R v Heinicke No. Sccrm-98-47 Judgment No. S6752

[1998] SASC 6752

R  v  HEINICKE

Court of Criminal Appeal:  Perry, Williams and Bleby JJ

Bleby J

The proceedings

On 29 January 1998 in the District Court the appellant was found guilty, by majority verdict of a jury, on two counts, namely threatening to cause harm to Chad Talbot contrary to s19(2) of the Criminal Law Consolidation Act 1935 (the “Act”) and of assault occasioning actual bodily harm to Chad Talbot, contrary to s40 of the Act. Both offences were alleged to have occurred on 25 July 1997. He now appeals against his conviction on both counts.

The facts

This summary of the prosecution case is taken from the evidence of Chad Talbot, Richard Talbot his father, Mr Clayton, the assistant to the truck driver mentioned below, and Constable Warren who investigated the incident.

The appellant and the Talbots were neighbours.  They lived in an isolated area known as Punyelroo in mallee country near Swan Reach.  Their houses were a little less than two kilometres apart - about ten minutes walk, according to Chad Talbot.  The appellant had lived alone in his house for some time.  Chad Talbot and his father had only moved into their house on 15 July 1997.  They had come from Queensland on medical advice relating to Mr Talbot senior, and they intended to breed Boer goats on their property.

On 19 July both men drove in the son’s car to the appellant’s house in order to introduce themselves as the new neighbours.  They described the appellant on this first encounter as being aggressive and agitated.  According to their evidence, they were made to feel unwelcome.  Among other things, the appellant complained, in abusive terms, of Chad Talbot’s use of a track going past the front of the appellant’s property.  It was a government road and the most convenient access to the Talbots’ letter box and the Punyelroo Hotel where Chad Talbot went to make telephone calls.  The appellant is alleged to have threatened to shoot the car and lay nail traps for it, and to have threatened to shoot some of Richard Talbot’s goats.

The next encounter between them was on the day on which the offences were alleged to have occurred, namely Friday, 25 July 1997.  The Talbots were expecting delivery of a shed kit from Adelaide.  It was expected to arrive between 4.00pm and 6.00pm.  Chad Talbot had waited for some time on the public road in order to direct the truck driver to the property.  Some time after 6.30pm he returned to his home, believing that the truck had probably been delayed until the following Monday.

In fact the truck driver had had vehicle trouble and had also been unable to find the Talbot property.  The truck eventually arrived at the appellant’s property, Mr Clayton inquiring whether that was the intended destination of the shed kit.  When he found it was not the right place, he asked the appellant for instructions on how to get to the Talbot property.  The directions were duly given, and the appellant asked Mr Clayton to pass on a message that he (the appellant) was not happy with “the young guy driving down the track”, and “he would do something about it”.  The driver had some difficulty manoeuvring his truck out of the property, and was the subject of abuse from the appellant about his driving ability.

The truck eventually arrived at the Talbot property at about 8.00pm.  It was dark.  After some initial exchange about the delay and inadequacies in the map with which the driver and his companion had been supplied, they began unloading the shed components, and Mr Clayton began telling them what had happened at the appellant’s property.  The appellant was known as “Max”, and they were discussing him by that name.  They then heard a raised voice coming from behind a tree.  The Talbots maintained that the words they heard were “That’s enough of that Max, I’ll get you later, you’ll keep”.  Mr Clayton said the words were “Don’t talk about Max like that”.  There seemed little doubt that words like that were spoken, and spoken by the appellant, as the appellant admitted in an interview with the police that it was he who said “That’s enough of that Max you mongrel”.

The Talbots tried to entice the appellant out of the dark to come and talk to them, but he did not emerge.  They decided to try and find him in order to sort things out, and equipped with torches they began walking to his house, calling his name.  They left the driver and Mr Clayton to unload the shed.

After some time Richard Talbot turned back with a view to telephoning the local police officer, thinking that he might be able to assist in sorting things out.  He returned to his house, and called the police on the truck driver’s mobile telephone.

Chad Talbot continued walking towards the appellant’s house, still calling his name so that the appellant would be aware of his presence.  He reached the house and it was in darkness.  He knocked on the door and there was no response.  He called the appellant’s name a number of times and then started returning home.  He then heard the front door slam, turned around and saw the appellant in the beam of his torch.  He returned towards the house and placed his torch on a stationary car by the house and near where the appellant was by then standing.  There was a somewhat bizarre and mutually abusive conversation in raised voices, the appellant complaining about the loss of his house keys, and Chad Talbot asking the appellant why he had yelled at them on their property.  Neither was getting a satisfactory answer from the other.  Talbot mentioned the fact that the police would be coming.

