R v Heness

Case [2009] SASC 243

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HENESS

[2009] SASC 243

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Kelly)

19 August 2009

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED

Appellant acquitted of two counts of rape, but convicted of two counts of unlawful sexual intercourse charged as alternatives - whether direction given by Judge in relation to use by the jury of a finding that the appellant fled the scene erroneous - whether direction given by Judge in relation to the use by the jury of a finding that accused untruthful in evidence or in interview with police erroneous - whether Judge erred in failing to give a 'circumstantial evidence' direction, a direction on how the jury could use expert forensic evidence, or a direction to the jury that they could use a rejection of the evidence of the complainant in relation to counts on which they acquitted the appellant to assess the complainant's evidence on other counts.

HELD: direction given by Judge in relation to use which could be made of flight not erroneous - direction given in relation to use of a finding that the appellant was untruthful to police or in evidence not erroneous - Judge not in error in failing to give directions sought.

CRIMINAL LAW - EVIDENCE - COMMENT ON FAILURE TO GIVE EVIDENCE - BY JUDGE

CRIMINAL LAW - EVIDENCE - COMMENT ON FAILURE TO GIVE EVIDENCE - BY PROSECUTION

Appellant denied version of events complainant gave in evidence and gave evidence that complainant had attempted to blackmail the appellant by threatening to make false allegations of sexual impropriety against him - appellant participated in police interview after arrest but did not mention complainant's threats - prosecutor cross-examined appellant as to why he did not tell the police when interviewed after his arrest about the complainant's threats - appellant gave evidence that he was in a state of shock after his arrest - prosecutor made the point to the jury in closing that the appellant did not tell the police about the complainant's threats - in his summing up, the Judge referred to the failure of the accused to tell the police about the threats made by the complainant - whether comments of prosecutor and Judge infringed appellant's right to remain silent when questioned by the police.

HELD: Judge erred in failing to remind the jury about the appellant's state of shock when interviewed by police, that the appellant was under no obligation to speak to the police, and that no inference adverse to the appellant should be drawn on the basis that he first raised the threats at trial - comments of prosecutor infringed appellant's right to remain silent when questioned by police - effect of errors minor - jury would inevitably have reached the same verdict even if the…

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R v Heness [2009] SASC 243
Case
[2009] SASC 243
Decision Date

CaseChat Overview and Summary

In the case of R v Heness, the appellant was acquitted of two counts of rape but convicted of two counts of unlawful sexual intercourse charged as alternatives. The appellant challenged various aspects of the trial judge's directions to the jury and argued that certain comments made by the prosecutor and the trial judge infringed his right to remain silent when questioned by the police. The primary focus of the appeal was whether the trial judge erred in his directions to the jury concerning the use of findings that the appellant fled the scene, was untruthful, or failed to give evidence about certain matters. Additionally, the appellant argued that the prosecutor's comments and the trial judge's direction infringed his right to remain silent.

The court examined whether the trial judge's directions to the jury were erroneous and if there was a substantial miscarriage of justice due to the alleged errors. The court held that the trial judge's directions concerning the use of findings that the appellant fled the scene or was untruthful were not erroneous. Furthermore, the trial judge was not in error for not giving additional directions to the jury regarding the use of circumstantial evidence, expert forensic evidence, or the rejection of the complainant's evidence in relation to counts on which the appellant was acquitted. The court also found that the prosecutor's comments and the trial judge's direction concerning the appellant's failure to tell the police about the complainant's threats did infringe the appellant's right to remain silent. However, the court determined that the errors were minor and did not result in a substantial miscarriage of justice, as the jury would have inevitably reached the same verdict even if the errors had not been made. Therefore, the appeal was dismissed.

