R v Landon

[2011] SASCFC 12

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LANDON

[2011] SASCFC 12

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)

9 March 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - OTHER MATTERS

The defendant appealed against conviction - expert evidence was wrongfully admitted - misdirection upon the expert evidence - retrial ordered.

Criminal Law Consolidation Act 1935 (SA) s 172, s 353(1), referred to.
Murphy v The Queen (1989) 167 CLR 94, discussed.

R v LANDON
[2011] SASCFC 12

Court of Criminal Appeal:       Gray, Sulan and White JJ

GRAY AND SULAN JJ.

1. This is an appeal against conviction.

2. The defendant and appellant, Guy Paul Landon, was convicted by majority jury verdict following a trial in the District Court of the offence of blackmail.[1]  It had been alleged that the defendant between 7 and 10 November 2007, at Ethelton, menaced Shane Scott McInerney, intending to get Mr McInerney to submit to a demand to pay $50,000.00.

   [1]    Criminal Law Consolidation Act 1935 (SA), s 172.

3. On appeal, the defendant raised a number of complaints concerning the conduct of the trial as well as aspects of the Judge’s summing up.  Part of the defendant’s complaints related to the conduct of prosecuting counsel and what was said to be misapprehensions or misunderstandings on the part of defence counsel.

4. During the course of the appeal, it became apparent that there was one aspect of the summing up that was incorrect and was of such a nature that the proviso[2] could have no application.  The Court formed the view that the appeal should be allowed, the conviction set aside and a retrial ordered.  The Court then proceeded to make the above orders and indicated that reasons would be published later.  Our reasons for concurring with the orders of the Court follow.

   [2]    Criminal Law Consolidation Act 1935 (SA), s 353(1).

5. It was the prosecution case that the offence arose out of the defendant’s dealings with Mr McInerney.  Mr McInerney had been in a de facto relationship with a woman, F, and that relationship was breaking down.  Mr McInerney and F had a son.  In 2007, F instituted proceedings in the Family Court seeking custody of the child.  At the time, F was residing at the home of the defendant, who lived with his partner.  F and the defendant’s partner had been friends for some time.  When F and Mr McInerney were living together they regularly associated with the defendant and his partner.  Mr McInerney was concerned that his child was living in the same house as the defendant.

6. In an affidavit filed in the Family Court proceedings, Mr McInerney made a number of allegations about the defendant.  In particular, Mr McInerney alleged that the defendant is a well-known member of the Finks Motorcycle Club, that he had numerous convictions for assault and firearms offences, and that he had once offered Mr McInerney illegal drugs. It is not contested that the allegations about numerous convictions for assault and firearms offences were incorrect. 

7. The defendant became aware of the contents of the affidavit.  He was upset and angry at the references made about him and, in particular, his association with the Finks Motorcycle Club.  He contacted Mr McInerney and later met with him.  At that meeting, the following exchange took place.

8. The defendant said; “You don't know what you've done, you've named me, you've named the club.” Mr McInerney replied; “All I wanted to do was see my son”. The defendant replied; “Not my problem”.

9. The defendant then told Mr McInerney that Mr McInerney owed him $50,000.00 to make amends with him and the Finks Motorcycle Club.  He told Mr McInerney that he had two weeks to pay the $50,000.00.  There was a further discussion which concluded with the defendant saying that he would go to speak to the club to see if he could get Mr McInerney more time to pay. 

10. At a later meeting, the defendant told Mr McInerney that he had spoken to the Club and that if Mr McInerney did not pay, they would be “lining up at his door to hammer him, break his arms and legs and then he would be capped”.  Mr McInerney said that the defendant pointed his fingers at Mr McInerney’s knees.  Mr McInerney understood the gesture to mean that the defendant was going to shoot him in his legs.  It is the conversation at the later meeting which is the subject of the charged offence.

11. In the present proceeding, the Director accepted that the prosecution had to prove the following:

    ·     That the defendant made a demand of Mr McInerney.

    ·     That the defendant made a threat of harm to Mr McInerney.

    ·     That the threat was unwarranted, in that either, if the threat was carried out, the conduct would amount to a serious offence or, alternatively, that the making of the threat in all the circumstances was improper according to the standards of ordinary people, and it was known by the person making the threat to be improper according to those standards.

    ·     That the threat would be taken seriously by a reasonable person of normal stability and courage or, alternatively, that Mr McInerney in fact took the threat seriously because of a particular vulnerability known to the defendant.

    ·     That the threat was made by the defendant with the intention of getting Mr McInerney to submit to the demand.

