R v Jones

Case [2017] SASCFC 163

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v JONES

[2017] SASCFC 163

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)

6 December 2017

CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS - CHARACTER OF WITNESS

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

Application for an extension of time within which to appeal and application for permission to appeal against conviction.

The applicant was convicted by a jury of one count of aggravated causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935.

The prosecution case was that the applicant, in the company of another, attended a property of a drug dealer at which the victim, alongside his young daughter was a visitor. When the victim had gotten inside his car to leave, the applicant stabbed the victim through the open car window. The prosecution case relied on the victim’s testimony and identification of the applicant; medical evidence that the victim presented with cuts to his chest and arms; evidence of the applicant’s DNA being found on a broken watch inside the victim’s car; injuries to the applicant observed by the police; and a connection between the applicant and a vehicle consistent in appearance with one seen leaving the crime scene shortly after the incident.

At trial, defence counsel sought to cross-examine the victim on his propensity for violence and dishonest conduct. The Judge did not permit this cross-examination.

The applicant was on home detention bail during the trial. Subsequent to both the close of the prosecution case and his announcing that he would not give or call evidence, but prior to closing addresses, he cut off his home detention monitoring device and absconded. The trial continued in his absence and his defence counsel withdrew. He was convicted unanimously by the jury. The applicant succeeded in evading arrest until 19 December 2016, after the expiration of the time limit within which to appeal, on 10 November 2016.

The applicant sought an extension of time within which to appeal on the ground that a miscarriage of justice occurred as a result of the trial Judge refusing defence counsel permission to cross-examine the victim as to the previous convictions.

Held per Kourakis CJ (Nicholson J agreeing), granting permission to appeal and allowing the appeal:

1.       The applicant was not bound, consistent with the presumption of innocence, to first concede that he had stabbed the victim before exercising his right to cross-examine the victim for the purpose of impeaching the victim’s credit.

2. The applicant’s counsel was entitled to cross-examine the victim on his alleged and proven offences. Insofar as that conduct went to credit only, the answers could not be contradicted by evidence except that those convictions, if denied, could be proved pursuant to s 26 of the Evidence Act 1929.

3.       It is not possible…

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R v Jones [2017] SASCFC 163
Case
[2017] SASCFC 163
Decision Date

CaseChat Overview and Summary

The case of *R v Jones* concerned an appeal against conviction for aggravated causing harm with intent to cause harm. The applicant, Raymond Patrick Harley Jones, was tried by judge and jury and convicted on 19 October 2016. He subsequently absconded from bail during the trial and was arrested on 19 December 2016. The appeal was heard by the Court of Criminal Appeal of South Australia, comprising Kourakis CJ, Peek and Nicholson JJ.

The central legal issue before the Court of Criminal Appeal was whether the trial judge erred in law by preventing the applicant from cross-examining the complainant, Mr Cailes, about his alleged violent and dishonest past. The applicant contended that this cross-examination was crucial for two reasons: to support a defence of lawful defence of another by demonstrating Mr Cailes' propensity for violence, and to generally attack Mr Cailes' credit and credibility, thereby influencing the jury's assessment of his evidence. A further issue was whether the defence of lawful defence of another could arise on the evidence presented.

The Court found that the trial judge had erred in law. It was not for the jury to "determine an issue of whether self-defence arose," but rather for the defence to raise it and for the prosecution to disprove it beyond reasonable doubt, provided the elements of the defence under section 15 of the Criminal Law Consolidation Act 1935 were met. The Court noted that the cross-examination of Mr Cailes regarding his concern for Mr Dowsett and his denial of swinging an adjustable spanner at anyone indicated that a defence of lawful defence of another might have been arguable. The Court also considered that the applicant's conduct in absconding weighed against an extension of time, but this was outweighed by the importance of correcting the legal error and maintaining the integrity of the criminal trial process.

