R v Huang - [2019] SASCFC 38

Supreme Court of South Australia
(Court of Criminal Appeal: Criminal)
R v HUANG
[2019] SASCFC 38
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Auxiliary Justice Rice)
12 April 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
The appellant, along with two co-accused, was tried by a jury in the District Court for aggravated kidnapping (count one) and aggravated causing harm with intent to cause harm (count two) pursuant to sections 24 and 39 of the Criminal Law Consolidation Act 1935 (SA). The appellant was convicted of both offences by a majority verdict, while his two co-accused were acquitted on both counts.
At trial, the trial Judge refused to allow the appellant to tender certain evidence to rebut the complainant’s account of how the injuries were inflicted.
Whether the primary Judge erred in refusing to admit evidence of the ‘crime scene recreation’ sought to be tendered by the appellant – whether the primary Judge erred in refusing to admit evidence of measurements of a collated screw belt and photographs of the demonstration sought to be tendered by the appellant.
Held, per Rice AJ (Kourakis CJ and Peek J agreeing), allowing the appeal:
1. The trial Judge erred in refusing to admit the evidence of the crime scene recreation.
2. The trial Judge erred in refusing to admit the evidence of measurements of a collated screw belt.
3. The appellant’s convictions are set aside and the matter is to be remitted to the District Court for a new trial.
Criminal Law Consolidation Act 1935 (SA) s 24, s 39, referred to.
Evans v R (2007) 235 CLR 521; R v Ireland (No 1) [1970] SASR 416; R v Ireland (No 2) [1971] SASR 6; R v Trimboli (1979) 21 SASR 577; R v Simic (1980) 144 CLR 319; Melbourne v The Queen (1988-99) 198 CLR 1; R v P, S [2016] SASCFC 97; Perara-Cathcart v The Queen (2017) 260 CLR 595, considered.

R v HUANG
[2019] SASCFC 38
Court of Criminal Appeal: Kourakis CJ, Peek J and Rice AJ

KOURAKIS CJ: I would allow the appeal. I would order a new trial for the reasons given by Rice AJ.
PEEK J: I allow the appeal. I agree with the orders proposed by Rice AJ and with his reasons.
RICE AJ:
Introduction
Appeals against convictions.
The appellant Wenxiong Huang, was convicted of two offences: aggravated kidnapping (count one) and aggravated causing harm with intent to cause harm (count two). At trial in the District Court he was jointly charged with those offences with two others, Hui Zhang (‘Zhang’) and Ren Li Lin (‘Lin’). Zhang and Lin were acquitted by the jury.
The complainant for both counts was Haoxuan Li (‘the complainant’).
Grounds of appeal and applications for permission to appeal
Although permission to appeal was granted upon a number of grounds, the appellant only pursued two of those grounds, grounds 4 and 5. (It is proposed to maintain the original numbering of the grounds).
Ground 4 refers to the refusal by the trial Judge to admit evidence of what was referred to as a ‘crime scene recreation’. For reasons that will be explained, the gravamen of the complaint is that the crime scene recreation or reconstruction would have supported the argument advanced on behalf of the appellant that a person would not be able to cause the injuries to the complainant’s legs in the manner described by the complainant. In essence, it was submitted it was impossible to cause those injuries in the confined space in the manner alleged.
Ground 5 is an allied but different ground. This ground refers to a refusal by the trial Judge to admit evidence of measurements and photographs of marks made by what was referred to as a collated screw belt. The complainant said in evidence that he was ‘whipped’ using such a belt and the excluded evidence was designed to show that the injuries he received to his arm could not have involved whipping the arm with such a belt.
There are four additional grounds upon which permission is sought (again it is proposed to maintain the numbering in the Amended Grounds of Appeal).
Ground 10 alleges that the trial Judge erred by failing to give any reasons for his rulings excluding the evidence the subject of grounds 4 and 5.
Ground 11 alleges that the trial Judge erred in refusing to allow evidence that two witnesses, Rui Yang and his partner Lui Che, were living in Australia on 457 visas. That evidence was said to be relevant to demonstrate that Rui Yang, who was not a witness at trial, had an understanding of the 457-visa process and that fact had circumstantial relevance to the defence case.
Grounds 12 and 13 are interrelated. Ground 12 complains of the inadequacy of the trial Judge’s directions following evidence of positive good character heard on behalf of the appellant. Ground 13 complains about the failure of the trial Judge to give a propensity warning after the appellant also gave evidence of his bad character.
The appeal and applications for permission to appeal were heard together and submissions were received both as to permission and the substantive merits of the proposed grounds.
The prosecution and defence cases in short
The prosecution case
The prosecution case was that the appellant, Zhang and Lin, together with an uncharged man referred to as ‘Afu’, pursuant to a joint enterprise, detained and injured the complainant. The alleged motive was to endeavour to extract information from the complainant as to the whereabouts of Rui Yang, the complainant’s employer. Prior to the events of the evening of 20 May 2016, the appellant believed that he was owed $2 million by Rui Yang and wanted his money but was unable to locate Rui Yang.
The prosecution case was that for a period of some hours the complainant was suspended in a harness from the tine of a forklift and struck a large number of times, mainly on the backs of his legs, with a pole and length of wood. The complainant did not provide the appellant with the information he wanted. Another witness, Tian Li, brought there later at the appellant’s request, called the police and they quickly attended at the warehouse where the events occurred. Although the complainant was not in a harness when the police arrived, he was present and displayed extensive bruising to the backs of his legs. The appellant admitted hitting or slapping the complainant because the complainant’s employer owed him $2 million. He denied anything further.
The defence case
Apart from giving evidence and denying the offences, the appellant’s case at trial was that he had been ‘set up’ by the complainant who was motivated to lie because of his involvement with Rui Yang in a visa ‘scam’ that the appellant had threatened to expose.
On the bare facts, the case put that the appellant had been set up was not without its difficulties. As noted, the complainant bore significant injuries to his legs when the police first attended and had the witness Tian Li not attended at the appellant’s request, there was no indication that the police were going to be called to discover and investigate the ‘set up’. This is discussed in greater detail below.
Based upon the events as described by the complainant, the appellant also argued at trial that the complainant was not to be believed because the position of the injuries to the backs of his legs could not have been inflicted in the manner described. More particularly, it was argued that there was simply insufficient room adjacent to the forklift where the complainant was said to be suspended, for the pole or length of timber to be wielded so as to strike the backs of his legs with sufficient force to cause the observed injuries.
