R v Ormond
[2012] SASCFC 130
•12 December 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ORMOND
[2012] SASCFC 130
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Peek)
12 December 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
The defendant and appellant was jointly charged with two other men with murder and aggravated causing serious harm with intent to cause serious harm - the defendant pleaded not guilty to both charges - the defendant was convicted by jury verdict of both offences - whether the trial Judge erred in admitting evidence that the defendant had urinated on the body of the deceased after the events that had caused the fatal and other injuries - whether the Judge erred in not directing the jury as to self-defence and home invasion - whether certain statements made at the scene were admissible - whether the pleas of guilty by the defendant's former co-accused were relevant and admissible at the defendant's trial - whether, when viewed collectively, the complaints advanced by the defendant gave rise to a miscarriage of justice.
Held per Gray J (White and Peek JJ concurring): Appeal against both convictions dismissed - evidence of urination admitted as relevant and probative and as part of the res gestae - it was not reasonably arguable that a section 15C defence could have been made out - no section 15A defence arose on the evidence - even if relevant, no miscarriage could have arisen through the failure to direct on section 15A - the trial Judge erred in attributing a statement made by one of the co-accused to the defendant, but this error did not give rise to any risk of a miscarriage of justice - the direction given by the trial Judge in the summing up ensured that there was no risk of a miscarriage of justice arising from the inclusion of the co-accused’s pleas of guilty - the complaints advanced by the defendant did not give rise to a miscarriage of justice.
Per Gray J: The evidence of an exchange between the defendant and a co-accused was admissable - the general rule is that an appellant in a criminal matter is bound by the conduct of trial - if counsel on appeal seek to complain of a matter not raised at trial, care should be taken to address the concerns of Gleeson CJ in Crampton v The Queen (2000) 206 CLR 161 - the general rule accommodates exceptions.
Per Peek J (White J concurring): An appellant in a criminal matter need not necessarily demonstrate exceptional circumstances for a new matter to be advanced on appeal - it is not particularly unusual for a Court of Criminal Appeal to have to rule on matters which were not ventilated at trial for a variety of reasons - an example is the independent duty of the trial judge to direct the jury on all of the elements of the offence and all defences arising on the evidence even though counsel at trial actively opposed such directions - a Court of Criminal Appeal occupies a different position from the High Court and must in each case provide a primary safety net, the existence of which is assumed by the High Court - here there was no real risk of a miscarriage of justice - position reserved on the question of the strict admissibility of particular items of evidence and as to the precise status of decisions such as R v Moore (1956) 40 Cr App Rep 50 and R v Cowell (1985) 24 A Crim R 47 in the light of High Court decisions including Baker v The Queen (2012) 289 ALR 614.
Criminal Law Consolidation Act 1935 (SA) s 5, s 11, s 23(1), s 15, s 15A, s 15B and s 15C, referred to.
Pemble v The Queen (1971) 124 CLR 107; R v Longley [1962] VR 137, discussed.
Crampton v The Queen (2000) 206 CLR 161; Police v Lloyd (1998) 72 SASR 271; R v Moore (1956) 40 Cr App Rep 50; R v Cowell (1985) 24 A Crim R 47; Howe v The Queen (1980) 55 ALJR 5; Varley v The Queen (1976) 51 ALJR 243 ; Van Den Hoek v The Queen (1986) 161 CLR 158; Pantorno v The Queen (1989) 166 CLR 466; BRS v The Queen (1997) 191 CLR 275; Suresh v The Queen (1997) 72 ALJR 769; Gipp v The Queen (1998) 194 CLR 106; Gillard v The Queen (2003) 219 CLR 1; Fingleton v The Queen (2005) 227 CLR 166; CTM v The Queen (2008) 236 CLR 440; Pollock v R (2010) 242 CLR 233; Braysich v The Queen (2011) 243 CLR 434; R v Perks (1986) 41 SASR 335; R v Murphy (1988) 52 SASR 186; R v Earley 1990 (S.Aust CCA Jud Nos 2199-2201); R v Ball, Bunce & Callis (1991) 56 SASR 126; R v Shinner (1993) 173 LSJS 384; Bedi v The Queen (1993) 61 SASR 269; R v Williamson (1996) 67 SASR 428; R v B, MA (2007) 99 SASR 384; R v Tilley (2009) 105 SASR 306; R v Hajistassi (2010) 107 SASR 67; R v Roberts (2011) 111 SASR 100; Baker v The Queen (2012) 289 ALR 614; R v Moore (1956) 40 Cr App Rep 50; R v Cowell (1985) 24 A Crim R 47, considered.
