R v Morgan

[2005] SASC 391

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v MORGAN

Judgment of The Honourable Justice Gray

10 October 2005

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING UP

CRIMINAL LAW - EVIDENCE - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Application for leave to appeal against conviction and sentence - applicant convicted of serious criminal trespass of a non-residential building and larceny and sentenced to a term of imprisonment.

Leave to appeal against conviction sought on basis that Judge had erred in directing the jury as to DNA evidence led by the prosecution; erred in not giving the jury an appropriate lies direction; erred by making a finding a fact that ought to have been left to the jury; erred by refusing to permit the accused to cross-examine a police officer about unsworn out of court statements made by the accused and that thereby the jury's verdict was unsafe and unsatisfactory.

Leave to appeal against sentence sought on basis that non-parole period was excessive.

Held: leave to appeal against conviction granted in respect of failure of the Judge to adequately direct the jury in relation to lies and on ground that jury's verdict was unsafe and unsatisfactory - leave to appeal refused in respect of all other grounds.  Leave to appeal against sentence refused.

Zoneff v The Queen (2000) 200 CLR 234; R v Baring v Leonard (2005) 92 SASR 117; R v Panagiotidis (1991) 55 SASR 172; R v Byster (2001) 80 SASR 373; Mule v The Queen [2005] HCA 49; Dhanhoa v R (2003) 217 CLR 1, considered.

R v MORGAN
[2005] SASC 391

Criminal

GRAY J:

1. This is an application for leave to appeal against conviction and sentence.

2. On 17 June 2005, following a trial before a judge and jury in the District Court, the applicant was convicted of the offences of serious criminal trespass of a non-residential building and of larceny. 

3. The applicant was sentenced on 8 July 2005 to the one sentence of 22½ months imprisonment for both offences.  This sentence was ordered to be cumulative on the term of two revoked suspended sentences.  The suspended sentences totalled 7 months.  The total sentence accordingly, was for imprisonment for 29½ months.  In respect of that total sentence a non-parole period of 14½ months was fixed. 

   Leave to Appeal Against Conviction

   The Crown Case

4. The Crown case was essentially circumstantial.  Premises of Loxton News were broken into in the early hours of Sunday, 28 January 2001.  A safe was opened and items of personalty were taken including a digital camera and a charger.

5. A witness saw a blue Ford sedan, with a registration number he thought to be UDA-593, outside the premises of Loxton News at about 6.45 am on Sunday, 28 January 2001.  He saw a person carrying a box walk towards the vehicle and get into the rear passenger side.  He telephoned a friend who was an employee of Loxton News.  The break-in was discovered shortly afterwards.  The police were telephoned.

6. Police checks on vehicle registered UDA-593 revealed it to be a white Toyota sedan.  A search of the number VDA‑593 resulted in “no vehicles found”.  However, a search on UOA-593 disclosed a 1986 blue Ford Fairlane sedan registered to Geoffrey C Morgan at a Barmera address (geographically proximate to Loxton).

7. Police attended at 7 Gilchrist Crescent, Barmera, at 9.35 that morning. The blue Ford sedan, UOA-593 was parked in the driveway.  Later a DNA profile matching the accused’s DNA was located on an iced coffee container found in the vehicle.

8. The attention of the police was directed to a shed in the rear yard of the property next door at 5 Gilchrist Crescent.  Police could hear the sound of a power tool operating in the shed.  The applicant was seen by one of the police to leave the shed and walk towards the house at 7 Gilchrist Crescent.  The police searched the shed.  Inside the shed, next to an angle grinder, was a bar which had the appearance of having been recently ground.  Property from Loxton News including the digital camera and charger was discovered in the shed.

9. A cigarette butt and part of a plastic glove were found at the scene of the break-in at Loxton News.  DNA profiles were obtained from both items and compared to the applicant’s DNA profile.  In respect of the cigarette butt, the evidence establishes that it was 10,900 times more likely to match the DNA of the applicant if he left the DNA profile rather than the DNA coming from someone else.  In relation to the plastic disposable glove, a number of profiles were detected, one of which matched the applicant.  On the evidence, this profile was 1 billion times more likely to match the DNA profile of the applicant if he left the DNA rather than it coming from someone else.

10. It would appear that this evidence established a clear and strong connection between the vehicle used in the break-in, the means by which the premises were broken into, the property stolen and the applicant .

