R v JULIE Michele Dunn - [2005] SASC 397

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v JULIE MICHELE DUNN
Reasons for Decision of The Honourable Justice Layton
12 October 2005
CRIMINAL LAW
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT
Application for leave to appeal against conviction - alleged error by trial Judge in providing written memorandum to jury as substitution for oral direction - whether appeal grounds involve a matter of law only where no leave required - whether defence of provocation reasonably arguable - application allowed on grounds 1 to 3 - application refused on grounds 4 and 5.
R v Wayne Charles Bourke [2003] QCA 113; R v Clothier [2002] SASC 9; R v Radford (1986) 133 LSJS 110, considered.

R v JULIE MICHELE DUNN
[2005] SASC 397
Criminal

LAYTON J: The applicant, Julie Michele Dunn was convicted by a jury of murder following a three-week trial before a Supreme Court judge. The applicant seeks leave to appeal in relation to the conviction and five grounds are proffered. Ms Chapman who appeared for the appellant, sought to amend paragraph 3 of the grounds of appeal by deleting subparagraph 3(b) and (c).
Grounds 1, 2 and 3
Grounds 1, 2 and 3 (a) are linked and can be discussed together. Those grounds are:
1.That the learned trial judge erred in failing to direct the jury on the alternative (sic) verdict of manslaughter by way of excessive self-defence.
2.That the learned trial judge erred in directing the jury that the accused would be guilty of murder if the conduct amounted to excessive self-defence.
3.That the learned trial judge erred in his written memorandum on the alternative verdict of manslaughter by way of excessive self-defence in that:-
(a) It was inconsistent with his direction that the accused would be guilty of murder if her conduct amounted to excessive self-defence.
In essence, it is submitted by the applicant that each of these grounds of appeal involve a matter of law only. The issue of law is whether the learned trial Judge was correct in providing a written memorandum to the jury which set out his direction on manslaughter by way of excessive self defence, when there was no oral direction to the jury on that point. It was submitted that the learned trial Judge indicated on a number of occasions to the jury that he would supply them with a memorandum on the issue [208], [248] - [249] and [428]. It was not supplied to the jury until [429] which was well into the summing up. Thereafter there was no further reference to manslaughter until [620], [623]. It was conceded by counsel for the applicant that the written memorandum was correct in its direction as to manslaughter in a situation of excessive self defence but that none of these references in the oral summing up amounted to an appropriate direction on the point nor did they specifically refer to manslaughter by excessive self defence.
It was also appropriately conceded before me by Ms McDonald on behalf of the DPP, that the oral summing up by the learned trial Judge was insufficient by itself to appropriately direct the jury on the issue of excessive self defence in relation to manslaughter. It was however argued by the DPP that taken as a totality, the oral direction and the written memorandum left the jury in no doubt as to the direction on the issue.
Therefore the legal point becomes whether a written memorandum given to the jury can be a substitute for an oral direction. There is also a complementary issue of what direction should be given by a judge as to the status of a written document given to the jury. In this case it was argued by the applicant that the status of the document was uncertain and reference was made to example [248] - [249] and [506].
Counsel for the applicant referred me to the case of R v Wayne Charles Bourke[1] in support of the proposition that a written memorandum can be given to the jury as an aide memoire in order to assist them to understand the oral directions, but it was not to be in substitution of those directions. Further it was submitted, the case R v Radford[2] also supported the proposition.
[1] [2003] QCA 113, [21-22].
[2] (1986) 133 LSJS 110, 117, 134 and 137.
It was further argued by counsel for the applicant that there was an inconsistency between the written memorandum on manslaughter by way of excessive defence and the oral summing up at [215] and [243], as the oral summing up in its context appeared to suggest that if there is excessive self defence it is unlawful and because it is unlawful it amounts to murder.
I agree with the submissions of counsel for the applicant that the above three grounds of appeal are matters of law and not matters of mixed law and fact. On that basis no leave is required. If for any reason the characterisation was to be regarded as a matter of combined fact and law, I consider that the above three grounds are reasonably arguable and leave is therefore granted to appeal on these grounds.
Ground 4
The fourth ground of appeal asserted:
4.That the learned trial Judge erred in failing to direct the jury in regard to provocation.
With regard to this ground it was submitted by counsel for the applicant that the defence of provocation should have been placed before the jury. At trial, the then counsel for the accused submitted that the defence of provocation should be before the jury. After hearing full argument (Transcript 800 - 816), the trial Judge appeared to be persuaded by the arguments put by the DPP that that there was no factual foundation which was capable of supporting a defence of provocation and further that it would inappropriately complicate the trial for the jury.
It was submitted to me by counsel for the applicant, that accepting the facts most favourable to the applicant, there was evidence from six witnesses from which the learned trial Judge should have concluded that the test as set out in the case of R v Clothier[3] and in particular the legal principles enunciated at [49] - [52], were satisfied.
[3] [2002] SASC 9.
I have considered carefully these submissions and have had regard as to whether or not it is reasonably arguable that there was evidentiary material fit to be left to the jury, taking a view which is most favourable to the accused, such that the defence of provocation should have been placed before them. I do not consider that it is reasonably arguable that the Judge erred in this respect.
In so concluding I have noted that it is not necessary for the accused person to testify to a loss of self-control. In this case the evidence capable of supporting such a defence was very slim indeed. There was in my view insufficient evidence as to what words or conduct of the deceased may have satisfied both the subjective test and the objective test with regard to a defence of provocation. I agree with the submission by the DPP that this would have left the jury with no more that pure speculation. I reject the application for leave on this ground.
Ground 5
The fifth ground of appeal was that the learned trial Judge erred in excluding the evidence of Trudi-Ann Hein. The grounds for rejection by the learned trial Judge of this statement are set out in [64] - [66] of the Reasons for Ruling provided on 8 September 2005 namely:
64.Similarly, I ruled that the evidence of a former girlfriend of the deceased that he had been, on a few occasions, violent toward her was inadmissible. The evidence related to a relationship some twenty years earlier and the circumstances were such that I did not consider it sufficiently probative of any relevant issue. The circumstances were too far removed from the incident in question. And involved a relationship between the deceased, who was nineteen, and the proposed witness, who was sixteen at the time.
65.Equally important was the fact that the prosecution had statements from two other women who had relationships with the deceased subsequently. These statements revealed that the deceased had not been violent but was merely over protective. Ms McDonald correctly submitted, on my view, that if the proposed evidence was allowed then those other two women would have to be called to present the complete picture and it would effectively create a trial within a trial.
66.It was my view that the proposed evidence would not assist the jury in determining the relevant issues in the trial, and was far too remote. [4]
[4] [2005] SASC 336.
I consider that the reasoning of the learned trial judge to be sound and there is no reasonable argument that his Honour erred. I therefore refuse leave on that ground