R v ORMOND
[2012] SASCFC 130Court of Criminal Appeal: Gray, White, Peek JJ
GRAY J.
This is an appeal against conviction.
The defendant and appellant, Jason Ormond, was jointly charged with Duane Joseph Mannix and Andrew James Melbourne with the murder of William Michel Rankine[1] and with aggravated causing serious harm with intent to cause serious harm.[2] In the absence of the jury, Mannix pleaded guilty to both offences. Ormond pleaded not guilty to both charges. Ormond was convicted by jury verdict of both offences. Melbourne was acquitted by jury verdict of both charges.
The Facts[3]
[1] Contrary to section 11 of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to section 23(1) of the Criminal Law Consolidation Act 1935 (SA).
[3] The paragraphs that follow under this heading have been drawn on a summary prepared by the Director of Public Prosecutions as part of his written submission to this Court. The defendant’s counsel accepted the correctness of the above with two exceptions, neither of which are material to the disposition of the appeal.
The offences of which Ormond was found guilty occurred in the early hours of 27 January 2011 in the vicinity of the front yard of 34 Vincent Street Plympton, the residential premises of Mannix. The events were witnessed by Ashley Goodridge, a friend of the victims, Mr and Mrs Madlur and John Krizanec, who all lived nearby to the premises.
Shortly before 2.00 am on 27 January 2011, the deceased, his brother Karruck Rankine-Meredith and Mr Goodridge were walking along Vincent Street, Plympton, after attending an Australia Day barbeque. They did not know and had never before met Ormond, or any of the persons involved in the incident. As they approached 34 Vincent Street, they observed two men in the front yard of those premises. Mannix was observed to be acting in an angry and aggressive manner. The deceased said to Mannix words to the effect of, “What’s wrong? What are you worried about? It’s Australia Day”. Mannix said to the deceased, “You wanna go?” and took a couple of steps towards the front gate in the direction of the deceased. Mannix then took hold of the deceased’s collar and the men struggled.
Melbourne, who was present in the front yard, joined in the struggle. As he did so, the deceased was either pulled or fell forward over the front fence and into the yard of 34 Vincent Street. The deceased ended up in a crouched position in the front yard.
Soon after this occurred, Mr Goodridge observed Melbourne standing near the front doorway of the house. He did not observe anybody going into or coming out of the house. At or about this time, Mr Goodridge heard the sound of the deceased being struck twice in quick succession and, as a result, the deceased fell onto all fours. Mr Goodridge did not see who caused the deceased to fall.
A few seconds after hearing the deceased struck for a second time, Mr Goodridge looked up and observed Ormond and Mannix standing over the deceased. This was the first time that Mr Goodridge observed Ormond. He recounted seeing Ormond and Mannix, both with their hands on a pole. He observed Ormond taking possession of the pole from Mannix and Mannix saying to Ormond, “Hit him, hit him”. Mannix went on to say “He’s on our property, we can do whatever we want to him”. Mr Goodridge, at this time, attempted to placate Ormond and Mannix and suggested that an ambulance be called. Mr Rankine-Meredith then walked toward the deceased who was lying on the ground. At this time, Ormond struck Mr Rankine-Meredith to the head with the pole.
Mrs Madlur, a neighbour who lived across the road, was woken by angry noises coming from the front of 34 Vincent Street. She looked out of her front window and saw Ormond and Melbourne coming out of the house toward where Mannix was arguing with another man. She observed Ormond going in and out of the house a couple of times, eventually returning to the front yard with a stick. Mrs Madlur did not see the assault on the deceased.