    Proposed Grounds of Appeal

    Police Investigation

11. Initially the applicant advanced a complaint to this Court concerning the inadequacy of the police investigation. On hearing the application this ground was abandoned.

    The DNA evidence

12. The applicant complained about the Judge’s direction in respect of aspects of the DNA evidence:

    The learned trial judge erred in law in not properly directing the jury in respect to the “non-reportable” results for the DNA profiles obtained from exhibits LN3.A, [the cigarette butt] LN4 [the piece of glove] and reported in exhibit P48. ... The learned trial judge in his summing up on 16 June 2005 did not direct the jury as to how they should assess and use the DNA evidence.  On the afternoon of 16 June 2005 the jury asked a question in relation to the DNA evidence, “DNA explanation for LN3.A and LN4.  How damming [sic] is the evidence? ie interpretation, how much emphasis should we put on the “non reportables” (NR)?”  In answering the question the learned trial judge read part of the evidence of the forensic scientist Ms J Henry, ... The learned trial judge did not give any further direction on this topic, in particular there was no direction that the jury should not take into account the “non reportables” when assessing the DNA evidence in respect to those DNA profiles and the applicant’s DNA profile. ...

    To properly understand this ground it is necessary to briefly recount events occurring during the summing-up. 

13. As earlier observed, the Crown had led evidence of the finding of a piece of glove and a cigarette butt on the premises of Loxton News.  DNA samples were obtained from each item and two of those samples matched the DNA of the accused.  The sample taken from the glove was a closer match than that taken from the cigarette butt.  The matching of the DNA from the cigarette butt and the glove and the extent of the match were not the subject of any serious challenge by counsel for the accused. 

14. During the summing-up, and after the jury had asked the question referred to above, counsel for the accused said:

    My point, I think, is when you look at the question, firstly how damning is the evidence; something that we say is not really the issue.  It’s not as if there is a denial that it’s Mr Morgan’s DNA.  That hasn’t really been challenged.  The issue is whether he was the one that put it there, put them both there.  Ms Henry’s evidence was she can’t give any assistance as to when the DNA was put on the glove, whose DNA was put on the glove first, etc.  As I understand it, the Crown use it as a strand in the rope part of argument of circumstantial evidence with a number of other circumstances.

15. The following morning the topic was revisited and counsel for the accused said:

    Could I interrupt your Honour there.  There is really no issue that the profile matches Mr Morgan’s.  There is no issue that that’s probably his DNA.  The issue really is how did those two bits get there.

16. These passages make it clear that the defence did not dispute that DNA, matching the accused’s DNA, was both on the glove and on the cigarette butt.  There was no challenge to the statistical analysis as to the likelihood probability.  The accused’s explanation was that the matching DNA said nothing about when the DNA was placed on the items.  He offered an explanation in his evidence as to how the DNA may have been placed on the items on other occasions.  It is against this background that the Judge’s response to the jury’s question needs to be addressed.  The Judge’s further direction was extensive.  He outlined to the jury that he proposed to cover the following:

    [B]asically what DNA is, how you get it, how you measure it, all that sort of thing and the statistical calculation that is done and then I propose to just give you some comments that will narrow the focus so far as this actual case is concerned.  So her evidence will obviously be general, then it will be particular about particularly the matters you have asked about, and then I will give you some directions that will potentially pick up on some of her points but also then pick up on the particular use you can make of the evidence.

17. The Judge also discussed with counsel the evidence that he proposed to read and, in general terms, the further comments and direction he proposed to give.

18. Following the reading of the evidence and the discussion of general matters the Judge then continued:

    This may have been a long-winded way to get to answering your question, but you must obviously ask yourselves; what does all of that mean in the context of the case?  First of all, you must bear in mind that the DNA is just another item of circumstantial evidence to be taken in conjunction with the other items of circumstantial evidence relied upon by the prosecution.

    In simple terms, referring now to the piece of glove, it means that, from the prosecution’s point of view, the major DNA profile on that piece of glove matched that of the accused.  In terms of the cigarette butt, insofar as the results were obtained, and you must remember that there were two regions that were non-reportable and there were other regions with mixed results, the DNA profile was consistent with Mr Morgan’s, but a statistical weighting was different than with the glove.

