R v Mardon - [2015] SASCFC 135

Supreme Court of South Australia
(Court of Criminal Appeal)
R v MARDON
[2015] SASCFC 135
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Auxilliary Justice David)
17 September 2015
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - PROOF OF INTENT
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
CRIMINAL LAW - EVIDENCE - CREDIBILITY
Appeal against conviction. The appellant was convicted after a trial by Judge alone of three counts of serious criminal trespass in a place of residence and three counts of attempting to create a risk of harm. The offending related to separate occasions during which the appellant entered the victim’s home and contaminated drinks in his refrigerator with a weed killer.
Whether the trial Judge erred in failing to direct himself as to the use of discreditable conduct evidence. Whether the trial Judge erred in making adverse findings of credit against the appellant in circumstances where his evidence was not challenged on certain topics. Whether the trial Judge failed to give adequate reasons. Whether the trial Judge erred in his findings of fact and inferences drawn from evidence.
Appeal dismissed.
Held per Kelly J (Vanstone J, David AJ agreeing) (dismissing the appeal):
1. The proper or improper use of the discreditable conduct evidence was not critical to the issues for determination at trial. It was therefore not necessary for the trial Judge to specifically direct himself as to the permissible and impermissible uses of the discreditable conduct evidence in a way not ordinarily required in a trial by Judge alone.
2. The prosecutor challenged the contention that the appellant did not believe that poisoning the victim’s drinks would cause harm and defence counsel could not but have been aware that the evidence was challenged. No procedural unfairness to the appellant arose as a result of the prosecutor not directly challenging the appellant’s evidence on this point.
3. The complaint that the trial Judge failed to grapple with a central tenet of the defence case is misconceived. The trial Judge dealt with the defence’s submission on this point, and rejected it.
4. It was open to the trial Judge to find that the appellant knew that the weed killer was a toxic chemical capable of harming a person while rejecting other aspects of the appellant’s evidence. There is no basis to suggest that the trial Judge overlooked or failed to understand the import of Professor Drummer’s evidence in assessing the appellant’s credibility.
Criminal Law Consolidation Act 1935 (SA) s 29(3), s 170(1), s 270A; Evidence Act 1929 (SA) s 34P, referred to.
R v McFadden & Ors (1976) 62 Cr App R 187, applied.
R v Keyte (2000) 78 SASR 68; Reid v Kerr (1974) 9 SASR 367; R v Byczko (No 2) (1977) 17 SASR 460, discussed.
Bulstrode v Trimble [1970] VR 840; MWJ v The Queen (2005) 80 ALJR 329, considered.

R v MARDON
[2015] SASCFC 135
Court of Criminal Appeal: Vanstone, Kelly JJ and David AJ

VANSTONE J: I would dismiss the appeal. I agree with the reasons of Kelly J.
KELLY J.
Introduction
This is an appeal against conviction. The appellant was convicted after a trial by Judge alone of three counts of serious criminal trespass in a place of residence[1] and three counts of attempting to create a risk of harm.[2]
[1] Contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
[2] Contrary to s 29(3) and s 270A of the CLCA.
The appellant appeals against his conviction on four grounds. The grounds of appeal relate to directions that the trial Judge gave himself in regards to discreditable conduct evidence, the trial Judge’s findings of credit, inferences drawn from the evidence, and the adequacy of his Honour’s reasons.
Background
It is necessary to summarise the somewhat unusual circumstances of the offending before dealing with the grounds of appeal.
The victim and the appellant were members of the Jehovah’s Witness congregation at Crafers. In 2010 the victim was a member of a committee responsible for excommunicating or ‘disfellowshipping’ the appellant from the congregation. The effect of being disfellowshipped was that the appellant could still attend church meetings but was no longer permitted to socialise with members of the congregation. It was the appellant’s evidence that he was isolated and on three separate occasions he applied to the council of elders of the congregation, of which the victim was a member, to be reinstated. His applications were refused.
From April 2011 the victim started to notice that the milk and other drinks in his refrigerator had a toxic taste, or appeared cloudy. After noticing on about half a dozen occasions that his drinks tasted or smelt toxic, the victim became suspicious that they were being contaminated and in May 2011 he purchased CCTV recording equipment for surveillance purposes. The victim’s suspicions were justified when, on 25 October 2011, the victim returned home with his family, and observed the appellant on the recorded footage in his kitchen and at the refrigerator.
