R v Headon - [2014] SASCFC 4

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HEADON
[2014] SASCFC 4
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Stanley)
30 January 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
Appeal against conviction for aggravated serious criminal trespass in a non-residential building - where accomplice gave evidence for prosecution - where in the course of his evidence accomplice said that appellant had spent many years in gaol - where in summing up and directing on the evaluation of the accomplice's evidence the judge made a comment referring to the question of alibi - where no evidence of any sort was presented by appellant - whether witness's reference to gaol was responsive to questioning - whether judge's comment undermined the defence - whether verdict was unsafe on account of these matters.
Held: appeal dismissed.
R v B, P [2006] SASC 229; Maric v The Queen (1978) 52 ALJR 631; Webb & Hay v The Queen (1994) 181 CLR 41; R v Glover (1987) 46 SASR 310; Tsigos v The Queen (unreported, High Court of Australia, 14 April 1965), considered.

R v HEADON
[2014] SASCFC 4
Court of Criminal Appeal: Kourakis CJ, Vanstone and Stanley JJ

KOURAKIS CJ: I gratefully adopt the summary of the trial proceedings appearing in the judgment of Vanstone J.
For the reasons given by Vanstone J, the appellant’s first ground of appeal is, in effect, a complaint that a miscarriage of justice has resulted from the disclosure made by Bann in the course of cross-examination, that the appellant had been released from prison shortly before the offence was committed. The answers of Bann were responsive to the matters put to him in cross-examination by the appellant’s counsel, namely that the appellant and his family had interfered in Bann’s relationship with the appellant’s half-sister, Ms G, and that Bann hated the appellant for his role in that dispute. The implication of the cross-examination was that Bann was motivated by that animosity to falsely implicate the appellant. Bann’s response was to deny the suggestion and explain its improbability by reference to the appellant’s long period of imprisonment and the close friendship they had struck up soon after the appellant’s release.
The appellant’s answers were strongly probative in their refutation of the defence suggestion that Bann had a motive to lie. There was of course a risk that the jury might misuse that evidence. However, the directions given by the judge substantially removed that risk. The probative weight of Bann’s answers on the issue raised by the cross-examiner strongly outweighed whatever small risk of prejudice might have remained after the Judge’s summing up. Accordingly, there was no miscarriage of justice in the reception of Bann’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Headon

Details

AGLC: R v Headon [2014] SASCFC 4
Case: [2014] SASCFC 4
Decision Date: 30 January 2014

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal by the appellant, Headon, against his conviction for aggravated serious criminal trespass in a non-residential building. The appeal arose after an accomplice, Bann, gave evidence for the prosecution, during which he referred to the appellant having spent many years in gaol. The appellant contended that this reference constituted prejudicial evidence and that the trial judge's subsequent summing up, which included a comment on the question of alibi, further undermined the defence, leading to a miscarriage of justice.

The primary legal issues before the Full Court were whether the witness's reference to the appellant's prior imprisonment was an inadmissible prejudicial statement that was not cured by the judge's directions, and whether the judge's comment regarding the alibi undermined the defence case, thereby causing a miscarriage of justice. The court was required to consider these matters in light of all the evidence presented at trial and the directions given by the judge to the jury.

The Court reasoned that the admissibility of the prejudicial material and its impact on the fairness of the trial were central. While the witness's statement about the appellant's gaol time was unsolicited and potentially prejudicial, the court considered it in the context of the entire trial. The judge's directions were intended to guide the jury on how to evaluate the accomplice's evidence and the issue of alibi. Ultimately, the court found that Bann's evidence was compelling and corroborated by other evidence, including security footage and a shoe print. The court concluded that the reference to gaol and the judge's comment on the alibi did not create a significant possibility of a miscarriage of justice, as they did not deflect the jury from a proper consideration of the charge.

