 All ER 788). It may be that the trial judge was considering recklessness in relation to the consequences of the assaults. However, once an assault is established there is no requirement to prove an intention to cause actual bodily harm. If that consequence follows then the more serious offence of assault occasioning actual bodily harm has been committed. (The Queen v Percali (1986) 42 SASR 46).
It is claimed in the notice of appeal that the verdicts are unreasonable and cannot be supported having regard to the evidence. In my view there is no ground for saying that this ground should succeed for any reason apart from the matters to which I have referred. In these circumstance it was appropriate to make the order for a retrial.
LANDER J. I agree with the reasons of Duggan J.

[1999] SASC 375

21 September 1999