R v Martin (No 3) No. Sccrm-98-169 Judgment No. S9
[1999] SASC 9
•20 January 1999
R V MARTIN (No. 3)
[1999] SASC 9
Court of Criminal Appeal: Cox, Prior and Wicks JJ
COX J. Appeal against conviction for murder.
The appellant was charged in this Court with having, on or about 16 December 1994 at Smithfield, murdered his father, Malcolm John Martin. He pleaded not guilty. Mr Martin was killed in his bed by a shotgun fired at close range, probably while he was sleeping. There was no doubt that he had been murdered by someone. The question at the trial was whether the appellant was proved to have been the murderer.
The appeal is from the verdict of a jury that was returned on 23 June 1998. It was the appellant’s third trial. Two earlier convictions had been set aside on appeal: R v Martin (1996) 65 SASR 590 and R v Martin (No. 2) (1997) 68 SASR 419.
The victim’s body was discovered about 10.30 a.m. on Sunday, 18 December 1994. There was an issue at the trial as to the time of death. The Crown case was that the victim was murdered between 4.00 a.m. and 7.00 a.m. on Friday, 16 December 1994. It was not suggested on the appeal that the evidence could not support a finding as to the time of death that accorded with the prosecution’s submission to the jury. The appellant’s case was that he was working on his car between 4.00 a.m. and 7.00 a.m. on the Friday morning, tuning it or test driving it around the suburbs.
The Crown relied in its case against the appellant on some circumstantial evidence - opportunity, his possession of a shotgun and what were said to be his significant dealings with a box of cartridges, and evidence of a bad relationship between him and his father - but the Crown case could not succeed unless the jury was willing to act on the evidence of a young woman, Ms F, who claimed that the appellant told her that he had killed his father with a shotgun. The confession was said to have been made at a nightclub called The Venue in Hindley Street on the night of Saturday, December 17. A good deal of time at the trial was spent testing the credibility of Ms F. The jury must have accepted the confession evidence.
It is necessary to say more about the evidence of Ms F. She was twenty-two when she gave evidence at the third trial. She told the jury that at the time of the murder she was living with a young man named Jeremy Schloithe at Elizabeth Field. They knew the appellant who was living across the road. They saw something of him. She was friendly with the appellant but that was all. The appellant told her on a couple of occasions that he would like to kill his dad. That was probably towards the end of 1994. On the evening of Saturday, 17 December 1994, Schloithe drove Ms F and her friend Kylie Bligh to the city to go night clubbing. He dropped them off about 10.00 p.m. and arranged to pick them up at four o’clock in the morning. The two young women went to a number of places including The Venue where the appellant was working behind the bar. Ms F and Ms Bligh sat down and had some drinks. The appellant and Ms F were talking together and Ms Bligh was talking to someone else. According to Ms F the appellant told her that he had lopped his dad’s head off. He said that he used a shotgun and shot his dad in the head, that his dad was asleep in bed, he had gone into the room, it was dark and he felt for his dad’s hair, put the gun to his head and pulled the trigger. Ms F did not know whether to believe the appellant. She went on enjoying the rest of the night “and sort of tried to put it out of my mind, basically, and, as I said, I didn’t know whether to believe it or not.” The two women were drinking during the evening. They were picked up by Schloithe between 4.00 and 4.30 a.m. Ms F learned of the discovery of the murdered man’s body from the TV news on the Sunday evening. The next day she went to the police.
Ms F was cross-examined at considerable length. It was put to her that from June 1994 she had a long sexual relationship with the appellant but she denied that. She acknowledged that, if Schloithe were ever to find out, at or after this time, that she had a sexual relationship with someone else, that would be the end of her association with Schloithe who, she said, was expecting to inherit a very large sum of money. As for what happened at The Venue on the Saturday night, she denied that she had intercourse with the appellant in an upstairs room, although she agreed that she and Ms Bligh and the appellant went to the room and that Ms Bligh made it clear that she wanted to have sex with the appellant. They were drinking shooters and cocktails. However no acts of intercourse occurred. She denied that, just before she and Ms Bligh left, the appellant told her that the relationship with him was over - there never was a relationship to end, apart from a friendship. She admitted that she had told lies on particular occasions, that she had a conviction for receiving stolen cigarettes worth $13 000, and that for a short time she had received sole parent payments to which she was not entitled. As at 12 December 1994 she realized that there was a prospect of her going to gaol for the receiving offence, to which she had pleaded guilty on that day and been remanded, but on 24 February 1995 she was released without conviction on a good behaviour bond. She made other admissions with respect to her character. She agreed that it was about 11.00 p.m. on the Monday night when she spoke to the police. She had said in evidence that the appellant came around to her house on the evening of Wednesday, 14 December 1994, but she agreed that she told the police on the following Monday night that the appellant had visited her on the Thursday. She said she realized afterwards that this was a mistake. She denied that a man named Barrow said on one occasion, in the presence of her and the appellant, that the appellant’s father was going to be dead soon because somebody had ordered a hit on his head. She was cross-examined, with respect to a large number of topics, about answers she had given in the earlier trials on those topics. In re-examination she denied having made up the confession evidence because the appellant had rejected her sexually at The Venue or in an attempt to gain favour in relation to the receiving charge she was facing.
