R v NGUYEN

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NGUYEN
[2018] SASCFC 87
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Blue)
21 August 2018
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Application for permission to appeal against convictions by jury for aggravated serious criminal trespass in a place of residence and aggravated robbery of a mobile telephone and cash in the amount of $315.
The issue at trial was identity. The prosecution case relied on the evidence of two eyewitnesses, Mr Robinson and Ms McDermott, who were cross-examined on what were suggested to be prior inconsistent statements given to police on the day of the robbery and at a previous trial. The Judge directed the jury that they should consider the extent to which the making of the prior inconsistent statements affected the credibility and reliability of Mr Robinson and Ms McDermott and explained a process they might adopt in evaluating their testimony against the prior inconsistent statements. After the jury, having been deliberating for four and a half hours, sent a note informing the Judge that they did not ‘consider’ that they could ‘reach a decision’. The Judge directed the jury to resume its deliberation the following morning.
The applicant seeks permission to appeal on the ground that the Judge misdirected the jury in relation to the prior inconsistent statements of Mr Robinson and Ms McDermott. The applicant also contends that the deliberation direction placed undue pressure on the jury.
Held, per Kourakis CJ (Kelly and Blue JJ agreeing), granting permission to appeal on the first ground, refusing permission on the second ground, and dismissing the appeal:
1. While some aspects of the Judge’s direction on prior inconsistent evidence could have been better expressed, the irregularities contended for by the applicant could not possibly have caused a miscarriage of justice (at [38]-[44]).
2. In all of the circumstances, including the open textured terms of the Judge’s explanation for giving the deliberation direction, there is no reason to think that it put the jury under unacceptable pressure (at [45]-[46]).
Criminal Law Consolidation Act 1935 (SA) s 137(1), s 170(1), referred to.
Black v The Queen (1993) 179 CLR 44, considered.

R v NGUYEN
[2018] SASCFC 87
Court of Criminal Appeal: Kourakis CJ, Kelly and Blue JJ

KOURAKIS CJ: This is an application for permission to appeal against convictions for aggravated serious criminal trespass in a place of residence[1] and aggravated robbery[2] of a mobile telephone and cash in the amount of $315.
[1] Contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA).
The principal evidence against the applicant was the testimony of a victim, Mr Tyler Robinson, who was a resident of the house in Prospect and his friend, and visitor to the house, Ms Telisha McDermott. Their evidence was that, at about 8.00 am on 30 June 2014, the applicant and another man forced their way into their home. One of the intruders was armed with a sawn-off rifle. Mr Robinson and Ms McDermott were detained in a room at the rear of the residence whilst the intruders concentrated their attention on another resident of the house, Mr Johnny Lam. The intruders left hurriedly when police arrived and announced their presence at the front door of the house at about 8.30 am. Mr Robinson and Ms McDermott testified that the intruders had concealed their faces. Mr Robinson described them as wearing hooded jumpers with the hoods pulled up, bandanas and sunglasses. However, they both testified that, at some point during their presence in the house, one of the intruders removed his disguise.
About three months after the offending Mr Robinson positively identified the applicant as that person from a folder of photographs. On the same day, Ms McDermott also participated in a photographic identification procedure and told police that she was ‘80 per cent sure’ that a photo of the applicant showed the intruder.
Mr Robinson did not mention to the police, who took a statement from him on the morning of the offence, that one of the robbers had removed his disguise. Indeed, Mr Robinson told the police that he would not recognise either of the robbers. Ms McDermott did not tell police that there were two robbers, speaking only of a single offender. Ms McDermott also told police that she would not be able to recognise the offender again. Ms McDermott testified that she observed the man she identified for ‘maybe 10 – 20 seconds’ whereas in an earlier trial she had testified that she had only a ‘glimpse’ of the robber for about ‘five – 10 seconds’.
The Judge directed the jury that it should consider the extent to which the making of the prior inconsistent statements affected the credibility and reliability of Mr Robinson and Ms McDermott and explained a process they might adopt in evaluating their testimony against the prior inconsistent statement.
The applicant seeks permission to appeal on the ground that the Judge misdirected the jury on the significance of prior inconsistent statements of Mr Robinson and Ms McDermott.
I would grant permission to appeal on that ground but dismiss it. I accept that some aspects of the Judge’s directions could have been better expressed, but the irregularities contended for by the applicant could not possibly have caused a miscarriage of justice.