On 25 February 2015 the appellant pleaded guilty to two counts of theft for the unlawful possession of a key to the victim’s house and personal documents in the victim’s name. The offences to be determined by the trial Judge were three counts of serious criminal trespass in a place of residence and three counts of attempting to create a risk of harm said to have been committed on three separate occasions when the appellant gained entry to the victim’s home and then contaminated his milk or apple juice.
The appellant gave evidence at trial and conceded that in 2011 he decided to put glyphosate, a weed killer, in the victim’s drinks. He would use a syringe to inject the chemical into the drink containers in the victim’s refrigerator. The reason he gave for doing so, which was rejected by the trial Judge, was to cause the victim and his family to feel uncomfortable and thereby encourage the victim to step down from the committee of elders to be around his family more. The appellant’s ultimate objective in doing so was to be allowed to rejoin the Crafers Jehovah’s Witness congregation as he believed the victim was causing his requests to rejoin the congregation to be refused.
The appellant’s case at trial was that he did not intend to harm anyone, and that he did not think that the glyphosate in the drinks would ever cause harm to the victim or his family as the diluted glyphosate tasted and smelled so bad that no one could drink the contaminated products, and they would simply spit it out.
In support of his contention that he did not intend to harm anyone, the appellant gave evidence that he had contacted the poisons hotline and “ran the scenario past them”. He said:
A.I asked them the question ‘If somebody’s drunk the glyphosate’ or ‘No Gro 450, what would happen?’ or ‘What’s the, what’s the harm? I need to know what the harm is’. And they’re asking the questions ‘Well, how much?’ and ‘Is it diluted?’ or ‘Is it concentrated?’. ‘No, no, no, it's diluted’ but there was no – once they found out that it was diluted they asked ‘What sort of concentrations?’, and I just said ‘Well, it's the normal dilution of, of the bottle.’
…
A.They said ‘That's, that's fine’, or not that it's fine, they said ‘Monitor, there's no need to take them into hospital, just monitor. If they show any signs of, of sickness in any way, then, then bring them in’ but according to the dosage and the amount, there was no problems.
The appellant also gave evidence that he subsequently made up batches of glyphosate at various dilutions and tried it himself. He said “it was painful to, to drink in the taste and smell. It was horrible”. He elaborated that this was not physical pain but it was such as to make him “gag”. He said he was able to drink half a glass of it and felt no effects. He tested it himself about half a dozen times to ensure that the concentration would not harm anyone who drank it, but also that the taste was still noticeable enough that nobody could drink it without realising it was contaminated.
In cross-examination the appellant acknowledged that he had no particular qualifications in relation to toxicology. He was asked about the call to the poisons hotline. The following passage of evidence occurred:
A.It's a 1300 number, I can’t remember what the number is now.
Q.    Where did you find it from.
A.I might have Googled it at the time. I really can’t remember. It could have even been on the bottle. I can’t remember where I got the number. I remember it starting with 13, but where it went from there, I can’t remember.
Q.    Did you know if it was a government department.
A.    No, I’m not sure.
Q.You could have really been ringing anyone, couldn’t you, based on your current knowledge.
A.    Well, it’s the official number.
Q.    Why do you say it’s the official number.
A.Because that’s the number that came up. You’re [not] going to get unofficial departments answering those sort of questions. It’s a national number.
Further questioning on this topic ensued. The appellant was then asked:
Q.    And was it a male or a female you spoke to.
A.    Female, from memory.
Q.    And when did you speak to them.
A.    As in time, you mean? Time frame?
Q.    Yeah, when was it, what month.
A.That’s a difficult one for me to answer that one, I would go somewhere probably early 2011, but again, that’s not an official – I’m just having a guess.
The appellant was then asked what information he gave about the concentration that had been inadvertently taken. The questioning continued:
Q.    Did you tell them that you had ingested it.
A.    No, a child.
Q.    You said a child had.
A.    Yeah.
Q.And they said to you ‘Well, there's no need to take them to the hospital, but if they show any signs you should’.
A.They wanted – they asked the age of the child. I said 10. How much had they drunk? I said I was a little bit unsure because I wanted to go along the lines of ‘Is there a particular amount’, which I said that I’m not a hundred-per-cent sure. It looks something like half a litre’s missing out of it.
Q     Did they tell you it might cause vomiting or nausea.
A.They went through a few different things. It’s possible some effects could cause that, depending on – and that’s why they were very curious as to how much had been taken.
