R v James Matthew Schultz No. Sccrm-97-192, Sccrm-97-193 Judgment No. 6394 Number of Pages 26 Criminal Law
[1997] SASC 6394
•10 October 1997
IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA
MILLHOUSE, LANDER AND BLEBY JJ
Criminal law - jurisdiction, practice and procedure - Summing up
Criminal law - jurisdiction, practice and procedure - information, indictment or presentment - joinder - -- joint or separate trial
Criminal law - jurisdiction, practice and procedure - judgment and punishment
Sentence - factors to be taken into account - appellant convicted of murder - Grounds of Appeal - - 1. Judge's canvassing of theory of 'dissociation' went beyond anything put by counsel in final addresses and was unduly favourable to prosecution - No evidence to support theory of dissociation - No question of natural justice arises - Consideration of judge's duty to notify counsel of aspects of summing up - Expression of opinion in summing up unlikely to have over-awed jury - - 2. Directions by judge countered any prejudice to appellant from joint trial - - 3. Non-parole period of 17 years not manifestly excessive - Court should fix non-parole period taking into account, reformation, deterrence and retribution - Appeal conviction and sentence dismissed. Lee Patrick Torney (1983) 8 A Crim R 437, referred to. R v D (1997) 68 SASR 571, Pight v R (1995) 64 SASR 215, applied. Machin v R (1996) 68 SASR 526, not followed. R v Webb (1997) 68 SASR 545, discussed.
ADELAIDE, 17 September 1997 (hearing), 10 October 1997 (decision)
#DATE 10:10:1997
Counsel for appellant: Mr C Kourakis
Solicitors for appellant: Morris Pearce Meister
Counsel for respondent: Miss W Abraham
Solicitors for respondent: DPP (SA)
Order: appeal dismissed
MILLHOUSE J
James Matthew Schultz has been convicted by a jury of murder. He appeals against conviction and sentence.
The appellant was 19 at the time of the death.
He and another young man, Benny Longman, also charged - it was a joint trial - but found not guilty, were on their way from a party in a block of flats in Elizabeth to another party. It was late in the afternoon. As they passed one of the flats, the occupant, an older man, apparently outside his front door, invited them both in. They accepted. The appellant and Benny had been drinking at the party and were carrying some alcoholic drink when they received the invitation. Their host, once they were inside, offered them more drink, which they also accepted. After a time the appellant wanted - not unexpectedly - to relieve himself. He went into the bathroom in which there was a lavatory as well as a handbasin and bath. His evidence is that he did not close the door. As he was pissing, standing in front of the lavatory bowl, he looked around and became aware that the man was looking at him, especially at his penis. [The Crown case was that this was physically impossible but I assume it happened for the purpose of the appeal.] The appellant was upset. As a child of nine he had been sexually abused. There had been another incident when he was 15. Seeing the man looking at him upset him very greatly indeed. He left the bathroom and wanted to leave the flat. Instead of simply walking out (the front door was next to the bathroom door) he delayed, persuading Benny to come too. The man became annoyed that they wanted to go. An argument started. It turned into a fight. The appellant punched the man, after, he said, the man tried to hit him. The man was on his knees. The appellant hit him some more. The appellant fell over him. The appellant got up and left the flat. Soon after Benny came out too and they went on to the next party.
That is the appellant's account of what happened at the flat.
The appellant had blood on him. He was asked about it at the party. He swapped his jacket for one of his host's. His jacket, with the blood on it, was hung up in a cupboard.
The man was dead. He had been savagely beaten, been hit with an iron. The contents of his flat had been greatly disturbed.
The appellant denied he had hit the man so savagely as to cause his death. He gave no explanation as to how the man had come to be battered as he was but the implication of what he said is that Benny had done it after the appellant left. According to the appellant, Benny had said when he came out to him, "I'd do murder for you".
Mr Christopher Kourakis, for the appellant, argued three points.
The first concerned evidence of "dissociation" and the way in which the trial judge had dealt with it in his summing up.
Dr Raeside, the psychiatrist, gave evidence for the appellant. It was he who gave evidence about "dissociation". The appellant had suppressed the feelings of fear, anger, revulsion which he felt at having been sexually assaulted. When he saw the man looking at him in the bathroom, these feelings came back. He became agitated, panicky, wanted to escape. This could have been the beginning of a state of dissociation in which the will of the appellant became detached from his physical actions - as though he were on auto-pilot. He may have savagely assaulted the man when in that state. Indeed the disassociation may have become stronger, more complete, when he was so assaulting the man, to block out the horror of what he was doing. He may not have remembered what he did in the state of dissociation.
Of course, if the jury were to think all this a reasonable possibility then the appellant's will would not have been accompanying his actions and he should be found not guilty.
The problem for Mr Kourakis' argument is that there just is no evidence which supports Dr Raeside's theory. The appellant said, in chief, after describing events in the bathroom and his reaction to them, his wanting to leave and the man's reaction to that:-
"Q. How were you feeling at that stage.
A. Feeling shit, didn't know what to do. I just wanted to get out of there. The more I gave him that impression, the more angry he seemed to get, I think.
Q. Can you tell us what happened next.
A. I just started arguing. He just started getting real angry at me. .................................... A. I think I was near the back door, or something like that. He was in my path or something, and he started getting real angry with me, then I got a bit verbal with him, I think, and he started trying to grab me and threw a punch, but I don't think it connected me, I don't think the punch hit me or anything.
Q. Can you tell us what he did when you say he tried to grab you.
A. He just grabbed me by the scruff of the neck and my jacket hood.
Q. Did you do anything when he did that.
A. I just put my head down and just started punching. That's all I really knew what to do, you know. Didn't really want to face him. I just put my head down and just started hitting. I didn't see how many connected, I just threw, I didn't really know.
Q. Whereabouts were his hands and arms when you put your head down and started throwing punches.
A. Near my shoulder, his hand was near my shoulder, or near my neck, kind of think (INDICATES), because I had a long hood on and the hood hangs over the back of my neck. The other hand was probably just over the other side of my jacket or something.
Q. Did he have a hold of you.
A. Yes.
Q. Can you tell us what happened after you put your head down and started to throw some punches; what's the next thing you remember.
A. He released his grip a little bit, he started releasing his grip, swearing at me and calling me a little cunt and stuff, I think, yes, and I just walked back, I jumped back.
Q. Which area of the house were you in, if you can tell us. A. It would have been near - because the kitchen runs into the lounge room, it would have been just between them two areas near the entrance of the lounge room and the kitchen there.
Q. What do you remember next.
A. I can recall him getting angry and trying to grab me, yes, trying to grab me, and I threw a second lot of punches. I'm not sure if it was two or three, but I knew I threw some punches. I'm not sure if they all connected, but I threw a couple of punches.
Q. Tell us what you remember after that.
A. The man started - Mr Pickett started - he lost his balance. I don't know if it was from me hitting him, but I noted had he (sic) lost his balance, and Mr Longman come into it. I don't know if he was doing it on my behalf to stick up for me.
Q. Let's deal with what you remember and seeing and people doing. You just mentioned Mr Longman coming into it.
A. Yes.
Q. What happened and how did he come into it.
A. He just jumped in.
Q. In what way.
A. Just started jumping up and down saying stuff.
Q. Can you remember any of the things he was saying.
A. He was just saying - jumping up and down and saying 'I want to box like Schultzy, I want to box,' just started jumping around and that.
Q. Did you see him do anything.
A. Yes, he jumped in as the bloke was, like, away from me a little bit, and he just started punching and kicking him and whatnot, and he fell to his knees. Q. Are you able to tell us how many times Mr Longman punched him or kicked him.