It was a dark night, and the only light was from the beam of Chad Talbot’s torch on the nearby car.  Chad Talbot claimed that he saw the appellant swing at him, and put his left arm up in front of his head for protection.  He felt the impact of a hard object on his lower left arm, resulting in the arm being broken.  That alleged assault was the subject of Count 2.  Talbot fell onto the appellant and there was a struggle, Talbot grabbing what he thought at the time was a stick out of the hands of the appellant.  He swung at the appellant with it and hit him on the leg, and the appellant then “took off”.  Talbot also sought to vacate the area as quickly as possible and heard the appellant say “I killed people in Vietnam, I’m going to shoot you now”.  That was the alleged threat the subject of Count 1.  Talbot beat a hasty retreat in the dark so that he could not be seen by the appellant.

In the meantime, the delivery truck had left the Talbot house and was travelling along the track towards the main road.  The driver stopped to take a phone call, and they were approached by an anxious and, by now, injured Chad Talbot.  They drove him a short distance in their truck when they met Constable Warren coming to the scene, who then arranged for Mr Talbot to be given medical attention.

Having made arrangements with ambulance personnel to attend to Mr Talbot, Constable Warren drove towards the appellant’s house.  He was approaching the house when he received a telephone call on his mobile telephone from the appellant, and told the appellant that he was almost at his house.  There was a short conversation between the two at the appellant’s house over a glass of port, Constable Warren saying that he was not happy about formally interviewing the appellant, as he considered that the appellant was under the influence of alcohol.

The appellant did not give evidence at the trial, but a record of interview taken on the following Monday was tendered through Constable Warren.

In the appellant’s version of events, as put to Mr Talbot in cross‑examination and as contained in his record of interview, the appellant’s first reaction, when confronted with Mr Talbot’s allegation, was “No, I never touched the guy”.  His story was that Talbot was holding the torch in his left hand, shining the light in the appellant’s eyes and holding an iron bar in his right hand which he had taken from the appellant’s barbecue, and was yelling at the appellant.  He said:

“...suddenly I got a torch thrust in me face and eyes, and a iron bar round the back of me legs and another iron bar, and another tried to hit me in the head, but I deflected it with me left arm and then he left.  That was it.  I never touched the guy.”

A little later the record of interview continued:

“I said ‘Get off the place, get off the property’ and then I noticed he had an iron bar alongside of his right leg in his right hand, a torch in his left hand and a bloody light shining in my eyes and the next thing there is an iron bar coming at me’...  I said ‘And then what occurred from there, he hit you, did he?’  He said ‘He hit me.’  I said ‘With the iron bar?’  He said ‘On the back of the legs, back of the left leg and then he took a swipe at me head, but I deflected him with me left arm.’”

He claimed he then retreated and denied that he had made any verbal or other threats.

It will be necessary to refer to some other details of the evidence in relation to particular grounds of the appeal.

Ground 1 - Evidence of Firearms Act Breaches

This ground alleges that the learned trial judge erred in admitting evidence of a conversation between Constable Warren and the appellant on the topic of alleged breaches by the appellant of the Firearms Act 1977. It also alleges that the learned trial judge erred in failing to direct the jury as to the permissible use of that evidence.

During the course of his interview, Constable Warren had asked the appellant about the threat the subject of Count 2 and whether the appellant owned a rifle.  He admitted to doing so, but denied that he had ever threatened to use it on the night in question.  In response to questions from Constable Warren the appellant said that he held a current South Australian Firearms Licence and that his rifle was kept in the house.  They both went inside the house and the appellant showed Constable Warren the rifle.  Constable Warren then gave the following evidence, the subject of objection by defence counsel:

“I said ‘Max, this is your firearm?’

He said ‘That’s right.’

I said ‘Your firearms licence, is that the new photographic one?’

He said ‘Yes.’

“I said ‘Are you aware of your obligations regarding storage of firearms?’

He said ‘Yes, it’s okay while I’m here.

I said ‘The act actually states that all firearms must be stored in a lockable cabinet which is bolted to a wall and a firearm must never be left with the bolt still in it, they must be stored in two different areas?’

He said ‘When I’m here that’s okay.  When I go away it’s locked in the shed.’

I said ‘No, it’s not allowed.  It has to be stored in a locked cabinet at all times.  Where’s your locked cabinet?’

