R v Jones
[2017] SASCFC 163
•6 December 2017
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 to conclude that the cross-examination, had it proceeded, may not have left a jury in doubt as to the commission of the offence by the appellant. The proviso should not be applied.
4. The applicant is granted an extension of time within which to file the appeal.
5. The matter is remitted to the District Court for retrial.
Per Kourakis CJ:
1. The evidence of a predisposition to violence was probative on the issues of self-defence or defence of another, whether or not the totality of the evidence at the end of the trial was sufficient to leave those defences to the jury.
Per Peek J, dissenting:
1. In circumstances where the applicant absconded, and this absconding was causative of the appellate documentation being filed only after the expiration of the time limit within which to appeal, there is no occasion to distinguish between a “relatively slight delay” and a “substantial delay”. In such a case, an extension of time within which to appeal should only be granted if the applicant demonstrates that there are substantial grounds for apprehending that a miscarriage of justice has actually occurred.
2. The defence of ‘lawful defence of another’ did not arise on the evidence in circumstances where insufficient factual detail was put to the victim in cross-examination, and where the applicant elected not to give evidence.
3. An extension of time within which to appeal should not be granted because the applicant failed to demonstrate that there are substantial grounds for apprehending that a miscarriage of justice occurred as a result of the trial Judge not permitting defence counsel to cross-examine the victim on his previous discreditable conduct.
Criminal Law Consolidation Act 1935 ss 15, 24, 353; Supreme Court Criminal Rules 2014 r 107, referred to.
R v Gibb & McKenzie [1983] 2 VR 155; Re Knowles [1984] VR 751, applied.
Jackamarra v Krakouer (1998) 195 CLR 516; R v Gee (2012) 113 SASR 372; Gallo v Dawson (1990) 93 ALR 479; R v Brown [1963] SASR 190; R v Balchin (1974) 9 SASR 64, discussed.
Bugg v Day (1949) 79 CLR 442; R v Simmons [2017] SASCFC 49; R v Charles and Tucker [2001] EWCA Crim 129; Poitrimol v France (1994) EHRR 130; R v Foster (1996) 187 LSJS 135; Gikas v Police (1999) 202 LSJS 301; R v Gray [2004] SASC 218; Smith v Western Australia (2014) 250 CLR 473, considered.
R v JONES
[2017] SASCFC 163Court of Criminal Appeal: Kourakis CJ, Peek and Nicholson JJ
KOURAKIS CJ: Before turning to the circumstances of this case, it is convenient to say something about the importance of cross-examination. An accused in a criminal trial is presumed innocent throughout the trial process unless and until a guilty verdict is returned and is under no obligation to adduce evidence. An accused is under no obligation to testify in his or her own defence, nor is an accused required to disclose any defence in order to be permitted to cross‑examine prosecution witnesses, either to impeach their credit or to adduce exculpatory evidence from them. These are fundamental attributes of the common law criminal trial.
Cross-examination on credit is an essential tool for the testing of witness testimony.[1] In R v Watson,[2] Lord Ellenborough declared that ‘the Courts indulge free cross-examination’ for the purpose of ‘ascertaining the credit due to a witness’. In Harris v Tippett,[3] Laurence J stated the rule to be that a witness could be questioned ‘as to any improper conduct … for the purposes of trying his credit.’
[1] Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533 at 545 per Latham CJ.
[2] (1817) 2 Starkie 116 at 151.
[3] (1811) 2 Camp 637 at 638; (1811) 170 ER 1277 at 1278.
Cross-examination as to convictions is a species of cross-examination as to discreditable conduct. It was relatively rare for witnesses who had convictions to be regarded as competent to give evidence at common law.[4] That issue, if contested, was determined outside of the trial. For that reason, the common law was seldom concerned with the question of the admissibility of the evidence of the conviction in the trial itself. In Bugg v Day,[5] Dixon and Williams JJ expressed opposing, obiter, views on whether the common law allowed a conviction to be proved if denied by a witness in those rare cases in which it might arise in the course of the trial.[6] The Evidence Act 1843 (Vic) (6 & 7 Vict c 85) (UK) effected a reform whereby a witness was still competent notwithstanding prior conviction. Following that reform, consideration was given to the extent to which cross‑examination about convictions should be allowed, and when denied, if and how they might be proved. The result of that consideration was s 6 of the Criminal Procedure Act 1865 (UK) which provided that a witness may be questioned about convictions for any misdemeanour and if he or she denied, or did not admit the convictions, permitted the cross‑examining party to prove them. That position is replicated by s 26 of the Evidence Act 1929 (SA) (the Evidence Act).
[4] Heydon JD Cross on Evidence 10th Ed LexisNexis, Sydney, 2015 at 674 [19020].
[5] (1949) 79 CLR 442.
[6] Bugg v Day (1949) 79 CLR 442. At 465, Dixon J observed that a witness could generally be impeached only by cross examination but that production of the record of conviction was an exception to that rule. To the contrary, Williams J held at 474-475 that it was always permissible at common law to seek to impeach a witness in a civil case by cross-examining him as to prior convictions for felonies and misdemeanours. However if the witness denies the conviction, then the matter is collateral and the witness cannot be contradicted by proof of the conviction.
The applicant’s plea of not guilty put all elements of the charge of unlawfully stabbing the victim, C, in issue. Even though C’s testimony that he was stabbed was not challenged, the applicant’s counsel cross-examined C to the effect that C came into the front yard armed with a spanner which he swung at the applicant’s friend, F. It was put that only then did the applicant rush at C and wrestle with him until C got into his car. The applicant’s counsel put that in that struggle C struck the applicant in the face. It was also put that, once in the car, C attempted to run down the applicant and F with the car. It will be observed that counsel’s cross‑examination was silent on when, how and by whom C was stabbed. It was that omission which most concerned the Judge and resulted in the ruling precluding cross-examination on C’s offending.
Before the applicant’s counsel put his instructions as to the events in the yard he had embarked on a course of cross-examination of C on C’s propensity to violence and dishonest conduct. The prosecutor objected when the first question was asked, but only to suggest that the Judge consider whether C should be warned against self‑incrimination. However, the Judge, of her Honour’s own motion, raised the question whether the applicant’s counsel should be permitted to cross-examine on C’s prior convictions at all.
During argument on the proposed questions, the Judge insisted that the applicant’s counsel disclose how precisely the applicant had reacted to C’s conduct because without that being put the question of the proportionality of his conduct could not be judged. However, the applicant was not bound, consistent with the presumption of innocence, to first concede by the questions asked in cross-examination that he had stabbed C in order to exercise his procedural right to cross-examine C for the purpose of impeaching his credit or adducing any relevant evidence.
The applicant was entitled to conduct his defence in a way which left open a submission that the prosecution had failed to prove beyond reasonable doubt any event alleged to have happened in the front yard because C’s testimony was worthy of no credit whatsoever. The applicant was also entitled to conduct his defence in a way which, by remaining silent on the question of how, and by whom, C was stabbed, left open the possibility that F stabbed C. Of course, whether or not C’s counsel could make that submission expressly or by implication depended on his instructions. Finally and in the alternative, the applicant may not have wished to particularise precisely when and how C was stabbed in order to maximise the range of circumstances in which the jury might allow for the stabbing to possibly have occurred for a defensive purpose. The applicant’s forensic strategy was fraught, but the applicant was entitled to take it.
It is accepted on this appeal that the applicant’s counsel proposed to cross‑examine C about the following offences of violence:
·aggravated assault in October 2012 (convicted)
·aggravated assault in June 2016 (charged)
·aggravated assault January 2016 (charged)
·threaten harm in September 2015 (charged)
·aggravated assault in May 2015 (charged)
·aggravated assault in February 2014 (charged)
It is also accepted that the applicant’s counsel proposed to cross-examine C about the following offences of dishonesty:
·theft in March 2014 (convicted)
·deception in July 2012 (convicted)
Consistently with the wide latitude allowed by the common law of evidence, it was the applicant’s procedural right to cross‑examine on all of those alleged and proven offences. The applicant’s counsel was entitled to cross-examine both as to the fact of conviction or charge and about the underlying conduct. Insofar as the conduct went to credit only, the answers could not be contradicted by evidence, save as to convictions, which, if denied, could be proved pursuant to s 26 of the Evidence Act.