The jury was asked to retire and commenced deliberations at 12.27 pm on 13 February 2017. At about 5.00 pm, the jury sent a note informing the Judge that it did not ‘consider’ that it could ‘reach a decision’. The note was disclosed to counsel. Counsel for the applicant did not request that the jury be discharged. The Judge directed the jury to resume its deliberations the following morning. The applicant contends that that direction placed undue pressure on the jury. I would refuse permission to appeal on this ground. The jury had been deliberating for only a little over four hours. In all of the circumstances, including the open textured terms of the Judge’s explanation for giving the direction, there is no reason to think that the direction put the jury under unacceptable pressure.
I elaborate on my reasons below.
The evidence
Mr Robinson testified that the residents of the house at Prospect on the day of the robbery were himself, Mr Colin Trowbridge, Mr Graham Hall, and Mr Lam, the last of whom had started living in the house several months before the robbery. On the night before the robbery, Ms McDermott visited Mr Robinson. They watched television and smoked some cannabis. At the time, Mr Lam was in his bedroom with his girlfriend. Mr Robinson retired to his room to sleep at about 11.00 pm leaving Ms McDermott to sleep on the couch in the lounge room at the back of the house.
At about 8.00 am, Mr Robinson was awoken by banging on the front door of the house. Looking through the door of his room he saw two men standing near the front door next to Mr Lam. The men had bandanas over their faces, and were wearing hoodies, sunglasses, gloves and long pants. Mr Robinson retreated back into his bedroom.
Minutes later, Mr Lam called Mr Robinson out of his room. He then saw that one of the intruders was carrying a .22 rifle which had been sawn off and resembled a pistol. The intruders showed Mr Robinson into the lounge room at the back of the house. There the men accused Mr Lam of not repaying a debt he owed them. At Mr Lam’s suggestion, he and the armed intruder moved to the front of the house where they remained for about 20 minutes. The other intruder stayed within sight of Mr Robinson and Ms McDermott. Not surprisingly both Ms McDermott and Mr Robinson were very scared. Ms McDermott was shaking uncontrollably. They smoked some cannabis to calm their nerves.
Mr Robinson testified that when Mr Lam and the armed intruder returned, the armed intruder had taken off his bandana and sunglasses. He could see his face clearly. He watched the gunman for five to 10 minutes. During the course of the incident, Mr Robinson observed the other intruder looking at his phone. After the intruders had left, Mr Robinson noticed that his phone and wallet had gone. Both intruders left over the back fence.
Mr Robinson was cross-examined about a statement he gave to the police on the morning of the robbery. He explained that he was questioned while sitting in the back of a police car, and that a police officer wrote down his questions and Mr Robinson’s answers as he spoke to him. Mr Robinson testified that at the time he was still in shock and shaken and he was reluctant to give a statement. He was eventually approached by another police officer, Constable William Walker. He gave him a statement at about 9.28 am. In cross-examination, it was put to Mr Robinson that he did not tell Constable Walker that either of the intruders had removed his disguise. Mr Robinson responded ‘That’s right, because it was a traumatic experience where I needed to get my head together and I was quite distraught from it’. Mr Robinson also agreed that he told Constable Walker that he would not recognise either of the intruders if he were to see them again. Mr Robinson explained that he answered in that way because he was ‘quite scared’.
It was put to Mr Robinson, but denied by him, that towards the end of the day of the robbery, Mr Lam showed him photos of the applicant on Facebook. It was also put to Mr Robinson that Mr Lam offered to waive a drug debt he owed to Mr Lam. Mr Robinson denied that he took drugs or had a drug debt.
Ms McDermott testified that she stayed over at Mr Robinson’s house on the night before the robbery. She slept in the lounge room at the back of the house. She was woken up by Mr Robinson’s dogs and saw two intruders in the house. She described them as being covered in dark clothing. She could not see the men’s faces because they were covered with bandanas of some sort. She thought that they were wearing sunglasses, but was not sure.
Ms McDermott testified that she and Mr Robinson were told to stay in the lounge room while Mr Lam and one of the intruders went to the front of the house. The other intruder kept watch over them, standing between the meals area and lounge room of the house. She testified that she and Mr Robinson had some cannabis to calm themselves. Some time later Mr Lam was walked down the hallway by the other intruder and brought to his knees in the lounge room area. When he was on his knees, the men spoke to Mr Lam about a debt. Ms McDermott testified that one of the intruders took off his facial covering but she could not remember whether it was the intruder who had kept watch over her or the man who had gone to the front of the house with Mr Lam. Ms McDermott testified that she had a view of the man who removed his facial covering for 10 to 20 seconds. She was frightened about making full eye contact. He was Asian in appearance. Ms McDermott testified that one of the intruders carried a gun, which looked like something between a rifle and a pistol. One of the men spoke with an Asian accent. The incident came to an end when there was a knock on the door and the intruders ran into the back yard.