A. I can't be quite sure but I seen a couple of kicks, a couple of kicks and two punches.
Q. When Mr Pickett fell to his knees, can you describe how he was positioned.
A. Just on his hands and knees.
Q. Did you do anything.
A. I can't remember, kicking him or punching him while he was on the ground.
Q. Tell us to the best of your memory, after Mr Longman jumped in and punched him and kicked him a couple of times and he went down to his hands and knees, do you recall do(ing) anything else to Mr Pickett.
A. I recall walking over to the man while he was on his hands and knees, and I punched him once or twice.
Q. Where to.
A. Just in the face, I think, just in the side of the face or the shoulder, or something like that.
Q. Why did you do that.
A. I don't know. I felt - because I just had all anger inside of me, and I can't be sure.
Q. What did you do after that, or did anything else happen.
A. I don't know if it was through me losing my balance or I slipped on something, but I ended up on top of Mr Pickett, then I got up straight away.
Q. Then what did you do.
A. I walked out the front door."
Dr Raeside expressed the opinion that the appellant had suffered "post traumatic stress" as a result of his unpleasant earlier experiences of sexual molestation. This trauma, joined with seeing the man looking at him, could give rise to "dissociation":-
"A. Dissociation during trauma, so it's too overwhelming for the mind to think 'This is actually happening to me,' so you tend to dissociate. You're not out of such touch with reality but you basically become unemotional. That's at the time of the trauma. What then can happen is that subsequently any stress, any drugs, other things you may be more likely to associate with normal circumstances.
Q. Taking the situation where a stress or trauma does occur with a person who has an underlying post-traumatic stress disorder, is it the trauma of the moment, the current moment, that can cause the person to dissociate.
A. Yes, they can be one of the things that does it, not the only cause.
Q. Is it a combination of what's going on now with what's going gone on in the past that causes the dissociation.
A. Depending on the severity of the trauma that's happening now......................................................................................
Q. If a person dissociates, does the person necessarily know what they are then doing.
A. They may. They may be like an observer and see themselves doing it, much like the woman I talked about who saw herself being abused. Someone who does something may also see themselves retaliate or whatever, but in a detached state, either totally out of the body such as if they were standing watching it, or watching their body doing it and feel like their mind is not really with what they are doing.
Q. That's where a person is detached and they see themselves doing something.
A. Yes, or they can be in a complete state of dissociation where their body is just on autopilot and they have no memory at all of what's happening because the mind just wasn't there when it happened, and it can be anywhere in between as well. ..........................................................................................
Q. In your experience, is it also possible that a person who suffers from a loss of self-control and then does a physical act, can the doing of the physical act itself cause trauma to that person and, therefore, trigger a reaction to their underlying post-traumatic stress disorder.
A. The short answer is yes, and the reason for saying that is again in a number of people I've seen, I've treated and interviewed a number of people charged with homicide. A number of them claim genuine lack of memory for the event. .............................
Q. I put you now (sic) to further evidence that Mr Schultz gave to this court, that he felt trapped and restrained in that situation. Firstly, do you have any opinion as to whether those feelings are consistent with a person with the underlying problems of post-traumatic stress disorder and the other features you identified this morning.
A. With that state of heightened arousal or high anxiety, then ..........., the reaction I would expect in someone such as Mr Schultz in that situation, would be to either want to just flee, get out of there, get away from the threatening experience, either in reality or symbolically, or then having found himself trapped or believing himself to be trapped, he may have then switched to fighting instead.
Q. You have described a sense of heightened anxiety, what does that mean.
A. ......... feeling very fearful, nervous, heart pounding, breathing rapidly, all those physical and psychological symptoms we discussed, in which a person is preparing themselves for some sort of action, either to get away or protect themselves. I guess, a state of panic.
Q. Is that how you would describe Mr Schultz' mental state at that moment of being restrained, accepting the assumptions that I put to you.
A. I think that would be consistent with the previous experiences.
Q. If a person is in that mental state of heightened anxiety, can you offer us your professional view as to the possible reactions that can occur.
A. Given that mental state and given that he felt he was trapped, I think there are four possible explanations as to how - four possible ways in which he might act. Q. What are they, if you could number them for us.
A. One would be to simply use physical force to remove the cause of him being able to leave, in other words to fight until the person let him go. The second might be, in that state he might have lost self-control. The third could be, as we discussed this morning again, the anxiety might have caused him to dissociate such that he acted in a way independent of where his mind was, so that he acted automatically, was just acting automatically, reflectively." (This word probably should be "reflexively"). "The fourth is, I understand he may (have) consumed a lot of alcohol, he may have been disinhibited, may have reacted that way because of the effects of the alcohol."
The learned judge dealt with it in his summing-up:-
".... Schultz's case does involve a consideration of whether, whatever actions he performed, were performed as a result of the exercise of the mind or the will. Because it's suggested in his case that he was or may have been acting in a state of dissociation, as it's said, where although his body was performing functions the mind and the will were not directing those functions."
This was early in the summing up. Towards the end:-
" The defences which Mr Schultz has put before you are first of all that it is not proved that he struck the fatal blows. Secondly, that if he did strike the fatal blows he was in a state of dissociation so that his mind or will wasn't accompanying his actions, and if neither of those apply then it is said that it is not proved that he intended to cause death or grievous bodily harm, and finally that if he did intend to cause death or grievous bodily harm then provocation from the deceased brought that about and on that basis the verdict should be manslaughter only..........
Schultz's own evidence is that simply he didn't strike the fatal blows or at least has no memory of striking the fatal blows. The other defences are alternative defences which his counsel puts before you, in case you should find that he did strike the fatal blows, and therefore his counsel is saying therefore, if you do find that, you have to consider voluntariness, lack of intention and provocation. ...........................
Well, ladies and gentlemen, you have to assess the issues in the case. I'm going to suggest a possible approach to this case, but, as I have said to you earlier, anything I might say about the facts are simply put before you for whatever assistance they are, you are the judges of the facts. If my approach to the case doesn't commend itself to you then you put that aside and take your own view."
If the jury were to find that the appellant had struck the fatal blows:-
"................ you then have to turn your attention to his state of mind. Was he acting voluntarily so that his actions were subject to the direction of his mind and his will or was he acting in a state of dissociation so that his body was doing one thing and his mind and his will were not with it?
You've heard the evidence of the psychiatrist, Dr Raeside, that dissociative states can occur in people who have these experiences and suffer from stress disorders as a consequence, but, they are uncommon. And you, as a jury, have to consider the facts of this case. It's one thing to have a general psychological theory that these dissociative states can occur in people with post-traumatic stress disorder, as Schultz has, but you have to look at the evidence in order to see whether there is any indication in the evidence that such a thing happened at this time.
You may find it very difficult to find anything, any indication at all in the evidence that Schultz was subject to a dissociative state at the time of this incident. And indeed, you may think, it's for you to say, that really the evidence so far as it goes, is quite inconsistent with that.
You will recall that Jamie Schultz gave evidence that he had this experience of this man looking at this penis and that he then was subject to some sort of restraint by the man, by the deceased, and that he felt panicky and that he felt that he was being restrained from leaving.
Now, you will remember the psychiatrist's evidence that in that situation a person might react in one of four ways. One was to fight his way out of it. One was to get away. The other perhaps being drunk, that the drink would take over or there was the possibility that he would go into a dissociative state. Well what happened?