    So, these are two items of circumstantial evidence that go to link Mr Morgan with the crime scene.  The prosecution approach to the matter is that you should bear in mind that they are two items of evidence that are linked to him, as it were, independently, because they are separate bits of evidence pointing to the accused’s presence inside the Loxton News, but you should bear in mind and be cautious because, simply looking at P48, you know that the strength of the evidence in respect of the cigarette butt is less than the strength of the evidence in relation to the piece of glove, and the reason for that is that, at some locations in respect of the cigarette butt, there was actually nothing to be found, and in respect of some of the other locations, they were non-reportable; in other words they were reported as NR, but two locations in which nothing reported, so you need to be cautious in respect of that fact, but the prosecution’s approach is that there are still two separate items that it says circumstantially link the accused with the interior of the Loxton News.

    One of the questions you will have to ask yourselves, or the questions you will have to ask yourselves is how do they get there. There are a number of scenarios that you should consider.  Did it come off a glove being worn by Mr Morgan at the scene inside the Loxton News?  That’s what the prosecution suggests is in all probability how it came about; that he was wearing it inside the Loxton News when he was involved in the offending.

    I am now turning my attention to the cigarette butt.  Did Mr Morgan have a cigarette at the scene, butt it out somewhere and it remained at the scene after they all left.

    Another scenario that you will need, at least to consider, is did an offender, not Mr Morgan, use a discarded glove from the blue Ford that Mr Morgan had left there at an earlier time when he owned it, and it just was there because he had an untidy car and no-one else bothered to clean it out, and that is how the glove piece with DNA matching his came to be inside the Loxton News.

    You will need to consider whether an offender, not Mr Morgan, unwittingly took the cigarette butt into the Loxton News from somewhere in the Ford by it being stuck in the tread of a boot, for instance, or in clothing or was scooped up with tools that were going to be used to bash open the safe, or is there some other innocent explanation for the presence of those two items in the Loxton News?

    When it is understood that there was no challenge by the accused to the DNA match and the statistical analysis interpreting that match, it is to be seen that the Judge correctly and adequately summarised the relevance of the evidence. 

19. The Judge gave appropriate and adequate direction about the approach the jury should take to the evidence and then identified the real issue between the parties - what use the jury might make of the evidence given a DNA match - in drawing conclusions about the guilt or innocence of the accused.  In particular the Judge explained that the recording at several loci of the letters NR was a reference to a decision being made that the DNA analysis was not deemed sufficient for reporting purposes.  However, as the Judge pointed out, a DNA trace had been located and one conclusion from that DNA non-reportable trace was that the accused could not be excluded from a potential match. 

20. The absence of a match with respect to the cigarette butt at two loci had a consequence in regard to the statistical analysis that followed.  The Judge emphasised in the passage referred to above the need for the jury to be cautious in respect to the reporting as NR.  The reference to non-reportables should be treated with caution in the way described by the expert witness.  Having regard to the concessions by counsel for the accused, it can be seen that the trial Judge’s direction was favourable to the accused.  The Judge then reminded the jury of the Crown and defence cases, should they consider there to be a DNA match as propounded by the Crown.

21. Against this background, and in light of the evidence at trial, there is no arguable point to be agitated on appeal.  I would refuse leave on this ground.

    Lies Direction

22. The ground of complaint was in the following terms:

    The learned trial judge erred in law in not giving the jury a lies direction in a form suggested by the High Court in Zoneff v The Queen[1] and the Full Court in R v Baring & Leonard,[2] where the prosecution asked the jury to infer that the applicant’s conduct was an attempt to distance himself from his culpability in the offence charged, thereby allowing the jury to improperly infer that his conduct could only be explained because of his guilt to the offence charged. 

    [1] Zoneff v The Queen (2000) 200 CLR 234.

    [2] R v Baring & Leonard (2005) 92 SASR 117.

23. To understand this complaint it is necessary to return to the outline of the Crown case.  As earlier observed, the police attending at the appellant’s address observed a blue Fairlane with the registration number UOA-593.  The officers became aware of a grinding noise coming from a neighbouring garage. They attended at the neighbouring premises.  According to the police evidence, the accused was seen to leave a shed at the back of the yard.  When spoken to by the police he gave his name and said that he was looking to borrow a lawnmower. 

24. It was suggested on the Crown case that the grinding noise was the sound of the grinding of the crowbar used in the break in.  It was said that the crowbar was being ground with a view to removing any traces that might provide evidence against those who entered the premises.  Items taken from Loxton News were located in the shed. 