He said ‘How do I use it?’

I said ‘I understand, sorry, I.’

I said, ‘I understand that and I know your frustrations but it must be locked in a locked cabinet.’

He said ‘I leave it there because I shoot a rabbit every morning.’

I said ‘Okay, where is your steel cabinet that you lock it in?’

He said ‘I don’t have a steel cabinet, I just chain in to the wall in the shed, padlock to the wall.”

I said ‘Let’s have a look.  Where’s your chains and padlocks for the shed?’

He said ‘I just padlock the damn thing to the wall, there’s the padlocks, I don’t go away very often.’  We went into the shed and come out, I then had a further conversation with him.”

The appellant was then told that he was being arrested on the charges for which he was eventually tried and for having a firearm that was not secured in accordance with the Firearms Act 1977.

The learned trial judge ruled that the evidence was admissible.  It was not the subject of any direction to the jury.

Evidence by way of the appellant’s statement to Constable Warren to the effect that the appellant owned a rifle and that it was readily available at all material times in the house was plainly relevant to Count 2.  However, the fact that the appellant may have stored it contrary to the requirements of the Firearms Act was quite irrelevant to either count.  The part of the record of interview objected to was not admissible.  Having admitted it, however was the appellant thereby prejudiced?  The respondent argued that he was not because it was plain to anyone that that had nothing to do with the issues to be determined by the jury.  It was an insignificant part of the conversation compared with the much more important evidence of threat by the appellant to use the weapon.

One may speculate as to what effect that evidence may have had on the minds of the jury.  In my opinion it was prejudicial to an impartial consideration of the facts relevant to the allegations then before the Court.  At best it tended to show that the appellant was careless in the use of firearms.  At worst it showed a propensity to commit offences against the Firearms Act which had no bearing whatever on the issues which the jury had to decide.  It also portrayed the appellant as a person who was not averse to avoiding his responsibility for breaches of the law.  There was a not insignificant risk that the jury was prejudiced by it, especially when there was no explanation given to the jury as to the use to which it could be put.  I need not decide whether, by itself, this would be sufficient to warrant a re‑trial.  However, taken in conjunction with other successful grounds of appeal, it does.

Ground 2 - Medical evidence as to the cause of the injury

This ground alleges that the learned trial judge erred in admitting the evidence of Mr Lewis as to the possible cause of Chad Talbot’s injury.

Mr Lewis was an orthopaedic surgeon who first saw Mr Talbot on 1 August 1997.  Although the defence had been informed that he would be called, there was no statement or deposition available, as Mr Lewis had declined to give one.  Counsel for the Director of Public Prosecutions in opening merely said that evidence would be led from Mr Lewis “as to the injuries.  The Crown alleges that the left forearm was broken as a direct result of that impact with the iron bar”.  Mr Lewis attended on subpoena, and his notes were made available to defence counsel shortly before he was called on the second day of the trial.  It was apparent from the notes that the Crown would seek to adduce from Mr Lewis his opinion that the injury to Mr Talbot was consistent with a blocking type action as Talbot had described it, the arm then being struck by an iron bar or something similar.  The objection was taken because the defence had no warning of any such opinion evidence being adduced.  The objection was overruled.  Counsel then said that he might have to get some instructions to see whether he wanted an adjournment, but the question of adjournment was never pursued, and the evidence was led.

The appellant argued that the learned trial judge in the exercise of his discretion should have excluded the evidence.  The question was one of fairness to the accused.

The evidence was plainly relevant to the determination of Count 2.  Neither the DPP nor the appellant’s counsel knew what Mr Lewis would say until shortly before he gave evidence.  In my opinion, it would be an unusual case where material and admissible evidence of which both parties have little notice, through no lack of diligence on the part of the prosecuting authority, should, on that ground, be excluded.  This is so even though the evidence itself may be prejudicial to the defendant.  There is no principle of law which precludes the Crown from calling evidence which has not been examined at the committal stage: R v Utans (1982) 29 SASR 592 per Walters J at 595. The real question is whether the accused was prejudiced in the conduct of his trial by allowing the evidence to be led - whether he no longer can be said to have had a fair trial. R v Utans (supra) itself dealt with the situation which I infer caused far greater prejudice to the accused than this one potentially did, and for reasons over which the prosecution seems to have had some control.  The Court in that case accommodated the difficulties by granting adjournments and rescheduling witnesses, but Walters J was not prepared to discharge the jury.