Q.    Did they say to you, though, the ingesting –
A.    The symptoms, if they show any of these symptoms, then yes, may be an issue.
Q.Did they say to you, though, that ingesting this product could cause things like vomiting and nausea.
A.    Yes.
Q.    And that’s the sort of thing you should look for.
A.    Yes.
…
A.    … They actually asked ‘Has the child vomited?’.
Q.    They asked had the child vomited.
A.‘Has the child vomited’, yes. That's where they were talking about the taste of it, because I said ‘Is it going to cause harm?’, and they said ‘No’. They wanted to know how much they had drunk, because it caused them to vomit. Because they were asking me questions to get more of a feel of the situation.
Consequently, the prosecutor then suggested that, inasmuch as the person from the poisons hotline was reported by the appellant as having advised that vomiting and nausea could follow, the appellant had knowledge of potential harm. It was never directly put to the appellant that he never called an information hotline.
The trial Judge found the appellant to be an unimpressive witness who gave inconsistent evidence. His Honour rejected “as even a reasonable possibility, that the accused contacted the poisons hotline at all” and that the appellant tested concentrations of the poison on himself. His Honour considered that the “evidence that he thought the weed killer he was inserting into the consumable drinks in the complainant’s refrigerator was a safe product beggars belief.” The trial Judge found that the appellant intended to exact revenge on the victim and stop him from continuing in his leadership position in the Crafers congregation. His Honour rejected the appellant’s denials of intending to cause harm to the complainant or his family.
In sum, the trial Judge found:[3]
[T]hat the only reasonable rational inference to be drawn from a combination of the finding that the accused bore an intense animosity towards the complainant to whom he attributed the loss of his marriage, and of his social life; together with the use of a contaminant which he knew to be poisonous, and knew was capable of causing harm; is that he did indeed intend to cause harm to the complainant, or to members of the complainant’s family which would have the impact upon the complainant of preventing him from attending church meetings.
The accused was aware of the possible side effects of the consumption of the weed killer, and contaminated the very drinks likely to be consumed, including by children he knew to be present in the house, namely milk and fruit juice.
[3] R v Mardon [2015] SADC 78 at [63]-[64].
Evidence in relation to the contamination was given by Professor Drummer, an expert in the field of toxicology. The effect of his evidence, which was accepted by the trial Judge, was that although the consumption of large amounts of glyphosate could cause significant side effects including death, consumption in small amounts may not cause adverse side effects at all. Consumption in the amounts found in the victim’s milk might cause irritation of the gut or nausea, but would be unlikely to cause significant side effects. Consequently, the trial Judge did not find that the appellant’s contamination of the drinks was “likely to cause harm” for the purposes of s 29(3) of the CLCA. However, his Honour did consider that the nausea or vomiting that could be caused would constitute “harm”,[4] and in finding the elements of the offences proved, found:[5]
[T]hat the fact that there may not have been sufficient poison to be likely to cause harm does not afford the accused a defence, or mean that the charge of attempting to cause harm cannot be made out.
Analysis
[4] In his reasons the trial Judge referred to the definition of harm within s 171(1) of the CLCA. The relevant definition of harm for s 29(3) is contained in s 21 of the CLCA. For present purposes there is no relevant distinction between the definitions in the two sections and I consider that this error is of no consequence.
[5] R v Mardon [2015] SADC 78 at [65].
Ground 1
The first ground of appeal is a complaint that the trial Judge erred by failing to direct himself as to the use to be made of discreditable conduct evidence led at the trial, and in failing to adequately direct himself as to the use he could make of a finding of guilt in relation to one count, in proof of another count.
The discreditable conduct identified in support of this ground of appeal was that the appellant had broken into the victim’s home and put glyphosate into drinks in the victim’s refrigerator during a period of about three to four months before the charged offences. That conduct was similar to the conduct which was the subject of the charged counts on the information, and was admitted by the appellant.
There was no objection taken to the admission of that evidence at trial. The discreditable conduct evidence was relevant for two purposes: on the prosecution case, to explain that the victim eventually placed CCTV cameras into his kitchen in order to detect who it was who was coming into the home and contaminating his drinks; and on the defence case, to support the appellant’s evidence that he did not intend to harm the victim or his family. The submission was that the repetitive and predictable way in which he placed glyphosate into the victim’s drinks demonstrated that the appellant only wished to frighten, not harm, the victim and his family.