It is to this last point that the scene reconstruction was said to be important. Examination of that point will require a detailed consideration of the facts.
Facts in more detail relative to grounds four and five
To understand the submissions in relation to these grounds, it is necessary to outline the events leading up to the evening of 20 May 2016.
Some background
The appellant had a business as a shop-fitter. The business was called Sunshine Sky and had relocated to West Thebarton Road, Thebarton in early 2015. Lin commenced working for the appellant in the second half of 2015 and Afu in February 2016.
The appellant said in evidence that he was contracted by Rui Yang in about February or March 2015 to fit out a number of stores for him. Eventually the appellant began to store stock for Rui Yang at the Sunshine Sky premises at Thebarton.
The appellant said that he first met the complainant in April 2015, in one of Rui Yang’s stores. The appellant said he believed the complainant to be the manager. The appellant gave evidence that the complainant visited the West Thebarton Road address quite often and that the appellant had given the complainant keys to the premises, which the complainant still had as at May 2016. The complainant denied having the keys at that time.
The complainant met Tian Li (known as Joyce) in 2015 when they worked together in one of Rui Yang’s shops. As at May 2016 they were friends but have since married.
Zhang said that she first met the appellant around April or May 2016 when she was looking for someone to perform renovations. Zhang went to the appellant’s office to meet with him and they spoke by telephone.
Appellant being owed money by Rui Yang
The evidence in support of the appellant being owed money by Rui Yang, or at least a belief by him that he was owed money, comes from a number of sources.
A number of documents showed that, at the time Rui Yang disappeared, the appellant believed that Rui Yang owed him $2 million.
The appellant instructed a lawyer to locate Rui Yang.
It was the prosecution case that when the police attended the Thebarton address on the night of 20 May 2016, the appellant admitted that he had hit the complainant with a brush on the legs and body because his (the complainant’s) boss owed him $2 million.
The appellant said in evidence that in February or March 2016 he contracted with Rui Yang for the fit-out of a number of stores and that the appellant commenced the work. The appellant also said that Rui Yang stopped making payments and the appellant was left significantly out of pocket. Rui Yang told the appellant that if the appellant deposited $100,000 in Rui Yang’s account, then ultimately Rui Yang would repay $200,000.
On 24 April 2016, two days after the appellant gave Rui Yang $100,000, the appellant discovered that Rui Yang had gone missing. The appellant mentioned this to his staff and Tian Li said that Rui Yang could just have gone on holidays. It was in this context that the appellant instructed solicitors to locate Rui Yang. Efforts to find Rui Yang included the appellant going with Zhang and Lin by car to Port Lincoln or Kimba in an endeavour to find him.
The appellant also came to believe that Rui Yang, and two people, Dongming Dong and Amy Zhang were involved in a visa scheme/scam together.
The appellant approached Dongming Dong and Amy Zhang and said that he would make them responsible for the money he had lost to Rui Yang. The appellant learnt through them that the complainant had returned to China one day before Rui Yang disappeared. The appellant visited Amy Zhang and Dongming Dong frequently while Rui Yang was missing and he received money from them.
As will become relevant to proposed grounds 12 and 13, the appellant agreed that Amy Zhang and Dongming Dong did not owe him any money but he was prepared to ask them for money by threatening to report them to the Department of Immigration.
Telephone contact with the complainant on 19 May 2016
The appellant said that on the evening of 19 May 2016 he found a computer within Rui Yang’s stock at his property. The appellant believed that the complainant might know the password. The appellant sent the complainant a message, they spoke on the telephone and agreed to meet at Dumpling Dumplings at 4.00pm on 20 May 2016. The appellant denied that he had decided by 19 May 2016 that he needed to obtain information from the complainant.
Tian Li said that on Friday 20 May 2016, she was expecting to work at the Sunshine Sky office until 5.00pm or 6.00pm. However, at about 2.00pm the appellant said she could leave early. This she did at about 3.00pm or 4.00pm.
Meeting between the complainant, the appellant and Afu at Dumpling Dumplings at the Brickworks Shopping Centre
The complainant gave evidence that on 20 May 2016, he was helping at the restaurant Dumpling Dumplings owned by his friends Amy Zhang and Dongming Dong. The appellant and Afu attended at the restaurant and asked the complainant for assistance with accessing a computer. The complainant agreed to help.
In his evidence the appellant said it did not cross his mind to take the laptop to Dumpling Dumplings to enable the complainant to have a look at it there.
The complainant voluntarily left Dumpling Dumplings with the appellant and Afu. The appellant drove to his office which was located nearby.
On the prosecution case, the aggravated kidnapping commenced at about that point. The complainant was not permitted to leave, was assaulted and was pressed a number of times to disclose the whereabouts of Rui Yang. The complainant said he did not know where Rui Yang was and two males tied his hands and feet using zip or cable ties and tape. Numerous endeavours were made to access the complainant’s mobile telephone and have him disclose the whereabouts of Rui Yang.
Zhang and Lin were involved in the questioning of the complainant.
On the prosecution case the appellant, Afu and Lin carried the complainant from the office area to the adjacent warehouse. Once inside the warehouse the complainant was placed in a type of safety harness and suspended from the tine of a forklift. He was then struck numerous times using a pole and length of timber. He was struck to his hands, arm and legs. (This is examined in more detail below).
Relevant to Ground 5 the complainant said he was whipped with a strip of screws to the upper arm. Photographs taken on 21 May 2016 showing injuries to complainant, particularly the rear of his legs
The photographs contained in Exhibit P19, taken in the early hours of 21 May 2016, showed extensive injuries to the rear of the complainant’s legs, more particularly to the upper rear of the right leg.
Those injuries were consistent with having been caused by a pole or length of timber or the like. It is noteworthy that were no injuries to the front or side of the complainant’s legs when viewed front-on.
The photographs, taken on 23 May 2016, show injuries to a number of areas of the complainant’s body, particularly his neck, the inner and outer aspect of his left arm, right hand and the rear of his legs. Again, the rear of the upper right leg shows the greatest injury and bruising. The injuries to the legs did not go up beyond the upper leg, perhaps consistent with a safety harness (supporting his weight) preventing injury to the buttocks.