25. The police officer was challenged at trial about his account of seeing the accused.  It was suggested that he spoke to the accused at the back verandah of the neighbouring house to Gilchrist Crescent.  It was put that the accused had not come from the shed.  The accused gave evidence that he had not been at the shed but had been at the back verandah of the neighbouring property seeking to borrow a lawnmower.

26. During the prosecution address the following was said:

    Interestingly, as an aside, Mr Morgan in his evidence this morning denies having heard the sound of a grinder at the time that the police were there and you might wonder why he denies that.  Similarly he denies coming out of the shed, being seen by Constable Sprigg coming out of the shed.  Is this evidence from him not hearing the grinder, not coming out of the shed; is this an attempt by him to distance himself from the shed, its contents, the other people in the shed, the grinding of the crowbar at the time that the police arrive and the others who are inside the shed who, on the prosecution case, must be plainly connected like him with the commission of the crime?

    You will need to make an assessment of the conflict in the evidence between the accused and Constable Sprigg, in particular, as to whether or not Constable Sprigg was right when he told you that he saw the accused coming out of the shed.  Constable Sprigg’s evidence, you might think, fits in neatly with the rest of the other police evidence of those who were there and what you might expect would have occurred when the police arrive.

    Counsel for the applicant contended that an implication the jury might have drawn from the prosecutor’s remark was that the accused was seeking to distance himself from the shed and had told a lie out of a consciousness of guilt.

27. The applicant drew attention to the decision of the High Court in Zoneff and in particular to the following passage in the joint judgment of Gleeson CJ, Gaudron, Gummow and Callinan JJ:[3]

    A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms:

    “You have heard a lot of questions, which attribute lies to the accused.  You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately.  It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.”

    A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that he accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence.

    [3] Zoneff v The Queen (2000) 200 CLR 234 at [23] - [24].

28. Counsel also referred to the decision of the Court of Criminal Appeal in Baring& Leonard[4].  Attention was drawn to the following observation of Perry J: [5]

    In my view, the risk that a jury may reason impermissibly from a finding that the accused has lied, towards a conclusion that it is indicative of guilt, will almost always be present, unless an appropriate direction is given. For that reason, I think it better, as a matter of general practice, for trial judges to give a Zoneff direction whenever it is suggested that the accused may have lied.

    [4] R v Baring & Leonard [2005] SASC 262.

    [5] R v Baring & Leonard [2005] SASC 262 at [14] – [15].

1. With respect to the remarks of Perry J attention should be drawn to the earlier observations of their Honours in Zoneff in the following terms: [6]

   There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt.  As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards [(1993) 178 CLR 193 at 211], “the accused knew that the truth ... would implicate him in [the commission of] the offence” and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.)

   [6] Zoneff (2000) 200 CLR 234 at [16].

2. In Dhanhoa[7] the High Court gave further consideration to the question of lies directions.  For present purposes the following references are of relevance.  Gleeson CJ and Hayne J observed:

   It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction.  Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies.  The present was not such a case. (footnotes omitted)

   [7] Dhanhoa v R (2003) 217 CLR 1.

3. McHugh and Gummow JJ also considered the question of the necessity of a lies direction and commented:

   ... It is not necessary for a trial judge to give a direction concerning lies as evidence of guilt whenever a prosecutor suggests directly or indirectly that an accused’s out-of-court statement is a lie.  But in this case it would have been better if the trial judge, having given the direction that he did, had instructed the jury as to how they were to use any lie told by the accused.  Given the way that the Crown conducted its case, it would have been better if the trial judge had directed the jury that the accused’s lies, if they found he had lied, only affected his credibility. (footnotes omitted)

4. It does not appear that the remarks in Dhanhoa were drawn to the attention of the Court in Baring & Leonard.  The other members of the court, Doyle CJ and Sulan J, did not express agreement with the observations of Perry J earlier referred to. 

5. Counsel for the applicant relied on the observations of Perry J.  It was submitted that once the issue of a lie had arisen, in accordance with Perry J’s observations, a Zoneff direction was required.  If the observations of Perry J are to be so understood then in my view there is tension between those observations and the remarks of the High Court in Zoneff and Dhanhoa.

6. However, the question remains whether it is arguable that having regard to the remarks of the prosecutor the jury could have reasoned impermissibly.

