R v Newman
[2011] SASCFC 36
•29 April 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NEWMAN
[2011] SASCFC 36
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Kourakis)
29 April 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - FUNCTIONS OF JUDGE AND JURY - WEIGHT
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - GENERALLY
Appeal against conviction – defendant found guilty by unanimous jury verdict of murder – where prosecution case at trial that defendant had a prurient interest in the victim, having built a relationship through the creation of fictitious alter egos through the internet – where prosecution case that the defendant assaulted the victim with murderous intent and left to drown on beach – where defence case at trial that defendant had nothing to do with the death of the victim – complaint made with respect to the admission of and directions in relation to the evidence given by the victim’s mother regarding conversations with and observations of the victim – whether Judge erred in failing to exclude evidence or by failing to distinguish adequately – whether Judge erred in failing to distinguish adequately in directions between motive and intention – whether Judge erred in failing to direct jury in relation to use that could be made of mixed statements (inculpatory and exculpatory) made by the defendant to two fellow prisoners regarding the death of the victim – whether miscarriage of justice arose in relation to the failure of the Judge to attend to the mandatory requirements of section 21 of the Evidence Act 1929 (SA) – whether miscarriage of justice arose as a result of the opinion evidence given by a son of the defendant about statements concerning the intention of the defendant – whether, in all the circumstances, risk that a miscarriage of justice such that verdict unsafe and unsatisfactory – discussion regarding the significance of admissions made through counsel at sentencing submissions following trial but before hearing of appeal against conviction.
HELD:
(Gray J, White J concurring): Appeal dismissed – important that the jury be provided with relevant context regarding the issues before them – evidence of complaint by victim to her mother was admissible, and was relevant and probative for a number of reasons – the weighing exercise of the prejudicial effect of the evidence against its probative value was a matter within the discretion of the Judge – no error identified – adequate directions given about the limited use to be made of the hearsay evidence and the evidence of mother’s observations of victim’s demeanour – as a result of the clear directions of the Judge, no error identified with respect to the topic of motive and intention – statements to fellow prisoners were not relevantly exculpatory, and in any event, Judge not required in the circumstances of the case (in particular, the conduct of the defence case at trial) to give any specific direction with respect to the portion of the statements said to be exculpatory – irregularity with respect to section 21 of the Evidence Act does not have any consequence in the circumstances of the case – no material irregularity occurred with respect to opinion evidence given by a son of the defendant.
(Kourakis J): Appeal dismissed – use of hearsay evidence – evidence of complaint by victim to her mother should have been excluded – prejudicial nature of evidence could not be overcome by direction – use of evidence to show state of mind of victim or her mother irrelevant – use of evidence to show motive weak – slight probative value – strongly prejudicial. Exculpatory statements – obligation at law to direct juries that the exculpatory part of a mixed statement is evidence on which they can act – error of law in failure to direct. No substantial miscarriage – evidence that appellant had intention to kill or cause really serious injury overwhelming.
Criminal Law Consolidation Act 1935 (SA) s 11; Evidence Act 1929 (SA) s 21, referred to.
Walton v The Queen (1989) 166 CLR 283; Reg v Blastland [1986] AC 41; Wilson v The Queen (1970) 123 CLR 334; R v Hendrie (1985) 37 SASR 581; Bull v The Queen (2000) 110 A Crim R 562; R v Matthews (1990) 58 SASR 19; R v Hytch (2000) 114 A Crim R 573; R v Andrews (2002) 220 LSJS 285; Subramaniam v Public Prosecutor [1956] 1 WLR 965; Driscoll v The Queen (1977) 137 CLR 517; R v Karger (2002) 83 SASR 135; De Gruchy v The Queen (2002) 211 CLR 85; Shepherd v The Queen (1990) 170 CLR 573; R v Murphy (1985) 4 NSWLR 42; Mule v The Queen (2005) 79 ALJR 1573; R v Golding (2008) 100 SASR 216; R v Duncan (1981) 73 Cr App R 359; R v Sharp [1988] 1 WLR 7; Spence v Demasi (1988) 48 SASR 536; R v Aziz [1996] AC 41; Mahmood v Western Australia (2008) 232 CLR 397; Van Leeuwen v The Queen (1981) 55 ALJR 726; Domican v The Queen (1992) 173 CLR 555; Jones v Dunkel (1959) 101 CLR 298; Maric v The Queen (1978) 52 ALJR 631; R v Miller (1980) 25 SASR 170; Byrne v The Queen (1986) 20 A Crim R 306; Van De Weil v The Queen (Unreported, 3 August 1995, Supreme Court of South Australia, Court of Criminal Appeal, Doyle CJ, Duggan and Nyland JJ, Judgment No. S5202); R v Kirk [2005] SASC 230; R v Weaver [1968] 1 QB 353; Cesan v The Queen (2008) 236 CLR 358; R v Evans [1998] SASC 6798; R v Howse [2006] 1 NZLR 433; McDemott v The King (1948) 76 CLR 501; R v Christie (1914) Cr App R 141; R v The Inhabitants of Eriswell (1790) 3 TR 707; R v Cargill [1913] 2 KB 271; R v Higgins (1829) 3 Car & P 603; Middleton v The Queen (1998) 19 WAR 179; R v Weetra (2010) 108 SASR 232; M v The Queen (1994) 62 SASR 364; Sorgenfrie v The Queen (1981) 51 FLR 147, considered.
R v NEWMAN
[2011] SASCFC 36Court of Criminal Appeal Gray, White and Kourakis JJ
GRAY J:
Introduction
This is an appeal against conviction.
The defendant and appellant, Garry Francis Newman, was charged on information with the offence of murder, contrary to section 11 of the Criminal Law Consolidation Act 1935 (SA).[1] The particulars alleged that the defendant and SN, between 18 February and 21 February 2007, at Port Elliot, murdered Carly Ryan.[2] The defendant was found guilty of her murder by unanimous jury verdict. The co-accused, SN, a son of the defendant, was acquitted.
[1] Section 11 of the Criminal Law Consolidation Act 1935 (SA), provides:
11—Murder
Any person who commits murder shall be guilty of an offence and shall be imprisoned
for life.
[2] It was the prosecution case that SN was involved in Carly’s death as part of a joint enterprise with the defendant.
Carly Ryan, a teenage girl, died on the evening of 19 February 2007 or the early hours of the following morning. Her body was found on a beach near Port Elliot. She died as a result of drowning associated with craniofacial trauma.
It was the prosecution case that Carly was assaulted by the defendant with murderous intent and left to drown. It was the defence case at trial that the defendant had nothing to do with Carly’s death. The defendant was not on the beach at any relevant time and did not bash Carly or cause her to drown.
The defendant’s grounds of appeal may be summarised as follows:
-Complaints are made with respect to the admission of and the Judge’s directions relating to the evidence given by Carly’s mother, Sonya Ryan, regarding her conversations with and her observations of Carly.
-The defendant complains that the Judge in summing up failed to adequately distinguish motive and intention. It is said further that a direction should have been given that the prosecution was required to establish certain circumstantial evidence relevant to motive beyond reasonable doubt.
-It is complained that the Judge erred in failing to direct the jury in relation to the use that it was entitled to make of the evidence of two witnesses who had been in prison with the defendant. One aspect of this complaint is said to be the failure by the Judge to direct the jury as to the use to be made of the defendant’s out of court exculpatory statements.
-It is complained that the Judge failed to attend to the mandatory requirements of section 21 of the Evidence Act 1929 (SA) in relation to the evidence of DN, another son of the defendant.
-It is further contended that the trial miscarried as a result of the prejudicial effect of evidence of DN in relation to his interpretation of and opinions about alleged statements concerning the intention of the defendant.
-Finally, it is contended that in all the circumstances, there was a risk that a miscarriage of justice had occurred such that the verdict was unsafe and unsatisfactory and that as a consequence, the conviction of the defendant should be set aside and a retrial ordered.
I have reached the conclusion that this appeal should be dismissed. My reasons for this conclusion follow.
I consider that the Judge delivered a comprehensive and fair summing up. In particular, it is my view that the summing up adequately and fairly summarised both the prosecution case and the defence case. My review of the summing up allows the conclusion that appropriate direction was given on all relevant issues.
I do not consider that any of the complaints about the admission of evidence are of any substance. In my view it was open to the Judge to decline to exercise her discretion to exclude evidence as prejudicial. I reject the contention that a mistrial should have been ordered.
Although I have concluded that there was an irregularity in regard to a close relative of the defendant, DN, not being advised about his right to apply for an exemption from the obligation to give evidence against the defendant, I do not consider this irregularity to be of any consequence.
The Trial
The Prosecution Case
It was the prosecution case that the defendant created a fictitious person, an internet construct, “Brandon Kane”. This was a cyberspace alter ego that the defendant created and used to make and maintain a connection between himself and Carly. Dialogue between Carly and “Brandon” was conducted over the internet, as well as by telephone and through emails. Over the course of the period between the commencement of that dialogue until death, Carly became enamoured with “Brandon”, professing that she loved him and believing that he loved her. There was a vast body of material from emails, internet and telephone evidence which demonstrated the use made by the defendant of the “Brandon” alter ego. The subterfuge of the cyberspace identity also included “Brandon’s” adoptive father “Shane”, a further fictitious person created by the defendant and used by him in his connection with and manipulation of Carly.
The defendant was sexually infatuated with Carly. There was a considerable body of evidence relied upon by the prosecution to support this conclusion. The sexual interest of the defendant in Carly was demonstrated, in part, by mobile telephone calls, text messages, emails and other internet traffic between Carly and defendant.
Other evidence was led by the prosecution to demonstrate the sexual interest of the defendant in Carly. Evidence of conversations between the defendant and fellow employees around the time of a visit by the defendant to Adelaide from Victoria, included a conversation where the defendant showed a colleague a text message on his mobile telephone from a “girl in Adelaide” going on to state that he was “going to Adelaide to fuck her brains out”. At that time the defendant told the colleague that the girl was 15 or 16 years of age and that he had met her over the internet.