However, the offences of violence did not go to credit alone. In R v Gibb & McKenzie, (Gibb & McKenzie)[7] the Full Court of the Supreme Court of Victoria held that evidence of the propensity for violence of a third person could be led, as of right, by an accused if it was relevant to his or her defence. Gibb and McKenzie were jointly charged with murder. McKenzie’s defence was that he was acting under the duress of Gibb. The trial Judge did not permit McKenzie’s counsel to cross‑examine a prosecution witness to adduce evidence of Gibb’s propensity and reputation for violence. McKenzie’s appeal was allowed. The Full Court observed that evidence of violent disposition was of a kind which an accused often sought to lead in a case of self-defence but that there had been a difference of opinion between Victorian trial judges as to whether the evidence could only be led if the accused knew of the third person’s disposition. That line of authority limited the relevance of the victim’s violent disposition to the subjective element of self-defence. However, in R v Hector,[8] Sholl J permitted evidence to be given ‘not only of the accused’s knowledge of incidents of which the accused had personal knowledge or of which he had been informed, but also evidence of occurrences of incidents, deposed to by third parties, which incidents are consistent with other evidence given by the accused of his own state of mind and what induced it’. That view prevailed in Gibb & McKenzie.[9]
[7] [1983] 2 VR 155.
[8] [1953] VLR 543 at 547 cited in R v Gibb & McKenzie [1983] 2 VR 155 at 170-171.
[9] R v Gibb and McKenzie [1983] 2 VR 155 at 171.
Re Knowles[10] was the hearing of a petition for mercy which had been referred to the Full Court of the Supreme Court of Victoria. The Court (Crockett, McGarvie and Gobbo JJ) followed and applied the decision in Gibb & McKenzie. At trial the petitioner had relied on self-defence to defend a charge of the murder of his girlfriend. His defence was that in the course of an argument she had come out of the kitchen carrying a knife and threatened to use it if the petitioner did not leave their flat. He stayed out of concern for their children who were sleeping in the house. He claimed that he accidentally fatally stabbed his girlfriend in the ensuing struggle. On the petition for mercy, the petitioner relied on an affidavit of the deceased’s former husband, H, who had not been called as a witness at the trial. He described the deceased as having been ‘so argumentative and aggressive during their marriage that he thought her mentally unstable’[11] and deposed to specific incidents of unprovoked violence. Another man, S, who was formerly engaged to the deceased also deposed to sudden unprovoked violent incidents in which the deceased had threatened to kill others. The incidents were associated with only moderate consumption of alcohol. Knowles’ solicitors knew of S’s accounts before trial but did not call him, believing that his accounts were inadmissible because Knowles was unaware of them. The Full Court held that the evidence of H and S went to whether the deceased had initiated the fatal incident by arming herself with a knife, whether she acted in a threatening or belligerent manner, and whether she strongly resisted Knowles’ attempts to disarm her. The Full Court endorsed the view expressed in Wigmore on Evidence[12] that the evidence also went to the question of the objective occurrence of the events in question and not just to Knowles’ subjective belief.[13]
[10] [1984] VR 751.
[11] Re Knowles [1984] VR 751 at 757.
[12] Wigmore J, Evidence in trials of common law 3rd Rev Ed, Little, Brown and Co Boston 1983 at 470-1.
[13] [1984] VR 751 at 768.
It follows that in this case not only was the cross‑examination of C permissible for the purposes of impeaching C’s credit but it was also admissible as an evidential foundation for the submission that C acted aggressively by swinging the spanner. C denied doing so, but it remained a question of fact for the jury whether or not that evidence should be accepted. The jury’s determination of whether to accept C’s testimony might critically have been affected by C’s predisposition to violence if that were known to them. Moreover, C’s responses to that questioning, particularly if he was evasive or made false denials which were disproved by proof of his convictions, might have discredited him greatly. Indeed, a denial of the underlying conduct in the case of the offences of violence was also capable of contradiction by calling the witnesses to that conduct because their evidence was probative of a fact in issue, namely whether he swung a spanner at F.
The Judge’s reasoning for refusing to allow the cross‑examination was that there was yet insufficient evidence on which to leave the defence of self-defence or defence of another. Her Honour said:
… I need to consider whether your line of cross-examination is relevant. In order to assess whether that is relevant or not I need to consider is self-defence, or defence of another, even open in this case. And at the present time I don’t see that it is open and if you can’t assist me any further then my ruling is going to be you cannot cross-examine on any of those matters that were raised.
The Judge ruled that cross-examination both as to the dishonesty offences and the offence of violence would not be permitted.
The Judge’s ruling was plainly wrong. Cross‑examination as to credit does not depend on it being probative of any fact in issue. It is sufficient to be entitled to cross-examine on credit, that an accused enter a plea of not guilty and that the prosecution assert that a witness should be believed in order to discharge its evidential burden. Moreover, as I have explained, the evidence of a predisposition to violence was probative on the issues of self‑defence, or defence of another, whether or not the totality of the evidence at the end of the trial was sufficient to leave those defences to the jury.
I pause here to observe that the prosecutor did not rely on the statutory discretion allowed by the Evidence Act to disallow questions which might otherwise be permissible at common law. Nor did the Judge purport to rely on those provisions. Section 22 of the Evidence Act confers a discretion to disallow questions which are vexatious and not relevant. Section 23 of the Evidence Act prescribes the considerations which a judge is to take into account in exercising that discretion. Section 24 of the Evidence Act allows a discretion to excuse a witness from answering, even if the question has been permitted. Cross‑examination of C on the serious offending of which he was charged or convicted, either alone or in combination, was undoubtedly capable of undermining his credibility. The criminal conduct was not remote in time.
On this appeal, both for the purpose of any possible application of the proviso and for the purpose of the application to extend time, it is necessary to consider the significance of the applicant’s failure to put how the stabbing occurred.
I do not accept that it is necessary for an accused to posit, through cross‑examination, or in submissions or an address, the particular way in which he responded to an attack to satisfy his evidentiary burden on the element of defence of another. It was common ground that C was a friend of the occupier of the house and that there was animosity between the occupier on the one hand and the applicant and F on the other. The owner threw roof tiles at the applicant and F as they stood in the front yard. It can hardly be disputed that cross-examination on a significant proclivity to violence may have caused the jury to doubt C’s denial that he wielded a spanner. In that context, adducing evidence that C had a proclivity for violence would discharge the evidentiary onus and put self‑defence and defence of another in issue.
I acknowledge that the defences were tenuous. However, I am not persuaded that the applicant was not denied the possibility of an acquittal which was reasonably open to him because it cannot be known how C might have answered. At the very least, it is not possible on this appeal to confidently decide that defence of another or self-defence would not have been left, precisely because the cross‑examination was disallowed. It cannot now be known how C might have answered questions about his discreditable conduct generally and the violent conduct in particular. Nor can it be known how C might have answered questions about the events in the front yard if he first had been cross‑examined about his prior offending. It cannot be known how the jury might have evaluated C’s credit in the light of those answers. It is therefore not possible to conclude that evidence of C’s violent tendency may not have left a jury in doubt on the disproof of the element of defence of another.
It follows that if the application had been brought within time the appeal would have been allowed because the Judge erred in law and the proviso could not be applied on a hypothesis that C’s answers, including answers given about the events in the front yard after he was challenged by reference to his prior violent offending, which are unknown, could not possibly have been material.
The fact that the applicant absconded after he was denied an important procedural right by the Judge’s ruling does not disentitle him from agitating these matters. The period of delay is not great, albeit I accept the short time period is a matter of happenstance, in that the applicant was apprehended against his will.
The circumstances of this case may be compared with the position if the applicant was convicted in his presence but had absconded after being granted bail pending his appeal. The appeal may have been stayed whilst he was at large, but it is doubtful that it could have been dismissed because there is no requirement for the presence of an accused on appeal. If he were later apprehended then there could be no reason for the stay to continue and the appeal would be allowed. It is difficult to justify very different results depending on when a convicted person absconds even though delays after the institution of a proceeding are generally accorded less weight than delay before instituting the proceeding.
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.
PEEK J.
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.
I would refuse the application to extend time within which to appeal. My reasons follow.
The prosecution case at trial
A brief summary of the evidence of Mr Cailes, the asserted victim of the crime charged against the applicant, is as follows.
As at 25 February 2015, Mr Cailes was purchasing methylamphetamine for his own use from a drug dealer, Mr Dowsett, multiple times every week. On that evening, Mr Cailes had custody of his seven year old daughter and took her with him when he went to Mr Dowsett’s home at Blakeview (the Blakeview property). Two other acquaintances of Mr Dowsett happened to be there at the same time, Mr Cassidy and Ms North.