In submissions before this Court the appellant’s counsel advanced, as the main complaint in support of this ground, that the trial Judge failed to give adequate reasons by not referring to the use or uses he made of the discreditable conduct evidence. As such, it is impossible to retrospectively ascertain whether or not the Judge engaged in a reasoning process prohibited by s 34P of the Evidence Act 1929 (SA).
The appellant agreed at trial that he had entered the victim’s home and put glyphosate in milk and apple juice containers in the refrigerator on numerous occasions. He admitted that he gained access to the house by using a key which he had obtained earlier and in circumstances that were never really explained. The prosecution relied on the CCTV footage which showed the appellant entering the house and going to the refrigerator. The identity of the appellant who engaged in the conduct on the prior occasions was therefore never in issue. The critical issue at trial was not the identity of the perpetrator, but the intention of the appellant when entering the victim’s home and contaminating his drinks. In light of this, there is a distinct air of unreality about the complaint made in this ground as there was really no prejudicial use which could be made of the discreditable conduct evidence. This was not a case where it was an issue that the discreditable conduct evidence could reveal a particular propensity on the part of the appellant beyond that which he himself admitted. It was not capable of being used in any way apart from the respective purposes of the prosecution and defence, as identified above. It is difficult to see how the evidence could have been used in any other way, let alone in a way which was unfairly prejudicial to the appellant. On the prosecution case the earlier conduct was simply more of the same. On the defence case that evidence was capable of showing that the real intention of the appellant was simply to frighten the family, not to harm them.
The obligations on a trial Judge sitting alone was discussed in R v Keyte.[6] It is well established that when sitting without a jury there is no obligation on a trial Judge to replicate the instructions that it would be necessary to give a jury. The appellant nevertheless relied on Keyte to support his submission that the trial Judge’s failure to explain both how he used the evidence of the discreditable uncharged conduct, and whether and how the evidence relevant to one count was used as evidence tending to prove another count, constituted an error of law.
[6] (2000) 78 SASR 68.
As Doyle CJ pointed out in Keyte, the proper use of the evidence of uncharged conduct was, in the circumstances of that case, an important issue at trial. The failure of the Judge to give reasons about those matters, having regard to the evidence which was admitted and the issues at the trial, was held to be an error of law justifying the intervention of the Court of Criminal Appeal.
Here, however, the issues for determination at trial were very narrow. There was no objection to the admission of the evidence at trial. In light of the fact that the appellant conceded that it was he who had contaminated the drinks, and the discreditable conduct evidence was only relevant in the two ways identified above, it cannot be said that the proper or improper use of the discreditable conduct evidence was critical, such that it was necessary for the trial Judge to specifically direct himself as to the permissible and impermissible use of that evidence in a way not ordinarily required in a trial by Judge alone.

I would dismiss this ground of appeal.
Ground 2
Ground 2 is a complaint that the trial Judge did not afford procedural fairness to the appellant before making certain findings adverse to the appellant’s credit.
At [61] of his reasons the trial Judge completely rejected the appellant’s evidence that, to ensure that his actions would not endanger the health of the victim’s family, he took precautionary measures to acquaint himself with the effects of glyphosate. Specifically, his Honour rejected the appellant’s evidence that he had both telephoned the poisons hotline, and tested the weed killer at various levels of concentration on himself. The appellant complains that this conclusion was drawn in the absence of any challenge to the appellant’s evidence on these topics, as he contends that counsel for the prosecution did not contradict the appellant’s evidence on this topic and the trial Judge himself did not raise the issue. In those circumstances it is said that it was not open to the Judge to reject the appellant’s evidence on this topic.
In my view the passages of cross-examination extracted above at [12] amounted to a challenge to the appellant’s evidence that he thought that the glyphosate was incapable of causing harm on the basis of a conversation with poisons hotline staff, and also questioned the occurrence of such a conversation at all.
In the absence of proof that the call to a poisons hotline did not take place, the prosecutor was not in a position to directly contradict the appellant. Quite properly, he took the approach of probing the account that the appellant was giving. He did so in a way which made it clear that he was sceptical of the truth of it.