According to Schultz's evidence, and he remembers, he says this, he fought his way out. He punched and delivered some punches to the deceased. Quite intentional, quite purposeful, and he remembers that the deceased then came at him again and he delivered some more punches. Once again quite deliberate, quite purposeful. And he remembers then the deceased went down on his hands and knees, and whilst he was in that position, perhaps on the floor, but certainly at last on his hands and knees, Schultz delivered further blow or blows. Then, he says, quite purposeful once again, he was angry. This is quite deliberate; he gave way to his anger and delivered these blows. He then got up and left. A purposeful, deliberate reaction which he remembers, he wanted to get away and he went, and he remembers that he opened the door, and which door he opened, and how he left the premises, and he remembers quite clearly apparently, Longman catching up to him and exactly what Longman said about 'I'll do murder for you.'
Well, ladies and gentlemen, you may think that there was no indication of a dissociative state when he was punching the deceased. He was doing it quite deliberately, quite purposefully. So how did the dissociative state arise? It could only have occurred at some point after he had struck the deceased on his hands or knees, or on the ground, and between that time and the time that he left and opened the door, which he remembers quite clearly, and seems to have been acting purposively?. You ask yourself how can that be really?
Because, you see, the psychiatrist tells us that what would give rise, or might give rise to this dissociative state, is the feeling of being trapped or restrained by a man who had looked at his penis, so that you would think, you might think, that if it was going to happen, that it would have been when he was being, as he claims, restrained by the deceased, but it appears that it didn't happen, and that he punched his way clear. And the point at which it must be said to have happened is when the deceased was helpless, on his hands and knees on the ground. You must ask yourself how could he possibly have felt trapped at that stage, or subject to any restraint at all? The deceased was out of the situation; he had already got on top of him, and he was down.
So really, when you analyse the evidence in this case, you must ask yourself, is there any possible basis here for supposing, even as a reasonable possibility, that this accused, whatever about general psychological theory and what can occur, whether this accused, in this case, on the evidence, suffered this dissociative state of which the psychiatrist speaks, and whether there is really anything in the evidence to suggest other than that Schultz's actions were subject to the direction of his mind and his will, that when the blows were struck they were struck by a person who was acting in the ordinary way, his will and his mind directing what he did."
Mr Kourakis makes two complaints about those passages from the summing up. One is that it was the learned judge who for the first time mentioned that once the man was on his knees, the appellant had no need, any longer, to feel trapped: he was master of the situation. The appellant's counsel at trial, after the summing up, asked the judge to redirect, to remind the jury that the Crown had not put the point nor had the defence had the opportunity to rebut it. The learned judge refused.
One problem for the appellant is that, at trial, his then counsel had not developed an argument on disassociation. This is all he said:-
" It is the combination: the anxiety, 'I have to go, I have to get out, I don't want this person near me'; then suddenly the person is not only near him, he is angry, he grabs him, there is a scuffle and then there is punching. That is a trigger. It is reviving the trauma. It is, as we heard yesterday, one of those events which can precipitate a recurrence and resurgence of all those horrible old things that happened earlier which have been suppressed and kept underneath the surface."
That he did not develop the argument further is not surprising. The evidence just was not there to support it. There was no other evidence than that of the appellant himself. I have set that all out. It does not, I suggest, support the theory of dissociation propounded by Dr Raeside. As Miss Wendy Abraham for the respondent said, it was a theory and a theory it remained: there was no evidence to link it to the appellant's state of mind at the time. The appellant's primary defence was, "I didn't kill him. Benny did." The appellant certainly meant to strike the early blows: he admitted that. There is no suggestion of a loss of memory, a gap in his memory as to what had happened, of experiencing those feelings which Dr Raeside described as going with dissociation.
Several times during his address, Mr Kourakis remarked that this is a matter of natural justice: the appellant has been denied it. Mr Kourakis referred to the Victorian Court of Criminal Appeal decision of Lee Patrick Torney (1983) 8 ACrimR 437, a somewhat similar situation. O'Bryan J describes the situation (@455-456):-
"In the course of the charge after reviewing extensively the evidence tending to implicate the applicant in the murder, the learned trial judge summarised the Crown case against the applicant. In doing so his Honour made some comments upon the evidence, which were not specifically brought to the attention of the jury by the Crown in its final address. Mr Lincoln's argument is that the new or original comments operated unfairly against the applicant because counsel for the applicant had no opportunity to answer them, at that stage of the trial. .................................
The only valid criticism one might make is that the learned judge might have indicated to counsel for the applicant his intention to make the comments he did before counsel addressed the jury."
There might be something in Mr Kourakis' contention if there were anything in his original point. I have expressed the view that there is not. That was obviously the view of the learned trial judge as well. Had it been otherwise the learned judge would have been under an obligation to do something about it, so that his summing up was fair. As it was he had no need to do anything: no question of natural justice arises.
That is sufficient to dispose of the natural justice point but perhaps I may comment on what Mr Kourakis put in support of his argument. The argument would impose on a trial judge a duty somewhat like that imposed on counsel by the rule in Browne v Dunn. Taken to the limit it would require from the trial judge perhaps a repetition of all the arguments of counsel about the facts or a time consuming vetting process of the summing up by judge and counsel before he (or she) charged the jury.
If this duty of notice were imposed on a trial judge it would mean quite a change in the way trials are conducted. After preparation but before delivery, there would be an analysis by counsel, with the judge defending - or at least being inclined to defend - what he had prepared: a tedious, time consuming process, occasionally in my experience necessary but by no means always.
There must be some protection against unreasonable conjectures by a trial judge but this is adequately provided by the general requirement that a summing up be fair.
Mr Kourakis' argument comes to this: it was unfair for the trial judge to "clinically dissect" the incident without Dr Raeside having been asked if this were a valid method of analysis.
It was certainly necessary for the judge to make some comment on the dissociation theory. Dr Raeside's evidence had been left at a theoretical level. It had to be applied to the evidence about the appellant's reactions. That was not for Dr Raeside to do. The "clinical dissection" of the incident by the learned judge was really no more than testing the veracity of the appellant's assertion that he felt "trapped and restrained". The evidence of the appellant was that he acted deliberately. He did not describe the hallmarks of dissociation described by Dr Raeside. The evidence to support the theory of dissociation just was not there. The judge, in his own way, was pointing that out.
Accordingly, I can see no fault in what the learned trial judge said nor in his refusal to redirect.
The other complaint which Mr Kourakis makes about those passages from the summing up is that the learned judge went too far in expressing his own opinions: that he may have over-awed the jury and imposed on the members his own view of the facts.
In what I have reproduced there is a passage in which the judge tells the jury that the decision on the facts is theirs, not his. It is only one of several such directions scattered throughout the summing up. In my view the summing up was a balanced one and the learned judge did not cross the line between permissible and impermissible expression of his own opinions.
I should say more. Mr Kourakis relied on the authority of Machin v The Queen ((No.1) (1996) 68 SASR 526. I presided in the Court of Criminal Appeal on the hearing of that appeal but the main judgment with which Williams J and I agreed (except as to what followed - we thought there should be a retrial) was written by Olsson J. During argument I had formed the view that the trial judge's summing up was unbalanced, it went too far in favour of the Crown, crossed the line between permissible and impermissible. I thought that ground of appeal should succeed. Having come to that conclusion what Olsson J wrote seemed alright.