12. In considering those questions, the object of the demand is irrelevant.  As part of its case, the prosecution led expert evidence from Detective Senior Sergeant Wayne John Williamson.  Detective Williamson has knowledge of the workings of motorcycle gangs.  He has particular knowledge about their code of conduct and how they operate.  In particular, he has knowledge of their language and the meaning of various words and phrases used by gangs.  His knowledge had been acquired from intelligence obtained by police over years of investigating and observing the activities of motorcycle gangs, including the Finks.  Detective Williamson is a member of the squad that is particularly assigned to dealing with motorcycle gangs. 

13. The prosecution submitted that Detective Williamson’s evidence was relevant to the question of whether the threat made by the defendant would be taken seriously by a reasonable person of normal stability and courage.  It was submitted that the evidence was also relevant to the issue of the defendant’s intention. 

14. The Judge directed the jury that the evidence was only relevant to the fourth element, of the offence of blackmail as set out below; namely, that the jury had to be satisfied that the threat was of such a nature that it would be taken seriously by a reasonable person of normal stability and courage.   In summing up, the Judge directed the jury in the following terms:

    Detective Senior Sergeant Wayne Williamson was the police officer who told you about the 1% motorcycle clubs in our communities.  I explained to you during the trial, and I repeat now, that you must not convict Mr Landon solely because you may be satisfied that he was at that time a member of the Finks and/or because you might think that the Finks was a gang with an unsavoury and antisocial reputation, if you are satisfied of either or both of these matters.  Convicting Mr Landon solely on that basis would be quite unfair to him and I direct you not to.

    The relevance of the evidence of Mr Williamson was and is that it bears upon that part of the prosecution case whereby the Crown is required to prove that an alleged threat is of such a nature that it would be taken seriously by a reasonable person of normal stability and courage.  You must not use it for any other reason.

    I now give you some general directions about the evidence of Dr Hayton and Detective Williamson who are said to be expert witnesses and who told you their opinions and their expert knowledge in respect of certain issues in the case.

15. Counsel for the defendant submitted that the evidence is irrelevant for the purpose for which it was admitted and, consequently, the Judge misdirected the jury.  We agree. 

16. In Murphy,[3] Dawson J discussed the principle that applies when considering whether the evidence of an expert is admissible.  He said:

    … The principle is simply that evidence which is put forward to tell the jury something that is within their own knowledge or experience is not helpful and not admissible for that reason.  As Lawton L.J. put in Reg. v. Turner:

    “An expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury.  If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. … Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life.” (Citation omitted)[4]

    [3]    Murphy v The Queen (1989) 167 CLR 94.

    [4]    Murphy v The Queen (1989) 167 CLR 94, 130.

17. The purpose of expert evidence from Detective Williamson about the Finks Motorcycle Club was to provide evidence of matters not known to the reasonable person.  They were matters only known to someone holding the relevant expertise.  If the matters of which Detective Williamson spoke were known to the reasonable person, then there would be no need for expert evidence.  Detective Williamson’s expert evidence on this topic had no relevance to the issue of how a reasonable person would take the threat.  This was a topic upon which the jury could apply their own knowledge and experience.  The admission of the evidence and the direction thereupon amounts to an error.

18. Dealing with the directions, the jury, having heard Detective Williamson’s evidence, was invited to rely upon it, and one assumes that they would have done so in concluding that the reasonable person of normal stability and courage would have taken the threat seriously.  It follows that the Judge’s direction necessarily deflected the jury from the proper consideration of this element of the offence.

19. Counsel for the Director accepted that the Judge’s direction was a misdirection.  She also accepted that the misdirection was a material misdirection and of such a nature that there could be no application of the proviso.  She conceded that the evidence was inadmissible for the purpose for which it was admitted.

20. We agree with counsel’s concession.  In those circumstances, it is unnecessary to consider the other complaints raised on the appeal.

21. As the matter is destined for retrial, it will be for the Judge on the retrial to determine questions of admissibility of evidence, and what questions should be permitted in cross-examination if the defendant gives evidence.  This will depend much upon how the case is presented and conducted on the retrial.

22. For the reasons expressed, we allow the appeal.  We set aside the conviction and order that the matter be remitted for retrial in the District Court.

23. WHITE J. On 16 February 2011, immediately following the hearing of the appeal, the Court ordered that the appeal be allowed, the conviction set aside and the matter be remitted to the District Court for re-trial.  It said that it would publish its reasons later.

24. Given that the circumstances of the appeal are set out in the reasons of Gray and Sulan JJ, I can provide my reasons for joining in those orders quite briefly.

25. The Judge gave the jury the direction set out in full in the majority reasons as to the relevance of Sgt Williamson’s evidence.  The jury was told that the evidence was relevant to proof that the threat alleged to have been made by the appellant was of such a nature that it would be taken seriously by a reasonable person of normal stability and courage.  This was the fourth element of the offence of blackmail which the Judge had identified for the jury.  In addition, the jury was told that the evidence should not be used for any other purpose.