Mrs Madlur observed Ormond striking Mr Rankine-Meredith to the head with a long stick or pole. She described Ormond swinging the weapon like a baseball bat. The blow was of such force that Mr Rankine-Meredith fell to the ground on the footpath immediately in front of 34 Vincent Street. These events were also observed by Mr Goodridge and Mr Krizenac.
Mr Madlur gave evidence that he observed Ormond striking the deceased with a bar at a time when the deceased was in the front yard of 34 Vincent Street. He also observed Ormond striking Mr Rankine-Meredith when he was on the footpath.
Following the assault on Mr Rankine-Meredith, Mr Goodridge fled from the scene and called the police. As he left, he turned to see Mannix picking up a carton of beer that Mr Goodridge had previously been carrying. Mannix then walked back towards where Mr Rankine-Meredith was lying on the ground. At that time, Ormond and Melbourne were standing over Mr Rankine-Meredith and it appeared to Mr Goodridge that Melbourne was going through the pockets of Mr Rankine-Meredith’s pants.
At about the time that Mr Goodridge left, Mrs Madlur saw Ormond strike Mr Rankine-Meredith with the pole while he was lying on the ground. At this time, the deceased was on the ground inside the front yard of 34 Vincent Street. Mrs Madlur saw Mannix kick the deceased. Mrs Madlur then saw Mannix being joined by Ormond, who also kicked the deceased. Melbourne then dragged the deceased by his legs, sat on him and punched him.
Mrs Madlur saw all three men urinate on the deceased. When they had finished, Ormond, Mannix and possibly Melbourne walked towards Mr Rankine-Meredith, who was still lying on the footpath. They kicked Mr Rankine-Meredith and pulled his pants down and expose his buttocks. At some point, Mrs Madlur saw Ormond drag Mr Rankine-Meredith towards the driveway and smash his head into the roadside kerb at least three times.
Mr Madlur also saw Ormond and Mannix urinate on the deceased and saw one of the men pull Mr Rankine-Meredith’s pants down as the police arrived.
The first police officers arrived at the scene at 2.02 am on 27 January 2011. Ormond and Mannix were in the front yard when police attended. Constables Brook and Bertram observed Mr Rankine-Meredith lying face down near the gutter. His pants had been pulled down and his underpants were pulled up in between his buttocks. The deceased was lying on his side in the front yard. His pants had been pulled down to expose his pubic hair and part of his penis and his t-shirt was wet.
Soon after the police attended, ambulance officers arrived. As the ambulance officers were attending to the deceased and Mr Rankine-Meredith, Mannix called out, “I fucking did it” on more than one occasion. Ormond replied to Mannix, “No, you didn’t.” Constable Bertram also heard Mannix shout, “Get the body off my lawn, this is my property”.
The deceased was unable to be revived and pronounced dead at the scene. The cause of death was found to be blunt force head trauma resulting in a hinge fracture to the deceased’s skull. The trauma caused bleeding around the outside and inside the brain. These injuries caused the deceased to stop breathing. A secondary and contributing factor to the death was the inhalation of blood. The evidence was that the hinge fracture could have been inflicted by one or more applications of force to the same place. Severe force would have been required to cause the hinge fracture.
The deceased had other injuries, including fractures to the nose and cheekbones, that were consistent with having been punched, kicked, falling to the ground or a having received a blow by a blunt object. These other injuries were consistent with the deceased lying on the ground and being stepped on. These injuries were caused by at least five separate applications of force.
On 28 January 2011, police seized a one metre long steel reinforced pole from the rear yard of 34 Vincent Street. Bloodlike staining was observed on the pole. A DNA profile matching the deceased was obtained from some of the stains.
In the opinion of the forensic pathologist, the concrete reinforced bar located in the rear yard of 34 Vincent Street was capable of inflicting the hinge fracture injury. The pathologist gave evidence that it was highly unlikely that a timber pole, located by the police in the front yard of 34 Vincent Street, was capable of having inflicted the hinge fracture to the deceased’s skull.
Mr Rankine-Meredith’s injuries included a depressed fracture of the left temporal bone with a small underlying subarachnoid haemorrhage. He also had bruising around his left eye and a lengthy laceration over his left temple. As a result of his injuries Mr Rankine-Meredith experienced retrograde amnesia and was unable to give an account of the incident.