The defendant resided in Victoria. In the guise of “Shane”, the defendant visited Carly in Adelaide on 26 January 2007 to attend her birthday party. This was some weeks before her death. During this visit, the defendant was said to have further demonstrated his sexual interest in Carly. This was evidenced, inter alia, by the purchase of a nurse’s outfit and lingerie as a present for Carly and by a display of sexual jealousy when Carly spent time with and paid attention to a former boyfriend at her birthday party. Other evidence with respect to the defendant’s behaviour on that occasion was led to demonstrate his inappropriate interest in Carly.
Following her birthday party, Carly informed her mother that the defendant had touched her in a sexual way. Mrs Ryan subsequently contacted “Shane” by email, forcefully rebuking him for his behaviour and warning him to stay away from her daughter. She then confiscated Carly’s phone and removed her internet access in order to prevent any further communication with “Shane”. However, Carly was said to have remained in touch with “Brandon” and “Shane” thereafter, until her death in February 2007.
Shortly before to her death, Carly arranged to meet “Shane” and “Brandon” in Adelaide. It was during this visit that the defendant was said to have murdered Carly.
The defendant was present in South Australia between 15 and 20 February 2007. A substantial body of evidence was said to support this conclusion. The defendant’s evidence given at the trial confirmed this. Evidence with respect to geographic location of mobile telephone calls also established the defendant’s journey to Adelaide at this time.
The evidence established that the defendant was on the beach at Port Elliot with Carly on the evening of 19 February 2007. This evidence included closed circuit television footage and eyewitness accounts of sightings of the defendant and Carly. The evidence included positive identification of the defendant through a photographic identification procedure. The prosecution also relied on the defendant’s admission that he and his co-accused were at the beach at Port Elliott at some time on the evening of 19 February 2007. The presence of the defendant at the beach was supported by DNA evidence from the tip of a latex glove found at a relevant location on the beach. The DNA on the tip of the latex glove matched the defendant’s DNA.
Carly was assaulted in the location where the tip of the latex glove was found. This was supported by the evidence from the crime scene examination, including the location of items of jewellery scattered within that area and the location of blood stains on the sand.
Alan David Cala, a forensic pathologist, gave evidence of the injuries suffered by Carly. It is relevant to set out in some detail the evidence led from Dr Cala before returning more broadly to the prosecution case at trial:
Q.Can I ask you now about that craniofacial trauma. Do the injuries allow you to identify what it was that caused the trauma.
A.Not specifically or definitely. The bulk of the injuries were in fact bruises and abrasions, quite non-specific in causation. Aside from something blunt that has been applied to some part of the face to cause those injuries but there were no telltale patterns or marks that made me think it was one particular type of object as opposed to some other.
Q.Is there a uniformity about the injuries that led you to conclude they were used by the same - I won't use the term instrument - force.
A.No, they were quite variable. There was bruising to the right cheek but there was like a band of injury toward - going towards the right ear. It was quite different from the other injuries and abrasions around the face. So I think it might have been a number of objects that have - where force has been applied. I don't know what they are but I think probably a variety.
Q.Could the injuries have been caused, for example, by the face coming in contact with a rock on the beach.
A. Yes, that's possible.
Q.Are they consistent with a fall from a height on to rocks or another hard surface.
A.No.
Q.Why is that.
A.The pattern of injury from a fall from a height is completely different from this. In that sort of instance if somebody falls, they generally have injuries down one side, on the side they have landed but not always. But particularly on the face you might expect to see a line of particularly bruises and abrasions. But when there's injuries on both sides and in a variety of locations and of different natures, that is some were abrasions, some were bruises and a couple of lacerations, I think that it wouldn't be correct to say that these are consistent with a fall.
Q.Could the injuries have been caused by punching.
A. Yes. Not all, but some.
Q.Could the injuries have been caused by a combination of punching and the face coming into contact with an abrasive surface of a rock or something of that nature.
A. Yes.
Q. Can you say, with any precision, how many blows Miss Ryan received.
A.No, I can't. You can receive blows in one location, that is, a number of blows in one location and just have one injury which might indicate to an observer that only one blow was applied. So in this case, although I've documented 19 separate injuries, that doesn't mean that there were 19 separate blows by any means. But I think that my view is that there's been a number of blows, possibly from using fists, and I would think that around about six to eight might be a minimum number that I could use.
Dr Cala gave detailed evidence with respect to the injuries recorded when examining Carly. Dr Cala described an injury, approximately 110 millimetres in length and five millimetres in width, of abrasion to Carly’s left forehead area and around her left eyebrow region. Also to Carly’s left forehead area above her eyebrow was a purple bruise of 15 millimetres in diameter. A further injury to Carly’s face was a bruise of about 40 millimetres in diameter, just above the bridge of her nose. The examination revealed that Carly had a peri orbital haematoma. The bruising around her left eye merged into further bruising around her left cheek and her nose to form an injury approximately 80 by 30 millimetres in size. Bruising and abrasion of 15 by 10 millimetres was present around the sleeper stud in Carly’s left nostril. A purple bruise of 10 by 15 millimetres was observed on Carly’s upper lip at the midline. Two superficial lacerations of five millimetres in length were recorded at the corner of the left side of Carly’s mouth, mostly on the inner surface of her mouth. In addition to an area of bruising of 20 by 15 millimetres on the inner side of Carly’s upper lip was observed.
The examination also revealed injuries to the right side of Carly’s face. An area of purple bruising and abrasion of approximately 90 millimetres in diameter was recorded on her right cheek region extending towards her right ear lobe. That bruising was heavier towards her right ear lobe. Further abrasions behind Carly’s right eye and in front of her right ear were recorded.
Dr Cala also gave evidence of injuries to Carly’s neck and throat. An abrasion of 35 by 20 millimetres was located on the side of Carly’s neck, about 30 millimetres below her right earlobe. A two by eight millimetre abrasion to Carly’s lower jaw was recorded and a purple bruise of about 40 millimetres was located on Carly’s lower neck region. Injuries were also recorded on both of Carly’s ears and a number of other lacerations to her face were observed.
Dr Cala also recorded a number of injuries to Carly’s body. Further, an internal examination was performed, which revealed, inter alia, internal bruising in the head, face and neck area.
On the prosecution case, the nature of the injuries sustained by Carly allowed the conclusion that she was struck about the head with murderous intent. The cause of death was drowning associated with craniofacial trauma. As can be seen from the evidence extracted above, the examination disclosed 19 injuries. Carly sustained extensive head injuries. Dr Cala’s evidence suggested that a minimum of six to eight blows were inflicted to Carly’s face and neck. The autopsy disclosed almost a third of a cup of sand in Carly’s oesophagus. The medical evidence with respect to the presence of the sand was that it had been swallowed rather than having occurred as a result of Carly being dragged post‑mortem from the water across the beach. It was the prosecution case that the only inference that could be drawn from the combination of the evidence of the injuries suffered, the presence of sand in the oesophagus and the explanation with respect to the presence of the sand, was that the attack by the defendant was committed with murderous intent.
Carly was rendered semiconscious or unconscious by the assault. Evidence was given with respect to the state of her clothing. Carly’s tracksuit pants were worn inside out and only one of the three clips on her brassiere was fastened. Her underpants were located tangled in a suspender belt but were not on her body. This evidence indicated that when Carly was assaulted, she was not fully clothed. According to the prosecution, the inference available from the state of Carly’s clothing was that the assault rendered Carly semiconscious or unconscious.
It was the prosecution case that Carly was placed in the water by the defendant. Evidence was led demonstrating that no tidal swell could explain the body being taken from the area of the assault to the sea, and as a consequence, entry to the water was by intervention of a person.
The jury were invited to find that Carly was assaulted within the defined area of the beach where her jewellery was located, and that following the assault, while in a semiconscious or unconscious state, she was re-dressed and placed in the water by the defendant.
Evidence was led from DN relating to the defendant’s use of computers and the internet, the defendant’s movements and in particular, his visit to Adelaide and his interest in a girl from Adelaide. Of significance was the evidence given by DN that following the defendant’s trip to Adelaide for Carly’s birthday and the subsequent rebuke by Mrs Ryan for his inappropriate behaviour towards Carly, the defendant indicated that he wanted to return to Adelaide to “fix Carly up”. DN’s evidence was that the defendant said things during this period that indicated that he wanted to harm Carly.
According to DN, following the defendant’s return from the Adelaide trip in February 2007, the defendant showed him his knuckles and asked him “do they look bruised to you?”. The defendant went on to say that he had “done the job”. The defendant elaborated further by telling DN that he had punched Carly in the face and had pushed her face into the sand.
Evidence was led from two men who shared prison cells with the defendant while he awaited trial; prisoners Thomas and Smith. According to one, the defendant spoke about Carly on several occasions. The defendant referred to different scenarios of what might happen in relation to the murder charge, whether he should take the blame in order for his son to go free, whether he should blame his son or whether he should cast blame on an unknown person. The defendant was said to have postulated accidental causes for Carly’s death including her having fallen from a rock, having hit her head and having been dragged by the tide before drowning, or alternatively, having been affected by drugs leading to a fall and subsequent drowning. According to this prisoner, the defendant made mention of the tide washing away marks on the beach where they had fought and, in the context of another conversation, made a joke in relation to the difficulty of putting clothes on a “dead weight”.
The other prisoner gave evidence that the defendant spoke of being wrongly accused of the murder of Carly. However, that prisoner recalled that on one occasion the defendant looked “shattered” and told him that his son “had rolled over on him”. The defendant went on to say “we did it” followed by “I didn’t mean to kill her”. Evidence was further given of the defendant attempting to construct an alibi. In addition, the defendant was said to have disclosed further details of what had occurred over time and provided explanations involving different versions of events.
Shortly stated, it was the prosecution case that on the night of 19 February 2007 or in the early hours of 20 February 2007 the defendant murdered Carly at Port Elliot beach by assaulting her, suffocating her and placing her in the water where she drowned.