Ms McDermott agreed in cross-examination that she gave a statement to a Constable Andrew Boyd at 9.22 am. It was put to her that she told Constable Boyd that there was only one intruder. Ms McDermott responded that she could not remember. She agreed that she signed a notebook statement taken by Constable Boyd as being true and accurate.
It was put to Ms McDermott that at no stage did she tell Constable Boyd that either of the men removed his disguise but Ms McDermott could not recall whether she had or not. There was then this exchange:
Q.You’ve told us that a male you say you saw without a covering on his face was Asian.
A.Yes.
Q.Or appeared to be Asian.
A.Yes.
Q.This is what I’m putting to you you said to Mr Boyd. I’m finding it hard to read, so I apologise. ‘He looked fairly white’.
A.Yes.
Q.You told us yesterday that the man you saw had an Asian accent.
A.Yes.
Q.I’m suggesting you said to Mr Boyd ‘I didn’t take notice of how he spoke’. That’s different, isn’t it.
A.Yes.
Q.I’m going to suggest to you this is what else you said to Constable Boyd on p.60 of his notes: ‘I wouldn’t recognise the male again’. You said to us yesterday 80% it was one photograph, 20% it was another. Why the difference.
…
A.I don’t remember saying it, so –
Ms McDermott gave evidence of her participation in a photographic identification procedure. Ms McDermott testified that she was ‘80 per cent sure’ that the photograph she picked was one of the intruders.
Ms McDermott agreed that in an earlier trial of the applicant she had testified that she had a glimpse of the intruder’s face for five or ten seconds.
Constable Boyd gave evidence. He testified that he took a statement of five and a half pages in his notebook from Ms McDermott. The statement was taken at 9.18 am on 30 June 2014 in a car park. Constable Boyd could not recall her demeanour but gave evidence that she did not appear to be very ‘forthcoming with information’. He testified that he tried his best to get information from her. It was agreed on the hearing of the appeal that, when giving evidence at trial, Constable Boyd looked at his pocket sized notebook and that it would have been visible to the jury when he did so.
Constable Boyd testified that Ms McDermott’s statement included the following:
·I saw a male standing near the lounge room door;
·The male said “Both of you stay there, this has nothing to do with you”;
·The male turned and walked down the hallway to the front of the house;
·I have never seen the male before;
·I cannot really remember what he was wearing;
·He had a black and white bandana covering his face to his nose;
·He was wearing sunglasses;
·From the skin I could see on his forehead, he looked fairly white;
·I didn’t take notice of how he spoke;
·I couldn’t recognise the male again.
Constable Boyd agreed to the proposition put to him by the applicant’s counsel at trial that at no stage did Ms McDermott ever raise the ‘spectre of a second male’. He testified that Ms McDermott signed the statement as true and correct.
The prosecution also adduced the following evidence:
·A neighbour whose property backed onto the Prospect property testified that he observed a single masked man climb over his back fence. The man’s eyes and forehead were visible and he appeared to be Caucasian.
·CCTV footage from a nearby business premises showed the applicant present in the premises at 9.15 am. A number of employees and customers testified that they saw the applicant and that he appeared agitated by the presence of police in the vicinity. The CCTV footage showed the applicant carrying a small square black bag consistent with a bag that Mr Robinson testified the gunman had carried with him as he fled the house.
The applicant testified that he was present at the neighbouring business premises because he had arranged to meet Mr Lam there to purchase heroin. He denied being one of the intruders.
The applicant also called Mr Lam in his defence. Mr Lam testified that he was an occupant of the Prospect premises. He testified that at about 8.30 am a single intruder who was unknown to him carrying a baseball bat kicked in the front door. Mr Lam gave evidence that he was hit over the head during the robbery. Mr Lam testified that the intruder was wearing a mask, gloves and hoodie. He denied that the robber ever removed any part of his disguise. He testified that his statement to that effect to the police was a lie.Mr Lam admitted selling heroin to the applicant. He testified that on the morning of the home invasion he had made an arrangement to meet the applicant.