Complainant’s injuries as observed at the Royal Adelaide Hospital
The complainant arrived at the Royal Adelaide Hospital after midnight on 21 May 2016. Certain injuries were observed by Dr Bautz, Head of Surgical Trauma:
·superficial burns on the right side of his neck and face (consistent with hot water burns);
·multiple pinprick injuries to the back, (consistent with having been caused by Exhibit P16, a length of collated screws);
·a line or series of pinprick injuries to the right arm (see photographs Exhibits P19 and D19) (also consistent with having been caused by Exhibit P16).
Dr Bautz considered that this was a dynamic injury, meaning the complainant was probably not standing still and the instrument applying the injury was moving as well.
Relevant to Ground 5, Dr Bautz considered it ‘exceedingly unlikely’ the pinprick injuries to the right arm could have been inflicted individually.
Abrasions or injuries under his armpits (consistent with having been suspended).
Fairly significant bruising to the right hand areas.
Numerous significant contusions of the back of the thighs, consistent with having been hit with a bat, pole or belt, with significant force. There must have been in excess of ten blows to the right leg and probably about four to the left leg. There was probably some damage to the muscle. Dr Bautz opined that the injuries to the left and right legs were probably caused at separate times. The position of the injuries tended to indicate that the complainant was in a similar position each time he was struck.
There were no injuries observed to the complainant’s head, pelvis, abdomen, spine or feet.
Complainant’s evidence about the manner in which the injuries to his legs were inflicted
As mentioned, the appellant, Afu and the complainant left the restaurant Dumpling Dumplings and travelled together to the appellant’s office on West Thebarton Road.
Not long after arriving there, the appellant and Afu questioned the complainant as to the whereabouts of Rui Yang (his boss). The complainant’s hands and feet were tied with zip (cable) ties and tape. The complainant did not co-operate and was carried from the office to the garage.
The complainant described how the appellant and Afu tied him to a forklift with ropes similar to a seatbelt type. The complainant said it was the same as the safety harness found at the scene. He had his back to the warehouse door.
He was hanging from one tine of the forklift about 50 cms off the ground. Using a yellow pole the appellant struck him many times to his hands, arm and legs. The pole was not measured but the pole identified in the photographs as being the pole that was used appeared to be over a metre in length.
The complainant said the appellant was using two hands because it was a heavy pole and swinging it in a broadly horizontal arc.
The appellant was said to be to the right of the forklift as shown in P3, photograph 3, in other words, to the complainants left. The complainant marked with the letter ‘H’ on that photograph the position of the appellant when striking the complainant with the pole.
The complainant said he was lifted up using the forklift on three different occasions and one occasion a length of wood was used. He was hit to his hands, upper part of his legs and his thigh. He was hit more than once. The complainant said the wooden pole and the metal pole caused the injuries to the back of the legs.
The injuries to the arms were from the pole bashing and the nails/screw belt.
The complainant said that at one stage one leg was vertical and one horizontal. He said he was moving around and could swing from left to right. However, when he was beaten he said he did not have the opportunity to move his legs out of the way. There was no chance for him to move his legs because there was a very narrow space, although his legs were not tied together when he was on the forklift.
The complainant also said he was hit to the sole of his foot; he was hit to his foot in the same way that he was hit to the back of the legs using the timber.
Relevant evidence from the crime scene
The crime scene was examined by Brevet Sergeant Marsh. Brevet Sergeant Marsh took a series of photographs of the scene but he did not measure the dimensions of the warehouse and office areas, the distance between various items in them, nor the size of any of the equipment located in the warehouse.

The photos in Exhibit P3 (the crime scene photos) provide a reasonably comprehensive picture of the scene when the police arrived at about 11.00 pm following the telephone call by Tian Li to them.
Various exhibits were found at the scene that were consistent with the complainant’s allegations but, at the same time, those exhibits were items that formed part of the appellant’s trade, equipment and materials.
It should be noted that the area where the complainant was suspended and struck is very confined. The complainant had his back to the supporting frame of the forklift; that distance was not measured but the photographs suggest it is a short distance. There was an MDF timber stack close to the right front of the forklift. The ability of a person to swing and strike the complainant in the manner he alleged using the yellow pole and length of timber is quite restricted. It is yet more restricted to strike the complainant to the rear of his upper right leg.
Sergeant Marsh did not lay claim to being able to ascertain dimensions from photographs. Sergeant Marsh agreed if you were able to measure the size of objects depicted in the photograph you could estimate the length of objects, whilst acknowledging that there would be some variation caused by perspective. The officer conceded ‘it’s a possibility’ that if one could calculate the distance between objects depicted in the photograph, then one could calculate the distance between objects.
Sergeant Marsh was reduced to estimating distances. He said the distance between the bottom of the red tray and the yellow object in the photograph on page 9 of Exhibit P3 would probably be about a metre and therefore the distance between the forklift and the stack of MDF would be about a metre.
Further, when asked whether it was fair to say that the ‘clearance area’ with which to swing something between the edge of the forklift and the MDF stack was about a metre, he said ‘I wouldn’t like to say it was less than a metre’.
Was the appellant ‘set up’?
Quite apart from the challenge to the complainant’s credibility based upon the manner it is said his injuries were inflicted, it was also suggested he had a motive to lie.
The complainant denied being motivated to frame the appellant in order to get Rui Yang ‘off the hook’ for monies Rui Yang owed the appellant and to get Amy Zhang and Dongming Dong ‘off the hook’ because the appellant was chasing them for the money owed by Rui Yang.
Further, in an endeavour to explain the injuries sustained by the complainant, a somewhat fanciful and remarkable series of propositions were put to him.
It needs to be remembered that it was both the prosecution and defence cases that in the late afternoon of Friday 20 May 2016 the appellant and Afu went to Dumpling Dumplings where the complainant was working as a kitchen hand. The appellant said there was an arrangement to that effect, but the complainant was unsure about that. The complainant knew the appellant and Afu.
It was also common ground that the complainant, appellant and Afu left together in the same car and travelled the short distance to the appellant’s business premises. There was no evidence to suggest that the complainant knew in advance that he would be leaving with them, let alone go to the appellant’s business premises.
Against that background, the following questions were put to the complainant about the short period of time before they left the Brickworks Shopping Centre:
QI suggest that you went out to the bin area and it was there that you were hit to the back of the legs, not at the accused’s workshop but there at the Brickworks.
AThat is impossible, why are you telling lies?
QI suggest that you had an accomplice at the back where the bins were and you went out and you got hit these before you ever left with Wenxiong Huang.
AI repeat again, that is impossible.