While the above persons were present at the Blakeview property, two other persons arrived, apparently intending to confront Mr Dowsett about some matter. One was a large man with tattoos on his face (the tattooed man) who, on the prosecution case, was the applicant. The other was a smaller man without visible tattoos, who, on the prosecution case, was one Callan Sinclair. These two men came to the front door and Mr Dowsett, having become aware of their presence, quickly ran out the rear door and climbed onto the roof where he was apparently using his mobile phone to make an emergency call; Mr Cassidy and Ms North also fled, jumping over the rear fence and hiding in the neighbouring property.
Mr Cailes decided to leave through the front of the premises. He picked up an adjustable spanner that happened to be in the room, concealed it inside his trousers, and then carried his daughter to the front door which he opened. Mr Sinclair assured his daughter not to worry, as they would not hurt her, and Mr Cailes carried her through the doorway to his car which was parked in the front yard. He noticed that the tattooed man was shouting at Mr Dowsett who was pacing back and forth on the roof and who, having picked up a roof tile, threw it at the tattooed man.
Mr Cailes then placed his daughter in the back seat and went to the driver’s side door, where he stood for a time observing the two men yelling at Mr Dowsett. Mr Cailes then announced he was leaving, got in the driver’s seat and attempted to do so, but the vehicle would not start as his foot was not on the clutch. The tattooed man then approached the vehicle, and leant inside the open driver’s window, swearing and grabbing Mr Cailes’ head. He was moving in repeated jabbing-type movements towards Mr Cailes’ body, which ceased only when Mr Cailes managed to push him off, start his car and drive away. On the prosecution case, it was in these circumstances that Mr Cailes was stabbed with some sort of knife, although he did not realise this until he felt wetness on his chest and discovered blood.
Mr Cailes drove towards the Elizabeth Police Station. He called 000 on the way at 9:47pm and he arrived there at 10:05pm. He was later taken to the Royal Adelaide Hospital and there treated for cuts to his chest and forearms.
At approximately 10:11pm that same night, 25 February 2015, police attended at the applicant’s home which was a few minutes’ drive from Mr Dowsett’s house at Blakeview. Police kept the premises under observation until 10:42pm, at which time the applicant emerged and was subsequently arrested.
Proof of the identification of the applicant as the tattooed man
At trial, the applicant did not concede that he was the tattooed man who had the altercation with Mr Cailes and counsel for the applicant generally referred to that person in terms such as “the man with tattoos”. The Judge in summing up directed the jury at length that identification of the applicant was an element that had to be proved by the prosecution; carefully reviewed the evidence relevant to that topic; and gave appropriate identification directions and warnings.
However, by the time of the close of the prosecution case (at the latest) it had become apparent that the cumulative force of the direct and circumstantial evidence of identification of the applicant was very strong. It included the following items of evidence:
-The victim’s description to police of the assailant as a man with facial tattoos and with other features consistent with the then appearance of the applicant;
-A photographic identification procedure carried out by Mr Cailes;
-A damaged watch was found between the handbrake and the driver’s seat in Mr Cailes’ car, a position consistent with having come off of the applicant’s wrist during the course of the altercation in the car; importantly, it had DNA on the inner surface of the watchstrap matching the applicants DNA profile and also had Mr Cailes’ blood on the back of the watch face;
-Injuries to the applicant’s left hand observed by police at the time of his arrest that night shortly after the incident were consistent with having been caused when the watch came off of the applicant’s wrist during the course of the altercation;
-Two neighbours of Mr Dowsett testified that a vehicle consistent in appearance with a white Mitsubishi Lancer car (the Mitsubishi car) which was registered to the applicant’s mother was parked at the crime scene and was driven away after the incident;
-The Mitsubishi car parked in the driveway of the applicant’s home, in the position closest to the road, was seen by police in the course of a search at the time of his arrest that night shortly after the incident (the police search);[14]
-During the police search, a key matching the Mitsubishi car was found in the pocket of a shirt hanging on the back of a bedroom door at the applicant’s home, within which bedroom was also found a bloodied tissue matching the applicant’s DNA profile;
-During the police search, an empty knife sheath attached to a belt was found by police in the laundry of the applicant’s home;[15] and
-The mobile “smartphone” found in the applicant’s possession at the time of his arrest was later found to have been interrogated concerning the address, 14 Springvale Drive, where the incident occurred.
[14] See photograph 14 of exhibit P1.
[15] Tendered as exhibit P11.
Proof that the applicant stabbed Mr Cailes during the altercation
The prosecution sought to prove that the applicant deliberately stabbed Mr Cailes, with the required specific intention, through the evidence of Mr Cailes himself and the (unchallenged) evidence of his treating doctor, Dr Puris that Mr Cailes presented at the Royal Adelaide Hospital soon after the incident with a cut to the chest (which required stitches) and cuts to the left and right forearms.
The applicant’s attempt to cross-examine as to asserted previous discreditable conduct by Mr Cailes
At trial, counsel for the applicant informed the Judge that he wished to extensively cross-examine Mr Cailes as to asserted previous discreditable conduct which would appear to have been comprised of the following three classes.
First, prior convictions. In reverse date order, these appear to be:
-Theft: offence date 13 March 2014;
-Aggravated Assault: offence date 12 October 2012;
-Deception: offence date 5 July 2012; and
-Property Damage: offence date 5 Nov 2005.
Second, charges which had been laid against Mr Cailes but by the time of the trial been withdrawn. In reverse date order, these appear to be:
-Aggravated Assault: offence date 15 June 2016;
-Aggravated Assault: offence date 28 January 2016;
-Threaten Harm: offence date 27 September 2015;
-Aggravated Assault: offence date 16 May 2015;
-Aggravated Assault: offence date 23 February 2014;
-Aggravated Assault: offence date October 2012; and
-Threaten Harm: offence date 2005.
Third, charges which had been laid against Mr Cailes and which by the time of the trial not been withdrawn. These appear to be only:
-Theft: offence date 3 November 2015.
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 ANSWERED
HER HONOUR
Q Is that the case?
A Yes.
CROSS-EXAMINATION
QSo 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)
The second matter to be noticed is that, although the applicant would have an opportunity in due course to give evidence himself, any evidence proposed to be given by him raising a defence of “lawful defence of another” clearly had to be put to Mr Cailes in cross-examination so as to give him the opportunity to respond to it (the so called rule in Browne v Dunn[16]). When the Judge understandably pressed for some factual detail of the defence of “lawful defence of another” to be asserted, counsel refused to indicate that to her Honour, or to put sufficient factual detail to Mr Cailes in cross-examination, to demonstrate that a potential “lawful defence of another” defence could arise on the evidence.
[16] (1893) 6 Reports 67 (HL).
It thus became clear, in extensive dialogue between bench and bar, that not only did counsel not undertake to call the applicant to give evidence but that counsel’s apparent intention was not to call the applicant and to later submit to the jury that, on the basis of the previous discreditable conduct put in cross-examination of Mr Cailes, they could not rule out a possibility of “lawful defence of another”. I will refer to some only of that dialogue.
Dialogue between bench and bar concerning cross-examination of Mr Cailes
During the cross-examination of Mr Cailes, defence counsel commenced the presently relevant line of questioning thus:
Q Would you describe yourself as a violent man, Mr Cailes?
A No.
Q Have you ever resorted to violence?
A Yes.
Q In a stressful situation?
A Yes.
Q When?
A A couple of occasions.
Q Can you say how many?
A A couple of occasions, like one, two or three, I don’t know.
Q When is the most recent?
A Earlier this year.
Q What did you do?
At this point, the prosecutor objected, suggesting that a warning in relation to the privilege against self-incrimination be given to the witness. The jury was subsequently sent out, and Mr Sale informed the Judge of the asserted discreditable conduct of Mr Cailes as set out above at paragraphs [43]-[45]. There was then some discussion of the collateral evidence rule and other matters not presently relevant. The cross-examination then proceeded in the presence of the jury and propositions relevant to the defence of “defence of another” were put to Mr Cailes, and denied, as reproduced above. There was then further dialogue in the absence of the jury before the lunch break. After the lunch break the following exchange occurred in the absence of the jury:
HER HONOUR: Just explain to me briefly again how you say this topic has any relevance in this case, the topic in relation to all allegations of bad behaviour, if I can put it that way.