Since our decision was published the Court of Criminal Appeal, differently constituted, has had the opportunity to review the law on what a trial judge may or may not properly say in summing up. I refer particularly to R v D
(1997) 68 SASR 571 and especially to the full and erudite examination of the subject by Cox J. My brother Cox expresses the opinion that, "....there is a question in my respectful opinion, whether Machin was correctly decided." He said:-
" It is obvious, even without looking at the cases, that there is room for more than one view on this matter. The traditional position, as I understand it, has always been that a trial judge is entitled to comment on the evidence, whether favourably to the prosecution or the defence, as long as the effect of his remarks is not to overbear the jury. The jury has heard addresses from two partisans, and the judge's experience will often enable him to draw the jury's attention to weaknesses or strengths that might otherwise escape their notice or be given too little weight. A mere recounting of the evidence might suggest that the case is balanced when it may be nothing of the sort. The opposing position is that, if the jury is to decide the facts, the judge should leave them to do it and not try to influence their decision. It is no use saying that the jury is entitled to ignore the judge's comments when the whole purpose of them is to ensure that the jury takes them into account. Coming from the judge, his remarks are liable to be given considerable weight. There is a danger, therefore, that any such judicial intervention, if it is critical of the defence, will make the trial unfair.
It is plain from his treatment of the subject in Machin, ..............that Olsson J is an adherent of the second school. Needless to say, I respect his views. However, I am firmly of the opinion that they do not reflect the law and practice of this Court or, indeed, of the superior courts generally in Australia."
Cox then analyses the cases and shews plainly that the "traditional position" is still the correct position, that Machin is not good law.
I must say that, having read R v D, I believe, that as a Court, we were wrong in our exposition of the law in Machin. Both my brothers Olsson and Williams sat in the Court of Criminal Appeal in R v Webb, another case in which the same point came up. Olsson J maintained his position but Williams J said:-
" In the present case the appellant relies upon the decision of the Court of Criminal Appeal in R v Machin......... I was a member of that Court and concurred in the decision. The Court there considered dicta in some authorities since Joyce" (R v Joyce 1970 SASR 170) "and concluded 'that it will rarely be appropriate for a trial Judge to proffer what is tantamount to an expression of his or her personal assessment of the matter'. The Court then suggested that modern authority was restrictive of Joyce. I am now satisfied that this observation in Machin was made per incuriam."
R v Machin (No.1) on which Mr Kourakis relied, has no authority on this point.
So much then for the first point Mr Kourakis argued.
The other two may be disposed of more shortly.
The first of them - Mr Kourakis' second point - is that there has been a miscarriage of justice. The appellant had applied for a separate trial: the application was refused. No wonder! This was a classic situation in which there should be a joint trial. As it was, each blamed the other. What if they had been tried separately? Neither jury would have had the opportunity to hear the other accused and to weigh up the whole of the evidence. No doubt the original refusal of separate trials was correct.
However Mr Kourakis based his argument on the course which the trial has taken.
The Crown adduced evidence of admissions which the appellant and Benny made at the party to which they went and in later days. Two young women, young teenagers actually, gave evidence of what had been said to them. Mr Kourakis abandoned the argument based on the evidence of one of them, but complained about the evidence of the other. This girl did not come up fully to proof in examination-in-chief. In cross-examination by counsel for the co-accused, Benny Longman, passages, damaging to the appellant, from her police statements were put to her. She either assented half-heartedly or denied them. However, Mr Kourakis argued, the damage had been done. The jury had heard allegations damaging to his client which they should not have heard and which they might not have heard had there been a separate trial.
Of course, whether or not there should be separate trials is always a matter of balancing considerations. The same is true in hindsight as well as foresight. The learned judge, as soon as he could, still in the course of the evidence, gave a direction that only those passages which the witness adopted became evidence: the jury should disregard the rest. He followed it up in his charge to the jury. In my view it was sufficient to counter any prejudice.
I suggest this second point fails too.
Those were the points taken on conviction. The last point concerns sentence, or more correctly the non-parole period.
The learned judge fixed a non parole period of 17 years. Manifestly excessive says the appellant. Not so, in my view. It was a nasty, brutal murder. There was no plea of guilty. The appellant tried to shuffle off responsibility on to the co-accused.
Mr Kourakis mentioned other non-parole periods fixed for other murderers. Except in the most general way they don't help much. It is the impression the judge gets from his own experience which is his best guide. In my view 17 years is within the bracket appropriate for this crime.
Finally Mr Kourakis advanced an argument which I think he realised we were all rejecting out of hand, even as he was putting it. Yet I should deal with the argument, perhaps to save it being raised again. Mr Kourakis suggested that the non parole period should be relatively short: a prisoner is not now released automatically on the expiration of the non parole period but only when the Board thinks, after the expiration of the period, he is ready for release. Who knows what the condition of the prisoner may be in a few years time? I suggested, in arguendo, that this could mean we fixed an absurdly short period, leaving the Board with a complete discretion. Mr Kourakis' reply was that the Court had to fix a period, taking into account the requirements of retribution and deterrence. This meant a longer than an "absurdly short period". My brother Lander put my suggestion better: it would mean a pretty standard non parole period for murder.
The Court of Criminal Appeal rejected the same argument in Pight v The Queen (1995) 64 SASR 215. The appellant had been given a finite sentence, 12 years with an eight year non parole period. This is a murder case in which the sentence is life, indeterminate. It makes no difference in principle. I reject the argument. A court should fix a non parole period appropriate to the crime taking into account all three elements, reformation as well as deterrence and retribution.
I suggest that the appeal be dismissed.
LANDER J
I agree that the appeal against both conviction and sentence ought to be dismissed for the reasons given by Bleby J.
BLEBY J
The appellant appeals against his conviction for murder. The mandatory sentence of life imprisonment was imposed (Criminal Law Consolidation Act 1935, s11) and the learned trial judge fixed a non-parole period of 17 years. The appellant also appeals against that determination on the ground that it is manifestly excessive. The appellant was jointly charged with Benjamin Gordon Longman with the murder, on Friday, 9 August 1996, of Robert Graham Pickett. The two were tried together despite three applications by the appellant (all of which were refused) for separate trials. Longman was found not guilty by the jury.
The Facts
The deceased, Pickett, was aged 45 and lived in a apartment at Elizabeth. On the day after his murder he was found lying in the kitchen of his apartment. The deceased's blood was spattered on the cupboards and walls adjacent to where the body was found. The lounge room and kitchen had been vandalised and a clock damaged which had stopped at 7.20 or thereabouts. An analysis of the deceased's blood indicated a blood alcohol level of .225%.
The deceased had sustained multiple injuries, many of which had been caused by a blunt object to the side of the head, and there was a strong inference that a nearby clothes iron had been the instrument used to cause death. There was also a strong inference that these blows had been inflicted while the deceased was lying more or less in the position in which his body was found.
During the afternoon of the day in question the two accused had met some female friends in the Elizabeth City Centre, had purchased a carton of beer, and had returned to the apartment of one of the girls where they drank together during the late afternoon and early evening. They left that apartment on foot, apparently intending to go to a party at the apartment of Jason Cock, a mutual friend. For whatever reason, they both ended up in Pickett's unit, and while they were there, Pickett was attacked, the attack resulting in his death. At the time that they arrived at Pickett's unit both Longman and the appellant were affected by the alcohol they had been drinking during the late afternoon, and the appellant at least was carrying some additional stubbies of beer with him.
The deceased was previously unknown to the two accused, and the accused appear to have been invited in to the deceased's apartment, where they continued drinking together, until the violent altercation occurred, resulting in Pickett's death. The prosecution was unable to point to any apparent motive for the murder.
The two accused left Pickett's apartment and then went to the party at Jason Cock's apartment, arriving separately, the appellant apparently arriving before Longman. A number of people who were at that party gave evidence that the appellant had confessed to them that he thought he had killed someone, and a number of them also gave evidence of having noticed blood on the appellant's clothing, particularly on an Adidas jacket. I will have occasion to refer to some of this evidence in more detail later. There was evidence that the appellant had consciously removed and hidden the jacket at the party, and that between the party and his arrest on the following Monday morning, he had washed his clothes to remove any traces of blood. One of the witnesses from the party also said that she had seen blood on Longman's clothing, and there was evidence of blood on one of his shoes.