The evidence of the doctor who was on duty in the emergency department at the time Mr Rankine-Meredith was presented to hospital gave evidence that the depressed skull fracture would have been caused by a blunt trauma inflicted with a significant amount of force.
Neither Ormond nor Melbourne gave evidence at trial. Neither called any other evidence.
On the prosecution case, it was open for the jury to find that Ormond inflicted the blow or blows the subject of each charge or, in the alternative, that he was acting as part of a joint enterprise, or as an aider and abettor.
Defence counsel submitted that it was a reasonable possibility that Ormond was not present in the yard at the time the deceased was struck and, accordingly, could not have been the person to inflict the blows that caused death or had any other liability for that conduct. Counsel specifically informed the jury that he was not going to make any submission to them with respect to the conduct causing death being defensive conduct.
Defence counsel pointed to some inconsistencies, in particular on the accounts of Mr Goodridge and Mr Madlur, and asserted that those inconsistencies undermined the witnesses’ reliability.
The approach of counsel for the defence with respect to the charge of aggravated assault was not to dispute that he had struck Mr Rankine-Meredith with a weapon, but to argue that there was a reasonable hypothesis that he acted in defence of himself or of another. This is plain both from the closing address of defence counsel and from the fact that those witnesses who attributed that blow to Mr Rankine-Meredith as being delivered by Ormond, were not challenged in cross‑examination.
Issues Not Raised at Trial
In Crampton, Gleeson CJ addressed the problem of issues not raised at trial:[4]
[4] Crampton v The Queen (2000) 206 CLR 161, [15]-[20].
First, there is what was referred to by L’Heureux-Dubé J in the Supreme Court of Canada as “the overarching societal interest in the finality of litigation in criminal matters” when she said:
“Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases.”
Secondly, it is common for appellants in criminal appeals to retain counsel different from the counsel who (by hypothesis, unsuccessfully) conducted the trial. This increases the tendency to look for a new approach to the case, and carries the danger that trial by jury will come to be regarded as a preliminary skirmish in a battle destined to reach finality before a group of appellate judges.
Thirdly, it is usually difficult, and frequently impossible, for a court of appeal to know why trial counsel did, or failed to do, something in the conduct of the case. Decisions as to the conduct of a trial are often based upon confidential information, and an appreciation of tactical considerations, that may never be available to an appellate court. The material upon which a judge, either at trial or on appeal, may form an opinion as to the wisdom of a course taken by counsel can be dangerously inadequate, and, when it is, the judge may have no way of knowing that. Ordinarily, a barrister knows more about the strengths and weaknesses of his or her client’s position than will appear to a judge, whose knowledge of the case is largely confined to the evidence.
Fourthly, as a general rule, litigants are bound by the conduct of their counsel. This principle, which is an aspect of the adversarial system, forms part of the practical content of the idea of justice as applied to the outcome of a particular case. For that reason, courts have been cautious in expounding the circumstances in which an appellant will be permitted to blame trial counsel for what is said to be a miscarriage of justice.
Fifthly, in a common law system the adversarial procedure is bound up with notions of judicial independence and impartiality. A criminal trial is conducted before a judge (sitting with or without a jury) who has taken no part in the investigation of the offence, or in the decision to prosecute the offender, or in the framing of the charge, or in the selection of the witnesses to be called on either side of the case, and whose capacity to intervene in the conduct of the trial is limited. One of the objects of a system which leaves it to the parties to define the issues, and to select the evidence and arguments upon which they will rely, is to preserve the neutrality of the decision-making tribunal. Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice.
In the case of an attempt to raise a new point in this Court there is the additional consideration, reflected in the statutory provisions governing the requirement of special leave to appeal, that a second appeal is intended to be reserved for special cases. It is not there for the purpose of giving any sufficiently determined and resourceful litigant a third chance of success.
[Footnotes omitted.]
The submissions on appeal were made by defence counsel who did not appear at the trial. As is observed later in these reasons, a number of complaints on appeal were not raised at the trial and several were positively disavowed. Further, in respect of several of these grounds, only cursory submissions were advanced.