The Defence Case
The defence case at trial was that the defendant was not present on the beach at the time Carly died. The defendant denied having anything to do with the killing of Carly. The defendant gave sworn evidence in support of this defence.
During the course of sentencing submissions following the defendant’s conviction, there was a significant change in the defence case. I propose to first address the appeal with respect to the defence case as presented at trial without regard to the change of position. Later in these reasons I will discuss the significance of the defendant’s change of position.
The Appeal
Admission of Evidence of Sonya Ryan
Complaint was made with respect to the admission of evidence of a conversation Mrs Ryan had with Carly a short time after Carly’s birthday party on 26 January 2007. The Judge admitted the evidence, however, its use was restricted.
Mrs Ryan gave evidence that Carly had informed her that at the birthday party the defendant had sexually interfered with her. Mrs Ryan’s testimony revealed that as a consequence, she emailed the defendant warning him to stay away from Carly. The email sent by Mrs Ryan could not be located. Secondary evidence of its contents was led. Mrs Ryan, according to her evidence, sent her email to the email address of the internet construct “Shane” - [email protected] - threatening to go to the Police if he did not stay away from Carly. The email received in response, denying the allegations and indicating that the matter would be put into the hands of legal representatives, was also admitted into evidence. The text of that email was as follows:
BITCH PLEASE!
Even though you were too gutless to send that rancid email from your own account i found yours..which wasn’t very difficult.
That email was so full of lies and heresay [sic] and i am disgusted me that someone of a reasonable intelligencecould [sic] believe such crap to be true!
The thing’s you called me were totally defaming and i have forwarded the email onto my solicitor for further action.
You really need to read up on defamation laws as they pertain to the internet…they are as strong as in non- electronic transmissions…and i for your own sake i hope you have great insurance against lawsuits. You WILL need it!
I will go into court as a decorated SAS officer, whilst you will go in as a child abusing, bitch who shoves drugs down her daughters throat like others give them lollies.
By the way, IF Brandon and Carly wish to be together they will. And here is the BIG newsflash bitch!
If they do get together i am quite sure carly will be moving in with him, and sorry but an AVO will be taken out preventing YOU and your wanka [sic] bf from going anywhere near the house. YOU LOSE bitch!
Oh and if your wimpy bf wishes to enter this argument then tell him “please do”. I would tear him up trust me!
Anywayz i will not lower myself to YOUR pathetic gutter standards in this email. i will leave that to you. You do it so well.
Bye!
Do not reply, as i have no time for reading the CRAP you send people.
Carly’s complaint to her mother that the defendant had sexually interfered with her, together with other matters, led Mrs Ryan, according to her evidence, to confiscate Carly’s mobile telephone and to seek to prevent Carly having internet contact with the defendant.
On the hearing of the appeal, the defendant submitted that if Carly’s complaints to her mother were true, then the jury would reason that the defendant had a clear and strong motive to kill Carly; namely, to silence her. The submission went so far as to suggest that the jury, notwithstanding repeated and extensive warnings of the Judge, would reason impermissibly that the defendant had sexually interfered with Carly, or at the very least there was a real risk that they would reason in that way. As a consequence, it was contended that grave prejudice arose from the admission of the evidence, far outweighing its probative force.
The Judge’s directions
At the time of the admission of the evidence, the Judge gave the following direction to the jury:
Members of the jury, I alerted you at the beginning of the trial about hearsay evidence and how it's not usually admitted in a criminal trial. You've heard some hearsay to date, you've heard hearsay conversations between Carly and her mother which has been admitted for one purpose and one purpose only, and that's to enable you to understand the state of mind of Carly Ryan about the Brandon construct, about the person Brandon.
The conversation you just heard about with her mother after the party in which Carly disclosed to her mother that there had been some limited sexual contact between her and the person Shane is another hearsay conversation that's been admitted for an equally limited purpose, and that purpose is to enable you to understand why Ms Ryan did what she then did. [Counsel for the prosecution] will be asking her questions about what she did shortly when I finish.
What you should understand is that these hearsay conversations and anything said in them is not relevant to your deliberations as to the facts alleged in those conversations. So in other words, the fact that this girl told her mother certain things is not evidence that those things happened. You cannot use it in that way. So it's not evidence as to the truth of those things and, just to give another example, you've heard about the things Carly told her mother, although it seems that her mother had direct conversations with the person Shane about this, but insofar as Carly told her mother that the person Brandon was born in Texas etc. etc. etc., that is not evidence as to the truth of those facts. As I said, that kind of evidence was admitted to enable you to understand Carly Ryan's state of mind about this construct, the Brandon construct.
This conversation about the contact the person Shane allegedly had with her is admitted for a very limited purpose: to enable you to understand what is about to follow.
[Emphasis added.]
During the course of summing up, the Judge gave a number of general directions with respect to the use of hearsay evidence:
I have given you directions about this body of evidence given by these witnesses. I gave you specific directions as the trial unfolded. That evidence concerns conversations which the deceased girl, Carly Ryan, had with her girlfriends, her family and others about Brandon and also about the person she knew as Shane. Now, I remind you what I said then: normally if a dead person talks to someone what they have said is not evidence of the truth of what they said because, sadly, that dead person is not here to tell the court about those conversations. Here some of the things which Carly Ryan has said to others has been led not as evidence of the truth of what Carly Ryan said but as evidence of a certain state of mind she had. I repeat: what Carly Ryan said to others about Brandon and about Shane is not evidence of the truth of what she said, but is evidence of her state of mind which, on the prosecution case, goes to explain her behaviour and what her attitude to Brandon and later to Shane was.
So when I talk about what Carly Ryan said to other people, for example – just to give a random example – the things she told her mother about Brandon, like where he was born and that he came from Texas, that is not evidence of that fact, that is not evidence that Brandon did come from Texas, it simply helps to explain some of Carly’s behaviour and, indeed, on the prosecution case, why she might have gone to the beach late at night with the two accused.
[Emphasis added.]
The Judge gave specific direction on a number of other occasions during the summing up with respect to the evidence of Mrs Ryan relating to her conversation with Carly. The following extracts are indicative of the tenor of the directions:
In the same way, the evidence you heard about Carly Ryan’s complaint to her mother along the lines that Shane had touched her inappropriately during his stay in Adelaide is not evidence that Shane – now the accused, we know – did touch Carly Ryan inappropriately. That is not evidence of the truth of that fact but rather it serves to explain what thereafter happened and, in particular, why Sonya Ryan confiscated Carly Ryan’s phone, sent that email which you have heard about to which she said she received [the responding email]… It may also help to explain why Carly became secretive and why she did not tell her mother where she was going but rather said she was going to stay with a friend called Kane.
In other words, these conversations which Carly Ryan had with her mother and others are led not as to the truth of anything said by Carly in them but to enable you to understand why, on the prosecution case, certain other things happened and to explain, as I said, what Carly’s attitude and state of mind was in relation to the person she thought was Brandon.
Later, her Honour returned to the topic:
We are still dealing with Sonya Ryan’s evidence. Sonya Ryan told you about the events of the next day after the party. As she was leaving for work the next morning at about 10.45 a.m., she saw [a friend of Carly’s] asleep in Carly’s room. Carly was asleep under her covers on her bed nearest to the wall, and Shane was laying face down on top of the covers fully clothed asleep next to Carly. When she returned from work at about 1.20 p.m. that day she told Shane in no uncertain terms to leave the house.
It was after that confrontation with Shane, [the defendant], that Sonya Ryan said she had the conversations with her daughter in which she questioned her daughter, who eventually disclosed that Shane had unbuttoned her pants, lifted up her top and was basically feeling her up. You will recall, members of the jury, that as a result of that conversation Mrs Ryan then sent an email to Shane at [email protected] telling him that if he did not stay way from Carly she would go to the police.
You will also recall at the time that evidence was given, and again earlier today, I have told you that you have heard about that particular conversation between Carly Ryan and her mother for one purpose and one purpose only, and that was to enable you to understand why it was that Mrs Ryan sent that email to Shane threatening to go to the police if he did not stay away from Carly. The evidence of anything said by Carly Ryan to her mother that day is not relevant to establish the truth of any of the facts asserted in that conversation. I know I keep repeating this but it is important you understand it in relation to all of the evidence. In this case, you cannot use the evidence of what Carly told her mother about what Shane did to establish the truth of the matters about which she asserted happened. It is only relevant to explain why Sonya Ryan reacted as she did and sent that email and set in train the response which she said she then received from Shane at satans.commando@hotmail…
After that Sonya Ryan says she unplugged the computer from the internet and hid Carly Ryan’s mobile phone in order to try and prevent her from communicating any further with Shane. Nevertheless, Sonya Ryan heard her daughter speaking on the landline several times in conversations in which she used the name Brandon during the phone call. Later, Carly apparently found the mobile phone – her mobile phone which her mother had hidden.
[Emphasis added.]
The Judge again directed:
Let me just reiterate once again the purpose for which the evidence about what Carly Ryan said to others can be used by you. The evidence about what she said to others about Brandon and even about the person Aaron and Shane was placed before you not to prove the truth of what Ms Ryan said to those witnesses but simply to afford circumstantial evidence which might assist you, the jury, in reaching a conclusion as to what Carly Ryan was doing on the beach at Port Elliot on the night of her death and why she would willingly accompany the accused down there.
As I have been at pains to point out, usually the state of a mind of a person other than the accused is not relevant in a trial of this nature and that is why, generally speaking, you do not her any evidence about it. However, there are occasions – and this is one of them – when some of the evidence of what a deceased person has said and done is relevant to a particular issue in a trial and I have directed you about that.