Given the lack of cooperation of the witness, there was little else the DPP could have done.  Of course, different considerations might apply if there had been a deliberate or reckless withholding of information in the possession of the prosecuting authority, but that was not this case.  If the appellant were genuinely caught by surprise, there were other courses open.  There could have been a request for a voir dire examination of the witness to ascertain just what he was able to say, and an opportunity sought to obtain advice from another expert.  In conjunction with that, or in any event, the appellant’s position could have been protected by an adjournment either before or after the evidence was led before the jury.  Neither of those courses were pursued, and in my opinion it is now too late to complain of prejudice when no such course was taken.  No material was proffered to the learned trial judge or to this Court to demonstrate actual prejudice by the leading of the evidence on short notice.  As Cox J said in R v Cox (1997) 196 LSJS 3 at 8, “[I]t will be a rare case indeed in which a defendant, although shown not to have been prejudiced by the lateness of the evidence, may nevertheless have his conviction set aside by reason of its introduction into the trial”. In my opinion this ground is not made out.

Ground 3 - Direction as to accused’s failure to give evidence

This ground takes objection to one portion of the learned trial judge’s summing‑up when dealing with the failure of the appellant to give evidence.  His Honour pointed out to the jury that that was his right, and that the obligation remained on the Crown to prove its case.  The jury was properly instructed that because an accused person has not given evidence does not mean that the jury could infer guilt by virtue of that fact.  His Honour then continued:

“Of course, it does mean that the important point to be made, of course, is that the Crown’s evidence that’s been given hasn’t been contradicted and it remains unexplained, so it means if the prosecution ask you to draw certain inferences, particularly in regard to Chad’s evidence, then before you that remains uncontradicted.”

In my opinion that constituted a misdirection.  Although the appellant had not given evidence at the trial, evidence was admitted of his comprehensive statement to Constable Warren in which he set out his version of the events.  That differed substantially from that of the Crown witnesses. 

In some circumstances it is appropriate for the trial judge to inform the jury that where an accused person has not given evidence explaining a fact that is within his knowledge, the jury may be more ready to draw an inference against the accused from the primary facts that remain uncontradicted: Weissenstiener v R (1993) 178 CLR 217. That will be the case even where there may be in evidence an out of court statement by the accused containing exculpatory answers to questions: R v Ellis (Unreported, Court of Criminal Appeal, 20 March 1998, Judgment No S6597) per Doyle CJ (Cox J concurring) at 3 and Olsson J at 15-18.

However, the evidence of Chad Talbot did not remain uncontradicted as suggested in the passage quoted above from the summing‑up.  The accused’s out of court statement was as much evidence before the jury as the oral evidence given by Chad Talbot.  Of course, it had not been tested by cross‑examination, but it was open to the jury to place such weight on it as they considered it deserved.  The jury should have been directed to that effect.  It was therefore incorrect and indeed misleading to tell the jury that the Crown’s evidence had not been contradicted and remained unexplained.  So to direct the jury was tantamount to a direction that they should totally disregard the record of interview of the appellant.

It was true that the next topic dealt with by the learned trial judge in his summing‑up was self‑defence, and that in the course of that topic he referred to one aspect of what the appellant had told the police.  However, that was in a passage directed to another topic entirely, and to which the remark was incidental.  It could hardly be said to cure the impression created by the passage to which I have referred.  Particularly is this so because, not only was there no other general direction as to how the jury should treat out of court statements of the appellant, but there was also no general direction at all about the respective roles of judge and jury or as to the sole province of the jury as fact‑finders, regardless of any comments on the facts by the trial judge, and this might well have been taken as a consensus on the facts by the trial judge.

Grounds 7 and 8 - Self‑defence

These allege defects in the summing‑up in relation to self‑defence.  I deal with them at this stage because a number of other grounds relate also to the view taken by the learned trial judge concerning self‑defence.

The question of self‑defence and the burden being on the prosecution to disprove the defence had been raised by defence counsel in his address to the jury.

In relation to that topic the learned trial judge said in the course of his summing‑up:

“Defence counsel raised self‑defence.  I did not think that was an issue.  I will tell you just some brief principles about it.”

There followed what was, in my opinion, an inadequate discussion of self‑defence, omitting any reference to the onus on the prosecution to disprove self‑defence, and the learned trial judge concluded (on this topic):

“However, that, to me, was not raised here because Mr Heinicke, when he was confronted with these allegations by Mr Warren, said ‘I didn’t do it’.  But I mention that for what it is worth.”

If the learned trial judge considered that the question was not properly raised on the evidence he should not have embarked on an explanation or direction in relation to it.