If counsel on appeal seek to complain of a matter not raised at trial, care should be taken to address the concerns raised by Gleeson CJ. Exceptional circumstances need to be demonstrated to allow a new matter to be advanced.
It is to be noted in the passage extracted from Crampton[5] that the first five matters referred to by Gleeson CJ generally address appeals following trials. It is only in the final paragraph that Gleeson CJ refers to the additional considerations that arise on an attempt to raise a new point in the High Court. Earlier in the extract, Gleeson CJ sets out the reasons for the general rule that litigants are bound by the conduct of the trial. As this is a general rule, unsurprisingly, it accommodates exceptions.
The Appeal
[5] Crampton v The Queen (2000) 206 CLR 161.
Unduly Prejudicial Evidence
On the appeal, Ormond contended that the Judge had erred in admitting evidence that Ormond had urinated on the body of the deceased after the events that had caused the fatal and other injuries. During the course of the argument, it was accepted that the evidence was admissible, but it was contended that it was so prejudicial that it should have been excluded in the exercise of the unfairness discretion. The evidence was said to be more prejudicial than probative. Counsel submitted that the probative value of the evidence was slight. It was said that as the act of urination occurred after delivery of the fatal blow, it did not provide any real evidence to support the prosecution case.
At first, counsel submitted on the appeal that there had been a significant gap in time between the acts causing death and the act of urination. However, when pressed, counsel was unable to support this assertion with any evidentiary references. A review of the evidence disclosed that the contrary was the position – the act of urination followed shortly after the infliction of the injuries.
Counsel further submitted that the evidence of the act of urination represented uncharged criminal conduct calling for careful directions to the jury as to the proper use they could make of that evidence. It was pointed out that the Judge gave no specific direction to the jury as to the use of that evidence.
On the appeal, the Director of Public Prosecutions submitted that the evidence was relevant to negating any suggestion that Ormond or the others had acted defensively. It was further submitted that the evidence of the act of urination was capable of showing that Ormond had acted together with the others.
The evidence of the acts of urination, including Ormond’s act of urination, was conduct which the jury could use to reach conclusions about the attitude of Ormond and the others toward the deceased. It was conduct that was inconsistent with any claim of self-defence or defence of another. Further, this evidence was also consistent with Ormond and the others having acted as part of a joint enterprise. I also consider that the evidence was admissible on the further basis that it formed part of the res gestae. The evidence related to one aspect of an ongoing incident. It was relevant and admissible evidence. I consider that the evidence had probative value. Counsel for Ormond was unable to articulate any relevant prejudice sufficient to give rise to the exercise of the unfairness discretion. It was open to the Judge to decline to exercise that discretion in favour of Ormond. In my view, there is no substance to this complaint.
I do not consider that there is any substance in the suggestion that the jury should have been directed that the evidence was evidence of an uncharged criminal act. The nature of any uncharged offence was completely divorced from the charges faced by Ormond. There was, to my mind, no risk that the jury would adopt any form of propensity reasoning. No such direction was sought from the Judge at trial.
Self-Defence and Home Invasion
On the appeal, Ormond complained about the failure of the Judge to direct the jury as to self-defence and home invasion. To understand this complaint it is necessary to address the legislative scheme dealing with self-defence. The relevant statutory provisions are found in the Criminal Law Consolidation Act 1935 (SA) and are as follows:
Division 2—Defence of life and property
15—Self defence
(1)It is a defence to a charge of an offence if—
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist1.
(2)It is a partial defence to a charge of murder (reducing the offence to manslaughter) if—
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but
(b)the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.2
(3)For the purposes of this section, a person acts for a defensive purpose if the person acts—
(a)in self defence or in defence of another; or
(b)to prevent or terminate the unlawful imprisonment of himself, herself or another.
(4)However, if a person—
(a)resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or
(b)resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,
the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.
(5)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
Notes—
1See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, this paragraph will be inapplicable.
2See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, the defendant will be entitled to a complete defence.
15A—Defence of property etc
…[6]
[6] This section is reproduced later in these reasons.