Ms Bligh gave evidence. Nothing happened in the upstairs room at The Venue apart from the two young women giving the appellant a kiss on the cheek. When Ms Bligh tried the breath test machine around 2.00 or 2.30 a.m. her reading was 0.29. She did not know about Ms F’s. On the Sunday evening Schloithe and Ms F came around to her place. They watched the 6 o’clock TV news and it included an item about a murder in Smithfield and Ms F said that she might know of a person in that house that was murdered, that it was the appellant’s father, and Ms F appeared a bit nervous, shocked. (Ms F had given evidence on that subject also.) Ms Bligh’s cross-examination disclosed certain discrepancies between her evidence and Ms F’s about the activities at the nightclub. Ms F had said nothing to her on the Sunday night about any confession on the appellant’s part. She and Ms F were close friends.
No-one was called to prove directly the contents of Ms F’s statement to the police on the Monday night. However, in his evidence-in-chief Detective Loechel referred to an interrogation of the appellant on 12 January 1995 which included the following passage, dealing with Ms F and the alleged confession -
“Q.... She alleges that you um told her that you shot your father, is that correct?
A. Incorrect. I didn’t find out till Sunday what had happened.
Q.... Well, she alleges that you told us that er, that you explained to her that on the Friday morning previous that you attended your father’s address, entered the bedroom, felt for his hair and then shot him with a shotgun, is that correct?
A. No.” (transcript 735)
Later prosecuting counsel directed the detective’s attention to that second question and answer and asked him -
“Q.... Was that allegation that you put to him obtained by you as a result of an interview with [Ms F]?
A.Yes.
Q...... I think that interview occurred at the Elizabeth Police Station commencing at about 11.00 p.m. on Monday, 19 December?
A. That’s correct.” (786)
The grounds of appeal relate to the adequacy of the jury directions on a number of topics and to certain matters that were put to the jury by prosecuting counsel in his final address. It is convenient to deal with the latter subject first.
Grounds 7 and 8 in substance read -
The fair trial of the appellant miscarried as a result of statements by the Crown Prosecutor in his final address to the jury to the effect that :
7. (a) the jury could rely upon a consistency between the statement by Ms F to the police on Monday the 19th day of December, 1994, with her evidence on oath in order to enhance her credibility,
(b)... the jury could rely upon the content of her statement to the police on Monday the 19th day of December, 1994, to conclude that the only possible source of her information was the accused, and
(c) the jury could rely on and reason from an absence of an explanation from the accused for Ms F to have made up a false allegation against him,
when such submissions were:-
(i) inconsistent with the Trial Judge’s ruling,
(ii) not supported by the evidence, and
(iii) a reversal of the onus of proof.
8...... The learned Judge erred in failing to direct the jury adequately in relation to the submission of the Crown Prosecutor referred to in Ground 7 in that her Honour did not direct the jury that :
(a).... it was not permissible to rely upon the consistency between the statement of Ms F to the police and her evidence in order to enhance Ms F’s credibility;
(b) it was not permissible or alternatively, it was dangerous to find upon the evidence that Ms F had no source of knowledge other than the accused for any statement to the police on Monday the 19th December, 1994; and
(c)... it was not permissible to reason from a consideration of whether Ms F had no other source of knowledge, when such reasoning necessarily placed the onus upon the accused to demonstrate an alternative source for the information given by her in the said statement to the police.
Before I come to the prosecutor’s actual words to the jury I should say something more by way of background.
In the appellant’s first trial the Crown called Schloithe to prove that Ms F recounted the appellant’s nightclub confession to him early on the Sunday morning, before news of the murder had been made public - indeed, before the body had been discovered. On appeal the Full Court, in Martin (No. 1), held that the evidence of what Ms F said to Schloithe was admissible on the ground that it tended to rebut a suggestion of recent invention, after the murder was discovered, that was implied by defence counsel’s claim in cross-examination that she had fabricated the confession. However, the appeal was allowed for reasons relating to the trial Judge’s jury charge. At the second trial Schloithe gave evidence again, but this time the evidence was admitted by the trial Judge, not on recent invention grounds but because it tended to rebut the defence suggestion that her claim that the appellant confessed to her was prompted by vindictiveness or a desire to curry favour with the police. On appeal the Full Court, in Martin (No. 2), held that this was not a justification for making an exception to the general rule prohibiting proof of a witness’s previous consistent statements, and set aside the conviction. Members of the Court commented upon the status of Schloithe’s evidence in that trial so far as recent invention was concerned, but that was not an issue that had to be decided in that appeal.