Both the accused gave evidence. The appellant gave evidence of one incident of sexual abuse by an older man when he (the appellant) was aged 9, the details of which he had previously kept to himself, and claimed that this incident had resulted in feelings of insecurity and a period of bad dreams. These had continued. He gave evidence of another incident at about the age of 15 when he witnessed another male masturbating in an adjacent cubicle of a public toilet. In relation to both of those incidents he deposed to panicking and wanting to get away from where he was. Following the breakdown of his parents' marriage (at about the age of 16), he lived with his father, who died of cancer about twelve months before the incident in question. Since then he had gone back to live with his mother and had taken to frequent and excessive drinking of alcohol.
He said that he and Longman had entered the deceased's apartment voluntarily, having been invited in for a drink. They were sitting in the lounge area having what was described as a "normal" conversation, during which the appellant said that the deceased was rubbing himself or scratching himself in his genital area. When asked what he remembered happening next inside the apartment the appellant said "Just real drunk and that, waltzing around, just talking". During the evening the appellant went to the toilet which was located in the bathroom. He did not bother shutting the door. He claimed to have looked over his shoulder and noticed the deceased looking at him, and in particular looking at his penis. There was some argument at the trial as to whether that was physically possible given the layout of the room. He was asked how he felt when he saw the deceased doing that. He said:
"A. My head just felt like my head was having a walk, kind of thing. I didn't really know what to do, you know. I closed the door a little bit, just trying to think straight what to do because I started thinking of situations, what happened to me when I was young.
Q. Was there any feeling that you were having at the time.
A. Just being real nervous and didn't know what to do.
Q. You said a second ago you closed the door over a bit.
A. Yes.
Q. What was your reason for doing that.
A. Because I was waltzing up and down wondering what to do. I didn't really want to go out there, you know."
The appellant then said he did not know how to approach the deceased but he wanted to leave. He went and told Longman that they should be going to the party, and he claimed that the deceased became "uptight" about his saying that he was going to leave. The two then started arguing and a fight occurred. The appellant threw a number of punches, verbal abuse was exchanged between the two, and eventually the deceased lost his balance, and the appellant claimed that he was joined by Longman in the assault on the deceased. The deceased was on his hands and knees and was further punched to the face by the appellant. The appellant was plainly angry with the deceased. The appellant claimed that he lost his balance and ended up on top of the deceased, but got up straight away and went out the front door. At that stage Longman was still abusing the deceased. Longman later caught up with the appellant on their way to the party, but the plain inference from the appellant's evidence was that any further violence which may have resulted in Pickett's death was inflicted by Longman after the appellant had left the apartment. He gave evidence that Longman had said to him after he had caught up with the appellant: "I'd do anything for me mates. I'd do murder for you." or words to that effect. The appellant claimed not to have any recollection of smashing anything up in the apartment.
There was no suggestion from the appellant's evidence of any period of altered consciousness of what he was doing or of detachment from what he was doing. The evidence led from persons at the party to which the appellant then went tended to confirm a knowledge and consciousness of what he had done. Jason Cock gave evidence that at the party he had a conversation with the appellant:
"I think it was - I think he might have bashed somebody. I think he might have killed him, or something like that, stuff like that, yes... He said something about the piece of tin or iron but I'm not sure if it had nothing to do with it, I'm not sure."
In cross-examination by counsel for Longman he agreed that the appellant said during that conversation words to the following effect:
"I bashed someone and I'm not sure if I killed them... I think I've killed him."
He admitted that the appellant then said to him "Come back, have a look if you don't believe me".
Amy Dale was another person at the party who deposed to the fact that the appellant had said in her presence that he had "Smashed the guy, smashed the person", and "I think I killed him, I killed the cunt. The body was still there five or six hours ago". I refer in more detail to this evidence below.
Kylie Blackwood, the appellant's girl-friend, gave evidence that on the following evening she had a conversation with the appellant during which he said "I think we killed him". She later said of the same conversation "Yes, he said that he hit him a couple of times, Benny (Longman) did something as well, and he didn't say exactly what he'd done. And then after that as they were leaving the guy was still alive, and that was it".
The thrust of Longman's case was that he had no part to play in the murder. The altercation occurred after the deceased had offered both of them champagne (which he was drinking). Somehow, the bottle was spilled. Pickett went to the kitchen ostensibly to obtain a cloth and was followed by the appellant. Longman then heard the two arguing in the kitchen. The evidence that the appellant went to the toilet was not corroborated by Longman, and Longman was not aware of any sexual advances being made at any time by Pickett. He went to the kitchen himself. He heard the appellant say to the deceased "What the fuck did you do that for", to which the deceased replied "Don't know what you're talking about, mate". The deceased tried to leave the kitchen and was then punched by the appellant. The deceased fell to the floor and the appellant stood over him hitting him again in the face and over his body. He then started kicking the deceased, and later smashing up the kitchen. Longman tried to intervene but had hot water poured over him by the appellant whom he then saw hitting the deceased with a metal object. Meanwhile, Longman was crouching down holding his head. Longman claimed to have left the apartment before the appellant, who then caught up with him outside afterwards. He denied the conversation which the appellant had alleged took place between the two on the way to the party.
The appellant also called a psychiatrist, Dr Raeside, who had examined him since the incident involving Pickett. He diagnosed the appellant as suffering a post-traumatic stress disorder following the incident of sexual abuse of the appellant at the age of 9. Among the common symptoms which he described as being associated with the condition were avoiding things and events that reminded the victim of the traumatic event, nightmares and symptoms of anxiety and hyperarousal. The latter may result in attempts to avoid any perceived threat by fleeing or by attacking, sometimes with loss of self-control. Some of the symptoms were acute and some were chronic (ie persisted for more than six months). He considered that the appellant had displayed a number of the chronic symptoms of the disorder, and went on to say that these symptoms tend to settle at a particular level, but can be triggered to their more acute level on recurrence of a similar type of experience. He agreed that in the event of the appellant having such an experience and being restrained from leaving a place, the appellant's powers of self-control could be affected. He added that what happens when someone is confronted with a "very traumatic experience" is that they tend to protect themselves psychologically and tend to dissociate their mind from their body. He said:
"A. ... They may be like an observer and see themselves doing it, much like the woman I talked about who saw herself being abused. Someone who does something may also see themselves retaliate or whatever, but in a detached state, either totally out of the body such as if they were standing watching it, or watching their body doing it and feel like their mind is not really with what they are doing.
Q. That's where a person is detached and they see themselves doing something.
A. Yes, or they can be in a complete state of dissociation where their body is just on autopilot and they have no memory at all of what's happening because the mind just wasn't there when it happened, and it can be anywhere in between as well."
He said that the reaction can be so severe that a person can act almost completely normally, by undertaking quite normal actions, but have no memory of them at all. He expressed the opinion that when a person who suffers from a loss of self-control and then does a physical act, that act itself can so traumatise the person that he or she has no memory of the event. I took that to be an explanation for the loss of memory in such circumstances, not an explanation for the loss of self-control.