In conclusion, the court held that the trial judge's directions to the jury were not erroneous, and any infringement of the appellant's right to remain silent by the prosecutor and the trial judge did not result in a substantial miscarriage of justice. The appeal against the conviction was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Finally, there is a complaint about the direction that the Judge gave to the jury about how they might use a conclusion on their part that Mr Heness had told lies to the police or in his evidence.Background Both Ms R and Mr Heness gave evidence at the trial. The accounts given by Mr Heness and Ms R of the events in question differ greatly. I begin with the evidence of Ms R. Ms R was 15 years of age at the time of the alleged offences. She was still attending high school. Ms R worked part time in a restaurant in a country town about 130 km from Adelaide. Mr Heness was the partner of the owner of the restaurant (“Ms K”) who lived in a house not far from the restaurant. Mr Heness had travelled from Sydney to see Ms K, and was staying with Ms K at her house. During one of her shifts at the restaurant, Ms R was asked by either Mr Heness or Ms K to clean the house. She agreed to do so. Ms R rode to the house on her bicycle after school on the day in question. She left her bicycle in the front yard of the house and rang the doorbell. Ms R gave evidence that Mr Heness answered the door, and led her into the lounge room, where Ms K was watching television. Ms K asked her if she would like something to eat, and if so, invited her to help herself to the food which was cooking on the stove in the kitchen, which was adjacent to the lounge room. Ms R noticed that sitting on the kitchen bench were two wine glasses, each of which was half-filled with red wine and covered with cling wrap, and a wine bottle, half-filled with red wine. Ms R tended to the food on the stove. Before the food had finished cooking, Mr Heness and Ms K left the house to go to the restaurant. Ms R ate the food and started to mop the lounge room. Shortly after Ms R started to clean the house, Mr Heness returned to the house by himself. He gave evidence that he left the restaurant approximately half an hour after he arrived there because, when he went to the restaurant, he began to set up the bar but other staff soon arrived, and his help was no longer needed. After arriving back at the house, Mr Heness showed Ms R the rest of the house. He told her that he wanted her to wash all of the windowsills. Mr Heness left Ms R, and then returned shortly after she had started to clean the windowsills. He was holding two glasses of wine. Mr Heness gave one of the glasses to Ms R and encouraged her to drink the wine. Not wanting to be rude to her employer’s partner, she took one of the glasses and drank some of the wine. Mr Heness also drank wine from his glass. Ms R continued to clean the house, taking the wine with her as she moved between the rooms. She had a few sips of the wine as she did this. She had not drunk any wine before, and while she was mopping the floor of one of the rooms, she began to feel sick. She left the room she was cleaning to go to the bathroom. She vomited in the toilet. She apologised to Mr Heness, who was standing at the door to the toilet. Mr Heness dabbed her mouth with a handtowel to clean the vomit from her face. She felt uncomfortable about Mr Heness being so close to her.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In all the circumstances I am satisfied that the error could not have affected the verdict.Conclusion For those reasons I would grant permission to appeal on grounds 3 and 4, but would dismiss the appeal against conviction BLEBY J: I agree with the orders proposed by the Chief Justice for the reasons that he gives. I merely add some remarks of my own in relation to Grounds 7, 8 and 9 relating to the accused’s right to silence and the complaint about the direction concerning the use that could be made of the appellant’s lack of truthfulness to the police and to the Court, if that is what the jury so found. When interviewed by the police the appellant did not exercise his right to silence. He chose to answer questions about his activities and movements in the preceding few hours. He denied any suggestion of sexual contact with Ms R. When asked by the police if he wished to add anything to what he had said, he said that he did not. The right to silence does not mean that if the accused does answer questions he forfeits the right to refuse to answer some questions or that he is then obliged to tell everything he knows. However, it does mean that he is not immune from attack on what are suggested to be his reasons for the selective exercise of the right to silence. In his evidence the appellant’s explanation for his failure to mention to the police any suggestion that Ms R had, in effect, attempted to blackmail him, was that he was in a state of shock following his arrest. The jury had seen the video recording of the record of interview. They were able to observe his body language and the way he answered questions, and were able to form their own view as to whether he appeared to be in a state of shock. The prosecutor, as she was entitled to, challenged that explanation by suggesting that his story, along with other aspects of his evidence, was a fabrication. The jury were aware from the record of interview itself that the accused had been told that he was not obliged to make any statement to the police. The Judge had emphasised the accused’s right to silence in relation to the giving of his evidence in Court. However, I agree that in the circumstances it would have been desirable that the jury be reminded by the Judge of the accused’s right to silence when questioned by the police. But in the circumstances his exercise of the right to silence was not being criticized. What was being attacked was his explanation for exercising it. I do not consider that any additional direction, if given, would have made any difference. Without a proper Edwards direction[1] the jury should have been reminded that the telling of that lie for the first time at the trial, if they concluded that it was a lie, should not be the basis of any inference as to guilt. However, it was not the Crown case that the lie was told out of a consciousness of guilt. The attack on this aspect of the appellant’s credit was part of a concerted attack on the whole of his explanation as constituting a series of lies which should be rejected in favour of the evidence of Ms R. That included an attack on his explanation for not telling the police about the attempted blackmail by Ms R.[1] Edwards v The Queen (1993) 178 CLR 193.

Ratio Decidendi

Legal Principle Established

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