In the third trial Ms F retold her story and in cross-examination defence counsel put it to her again that the confession was a fabrication. That led the prosecutor to apply to re-examine her in order to show that she told Schloithe about the confession early on the Sunday morning, before the body had been discovered. It was argued that her piece of esoteric knowledge made her previous consistent statement to Schloithe admissible because it was legally and logically relevant to rebut the suggestion of fabrication. Counsel relied on the Chief Justice’s judgment in Martin (No. 1). The application was confined in terms to the re-examination of Ms F but obviously the prosecutor was seeking to call Schloithe on the subject as well as, indeed, he made plain later when he renewed his application. Defence counsel opposed the application on the ground that it lacked any proper foundation - a previous consistent statement cannot be proved simply to show esoteric knowledge. The learned trial Judge ruled that the proposed evidence was inadmissible: for the cross-examiner to put to Ms F that her confession evidence was false did not amount to an imputation of recent invention. Later in the trial, after Ms Bligh had given evidence, the prosecutor renewed his application, again without success. The Crown later put before the jury evidence of certain news broadcasts and a newspaper report and a police media release that were published on the Sunday evening and the Monday. The situation was unchanged in this respect when the Crown closed its case, so that there was no evidence before the jury of any statement that Ms F might have made to anyone prior to her going to the police on the Monday night and no evidence, certainly no direct evidence, of what she said to the police about the alleged confession on that occasion.
The appellant gave evidence and called witnesses. He denied any complicity in his father’s murder and he denied having made any confession to Ms F.
Then came the final addresses. Prosecuting counsel addressed first. As to Ms F’s evidence of what the appellant confessed to her at The Venue, he said this -
“She told us it came up in the conversation that he used a shotgun, shot his Dad in the head, that his Dad was asleep in bed, he had gone into the room, that it was dark, that he felt for his Dad’s hair, put the gun to his head and pulled the trigger.
You can take what he told her is exactly what she told the police he told her on 19 December at 11 o’clock, whenever Detective Lochiel spoke to her, because if there had been any substantial changes, you would have heard about it. You heard cross-examination of previous statements at previous trials and previous statements etc etc. That is what she told the police.
She is in a quandary; ‘Is this bravado? Is it for real? Do I believe him, don’t I believe him?’. Of course, it’s not until she sees the television news the Sunday night that there is any sort of confirmation.
You have seen the news broadcasts, you can have a look at them again when you retire, but it was pretty flimsy information that Sunday night. No-one knew much about anything. It is not surprising then that when she goes around to Kylie Bligh’s place and sees it with her that she doesn’t tell Kylie Bligh.
The real confirmation comes on the Monday, The Advertiser and particularly the Monday night television news. There is one detail the public don’t know, the one detail that the police kept out of the media, namely that a shotgun was used. You will see it in the news broadcasts and you will see it in that media release. All they talk about was a single gunshot. It could have been a pistol, could have been a rifle, could have been a shotgun. [Ms F] tells the police ‘he told me it was a shotgun’.
That is an extraordinary thing to make up if she is making this up. Okay, she knew the accused had a shotgun. If the accused said nothing to her, as he says, and she is making this all up, the detail she has gone into; dark, the room, the feeling for the hair, shotgun to the head, and particularly that she’s nominated the shotgun.
The defence answer has to be ‘We don’t know where she got this information from. We know the police leak to the media and someone might have said something, the prosecution hasn’t covered every radio coverage, every television news flash’ so on and so forth. All we can produce to you is what was in the public arena when the press made the release. It has to be that that she made it up from, if she made it up.
The other answer is obvious; she has told exactly what she was told. She has told the truth to the police.
Why would she make it up? Again, it’s not for the defence to prove anything, but there are a couple of suggestions that were put to her. Certainly the accused appeared in no doubt the reasons why she made this up. It was the rejection by him at The Venue after the so-called sex and the threat to expose their relationship to Jeremy; hence, loss of a million dollars.
There was also the fact that she is facing a serious criminal charge, three years gaol, staring that right in the barrel, some sort of attempt to get some favourable treatment from the police. Let’s deal with that one first.” (1112-4)
Counsel then made a critical examination of the defence suggestions and dismissed them as implausible. He concluded by saying -
“Ladies and Gentlemen, [Ms F], when she went to the police on the Monday night, told them not only the detail of just the confession ‘I killed him’, but gave the details of how he killed him, and gave one detail that I suggest she could not have known unless the accused told her, ‘I used the shotgun’. (1118)
Defence counsel submitted to the jury that Ms F’s confession evidence was worthless. There were a number of possible explanations for her use of the word “shotgun” to the police. The evidence of the contents of media broadcasts on the Monday was incomplete, and there were other ways in which Ms F might have got information about the killing.