Dr Raeside was asked to assume the events as related by the appellant in the toilet of the apartment, given the origins and nature of the appellant's post-traumatic stress disorder, and he expressed the view that he would have been "feeling very anxious, fearful and perhaps almost panicky and trying to avoid a similar situation he had before, things I described, the symptoms of post-traumatic stress disorder". He confirmed that, in his heightened state of anxiety he would either want to flee or, if he found himself trapped, or believing himself to be trapped, may have then switched to fighting instead. He said that given that mental state where he felt he was trapped there were four possible ways in which the appellant might act:
"One would be to simply use physical force to remove the cause of him being able (sic) to leave, in other words to fight until the person let him go. The second might be, in that state he might have lost self-control. The third could be, as we discussed this morning again, the anxiety might have caused him to dissociate such that he acted in a way independent of where his mind was, so that he acted automatically, was just acting automatically, reflectively. The fourth is, I understand he may consumed (sic) a lot of alcohol, he may have been disinhibited, may have reacted that way because of the effects of alcohol."
It should be noted that those do not describe possible alternative ways of acting, but include explanations for why a person may act in the way that the appellant did. The description, however, related to possible conduct upon the appellant becoming anxious at feeling trapped and restrained.
The evidence led by the appellant raised a number of possible defences. They were that Longman had caused the fatal injuries after the appellant left the apartment, or alternatively that the appellant had caused the fatal injuries, but that he had been provoked, that his actions were involuntary by reason of his dissociated state, or that he was incapable of forming the requisite intention either by reason of his dissociated or drunken state.
The Trial Judge's Directions to the Jury
When describing the elements of murder to the jury and the need for the prosecution to prove a voluntary act, the learned trial judge noted that that was an issue in the appellant's case "because it's suggested in his case that he was or may have been acting in a state of dissociation, as it's said, where although his body was performing functions the mind and will were not directing those functions". His Honour said that he would return to a consideration of the evidence on that point.
When dealing with the question of the need to prove intention in the crime of murder, the learned trial judge directed the jury that they would have to take into account a number of factors including "any mental states, such as post-traumatic stress disorder which you have heard about in this case which might affect the way a person thought, the way the accused person thought at the time".
The learned trial judge later dealt at great length with the defence cases. He accurately summarised the evidence of Dr Raeside and put quite clearly to the jury that the appellant's defence was that he did not strike the fatal blows, and by way of alternative, if he did strike the fatal blows, questions arose concerning voluntariness, lack of intention and provocation.
When addressing the evidence as to voluntariness, having reminded the jury again of the general nature of Dr Raeside's evidence, the learned trial judge said:
"You may find it very difficult to find anything, any indication at all in the evidence that Schultz was subject to a dissociative state at the time of this incident. And indeed, you may think, it's for you to say, that really the evidence so far as it goes, is quite inconsistent with that."
He referred to the appellant's evidence of feeling panicky and restrained and to the evidence of Dr Raeside as to how one might react in those circumstances. He then said:
"According to Schultz's evidence, and he remembers, he says this, he fought his way out. He punched and delivered some punches to the deceased. Quite intentional, quite purposeful, and he remembers that the deceased then came at him again and he delivered some more punches. Once again quite deliberate, quite purposeful. And he remembers then the deceased went down on his hands and knees, and whilst he was in that position, perhaps on the floor, but certainly at least on his hands and knees, Schultz delivered further blow or blows. Then, he says, quite purposeful once again, he was angry. This is quite deliberate; he gave way to his anger and delivered these blows. He then got up and left. A purposeful, deliberate reaction which he remembers, he wanted to get away and he went, and he remembers that he opened the door, and which door he opened, and how he left the premises, and he remembers quite clearly apparently, Longman catching up to him and exactly what Longman said about 'I'll do murder for you'.
Well, ladies and gentlemen, you may think that there was no indication of a dissociative state when he was punching the deceased. He was doing it quite deliberately, quite purposefully. So how did the dissociative state arise? It could only have occurred at some point after he had struck the deceased on his hands and knees, or on the ground, and between that time and the time that he left and opened the door, which he remembers quite clearly, and seems to have been acting purposively. You ask yourself how can that be really?
Because, you see, the psychiatrist tells us that what would give rise, or might give rise to this dissociative state, is the feeling of being trapped or restrained by a man who had looked at his penis, so that you would think, you might think, that if it was going to happen, that it would have been when he was being, as he claims, restrained by the deceased, but it appears that it didn't happen, and that he punched his way clear. And the point at which it must be said to have happened is when the deceased was helpless, on his hands and knees on the ground. You must ask yourself how could he possibly have felt trapped at that stage, or subject to any restraint at all? The deceased was out of the situation; he had already got on top of him, and he was down.
So really, when you analyse the evidence in this case, you must ask yourself, is there any possible basis here for supposing, even as a reasonable possibility, that this accused, whatever about general psychological theory and what can occur, whether this accused, in this case, on the evidence, suffered this dissociative state of which the psychiatrist speaks, and whether there is really anything in the evidence to suggest other than that Schultz's actions were subject to the direction of his mind and his will, that when the blows were struck they were struck by a person who was acting in the ordinary way, his will and his mind directing what he did.
They are matters for you to consider ladies and gentlemen. The onus of proof, of course, is on the prosecution, and if you have any reasonable doubt about it, then it must be resolved in favour of the accused."
Whether there was a Misdirection
Dr Raeside's evidence left open the possibility of the appellant having suffered a state of dissociation as a result of feeling trapped or becoming anxious over the initial reminder of the sexual abuse. It was acknowledged that during the several bouts of severe punching of the deceased the appellant was acting quite consciously and wilfully. It was said, however, that Dr Raeside's evidence also allowed for the possibility of the dissociative state arising during the course of inflicting the punches on the deceased, such that the blows with the metal object which actually caused the death, if inflicted by the appellant, were inflicted whilst the appellant was in this altered state of consciousness, thereby absolving him from criminal responsibility for his acts. It was argued that it was never put to Dr Raeside that that possibility could not have arisen, nor was it put in the Crown address. It was put first in the trial judge's summing-up, at a time when counsel for the appellant had no further opportunity to comment or marshal any contrary argument, and because the suggestion had not been put to Dr Raeside, there was no opportunity to lead further evidence by re-examination of the doctor. For all these reasons the appellant, it was said, was denied natural justice. There was a further submission that, in any event, the learned trial judge's comments were so plainly favourable to the prosecution that they went beyond permissible comment by a trial judge.
Leaving aside for a moment the question of the extent of permissible unfavourable comment, there are several compelling answers to the submission.
In the first place, neither the appellant's evidence nor that of Longman suggested that at any time during the whole episode there was ever any altered state of consciousness on the part of the appellant or anything that would match Dr Raeside's description of a state of dissociation. On the contrary, the appellant gave evidence of his deliberate and conscious bouts of punching the deceased in a fit of anger. He gave evidence of falling onto the deceased, of consciously getting up and then leaving the premises, and of what occurred between that time and arriving at the party. The evidence of what he later said at the party did not suggest any lack of consciousness or wilfulness in what he was doing. It is true that he used the phrases "my head was having a walk" and "waltzing up and down", but not only is it difficult to construe them as evidencing a state of dissociation, but those phrases were used to describe his state of mind whilst in the bathroom and at no other time. That was before he began deliberately and consciously punching the deceased in a fit of anger. It is also significant that the appellant used the phrase "waltzing around" when describing the drinking episode in the apartment before he went to the bathroom, suggesting that to him that phrase connoted quite normal behaviour. There is no doubt that on the appellant's primary case there was no lack of wilfulness or voluntariness in what he was doing until he left the apartment. Neither was there any suggestion of loss of memory. In that respect, the learned trial judge's summing-up was an accurate description of the appellant's own case.