The evidence of what Carly Ryan said to her mother about what happened during Shane’s first visit again, as I have said, is not placed before you to prove the truth of what Carly Ryan told her mother happened. Namely, it is not put forward to establish the truth of the allegation that Shane did touch her inappropriately but rather it is put before you to explain why Mrs Ryan then sent an email in the terms she said she did and for you to understand the context in which she said she received [the responding email]. Now, [the defendant] has admitted sending some kind of response to Mrs Ryan but he denies specifically sending that particular email, nevertheless it is a matter and just one item of circumstantial evidence for you to consider. If you do accept that the accused sent that email or a very similar email as he has admitted then that is just another item of circumstantial evidence from which you may draw inferences in due course concerning what the accused’s state of mind was on the second trip to Adelaide and, indeed, why he went to Adelaide for a second trip. But you cannot use anything that Carly Ryan said to her mother which gave rise to that email being sent to establish the truth of the allegations made by Carly Ryan in that conversation.
Later in her summing up, when summarising the defendant’s evidence, the Judge again repeated her directions with respect to Mrs Ryan’s evidence as to Carly’s complaint:
[The defendant] denied making any inappropriate contact with Carly in a sexual manner at all during the trip to Adelaide.
After his return to [Victoria] he continued to communicate with Carly. During one of those online communications Carly told him about the fact that her mother had been badgering her to tell her what had happened between her and the accused during the night of the party. I have already directed you why that evidence has been lead for that limited purpose only and not as to the truth of it. He said eventually, according to him, Carly admitted that she said something in order to shut her mother up. The accused said however he was not upset by this because he knew it wasn’t true. He was a little annoyed with Carly Ryan for saying something that hadn’t happened and he was annoyed with her mother for badgering Carly.
Once again, members of the jury, you will recall [the defendant’s] evidence that he was told by Carly Ryan that Sonya Ryan had sent him an email but he didn’t bother to read it. He did agree that he sent an email back to her, only a two paragraph email, in which he suggested to her that if she continued with those allegations she would face legal proceedings for defamation. Notwithstanding the fact that [the defendant] agreed he sent an email to Sonya Ryan, he has however denied sending [the responding email]. You will make of that what you will, members of the jury.
Legal principles
The authorities make clear that evidence of statements made from which inferences of state of mind may be drawn, may be admissible as an item of circumstantial evidence and do not offend the rule against the admissibility of hearsay evidence.[3]
[3] Walton v The Queen (1989) 166 CLR 283, 288 (Mason CJ), applying Reg v Blastland [1986] AC 41.
It is important that the jury be provided with relevant context to the matter before them, and accordingly, not decide an issue in a vacuum. The High Court in Wilson[4] made pertinent observations in this respect. Although in that case the context was a bitter relationship between husband and wife, the observations of the members of the Court illustrate the importance of context and surrounding facts in assisting a jury to appropriately assess an issue before them. Menzies J, with whom McTiernan and Walsh JJ agreed, remarked:[5]
It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence—which rests fundamentally upon the requirement of relevancy, i.e. having a bearing upon the matter in issue—to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.
[Emphasis added.]
[4] Wilson v The Queen (1970) 123 CLR 334.
[5] Wilson v The Queen (1970) 123 CLR 334, 344.
In Hendrie,[6] this Court held that upon a trial for murder, evidence was rightly admitted of a conversation deposed to by the husband of the deceased, between the husband and the deceased shortly before the deceased’s death. The conversation consisted of a discussion about the conversion of a window to a door in a bedroom. The work was to be done by the accused, who was a painter and decorator. Evidence of the conversation was led to prove how it was that the deceased went to the bedroom with the accused without any apparent signs of struggle. King CJ, with whom the other members of the Court agreed, observed:[7]
It is well established law that a person's state of mind may be proved by contemporaneous statements made by that person. Such statements are not hearsay because they are not adduced for the purpose of proving the truth of the statements. They are original circumstantial evidence tending to establish the state of mind. Their evidentiary value is derived from experience of human behaviour which indicates that people tend to express their intentions or their states of mind. For that reason what a person says is some evidence of what he is thinking. It is circumstantial evidence which may form a basis for an inference as to his intention or other state of mind.
[Emphasis added.]
[6] R v Hendrie (1985) 37 SASR 581.
[7] R v Hendrie (1985) 37 SASR 581, 585.
In Walton,[8] the High Court concluded that conduct, including statements, from which a state of mind can be inferred, is circumstantial evidence and admissible if relevant and probative.[9] The Court clarified that the relevant state of mind may be inferred by conduct or statements made by the person whose state of mind is in question and that similar inferences might be made from evidence of statements made by others. The majority in Walton discussed the Privy Council decision in Subramaniam v Public Prosecutor, observing:[10]
When a person's state of mind is relevant, evidence tending to prove that fact is admissible. That evidence may, of course, take the form of conduct on the part of the person whose state of mind is in question from which the state of mind might be inferred. But it might also take the form of statements made by the person or by another from which a similar inference might be made. An example of statements made by another being admissible in evidence upon this basis is to be found in Subramaniam v. Public Prosecutor, a case in which the appellant was convicted in Malaya of being illegally in possession of ammunition. His defence was that he had been captured by terrorists and was at all times acting under duress. It was held by the Privy Council that the trial judge was in error in ruling out, as hearsay, evidence of a conversation between the terrorists and the appellant. The evidence was admissible, not to prove the truth of any statements made by the terrorists, but as bearing upon the state of mind of the appellant. As was observed:
The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. In the case before their Lordships statements could have been made to the appellant by the terrorists, which, whether true or not, if they had been believed by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes.
[Emphasis added. Footnotes omitted.]
[8] Walton v The Queen (1989) 166 CLR 283.
[9] Walton v The Queen (1989) 166 CLR 283, 300-303 (Wilson, Dawson & Toohey JJ); subsequently applied by the High Court in Bull v The Queen (2000) 110 A Crim R 562 and in other jurisdictions. See for example R v Matthews (1990) 58 SASR 19; R v Hytch (2000) 114 A Crim R 573; R v Andrews (2002) 220 LSJS 285.
[10] Walton v The Queen (1989) 166 CLR 283, 300-301, discussing Subramaniam v Public Prosecutor [1956] 1 WLR 965, 970.
Before turning to consider the application of these principles to the present proceeding, it is also worth noting the settled law with respect to the discretion vested in a trial judge to exclude otherwise admissible evidence on the basis that it is more prejudicial than it is probative. As observed by Gibbs J in Driscoll:[11]
Although as a matter of law a document is admissible against an accused person who has adopted it, that does not seem to me to be the end of the matter. It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused. The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused: see, e.g., R. v. Christie; Noor Mohamed v. The King; Harris v. Director of Public Prosecutions; and Kuruma v. The Queen.
[Footnotes omitted.]
Consideration – Carly’s complaint about sexual interference
[11] Driscoll v The Queen (1977) 137 CLR 517, 541.
It is convenient to note immediately that it was accepted by the defendant on appeal in the present proceeding, that the evidence of the complaint by Carly to Mrs Ryan about sexual interference by the defendant was admissible for the purposes identified by the Judge. The contention advanced at the hearing of the appeal was that the Judge should have exercised her discretion to exclude the evidence on the basis that its prejudicial effect outweighed its probative value for the reasons set out earlier.
The evidence of Mrs Ryan’s conversation with Carly was relevant, probative and as a consequence, admissible in the trial. It was led to enable the jury to understand Mrs Ryan’s state of mind and why she did what she did at that time. This evidence went to explain the context in which the email was sent by Mrs Ryan to the defendant, whom she understood to be “Shane”. That email in turn was relevant to explain and to put in context the email, which on the prosecution case, had been sent in response by the defendant to Mrs Ryan. It provided an explanation as to why Mrs Ryan would confiscate Carly’s mobile telephone and prevent her having internet contact with the defendant. The evidence was also led to enable the jury to understand Carly’s state of mind about the “Brandon” and “Shane” constructs and her conduct and behaviour.
On the prosecution case, the defendant used both the internet constructs “Brandon” and “Shane” in his internet and email contact with Carly. The jury were entitled to consider the evidence concerning the relationship between Carly and “Brandon”, and Carly and “Shane”, and the changing nature of those relationships.
The evidence of Mrs Ryan also provided context for the evidence as to motive. This evidence came from the defendant’s responding email in conjunction with statements made by the defendant to his fellow prisoners, Thomas and Smith. The evidence of Thomas and Smith is further addressed later in these reasons.
Had the evidence of complaint been excluded, the jury would have been left to speculate as to the reason for the responding email sent by the defendant. Additionally, the jury would have been left with an incomplete understanding of the defendant’s conversations with prisoners Thomas and Smith.[12]
[12] The evidence of Thomas, if accepted, would leave the jury understanding that the defendant was describing Carly as a “slut” and a “slut who deserved to die”. The evidence outlined above places Thomas' evidence in a context. Without that context, the jury would be left to speculate on this important issue.
On the prosecution case the defendant had a prurient interest in Carly. He was jealous of Carly’s contact with her former boyfriend. The defendant had a falling out with Mrs Ryan which led him to believe that he was exposed to a charge of sexual misconduct with a minor and this in turn led him to return to Adelaide in February 2007 following Carly’s birthday party in January 2007, seeking retribution, seeking to silence Carly and seeking to “fix her up”. The jury in assessing the prosecution case were entitled to do so with an awareness of the broader context. Part of that context, and a necessary part, was the evidence of Carly’s complaint to her mother. Absent that evidence, the jury would be left to speculate about a number of matters.
This Court in Karger[13] adopted the earlier referred to observations of the majority in Walton, when finding that evidence of conversations between a deceased and the witness was relevant, probative and admissible evidence. This Court went on to discuss directions that may be given to allay any prejudice that may arise:[14]
The conversations in this case are properly characterised as conduct on the part of the deceased. The relevant conduct was the fact of the conversations and included the recounting of conversations between the deceased and the appellant to third persons. The conduct permitted inferences to be drawn about her state of mind toward the appellant. The evidence of each conversation in its entirety was relevant, probative and admissible.
The evidence of the recounted conversations between the deceased and the appellant was not admissible to prove the truth of the contents of those conversations. The judge gave clear and explicit directions both generally and then with respect to each of the conversations. These directions were appropriate and adequate.