MR SALE: I can confine it to violence, allegations of violence.
HER HONOUR: Confine it to violence if you wish.
MR SALE: Allegations of violence in that Mr Cailes is a man who resorts to violence, particularly in situations of stress and therefore he is of a violent disposition. To that end I would seek to put to him a number of proven and some unproven allegations of violence in the last four, four-and-a-half years, to establish that.
HER HONOUR: What violence do you say he perpetrated on the occasion of this incident?
MR SALE: What I will go on to put to Mr Cailes is that once he had placed Alana in the car seat and closed the door he produced the adjustable spanner and menaced the smaller man, swung at the smaller man’s head and then was essentially tackled half in half out of the motor vehicle by the man with tattoos and in the course of the struggle that is how he sustained his injuries.
HER HONOUR: How did he sustain his injuries?
MR SALE: I won’t be putting he was stabbed, that they weren’t sustained through a stabbing.
HER HONOUR: How were they sustained on your –
MR SALE: I can’t take it any further than that.
HER HONOUR: I am requiring you to do that so that I can assess the relevance of this for this reason: on the Crown case at the present time the man with the tattoos, if that’s your client, and the other man are at someone else’s house, it appears unlawfully, given the reaction of everyone in the house that I have heard of to date. The man who is the complainant is seeking to flee the scene because of the behaviour of your client and the other man. How in those circumstances can any question of self-defence arise on the part of your client in any way?
MR SALE: The way it arises is if – and what I am putting is that the man Cailes has had two motives, he wants to get his daughter to safety but at the point at which he has almost done that he becomes concerned for his friend, doesn’t want to leave his friend on the roof at the mercy of these two men and decides to use the spanner to assault one of the men. And the other man, seeing that, comes to the smaller man’s aid.
HER HONOUR: And does what, tackles him inside the car – in and out the car – and how are these injuries sustained?
MR SALE: I cannot take it any further than that.
HER HONOUR: Why can’t you take it any further than that?
MR SALE: Because my instructions don’t permit me to.
HER HONOUR: Don’t you have instructions in relation to that? There is a situation where Mr Cailes has a number of injuries, penetrating injuries, to his body. You say your client, what I understand, has tackled him in and out of the car and presumably caused those injuries. Why can’t you say how they were caused?
MR SALE: I can’t take it any further, I can’t put anything more to the witness and I don’t intend to.
HER HONOUR: Well it’s relevant. If you want to raise some type of self-defence, and presumably it’s defence of the other man, the question of the reaction, the proportionality of the conduct of your client is what is going to have to be assessed if I leave self-defence. Just tell me, is there a reason why you can’t or won’t put –
MR SALE: I am cognisant that defence of another is made very difficult on what I am putting but I can’t go any further, and if your Honour’s position is ‘Well that’s inadequate to raise the defence and I won’t be leaving it’ then that is where we stand. But I can’t take the matter any further than that.
HER HONOUR: You see, it’s relevant to me at the moment because I need to consider whether your line of cross-examination is relevant. In order to assess whether that is relevant or not I need to consider is self-defence, or defence of another, even open in this case. And at the present time I don’t see that it is open and if you can’t assist me any further then my ruling is going to be you cannot cross-examine on any of those matters that were raised. If it becomes relevant throughout the course of the trial I will reconsider that ruling but at the present time on the basis of what you have put to me it’s not relevant.
MR SALE: Can I clarify. Before lunch there was a distinction drawn between the matters where Mr Cailes had pleaded guilty and been penalised, the offences of violence.
HER HONOUR: No need to tell me when the dates are, I remember them.
MR SALE: I am just trying to make sure I can tell your Honour, I think there is one matter where the matter proceeded to the imposition of penalty. Does your Honour’s ruling include that?
HER HONOUR: It does.
MR SALE: If your Honour pleases.
HER HONOUR: It’s all of those matters. Because even though there may be a distinction between the proven and the unproven, the relevance of any of this line is in the same category in any event and at the present time I am not satisfied that it is relevant and will not permit you to cross-examine him in relation to those matters.
MR SALE: So that I am clear, I asked some question about whether he regarded himself as a violent man, whether he had engaged in violent acts in the past, I think he said ‘a couple of times’. Your Honour is really forbidding me to pursue that line of cross-examination?
HER HONOUR: That’s right.
MR SALE: As your Honour pleases, I am just seeking clarity. Do I take it your Honour has ruled? The only point I was going to add is that if, as is probably apparent, the accused is mounting, through me obviously, an attack on the character of the complainant, both through his use of drugs, his propensity for violence and also potentially his acts of dishonesty which has resulted in him being sentenced by the court, in my respectful submission that stands in a different light if there’s an attack on character, the character of this man, his honesty, his propensity for violence, in my respectful submission that would stand in, and does stand in, a different light because the man’s character is indivisible from his evidence here today and yesterday. Do I take it that is something your Honour has considered in your Honour’s ruling and has ruled against me?
HER HONOUR: Yes. (Emphasis added)
Later in the trial, on Friday 14 October, the Judge again raised with counsel the question of whether there was a basis in the evidence for “lawful defence of another” to be left to the jury thus:
MR SALE: … If your Honour is against me that self-defence is raised, then I will not be addressing the jury on it, obviously enough.
HER HONOUR: As I said to you yesterday, on the basis of what you have put to me, which is all I have to go on in this case because what was put to Mr Cailes was not as clear, I think, as it could have been, it doesn’t appear to be raised properly. There doesn’t appear to be an evidential basis for it to be left to the jury. If you want to make some submissions to me contrary to that, as I said yesterday, if the position changed, I would consider it, but so far I haven’t heard anything more that would do that. So, do you want to put something further to me?
MR SALE: … So what I would be putting to your Honour is that the injuries to the accused on his arrest indicate that he has been involved in some sort of physical altercation that may be greater than that which Mr Cailes has admitted to in his evidence. He has been perhaps in a fight, if I can put it very broadly, and also what has been put is that he left the house armed with a dangerous weapon. He used and armed himself with it as a potential weapon, although I understand his evidence is that he never produced it or menaced anybody, on his version, with it, but he did choose to arm himself with something which could be very dangerous. He then gives an account of putting his daughter in the car and then taking that out before getting in the car. His evidence was that he attempted, and thought he did, shield that action from the two men in the front yard, and then it was at the point at which tiles were thrown and it was put also that the smaller man got close to him. He took a swing at that man – obviously Mr Cailes denied that – and that that was the threat that the man with the tattoos perceived and then came to the aid of the smaller man.
HER HONOUR: But you put all of this to Mr Cailes but he denied all of it, and even the question of the tiles being physically thrown as opposed to Mr Cailes’ version of at least one of them having been picked up by Mr Dowsett and he menaced the other men with it, there is no evidence before the jury of that.
MR SALE: A denial by Mr Cailes does not mean that the jury will accept that denial and then accept his version.
HER HONOUR: No, that’s right, but there needs to be an evidential basis and an evidential basis never arises because of a question that is asked by counsel that is denied by the witness. It amounts to no evidence, doesn’t it?
MR SALE: But that isn’t all that I’m putting to your Honour.
HER HONOUR: I am sorry, I interrupted you. There is more?
MR SALE: There is the injuries to my client, which are more than what Mr Cailes appeared to have admitted to. There is the numerous black gaps in the roof, which are depicted in the photographs, and I will be commenting to the jury that they look an awful lot like gaps if tiles were removed and therefore that may well be the result of not one tile being taken out by Mr Dowsett and menaced but numerous tiles being taken out and actually thrown. Therefore, whilst I have to concede it may be scant, but there is some evidence, including the evidence from Mr Cailes, which even though he doesn’t say he menaced anybody with the weapon, he is carrying the weapon. So, true it is that he hasn’t accepted any of the actions that I put to him, which of themselves would give rise to self-defence, but they don’t exist in a complete vacuum, there are those other threats which the jury could use if they do not accept some or all of what Mr Cailes says, to think that this occurred in a manner far different from that which he said, which does give rise to certain things.
Further dialogue ensued which culminated in the following final observations of the Judge and her ruling:
HER HONOUR: … If you even pause for a moment to think about the direction that would need to be fashioned in this case to meet the circumstances, it becomes apparent as to why self-defence cannot arise on the scenario as it presently is, in this court. How would a jury determine questions of proportionality in this case, when there is no evidence of what it was that your client was intending to do? How can they assess a genuine belief? How could they come anywhere close to determining either of the limbs of self-defence?