Mr Lam was cross-examined about the statement he gave to police on the morning of the robbery. He agreed that he told the police that two intruders came to the house and into his bedroom and that one of the men was holding a gun and the other a knife, but testified that that was a lie. Mr Lam agreed that he told the police that one of the robbers pulled down his balaclava in the bedroom and he saw that it was the applicant. However, Mr Lam testified that the truth was that he had no idea who the robber was. Mr Lam explained that he told police that he owed the applicant about $1,000 and said this in order to make his false accusation against the applicant more realistic.
Mr Lam testified that he showed Mr Robinson photos of the applicant from the applicant’s Facebook page. He testified that he did so in an attempt to persuade Mr Robinson to identify the applicant as the robber.
Mr Lam claimed that he did so because he had discovered that the applicant had had an affair with his girlfriend about three months before the offending. In cross-examination, he testified that after he heard of the affair he did not confront the applicant about the infidelity until after the robbery by an unknown person when he opportunistically decided to falsely implicate the applicant.
Mr Lam testified that on 3 August 2014 he wrote a letter addressed ‘SAPOL, the DPP or whom it may concern’ claiming that the statement he had given to the police was not true. It stated that he wished ‘to withdraw my statement & all charges that I gave & may have signed on the day of the incident’. He claimed that the statement was ‘false’. The letter continued that it was false because he was ‘extremely frightened also in extreme shock’. He also claimed that his recollection was affected by a ‘major blow/hit in the back of head with a long piece of a wooden plank’ which ‘had snapped into 3 pieces from the impact, when criminal/s used it to hit/smashed it over head’.
Mr Lam explained that he wrote the letter because he felt guilty about giving a false statement implicating the applicant after being imprisoned himself and appreciating how bad it was to be imprisoned.
Mr Lam agreed in cross-examination that he saw applicant before writing the letter to the DPP telling the Director that it was a lie. When Mr Lam was asked why he did not mention in the letter to the Director that he had made the false accusation because of the applicant’s affair with his girlfriend he replied that he ‘didn’t know that [he] had to add that in’.
Q.Those reasons have nothing to do with Yika Soun [Mr Lam’s girlfriend]. The reasons that you give in the letter have nothing to do with Yika Soun, do they.
A.No.
Mr Lam was also cross-examined about what the prosecution suggested was a revealing slip in Mr Lam’s letter when he used the plural word ‘criminals’ in describing the robbery.
Summing up
The Judge directed the jury that the burden of proving guilt was on the prosecution and that an accused person has no obligation to prove or explain anything. The Judge then directed the jury:
If I use words such as ‘proved’ or ‘established’ or ‘satisfied’ during the course of this summing up, that is what I mean; proved or established or satisfied beyond reasonable doubt. There is no other relevant onus of proof here.

The Judge gave lengthy directions on the use of previous inconsistent statements as follows:
One way to evaluate the evidence of a witness with something which is known is to compare their evidence with what they may have said previously. This is what the law refers to as whether they have made a previous inconsistent statement. If someone comes to court and makes a given statement and counsel points out ‘Hang on a minute, two years ago when you spoke to the police officer you made a different statement, what do you say about that?’, ‘Well, I don’t know, I can’t remember what I said’, etc., you are entitled to take that into account when you are assessing the weight you attribute to that witness’s evidence.
As you do that, you might find it helpful to analyse a previous statement using a number of steps so that you can do it in a logical and measured way.
The first issue, obviously, is whether you are satisfied that the witness made the previous statement at all. Because a police officer has written something down may or may not necessarily mean that the record is completely accurate. If someone said something on a video, you may be satisfied that it is completely accurate. Someone might write something down in their notebook, the accuracy may not be completely there. So that is the first issue: can you be satisfied that the previous statement was made?
The second issue, you might think, is whether the previous statement is really consistent with what the person is saying in court. You will recall the evidence of Ms McDermott was challenged on the basis that she only referred to one man when she spoke to the police officer in the churchyard only an hour or so after the incident. Is that inconsistent with what she is now saying? She says there was one man initially when she woke up standing near the door to the back lounge room, but that later another man came down from the bedroom with Mr Lam. Is the previous statement necessarily inconsistent with the present statement?
Thirdly, if you think it is inconsistent, do you regard the inconsistency as significant? Can the inconsistency be explained by the circumstances? All the witnesses, including Mr Lam, talked about the stress of being interviewed by the police. ‘I didn’t want to cooperate at that time’, etc., ‘so I said what I said’. Is the inconsistency significant from your point of view? Do you think it is important?
Finally, if it is significant, how, and in what way, does it affect the weight that you will put on the witness’s statement? What are the consequences for the credibility or reliability of the witness, having regard to that previous statement?