These observations indicate that the prejudicial nature of evidence of statements and other conduct of a deceased may be addressed by the Judge giving adequate directions against the jury making impermissible use of the impugned evidence.
[13] R v Karger (2002) 83 SASR 135.
[14] R v Karger (2002) 83 SASR 135, [85]-[86] (Gray J, with whom Doyle CJ and Prior J agreed); special leave to the High Court was subsequently refused: Karger v The Queen [2004] HCATrans 128.
The weighing exercise of the prejudicial effect of the evidence against its probative value was a matter within the discretion of the Judge. In a trial of the length and complexity as in the present proceeding, the Judge was in the best position to assess the value of the evidence in respect of the issues in the trial as against its prejudicial effect towards the defendant. Absent an error of approach or it being clear that the prejudicial effect outweighs the probative value of the evidence giving rise to a risk of a miscarriage of justice, this Court should not interfere with a discretionary decision of a Judge regarding an evidentiary matter.
As extracted above, the Judge directed the jury both at the time of the giving of the evidence and repeatedly during the summing up, of the limited use that could be made of the evidence of Carly’s complaint to Mrs Ryan. The Judge directed the jury in clear terms that this evidence was not and should not be treated as evidence of the truth of the complaint. There is no basis to suggest that the jury did not heed the Judge’s directions.
In the circumstances of the present proceeding, the Judge appropriately directed the jury about the use that could and could not be made of the evidence. The jury were directed, as noted above, that the evidence was not to be used to establish the truth of any of the facts asserted in the conversation. The jury were particularly directed that the evidence was only relevant to provide the context to the actions of Mrs Ryan following the alleged conversation and the state of mind of Carly. The detailed and repeated directions to this effect were, in my view, appropriate. Those directions removed any risk of prejudice to the defendant.
The Judge was entitled to exercise the discretion in the way she did. No error of principle was alleged or has been shown. There is no basis on which this Court should interfere with that discretion. There is no substance to the complaint.
Consideration – Mrs Ryan’s observations of Carly
There was a further complaint on appeal in regard to Mrs Ryan’s evidence about Carly’s complaint to her about the defendant. When the evidence was led, Mrs Ryan described Carly’s appearance, suggesting an upset demeanour. The Judge, when ruling that the evidence should not be excluded as a matter of discretion, gave directions that limited the extent of the evidence to the core facts of the complaint. At that time, the issue of Carly’s demeanour did not receive explicit attention. Counsel for the defendant complained that the admission of this evidence was not justified by the ruling of the Judge and that a direction should have been given to disregard this evidence entirely.
No error arises from the admission in evidence of Mrs Ryan’s observations of the demeanour of Carly, or Mrs Ryan’s response to those observations. The evidence was not excluded by any ruling of the Judge.
The observations were made by Mrs Ryan and did not involve hearsay. It might be expected that Mrs Ryan would have been concerned about her daughter’s demeanour and that this was part of the recounting of the context that led her to act in the way that she did. The evidence was relevant to provide the jury with a complete picture of the events. It provided context to the conversation between Carly and Mrs Ryan a short time after Carly’s birthday party, and had the capacity to assist the jury to understand why Mrs Ryan reacted in the way that she did in sending the email to the defendant.
On appeal, counsel for the defendant accepted that the evidence was admissible for the purposes for which it was admitted. The complaint rested on the contention that, as a matter of discretion, the evidence should have been excluded. No error in the exercise of the Judge’s discretion was identified. It was baldly asserted that the prejudicial effect of the evidence so outweighed its probative value, that this Court should conclude that the Judge’s discretion was improperly exercised.
There is no requirement that a specific direction should be given to a jury to address evidence of the demeanour of a person observed by a witness, or the reaction of that witness to that observation. It is to be observed that counsel for the defendant at trial made no request that the Judge direct the jury about the demeanour and response evidence.
The decision to admit the evidence was within the discretion of the Judge. The evidence was relevant, probative and admissible. No error of approach in the exercise of the Judge’s discretion occurred. The evidence had probative value, it provided context and coloured the conversation recounted by Mrs Ryan. The evidence, if accepted, would assist the jury to understand the subsequent actions of Mrs Ryan with respect to the confiscation of Carly’s mobile telephone and internet access, and was circumstantial evidence from which inferences could be drawn as to Carly’s state of mind. This complaint should be rejected.
Motive – Intention
It was submitted by the defendant that the Judge’s directions distinguishing between intention and motive were inadequate and amounted to a misdirection that would lead to a risk of a miscarriage of justice. Attention was drawn to the following observation of Kirby J in De Gruchy:[15]
Distinguishing between the usually essential ingredient of a criminal intention and a person's desire, purpose or motive will sometimes be important. But, as such, motive is rarely, if ever, an element of a criminal offence. Motive must not, therefore, be confused with intention. Motive may be "the reason that nudges the will and prods the mind to indulge the criminal intent". It may be the feeling that prompts the operation of the will, the ulterior object of the person willing. It generally has two evidential aspects. These will be the emotion that is supposed to have led to the act and the external fact that is the possible exciting cause of such emotion, but not identical with it.
[Footnotes omitted.]
[15] De Gruchy v The Queen (2002) 211 CLR 85, [51].
Evidence of motive, if probative, is admissible. Motive is to be distinguished from intent. Motive may be circumstantial evidence of the elements of the offence of murder, including the element of intent. Evidence of motive as an item of circumstantial evidence does not require proof beyond reasonable doubt unless it represents an indispensible step in the process of reasoning to guilt. In the present proceeding, the establishment of motive was not such an indispensible step.
In the present proceeding, the charge of murder could be established without any evidence of motive; the prosecution did not have to prove motive. However, it was the prosecution case that the defendant did have a motive and that motive was established by the evidence led at trial.
The prosecution led evidence from Thomas relevant to motive. The evidence of Thomas included the following:
Q. Were there any other occasions when [the defendant] spoke of Carly's death.
A.He said that he didn't mean it and, yeah, that's about it I think. He said - I don't know, he said later on that she deserved to die.
Q. Did he say why.
A.Yeah, this conversation happened out in a yard at the Remand Centre in yard 1. [The defendant] had just come back from an earlier court hearing and he said that Carly deserved to die because she was a little slut and, yeah.
Q. Did he say anything about Carly's mother in this conversation.
A.Yeah, he said that - because after he said that and I said 'Well, you know how can you say someone deserves to die' and he said you know, Carly's mum was going to charge [the defendant] with rape and basically she deserved to die because she was a little slut –
This evidence, if accepted by the jury, was capable of establishing a motive that Carly was killed because she was “a little slut” and that “Carly’s mum was going to charge [the defendant] with rape”.
The defence challenged Thomas’ evidence on the basis that he had presented false testimony with a view to minimising the punishment that he would receive for his own crimes. The defendant gave evidence concerning Thomas as follows:
Q.Did you ever say to Thomas that your motive was because her mother was going to have you charged with raping her.
A.That actually is a bit sticky. That came from something he read amongst the statements.
Q. Did you believe that you were going to be charged with a sexual offence.
A.Well, for a start it wouldn't be rape. Even if what had supposedly happened did happen, which it didn't, it wouldn't be rape, and - it never bothered me, Mr Vadasz, I never did anything. I had [one of Carly’s friends] in the room with me.
In the course of her summing up, the Judge provided clear, detailed and distinct directions with respect to the topics of intention and motive. In relation to intention, the Judge observed:
The third matter which the prosecution must prove beyond reasonable doubt – and I am still talking about one person – is when the act or acts which caused the death were carried out the person who did perform those acts did intend to kill the deceased or at the very least to cause grievous bodily harm. Here, on the prosecution case, the acts which caused Carly Ryan’s death were carried out with the intention of killing Carly Ryan and the prosecution have pointed to a combination of circumstances: the nature of her head injuries which, while not in themselves life threatening, may have contributed to disabling Carly Ryan; and the fact that she had in her oesophagus a quantity of sand which she must have swallowed; and the fact that the cause of her death was drowning and her body was found floating in the waters at Port Elliot that morning when it is not reasonably possible that her drowning was some kind of terrible accident.
On the other hand, [counsel for the defendant points] to the fact that Carly Ryan was under the influence of cannabis and possibly some other drug. She might have been assaulted by someone, perhaps, however the nature of her injuries was not life threatening, therefore they could not have been inflicted by someone intending to cause grievous bodily harm and it is reasonably possible that Carly Ryan may have fallen into the water after being assaulted without any intention to case grievous bodily harm or that she might have been swept out to sea by the high tide after falling.
Of course, if the accused intended to kill Carly Ryan that would, in those circumstances, make out this element of the charge. You may not have to go that far, just an intention to cause grievous bodily harm, that is really serious bodily harm, is enough if the other elements of murder have been proved.
Following this direction, and having dealt with other matters, the Judge addressed the topic of motive and informed the jury that it was not necessary for the prosecution to prove any particular motive to commit a crime:
As I have already mentioned, it is not necessary for the prosecution to prove any particular motive to commit a crime. However, the prosecution in this case have suggested that the motive of [the defendant] in travelling to Adelaide to kill Carly Ryan may be evident from the evidence you have heard about, of that email exchange between Sonya Ryan and the person she knew at that time as Shane…and also from the evidence of [DN]. In any event, whatever the motive the prosecution point to the evidence of [DN] as evidence that [the defendant] had an intention to kill Carly Ryan by the time he returned to Adelaide on that second trip on 15 or 16 February 2007.
Having reviewed much of the evidence in the trial, the Judge then returned to the question of intent and again directed the jury on that topic:
[Counsel for the defendant] acknowledged that the prosecution does not have to prove any motive, but he said here the absence of a motive is of great significance on the defence case. He said you must consider if the actions occurred which have denied, whether they occurred as a result of a mood swing or a rage on the part of [the defendant] without him intending to kill or cause grievous bodily harm. He said you cannot be satisfied that grievous bodily harm was caused.