In the course of summing up to the jury the learned trial Judge summarized the competing submissions about Ms F’s credibility and then said -
“What you make of those submissions is, of course, entirely a matter for you. I do ask however that you scrutinise [Ms F’s] evidence with very considerable care. And, as I’ve told you, you should only act upon it if after exercising that care, and if you are satisfied beyond reasonable doubt that in its essential elements it is true.
[The prosecutor] in his address postulated the question ‘Why would she make it up?’ He referred to the details contained in the alleged confession which was reported to the police on the Monday. Although there were news reports on the television and in the paper in the intervening period, [he] pointed out that one detail that was kept out of the media was the fact that a shotgun was used. [He] suggested to you that this was an extraordinary thing to make up if she was making it up. He also said ‘Can you believe that she would make this up on account of the sexual rejection by the accused and the possible threat to the relationship with Schloithe leading to the loss of the millions, or to get some advantage with respect to the criminal proceedings against her?’
As you know, ladies and gentlemen, these were possibilities suggested by the accused as an explanation or possible explanation for [Ms F] making up the story. [Defence counsel] has, however, pointed out to (sic) that there could be any number of explanations for [Ms F] being motivated to lie which would be unknown to the accused and I remind you once again that there is no onus on the accused to prove anything.
Accordingly, there is no requirement at all for the accused to prove to you that [Ms F] had a motive to lie. The accused has put forward a couple of possibilities but you must understand that, even if you reject those suggestions, it would not necessarily follow as a result that [Ms F] is telling the truth and that is what you have to be satisfied about - that she is telling the truth.
[Defence counsel] suggested a number of ways in which [Ms F] could have found out about the use of the shotgun. Did she, for example, think the news report referred to ‘shotgun’ rather than ‘gun shot’, did the information come from another source that we do not know about? Perhaps it was on the radio. Perhaps the police dropped some of the detail, such as seems to have happened in the conversation between Ms O’Connor and Constable Sheridan. There was also the evidence of [Ms F] having access to a police scanner.
These are all matters for you and which you should bear in mind in considering these issues. I simply repeat that you must scrutinise [Ms F’s] evidence with great care and only act upon it if you are satisfied that in essential elements it is accurate and she is telling you the truth.”
Defence counsel made no complaint to the Judge about the contents of the prosecutor’s address and did not ask the Judge to redirect on the subject.
Some time after the jury had retired it returned. It wanted to hear what Ms F had said happened at the nightclub on the Saturday night and it also wanted her “statement to police on Monday.” In response to the latter request the learned Judge, with both counsel’s acquiescence, recounted in effect the passages from Detective Loechel’s evidence that I have set out earlier in these reasons. No comment was made by the Judge, and no comment was sought, with respect to the jury’s use of that evidence.
Prosecuting counsel’s submissions to the jury about the consistency of Ms F’s story and the esoteric knowledge she showed in her statement to the police on the Monday night were founded on the two short passages I have quoted from Detective Loechel’s evidence. For convenience I set out the questions and answers again. First, Loechel put to the appellant -
“Q.... She alleges that you um told her that you shot your father, is that correct?
A. Incorrect. I didn’t find out till Sunday what had happened.
Q...... Well she alleges that you told us that er, that you explained to her that on the Friday morning previous that you attended your father’s address, entered the bedroom, felt for his hair and then shot him with a shotgun, is that correct?
A.No.”
Apropos of that exchange the prosecutor asked Loechel -
“Q.... Was that allegation that you put to him obtained by you as a result of an interview with [Ms F]?
A.Yes.
Q...... I think that interview occurred at the Elizabeth Police Station commencing at about 11.00 p.m. on Monday, 19 December?
A.That’s correct.”
The appeal raises a number of distinct questions about that evidence - whether it was admissible for any purpose at all; what the evidence, if admissible, could or could not prove; whether in the circumstances the learned trial Judge should have given any directions to the jury as to the use they might make of that evidence; and whether, in any event, the use of the evidence was in the circumstances unfair to the appellant.