Another example, Mr Robinson, when he gave the statement to the police officer, he said ‘I would not recognise either of them’, that is, the offenders, ‘again if I saw them’. He said that to the police officer less than an hour after the incident. He told you he said that because he did not want to be involved, he did not want to have to go to court. He told you he later felt more supported by Brevet Sergeant Vincent, the officer who took the later statement from him. Of course, by that stage, only an hour or so after the incident, he had not seen the photo array anyway, so he probably did not know whether he would recognise him or not at that point. But he did not shy away from the fact he said that to police. He gave you the explanation that he did. You may or may not accept that explanation. It is up to you. That is a question of whether you think the inconsistency is significant or not.
Mr Aitken also pointed out that he did not mention at any stage one of the robbers pulling his mask down so he could see his face. He also acknowledged that. Again, he said simply that he was traumatised, that was his explanation. You may accept that or not as you see fit. That is your role.
Telisha McDermott, as I already mentioned, also made a number of statements which you may consider when you undergo this process to have been inconsistent with what she said in evidence. As I already mentioned, she only referred to one man. She also said ‘I couldn’t recognise the male again’, the one man, ‘I couldn’t recognise him’. She really gave the same explanation for saying that to police; that she did not want to be involved. In fact, the police officer made a note ‘I’m not willing to attend court’. She said that was why she made that statement. Again, these are matters for you to weigh up when you are considering a previous inconsistent statement.
The Judge invited the jury to retire at 12.27 pm. Shortly before 5.10 pm, the jury sent the Judge a note which read:
As the jury we have been deliberating for over four hours and we have not been able to reach a majority verdict. It is our opinion that this will not change with more time.
After raising the matter with counsel, the Judge directed the jury to continue their deliberations the following morning as follows:
HIS HONOUR: Members of the jury, I have your note. I understand you retired at 12.27 and so you’ve been deliberating for a little over four and a half hours now. The time at which you are able to return a majority verdict has only passed by a bit over half an hour or so.
It is the usual practice of the court to ask a jury to continue a bit longer than that before reaching a stage where all hope is lost of a result. What I would suggest is that we adjourn now until tomorrow, so that you could perhaps go home and relax tonight, come back first thing in the morning and deliberate further, perhaps for some time tomorrow morning, in the hope that with a fresh perspective and a fresh outlook, go over the issues again, see if there’s anything that you might like to be reminded about, if there’s some part of the evidence that is becoming less clear to you as the afternoon has gone on, or if there’s any other way in which I can help you, you can ask me to do that.
See how we go tomorrow morning, to see whether it’s possible to achieve that appropriate outcome. The trial has been quite a substantial one. We’re dealing with an issue that happened two and a half, nearly three, years ago, so there’s a good deal of reason why we shouldn’t give up hope too easily if it’s possible to reach a result.
…
We’ll [resume] at 10 o’clock and see how we go. Is anybody else inconvenienced by that? Everyone okay?
Also, thank you for your efforts so far. I appreciate that you’ve been going about your job in a very conscientious way, you’ve done your best. It may be with a fresh perspective in the morning you can go a little further to reaching a decision. I don’t want to place undue pressure on you, but perhaps a further opportunity might have an effect. We’ll adjourn until 10 o’clock in the morning.
Applicant’s submissions
The applicant’s counsel identified the following as the prior inconsistent statements of Mr Robinson and Ms McDermott on which directions were required:
Mr Robinson
·The failure to tell Constable Walker that one of the intruders removed his bandana and sunglasses in the course of the incident; and
·his statement to Constable Walker that he ‘would not recognise either of the robbers again’.
Ms McDermott
·the failure to mention that the intruder had removed his facial disguise;
·the failure to mention that the intruder who unmasked himself was of Asian appearance and spoke with an Asian accent;
·her statement to Constable Boyd that she would not recognise the male again;
·the omission of any reference to a second intruder in her statement to police; and
·the change in the time in which she had to observe the offender from a glimpse of five to 10 seconds to a period of 10 to 20 seconds.
Consideration
I deal first with the statements made by both Mr Robinson and Ms McDermott that they would not be able to recognise the intruder. Primarily, the statements are opinions about their future capacity to identify the intruder. The statements are only inconsistent statements of fact to the extent that they imply that they did not have a sufficient opportunity to view the intruder to be able to identify him. The statements therefore detract from the weight of their evidence of identification, but they are not a prior inconsistent statement in the commonly understood meaning of that term. The greater forensic importance of the statements in this case is that they reinforce the inconsistency arising from the omission to mention that any intruder exposed his face, an inconsistency to which I turn below.
