R v Heffernan; R v Stephens - [2012] SASCFC 70

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HEFFERNAN; R v STEPHENS
[2012] SASCFC 70
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Kelly)
15 June 2012
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS - DIRECTIONS TO JURY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - ADMISSIBILITY GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - GENERAL PRINCIPLES
Appeals against conviction for murder - jury trial - unanimous verdict - the issues on appeal arose from the trial Judge’s summing up - both defendants complained about the adequacy of the direction and redirection as to self-defence - the defendant Stephens also complained about the adequacy of directions given concerning an out of court inconsistent statement made by a prosecution witness - the case of Heffernan was that he acted in self-defence - the case of Stephens was that he went to the aid of Heffernan during the fight - Stephens claimed that he was entitled to rely on Heffernan’s defence of self-defence.
Whether the Judge erred in his directions as to self-defence with regard to addressing the concept of reasonable proportionality - whether the Judge erred in his redirection as to self-defence - whether there was a risk of a miscarriage of justice in the case of Stephens through the Judge not having directed the jury as to the significance of an out of court inconsistent statement made by a prosecution witness.
Held per Gray J (Anderson, Kelly JJ concurring): Appeals dismissed - the jury were at the outset correctly directed as to the defence of self-defence - there was no real risk that the jury would not have understood that when the Judge referred to the word “proportionate” in each of the impugned passages that the Judge was referring to “reasonably proportionate” - in using the expression “in a shorthand way” the jury would have understood that the Judge was providing a reference to his earlier direction on the law of self-defence - the Judge in his redirection made it plain that as far as proportionality was concerned, the second limb postulated a test of “reasonably proportionate” - regarding the out of court prior inconsistent statement, the jury would have been aware of the challenge to the credibility and reliability of the witness - in the circumstances of the present trial the decision by the Judge not to refer to this particular aspect did not involve any error of law and did not render the verdict unsafe or unsatisfactory.
Criminal Law Consolidation Act 1935 (SA) s 15 and s 15B, referred to.
R v Dunn [2012] SASCFC 40; R v Yout [2012] SASCFC 1; Driscoll v The Queen (1977) 137 CLR 517, considered.

R v HEFFERNAN; R v STEPHENS
[2012] SASCFC 70
Court of Criminal Appeal…

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.

Keep reading for free

Create a free CaseChat account to read R v Heffernan; R v Stephens and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] SASCFC 70
Decision Date: 15 June 2012

CaseChat Overview and Summary

Appeals were brought before the Court of Appeal of Victoria by two defendants, Heffernan and Stephens, following their convictions for murder after a jury trial. The central dispute on appeal concerned the adequacy of the trial judge's directions to the jury regarding the defence of self-defence, which Heffernan had raised. Stephens, who claimed to have acted in aid of Heffernan, argued he was entitled to rely on Heffernan's defence. Stephens also raised a separate ground of appeal concerning the judge's directions on the significance of an out-of-court inconsistent statement made by a prosecution witness.

The legal issues before the court were whether the trial judge erred in his directions on self-defence, specifically concerning the concept of reasonable proportionality, and whether his subsequent redirection on this defence introduced a risk of miscarriage of justice. Additionally, the court considered whether Stephens' appeal was prejudiced by the judge's failure to adequately direct the jury on the significance of a prior inconsistent statement made by a prosecution witness, Ms Shamroze-Hanson.