In the second place, a close analysis of Dr Raeside's evidence does not admit the possibility of a state of dissociation arising after the bouts of punching in anger. As I have endeavoured to point out in summarising the evidence of Dr Raeside, when speaking generally of the condition, the state of detachment or dissociation arose out of the trauma and anxiety of the triggering experience and not as a result of trauma then being inflicted on the victim. He did say, of course, that the inflicting of harm on a person whilst labouring under a loss of self-control can so traumatise the attacker that he has no memory of the event, but that only went to a person's ability to recall events, not his state of mind or consciousness at the time.
Thirdly, there was nothing to link Dr Raeside's theory with the events as described by the appellant himself. The result was, as the learned trial judge pointed out, that while in theory a dissociative state could occur, there was nothing to show that there was any possible basis for it having occurred to this appellant. Dr Raeside had clearly said that it could occur as one of the possible reactions to the triggering event. If the appellant was to be believed, another of the possible reactions in fact occurred, namely a fit of anger and loss of self-control. Dr Raeside had been asked to assume the past events giving rise to the post-traumatic stress disorder and to assume the events as described by the appellant in the bathroom, and it was on that basis that Dr Raeside said that dissociation was a possibility that might then arise. However, he was not asked to assume that the appellant then continued for some time wilfully and knowingly assaulting the deceased until the deceased was at least on his hands and knees on the floor, if not lying on the floor, plainly no longer a threat to the appellant. Furthermore, he was not asked whether, in those circumstances or thereafter, a state of dissociation could arise. While the legal burden of proof of wilfulness at all times remained on the prosecution, the prosecution, in order to discharge that burden, could also rely on the inference that an act done by an apparently conscious actor is willed or voluntary, unless there are grounds for believing that the accused was unable to control that act: R v Falconer (1990) 171 CLR
30 per Mason CJ, Brennan and McHugh JJ at 41. There was nothing in the evidence led on behalf of the appellant to rebut that inference or to suggest that the circumstances of the appellant were such that the possibility adverted to by Dr Raeside could have arisen. It was not for the prosecution to ask questions of Dr Raeside to rebut the inference of voluntariness.
In all those circumstances, the learned trial judge's direction was not only proper, but was inevitable. There was therefore no denial of natural justice.
The direction was undoubtedly favourable to the prosecution, but did it exceed the permissible bounds of comment by a trial judge such as to influence unduly the jury in its task of finding the facts? The learned trial judge made it very clear on many occasions during his summing-up, including in the passage criticised, that it was for the jury to decide the facts, uninhibited by any views he might express. He could have given a very general direction about the use of expert evidence and how the jury should go about assessing that evidence and applying it to the facts. However, the circumstances of this case required more than that. There were two accused, each trying to minimise their respective roles at the expense of the other. One of them, by way of alternative, was calling in aid a defence which relied on expert psychiatric evidence. If the jury were to be assisted, as they were entitled to be, in having Dr Raeside's theory applied to the facts before them, the inevitable result must have been to point out that on the evidence before the jury the facts did not fit the theory. If that constituted an unfavourable summing-up to the appellant, it was inevitable.
The learned trial judge, in effect, merely pointed out that on the appellant's own evidence, the jury might have some difficulty in concluding that the appellant's reaction to the perceived trigger event was one of dissociation, as described by Dr Raeside. As the appellant virtually conceded on the appeal, that was obvious. The trial judge's observations to that effect were perfectly proper.
The suggestion that dissociation could have occurred after the punching and before the appellant left the apartment, so that he had no recollection of inflicting the fatal blows, could only arise on the evidence if at that time the appellant still regarded the deceased as a threat. On the appellant's own evidence that possibility was so remote as to be almost non-existent. Again, the learned trial judge's observations as to that aspect were quite proper.
It is not necessary to launch into an analysis of the present standing of the decision of this Court in R v Machin, (Unreported, CCA (SA), 20 September 1996, Judgment Nos S5814.1 and S5814.2) in the light of this Court's subsequent decisions in R v Webb (1997) 68 SASR 545, and R v D (1997) 68 SASR
571. The summing-up that I have quoted did not constitute the trial judge expressing any view that could be said to render the summing-up unfair and unbalanced. The learned trial judge was merely dispassionately pointing out to the jury the almost inevitable result of a proper and objective analysis of the evidence.
I would reject this ground of appeal.
Failure to Order Separate Trials
The appellant had applied some time before the trial began for an order for separate trials of the two accused. That application had been refused by another judge. A further application was made to the trial judge on similar grounds before the empanelment of the jury. The application was again refused. The appellant did not seek to re-argue before us questions that were argued on those two applications. His complaint was that as a result of the joint trial, the appellant had not been given a fair trial. This was said to arise from cross-examination by counsel for Longman of two witnesses in particular.
Danielle Depares was an acquaintance of both the accused and was aged 16 at the time. She was one of the persons whom the accused had met in the afternoon at the Elizabeth City Centre and with whom they had gone back to the apartment of another friend where everyone drank alcohol into the evening. She said that the accused had left the apartment at about 7.00pm, and she had seen them later at the party that evening after 8.00pm. In evidence-in-chief she said that at the later party she saw blood on the appellant's jacket and said that he admitted having been in a fight but that nothing else was said. She was cross-examined by counsel for Longman about a statement she had given to police within 48 hours of the incident. By reference to the statement it was put to her that she had told the police that the appellant had told her, after telling her about being in a fight, that Longman had run off. She said that she could not remember that part of the conversation but when it was put to her that because of the statement it was more likely that that part of the conversation occurred, she said "I guess so, yes".
Another witness at the party was Amy Dale. She was aged 14. She deposed to having seen the appellant at the party, and having pointed out blood on his jacket, the appellant had said that he had "smashed the guy, smashed the person". She also gave evidence that a few days later, in a conversation with Longman, Longman said "Between you and me, we did it", referring to the events in Pickett's apartment. She, too, was cross-examined by counsel for Longman about her statement to the police. She was asked to read what she had said the appellant said to another friend in her presence. That passage was:
"He (the deceased) started on my friend Benny (Longman), I think I killed him, I killed the cunt. The body was still there five or six hours ago. Do you want to come and see it?"
When asked whether that was something the appellant had said to the other person she said "Yes, I think so". A number of other passages in her record of interview which had not been the subject of her evidence-in-chief were put to her. Those passages, if not harmful, were at least not helpful to the appellant's case. However, she said she could not remember saying those things in the record of interview. The complaint was that, even though the witness did not acknowledge in her sworn evidence having made the statement, the content of the statement had been revealed to the jury as a result of cross-examination by counsel for the co-accused and a miscarriage had occurred.
After the relevant cross-examinations had occurred, a further application for separate trials was made on the basis that a number of Crown witnesses had not come up to proof and yet were cross-examined by counsel for the co-accused to ensure that everything of an incriminating nature against the appellant that could be said was said. The application was not put upon the footing that the contents of the statements had been revealed but merely that the appellant had been disadvantaged by having Crown witnesses exposed to cross-examination by counsel for the co-accused. The application was refused.
In Webb and Hay v R (1994) 181 CLR 41 at 88-89, Toohey J, with whom Mason CJ and McHugh J agreed, endorsed the general approach taken by King CJ to an application for separate trials expressed in R v Webb and Hay (1992) 59 SASR
563 at 585 and in R v Collie (1991) 56 SASR 302 at 307-311. I need not repeat those principles. In the firstmentioned case at p89 Toohey J said:
"There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused (Reg v Harbach (1973), 6 SASR 427, at p433).
In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put another way, whether improper prejudice has been created against an accused."