The complainant had also denied going to the appellant’s business premises on the night of 19 May 2016, denied planting weapons there in advance and denied making up a story involving construction items he had seen the appellant using in the past.
Finally, on this topic, the complainant did not know that Tian Li was going to be summoned by the appellant to go to the warehouse that evening, let alone that she would ring the police to discover the ‘set up’.
Although part of the case being put by the appellant strains credulity, that is not the end of the matter. Even if the jury was to reject the appellant’s denials beyond reasonable doubt that does not mean that he is to be found guilty. It then becomes a question of whether the prosecution is sufficiently credible and reliable to enable the jury to be convicted of guilt beyond reasonable doubt. Ground 4 (and Ground 5) allege the jury was deprived of relevant evidence to make a proper and complete assessment about credibility and reliability.
Proposed evidence relative to Ground 4
The material sought to be led falls into three categories:
1.   evidence of the spatial configuration of the actual crime scene;
2.   a report of Mr Graham England of Ramsey Investigation Services and;
3.   a reconstruction of the crime scene.
The evidence of the spatial configuration of the actual crime scene comprised photographs and oral evidence explaining how measurements of the relative positions of, and area between, objects were estimated. Some of the physical items that are seen in the crime scene photographs remained in the possession of the appellant and were able to be utilised for this purpose. Those items include the forklift and a small red tray table that can be seen in the crime scene photographs that were used as the basis for some reasonably precise measurements from which there was an extrapolation of other measurements.
The oral evidence of the spatial configuration of the crime scene was to be given by a law clerk, Mr Mortazavi. He did not claim to have any relevant expertise. He estimated the distance between the objects shown in the police photographs. The evidence he proposed to give explaining his methodology was contained in a seven page document headed ‘Recreation Crime Scene’. The document included reproductions of some of the police photographs. On some of those photographs Mr Mortazavi had digitally superimposed straight lines between certain points and his estimations of the distances between those points. Mr Mortazavi’s methodology was to measure the actual size of a red tray table shown in a police photograph in order to establish a scale. The scale was then used to estimate distances between objects shown in the same photograph. Importantly, the scale was applied only to objects appearing along a straight line extrapolated from the measured dimension of the red tray table. Mr Mortazavi’s measurement of the red tray table and his measurement of the distance along a straight line in the photograph involved no special expertise. The jurors might have made the same measurements themselves if the red tray table were received as an exhibit. In this respect Mr Mortazavi’s evidence would be received, as is commonly the case, for the convenience of the jury and not as an expert opinion. However, Mr Mortazavi’s premise that, within the same photograph, the scale determined from the red tray table could be applied to measure distances along the extrapolated straight line was a matter of expert opinion.
For that expert opinion the defence relied on the proposed evidence of Mr England. A Curriculum Vitae of Mr England dated June 2016 was provided to the Court. It shows that he is very well qualified to formulate and express any opinion not permitted from Mr Mortazavi. Although Mr England’s main area of work is road accident reconstruction, there is no reason to believe some of the same principles would not have application to the estimation of distances from the crime scene photographs in this case. Mr England’s proposed evidence was provided to the Court in the form of a report. Paragraph 2.3 of the report stated:
I accept that the reasoning Mr Mortazavi used to recreate the scene from the photos in exhibit P3 was logically valid and that it allowed only a small margin for error. I agree with the methodology used and conclusions reached from my own assessment of the photos and measurements. The methodology relies on common sense and logic from known proportions in the photos allowing for a substantially accurate recreation. The recreated scene was in my opinion larger than that existing at the time P3 was photographed, due to Mr Mortazavi allowing for an error margin. I might have allowed a smaller error margin but can comfortably adopt the recreation as a substantially accurate one.
It was not suggested that Mr England’s concurrence with Mr Mortazavi’s methodology did not extend to the straight line premise of the latter’s estimations.
After estimating the distances between the red tray table and other objects shown in the crime scene photos, Mr Mortazavi arranged the same and similar objects as those shown in the crime scene photos to reconstruct the actual crime scene. However, in doing so, Mr Mortazavi also relied on the apparent spatial relationship between those objects shown in the photographs. To the extent that that process involved a degree of expertise in allowing for the distorted perspective of a photograph, the reconstructed crime scene was accepted by Mr England to be substantially correct.
As to the third category of evidence, the reconstructed crime scene, it should be noted that the reconstruction was not at the warehouse where the offences occurred. The trial photographs, taken as they were from different angles, were used by Mr Mortazavi to establish the general positions of objects.
For reasons explained by Mr Mortazavi, and accepted by Mr England, the reconstructed crime scene is approximately 1.5 centimetres larger than what the actual crime scene would have been. The appellant contended that exactness should not be determinative of admissibility provided the margin for error is not so great as to create an unreliable or misleading recreation. Provided the estimations and reconstruction are substantially accurate, the utility of the evidence is a matter of weight for the jury. At the very least a full voir dire should have been undertaken to test admissibility, just as may happen when the prosecution proposes the admission of contentious evidence of this or a similar type.
The next step based upon Mr England’s report
As noted, a portion of Mr England’s report said that Mr Mortazavi’s work produced a substantially accurate reconstruction. Based upon that work, Mr England conducted experiments showing volunteers suspended from one of the forks of the forklift using the safety harness alleged to have been worn by the victim. The volunteers were about the same height as the victim.
The experiment was to test the ability of a person to touch the ground if suspended and to ascertain what marks were occasioned to the person wearing the harness. Photographs of these actions and marks were taken.
In addition to that, Mr England used a drone to take photographs from overhead and, using a particular programme (which would have required expertise that he is said to have), produced an overhead view and scaled plan of the reconstructed crime scene.
Mr England said the reconstruction was reasonably acceptable as to the positions of key objects and, although those positions were within a 5% tolerance, the distances between the objects erred on the side of being greater rather than smaller. Further and more importantly, the position of the suspended person was said to be accurate.
Mr England’s report considers whether a person suspended from a fork of the forklift (at two different positions of the forklift) would have toes and/or feet touching or on the ground.
Having considered that part of the report, in my view it is subject to too many variables to be relevant for the purposes of this ground. For example, the height of the persons, the manner in which the harness was positioned at the top of the legs/crutch, the weight of the person (more stretching of the harness) and the height of the forklift. In any event, this aspect of the reconstruction has not been separately advanced in submissions.