The inconsistency identified in Ms McDermott’s statement relating to the failure to mention that one of the intruders was of Asian appearance and spoke with an Asian accent is also closely connected to her failure to tell police that one of the intruders removed his facial covering.
The inconsistency between the number of seconds in which Ms McDermott had an opportunity to view the offender is immaterial. It is notorious that witnesses find it difficult to estimate the time over which distressing events occurred.
The applicant made the following complaints about the Judge’s directions on the failure of Mr Robinson and Ms McDermott to tell police one of two intruders removed his facial covering. First, he contended that the Judge’s directions to the jury to consider the possibility that the statements were not recorded correctly had no application to this case because the making of the inconsistent statements was not disputed. I accept that because, in this case, the inconsistencies complained of were primarily matters of omission, it would have been more helpful if the Judge had drawn the jury’s attention to those circumstances in which the statements of Mr Robinson and Ms McDermott were taken, which might either give, or on the other hand exclude, a valid reason for the omission. However, the significance of the omission and the circumstances which may or may not account for it were obvious on the face of the evidence. The fact that the Judge did not squarely address that issue in the summing up denied the jury some additional assistance which it might have been given but did not mislead or obscure the jury’s consideration of the evidence . Importantly, the jury was told that inconsistencies between a prior statement and the testimony of a witness should be considered in evaluating his or her testimony. No miscarriage of justice can have been occasioned in this respect.
In an associated complaint, the applicant complains about the use of the word ‘satisfied’ in the directions concerning the making of the inconsistent statements. The applicant contends that by reason of the earlier direction in the summing up about the proposed use of that word, the Judge wrongly directed the jury that the defence had to prove the inconsistency beyond reasonable doubt. I reject that contention. The jury was clearly told that the onus lay on the prosecution and not the defence. Reading the summing up as a whole, there is no reason to think that the jury would have transposed the onus of proof in the way suggested by the applicant. In any event, the error could not possibly have led to a miscarriage of justice because, as I have already observed, and as indeed the applicant contends, the accuracy of statements and more importantly the relevant omissions were not in issue in this case.
Lastly, in this respect, the applicant complains that in describing Ms McDermott’s statement to the police the Judge told the jury that ‘another man’ came down from the bedroom with Mr Lam. Plainly, from both the cross-examination of Ms McDermott and Constable Boyd’s evidence, Ms McDermott had only spoken of one man in her statement to Constable Boyd. This was a factual misstatement in the summing up but one which could not possibly have caused a miscarriage of justice.
Finally, the applicant complains that the Judge should have directed the jury that the very reasons given by Mr Robinson and Ms McDermott for not being more forthcoming with the police reflected adversely on their credibility and reliability. It should be observed that the defence case was that Mr Robinson and Ms McDermott had correctly described the incident in their statements to the police, at least insofar as they did not mention that an intruder had exposed his face. I accept that it was open to the defence to put at trial the argument that Mr Robinson’s and Ms McDermott’s admitted reluctance to cooperate with police on the morning of the robbery, when they gave what the defence contended was an accurate account, was a reason to doubt the fuller accounts given by them in court. However, that rather subtle, if not counterintuitive and perhaps counterproductive, submission was not made in defence counsel’s address at trial. A judge is not required to add his or her own embellishments on the address of defence counsel. Indeed it would often be dangerous to do so. This case is an example. The most natural reason for Mr Robinson’s and Ms McDermott’s reluctance on the morning of the robbery was their fear and shock at the recent events. In that respect, the Judge’s generalised summary of their response as one of not wanting to cooperate does not fully convey the effect of their evidence.
I turn to the second ground. There are important public policy reasons why a jury should not be readily discharged. The jury had been deliberating for just over the statutory period of deliberation after which a jury may deliver a majority verdict. The Judge was at pains to emphasise that he did not wish to place undue pressure on the jurors. Importantly, the Judge implicitly acknowledged that the jury might not be able to reach a verdict the following day.
In the circumstances of this case and in particular given the short period of deliberation, it was not necessary for the Judge to warn the jurors against joining in a verdict which they did not honestly think was the correct one.[3]
[3] Black v The Queen (1993) 179 CLR 44 at 51-52.
Conclusion
I would grant permission to appeal on the first ground. I would refuse permission on the second ground. I would dismiss the appeal.
KELLY J: I agree.
BLUE J: I agree.

[2018] SASCFC 87

21 August 2018

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