The jury was, not surprisingly, confused, for after it had retired for almost three hours the jury raised the following question:

“Can we have the judge’s statement on the record regarding self‑defence re‑read to the jury panel?  Is self‑defence relevant to this case?”

The learned trial judge gave the following answer:

“To answer the second issue, I don’t belief self‑defence is an issue in this case.  I mentioned it, as indeed in some respects so did counsel for the accused, as an illustration because both of these counts involve conduct where there must not be any lawful excuse for either the threats or the assault, and a person, in some circumstances, can say ‘I acted lawfully’, ie in self‑defence.

However, you recall in this case when the accused was interviewed by Constable Warren what he said I think on two occasions was ‘I didn’t touch the guy’.  So in that statement, there is nothing coming through there in regard to an act of self‑defence.

The only evidence before you is that of the young Mr Talbot who described his view of what happened when he went there.  Now, that evidence is before you, and I say it hasn’t in any way been answered.  So there it is and there it stands.  What reliance you place on that evidence is up to you, bearing in mind what has been put to you by the Crown saying that is evidence you should accept and the defence saying you should have a doubt about it.

I have to say that self‑defence I don’t believe has been raised and it is not an issue in this case.”

It was conceded before us that whatever may have been the effect of the first direction, this direction withdrew the issue from the jury.

I have already referred to the appellant’s version of events as related to Constable Warren.  That clearly alleged that Mr Talbot was the attacker, and that any action taken by the appellant was by way of attempt to deflect any further attacks by Talbot.  True it is that the appellant, in his out of court statement, denied inflicting any injury on Mr Talbot, but he did speak of other measures he took in self‑defence.  An act of self‑defence may not necessarily be by way of attack, and the precise method and effect of the deflection of which the appellant spoke was lacking in detail.  It was theoretically possible that his deflection of the alleged attack on his head resulted in contact between the bar and Mr Talbot’s left forearm.  More importantly, however, the appellant, once having portrayed Mr Talbot as the attacker, and if the jury accepted (as was open to them) that Talbot’s arm was broken in the altercation that ensued, there was evidence that required a direction on self‑defence, notwithstanding the appellant’s denial in his out of court statement that he inflicted any injury.

It was the whole of the statement that was before the jury - all aspects of it, whether exculpatory or not.  There was a factual issue for the jury to consider as to whether, in the course of the alleged attack by Talbot, if they considered that it happened, the appellant defended himself by using the iron bar.  As to the test which the learned trial judge had to apply in deciding whether to leave the matter to the jury, I respectfully adopt what Cox J said in R v Murphy (1988) 52 SASR 186 at 197:

“The test is whether a reasonable jury, properly instructed, could admit the defence as a reasonable possibility on the evidence before them.  It is for the jury to decide what evidence it will accept and this may be a view of the facts that is, in the opinion of the trial Judge, or the appeal court, improbable and is possibly inconsistent with that put forward explicitly by either the prosecutrix or the defendant himself.  Judges have protested against such a procedure - cf R v Duvivier (1982) 29 SASR 217, per Zelling J at 235 - but no‑one doubts that it is the law.”

On the evidence that had been led, self‑defence was a reasonable possibility.  In my opinion it was wrongly withdrawn from the jury.

Even by itself, this ground must result in a re‑trial.  It only affects Count 2, but Mr McEwen for the respondent rightly conceded that it would be impossible, in the circumstances, to sever the two counts.

Exception was taken in Ground 8 to omissions in the direction given with respect to self‑defence.  It is not necessary to consider this ground because the issue was withdrawn from the jury.  I merely observe that “some brief principles” of self‑defence discussed by the learned trial judge were just that, and left much to be desired as a formal direction with respect to self‑defence.

Ground 4 - Intoxication

This complains that the learned trial judge erred in failing adequately to direct the jury with respect to intoxication and its relationship to the issues of intention, self‑defence and the applicant’s perception of events as related to Constable Warren.

The only specific mention of alcohol had been by Constable Warren when he declined formally to interview the appellant on 25 July because he considered that the appellant was affected by alcohol.  The events surrounding the injury to Mr Talbot were said to have occurred some time after 8.00pm.  Constable Warren deposed to being called by Richard Talbot at about 9.10pm.  He visited the appellant’s home, he thought, at about 10.30pm when he made his observations of the appellant.  None of the other witnesses who heard or saw the appellant that evening suggested that he was affected by alcohol at the time of their respective encounters.  The only evidence possibly touching on the topic was that of Richard Talbot who deposed to saying to the truck driver and his assistant, just before the appellant shouted at them in the dark “Don’t worry about Max.  He is known in the area as Mad Max; he is just a harmless drunk”.  Nevertheless, in my opinion, the evidence was sufficient to require that the jury be properly directed on the topic of intoxication.