Mrs Shaw submitted that Loechel’s evidence referring to the confession allegation should not have been received in evidence. Strictly speaking it may not have been admissible at the instance of the Crown. The detective’s question did not elicit an admission, by words or conduct, and the evidence therefore did not come within a recognized exception to the hearsay rule. Mr Millstead, who appeared for the Crown on the appeal, did not suggest that there was anything in the rest of the interview that made this passage evidence against the appellant. (See Graham v R (1998) 157 ALR 404, at pars.40-45. Cf. Familic (1994) 75 A Crim R 229, at 234-5; and cf. the cases that regard a defendant’s immediate denial, when first accused of a crime, as an exception to the self-serving rule. See also Spence v Demasi (1988) 48 SASR 538.) However, no objection was taken to the evidence at the trial. That need not occasion any surprise. It is not the practice of the Crown to attempt to edit out a defendant’s exculpatory denials in the course of a lengthy police interrogation on the ground that they are self-serving and therefore inadmissible and so should not be given in evidence. Nor is it usual for defence counsel to take an objection to questions in a police interrogation that result in a negative answer, and so cannot of themselves advance the Crown case, unless they consider that the evidence is likely to prejudice the defendant’s case in some way. Indeed, such evidence is relevant to the accused’s state of mind at the time and often the defence will use it to show the jury that the defendant gave an immediate denial of an important police allegation at the first opportunity. I think this was probably the view that defence counsel took here. He has explained, in an affidavit that was admitted on the appeal without objection from the Crown, that he did not realize at the time that the prosecutor would use the evidence to bolster the credibility of Ms F when he came to address the jury. However, as I say, it was the sort of immediate denial of an important aspect of the Crown case that defence counsel in most cases may well be glad to have before the jury - indeed, may even elicit by cross-examination of the police if it has not already been brought out by the prosecutor - and no objection was made to it at the time. It was certainly not a matter on which the trial Judge was obliged to take the initiative. In my opinion, it is too late now for the appellant to complain that the evidence should not have been received.
What use the Crown could legitimately make of Loechel’s evidence is another matter. Plainly his recital of anything Ms F said to the police could not be evidence of the truth of what she said. Prosecuting counsel, in addressing the jury, used the questions and answers as evidence of what Ms F told the police on the Monday night. However, I do not think that this was a permissible use of the evidence either. The first two questions record statements made by Loechel to the appellant, followed in each case by a question asked by Loechel himself. For Loechel to tell the jury what he claimed to the appellant that Ms F had said to the police was not the same as, or tantamount to, his telling the jury what Ms F said to the police. The prosecutor sought to close the gap with his later question, “Was that allegation that you put to him [sci: about the way the murder was committed] obtained by you as a result of an interview with Ms F?” and he got the answer “Yes”. There is a question how that last piece of evidence is to be interpreted. Perhaps it was meant to convey to the jury that it was Detective Loechel who interviewed Ms F, but the witness does not say so either there or, so far as I can see, anywhere else in his evidence. Nor does Ms F herself appear to have identified the police officer to whom she spoke on the Monday night. There is a reference to the police interview in Detective Stapleton’s evidence (843) but that could be hearsay. We were not referred to any other evidence on the topic. While the question to which Loechel assented can be construed as implying that he was the interviewer, it is certainly consistent as well with Loechel’s having obtained the allegation as a result of an interview with Ms F that was conducted by another police officer who then passed on the information to Loechel. On that latter hypothesis Loechel’s evidence could only be a hearsay report of what Ms F said to the police. Given the importance of the evidence, in the light of the use that the prosecutor subsequently made of it, I should not be willing to treat this as admissible evidence of what Ms F said to the police. On that basis there was no direct evidence in the trial to support the submission the prosecutor put to the jury about Ms F’s consistency and esoteric knowledge.
If that is regarded as too pedantic an interpretation of Loechel’s evidence, so that he is to be taken to have said that he obtained the confession allegation as a result of what Ms F told him personally, the evidence was still inadequate, in my opinion, to prove what Ms F said to the police, particularly with respect to any shotgun. The prosecutor’s address was made on the assumption that Ms F told the police about a shotgun on the Monday night and, I would infer, that this was a spontaneous statement on her part. However, Loechel’s evidence had nothing to say on that latter aspect at all. Ms F’s account of the confession to the police may have been a volunteered and uninterrupted and entire narrative, though that certainly could not be taken for granted. If the interviewing officer asked her questions to draw out her story, it would be important to know what the questions and responses were. It is not unknown, and for that matter not improper, for an interviewer to introduce relevant topics to a potential witness. The victim had, in fact, been killed by a shotgun blast. Loechel’s evidence is not inconsistent with Ms F’s not saying anything at first about a shotgun, then being asked or even told about a shotgun, and then recalling that the appellant had identified the weapon as a shotgun. Of course, if that is what happened, it would have an important bearing upon the persuasiveness of the prosecutor’s submission to the jury.