In R v McFadden & Ors[7] the Court of Appeal discussed defence counsel’s duty in circumstances where the defence case was that an incriminating piece of evidence had been “planted”. The Court said:[8]
Where the accused’s defence leads to the conclusion from the evidence as a whole, that one or more identifiable persons were responsible for the “planting,” then it is counsel's duty, not only to the accused but also to the court, to pursue that defence and to put this allegation in cross-examination. Where, because of the instructions of the accused, a number of persons, whom the accused cannot identify, could have been responsible for the “planting” then it is counsel's duty to test and probe the evidence for the prosecution in order to demonstrate the opportunity open to someone to have done the alleged “planting.” In the absence of a basis for accusing a witness of responsibility for the “planting” of evidence, counsel should not put in cross-examination that that witness is responsible. But he must put the allegation of opportunity and the general allegation that “planting” has taken place, not necessarily to all the prosecution witnesses, but to that witness or witnesses whom counsel thinks most appropriate so that the prosecution have a proper opportunity to deal with the allegation by the accused. To do anything less would be to deny the prosecution the opportunity to rebut that defence and would deny to an accused the right to have his defence considered by the jury.
[7] (1976) 62 Cr App R 187.
[8] R v McFadden & Ors (1976) 62 Cr App R 187 at 194.
Applying this principle, it was for the prosecutor to make it plain that the appellant’s evidence that he contacted the poisons hotline and tested the glyphosate on himself was not accepted, so that the appellant was put on notice and would have opportunity to call further evidence on that topic if he so desired. The prosecutor clearly did so and the appellant’s counsel at trial was well alerted to the challenge from the prosecution to the appellant’s evidence that he did not think his actions would harm the victim or his family. It seems to me that, as a matter of principle, counsel for the prosecution was required to go no further than he did and the trial Judge was entitled to make adverse findings against the appellant as he saw fit.
In my view, the final position of the prosecutor here was, in effect, that whether or not the appellant had contacted the poisons hotline, he knew that the taking of this poison could cause nausea and vomiting. Thus, either way, the prosecutor had challenged the contention that the appellant did not believe that the result of poisoning the victim’s drinks would be to cause harm.
The duties of counsel in challenging a witness whose evidence he might later criticise were discussed in several cases in the 1970s. In Reid v Kerr,[9] Wells J discussed the principle in Browne v Dunn.[10] Wells J was there dealing with a Magistrates appeal in which the prosecution had been permitted to re-open its case to call expert evidence as to the analysis of cannabis sativa L, having argued that defence counsel had not complied with Browne v Dunn. In the course of the discussion of the principles Wells J said:[11]
I do not for one moment suggest that counsel should abandon the arts and fair devices of cross-examination. I am well aware that there are more ways of taking a fort than by frontal attack, but I also hold it to be a fundamental principle that, when all arts and devices of cross-examination have been exhausted for the purpose of testing whether a particular witness merits adverse criticism, then, at some stage, and in some fair manner, he should be given the opportunity of meeting the implication and answering it. A trial judge is placed in a difficult position if such a principle is not adhered to.
[9] (1974) 9 SASR 367.
[10] (1893) 6 R 67 (H.L.).
[11] Reid v Kerr (1974) 9 SASR 367 at 374.
In R v Byczko (No 2)[12] the appellant had been convicted of rape. Complaint was made on appeal about certain observations in the trial Judge’s summing up, aimed at repelling an adverse inference against the victim in relation to actions she had undertaken. Defence counsel had not asked her during the trial to explain those actions. The extent of counsel’s obligations was considered on the appeal. In the course of that discussion Bray CJ, with whom Mitchell J agreed, said:[13]
I do not agree that counsel when faced with apparent improbabilities, inconsistencies and incredibilities in the evidence of his opponent’s witness is necessarily bound to probe them in detail if he wants to comment on them adversely in his final address. Sometimes it may be better advocacy to leave the matter with an uplifted eyebrow.
[12] (1977) 17 SASR 460.
[13] R v Byczko (No 2) (1977) 17 SASR 460 at 466.
In my view these observations are apposite in the circumstances under consideration. The prosecutor probed the appellant’s evidence of the poisons hotline call. He did so in such a way as to signal that the evidence was not accepted. The appellant’s knowledge of the likelihood of harm should the adulterated milk or apple juice be consumed was even more overtly probed. Prosecuting counsel was not in a position to directly put to the appellant that he had not contacted the poisons hotline, but he cross-examined the appellant in such a way that defence counsel could not but have been aware that the evidence was challenged, and if he had further evidence on that topic to call, he would be as well to do so. As such, no procedural unfairness to the appellant arose.