The Court of Appeal, in dismissing the appeals, held that the jury had been correctly directed on self-defence at the outset. The court found no real risk that the jury misunderstood the requirement of "reasonably proportionate" force when the judge used the term "proportionate," viewing it as a shorthand reference to the earlier, comprehensive direction. Regarding the inconsistent statement, the court acknowledged that while it would have been preferable for the judge to have drawn the jury's attention to the inconsistency and its relevance, the circumstances of the trial meant this omission did not constitute an error of law or render the verdict unsafe. The jury would have been aware of the challenge to Ms Shamroze-Hanson's credibility and reliability, particularly given the emphasis during cross-examination and final addresses, and the judge had cautioned the jury to scrutinise the evidence of witnesses who had consumed alcohol and drugs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In this respect it is instructive to have regard to the observations of Gibbs J in Driscoll:[4]… it is clearly settled that the previous statement is admitted merely on the issue of credibility, and is not evidence of the truth of the matters stated in it: Taylor v. The King; Deacon v. The King; and Reg. v. Pearson. Since the jury, if uninstructed, are not likely to be aware of the limited use to which the previous statement may be put, it is essential that this should be made clear to them by the trial judge. As to the second question, the whole purpose of contradicting the witness by proof of the inconsistent statement is to show that the witness is unreliable. In some cases the circumstances might be such that it would be highly desirable, if not necessary, for the judge to warn the jury against accepting the evidence of the witness. From the point of view of the accused this warning would be particularly necessary when the testimony of the witness was more damaging to the accused than the previous statement. In some cases the unreliability of the witness might be so obvious as to make a warning on the subject almost superfluous. It is possible to conceive other cases in which the evidence given by a witness might be regarded as reliable notwithstanding that he had made an earlier statement inconsistent with his testimony. For these reasons I cannot accept that it is always necessary or even appropriate to direct a jury that the evidence of a witness who has made a previous inconsistent statement should be treated as unreliable. …[I]t cannot be accepted that in cases where a witness has made a previous inconsistent statement there is an inflexible rule of law or practice that the jury should be directed that the evidence should be regarded as unreliable. … [Emphasis added. Footnotes omitted.][4] Driscoll v The Queen (1977) 137 CLR 517, 536-537. The Judge when summing up made no reference at all to the prior out of court inconsistent statement of Ms Shamroze-Hanson. Counsel for the Director accepted that there was an important inconsistency between the out of court statement and the evidence of Ms Shamroze-Hanson. It was accepted that it would have been preferable for the Judge to have drawn attention to this inconsistency and to have explained its relevance to the jury. They were left without assistance on this important topic. The Director submitted that no risk of a miscarriage of justice arose. It was said that the inconsistency would have been plain to the jury as it had been the subject of considerable emphasis during cross-examination and was reinforced by counsel for the defendant Stephens during his final address to the jury. The Judge had, it was pointed out, directed the jury to consider all of the evidence and the addresses. In any event the Judge had directed the jury to scrutinise very carefully the evidence of Ms Shamroze-Hanson when they were considering her reliability: Ladies and gentlemen, we then heard evidence of witnesses [including Ms Shamroze-Hanson] from the house in which the two accused lived at 118 Woodville Road. I give you this warning about their evidence, ladies and gentlemen. I do not think any of those witnesses at that time were in particularly good shape in describing how they had spent their day drinking alcohol and ingesting marijuana and you might treat their evidence and scrutinise it very carefully when you are considering the reliability of what these people had to say.You remember the evidence of Joel Petterson, Jessica Shamroze-Hanson, the former girlfriend of Mr Stephens and John Murray. The upshot of their evidence seems to be that there was a lot of alcohol drunk on the night before the alleged murder took place. There was marijuana smoked and Ms Shamroze-Hanson gave evidence of the conversations she had with Mr Stephens on the Saturday after the alleged murder.Let me read to you that evidence, p.259, line 15. This is just a reminder of her evidence on that topic of that conversation which has been referred to by counsel. The prosecutor asked this question: ‘Can I just ask you to try and use as close to the words he used as possible - this is talking about a conversation - ‘Okay, I’ll try. My memory about that part of it is not good. I believe he said they went to this person’s house -’This is of course talking about Mr Stephens and of course this cannot be used against Mr Heffernan - ‘- I believe he said that to begin with this person actually let them in so it was a friendly visit to begin with, I believe. Somewhere between that drinking with this person Rhys and Michael started to get quite violent towards this person, I believe they started to hit with a hammer, started to punch him, kick him. One was doing this - I believe Michael was doing this while Rhys was going around the house searching for things to steal, things to rob.Q. Did they say that the man had said anything - and I said he shouldn’t lead - was anything further said - that’s what the prosecutor said.A. Michael had told me that at the end of everything Rhys stabbed this guy in the back with a knife, Michael tried to get him to stop but he would not listen and then they pretty much just left the house, they didn’t know if this person was alive or dead at the time. This is just a basic outline of what Mr Stephens said, because I cannot recall the exact words, but that is a basic outline of the conversation.’Ladies and gentlemen, that can only be used as evidence against Mr Stephens. She also gave evidence on the Saturday morning when the two accused came back to the house, both were covered in blood.

Decision

Reasons for decision

ANDERSON J (dissent)

My review of the proceeding satisfies me that the jury would have been aware of the challenge to the credibility and reliability of Ms Shamroze-Hanson and that in the circumstances of the present trial the decision by the Judge not to refer to this particular aspect did not involve any error of law and did not render the verdict unsafe or unsatisfactory. Conclusion I would dismiss both appeals. I agree that both appeals should be dismissed for the reasons given by Gray J. KELLY J: I agree that both appeals should be dismissed for the reasons which Gray J has given.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.