Relevantly and more importantly, Mr England’s report deals with what was referred to as ‘swing room’, that is the amount of room available to strike a person suspended from a fork of the forklift. Paragraph 3.1.11 is as follows:
QCan you measure distances for weapon ‘swing room’ (assuming a metallic paint roller extension) from forklift to thigh, assuming a height of 175 cm and of slim/normal build?
AWhilst my two volunteers were attached to the left side fork by the harness I obtained measurements of the distance between the frame of the forklift. The ‘swing room’ depends on the position of the strap connected to the harness over the fork on the forklift. The closer the strap is positioned to the frame of the forklift the less the ‘swing room’. At a position about 30 centimetres from the front end of the fork, I measured a distance of approximately 72 centimetres ‘swing room’ from the frame to the person suspended in the harness. From a distance of about 17 centimetres from the front end of the fork, I measured a distance of approximately 85 centimetres ‘swing room’.
It should be remembered that the complainant said he was suspended from the left fork and that at all times he had his back to the forklift frame. Depending upon the position on the fork the ‘swing room’ was between 72 cm and 85 cm or, using imperial measurements, 2 feet 5 inches to 2 feet 10 inches.
Admissibility of the proposed evidence
At trial defence counsel applied for a ‘view’ of the reconstructed crime scene and for the admission of the ‘reconstruction evidence’ and ‘demonstration evidence’.
The proposed evidence does not fit easily into the accepted categories; it seems to be a hybrid. The majority of the decided cases are in the criminal jurisdiction, more often relating to material proposed to be tendered by the prosecution.
Speaking generally, a view involves the inspection by the jury (or judge) of the place where the prosecution alleges the crime was committed. Occasionally a view is taken of an object which cannot be brought into court but about which witnesses will testify. That was not this case. Here the crime was committed in separate premises. Some of the same objects that were part of the crime scene were incorporated into the reconstructed crime scene at the premises, but that in itself is not sufficient to warrant a view, or receipt of the evidence of, the reconstructed crime scene.
Heydon J explained the nature and purpose of a view in Evans v R:[1]
At common law a ‘view’ is an out-of-court examination of land, or of chattels too large to be taken into court and tendered as exhibits. The purpose of a view is to assist the trier of fact, by enabling an examination of the dimensions, appearance and relative positions of features of the things viewed, to ‘understand and weigh the oral evidence’. A view was distinguished from an out-of-court demonstration or reproduction of a past event which had been described by witnesses in court.
[1] Evans v R (2007) 235 CLR 521 at [190].
As noted there, the purpose is to help ‘understand and weigh the oral evidence’. So understood, the recreation here was a ‘view’ but the proposed evidence related to a separate location.
Heydon J also said this in Evans v R: [2]
The common law, then, draws a distinction between views, demonstrations and reconstructions:
It seems to be generally accepted that a view is an inspection of a scene or object without seeing it in operation or witnesses providing further explanation of the events. A demonstration is a view incorporating an explanation by a witness of the incident in question or a demonstration of the machine or other object in operation. A reconstruction goes further and is an attempt to recreate the incident (whether in full or in part) with witnesses and testimony.
(citation omitted)
[2] (2007) 235 CLR 521 at [193].
Perhaps the most useful authority for the discussion of the criterion for admissibility is R v Ireland (No.2).[3]This appeal arose following a conviction for murder at a retrial. The appellant had previously been convicted of murder, successfully appealed the conviction on the ground of the wrongful admission of certain evidence and a retrial was ordered. The Crown unsuccessfully appealed to the High Court.[4] On the retrial the prosecution did not adduce the evidence held to be inadmissible in R v Ireland (No. 1).
[3] [1971] SASR 6.
[4] R v Ireland (No 1) (1970) 126 CLR 321.
Ireland was prosecuted for the stabbing death of the licensee of the Exeter Hotel in Rundle Street, Adelaide. The deceased was lying on her back in the kitchen and there was an area of dried blood near her right side. The police discovered some bloodstained footprints made by a man’s left shoe. Those prints came from a shoe belonging to the appellant.
The footprints were on either side of the pool of dried blood ‘… in such positions that it was contended that there must have been another print in between two of them, obliterated by the pool of blood and therefore made before it collected.’[5]
[5] R v Ireland (No 1) [1970] SASR 416 at 419.
The appellant made a statement to the police (in the presence of a solicitor) that he had been at the hotel earlier in the night and, upon returning later, found her lying on the floor. The appellant also said that the deceased asked him to roll her over, which he then did and noticed blood on her back.
The accused denied any involvement in the murder.
Police photographs were taken of the body and the kitchen, including photographs of the shoe prints. It was noted: [6]
But none of the photographs did, or could, produce a picture of the room as a whole or of all the shoe prints together so that their relationship to each other and to the body and the pool of blood could be seen in one picture. For the purposed of producing this result, Sergeant Cocks constructed a large chart of the room showing the position in the kitchen of the shoe prints, the body, the pool of blood and the cigarette butt.
[6] R v Ireland (No 1) [1970] SASR 416 at 424.
The cigarette butt was of a type smoked by the appellant.
The chart was the subject of objection at both trials and was admitted at both. However, the High Court, in rejecting the Crown’s application for special leave, expressed the view that the chart should not have been admitted because it involved the formation and expression of an opinion which the witness, Detective Sergeant Cocks, was not shown by the evidence to have been qualified to express.
In the High Court in R v Ireland (No 1) Barwick CJ (with whom the other members of the Court agreed), after dismissing the Crown’s application for special leave, observed: [7]
Having thus rejected the submission of the applicant made in support of the application for special leave but fully argued as if on appeal, there is no need for me to deal with any of the other matters with which the Full Court dealt. However, the Court heard argument as to the admissibility of a large chart prepared by a police officer at least partly from photographs not taken by him and not in that respect from personal observation. As there is to be a new trial, I think this Court should now do no more than say that the preparation of the chart involves the formation and expression of an opinion. All witnesses who seek to offer opinions, either by oral statement or graphic representation, must be adequately qualified to do so. There is at least, in my mind, a substantial doubt as to whether the evidence produced at the trial established that the police officer who prepared the chart was so qualified to express the opinion it involves.
[7] (1970) 126 CLR 321 at 335-336.

More needs to be said about the preparation of the chart.
As was noted on the second appeal, the chart was life size and was prepared ‘…for the purpose of exhibiting to the jury in a convenient and readily assimilable manner certain items of real evidence discovered at the scene of the crime’.[8] Part of its preparation involved showing a pattern of squares done by tracing the pattern of the linoleum forming the surface of the floor on which the deceased was lying when she was found. It was not suggested then, and it is not suggested here, that that process requires the exercise of any skill or experience.