The basis upon which this evidence was apparently received is the basis that I have discussed above - that it formed part of the police interview and that the defence was willing to have it in evidence because it appeared to suit its own interests. Once in it was available for any legitimate purpose, whether that suited the defence or not, but it could not without more be used, in my opinion, as evidence of a previous consistent statement by Ms F as to the alleged confession. If it was open to the Crown to prove her statement to the police for that purpose, the only way to do it was to lead the evidence from the interviewing police officer in an orthodox and comprehensive way, indicating clearly what Ms F’s actual words were and making plain precisely what part was played by the interviewer in the obtaining of the statement. In my opinion, Loechel’s evidence at the trial should not have been used to support the prosecutor’s submission to the jury.
Does any of this matter? While the prosecutor in addressing the jury was plainly relying on the Loechel evidence to show what Ms F told the police on the Monday night, he also told the jury that they could draw the same consistency inference from the failure of defence counsel to cross-examine Loechel to show some inconsistency between her trial account of the alleged confession and the account she gave to the police. The prosecutor said -
“You can take what he told her as exactly what she told the police he told her on 19 December at 11 o’clock, whenever Detective Loechel spoke to her, because if there had been any substantial changes, you would have heard about it. You heard cross-examination of previous statements at previous trials and previous statements etc. etc. That is what she told the police.”
The jury was thus being offered an alternative if indirect route to the conclusion that was said to follow directly from Loechel’s evidence. Mrs Shaw argued that it was not open to the jury to reason in that way. She relied on The Queen v Angus, Vict CCA, 2 December 1994 - BC 9401344.
I should hesitate to subscribe to any hard and fast rule on this subject, but I am satisfied that prosecuting counsel in this case was inviting the jury to reason from silence in an impermissible way. If one puts Loechel’s evidence aside, there was simply nothing before the jury to indicate the precise ambit of Ms F’s statement to the police. That she had given them a statement was implicit in the cross-examination of Ms F. Mr Millsteed submitted that the jury was simply being assisted to a consistency conclusion that they were likely to have reached without any outside help by using their own commonsense. Perhaps so. However, so far as mere consistency was concerned, the Crown was really inviting the jury to speculate about something that they could not legitimately have been told at first hand. Cross-examination about particular inconsistencies between a witness’s trial evidence and a previous statement does not ordinarily let in by way of re-examination or otherwise evidence showing the witness’s consistency in other, distinct respects. See generally Alchin v Commissioner for Railways (1985) 35 SR (NSW) 498, 508-510, The Nominal Defendant v Clements (1960) 104 CLR 476, 495, and R v Fraser (1995) 65 SASR 260, 262-270. It would be paradoxical if, nevertheless, the same result could be achieved simply by drawing a conclusion from counsel’s failure to cross-examine. Again, it was not just a question whether Ms F included the shotgun in her account to the police of the alleged confession; it was also important, if she did so, to understand the circumstances in which she came to include it. Counsel may have had good reason for not opening up that subject with the witness, although had he done so it might conceivably have been to his advantage. The subject is speculative. I do not think that the consistency argument should have been advanced. Apart from anything else, it rested on a too conjectural an evidential foundation. Nor should the inference from silence have been used to support the argument I am about to discuss.
Perhaps prosecuting counsel’s submission to the jury about consistency would not have greatly mattered had it stopped at that point. There are good reasons for enforcing the general rule against previous consistent statements, but we are dealing here with a statement that was made on full notice, as it were, 36 hours after the alleged event and well after the time any decision on Ms F’s part to attribute a false confession to the appellant (if that is what she did) would have been made. It was a short statement on a narrowly confined topic. Maintaining consistency between police statement and trial evidence, even multiple trial evidence, in those circumstances would not have been difficult and so would have been of negligible significance. However, the jury would have needed a clear direction from the Judge lest they should treat the out of court statement as a piece of self-corroboration. They should have been told that in the circumstances it could not enhance Ms F’s credibility. The need for a direction was underlined by the jury’s request, in the course of their deliberations, that they be told what Ms F had said to the police on the Monday night. Unfortunately no such direction was given.
A separate and, in my view, more serious aspect of the prosecutor’s jury submission was his use of the Monday interview to support an argument of esoteric knowledge on Ms F’s part. I have set out the argument above. The gist of it was - the victim was killed with a shotgun; the published police and media statements made prior to the Monday interview made no mention of a shotgun; Ms F told the police that the appellant said he had killed his father with a shotgun; she could only have got that information from the accused. Mrs Shaw submitted to us that the argument was not available on the evidence, that it flew in the face of the trial Judge’s rulings on the subject of Ms F’s previous statements, and that in the circumstances it was seriously and irremediably unfair to the appellant.