15B—Reasonable proportionality
A requirement under this Division that the defendant’s conduct be (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist does not imply that the force used by the defendant cannot exceed the force used against him or her.
15C—Requirement of reasonable proportionality not to apply in case of an innocent defence against home invasion
(1)This section applies where—
(a)a relevant defence would have been available to the defendant if the defendant’s conduct had been (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist (the perceived threat); and
(b)the victim was not a police officer acting in the course of his or her duties.
(2)In a case to which this section applies, the defendant is entitled to the benefit of the relevant defence even though the defendant’s conduct was not (objectively) reasonably proportionate to the perceived threat if the defendant establishes, on the balance of probabilities, that—
(a)the defendant genuinely believed the victim to be committing, or to have just committed, home invasion; and
(b)the defendant was not (at or before the time of the alleged offence) engaged in any criminal misconduct that might have given rise to the threat or perceived threat; and
(c)the defendant’s mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non-therapeutic consumption of a drug.
(3)In this section—
criminal misconduct means conduct constituting an offence for which a penalty of imprisonment is prescribed;
drug means alcohol or any other substance that is capable (either alone or in combination with other substances) of influencing mental functioning;
home invasion means a serious criminal trespass committed in a place of residence;
non-therapeutic—consumption of a drug is to be considered non-therapeutic unless—
(a)the drug is prescribed by, and consumed in accordance with the directions of, a medical practitioner; or
(b)the drug is of a kind available, without prescription, from registered pharmacists, and is consumed for a purpose recommended by the manufacturer and in accordance with the manufacturer’s instructions;
relevant defence means a defence under section 15(1) or section 15A(1).
Section 15 is concerned with defence of oneself and defence of another. Section 15A is concerned with defence of property. There are two elements to the defences established by these provisions – a genuine belief by a defendant that the conduct to which the charge relates is necessary and reasonable for a defensive purpose, and reasonable proportionality between the defendant’s conduct and the threat which the defendant believed to exist. The former involves a subjective test and the latter an objective test.[7]
[7] See Police v Lloyd (1998) 72 SASR 271.
Section 15C qualifies the operation of sections 15(1) and 15(2). In a case to which section 15C applies, the defendant will still have a defence of self‑defence even if the defendant’s conduct was not reasonably proportionate to the perceived threat, provided that the defendant establishes on the balance of probabilities each of the circumstances listed in sub-paragraphs (2)(a)-(2)(c).
At trial, defence counsel initially argued that a section 15C defence should be left to the jury. However, later in the trial, defence counsel expressly withdrew that request.
On the appeal, counsel for Ormond argued that, notwithstanding the submissions of defence counsel at trial, the Judge should still have left a defence under section 15C to the jury. It was contended that the evidence taken at its highest in favour of Ormond could have led a reasonable jury, properly instructed, to conclude on the balance of probabilities that Ormond genuinely believed the victim to be committing or to have just committed a home invasion. It was said that it was the responsibility of the trial Judge to put to the jury every lawfully available defence open on the evidence, even if counsel had not put that defence or had expressly abandoned it.
It is important to recall that section 15C stipulates that Ormond bears the onus of proof, being that of the balance of probabilities. Further, section 15C makes it plain that the statutory defence turns upon Ormond’s state of mind; that is, his subjective state of mind and, in particular, whether he genuinely believed the victim to be committing, or to have just committed, a home invasion.
There must be evidence upon which a trial judge could properly direct the jury that the defence is open as a matter of law. In a case in which a defendant bears an onus, any evidence in the case can be relied upon. Proof of a person’s state of mind is a fact that can be proved by circumstantial evidence. The question is whether there was evidence that could lead a reasonable jury, properly instructed, to conclude on the balance of probabilities, that the defence was established.
The primary submission of the Director was that there was an insufficient basis on the evidence to allow the necessary state of mind of Ormond to be established. Ormond did not give evidence at trial. Consequently, the question for the Court was whether there was evidence, taken at its highest, that could have led a reasonable jury, properly instructed, to conclude on the balance of probabilities that the defence could be established.