The trial Judge was perfectly entitled to reject the appellant’s evidence out of hand. There is no rule that a failure to cross-examine on a topic compels the tribunal to accept the evidence of the witness: Bulstrode v Trimble,[14] MWJ v The Queen.[15] Indeed, the usual result of a failure to cross-examine in such a way as to put the opposing party on notice of a challenge is to apply to recall the relevant witness. There was no such application in this case.
[14] [1970] VR 840 at 848-849.
[15] (2005) 80 ALJR 329 at 333.
I further note that the appellant was found by the trial Judge to be an unimpressive witness who gave inconsistent evidence and whose “explanations were unconvincing, as was his manner.” In such circumstances I consider that it was not only open to the trial Judge, but entirely unsurprising, that he rejected the appellant’s evidence of safeguards purported to have been taken to protect the victim and his family which had, in any event, been appropriately challenged.
I would dismiss this ground of appeal.
Ground 3
The next ground of appeal is a complaint that the trial Judge failed to adequately explain how he concluded beyond reasonable doubt that the appellant possessed the necessary intention to cause harm.
The argument in support of this ground relied on what was claimed to be the Judge’s failure to deal with one of the central tenets of the appellant’s defence at trial, being that the presence of the chemical in the drinks was so obvious and foul that he did not think anyone would ever drink it and be harmed. This was said to be one of the central matters relied on by the appellant as undermining the prosecution case that he intended to cause harm.
There was evidence that glyphosate is readily identifiable as it has a bad taste and an offensive smell. There was also evidence that the appellant’s pattern of behaviour became obvious to the victim, as the victim became aware that the milk and juice were being contaminated while he and his family were at church, and he set up and activated the CCTV recording system accordingly. The victim said there was a “pretty clear pattern” as to what was happening.
In light of this evidence the appellant submitted that his actions were so obvious, so predictable and so repetitive that it was impossible for the prosecution to prove beyond reasonable doubt that the appellant ever intended to cause any harm. In short, the argument was that the appellant had ample opportunity to harm the victim and his family if he so desired, and his continuation of his course of action told of his intention to upset, but not harm, the victim.
There was a further complaint that not only did the trial Judge fail to deal adequately with this central argument, he did not deal with it at all and failed entirely to articulate in the reasons why the predictable nature of the appellant’s behaviour did not cut across the conclusion that the appellant possessed the requisite intention.
His Honour’s reasoning on this topic is to be found in the passages set out below:[16]
[16] R v Mardon [2015] SADC 78 at [53]-[62].
I bear in mind the submission of counsel for the accused that I should consider the accused’s mental state when determining what the accused was thinking when he entered the complainant’s house. As defence counsel submitted, the accused was at a loss emotionally and spiritually. The church had abandoned him and his marriage was being destroyed. His judgment was impaired. Defence counsel submitted that I could infer that someone who puts glyphosate in someone’s drinks is not thinking clearly. I accept that the accused’s judgment may have been impaired.
Findings
As I have said, there is no controversy as to the factual basis of the charges. The real issue for determination is whether I am satisfied beyond reasonable doubt that the accused intended to cause harm, or was reckless as to whether there was a risk of harm being caused, to the complainant or members of his family by his actions. A further issue is consideration of whether poison of the amount used by the accused was likely to cause harm.
…
I found the accused to be an unimpressive witness. I bear in mind the difficulty faced in endeavouring to assess a witness’s veracity by his demeanour in the court room. His explanations were unconvincing, as was his manner. He gave inconsistent evidence saying he knew of the poisonous properties of glyphosate, but considered it to be a safe product. He gave inconsistent evidence saying he had inserted known poison into drinks in the complainant’s refrigerator, but also saying he did so in such a manner as to protect the complainant and his family from consuming the poison.
… His evidence that he thought the weed killer he was inserting into the consumable drinks in the complainant’s refrigerator was a safe product beggars belief. I am satisfied beyond reasonable doubt that the accused intended in fact to exact some revenge upon the complainant, and that he was endeavouring to ensure that the complainant did not continue his position as an elder at the church. I reject his denials of intending to cause either the complainant or his family harm by committing the acts he has admitted.
…
The matters put by defence counsel, as to the approach to be taken to assessing the accused’s mental state however, were the very reasons I find that the accused entered the complainant’s house as a trespasser intending to cause harm, (within the definition to which I have previously referred) to the complainant or members of his family. I find beyond reasonable doubt that he contaminated the drinks with a known poison, intending to cause at least nausea. That is the only reasonable and rational inference I can draw from the evidence as I have found the facts to be.