I might start by observing that the prosecutor’s jury submission, even assuming the soundness of its premise, appears to take too much for granted. The most that could be shown by the evidence the prosecutor discussed with the jury on this point was that Ms F got her information about the shotgun directly or indirectly from the murderer. Whether the murderer on this reasoning could be identified as the appellant would depend on the persuasiveness of other factors which do not appear to have been canvassed with the jury. But let that pass. The validity of any esoteric knowledge reasoning was dependent upon establishing that the police had been successful in keeping from the public domain prior to the Monday interview the fact that the victim had been killed with a shotgun. There would seem to be a question whether the evidence before the jury about the police information security was sufficiently strong to sustain the Crown argument. Mention was made, for instance, of news flashes and there was evidence that one of Ms F’s friends was in possession of a police radio scanner. I have not sought to pursue the issue of evidential sufficiency to a conclusion because Mrs Shaw, I think, must succeed on her anterior fairness argument.
As I have said, the matter of recent invention as a ground for permitting a party to prove a witness’s previous consistent statement was discussed by members of the Court in both Martin (No. 1) and Martin (No. 2). Esoteric knowledge was accepted in principle by the learned Chief Justice as a possible trigger for the admission of such evidence, and that view was concurred in, as I read the judgments, by Debelle J in Martin (No. 1) and by Lander J and Bleby J in Martin (No. 2). In the present appeal Mrs Shaw did not challenge the validity of the principle or submit that it could not be applicable to this case. She did not enter that debate and it is unnecessary for us to do so, either, in order to dispose of the matter. The thrust of Mrs Shaw’s argument was directed elsewhere. She submitted that, once the trial Judge had ruled on the prosecutor’s application to re-examine Ms F and examine Schloithe about their Sunday morning conversation, that was the end of any possible use of Ms F’s previous statements, expressed or implied, to anyone at all, whether the purpose was to point to her esoteric knowledge or merely to show that she was telling a consistent story throughout. I do not accept that submission. The Judge’s ruling related solely to what Ms F may have said to Schloithe on the Sunday. It was not directed to a Crown argument, even if it may have been a similar argument, about what Ms F said to the police thirty-six hours later. Certainly the Schloithe ruling offered no encouragement to the Crown on this topic generally, but that is another matter. What was said by counsel in the debate on the Schloithe application was relevant, however, to the appropriateness of the prosecutor’s esoteric knowledge submission to the jury. At that stage the Crown evidence was far from complete and the defence could not have known what the Crown might or might not be able to prove if it ran an esoteric knowledge argument with respect to the Monday night. However, in the course of his submission on the Ms F/Schloithe application, prosecuting counsel emphasized that Ms F’s conversation with Schloithe occurred before the body had been discovered and he contrasted the situation in that respect with Ms F’s going to the police on the Monday. As to that he said -
“There is no dispute that the knowledge of the death and the manner of death was available to her on the Monday through media sources.” (414)
The defence may reasonably have concluded from this that they would not have to meet an esoteric knowledge argument with respect to Ms F’s statement to the police. However, towards the end of the Crown case, in the course of discussing further witnesses, prosecuting counsel said to the trial Judge -
“The other aspect is we are obviously going to lead what information was in the public domain on Sunday, Monday. At the moment, my friend has an objection to do it through Detective Stapleton. There will be the Monday Advertiser and the news telecasts for all channels on the Sunday and Monday.
I think that what happened, in effect, was that the person in charge of major crime at the time had a press conference on the Monday where information was given out. It is for my friend’s benefit as well. On the Sunday, the police media liaison were at Moulds Crescent answering questions of various journalists, but all I intend to do, unless my friend wants it done any differently, is to simply present the paper and the actual television ... The only difficulty, of course, is it doesn’t cover potentially flashes or radio or updates, but I thought I would announce that.” (822)
This might perhaps be thought to be preparing the ground for an application to prove what Ms F told the police on the Monday night but, if so, it is not easy to see how the media evidence could be “for my friend’s benefit as well,” and the transcript makes it plain that the learned Judge did not interpret the prosecutor’s statement as heralding a recent invention argument. When defence counsel, understandably cautious, objected on a number of grounds to the proposed media evidence - he expressly referred to esoteric knowledge - the Judge observed that it would seem that the evidence would probably help the defence, because the news information was Sunday night/Monday morning and Ms F went to the police on the Monday night. Defence counsel thereupon acknowledged that he must have misunderstood the position - “If the purpose of this evidence is to show she could have had knowledge through the media before she went to the police, I am happy for that.” The prosecutor made no direct response to the remarks of either the Judge or his opponent. He proceeded to read out the Monday media release. It gave some information about the discovery of the victim’s body and associated matters, including the statement that Mr Martin was killed “by a single gunshot wound to the head.” When he had finished reading the statement the prosecutor said -
“That is what was given to the media generally and they obviously make up their own stories from that. Whilst it doesn’t say shotgun, and I guess it doesn’t say back of head, that establishes that, in essence, what [Ms F] told the police was in the public domain certainly by Monday evening when she went to the police. That is neither here nor there. She knew Shane Martin. She knew he had a shotgun. I suppose we always make a point that the details she gave was a dangerous adventure for her if she was making it up. That is the feeling for his hair etc., but certainly it is a gunshot, it is close range, he is in bed, may have been asleep. The way the case is now, the jury have to know that.” (825)
The judge thereupon observed that it was a matter of completeness and defence counsel said that he agreed - “I withdraw what I said before.” The judge repeated that it seemed, if anything, to help the defence case, that it was certainly not adverse to it. There followed some discussion about the way the media release and media reports would be put before the jury and soon afterwards the evidence was led, without objection, substantially in the form of documents and tapes. The trial continued with the defence case and there does not appear to have been any further mention of the media evidence or Ms F’s police statement until prosecuting counsel made his final address.