7. In the course of his summing, up the Judge on three separate occasions addressed the relevant evidence and directed the jury in the following terms:

   Another small topic is this.  At one stage it was suggested that the accused was lying about being able to hear and hearing a grinding noise coming from the shed.  It was suggested that his answers on that topic were an attempt to distance himself from the shed and the heavy tools, the grinding, and the camera to be found in that shed.  That was a suggestion that related to his credibility only and nothing more, and that is a matter for you to consider.

   ...

   If you think the accused in his evidence was trying to distance himself from the shed and falsely deny he was in the shed, that can relate to his credibility and believability, but only relative to the grinding activity that was taking place there, the presence of those heavy tools and the camera that was eventually found under a cushion on the lounge in the shed.

   ...

   Mr Barnett referred to Mr Morgan’s denials.  Some of his comments concentrated on the fact that Mr Morgan denied hearing the grinding noise that was coming from the shed at No.5, and Mr Barnett also touched upon the denial made by the accused that he ever was in that shed on that morning.

   As I have already directed you, those matters, that is whether you accept Mr Morgan’s denial or you do not, are questions of believability, credibility and are, therefore, matters for you.

8. It is to be observed that the trial Judge did not give any positive warning about how the evidence should not be used.

9. Counsel for the DPP accepted that there was arguably some possible ambiguity arising from the the prosecutor’s remarks and did not resist the grant of leave in the circumstances.

10. There will be a grant of leave in respect of this ground.

    Removing a Factual Matter from the Jury – The Further Need for a Lies Direction

11. The applicant further complained in the following terms:

    The learned trial judge erred in law in making a finding of fact ... that when looking at exhibit P14, photos 20, 21, 22, 23 there was no mud on the tyres of the utility, belonging to the applicant.  This finding was erroneous as it was said to be in response to a submission said to have been made by defence counsel, in his address to the jury, regarding the applicant’s defence of being under a certain bridge in his utility on an unsealed track at a time when there had been rain, therefore mud on the tyres, at about the time the alleged offence is said to have occurred. The defence did not address the jury on that topic, rather it addressed on the evidence of mud on the applicant’s boots, as a fact, pointing to the applicant’s non-involvement in the offence charged. 

    The  learned trial judge erred in law in not giving the jury a lies direction in a form suggested by the High Court in Zoneff v The Queen  and the Full Court in R v Baring & Leonard where through the comments, made by the learned trial judge, as referred to in ground 5 above, allowed the jury to improperly infer that his conduct could only be explained because of his guilt to the offence charge.

12. These complaints arose from observations of the Judge during summing‑up of the apparent lack of mud visible on the tyres of the applicant’s motor vehicle in photographs.  The observations were made by the Judge as a result of defence counsel’s submissions about wet conditions in the area where the accused was said to have been.  The implication behind the Judge’s comments was that if the defence case were to be accepted one could expect to see mud on the vehicle.

13. It was complained that the terms in which the Judge made his comment removed a factual issue from the jury.  It was also said that the Judge’s comments may have left the jury with the impression that the accused had lied, possibly out of a consciousness of guilt, about the movements of his vehicle.

14. It is well settled that a judge is entitled to express a view about the facts providing he or she does not take away a factual issue from the jury.  As was observed by Prior J in Panagiotidis: [8]

    ... a judge is always entitled to express his view of the facts, provided that he does so with moderation and provided always that he makes it clear that it is the jury’s function (and not his) to decide the facts and that it is their duty to disregard the view which he has expressed (or which he may appear to hold) if it does not agree with their own independent assessment of the facts:  see R v Zorad (1990) 19 NSWLR 91 at 106.

    [8] R v Panagiotidis (1991) 55 SASR 172 at 174.

15. In the present case, the Judge made it clear to the jury on several occasions that “the facts” were for the jury.  Early in the summing-up the Judge directed the jury:

    If I say something about the facts of the case with which you do not agree, you should prefer your own views and act upon them because the facts and the way they are to be assessed and interpreted are your responsibility.  No-one, judge or counsel, can exercise that responsibility for you.

16. In the passage the subject of complaint, the Judge, having expressed a view about the facts, reminded the jury that the facts were their responsibility and a matter ultimately for their decision.

17. I do not consider that any arguable issue has been demonstrated.  The Judge made a comment and expressed a view; however, the issue of fact to be decided was ultimately, and clearly so, left to the jury.