The Full Court granted permission to appeal on one ground but dismissed the appeal, finding that no substantial miscarriage of justice had occurred.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I shall deal with each in turn.Ground 1 – Emergence of prejudicial evidence Ground 1 complains that the trial judge erred in failing to grant the appellant’s application for a discharge of the jury on account of the fact that evidence emerged that the appellant had been in gaol for a number of years. The ground also complains that this led to a miscarriage of justice. The decision of the trial judge not to declare a mistrial is not, of itself, properly a ground of appeal. The relevant complaint is that inadmissible material emerged and that this led to a miscarriage of justice. Whether there was a miscarriage of justice is to be determined in the light of all the evidence given in the case and having regard to the directions given by the judge. I made this point in R v B, P [2006] SASC 229 at [13] with the concurrence of Doyle CJ. There, Maric v The Queen (1978) 52 ALJR 631 per Gibbs ACJ at 634-5 and Webb & Hay v The Queen (1994) 181 CLR 41 per Toohey J at 89-90 were cited. In those circumstances it is appropriate to treat ground 1 of the present appeal as a complaint that a miscarriage of justice was occasioned by the reception of inadmissible material and that the prejudice was not cured by the direction given. In his evidence-in-chief the accomplice, Bann, told the jury that he had come to know the appellant in the early part of 2012 through his long standing relationship with his partner, “Ms G”. In the early part of 2012 they were living nearby to the appellant and would often visit each other’s homes. They formed a friendship. He said that the appellant brought up the topic of doing a “job” on the Coromandel Valley chemist. Bann said that the appellant identified that pharmacy as “an easy target”, known to him because he picked up his medication there. It was agreed that together they would commit a breaking offence on those premises. It was hoped they would obtain money and drugs from the premises. They planned to enter through a back window. No-one else was involved. The offence took place a week or two after the conversation. The crime was committed in the early hours of the morning. Ms G mother’s car was used to drive the 25 minutes or so journey to the pharmacy. A good way into his cross-examination at trial, counsel then acting for the appellant turned to the topic of Bann’s relationship with Ms G who is the appellant’s half sister. It was a longstanding partnership. Bann spoke of the four children they had brought up as their own. He agreed that there had been difficulties in the relationship including that he had been violent towards Ms G. Counsel then suggested to Bann that Bann and the appellant had never been friends. He suggested that the appellant had had nothing to do with Bann on a personal basis because he and his family disapproved of the relationship between Bann and Ms G. Bann said that that was not so and at one stage the appellant had been living with himself and Ms G. The cross-examination then continued as follows:Q. I suggest to you that that’s not true.A. I suggest otherwise.Q.Have you ever been annoyed or upset by the involvement of [Ms G]’s family in your relationship with her.A.No, and [the appellant] has never been there. He’s only been out since last year. He was inside for 11 or nine years. He was only out last year, the beginning of that year.Q.Have you ever been aware of expressions of concern on the part of [Ms G]’s family for the way that you have treated her and your children.A.Yeah. Not my kids, no. For the way I treated [Ms G], yeah.Q.And the position is that you’ve developed a hatred towards [the appellant] and his family members.A.Me and him were like brothers. For all the shit that was ever said between [the appellant’s mother] and that, as soon as fucking [the appellant] got out of gaol we shook hands, and from that day we were virtually fucking inseparable.Q.I suggest to you that you’re making this all up as you go along.A.No, I’m not.Q.You’re making it up in order to get back at [the appellant].A.Why I would want to get back at [the appellant]? He’s done nothing wrong by me.

Decision

Reasons for decision

Viewing those two matters against the background of the entirety of the evidence I do not find that there is any significant possibility of a miscarriage of justice. Bann’s evidence appears to me to have been compelling and it stood uncontradicted. There was clear support for his evidence in the form of the video footage taken by the security cameras and the shoe print. The appellant’s connection with the pharmacy and the pharmacist’s observations arising from the footage amounted to further independent support. In all the circumstances, as I said, the two matters raised were not such as to deflect the jury from a proper consideration of the charge and could not have led to a miscarriage of justice.Conclusion I would grant permission to appeal on ground 2 but dismiss the appeal. STANLEY J: I would dismiss the appeal. I agree with the reasons of the Chief Justice and Vanstone J.

Ratio Decidendi

Legal Principle Established

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