MR SALE: That would mean that self-defence is a defence that is only open when the accused gives evidence.
HER HONOUR: No, it’s not and I’m not going to debate that. It’s open when there is an evidential basis from it and that evidential basis can come from any number of things that I don’t need to explain to you, you know the rules in relation to it; that there needs to be an evidential basis and perhaps that would have been a better way for me to put it in the first place. … presently I indicate I will not be leaving a case of self-defence to the jury, unless the prosecution urge me to do so …
Mr Sale then indicated that in light of her Honour’s ruling he would not be addressing the jury on the defence of “lawful defence of another”. The prosecution case continued to be led and the case was adjourned to Monday 17 October. On Monday 17 October, the prosecution case was completed and closed. The applicant then indicated that he would not give or call evidence and the trial was adjourned at 1:19pm until Tuesday 18 October at 10:00am to hear addresses of counsel.
The applicant absconds
On Tuesday 18 October, the applicant did not appear and, after some adjournments and inquiries, it became apparent that he had absconded. The Judge issued a bench warrant for his arrest and adjourned the trial until the following day.
On Wednesday 19 October 2016, in the absence of the jury, the Judge indicated that she had been advised that the applicant’s home detention bracelet had been found to have been removed; that police had made inquiries to attempt to execute the arrest warrant but had been unable to do so and considered it unlikely that they would be able to arrest him in the near future. The Judge was satisfied that the applicant had made a deliberate choice to abscond and ordered the trial to continue in his absence.
Mr Sale applied to withdraw and the Judge granted him permission to do so. Before doing so, at the request of her Honour, Mr Sale indicated a number of the points that he had intended to make to the jury in his address in order that her Honour could refer to those points during her summing up. Prosecution counsel then addressed the jury.
The Judge’s summing up and the jury verdict
In summing up, the Judge directed that the jury were not to speculate as to why the applicant was absent or to draw any adverse inference from his absence. Her Honour also gave standard directions concerning the election of the applicant not to give evidence.
The Judge gave lengthy directions concerning the requirement of proving that the applicant was the tattooed man in the altercation with Mr Cailes and gave lengthy and substantial identification directions and warnings. Her Honour also gave lengthy circumstantial evidence directions.
The Judge directed that the prosecution had to prove that the applicant deliberately stabbed Mr Cailes with the requisite specific intent. The Judge put the defence case to the jury, including various criticisms of the reliability of Mr Cailes and of other aspects of the prosecution case. The Judge directed that there was no evidence raising an issue of lawful self-defence or defence of another.
After a deliberation of about one and a half hours the jury unanimously convicted the applicant of the aggravated charge.
The initial permission to appeal procedure
The applicant’s standard Form 38 “Notice Of Appeal Against Conviction Or Other Judgment” stated that the appeal was not as of right and not on a question of law. The grounds of appeal were stated thus:
Grounds of appeal when permission to appeal is required
18. The following are the grounds of appeal when permission to appeal is required:
1. A miscarriage of justice occurred as a result of:
1.1The trial judge disallowing defence counsel to cross-examine Ricky Cailes (the victim) about his prior convictions, in order to undermine his character and credibility; and
1.2The trial proceeding in the defendant’s absence, without a defence closing address to counter-balance the prosecutor’s closing address.
As to the matter of extension of time, it was stated that “the appeal is out of time” and, in response to the standard question as to “the reasons for the delay and the grounds upon which the Court will be asked to extend time” the response was: “See attached affidavit.” This was the affidavit of Ms Willis, a solicitor employed by the Legal Services Commission, as follows:
I, SARAH RACHAEL WILLIS, Solicitor of Legal Services Commission of South Australia, 159 Gawler Place, Adelaide in the State of South Australia, SWEAR ON OATH THAT:
1. I am currently acting as solicitor for Mr Raymond Jones.
2. I was first instructed by Mr Raymond Jones on the 24th of January 2017.
3. By Information dated 29 June 2015, Mr Jones was charged, inter alia, with the offence of aggravated causing harm with intent to cause harm. The trial in relation to that charge commenced on the 10th of October 2016, with Mr Jones represented by Mr Ben Sale.
4. On the 18th of October 2016 (the morning of closing addresses), Mr Jones did not attend at Court. After hearing submissions, her Honour Judge Davison issued a bench warrant for the arrest of Mr Jones.
5. On 19th October 2016, the trial continued in Mr Jones’ absence, with defence counsel granted leave to withdraw from the file.
6. After hearing the prosecution address and her Honour’s summing up, on the 19th of October 2016, the jury convicted Mr Jones of the charge of aggravated cause harm with the intent to cause harm.
7. On, or about, the 19th of December 2016 the bench warrant was executed against Mr Jones.
8. Mr Jones was remanded in custody from that date.
9. On the 24th of January 2017 Mr Jones instructed me and indicated that he would also like advice on whether he can appeal against his conviction. On, or about, the same date I received a copy of the brief from Mr Ben Sale.
10. Mr Jones’ matter was not actioned until the 31st of January 2017, as there was conjecture as to whether Mr Jones was instructing private legal representation.
11. On the 31st of January 2017 I advised counsel Helen Luu that Mr Jones had indicated that he wished for the Legal Services Commission of SA to represent him, and that he wished to appeal his conviction.
12. Documentation was then requested from the court to allow counsel to consider the merits of any appeal. I was supplied with a copy of her Honour Judge Davison’s summing up on the 8th of February 2017.
13. Counsel Ms Luu considered all material and on the 20th of March 2017 advised me that there were arguable grounds of appeal. As a consequence I now file a notice of appeal, together with this supporting affidavit.
14. The applicant seeks an extension of time for filing of the Notice of Appeal up to and including the 28th day of March 2017.
15. I know the facts deposed to herein of my own knowledge.
The permission to appeal hearing before the single Judge
On 5 June 2017, the application for permission to appeal came on before the single Judge. At the very outset, Mr Sale formally abandoned the second proposed ground of appeal reproduced above.
Mr Sale then made detailed submissions concerning a grant of permission on proposed ground 1 on the basis that the applicant had the right to cross-examine Mr Cailes both as to propensity for violence and as to credit in the context of a defence of “defence of another”. Prosecution counsel made responding submissions in opposition to the grant of permission to appeal. The Judge then stated that “I am not satisfied that ground 1.1 is arguable” and dismissed the application. In those circumstances the Judge did not deal with the application to extend time.
Later that same day, the applicant’s solicitor filed the standard Form 51 requesting that the application for permission to appeal be referred to and determined by the Full Court.[17]
[17] See generally R v Simmons [2017] SASCFC 49, [36]-[38].
The hearing before the Court of Criminal Appeal
On 18 August 2017, the Court of Criminal Appeal in the usual way (absent a different order), heard at the same time the submissions concerning extension of time, permission to appeal and the substantive submission that were to be relied upon should the necessary preliminary applications be granted.
The application for an extension of time
The applicant was convicted on 19 October 2016, and his notice of appeal was filed on 28 March 2017. Accordingly, the time within which he had to appeal pursuant to rule 107 of the Supreme Court Criminal Rules 2014 expired more than four and a half months prior to the filing of his appeal. He therefore requires the grant of a substantial extension of time.
As to the contumacious absconding of the applicant (and the resultant need for an extension of time), the defence team have been rather insouciant at all stages of the proceedings. I note the following matters.
First, in the only affidavit relied upon (which is that of a solicitor rather than the applicant himself), both before the single Judge and now before this Court, there was not a word of explanation by the applicant (let alone apology or contrition) concerning the cutting off of his security bracelet and his absconding. Indeed, the word ‘abscond’, or any other like word, was never used at all; all that was said in the affidavit was that the applicant “did not attend at Court”.
Second, in the transcript of the permission to appeal proceedings before the single Judge, there was nothing said by counsel for the applicant directed to the topic of absconding, or indeed to the need for an extension of time.
Third, in the outline of argument filed by the applicant in this Court there was again nothing said by counsel for the applicant on the topic of absconding, or to the need for an extension of time.
Fourth, in opening the appeal before this Court, and immediately proceeding to substantive submissions, there was again nothing said by counsel for the applicant on the topic of absconding or the need for an extension of time, until these matters were called to attention by the Court. The result was that counsel then requested time to supply a written submission on those topics, and such permission was granted.
Last, in that belated written submission, there is again no explanation or apology. Rather, a number of somewhat strident submissions are made.