Defence counsel in his affidavit complains that he was misled by these exchanges. The last paragraph of his affidavit reads -
“As a consequence of [prosecuting counsel’s] submissions I took the view that the Crown position was that, because the information was in the public domain, [Ms F] could have got the detail and manner of the killing from media sources before she was interviewed by police on the Monday. Had I understood the position of the prosecution to have been otherwise I would not have agreed that the media information should go before the jury and I would have considered the possibility of further cross-examination and in particular what evidence, if any, might have been adduced to contradict any assertion that the information could only have come from the accused.”
In my opinion the appellant has made good his case of procedural unfairness. A prosecutor is not obliged to give advance notice to the defence of every argument that he proposes to put to the jury in his final address, but in this case the prosecutor, particularly in view of the statements that had been made, should certainly have done so with respect to both of his points about the Monday night interview - that it established consistency of story and also esoteric knowledge on Ms F’s part. Then the matter could have been debated properly before the Judge and appropriate rulings given. It is very regrettable that this was not done. I am sure that the prosecutor did not intend to mislead defence counsel but it is plain that he was misled, and understandably so, and it should have been plain at the time. Perhaps it was a last-minute decision to address this argument to the jury, and the prosecutor in preparing it overlooked the tactical significance, relevant to this matter, of the exchanges that had taken place during the Schloithe application. Perhaps he just thought that no ruling was needed and that it was better not to risk getting one that was adverse to the Crown. Mr Millsteed pointed out that the prosecutor never said that he would not use the media material in the manner in which he did, and certainly there is a degree of ambiguity, perhaps inconsistency, in some of his statements to the Judge. Mr Millsteed did accept that the prosecutor was less than clear about the use to which he would put the media evidence. To my mind what the prosecutor said on the topic was objectively misleading, and when defence counsel made it clear that he was only withdrawing his objection to the media evidence because of her Honour’s assurance that the evidence probably helped him and because of the prosecutor’s statement that it was “neither here nor there” that the police media release did not mention a shotgun because what Ms F told the police was in essence in the public domain by the Monday evening, the prosecutor was duty bound to intervene and make his position crystal clear. He did not do so and as a result the defence did not press for a ruling on the subject and did not test the sufficiency of the media evidence. The appellant was thereby put into a seriously unfair position.
It is no answer to say, as Mr Millsteed put to us, that the defence did not apply to reopen its case after the prosecutor’s address or to have the jury discharged. Defence counsel in his own final address suggested to the jury a number of ways in which Ms F could have found out about the use of the shotgun, and the learned Judge briefly summarized for the jury the Crown and defence submissions on the matter of esoteric knowledge and emphasized that Ms F’s evidence was to be scrutinized in all respects with great care. There was really nothing that the Judge could have said to defuse the considerable potential for damage that resulted from the prosecutor’s untimely argument to the jury.
I say “potential” for damage because it remains a matter of speculation whether the defence could have answered effectively the prosecutor’s esoteric knowledge argument had they understood in good time that they needed to do so. However, I do not think that this can be treated like a fresh evidence appeal in which the Court expects an appellant to file affidavits of potential witnesses in support of his case. Much of the relevant evidence could only come from Crown witnesses whose evidence defence counsel would expect to test carefully in cross-examination, perhaps as a result pursuing additional witnesses of their own. The possibility of the defence being able to undermine the evidential foundation upon which the Crown’s esoteric knowledge argument was built, had they put their minds to it, cannot be dismissed as fanciful.
I am of the opinion, for the reasons that I have given, that pars.(a), (b) and (c) (ii) of ground 7 of the notice of appeal have been made out. So has par.(a) of ground 8. The effect of prosecuting counsel’s submissions to the jury about Ms F’s statement to the police was to deny the appellant a fair trial. It made the verdict unsafe.
I would allow the appeal, set aside the conviction and order a retrial.
PRIOR J. I am in substantial agreement with the reasons given by Cox J. I agree with the orders he proposes.
WICKS J I agree with the orders proposed by Cox J for the reasons he gives.
0
6
0