[8] R v Ireland (No 2) [1971] SASR 6 at 10.
Against that pattern various items and areas were shown.
In preparation of the chart, Detective Sergeant Cocks was aided by photographs of the body taken from various angles and various distances. By reference to the traced pattern and points of reference, the positions of objects could be fixed with ‘reasonable accuracy’. Some allowances were made ‘…for such distortions of perspective as the photographs, like all photographs, created’.[9] Mr Mortazavi adopted a similar methodology in reconstructing the crime scene. On the second appeal the Full Court held that making such allowances, to some degree, involved the formation and expression by Detective Sergeant Cocks of an opinion. However the Full Court also found that Detective Sergeant Cocks was appropriately qualified to express opinions in the preparation of the chart. Mr Mortazavi had no such expertise. But that deficiency was effectively remedied by the opinion expressed in para 2.3 of Mr England’s report.
[9] R v Ireland (No 2) [1971] SASR 6 at 11.
In R v Ireland (No 2), evidence of two experiments conducted by Detective Sergeant Cocks were also admitted. The first experiment consisted of rolling over the limp body of a woman (on the deceased’s kitchen floor) to a half revolution and then a full revolution, and measuring certain distances. The court considered that if the conditions for the experiment were ‘…sufficiently similar to the conditions in which an act or event under consideration must have been done or a occurred, an experiment carefully performed and conscientiously recorded and reported may frequently be of great assistance to the jury in its deliberations...’.[10] The second was to measure the time it took to walk, at a steady pace, between two locations which the accused said he traversed shortly after he claimed to have innocently found the deceased on the floor of a room in the hotel premises.
[10] R v Ireland (No 2) [1971] SASR 6 at 14.
The Court adopted this approach:[11]
We are disposed to take, as correctly representing the principles of the law of evidence applicable in this State to experiments of the kind deposed to, a passage from the judgment of Edwards J in Shepherd v State, which runs:-
The general rule as to the admissibility of the result of experiments is, if the evidence would tend to enlighten the jury and to enable them to more intelligently consider the issues presented and arrive at the truth, it is admissible. The experiment should be under circumstances similar to those prevailing at the time of the occurrence involved in the controversy. They need not be identical, but a reasonable or substantial similarity is sufficient. Several Courts have held that the lack of identity of circumstances affects only the weight and not the competency of the evidence provided there is a degree of similarity which will assist the jury.
(citation omitted)
[11] R v Ireland (No 2) [1971] SASR 6 at 15.
The evidence proposed to be called by the defence was necessary in this case because the crime scene itself was not preserved and because the spatial relationship of the objects in it were not measured and recorded by the police. That is not said by way of criticism as the police could not be expected to have anticipated the defence case in this respect. However, for the purpose of considering the admissibility of the proposed evidence in this case it is useful to consider what evidence might have been received if the crime scene had been preserved.
First, and most obviously, a request for a view of the actual crime scene would almost certainly have been allowed. A view would have greatly assisted the jury’s determination of the primary forensic issue which was whether Mr Li could have been struck in the way he described given the spatial relationship of the items in the crime scene.
More than that, the crime scene itself might have been admitted as an exhibit even though it could not be brought into Court. If admitted as an exhibit the jury would have been entitled to have access to it in the course of their deliberations. No doubt the jury would have been given directions as to the proper limits of their examination of the crime scene. Those limits concern the extent to which the jury could undertake experimentation with it.
If the actual crime scene had been preserved, evidence of experimentation approximating the circumstances described by Mr Li, designed to show whether it was possible to strike Mr Li in the way he described, would, at least in principle, be admissible. The results of that experimentation could have been put into evidence by the testimony of the lay or expert witnesses involved in it. The experimentation might also have been filmed and the film received as an exhibit. The experimentation might also have been undertaken in the presence of the jury at the crime scene if it had been received as an exhibit. So viewed, the experimentation would have the character of a demonstration.
There is no reason in principle why the manifest forensic advantages which the preservation of a crime scene yields should not be gained by its reconstruction where that is reasonably practicable.
Of course, there must be substantial similarity between the reconstructed and actual crime scenes. However, there is no need for them to be identical; indeed, without precision equipment, that would be almost impossible. The similarity must be sufficient to allow a meaningful evaluation of the disputed evidence.
As discussed earlier, the proposed evidence in this case possessed a ‘reasonable or substantial similarity’ to the crime scene. Suggested deficiencies could be the subject of cross-examination and it would then become a question of the weight to be given to that evidence.
It is useful to compare the prosecution’s criticism of the lack of precision in the estimations and crime scene reconstruction of Mr Mortazavi with the difficulties under which the jury would labour in the absence of that evidence. The jury would be left to make significantly less accurate estimations of the distances from the photographs alone, without any assistance on the nature of photographic perspectives and distortions. Moreover, the prosecution’s contentions are paradoxical. On the one hand, the prosecution contends that the jury can, and must, be left to evaluate the evidence on its own estimations of space and distance in the crime scene photographs. On the other, the prosecution contends that the jury cannot be allowed to compare the reconstructed crime scene with those photographs and decide for itself whether they are sufficiently similar to rely on the dimensions and spatial configuration of the latter.
The evidence was admissible
In summary, Mr Mortazavi’s methodology was clearly and transparently explained in the Recreation Crime Scene document. In so far as his calculations and reconstruction were premised on expert opinions, those opinions were set out in the proposed evidence of Mr England. The objections to Mr England’s evidence based on a lack of expertise and an encroachment on the jury’s function must be dismissed.
The proposed evidence had a clear relevance to whether the complainant’s injuries could have been sustained in the manner alleged. The position and degree of injury to the upper rear legs of the complainant are such that the person inflicting them must have had significant room to swing the pole and length of timber. In my view the evidence should have been admitted. Ground 4 is made out. This is not a case for the application of the proviso.
Ground 5 - evidence relating to the collated screw belt
This ground is similar to Ground 4. The submissions are that the trial Judge erred in refusing to allow the defence to tender evidence of measurements of a collated screw belt, identical to Exhibit P16, being placed around the upper arm and wrist of a person with a similar build to the complainant and evidence of photographs of that demonstration. The purpose was to show how a person could produce the linear injuries to the complainant’s arm by alternative means to whipping the arm with a collated screw belt. This was referred to as the screw belt measurement evidence and injury evidence. My assessment of this proposed evidence is that it did not require any special skill or expertise or experience.