26. This direction was consistent with what the jury had been told by the prosecutor about the relevance of the evidence.  Both in the prosecution opening and closing submissions it was made plain to the jury that the prosecution purpose in leading the evidence of Sgt Williamson was to assist them in understanding why a reasonable person may be frightened when threatened in the way the appellant was said to have threatened the complainant.[5]

    [5]    Transcript 69, 622-3 respectively.

27. In considering the appropriateness of the Judge’s direction concerning Sgt Williamson’s evidence, it is appropriate first to recall the purposes for which expert evidence may be led in a trial.  The evidence of the opinion of an expert is admissible in a criminal trial when the subject matter of the opinion is such that a jury without instruction or experience in the area of human knowledge or experience would not be able to form a sound judgment on the matter without the assistance of a witness possessing special knowledge or expertise in the area.  If on the proven facts, a jury can form its own conclusion without help, then the opinion of the expert is unnecessary.[6]

    [6]    R v Turner [1975] QB 834 at 841; Clarke v Ryan (1960) 103 CLR 486 at 491-2; R v Bonython (1984) 38 SASR 45 at 46-7.

28. In the present case, it was for the jury to consider the way in which a reasonable person of normal stability and courage in the complainant’s position would have regarded the threat attributed to the appellant. Jurors are presumed to be reasonable persons,[7] and accordingly can assess the response of a reasonable person.

    [7]    R v Pahuja (1987) 49 SASR 191 at 195.

29. This was not a case in which the prosecution alleged that the threat attributed to the accused had any special significance to the complainant because of the complainant’s religious or cultural beliefs or because of esoteric knowledge shared by the appellant and the complainant.  Nor was it a case in which the prosecution led evidence that the complainant had any knowledge of the Finks Motorcycle Club of a kind which was not known generally in the community.  The jury accordingly did not need expert evidence to assist them in assessing the response of a reasonable person having particular religious or cultural beliefs or possessing esoteric or specialised knowledge.  This was a case in which the jury should have been able, without the assistance of expert opinion evidence, to determine the response of a reasonable person to the threat.

30. In fairness, the prosecution did not lead evidence from Sgt Williamson as to the way in which a reasonable person or normal stability or courage would respond.  Instead, his evidence was in the nature of expert evidence of facts from which the jury could infer that it would be reasonable or understandable for a reasonable person of normal stability and courage to treat the threat seriously. 

31. The distinction between a reasonable person’s response, on the one hand, and the reasonableness of that response, on the other, may not always be clear cut.  In some circumstances there will be a close interconnection between the two.  Accordingly, in some circumstances proving that it would be reasonable for a person to respond in a certain way would go to the proof of the way in which a reasonable person would respond.  This would be especially so in the circumstances mentioned above, that is, when the threat is said to have some particular significance arising from the complainant’s religious or cultural beliefs, or because of esoteric knowledge shared by the accused and the complainant.

32. However, in the present case, Sgt Williamson’s evidence was, as already noted, expert opinion of fact.  He informed the jury of the intelligence about the Finks Motorcycle Club which the police had gathered from both public and covert sources over many years.  In order for that evidence to be admissible at all as evidence of expert opinion, it had to be evidence which was outside the experience of the jury.  That created the difficulty.  If the knowledge of the Finks recounted by Sgt Williamson was outside the experience of the jury as reasonable persons, it should also have been regarded as outside the experience of a reasonable person in the complainant’s position whose response the jury had to assess.  There was no basis in the evidence upon which the expert knowledge possessed by Sgt Williamson could be imputed to a reasonable member of the community in the complainant’s position.  That being so, the jury had to assess the response of a reasonable person on the basis that that person did not have the knowledge revealed by the police intelligence concerning the Finks Motorcycle Club.  Sgt Williamson’s evidence was not relevant to that assessment.

33. I do not wish to be understood as indicating that evidence of the kind led from Sgt Williamson may never be relevant in a case such as the present.  Depending upon a complainant’s own knowledge of a club such as the Finks, the evidence may be relevant to the reasonableness of the complainant’s response and, as indicated above, may be relevant to the response of a reasonable man.  Counsel for the Director on the appeal (who was not counsel at the trial) also suggested some other ways in which the evidence may be relevant.  It is not necessary to discuss those suggestions as they were not raised at trial and in any event were not debated fully on appeal.  As noted above, the Judge directed the jury that the evidence could be used in one way and only one way.  For the reasons given above, I consider that that direction was in error.

34. Because the appeal should be allowed on the grounds of the misdirection, it is unnecessary to address the other matters raised by the appellant on the appeal.

35. These are my reasons for joining in the orders made on 16 February 2011.