The improper prejudice said to have been created against the appellant in this case was the revealing in evidence of the contents of prior statements made by witnesses which were not repeated in evidence or adopted by them as part of their evidence. It is a regular feature of joint trials that evidence which is unfavourable to an accused and which would not be admissible against that accused is given in the same trial, being admissible against the co-accused. That obvious prejudice is insufficient, of itself, to produce a miscarriage of justice provided that adequate directions are given by the trial judge as to the use which can be made of such evidence. In my opinion the same can be said of previous out of court statements not admitted by the witness provided that appropriate directions are given.
In this case the learned trial judge directed the jury about the impermissible use of an out of court statement made by one co-accused against another. That was done during the trial at the end of a day on which a number of witnesses had deposed to conversations with both the appellant and Longman at the party following the murder. It was repeated during the course of the learned trial judge's summing-up. On the morning of the next sitting day, when speaking again of out of court statements, the learned trial judge made it quite clear to the jury that an out of court statement, including what a witness may have said in a statement to the police, is not evidence in the case, and the only way such a statement could become evidence is if the witness adopts it in the witness box as being a true version of events. His Honour went on to point out that if a witness says something on oath which is at variance with what the witness has previously said, that might affect the jury's estimate of the truthfulness and reliability of the witness and of the evidence given in court. The jury was reminded of that direction during the course of the learned trial judge's summing-up when he was summarising the evidence given by the witnesses who were at the party (AB1:129). In my opinion the directions given were adequate to ensure that the jury would not act upon an out of court statement not adopted by a witness in evidence, and that was sufficient to overcome any prejudice that might have arisen by the reference to such statements.
Counsel for the appellant, in his written outline, cited R v O'Boyle (1991) 92 Cr App R 202 as authority in support of his argument that separate trials should have been ordered. That was a case of the appellant being charged with two counts of conspiracy and the co-accused being charged only on the second of those counts. An alleged confession of the appellant was ruled inadmissible against him, but counsel for the co-accused was allowed to cross-examine the appellant on that inadmissible statement. The appellant did not admit the statement, and officers who took the statement were then recalled and gave evidence at length about it. The Court of Appeal reaffirmed the weight of authorities supporting the advisability of holding joint trials, but held that in the circumstances in question, the statement, once admitted, it would be impossible for the jury to ignore it. The Court concluded "that this was a wholly exceptional, if not unique, case and that the judge gave insufficient weight to the fact that separate trials would do little, if any, harm to co-defendant or prosecution, whilst a joint trial would almost guarantee that the appellant would be convicted whatever direction was eventually given to the jury as to how they should approach the difficulty" (ibid at p207).
In the instant case, a joint trial was highly desirable if the possibility of inconsistent verdicts was to be avoided, particularly as each accused was casting blame on the other. There were what King CJ described in R v Webb and Hay (supra) at p585 as "strong reasons of principle and policy" to support a joint trial. It cannot be said, as in O'Boyle (supra), that the joint trial would almost guarantee conviction of the appellant whatever direction was given. The nature of the evidence given was very different from that objected to in O'Boyle. Subject to the giving of proper directions, which were in fact given, any prejudice to the appellant was quite insufficient to detract from the compelling reasons for a joint trial.
In my opinion this ground also has no substance. Accordingly, I would dismiss the appeal against conviction.
Appeal Against Sentence
In the light of the jury's verdict against the appellant and its acquittal of Longman, the learned trial judge was able to conclude, for the purpose of sentencing, that the appellant had battered the deceased with the clothes iron, thereby inflicting fatal injuries, and that he left him bleeding and injured on the floor. His Honour observed:
"I don't know whether you actually intended to kill as distinct from causing grievous bodily harm, but it is clear from your actions that, at the very least, you didn't care whether he died."
The learned trial judge went on to observe that the appellant had shown no practical sign of remorse, and that his conduct during the trial "of being prepared by implication to saddle the dull-witted Benny Longman with the blame and to have him spend years in prison for your crime in order to save yourself does not suggest a reformed state of mind".
The only circumstance which the learned trial judge could find in the appellant's favour was his youth, being only just 19 years of age at the time of the murder. His Honour considered that there was "some prospect" of the appellant responding positively to parole in the future, especially if some of his psychological problems could be resolved whilst he was in prison. He then proceeded to fix a non-parole period of 17 years.
Considerations relevant to the fixing of a non-parole period in these circumstances were recently reaffirmed by this Court in R v Winters (Unreported, CCA (SA) 1 July 1997, Judgment No S6230). Doyle CJ, speaking on behalf of the Court said (at pp4-5):
"The matters to be considered by a judge in fixing a non-parole period were conveniently summarised by King CJ in The Queen v Stewart (1984) 35 SASR 477. He said (at 477):
'The first question which I think a judge has to ask himself on an application of this kind is: what is the minimum time which the prisoner must spend in prison in order to satisfy the punitive and deterrent and preventive purposes of punishment?' A little later he said (at 479): 'Having considered what is the minimum term of imprisonment which is required to meet the punitive and protective purposes of punishment I must then consider whether parole is appropriate on other grounds. That involves a consideration of the likelihood of the applicant responding to parole. I must consider what prospects there are of his rehabilitation by means of parole and what prospects there are of his observing the terms of parole, responding to it and leading a good and useful life in consequence.' I do not suggest that what King CJ there said is exhaustive of the matters that require consideration. However, as I have already said, these passages conveniently summarise the approach to be taken.
It is clear from what his Honour said, that in fixing a non-parole period the Court must continue to bear in mind and give appropriate weight to the purposes for which punishment is imposed. That was recognised by the High Court in Power v The Queen (1974) 131 CLR 623 and more recently affirmed by the High Court in Bugmy v The Queen (1990) 169 CLR 525."
In Winters the murder had been committed almost fourteen years before the date of arrest, in circumstances where, although the appellant did not intend to kill or cause grievous bodily harm, he was nevertheless guilty of murder because he caused the death whilst committing a violent rape. Since then he had avoided detection, had led a relatively normal married life and, it was suggested, was unlikely to offend again. The non-parole period fixed was twenty years.
It is important to remember, of course, that whatever non-parole period an individual judge may have fixed, this Court can only interfere if there is a demonstrable error of fact or principle, or if there is a manifest disproportion between the non-parole period fixed, and what is required (R v Winters, supra at p5).
The majority in Bugmy v The Queen (1990) 169 CLR 525 pointed out that considerations which bear on the fixing of a head sentence are not the same as those which are relevant to a non-parole period, although some of the factors will be the same, whilst carrying different weight. The majority nevertheless concluded (at p538):
"But in the end the minimum term is to be fixed because all the circumstances of the offence require that the offender serve no less than that term, without the opportunity of parole: See generally King CJ in R v Robinson
(1979) 22 SASR 367 at 370."
The Court held in that case that factors such as prospects of the defendant re-offending carried very little weight in fixing a non-parole period of the length of 18 years and 6 months, simply because it was impossible to tell at the time of sentencing what those prospects would be at that time. The Court did not hold, however, that that difficulty was a reason for reducing the non-parole period. The likelihood of the appellant re-offending was merely a factor which had been given undue weight by the majority of the Victorian Court of Criminal Appeal.
It is clear from the learned trial judge's sentencing remarks that he did not take into account, in fixing the non-parole period, matters which might be relevant to the fixing of the head sentence. He was properly concerned to fix a minimum custodial period which properly reflected the callous and violent nature of the crime and the appellant's lack of remorse. He properly took into account the prospect of a positive response to parole in the future, and fixed a term which would allow for that, and which also took into account the appellant's age. I can detect no error of principle, and I am not persuaded that, taking the circumstances into account, the non-parole period was manifestly excessive.
I would therefore also dismiss the appeal against sentence.
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