…
I just pause here to clarify one aspect in case this causes you any concern. If you were to arrive at the position where you thought there was a reasonable possibility that Carly Ryan might have been assaulted by someone who’s intention at the time was either the murderous intent or the intent necessary to commit the crime of manslaughter – that is to carry out an assault by performing an unlawful and dangerous act in the sense I directed you about yesterday – if you thought she was assaulted by someone with either of those intents and left hurt on the beach, and then later she has either fallen into the water because she was hurt or disoriented or she was washed out on the tide, again because she was hurt and or semi-conscious, and she drowned, then in that event you would need to be satisfied in respect of the person who assaulted her, again with either or of the necessary guilty intents I have told you about, and left her in that condition, for that person who assaulted her with the necessary intent to be guilty of either murder or manslaughter you would need to be satisfied that the actions of the person who assaulted her and left her in that condition was a substantial cause of her ultimate death even though she died from drowning.
Now, on that scenario, I suggest you would have little difficulty in concluding that if Carly Ryan was assaulted by a person with the necessary guilty intent and left in a hurt state on the beach, and ultimately she drowned through one of those mechanisms posed, that the assault on the beach, caused by the person on the proviso they had the necessary intent at the time, would still be a substantial cause of her death even though she ultimately died from drowning. The reason I am only mentioning this is because that has been raised on the defence case as a possible scenario that you will have to consider and may consider as a reasonable possibility.
The clear directions of the Judge, as set out above, allow the conclusion that the jury would not have been in any doubt as to the distinction between motive and intention. There is no substance to this complaint.
Motive – the Onus of Proof
The defendant contended that having regard to the prominence placed on motive by the prosecution, the Judge erred by not directing the jury concerning motive.
Counsel placed particular reliance on the following observations of Kirby J in De Gruchy:[16]
The basic principle: The fundamental rule governing all judicial directions to a jury is that stated by this Court in Alford v Magee. The only law that it is necessary for the jury to know is so much "as must guide them to a decision on the real issue or issues in the case". The trial judge is obliged to decide what the real issues are and to tell the jury, in the light of that decision, what the relevant law is. The judge should explain the law "not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case".
…
In Australia, but not in England and some other countries, a rather strict approach is taken to the instruction that must be given about circumstantial evidence. The jury must be warned that the primary facts, from which an inference of guilt is to be drawn, must themselves be proved beyond reasonable doubt. The inference of guilt must be the only inference that is reasonably open on all the primary facts which the jury find to be established to the requisite standard of proof.
[Footnotes omitted.]
[16] De Gruchy v The Queen (2002) 211 CLR 85, [44], [47].
It is worth mentioning that in De Gruchy Kirby J went on to set out a number of general propositions with respect to directions to a jury concerning motive. Those propositions included the following:[17]
No general direction can be formulated to accommodate all the different circumstances that can arise. If any directions are given on the subject of motive, they should be brief because the consideration of the relevance of motive (or lack of it) is quintessentially a task for the jury, viewing questions about motive in the context of the evidence as a whole.
…
Where a motive of some kind is proved by the evidence, but it appears a trivial one, disproportionate to the crime alleged, it may be proper for the judge to draw such disproportion to the notice of the jury, in fairness to the accused, given that "[t]he stronger the motive the more influence it is likely to have [on the jury]". On the other hand, the judge may also point out that proportion in such matters will sometimes be absent. To reasonable and law abiding citizens many serious crimes appear to have been committed upon trivial motives, wholly disproportionate to the gravity of the wrong.
Where the prosecution has established strong evidence of a motive, it will often be necessary to warn the jury that they must look at all the circumstances of the case and not be unduly affected by the evidence that the accused had a motive to commit the crime. This is because of the fact that many who have powerful motives to offend never do so. Motivation is simply one item of the evidence in the case that may tend to show that a particular person committed an alleged act. The jury may therefore need to be reminded that allowance should be made for the fact that having a motive, and even expressing it, does not, as such, constitute proof of involvement in a crime.
[Footnotes omitted.]
[17] De Gruchy v The Queen (2002) 211 CLR 85, [57].
Counsel further contended that the Judge erred by not directing that the jury should be satisfied beyond reasonable doubt that the conversations between Carly and Mrs Ryan occurred, before they could be satisfied with respect to the motive of the defendant. It was submitted that the absence of such a direction resulted in a miscarriage of justice.
The often quoted remarks of Dawson J in Shepherd are pertinent:[18]
The judgments in Chamberlain do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts — individual items of evidence — proved beyond reasonable doubt. Still less does the case establish that a direction in those terms should be given to a jury. Of course, it is recognized in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. But to say as much is to do little more than state a truism. It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.
Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful.
[18] Shepherd v The Queen (1990) 170 CLR 573, 585.
In the circumstances, having regard to the directions given by the Judge as earlier extracted, the absence of further specific directions with respect to motive and intention did not undermine the summing up. The evidence of motive was but one item of circumstantial evidence and was not an indispensible step in the process of reasoning to guilt so as to require proof beyond reasonable doubt.[19] The remarks and propositions set out in the authorities extracted above do not suggest that the Judge’s approach in the present proceeding was either incorrect or inappropriate.
[19] R v Murphy (1985) 4 NSWLR 42, 58-60.
Exculpatory Statements
In a trial, a jury will decide a case on the evidence heard and presented in court. Normally, statements made out of court are not led as evidence. Exceptions to this norm have developed over time, following many years of debate. It has been accepted by authority that where a defendant’s out of court statement is tendered by the prosecution, both inculpatory as well as exculpatory parts of the statement are evidence before the jury. The rationale for this approach to what have been described as mixed statements is to be found in the principle of fairness. This exception to the hearsay rule developed in circumstances where defendants had not given sworn evidence in support of the defence and where the exculpatory portion of a statement was being advanced as the substantive defence. Generally there had been no other defence case.
The question of the admissibility of mixed out of court statements made by a defendant has been the subject of considerable discussion in the authorities, both in the United Kingdom and Australia.[20] It is now settled that exculpatory portions of a mixed statement of a defendant led by the prosecution are admissible and may be relied upon as evidence by the defence even though they are not sworn testimony.
[20] Mule v The Queen (2005) 79 ALJR 1573; R v Golding (2008) 100 SASR 216 (Doyle CJ, Gray and David JJ); R v Duncan (1981) 73 Cr App R 359; R v Sharp [1988] 1 WLR 7; Spence v Demasi (1988) 48 SASR 536; R v Aziz [1996] AC 41; Mahmood v Western Australia (2008) 232 CLR 397.
In the present proceeding, so-called exculpatory portions of the statements made by the defendant to his fellow remand prisoners, Thomas and Smith, were admitted and received in evidence.
An unusual feature of the present proceeding was that the defendant did not accept that he had made the so-called exculpatory portion of the mixed statements. To the contrary, the defence, through the sworn evidence of the defendant, eschewed any reliance on the so-called exculpatory statements. The defendant denied that he made the alleged statements to Thomas and Smith. My review of the authorities does not disclose any principle requiring a Judge in these circumstances to direct a jury that they might proceed to act on the out of court statement said to be exculpatory, contrary to the sworn evidence of the defendant and the defence case.
It was complained on appeal that the Judge was in error in not directing the jury that they were permitted to use so-called exculpatory statements made by the defendant to Thomas and Smith, as positive evidence pointing towards a lack of intention on the part of the defendant to kill Carly.
Thomas and Smith were called as prosecution witnesses. Thomas gave evidence that the defendant had said about Carly’s death that “he didn’t mean to do it”. Thomas gave evidence that during another conversation with the defendant he said: “We did it” and then he said “I didn't mean to kill her”.
Smith gave evidence that the defendant had told him that when Carly changed her mind about returning with him to Melbourne, he was upset, and that he and Carly had argued about it. Smith gave evidence that the defendant had told him that he had tried to convince Carly to return with him to Melbourne, and that “things got out of hand”.
The Judge gave general directions about the use of evidence in the trial and directed the jury that the evidence of Thomas and Smith formed part of the evidence in the trial.
The prosecution case was presented on alternative bases - that the defendant had the specific intent to kill Carly, or alternatively, that he intended to cause her grievous bodily harm. The Judge in summing up addressed this issue as follows:
The third matter which the prosecution must prove beyond reasonable doubt is that the act or acts which cause the death were done with a particular guilty mind. That is, either that the accused intended to kill the deceased or to cause her grievous bodily harm. Grievous bodily harm means really serious bodily harm. This intention to either kill or cause grievous bodily harm must exist at the time of the act or acts which caused the death.
So, in other words, the accused must have the intention to kill or cause grievous bodily harm at the time when he carried out the acts which caused the death.
It is to be observed that none of the so-called exculpatory statements made to Thomas and Smith sought to deny an intent on the part of the defendant to cause grievous bodily harm.
As earlier mentioned, the mixed statement exception to the hearsay rule developed and has been applied in circumstances where defendants have not given sworn evidence in support of their defence. Further, this principle has been applied in circumstances where the exculpatory portion of the relevant statement was advanced as a substantive defence; generally, there was no other defence case. In the present proceeding a different situation arose. The defendant had made out of court statements, first to his son, DN, and later when in custody on remand, to his two fellow prisoners. The statements contained admissions and were tendered as part of the prosecution case. It was said that the statements to the fellow prisoners were mixed and included exculpatory portions. The statements in their entirety were tendered.
At trial, the defendant denied having made any admission that he had anything to do with Carly’s death. The defendant gave sworn evidence in which he denied being on the beach at the relevant time, denied any assault of Carly and denied any involvement in the death of Carly. This testimony was directly inconsistent with the evidence of Thomas and Smith.
The so-called exculpatory statements were inextricably linked to the defendant being present on the beach at Port Elliot and having assaulted Carly. As a consequence, the so-called exculpatory statements were directly inconsistent with the defence being presented at trial.