The learned trial judge gave the following direction about alcohol:

“Alcohol has been raised here.  Clearly from the evidence of Mr Parker (sic) it was the accused had been drinking, may have been affected, but intoxication, from what I recall, drinking, does not of itself provide a defence to a charge.  A person, of course, when sober has to answer for his actions and what he does when he’s affected by liquor, so it’s not a defence to come along and say to a court, to a jury and yourself ‘Well, I wouldn’t have done that act if I hadn’t been drunk, or intoxicated’, because you are still responsible for your acts.

However, criminal responsibility only attaches to the exercise of a will, i.e. some intention.  If a person is sort of acting like, or is an automaton, or may be concussed, or completely under the effect of a drug, or alcohol, that they have no will at all, well then, of course, criminal responsibility wouldn’t attach in those circumstances, so even though a person has been drinking, it’s really no excuse, nor can it be any defence to a crime, and you may think it would only be in a very advanced state of intoxication that it can be raised.

The pointers are here, of course, in dealing with Mr Heinicke’s condition, that there was this - if you accept Chad’s evidence - certainly some discussion, and certainly discussion when the policeman arrived, so the pointers to me seem to be that that defence is not open.  However, I mention that for your own interest.”

In my opinion this direction was defective in a number of ways.  In the first place, the jury should have been directed to consider the possible effect of alcohol on the appellant at the time when the incident took place and whether he was so affected at that time, regardless of his condition at the time when Constable Warren came to see him.  Secondly, the direction was principally directed to the situation of an automaton, the question of alcohol generally being dismissed because the evidence did not seem to support such a condition.  Thirdly, assuming that the jury was satisfied that the appellant was affected by alcohol at the relevant time, there was no direction, as there should have been, on the effect of alcohol on the formation of an intention to commit particularly Count 1 (threaten harm), although the direction given may have been adequate for Count 2.  This lack of direction was particularly important where it was necessary to prove intent or recklessness in the arousing of a fear that the threat was likely to be carried out.  Whether such a specific intention is or is capable of being formed will often depend on the accused’s state of intoxication.  Whilst in a later section of his summing‑up the learned trial judge referred to the need for the threat to be more than a “sounding off”, that seems to have been related more to the interpretation of the words used, and was not connected in any way to any direction with respect to intoxication.  Further, there was no direction as to the effect of alcohol on the appellant’s perception of the situation, particularly in relation to any acts of possible self‑defence, and whether the appellant genuinely believed that force was necessary and reasonable to protect himself; there was no direction to the jury as to the possible effect that alcohol might have had on the appellant in his perception of Mr Talbot as an aggressor, coming onto his property in darkness and calling his name.  There was also no mention of the possible effects of alcohol, if indeed the jury considered it a relevant factor in this regard, on the appellant’s ability to recollect and recount clearly to Constable Warren on the following Monday his version of the events of the preceding Friday night.

In my opinion the directions on alcohol were inadequate, and amounted to a misdirection by the learned trial judge.

Grounds 5 and 6 - Directions as to the ingredients of the offences

The appellant criticised the formulation by the learned trial judge of the ingredients of both the offences.  Some of the criticism was not unjustified.  In both cases they were confusing and difficult to understand, somewhat rambling and unhelpful, even though technically they may have covered, in some fashion, each element of the offences.  However, the jury was entitled to greater assistance than it received on this occasion.  It is not necessary to decide, standing alone, whether the directions justify a re‑trial.  There are other and more serious difficulties with the summing‑up which require a re‑trial.

Ground 9 - Functions of judge and jury

This ground complains that the learned trial judge failed to direct the jury as to the respective functions of judge and jury in the trial process.  No such direction was given, and it is obviously desirable that it should be.  The omission will not necessarily be fatal if all other directions are adequately and properly given.  However, in this case, such a failure merely aggravated the inadequacies revealed by other grounds of the appeal, particularly Grounds 3, 4 and 7.

Conclusion

In my opinion the appeal should be allowed, the conviction set aside and a direction given for the re‑trial of the appellant.

Perry J

I agree that the appeal should be allowed and that a re‑trial be ordered for the reasons given by Bleby J.

Williams J

I agree.