R v Newman

Case [2011] SASCFC 36

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…

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AGLC
R v Newman [2011] SASCFC 36
Case
[2011] SASCFC 36
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for murder, where the prosecution's case was that the appellant had assaulted the victim with murderous intent and left her to drown, having cultivated a relationship with her through fictitious online personas. The defence maintained the appellant had no involvement in the victim's death. The appeal raised several grounds, including complaints about the admission and directions concerning evidence given by the victim's mother, the distinction between motive and intention in the judge's directions, and the handling of mixed statements made by the appellant to fellow prisoners. Further grounds related to alleged failures to comply with section 21 of the *Evidence Act 1929* (SA) and the admission of opinion evidence from the appellant's son. The appeal was heard by Gray, White, and Kourakis JJ.

The central legal issues before the court were whether the trial judge erred in admitting certain evidence from the victim's mother and in failing to adequately distinguish between motive and intention in the jury directions. The court was also required to consider whether the judge erred in failing to direct the jury on the use of mixed statements made by the appellant to prisoners, and whether any of these issues, or the admission of opinion evidence, resulted in a miscarriage of justice, rendering the verdict unsafe and unsatisfactory. The court also considered the significance of admissions made by counsel at sentencing submissions after the trial but before the appeal hearing.

The court's reasoning focused on the admissibility and use of hearsay evidence, particularly statements made by the deceased victim. The judge had repeatedly directed the jury that statements made by the victim to her mother were not to be used for the truth of their contents, but rather to explain the mother's subsequent actions, such as sending an email to the appellant. The judge emphasised that these statements were only relevant as circumstantial evidence to assist in understanding the victim's actions and the appellant's state of mind. The court considered whether these directions adequately distinguished between the permissible and impermissible uses of the evidence, and whether the jury could have been misled. The court also examined the judge's directions regarding the appellant's mixed statements to prisoners, noting the importance of instructing the jury on how to approach such evidence, which contains both incriminating and exculpatory elements.

The court ultimately found that the trial judge's directions regarding the victim's statements to her mother were repetitive and potentially confusing, despite the judge's attempts to clarify their limited purpose. The court held that the judge had failed to adequately distinguish between the use of the statements to explain the mother's conduct and their potential use as proof of the facts asserted within them. This, combined with other directions, created a significant risk that the jury might have used the victim's statements to establish the truth of the appellant's alleged conduct, thereby leading to a miscarriage of justice. Consequently, the court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders

Orders of the court

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Background

Background to the litigation

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 hellscommando@hotmail.com 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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