18. I do not consider that it is arguable that the jury would draw any implication that there had been a lie told by the applicant out of a consciousness of guilt.  At worst this could only be a remote possibility.  In the circumstances a Zoneff direction was not required.  It is to be observed that counsel did not seek any such direction.

19. I would refuse leave in respect of these grounds.

    Out of Court statements

20. A complaint was advanced in the following terms:

    The learned trial judge erred in law in ruling that certain conversations between the applicant and Detective Cummins could not be cross-examined upon as they were self serving statements. The conversations the ruling referred to are between Detective Cummins and the applicant at 7 Gilchrist Crescent Barmera on the morning of 28 January 2001 and at the Berri Police Station on the afternoon of 28 January 2001.  Both conversations dealt with the applicant being questions by Detective Cummins and voluntarily answering his questions, the applicant’s answers were relevant to issues going to his defence.  The prosecution had led a number of conversations between the applicant and Constable Sprigg and the applicant and Senior Constable McKenzie.  These conversations could also be described a self serving statements.

21. It is to be understood that the accused wished to cross-examine the police officer about unsworn out of court statements made by the accused.  The prosecutor had not sought to lead any part of the statement.  The Judge ruled that this was not permissible. 

22. In Byster[9] Prior ACJ observed:[10]

    It is a principle of the law of evidence that a party may not, in general, call evidence supporting his or her credibility or that of any witness called by that party, for example, see Newson (1980) 71 Cr App R 325. Another general principle is that juries act only on the evidence they hear in the courtroom. Assertions of a witness are to be regarded, in general, as true until there is some particular reason for impeaching them as false. A previous consistent statement by a witness may be admitted to rebut afterthought. The prosecution’s case here could not be properly presented before the jury as one where any suggested explanation for the circumstances proved and relied upon by the prosecution were afterthought. A trial judge has to determine whether the conduct of the trial might permit the exceptional procedure of permitting previous consistent statements being admitted to rebut afterthought: Nominal Defendant v Clements (1960) 104 CLR 476 at 479. Proper directions could be given in a case like this should they prove necessary. No warrant for the imposition of a stay is made out simply because of the inadmissibility of the conversations between the appellant and the investigating officer as part of the prosecution case.

    [9] R v Byster (2001) 80 SASR 373.

    [10] R v Byster (2001) 80 SASR 373 at [25].

23. The circumstances of the present case are to be distinguished from those where the Crown seeks to lead only part of a statement made by an accused.  In such circumstances it is the general rule that the entire conversation should be put in evidence including self serving statements.[11] 

    [11] Mule v The Queen [2005] HCA 49 at [14].

24. Counsel for the accused at trial sought to support admissibility on the basis that the statement was not self serving.  Plainly that is incorrect.

25. On the application for leave, an entirely different basis was advanced to justify the admission of the statement.  It was claimed that the proposed evidence would put other statements made on other occasions, already in evidence as part of the prosecution case, into context.  The submissions advanced on the application failed to demonstrate how the proposed evidence could serve that purpose.  In any event the suggested basis is an entirely different basis from that advanced at trial.  It is inappropriate in the circumstances of the present case to allow a fundamentally different basis to be advanced on appeal for the receipt of the material when admissibility was not sought on that basis at trial.  I would refuse leave to appeal on this ground.

    Unsafe and Unsatisfactory

26. Finally, it was said that the evidence as a whole did not support the verdicts and that the verdicts were unsafe and unsatisfactory.  Given the grant of leave concerning the issue of a lies direction, subject to proper particulars being provided, it is appropriate that leave be given for this ground.

    Leave to Appeal Against Sentence

27. The complaint with respect to sentence related to the length of the non-parole period.  Counsel accepted that, on its face, the non-parole period of 14½ months as against a head sentence of 29½ months did not appear excessive.  It was not suggested that there was any identifiable error in the approach of the sentencing Judge.  However, it was contented that the applicant had overcome a pre-existing problem with alcohol and prior to this offending had been out of trouble for some time.  It was said that in all the circumstances the length of the non-parole period was excessive.

28. I do not consider that the proposed grounds of appeal with respect to sentence are arguable.  The sentence imposed including the non-parole period was well within the sentencing discretion of the Judge.  It might be said that, in the particular circumstances having regard to the revoking of two suspended sentences, the fixing of a non-parole period of 14½ months was merciful.

    Conclusion

29. Leave to appeal against conviction is granted in the limited respects as referred to earlier in these reasons.  Leave to appeal against sentence is refused.