Exhibit P16 is a strip of screws with which the complainant said he was hit on the upper arm. The complainant also said he was not hit many times with the screw belt.
Exhibit P19 shows the injury caused by the nail belt. He said the injuries to his arms were caused by being ‘… beaten by poles and poked by nails…’. He also talked about being hit with the ‘nail strip’. The complainant agreed Exhibit P20 shows the injury he received from being ‘whipped’ with that strip of screws.
It appears from the transcript that the cross-examiner was the first to use the word ‘whipped’, but the complainant adopted it and used it in his answers.
Again, this evidence is the nature of an experiment. The principles are as discussed for the purposes of Ground 4.
Further reference to Dr Bautz’s evidence is necessary. As to injuries that may have been caused by a screw belt like Exhibit P16, Dr Bautz said there were multiple pin-prick injuries to the back consistent with having been caused by Exhibit P16. Further, there was a liner series of pin-prick injuries to the right arm also consistent with having been caused by Exhibit P16.
As to these injuries Dr Bautz said:
… its very typical of penetrations to a patient that this is a dynamic injury and that the patient is probably not kind of standing still and the instrument that is applying this injury is moving as well and so the possibility is that the screws have gone in and then as they came out they scratched or scratched to the skin and then penetration received, it is very common with stab wounds.
Dr Bautz was asked whether the injuries or penetrations could have been applied individually. He replied:
It could, but exceedingly unlikely. These are so – these injuries are in absolute linear pattern and they are so equally space that I would personally have great difficulty in kind of doing this (INDICATES) and having a perfect kind of distance between the individual injuries.
It was submitted to the trial Judge that this experiment was conducted on the arm of a male who was the same size and dimensions as the complainant.
The ultimate relevance was to demonstrate that the pin-prick injuries to the complainant’s right upper arm may have been caused or inflicted individually so as to advance the argument that the accused had been set up by the complainant.
I understand the measurement evidence as follows. If you place a belt of screws on a flat table and measure the distance between the tip of one screw to the top of the adjacent screw, it is a certain distance.
If the screw belt, which is flexible, is placed around the upper arm, the distance between the tips of adjacent screws reduces because it is being applied around a round object. It is as if each screw is pointing towards the middle of a circle (or the middle of the arm in this case). As explained, the distance between the injuries on the complainant are too far apart to have been caused by a screw belt being wrapped around the arm. It is suggested that those distances are more akin to the distances between the tips of screws if the screw belt is laid flat with the screw tips pointing upwards.
That would lend support to the ‘set up’ theory because it suggests whoever caused these pinprick injuries failed to take into account that the tips would become closer when being placed around a round object.
This proposed evidence is more problematic than for the purposes of Ground 4. It is probably not necessary to make a definitive ruling on this ground because there must be a new trial by virtue of the acceptance of Ground 4. However, I make these comments.
It is not known whether each screw belt is exactly the same in terms of flexibility and strength. Is each screw exactly the same length and does each screw sit in the belt in exactly the same positions? By handling might the screws become loose? Would it make any difference if the arm to which the belt was being applied was flexed or otherwise? What would happen if there was movement of the arm or a flexing or tensing of the muscles of the bicep? How would the speed of its application affect the movement of the screws?
In other words, there seem to be a large number of variables.
In my view, the evidence is admissible and questions of the type to which I have just referred become a matter of weight in cross-examination.
Ground 5 is also made out.
Ground 10 – Failure to give reasons for not admitting the reconstruction evidence
It is not necessary to deal with this ground because the appeal must be allowed and a new trial ordered on grounds 4 and 5.
Ground 11 – Refusal to admit MFI D23
This ground relates to the refusal by the trial Judge to allow the appellant to tender two documents which became MFI D23. This is a proposed ground upon which permission is required.
The documents are headed ‘Visa Entitlement Verification Outline’ (VEVO). One is in the name of Liu Chen and the other in the name of Rui Yang.
The appellant submits that these two documents should have been admitted to demonstrate that Rui Yang’s understanding of the 457 Visa process which was said to be a circumstantial fact relevant to the defence case. The appellant’s written submissions do not explain how these documents were relevant to an issue at the trial.
On the appeal, the appellant argued that an understanding by Rui Yang of the 457 Visa process was a circumstantial fact that was relevant to the defence theory that Rui Yang and the complainant, along with Dongming Dong and Amy Zhang, were all in a 457 Visa scam operation. It was submitted that the complainant denied any involvement in a scam but admitted he was on a 457 Visa and that his sponsor was Rui Yang. It was said his knowledge of the 457 Visa process and the requirements was circumstantially relevant to the proposition that he might be involved in something illegal. In my view the evidence, MFI D23, was not capable of supporting that factual argument.
One additional matter should be mentioned. The documents were produced and marked through a witness Mr H Smart, a lawyer and registered migration agent. Mr Smart used a Department of Immigration website known as VEVO to search for and print the documents. There was no evidence about the provenance or accuracy of any of the information in the documents. Nothing was submitted about the status or authority of a document printed from the website.
Permission is refused on this ground.
Ground 12
The appellant submits that the trial Judge erred in his directions to the jury about the evidence of the appellant’s good character. This proposed ground requires permission.
At trial, the appellant gave evidence that he had no prior convictions.
Further, the appellant called evidence of positive good character. That evidence largely came from independent sources who had business or professional relationships with the appellant.
The trial Judge’s directions as to character evidence related to all accused and were as follows:
You have heard what is called character evidence in this trial. Each of the accused have told you they have no prior convictions. This is, they have not been in any trouble before. Two of them have also called evidence from witnesses attesting to their honesty and character. You are entitled to take that into account in your overall assessment of whether the Crown has proved their case against each of them. In other words, for each of them that can be factored in, that evidence of good character, to the extent you consider appropriate. You may factor that into your deliberations to the extent you consider it appropriate.
Similarly, you can have regard to it as to whether you accept their credibility, their version of the evidence. Of course, good character is not a defence and obviously people commit crimes for the first time. That evidence is there for you to give such weight to it as to whether the Crown has proved its case as you see fit.
One correction, Mr Aitken says that character evidence bolsters their credibility. With respect to Mr Aitken, that is not quite right. That is a little presumptuous. It is a matter for you to decide whether or to what extent the character evidence affects the credibility of the relevant accused. It is not a major disparity there, but one small correction.