There was no dispute at trial that Mannix had commenced the altercation and was the aggressor. Further, there was no dispute that Melbourne was present and must have seen the commencement of the incident. On the evidence, it was open for the jury to conclude that Ormond came outside of the house at a time when an attack was underway. Further, when Ormond came upon the scene, it may be safely concluded that it would have been obvious to him that the deceased was well away from the house and, in particular, any entry point into the house. This is an important factor as the relevant state of mind is a genuine belief that the deceased was committing or had just committed a serious criminal trespass in a place of residence.
Defence counsel contended that five items of evidence gave rise to an arguable defence under section 15C. In my view, none of the evidence was relevant or probative in establishing such a defence. It is to be recalled that the defendant did not give evidence or call any other evidence.
Defence counsel referred to a series of SMS messages exchanged in the hours prior to the incident. The SMS messages sought to be relied on preceded the incident and were between Mannix and a woman. There was no basis to conclude that Ormond knew of the messages. Even if he was aware of them, the messages added nothing of relevance.
Defence counsel then referred to an out of court statement by Melbourne to police. This statement was tendered against Melbourne and was not admissible in the case for or against Ormond. In this respect, the Judge directed the jury:
… You remember the evidence of Darren Wurst who says that he saw Melbourne exit their house at the front door, then went back inside. At about 2.51 a.m. he asked Melbourne to leave the house to take a witness statement from him and he took that statement at 3.25 a.m. You remember he took that statement from Mr Melbourne, that is an exhibit, P36, and I just read that portion of the evidence in relation to that statement.
That statement is not to be used against Mr Ormond, not in the case against Mr Ormond, in any way and it is not evidence. It is a statement made out of court but it is material you can take into account when bearing in mind the defence of Mr Melbourne.
Melbourne’s out of court statement was not probative of Ormond’s state of mind at the relevant time.
Defence counsel next referred to a 000 call made by the son of Mannix. The transcript of this call was not evidence of the truth of its content. The Judge directed the jury in the following terms:
You remember also the 000 call that was tendered as P46 and the transcript of that call P46A which was a call by Mr Mannix junior to the police at the time. I direct you once again that is not evidence of what happened. It is not evidence of the truth of what he saw when he described the scene. However, it is evidence that he was there at the time and you will remember the arguments of counsel as to what you might make of that. Ladies and gentlemen, that is a summary of the prosecution case.
This exhibit was not probative of Ormond’s state of mind.
Defence counsel next referred to a statement by Mannix to a police constable in the terms, “They came into my house and he bit me” and Ormond then said, “They wanted a war”. No evidence supported his assertion. The eyewitness evidence was to the contrary. Ormond’s statement was not probative about his belief that there was a home invasion.
Finally, defence counsel referred to the evidence of Mr Goodridge that the altercation commenced with Mannix being in the front yard and the deceased on the footpath and ended with the deceased being in the front yard. Counsel further referred to Ormond entering the scene at a time when the deceased was in the front yard. To my mind, this evidence was not probative of Ormond’s belief concerning a home invasion. When regard is had to the eyewitness accounts, it is evident that the deceased was dragged into the front yard and was on the ground being attacked at the time Ormond entered the scene. The deceased was nowhere near any entrance to the house.
I return to the terms of section 15C. That section requires the relevant state of mind of a defendant to be that a trespass in a place of residence is being committed or has been committed. This wording may be contrasted with the terms of section 15A. Section 15A extends to taking defensive action to “prevent” a trespass to land. This would appear to encompass the taking of defensive action against preparatory steps to the commission of the trespass.
Given that section 15C provides a complete defence to what would otherwise be unlawful conduct by removing altogether the need for reasonable proportionality, it is hardly surprising that Parliament has narrowed the circumstances in which the complete defence will apply. When the belief falls outside of what is required for section 15C, then section 15A defences are available.
It was not open on the evidence to conclude that Ormond could have believed that the deceased had “just committed” a home invasion. The deceased had not been near the house. Ormond had been inside and was in a position to know of this state of affairs. At best, what confronted Ormond was the deceased involved in a struggle at a point barely within the property and at least 10 metres from the front door of the house. Such a circumstance did not provide an adequate basis to conclude on the balance of probabilities that Ormond genuinely believe the deceased “to be committing” a serious criminal trespass in a place of residence.