The Court ordered that the applicant be granted an extension of time within which to file the appeal, allowed the appeal, and remitted the matter to the District Court for retrial.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Counsel asserted that the reason for the proposed cross-examination was to support a defence of “lawful defence of another” in two ways. First, to demonstrate a propensity by Mr Cailes to resort to violence. Second, to generally attack the credit and credibility of Mr Cailes such that the jury might simply not be prepared to act on his word and therefore might decline to convict.Could a defence of “lawful defence of another” arise on the evidence? In so far as the proposed cross-examination was said to be referable to a defence of “lawful defence of another”, there was a real issue as to whether such defence could arise on the evidence. The following matters are to be noticed. First, on the evidence led, or remaining to be led, by the prosecution, such a defence quite clearly did not arise. This was confirmed in the cross-examination of Mr Cailes thus:Q Wasn’t it the case that you were concerned for Mr Dowsett as well?A Yes.Q He was a friend of yours?A Supposed to be.Q At February 2015?A Yes.Q He was a friend?A Yes.Q He was also the person supplying you with your drugs?A Yes.QYou were reluctant, I put it to you, to leave him on the roof with these two men in the front yard. Do you know what I mean by that?NOT ANSWEREDHER HONOURQ Is that the case?A Yes.CROSS-EXAMINATIONQSo you didn’t want to leave Mr Dowsett by himself with these two men in the front yard?A That’s correct.QIsn’t that why you swung the adjustable spanner at the smaller of these two men in the front yard?A I never swung anything at anyone. (Emphasis added) And further:QSo what I’m putting to you is that the man with the tattoos on his face rushed towards you as you had one foot in the car and one foot out and just after you had taken a swipe at the smaller man with the shifting spanner; you deny that I take it?AI deny that. How am I supposed to swipe at the man with the shifting spanner? How am I supposed to swipe it from the man with the tattoos on his face when I’ve got one foot in the car and one foot on the ground? Yes.QThe smaller of the two men I put to you had moved to the side of the driver’s side of your vehicle, in response to Mr Dowsett throwing tiles?A No, he didn’t. (Emphasis added) Later, counsel again put to Mr Cailes that he swung the adjustable spanner at the applicant’s friend; Mr Cailes again denied it:QMr Cailes, so that there is no misunderstanding about what I am putting to you, what I want to put to you is that you swung the adjustable spanner at the shorter man’s head when he came close to you after Mr Dowsett had thrown or threatened to throw a roof tile. Do you disagree with that?A I a hundred-per-cent disagree with that.QAnd then what happened is that you were half in and perhaps half out, one foot on perhaps the door sill of the blue Holden Cruise, one foot on the ground, and it is at that point that you’re tackled by the man with the tattoos on his face. You disagree with that?A Repeat that, that long last question.QSure. What I’m putting to you is that the man with the tattoos tackled you around sort of the middle of your body when you had one foot in and one foot out of the driver’s compartment of the car?A That’s not right.QWhat I also put to you is that you and that man struggled or wrestled with one another until you were able to get in the car and close the door. You disagree with that?A I disagree.QAnd then you drove off, having struck the man with the tattoos in the face. You disagree with that or is that part potentially true but – AThe last part is potentially – the last part’s true, I drove off in a struggle and attempted to hit or strike or push or just get whatever was on top of me away from me. It was danger.QBut it happened in different circumstances is what you say. When you were sitting in the car?A Yes.Q And the man was leaning through the window?A Yes.Q Not before you sat in the driver’s seat?AI didn’t have any contact or anything with anyone or any words with anyone when I was standing at the car.QAnd I think I have already put to you that you then drove up and down and tried to hit these men?A That’s not right. I had my daughter in the car. I’m not going to do shit like that. [That completed the cross-examination of Mr Cailes.] (Emphasis added)