Before I leave character evidence I should add in the case of Huang, his evidence of good character you may think may be eroded by his own evidence he went and ‘shook down’ Amy Zhang and Dongming Dong and effectively coerced them into paying some debt owed by someone else. You may think somebody with good character wouldn’t do that. You need to balance that into the good character evidence on Huang. It is entirely a matter for you.
It is submitted that the composite direction did not adequately explain that evidence of good character should be taken into account as a factor which affects the likelihood of the appellant committing the offences with which he was charged.
Reliance was placed on the well-known case of R v Trimboli where King CJ, with whom Mohr J agreed, said this: [12]
I think that it is possible to lay down some propositions which might be of assistance to the judge at the new trial and to other trial judges.
1.   It is desirable in all cases in which there is evidence as to the accused’s good character that a direction be given as to the use to which that evidence should be put.
2.   No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused’s previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused’s guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused’s previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.
3.   The judge is, of course, at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused’s previous character. This last consideration may apply with particular force to certain types of crime and the judge is, of course, free to point that out to the jury if he sees fit.
[12] (1979) 21 SASR 577 at 578.
The first paragraph of the trial Judge’s good character direction explained that evidence of the appellant’s good character was relevant to whether the prosecution evidence had proved that the appellant committed the offences. The direction did not explicitly put that proposition in terms of the improbability of a person of the appellant’s character committing the offences. Having regard to the conduct to which the appellant admitted, that was appropriate.
It should be noted that these are ‘propositions that might be of assistance’ and that in these circumstances a direction is ‘desirable’. There is no obligation to give such a direction; it remains a matter of discretion (R v Simic[13]). The nature of character evidence was discussed at length in Melbourne v The Queen[14], although the application of the principles in that case occurred in a very unusual factual setting. The High Court affirmed that character evidence may be relevant to an accused’s likelihood or propensity to commit a crime, or to the credibility of an accused, or to both of those questions.[15]
[13] (1980) 144 CLR 319.
[14] (1998-99) 198 CLR 1.
[15] Melbourne v The Queen (1998-99) 198 CLR 1 per McHugh J at [30], per Gummow at [75]-[76], per Kirby J at [118]-[120], per Hayne J at [152] and Callinan J at [200].

In my opinion, the directions given were within the wide discretion allowed to a trial judge in such a situation. As was said by King CJ in R v Trimboli[16] and in many other cases, juries left to their own devices and common sense would be likely in most cases to use the evidence in the proper manner. I do not regard R v P, S[17] as requiring both directions to be given and should be limited to its individual facts and the extensive character evidence.
[16] (1979) 21 SASR 577.
[17] [2016] SASCFC 97.
It was also argued as part of this proposed ground that the trial Judge misdirected the jury as to the onus of proof. In the passage quoted above from the summing up, the trial Judge directed the jury the jury that the use of the evidence of good character is ‘…as to whether you accept (the appellant’s) credibility, (his) version of the evidence…’.
Later in the summing up, the trial Judge said:
If you accept Huang’s version of events as a reasonable possibility… then you would acquit him of both charges’.
The respondent rightly pointed out that that direction needs to be read in conjunction with the next sentence.
If, as a result of Mr Richards’ arguments on for any other reason you are left with a reasonable doubt of [the complaint’s] version of events that he was detained and beaten by [the appellant], then you would acquit [the appellant] of both charges.
As always, impugned directions such as this need to be considered in the light of the directions as a whole. The jury were directed about the burden of proof being on the prosecution beyond reasonable doubt. The jury was expressly told all the accused entered the court with the presumption of innocence in their favour and that an accused person is not required to prove or disprove anything.
Having said those things, use of the word ‘accept’ in the context of a discussion about the defence evidence or submissions on behalf of an accused, should be avoided. Taken out of context, it may imply the need for the defence evidence or submissions to reach a level of ‘acceptance’ before a reasonable doubt exists. There is the risk, in such a situation, of an implied onus upon an accused to reach such a level. It is safer and clearer to tell the jury that the defence evidence or submissions should be taken into account in deciding whether the prosecution has proved its case beyond reasonable doubt, or having regard to all the evidence and submissions, has the case been proved beyond reasonable doubt.
The third complaint under this proposed ground is that the trial Judge misstated the evidence given by the accused of ‘bad character’. The passage is quoted above at [154].
In my opinion, the direction by the trial Judge was quite proper. The respondent’s submissions should be accepted. The respondent submitted:
…the appellant admitted he was prepared to enforce a valid debt owed by one person (Yang) by making a threat to others who had not incurred that debt (Dong and Zhang), but whom the appellant, at best, believed had some moral responsibility to pay the debt because of some connection to Yang. There was no evidence the appellant contemplated telling the Department anything he believed to be false.
It should also be noted that it was the appellant’s counsel who first used the words ‘shaking down’ Dongming Dong and Amy Zhang.
In short, the appellant was prepared to threaten two people who did not owe him any money (legally or morally) as a means of recouping money owed to him by Rui Yang. That was extortion. The appellant may not have had any prior convictions but such threats undoubtedly reflected upon his character.
The appellant has failed to demonstrate that the directions given by the trial Judge were productive of a miscarriage of justice.
Permission to appeal on this ground is given but it is not made out.
Ground 13
This proposed ground relates back to the previous ground on the topic of the appellant’s threats to Dongming Dong and Amy Zhang. It is submitted that the trial Judge failed to warn the jury against propensity reasoning based on (admitted) bad character evidence.
It should be remembered that the appellant’s account about these threats was a necessary feature of his case. It was submitted on behalf of the appellant that the complainant and others were prepared to give a false story (to ‘set up’ the appellant), to discredit the appellant and avoid or deter any report to the authorities by him. The appellant’s admitted threats were central to his case. This was not a case where there was evidence about prior convictions, imprisonment or unrelated illegal conduct or bad character.
In the context of this very unusual case, no direction of the type submitted was necessary. There had not been any suggestion that the appellant might be the ‘sort of person’ who might commit these offences.
Further, at no point did counsel for the appellant seek any direction of the sort now submitted. That would indicate that it was not then thought to be necessary to avoid a miscarriage of justice.[18]
[18] Perara-Cathcart v The Queen (2017) 260 CLR 595 at [66].
Permission to appeal on this ground is refused.
Orders
The appeal is allowed and a retrial ordered.