R v Mallett No. Sccrm-03-109

[2003] SASC 332

R v MALLETT
[2003] SASC 332

Court of Criminal Appeal: Doyle CJ, Prior and Vanstone JJ (Ex tempore)

1. DOYLE CJ:          This is an application for leave to appeal against conviction.

2. The application for leave to appeal was heard by a judge of this court. He refused leave to appeal. The applicant has now requested that his application for leave be considered by the Full Court. He has asked that the application be dealt with by oral argument and the court has now heard oral argument.

3. The applicant was convicted, by the verdict of a jury, on two counts of assault occasioning actual bodily harm and one count of threatening life.  The charges arose from an incident that occurred early one morning at a house.  In his evidence at trial, the applicant admitted that he was at the house on the occasion in question.  It suffices to say that the two victims complained of an unprovoked attack on them by the applicant and of the making of the threat.  In a nutshell, the defence was that there was no assault on the first victim, nothing more than an argument, and that during the course of this the second victim attacked the applicant and anything he did was done by way of self-defence.  The applicant denied making the threat which formed the basis of the third charge.

4. The first ground in respect of which leave is sought is that the judge should have directed the jury on the basis that the applicant might have been affected by alcohol or drugs at the time, and that this might provide a basis for the jury to be not satisfied of the intention to cause actual bodily harm.

5. The incident in question happened at about 5:00 am or 6:00 am one morning.  The applicant said that the previous evening he had had a moderate amount of alcohol and two sleeping tablets, and had then gone to bed.  He denied being under the influence of drugs or alcohol, although he did say that because of sleeping tablets, he was normally fairly groggy for the first couple of hours of a morning.  In his evidence the applicant also attempted to explain some answers he had given to the police when he was arrested by them, by saying he was confused at the time, but he does not appear to have linked this in any way to drugs or to alcohol.

6. The matter did not receive much attention in addresses, although the prosecutor referred briefly to the appellant’s demeanour when interviewed by the police and to what he called mood swings.  The prosecutor also referred to the evidence of one of the victims to the effect that the applicant appeared to be “off his head” at the time and possibly under the influence of some substance. No request was made by defence counsel that the judge give a direction along the lines that it is now suggested the judge should have done.

7. In the circumstances, my view is that this proposed ground of appeal has no reasonable prospect of success.  It was not a realistic possibility, on the evidence, that the jury might have concluded that the applicant was so affected by alcohol as to be able to behave as he did, but not able to actually form the intention to cause actual bodily harm.

8. It is likely that the applicant, at trial, denied being significantly affected by drugs or alcohol because that suggestion might have supported the view that he arrived at the house in question in a very angry and aggressive state.  The fact that he denied the suggestion is not, of itself, a sufficient reason for the judge not  to have directed the jury on the topic, but when one looks at the case as a whole, and the manner in which the defence was conducted, my view is that there was no need for the judge to give a direction on the topic, because a possible defence of the kind raised was not a realistic possibility.

9. Quite apart from that, s 269 of the Criminal Law Consolidation Act 1935 (SA) appears to apply. Its effect is that intoxication is not to be left to the jury, on the basis that intoxication might have impaired the accused’s consciousness (which includes intent), unless defence counsel specifically asks the judge to do so. Defence counsel did not so ask. That is another reason why this ground cannot succeed.

10. The second complaint is that the judge did not give an adequate direction on lies. In the course of evidence, the prosecutor suggested to the accused that he had told some lies when he was questioned by the police and had also told some lies in court.

11. There was no suggestion by the prosecutor that these lies indicated a consciousness of guilt.  The judge directed the jury, quite clearly, that if they were satisfied that lies were told, that was relevant to credibility of the evidence the applicant gave.  He warned the jury that what might appear to be a lie might be explicable on the basis of panic or thoughtless answers.

12. Having considered the relevant portions of the evidence, my view is that there was no realistic prospect of the jury thinking that the possible lies could be relied upon as evidence of a consciousness of guilt.  No such suggestion was made at any stage.  Although the judge did not direct them that they could not reason in this way, the effect of his direction was that the lies went only to credibility.

13. Nor do I accept that the issue of lies required a direction in relation to drug or alcohol consumption.  There was no particular reason to focus on that issue in relation to the question of lies.  The judge explained, in general terms, that there could be a number of reasons why someone might tell what appeared to be a lie.

14. Nor was there any need for the judge to say more about the facts of the case in relation to the lies.  There was no need for the judge to track through the evidence, commenting on particular suggested lies, and linking his directions to the jury as to each particular possible lie.  Having regard to the evidence, I am satisfied, in any event, that that would not have been, in any way, to the advantage of the accused.

15. Accordingly, I consider that that ground has no reasonable prospect of success.

16. For those reasons, I would refuse leave to appeal against conviction, on the basis that each of the proposed grounds of appeal has no reasonable prospect of success.

17. Accordingly, the order of the court is that the application for leave to appeal be refused.

18. PRIOR J:              I agree.

19. VANSTONE J:     I agree.