The statements, including the so-called exculpatory statements, if accepted by the jury as having been said, were in the nature of prior inconsistent statements given by the defendant out of court. A reference to this inconsistency by the Judge would have highlighted the prior inconsistent statements and would be directly at odds with both the defence case and the evidence given by the defendant at trial.
The High Court in Mule made the following pertinent observations which touched on the difficulties that may arise when trying to discern the difference between inculpatory and exculpatory parts of a statement:[21]
As has been noted, many cases involving evidence of out of court "mixed" statements by an accused person are more complex than the present. In R v Cox, Thomas J rightly cautioned against inappropriate generalisations concerning the difference between inculpatory and exculpatory parts of a statement: a difference that in some cases (not including the present) might be difficult to discern. He said, in a passage quoted by McLure J in her reasons:
"With respect, it seems to me to be undesirable that juries be given general a priori directions as to what sorts of evidence are likely to be true, or as to the weight which should be accorded to different parts of the one statement. The matter of weight is for them, and the weight of each part of the statement should be determined in the light of the whole of the evidence. There is, of course, no reason why the trial judge should not point out that such statements have not been made on oath and (where appropriate) that they have not been tested by cross-examination. He may explain the traditional reasons why admissions against interest are commonly regarded as reliable evidence, and make any appropriate comments about particular parts of the evidence. The weight which may fairly be accorded to a self-serving statement varies so much from case to case that it is unwise to lay down any general disparaging directions concerning such statements, although of course, critical comments may be made in appropriate cases. (Emphasis added.)"
Apart from the words emphasised in that passage, it is a sound guide to jury direction. In view of the long-standing controversies about why admissions are received, and in view of the fact that an admission need not have been against interest at the time it was made, it is undesirable to direct juries along the lines suggested by the words emphasised.
[Original emphasis. Footnotes omitted.]
[21] Mule v The Queen (2005) 79 ALJR 1573, [23].
The Judge later warned the jury against any improper use of the evidence of Sonya Ryan about the email in this way:
The evidence of what Carly Ryan said to her mother about what happened during Shane’s first visit again, as I have said, it is not placed before you to prove the truth of what Carly Ryan told her mother happened. Namely, it is not put forward to establish the truth of the allegation that Shane did touch her inappropriately but rather it is put before you to explain why Mrs Ryan then sent an email in the terms she said she did and for you to understand the context in which she said she received email P44. Now, the accused Mr Gary Newman has admitted sending some kind of response to Mrs Ryan but he denies specifically sending that particular email, nevertheless it is a matter and just one item of circumstantial evidence for you to consider. If you do accept that the accused sent that email or a very similar email as he has admitted then that is just another item of circumstantial evidence from which you may draw inferences in due course concerning what the accused’s state of mind was on the second trip to Adelaide and, indeed, why he went to Adelaide for a second trip. But you cannot use anything that Carly Ryan said to her mother which gave rise to that email being sent to establish the truth of the allegations made by Carly Ryan in that conversation.
If I were to accept that the evidence was properly admitted that warning was, in my view, sufficient. However, it is to be observed, again, that the “state of mind” which might be inferred from the email evidence was not identified.
It is, I think, also a relevant consideration that the appellant was charged with the most serious of all offences. I acknowledge that the circumstance does not add to the prejudice; that lies only in the extent to which the hearsay account was calculated to impair the rational and dispassionate evaluation of the evidence. However, as a matter of legal policy, there is, in my view, less room for the admission of evidence which has a gravely prejudicial effect in a trial on a charge of murder than in other matters.
If the discretion were mine to exercise I would have excluded the evidence.
Even though I take the view that the evidence should not have been admitted it is quite another thing to hold that the discretion of the Judge miscarried. I doubt that the traditional characterisation of the function of determining whether to exclude probative evidence because of its prejudicial effect as a discretion is apt. The power to exclude is probably best explained by the enactment of the miscarriage of justice appeal ground.[37] During the 19th centuries, judges adopted the practice of urging prosecutors not to lead gravely prejudicial material. After the enactment of the modern form criminal appeal provisions, that practice was transformed into a power to exclude such material in order to safeguard against the quashing of a conviction on the ground that there had been a miscarriage of justice.[38] It is preferable, in my respectful opinion, to regard the power as one calling for an evaluative judgment[39] rather than a discretionary power to dispense with the rules of evidence. The former approach requires recognition of the 19th century rule of practice as a rule of law, which excludes evidence when its prejudicial effect overwhelms its slight probative value. The practical consequence of characterising the judge’s function as an evaluative judgment and not a discretion is to increase the level of appellate supervision of the power. That consequence is consistent with contemporary expectations of the administration of criminal justice and avoids the heretical notion that a common law judge should have a power to dispense with the very law he or she is charged to administer.[40]
[37] In McDemott v The King (1948) 76 CLR 501 at 513. Dixon J thought that the development of the unfairness discretion may, in part, be due to the existence of the miscarriage of justice ground.
[38] Cf R v Christie (1914) Cr App R 141.
[39] Cf Lexis Nexis, Cross on Evidence, vol 1, at [11120].
[40] R v The Inhabitants of Eriswell (1790) 3 TR 707 at 714: 100 ER 815; R v Cargill [1913] 2 KB 271; R v Christie (1914) 10 Cr App R 141 at 149 (comment in the course of the hearing by Lord Halsbury, who did not deliver a judgment).
Be that as it may, I will proceed as if the power is a true discretion. I acknowledge the advantage enjoyed by the Judge in assessing the probative value and prejudicial effect of the evidence in its proper context. The judgments of the Judge and the majority of this Court as to where the balance lies weigh heavily with me. Nonetheless, and with much diffidence, I have concluded that the discretion, in the circumstances of this case, could only properly be exercised to exclude the evidence.
However, for reasons which appear in paragraphs [176]-[180] below, I am satisfied that there has not been a substantial miscarriage of justice.
Use of exculpatory statements
The prosecution called two witnesses who had spent time in custody with the appellant while he was on remand awaiting trial. Those witnesses testified as to conversations with the appellant which the prosecution contended, constituted admissions by him to his criminal involvement in the death of Carly Ryan. One of those witnesses, Noel Thomas, testified that in one such conversation the appellant said “we did it” and then later said “I didn’t mean to kill her”. Another prisoner, Steven Smith, testified that the appellant confided in him that he and his son had argued with Carly Ryan about whether she should stay in South Australia with her family or travel to Victoria with them. According to Mr Smith, the appellant told him that he became upset when Carly Ryan changed her mind about whether to leave with them. The appellant went on to tell Mr Smith that he and his son tried to convince Carly Ryan to travel to Victoria and things got out of hand.
Notwithstanding the appellant’s testimonial denials that he had assaulted Carly Ryan on the beach, his counsel, relying on the statements to which I have referred, put an alternative defence to the jury. In the course of his address, counsel for the appellant told the jury that the central issue was whether he caused the death of Carly Ryan in circumstances amounting to murder or manslaughter. He then made submissions on the premise that the jury found, contrary to the appellant’s testimony, that the appellant was on the beach at the relevant time. The appellant’s counsel said:
I’m not saying for a moment you should find that but if you go down that path and you reach that conclusion, then I’m addressing you on that basis. … It strikes me that evidence of Gary Newman’s state of mind and his intentions or his intent comes only from three sources and that’s [DN], Steven Smith and Noel Thomas. …
The appellant’s counsel then referred to Mr Smith’s evidence that the appellant had admitted that things got out of hand when Carly Ryan had changed her mind about going to Melbourne. The appellant’s counsel submitted that that explanation for Carly Ryan’s death was inconsistent with a premeditated plan formed before the appellant came to South Australia to kill her. The appellant’s counsel also referred to the evidence of Noel Thomas that the appellant had said “I didn’t mean to kill her”, and submitted:
It’s up to you if you find these words were said or not. If you find they were said and you find that they were the truth then where does it leave you on the question of murder or manslaughter – an intention is required to make out a charge of murder. Those, words I suggest, are indicative of manslaughter, indicative of the state of mind on the part of the accused that should, quite properly, leave open to you a verdict of manslaughter. They negate any suggestion of prior intention.
The Judge directed the jury that the testimonies of Smith and Thomas were part of “the case against” the appellant but were not capable of being used against his son. In the course of summarising the evidence the Judge referred to the passages from the evidence of both witnesses. However, the Judge did not expressly tell the jury that in so far as the appellant’s prison statements were exculpatory of any intention to kill they could use that evidence in his favour.
It is, in my respectful opinion, well settled that the exculpatory parts of a statement against interest made by the accused and put into evidence by the prosecution can be used as evidence in the case.[41]
[41] Mule v The Queen (2005) 79 ALJR 1573.
In possibly the earliest statement on the topic, Parke J said in R v Higgins:[42]
In this case the prosecutor has given evidence of what the prisoner said before the Magistrate. Now, what a prisoner says is not evidence, unless the prosecutor chooses to make it so, by using it as a part of his case against the prisoner; however, if the prosecutor makes the prisoner’s declaration evidence, it then becomes evidence for the prisoner, as well as against him…[43]
[42] (1829) 3 Car & P 603; 172 ER 565.
[43] R v Higgins (1829) 3 Car & P 603 at 604; 172 ER 565 at 565.
In Western Australia, in Middleton v The Queen,[44] Pidgeon J stated the rule in these terms:
The general rule in the case of a mixed statement is that the whole of the confession must be given in evidence, including parts favourable to the accused person: R v Higgins, Phipson on Evidence, Cross on Evidence. This was referred to recently by this Court in M H v The Queen and in Wace v The Queen. The rule thus expressed goes no further than saying that if it is the wish of the prosecution to tender the admissions, then the prosecution must tender the whole statement.[45] (Citations omitted).
[44] (1998) 19 WAR 179.
[45] (1998) 19 WAR 179 at 182.