First, it is submitted that the time that the applicant successfully evaded the police (and hence, it is said, the delay directly referable to the absconding) is not particularly long:
While the Applicant makes no criticism of the time taken by those then representing the Applicant to commence the appeal, particularly in light of the need for a substantial amount of material to be digested before grounds of appeal could be formulated. The delays occasioned by what might fairly be described as the usual difficulties of advising and commencing an appeal, for a prisoner against conviction, are equal to, if not greater than the delay occasioned by the Applicant’s absconding.
Even if it were to be said that the Applicant was wholly responsible for the 36 days lost between his arrest and instructing Ms Willes, and this is almost certainly be unfair to the Applicant as he could not have been expected to instruct a new solicitor immediately on his imprisonment, the days lost attributable to the Applicant’s actions only exceed those lost to the exigencies of legal appellant practice by 12 days (75days compared to 63days). …
Furthermore, the maximum delay attributable to the Applicant absconding (75days) is a small fraction of the time it took for his matter to reach trial, indeed a small fraction of the time between arraignment and trial and would represent a similarly small fraction of the time before a retrial. The preceding may do no more than reflect the unfortunate and endemic delays in the criminal courts of this state but when this Court comes to consider the delay caused by the Applicant, other delays are a relevant consideration.
In my view, to take this mathematical approach is again to greatly underestimate the seriousness of such absconding. The fact that an absconder was at large for a relatively short time in no way indicates lesser blameworthiness in circumstances where, as here, the absconder wishes to evade apprehension for as long as possible and the length of the actual period of freedom is therefore a matter of chance. One could envisage a case where an absconder, soon after absconding, realises the enormity of what he has done and voluntarily surrenders to police – but that is certainly not this case.
The applicant further submitted in his outline of argument:
… the Applicant has a right of appeal to the Full Court by virtue of section 353(1)(a)(i) of the CLCA (hereafter the Act). The time period within which to commence such an appeal is a Rule of the Court albeit one required to be adhered to by s357(2) of the Act. The Applicant submits that while due deference should be paid to the Court Rules, they should not be so elevated as to stand on the same footing as the Applicant’s statutory right of appeal. This sentiment was echoed in the passage quoted below in Jackamarra v Krakouer[18] by Kirby J.
[18] Jackamarra v Krakouer (1998) 195 CLR 516.
This submission requires correction. First, the important distinction postulated by the majority in Jackamarra v Krakouer was not (as the submission suggests) a distinction between a court rule prescribing a time limit within which to appeal (on the one hand) and the substantive right of appeal (on the other hand). Rather, it was a distinction between the important time limit within which to appeal (on the one hand) and lesser procedural rules dealing with the progress of the hearing of the appeal after the appeal has been lodged (on the other hand). That can clearly be seen in the joint judgment of Brennan and McHugh JJ[19] and the judgment of Kirby J.[20]
[19] (1998) 195 CLR 516, 520-521.
[20] (1998) 195 CLR 516, 540.
Second, the case of Jackamarra v Krakouer did not involve a person absconding. However, if one reads on in the judgment of Kirby J one notes the following passage:
[7] … I do not doubt that the four considerations mentioned in Esther Investments are relevant.[21] But they are by no means exhaustive. Several others have from time to time been thought relevant. These include whether the delay was intentional or contumelious or merely the result of a bona fide mistake or blunder and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled. It may also be relevant, where the default is that of a party’s legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant. [Footnotes omitted]
[21] Viz, the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondent.
In the present case, the delay was intentional and contumelious, and not merely the result of a bona fide mistake or blunder; and here there is no reason why the applicant should not be saddled with it unless, as will be expanded upon below, it is demonstrated that there are substantial grounds for apprehending that a miscarriage of justice has actually occurred.
I also note the submission of the applicant as follows:
The Effect of Absconding on Extending Time
18.In respect of this topic, the English cases provide some guidance several of which are summarised in the Supreme Court, Court of Criminal Appeal decision of R v Charles and Tucker [2001] EWCA Crim 129. Allowing for differences in procedure and the effect of Article 6(1) of the European Convention on Human Rights, the Court of Criminal Appeal endorsed a flexible approach to extensions of time, with Justice Hooper citing with approval this passage from the French case of Poitrimol v France (1994) EHRR 130 at paragraph 42;
The inadmissibility of the appeal on points of law, on grounds connected with the applicant’s having absconded, … amounted to a disproportionate sanction, having regard to the signal importance of the rights of the defence and of the principle of the rule of law in a democratic society.
19.Furthermore, in R v Okedare Lady Justice Hallett in the Criminal Court of Appeal referred to with approval two arguments put by counsel for the Crown in favour to the Appellant position;
Third, albeit any system should be one in which there should be no encouragement to abscond, the penalty for absconding is the imposition of a sentence rather than any restriction in rights to appeal. Arguably, a restriction on the ability of an applicant to appeal solely because he had absconded could be described as disproportionate.
Fourth, there are bound to be circumstances in which the Court would wish to intervene in the interests of justice, for example the Court would not wish to countenance the possibility of an unlawful sentence being allowed to stand simply because an offender has absconded. The court should not deny itself the power to correct a glaring error.
20.The Applicant here, submits that while absconding would almost never be regarded as a reasonable excuse for failing to commence an appeal within the 21 day time period, it should not also bar consideration of his appeal if his complaint has merit and the delay is not extensive.
Again, this must be corrected. First, the introductory words “Allowing for differences in procedure and the effect of Article 6(1) of the European Convention on Human Rights” amount to a serious understatement. The fact is that it is the common law and statutory law of Australia that binds Australian courts. As to the common law, the role and importance of English decisions (prior to the contribution of Strasbourg jurisprudence to English decisions) is well known and need not be rehearsed here. But some English decisions post Strasbourg must be treated with great reserve; both traditional European civil law and European union law differ greatly, procedurally and substantively, from the common law of Australia. As to statute, English decisions such as those to which the applicant refers are inextricably bound up with the European Convention on Human Rights which has no present application. Further, as was observed in R v Gee:[22]
[194] However, as members of the High Court of Australia have stressed from time to time, the attitude of the civil law to trial in absentia is very different to that of the common law of Australia.[23] It must be said that the inquisitorial system rides much more easily with a trial in absentia. The absence of the defendant in the context of the adversarial system will usually also mean the absence of legal representation and a devastating effect on a continuing trial but the effect on a trial in absentia conducted under the inquisitorial system is (at least in theory) much less devastating because the process continues actively to inquire into all aspects of the matter, both favouring acquittal and conviction.
[22] (2012) 113 SASR 372, 416.
[23] See for example the extradition cases of Athanassiadis v Government of Greece [1971] AC 282 and Wiest v Director of Public Prosecutions (1988) 86 ALR 464 cited by the High Court in the footnote to Lipohar and Moti.
Second, and in any event, in R v Charles and Tucker, what was being addressed was the somewhat draconian prosecution position taken in the previous case of Poitrimol v France, that the very act of absconding should always per se deprive the absconder of a right of appeal. It was in that context that the court in Poitrimol rebuffed a contention of “inadmissibility” of appeal grounds arising simply because of their connection with the applicant having absconded as “a disproportionate sanction”. Indeed, that becomes all the clearer when one reads the next paragraphs of the judgment in Charles and Tucker (which were not reproduced by the applicant):[24]
[52] Whilst noting the considerable differences between French criminal procedure and our own, nonetheless it seems to us that there could well be a breach of Article 6(1) if an applicant who has absconded could not succeed with an application for leave to appeal solely because it is treated as ineffective by the Registrar or dismissed for the reason in Jones (No 1) and because any subsequent applications for extensions of time to make or renew the application were summarily dismissed because there was no good reason for the delay.
[53] There seems to us to be a good policy reason for not taking such an inflexible approach. If an applicant, for example, has been sentenced to an unlawful sentence then the sooner it is so declared the better. If the result of an appeal is to be an order for a retrial it will usually be in the interests of the prosecution to have that retrial started as soon as possible after the appellant’s arrest.
[24] [2001] EWCA Crim 129, [52].
Similar considerations apply to the passage cited from R v Okedare et ors. It must be again emphasised that what was there under consideration and rejected, was again a draconian suggestion of “an unlawful sentence being allowed to stand simply because an offender has absconded” even if the error is “glaring”.