[emphasis added]
It can be plainly seen from the passages quoted above, especially those emphasised, that the complaint that his Honour failed to grapple with this significant matter on the defence case is misconceived. It fails to appreciate the import of his Honour’s remarks in these passages for not only did his Honour deal with the defence submission, he also explained clearly why he rejected it. In the end, I consider that the appellant’s complaint in respect of this ground of appeal amounts to no more than a complaint that the trial Judge rejected the appellant’s explanation as inherently improbable. On the sum of the whole of the evidence that conclusion was open to him.
I would dismiss this ground of appeal.
Ground 4
The final ground of appeal is a complaint that the trial Judge failed to take into account the evidence of Professor Drummer when reaching the conclusion that the appellant was not a credible witness. It was said that Professor Drummer’s evidence supported the appellant’s evidence that it was possible to consume glyphosate at the levels found in the drinks with no adverse effects, and that glyphosate is readily identifiable to anyone who attempts to consume it because of its putrid smell and taste. There is a further complaint under this ground that the trial Judge erred in concluding that the appellant knew of the possible side effects of the consumption of glyphosate, while simultaneously rejecting his evidence that he contacted the poisons hotline and consumed some of the weed killer himself to test it. The appellant submitted that this conclusion was inconsistent with the trial Judge’s rejection of his evidence.
The trial Judge’s conclusions reveal that he well understood the import of Professor Drummer’s evidence and did not overlook it in reaching his adverse findings of the appellant’s credibility. He said:[17]
I accept the evidence of Professor Drummer that glyphosate is a weed killer that can be poisonous to humans when ingested; and that dependent upon the amount of glyphosate ingested, consumption could cause significant side effects including death. The consumption of a significant dose of glyphosate could cause depression of the respiratory system, problems with blood pressure, and significant adverse effects in the stomach. The consumption of small amounts may not cause adverse side effects but that would depend upon the sensitivity of the person consuming the poison. The consumption of relatively small amounts, such as that discovered in the milk from the complainant’s refrigerator, might cause irritation of the gut, or perhaps nausea, but would be unlikely to cause significant side effects.
The effect of those findings is that the contamination of the milk and juice, at the levels at which the accused admitted contaminating those drinks, could possibly have caused harm, but I am unable to find that it was “likely to cause harm” in terms of s 29(3) CLCA.
[17] R v Mardon [2015] SADC 78 at [55]-[56].
It emerged in the appellant’s own evidence that he knew from the labelling on the bottle and his own experience with glyphosate about the potential toxic side effects of that drug. He acknowledged this:
Q.Looking at Exhibit P7 produced to you, looking at the front of that bottle, that's the bottle that you extracted the glyphosate from, is it.
A.Yes.
Q.The bottle that you extracted it from, you used to put it into the milk and apple juice at various times.
A.Yes.
Q.At the front of that bottle it says 'Caution. Keep out of reach of children', doesn't it.
A.Yes.
Q.Underneath that what does it say.
A'Read safety directions before opening or using'.
Q.You don't see those sorts of cautions on a bottle of milk, do you.
A.No.
Q.Or a bottle of apple juice.
A.No.
Q.You would agree with me, wouldn't you, that the reason why those cautions are put on a bottle such as No Grow 450 is because it is toxic.
A.Yes.
Q.You knew, didn't you, because you'd been working with it, that one of its roles is to kill weeds.
A.Yes.
For this reason I consider it was open to the trial Judge to find that the appellant knew that glyphosate was a toxic chemical capable of harming someone who consumed it, even after rejecting the appellant’s evidence regarding the poisons hotline and drinking the glyphosate himself. Further, on a plain reading of his reasons, there is no basis to suggest that the trial Judge overlooked or failed to understand the import of Professor Drummer’s evidence.
Conclusion
The appellant has not pointed to any error in the approach of the trial Judge which warrants the interference of this Court. The conclusion reached by the trial Judge that the appellant’s evidence was inherently improbable and “beggars belief” was open to him. After carrying out my own independent assessment of the evidence, I have no misgivings about the verdict reached by the trial Judge.
I would dismiss the appeal.
DAVID AJ: I would dismiss the appeal. I agree with the reasons of Kelly J.