In Spence v Demasi,[46] an action for damages arising out of a motor vehicle accident in which the plaintiff tendered a record of interview of the defendant by the police which contained both admissions and denials, Cox J stated the rule in this way:
The rule against hearsay evidence usually operates to prevent a party from tendering his self-serving statements made out of court in proof of the truth of the matters so asserted. The problem comes with mixed statements, tendered by an opponent, containing admissions against the party making them and also exculpatory statements, whether relating to the admissions or on other relevant topics. The position in the criminal court, I think, is clear. It is common for the Crown to tender a record of the accused’s interrogation by the police, and often this will contain a mixture of admissions and self-serving statements. The Crown cannot pick and choose. It cannot put in only the damaging questions and answers, or have the admissions treated as evidence and the rest rejected or ignored as hearsay.[47]
[46] (1988) 48 SASR 536.
[47] Spence v Demasi (1988) 48 SASR 536 at 540 per Cox J.
In my view, the preferable rationale for the principle is that it would be inconsistent and, in that sense unfair, to accord inculpatory unsworn statements tendered by the prosecution sufficient inherent reliability to justify their admission, but to deny the admissibility of exculpatory statements made on the same occasion.
In R v Weetra[48] the appellant appealed on the ground that the failure of the Judge in that case to direct the jury on the use of the exculpatory parts of admissions made by an accused resulted in a miscarriage of justice. Peek J rejected the prosecution submission that a modern jury would know that they may treat exculpatory statements in favour of an accused thus alleviating the need for a direction.[49] Peek J identified the requirement to direct a jury about the use of exculpatory material “as a matter of principle”.[50] His Honour held that the nature and extent of the exculpatory material will largely determine whether the failure to direct resulted in a miscarriage of justice.[51] In Weetra[52] the Court allowed the appeal on that ground without considering whether the failure to direct the jury was an error of law. I accept that this issue is commonly approached by asking whether there has been a miscarriage of justice.[53]
[48] R v Weetra (2010)108 SASR 232.
[49] R v Weetra (2010)108 SASR 232 at [75].
[50] R v Weetra (2010)108 SASR 232 at [81].
[51] R v Weetra (2010)108 SASR 232 at [94] – [96].
[52] (2010)108 SASR 232.
[53] M v The Queen (1994) 62 SASR 364.
However, I would approach the question differently. In my view, a judge has an obligation in law to direct a jury on the permissible use of the evidence placed before it. The obligation is not an onerous one. Judges explain the use of eyewitness testimony, documents, admissions, expert evidence and circumstantial evidence as a matter of course. Juries are also routinely warned about hearsay and the permissible and impermissible uses of a range of evidential material. In my view, the invariable practice of judges in this regard reflects the fundamental responsibility of judges to direct juries on the rules of evidence which apply to the evidence placed before them.
The proposition that it is an error of law to fail to direct the jury of the evidential value of the exculpatory part of admissions is in my view supported by analogy with the position that was taken with respect to unsworn statements. In Sorgenfrie v The Queen[54] the court held, after surveying the authorities on the then controversial question of the status of such statements, that those statements were probative material. The court held that trial judges were bound in law to direct juries to that effect.
[54] (1981) 51 FLR 147 at 168.
Bowen CJ and Fisher J linked that obligation in law to the obligation to direct on the onus of proof. In a joint judgment, their Honours said:
Because all reasonable doubts are to be resolved in favour of the appellant it is essential to ensure that the jury understands that the statement is ‘evidence’; albeit not sworn evidence, and as such forms part of the probative material capable of raising such a doubt. We agree with the conclusion that Smithers J has reached that there was a misdirection, which misdirection is a misdirection in law.[55] (Emphasis added).
[55] Sorgenfrie v The Queen (1980-81) 51 FLR 147 at 157.
Smithers J said:
Having regard to the foregoing it is my opinion that in the trial in the Australian Capital Territory of the offences for which the appellant was tried it was necessary that the jury should be directed that statements of fact in the appellant’s unsworn statement were to be considered as evidence of the facts stated and given such weight, alongside the other evidence, as the jury might, in all the circumstances and having regard to its inherent ‘infirmities’, consider it to be entitled. Whether any such statements would be believed would of course depend on whether it was in itself regarded as credible by the jury, and whether although otherwise credible it might be contradicted by other evidence more credible.[56]
[56] Sorgenfrie v The Queen (1980-81) 51 FLR 147 at 168-9.
The passages I have just cited followed an extensive survey of the authorities in which the controversy over the evidential nature of unsworn statements developed. It being accepted that the exculpatory parts of mixed admissions are indeed evidence, it follows that Sorgenfrie[57] is persuasive authority for the proposition that there is an obligation in law to direct juries that the exculpatory part of a mixed statement is evidence on which they can act. If it is accepted that there is such a rule of law, problematic questions like the “presumed knowledge of juries” discussed by Peek J in Weetra[58] are avoided and the substantive soundness of the conviction addressed by reference to the proviso.
[57] (1980-81) 51 FLR 147.
[58] (2010)108 SASR 232 at [79] – [83].
I acknowledge that practical difficulties might arise where the statement of the accused is exculpatory because it raises a defence which is different, if not inconsistent, with the defence pursued at trial. Similar practical difficulties do not negate the obligation of a trial judge to leave an inconsistent defence, like provocation, where there is an evidential basis for such a verdict. It may be that the obligation in law to direct on the use of the evidence is subject to some modification in cases where, for example, its use is obvious as in the case of direct eye witness testimony, or where its use is clearly denounced by the accused. However, in this case the use was not obvious. Nor was it disavowed by the appellant: his counsel expressly called it in aid in his closing address.
In my view, it was an error of law to direct the jury that the testimony of the appellant’s fellow inmates was part of the case against him, by way of exception to the hearsay rule, without also directing the jury that they could use the exculpatory parts of the statement, by reason of a related exception to the hearsay rule in his favour. It therefore becomes necessary to consider the application of the proviso. Before turning to that question it is convenient to comment on the weight of the exculpatory parts of the prison statements to which I have referred.
The exculpatory statements were probative only on the issue of the appellant’s intention. On that issue and in the circumstances of this case their probative value was negligible. Not only were they obviously self serving but they were inconsistent with the very defence put forward by the appellant in his testimony. Indeed, the statement allegedly made to Mr Smith is hardly exculpatory at all; the reference to things “getting out of hand” is equally, if not more, consistent with guilt. These observations undermine the weight of the evidence and they would be relevant considerations if the question were whether the failure to mention the use of the exculpatory statement resulted in a miscarriage of justice. However, they are irrelevant considerations if it is accepted, as I have held, that judges have an obligation in law to direct juries on the lawful use of the exculpatory parts of mixed out of court statements made by an accused.
Other grounds
I respectfully agree with the conclusions and reasons of Gray J on the ground which relied on the irregularity with respect to s 21 of the Evidence Act 1929 (SA). I also agree with the conclusions of Gray J on the grounds alleging failure to properly direct on motive and intention.
No substantial miscarriage
In my view, there has not been a substantial miscarriage of justice. The evidence that the appellant had an intention to kill or cause really serious injury was overwhelming. That conclusion can safely be made in this case on the basis of the transcript alone because proof of the accused’s intention does not turn on an assessment of the relative credibility of witnesses. In his testimony the appellant denied assaulting Carly Ryan at all. After the verdict the appellant changed his account, and he has now admitted, through the sentencing submissions of his counsel, that he in some way assaulted Carly Ryan shortly before her death. Quite properly, counsel for the Director of Public Prosecutions did not challenge the explanation of the sentencing submissions given by counsel for the appellant. Nonetheless, it follows, from the appellant’s choice to falsely deny any involvement in Carly Ryan’s death, that no question of his credibility arises in assessing the evidence on the question of intention; the jury obviously rejected his testimony that he did not assault her.
It also follows from the appellant’s later admission to assaulting Carly Ryan, that this Court need not concern itself with the possibility that the wrongful admission of the evidence of the email may have wrongly influenced the jury to reject his testimony that he played no part in the events which led to her death.
Because my view that there has been error is a minority one, I need only summarise the evidence which, to my mind, proves the appellant’s intention to kill or cause really serious injury. It is largely a combination of the evidence of the appellant’s prurient interest in Carly Ryan and the pathologist’s evidence of the injuries she had suffered before her death. In the opinion of the pathologist, Dr Cala, a minimum of six blows were struck to Ms Ryan’s head with a fist, but some injuries must have been caused by a blunt instrument other than a fist. There was also bruising to Ms Ryan’s right arm and shoulder. A significant amount of sand was found in Carly Ryan’s oesophagus. The sand was probably ingested in an attempt to make space to breathe while someone held her face down on the sand. That evidence strongly supports a finding that the appellant intended to cause, at the very least, grievous bodily harm.
I observe also that the evidence was that there was a distance of up to 15 metres between the high tide mark recorded on 19 and 20 February 2007 and the area of apparent struggle on the beach at Horseshoe Bay. Even though wave activity may push the water a little further up the beach, there was no evidence that it had significantly reduced that distance. That evidence supports the inference that Carly Ryan was either moved to or left in a position on, or very near to, the waters edge during or after the assault on her. That evidence leaves me in no doubt that the appellant’s assault on Carly Ryan was the cause of her death. It also reinforces the conclusion I have reached about the appellant’s intention.
In addition to that evidence, and of great significance, is the evidence that the tip of a latex glove with the appellant’s DNA was found at the murder scene. The appellant admitted that he kept latex gloves in his car. That evidence is strongly probative of an intent to kill. The appellant’s explanation for the discovery of the tip of the glove, that Carly Ryan herself must have taken a glove down to the beach on the night that she died, is fanciful. The only evidence which suggests that the appellant assaulted Carly Ryan without an intention to kill her is found in the exculpatory statements made by him to other prisoners while he was remanded in custody. The probative value of those statements is, as I have already explained, very weak. On the strength of the evidence of the nature and circumstances of the assault and the evidence of the glove, I am left in no doubt that the appellant intended to kill, or cause grievous bodily harm to, Carly Ryan.
For the above reasons there has not been a substantial miscarriage of justice. I would apply the proviso and dismiss the appeal.
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