Applications to extend time within which to appeal generally
Australian courts have on many occasions emphasised the natural tension between the goal of finality of litigation and the goal of avoiding injustice. In the context of civil litigation, McHugh J observed in Gallo v Dawson:[25]
…the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VicRp 113; (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
…
In Hughes, McInerney J pointed out (at p 263) that one object of fixing time under court rules is “to achieve a time table for the conduct of litigation in order to achieve finality of judicial determinations”. When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a “vested right to retain the judgment”. It would make a mockery of O 70, r 3 if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved.
[25] (1990) 93 ALR 479, [1]-[3].
The same tension between the goal of finality of litigation and the goal of avoiding injustice (or miscarriage of justice) exists in the context of criminal litigation. Rights of appeal in criminal cases are relatively recent creatures of statute which favour the latter goal. However, such appellate rights cannot rise above the limits of the statutory grant; and the time limit within which to appeal is an integral part of the appeal right, it favouring the goal of finality of litigation. Thus in 1963, this Court stated in R v Brown:[26]
The practice is that, if any reasonable explanation is forthcoming, and if the delay is, relatively, slight, say for a few days or even a week or two, the Court will readily extend the time, provided that there is a question which justifies serious consideration. … where the delay is substantial an application to extend the time is by no means a matter of course. It is not sufficient that there would have been a question calling for serious consideration, if the appeal had been instituted in due time. When the time prescribed by the Act has expired, the party convicted has lost his right to appeal, and it is for the Court to say whether, taking all the circumstances into account, it is in the interests of justice that he should be permitted to institute and pursue his appeal.
(Emphasis added)
[26] [1963] SASR 190, 191 (Napier CJ, Millhouse and Hogarth JJ).
Similarly, in 1974, this Court stated in R v Balchin:[27]
In the first place, it is not inappropriate to point out that an application for leave to appeal must be made within ten days of the conviction or sentence. Although the Court may extend this period, normally the Court will refuse to grant an application for extension of time within which to appeal, except in a case where, on the merits, the appeal would be likely to succeed (R v Marsh), or where through exceptional circumstances or some untoward vicissitude, the applicant has been prevented from applying his mind to the question of appeal (R v Hatfield). The practice of this Court in relation to the granting of an extension of time within which to appeal was stated in R v Tame as follows:
This Court has held, from time to time, that when a sentence is passed or a conviction is recorded, the right of appeal, or to apply for leave to appeal is one which, according to the Act, must be made promptly, that is, within the ten days allowed by the Act. If it is not, the right of appeal is gone, and the time will not, in the ordinary course of things, be extended, unless there is some ground for apprehending that justice has miscarried.
[27] (1974) 9 SASR 64, 65-66 (Hogarth ACJ, Bright and Walters JJ).
More recently, in 1996 in R v Foster[28] and in 1999 in Gikas v Police,[29] Lander J expressed the view that, in cases of significant delay, the applicant must demonstrate an apprehension that a miscarriage of justice might occur due to a refusal to extend time.
[28] (1996) 187 LSJS 135.
[29] (1999) 202 LSJS 301, 306.
In 2004 in R v Gray, Nyland J held that the test postulated by Lander J was insufficiently stringent in one respect. Her Honour stated:[30]
[30] [2004] SASC 218, [16]-[20].
Mr Hinton, who appeared for the respondent on the hearing of the present application, submitted however that to the extent that Lander J’s approach indicated that a party only needed to establish a real possibility that a miscarriage of justice might occur where the delay was substantial, it was inconsistent with authority in this State. He submitted that where the right to appeal is lost due to non-compliance with the time within which to institute the appeal, and non-compliance is not due to some “exceptional circumstance or untoward vicissitude”[31]) that has prevented compliance, it must be shown that there are grounds for apprehending that a miscarriage of justice has occurred, or substantial grounds on the merits, or a question that justifies serious consideration irrespective of the length of delay: R v Brown[32] (per the court at 191); R v Balchin (supra at 65-6); R v Trotter[33] at 65; R v Armstrong.[34]
[31] R v Balchin (1974) 9 SASR 64.
[32] [1963] SASR 190.
[33] (1979) 22 SASR 64.
[34] [1983] 35 SASR 356.
Mr Hinton also referred to Jackamarra v Krakouer[35] in which Brennan CJ and McHugh J in a joint judgment (at 521) said:
[35] [1998] 195 CLR 516.
Cases such as Palata (Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946) are therefore concerned with applications that seek to put at risk the substantive rights of the respondent. It is understandable that, where the applicant’s right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success.
In their joint judgment, Gummow and Hayne JJ (at 531) referred to the necessity that it be demonstrated that the argument on appeal might succeed.
Having considered these authorities I consider that the submission put by Mr Hinton is correct, that is, that when an appeal is instituted pursuant to s 352(1)(a)(ii) CLCA out of time, the reasonably arguable test no longer applies. The right of appeal having been lost, the question whether or not leave to appeal should be granted is subsumed in the principles to be applied in determining whether or not an extension of time in which to seek leave to appeal should be granted. As Mr Hinton pointed out, in his written outline, this was necessarily so because:
(a) the principles to be applied in determining whether or not an extension of time should be granted include determining whether or not the grounds of appeal have some prospects of success in that they disclose reason for apprehending that a miscarriage of justice might occur in the event that time is not extended. This test imposed a higher threshold than the test applied on the hearing of an application for leave to appeal made within time, and
(b) it would be anomalous to apply different principles depending upon whether the application for an extension of time is made under s 352(1)(a)(i) or 352(1)(a)(ii).
In my opinion, therefore, the proper approach with respect to an application for an extension of time in which to appeal, absent exceptional circumstances, is for the court to consider the grounds and determine whether they disclose reason for apprehending that a miscarriage of justice has occurred, substantial grounds on the merits, or a question that justifies serious consideration, irrespective of the length of the delay.
With respect, I consider that the approach adumbrated by of Nyland J is correct.
Applications to extend time within which to appeal after absconding at trial
None of the above analyses were carried out in the context of an application made by an absconding defendant. In my view, that particular aspect is a significant feature which distinguishes the present from the usual applications to extend time made in criminal cases.
In Smith v Western Australia (Smith), the High Court stated in a different context:[36]
The first point to be made here is that the question with which this case is concerned does not stand on the same plane as an issue raised by the parties for decision at trial; it is a question which, though it may affect the way in which the controversy between the parties should be resolved, is a question as to the integrity of the trial process. The institutional integrity of the system of justice is at stake in a way that is not the case where the issue is solely one between the parties.
[36] (2014) 250 CLR 473, 485.
In Smith, the context was that of an appeal against conviction asserting that a juror had been unlawfully intimidated during deliberations, hence raising “a question as to the integrity of the trial process”. However, in my view, “a question as to the integrity of the trial process” is also raised in the present context of a defendant who unlawfully absconds from bail during a criminal trial, evades capture for a significant period of time well after the time limit within which to appeal has expired, and only commences to assert appeal rights after he is apprehended.
Without attempting to formulate a universal approach, it is my view that in cases of the present type where an act of absconding during trial (including non-surrender until apprehension) is causative of the filing of appellate documentation only after the expiration of the time limit within which to appeal, the following approach may be taken when considering a later application to extend time.
First, there will usually be no occasion to distinguish between a “relatively slight delay” and a more “substantial delay”.[37] Except in very exceptional circumstances,[38] any delay caused by absconding should be treated as if it were a substantial delay in a non-absconding context.
[37] Cf R v Brown [1963] SASR 190, 191, (Napier CJ, Millhouse and Hogarth JJ).
[38] It is unnecessary to speculate as to sets of fact that might come within such exception.
Second, the applicant must demonstrate that there are substantial grounds for apprehending that a miscarriage of justice has actually occurred.
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.
The correct position is that it was for the Judge to determine whether under s 15(5) the defendant had adequately raised the defence of “lawful defence of another”, that is to say, whether the defendant could point to sufficient evidence upon which to leave that defence to the jury. The dialogue between bench and bar reproduced above clearly demonstrates that, well before the close of the prosecution case, the Judge warned counsel that she was troubled about leaving the defence of “lawful defence of another” to the jury, but counsel refused to inform her Honour of his instructions concerning the matter.
The Judge eventually ruled that there was insufficient evidence to leave the defence and counsel responded that he would therefore not address on the matter. This response was appropriate, but it was no more than polite recognition that if he attempted to address on the topic, having had that intimation, he would be stopped.