Decision

Reasons for decision

PEEK J
I would grant the extension of time for the following reasons. First, it is not only arguable, but clear, that the Judge erred in law with respect to an important aspect of trial procedure. Secondly, it is of general importance to correct the error of law, and the misconceptions on which it is based, in order to give guidance to trial courts. Thirdly, there are strong reasons not to apply the proviso because it would require this Court to hypothesise on what the testimony which was wrongly precluded might have been. The applicant’s contumacious conduct weighs heavily against an extension of time but, in the circumstances of this case, is outweighed by the importance of maintaining the integrity of the criminal trial process on a very serious charge which, on conviction, carries a heavy sentence.Conclusion I would make the following orders:1The applicant is granted an extension of time within which to file the appeal.2 Appeal allowed.3 Matter remitted to the District Court for retrial. Introduction The applicant was tried by Judge and a jury for the offence of aggravated causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935. The Information was as follows:Raymond Patrick Harley Jones on the 25th day of February 2015 at Blakeview, unlawfully caused harm to Ricky Andrew Cailes, intending to cause him harm.It is further alleged that that [sic] Raymond Patrick Harley Jones used an offensive weapon, namely a knife, when committing the offence. The applicant was on home detention bail during the trial and was represented by his solicitor and counsel, Mr Sale (who also appeared on the appellate proceedings). After the prosecution closed its case, the applicant announced that he would not give or call evidence. He later cut off his home detention monitoring device and absconded from bail, failing to appear on 18 October 2016. A bench warrant was issued for his arrest and the trial continued in his absence. He was convicted by unanimous verdict on 19 October 2016. The 21 calendar day time limit within which to appeal against conviction commenced the following day, 20 October 2016, and expired on 10 November 2016. The applicant succeeded in evading arrest until 19 December 2016 when he was arrested and taken into custody on the bench warrant. On 24 January 2017, the applicant first sought advice from Ms Willis of the Legal Services Commission as to whether he could appeal his conviction. On 31 January 2017, Ms Willis sought the advice of Legal Services Commission counsel as to the merits of the appeal; and on 20 March 2017, counsel advised that there were arguable grounds of appeal. A notice of appeal was filed on 28 March 2017. On 5 June 2017 a single Judge heard the application for permission to appeal and dismissed the application. The applicant then requested that the application for permission to appeal be referred to and determined by the Full Court. On 18 August 2017, the Court of Criminal Appeal heard at the same time the submissions concerning extension of time, permission to appeal and the substantive submissions that were to be relied upon should the necessary preliminary applications be granted. The Court reserved judgment on all matters.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

Third, a demonstration by the applicant that there are substantial grounds for apprehending that an error of law was made may, according to the circumstances, be relevant to the establishment of substantial grounds for apprehending that a miscarriage of justice has actually occurred.Consideration of the application to extend time in the present case In the outline of argument filed by the applicant, a number of submissions are made as to the past and present state of the common law concerning cross-examination of witnesses as to asserted discreditable conduct and the correct interpretation of various provisions of the Evidence Act 1929. As reference to textbooks and the authorities discloses, there are numerous ongoing (and/or forgotten) debates and questions in this area, somewhat divorced from the facts of the present case. Putting aside those interesting questions, as counsel in the present case largely have, the gravamen of the applicant’s substantive submissions on appeal is briefly summarised in the following extract from his outline of argument:The Applicant submits that in this manner the Learned Trial Judge, in a matter where the credibility of the Complainant was of paramount importance, deprived the Applicant of the right to cross-examine the Complainant about his violent and dishonest past. In doing so the jury were not privy to the Complainant’s history of violence which included 2 offences of dishonesty in the past 5 years and 6 charges of violence in the last 4 years. In determining the issue of whether self-defence arose or whether the Complainant’s evidence could be believed the jury were deprived of this information and the ability to assess his demeanour when so cross-examined. As to the first of the two paragraphs, one might well question the assertion that this is “a matter where the credibility of the complainant was of paramount importance” in the present circumstances where there was a great deal of circumstantial evidence confirmatory of the evidence given by Mr Cailes and the applicant declined to give evidence at trial.Was there an “issue of whether self-defence arose” for the jury to consider? However, it is in the second paragraph that real difficulties for the applicant emerge. The words “in determining the issue of whether self-defence arose … the jury were deprived …” quite wrongly assume that it was for the jury to “determine an issue of whether self-defence arose”. The presently relevant provisions of s 15 of the Criminal Law Consolidation Act 1935 are as follows:15. (1) It is a defence to a charge of an offence if – (a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and(b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.…(3)For the purposes of this section, a person acts for a defensive purpose if the person acts –(a)in self defence or in defence of another; or(b)to prevent or terminate the unlawful imprisonment of himself, herself or another.…(5) If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproved the defence beyond reasonable doubt.