Of course, when the closure of the prosecution case arrived, there remained the possibility of calling the applicant and, if his evidence were then to raise a defence of “lawful defence of another”, the matter of recalling Mr Cailes for further cross-examination on the facts now asserted by the applicant would have arisen. In the event, upon the close of the prosecution case, the applicant, who was still present in Court, immediately elected to not give evidence.
The present situation is quite stark. There is no proposed ground of appeal against the decision of the Judge to refuse to leave the defence of “lawful defence of another” and there was no application at the hearing to add any such further proposed ground. There is therefore strictly no occasion for this Court to comment on the correctness of the Judge’s ruling. However, lest it be suggested that some form of miscarriage of justice arises due to the absence of such a proposed ground of appeal, I am prepared to indicate that I consider that the Judge was undoubtedly correct in refusing to leave the defence to the jury in the present circumstances.
Was there any other “issue” to which prior discreditable conduct of Mr Cailes might have been relevant?
The words in the second paragraph from counsel’s outline of argument reproduced above “or whether the complainant’s evidence could be believed” appear to be again referring to a defence of “lawful defence of another”. However, it is fair to ask the broader question of whether there is any other “issue” to which cross-examination as to prior discreditable conduct of Mr Cailes might have been relevant. In my view, that question must be answered in the negative.
There was, of course, a trial issue of the prosecution proving that the applicant was in fact “the tattooed man”. The jury found adversely to the applicant on that issue after the Judge gave them full directions and warnings concerning the matter of identification. The finding of the jury on this matter is in no way surprising because the prosecution case on identification was strong as noted above at paragraph [40]. No proposed ground of appeal complains about this.
An admission that the applicant was the tattooed man having the interaction with the victim Mr Cailes
It remains to add that, even if it could be said that the asserted discreditable conduct could be relevant to Mr Cailes’ identification evidence concerning the applicant, counsel for the applicant at the outset of the hearing in this Court admitted on behalf of the applicant that he was indeed the tattooed man in the altercation or “inter-reaction” with the victim Mr Cailes. Thus he stated:
MR SALE: It was not a case where what was being put to Mr Cailes in compliance with the rule in Browne v Dunn was: yes, you were stabbed through the window whilst you were sitting in the car but that was done in response to some threatening action of yours or perceived threat. Because that was not the instructions that were put. What was put, and I conceded during the trial that it did lack some specificity, was that the interaction between the accused and Mr Cailes took place in different circumstances to that which was alleged outside the pith and substance of the allegation opened by the Crown, namely that there had been a stabbing with a knife that caused the injury.
PEEK J: Can I ask a question before we leave that immediate statement you just made. You there talked in terms of interaction between the accused and Mr Cailes. I take it that you are accepting of the proposition that the accused was in fact present on the occasion.
MR SALE: Yes
PEEK J: It’s not an identification case as such.
MR SALE: No.
NICHOLSON J: And there was an interaction.
MR SALE: Yes and what was put to Mr Cailes in cross-examination was that interaction – I’ll be specific – he was tackled by the accused, now appellant, in direct response to Mr Cailes swinging a large adjustable spanner at the second man who is sometimes referred to as the man without tattoos on his face. He was tackled, there was a struggle and then the struggle ended and Mr Cailes drove off, largely in the manner he described. He wasn’t challenged about that.
It is therefore quite clear that no miscarriage of justice arises in this case from misidentification of the applicant.
Putting aside the matters of a defence of “lawful defence of another” and identification of the applicant, it has not been suggested that there was any other matter to which cross-examination as to prior discreditable conduct of Mr Cailes might have been relevant. There was no cross-examination of Mr Cailes to suggest either that his injuries might have been caused accidentally (as distinct from deliberately or voluntarily) or that the wielding of the instrument that caused the injuries occurred without any intent to cause harm. And as to Mr Cailes’ evidence that he did suffer harm, that was corroborated by the unchallenged evidence of his treating doctor, Dr Puris that Mr Cailes presented at the Royal Adelaide Hospital soon after the incident with a cut to the chest and cuts to the left and right forearms, all of which required stitches.
I conclude that the applicant has failed, by a considerable margin, to demonstrate that there are substantial grounds for apprehending that a miscarriage of justice has actually occurred.
Did the Judge make an error of law in refusing to permit cross-examination of Mr Cailes as to previous discreditable conduct?
The applicant’s appellate documentation (including the proposed grounds of appeal) has at all times asserted that the conviction should be set aside on a ground(s) that there was a miscarriage of justice rather than that the Judge made a wrong decision on a question of law.[39] There has been no attempt to amend the grounds of appeal.
[39] Section 353(1) Criminal Law Consolidation Act 1935.
However, if one were to put aside the course of the trial, and the course of the appellate proceedings, and the requirement of the grant of an extension of time, it might have been possible in the abstract to argue, and perhaps establish, that it was an error of law to go so far as to rule that the applicant was not permitted to cross-examine Mr Cailes on actual previous convictions (and perhaps other matters).
As referred to above, the 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. However, the words “be relevant to the establishment” are not equivalent to “per se establish”. Errors of law may vary greatly in their seriousness and importance. Some errors may affect matters so fundamental that, to use the words of the court in Smith v Western Australia, the “integrity of the trial process” or the “institutional integrity of the system of justice” may be at stake.[40] In some cases (the first class of cases) the presence of a particular error of law will lead to a conclusion that that there are substantial grounds for apprehending that the applicant has not had a fair trial according to law and that a miscarriage of justice has actually occurred – and thus, the application for an extension of time should be granted.
[40] (2014) 250 CLR 473, 485.
However, in other cases (the second class of cases), the error of law may be much less serious, particularly when viewed in its true context, and here the conclusion may be that the establishing of the particular error of law does not lead to a conclusion that there are substantial grounds for apprehending that a miscarriage of justice has actually occurred – and thus, the application for an extension of time should not be granted.
I consider that, if an error of law did occur here, the present case falls squarely within the second class of cases. I would refuse the application for an extension of time on that basis.
Application of the proviso
Finally, I should add that, if one were to grant an extension of time here and then proceed to find that an error of law by the Judge in prohibiting cross-examination of Mr Cailes is made out, I consider that the appeal should nevertheless be dismissed by the application of the proviso[41] in accordance with the precepts laid down by the High Court.
[41] Section 353(1) Criminal Law Consolidation Act 1935.
Disposition
I would dismiss the application for an extension of time within which to appeal.
NICHOLSON J.
I have had the advantage of reading in draft the reasons of both Peek J and the Chief Justice.
The Judge erred in law in refusing to permit cross-examination of the complainant as to credit with reference to the alleged discreditable conduct that had been identified. Essential to the prosecution case was a finding by the jury that the complainant received his stab wounds as a result of an altercation with the appellant. The only evidence bearing on that issue was that of the complainant. As the Chief Justice has observed, the appellant was entitled to attempt to persuade the jury that this complainant was a person whose testimony on oath was worthy of no credit whatsoever. If the jury were, for this reason, to reject the complainant’s testimony entirely or as to the essential issue and to put it to one side, the prosecution would have failed to have discharged its onus. On this issue, I agree with the reasoning of the Chief Justice. I also agree that, as unlikely as such an outcome might appear to be, the proviso cannot be applied, again for the reasons given by the Chief Justice.
However, the reasons of the Chief Justice also would seem to suggest that, in the circumstances of this case, a successful cross-examination of the complainant as to a propensity for violence and with or without the adduction of evidence from third parties as to a propensity for violence, considered alone, would have provided a sufficient foundation to leave defensive purpose to the jury. If so, I am not so persuaded. An established propensity for violence may well add weight to and support reliance on a defensive purpose but only where there is evidence which raises the issue that the complainant may have used or threatened force on this particular occasion. This was the situation on the facts in Re Knowles.[42] The accused had given evidence of unprovoked violence by the complainant sufficient to raise the issue of self defence. Given this context, the issue before the court was whether evidence from third parties as to such behaviour of the complainant on other occasions, that is, her propensity to engage in unprovoked violent behaviour, was admissible.
[42] [1984] VR 751.
In the present case, cross-examination should have been permitted on the identified issues. Such cross-examination would have been material to credit. However, the questions of to what other use, if any, such cross-examination might be put and whether third party evidence of the complainant’s propensity might be admissible, would arise for consideration only if evidence were to be adduced, in either the prosecution or defence case, sufficient to raise the issue of defensive purpose.
I would grant an extension of time for the reasons given by the Chief Justice and I would grant permission to appeal, allow the appeal and order a re-trial.
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