As noted above, section 15C only applies if there is a reasonable possibility that the act the subject of the charge was defensive. At trial, Ormond did not claim to have acted in self-defence with respect to the charge of murder and did not submit to the jury that anyone else had done so. His case was that he had not delivered the fatal blow and was not otherwise responsible for it. Counsel specifically informed the jury that he was not going to make any submission on the issue of self-defence with respect to the charge of murder.
Ormond gave no evidence as to his state of mind and there was no evidentiary basis for concluding that it was even possible that he held the relevant state of mind. It was not reasonably arguable that a section 15C defence could have been made out.
Notwithstanding Ormond’s non-reliance on self-defence, the Judge left self-defence pursuant to section 15 to the jury. There was no complaint about this aspect of the summing up.
Section 15A – Defence of Property
Section 15A is in the following terms:
15A—Defence of property etc
(1)It is a defence to a charge of an offence if—
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable—
(i)to protect property from unlawful appropriation, destruction, damage or interference; or
(ii)to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or
(iii)to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and
(b)if the conduct resulted in death—the defendant did not intend to cause death nor did the defendant act recklessly realising that the conduct could result in death; and
(c)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist1.
(2)It is a partial defence to a charge of murder (reducing the offence to manslaughter) if—
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable—
(i)to protect property from unlawful appropriation, destruction, damage or interference; or
(ii)to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or
(iii)to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and
(b)the defendant did not intend to cause death; but
(c)the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.2
(3)For the purposes of this section, a person commits a criminal trespass if the person trespasses on land or premises—
(a)with the intention of committing an offence against a person or property (or both); or
(b)in circumstances where the trespass itself constitutes an offence or is an element of the offence.
(4)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
Notes—
1See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, this paragraph will be inapplicable.
2See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, the defendant will be entitled to a complete defence.
The defendant complained during the appeal that the trial Judge erred in failing to direct the jury on a defence available pursuant to section 15A. It is to be observed immediately that this was not part of the defence case at trial. The defendant did not request that such a defence be left to the jury.
The defendant, in support of this ground, did little more than assert that, on the evidence, the section 15A defence should have been left. There was no condescension to any particularity.
Section 15A is relevant where an action might be defensive to protect property, as defined in section 5 of the Act.[8] Section 15A encompasses conduct in response to a mere trespass on land. Section 15A, unlike section 15C, requires the conduct to be reasonably proportionate to the threat. At trial, the jury, it may be reasonably inferred, rejected that the conduct in counts 1 and 2 might have been reasonably proportionate to a personal threat. A personal threat is a far more serious thing than a mere threat to property. This being so, the jury, it may be reasonably inferred, would have rejected the notion that the conduct might have been reasonably proportionate to a threat to mere property on a trespass on land. Further, as the defendant’s closing address makes plain, it was the defendant’s case that his undisputed conduct in count 2 might have been in response to a personal threat.
[8] Section 5(1) of the Criminal Law Consolidation Act 1935 (SA) defines “property” as:
… real or personal property whether tangible or intangible and includes a wild animal that is in captivity or ordinarily kept in captivity….
Section 15A was not raised at trial. The defence did not arise on the evidence. Even if relevant, no miscarriage could have arisen through the failure to direct on section 15A.
An Exchange between Ormond and Mannix
As earlier noted, evidence was led in the trial that after the incident, Mannix was heard to say, “I fucking did it”. Ormond was heard to say in response, “No, you didn’t”. There was no dispute that this exchange took place. Although defence counsel initially appeared to argue that the evidence should not be admitted, counsel subsequently raised the issue again and sought the evidence to be led. Consequently, there was no objection to the evidence being before the jury. There was no cross-examination with respect to these statements. It appears that neither counsel addressed the jury on this evidence.
When summing up, the members of the jury were directed that they could not infer an admission of guilt by Ormond from what had been said, but that otherwise the use the jury could make of this evidence was a matter for them. The direction was as follows:
He said that Mr Melbourne came to the front door and remained in the house, and he also said that the shirt of Mr Rankine, the deceased, appeared to be wet. He then gave evidence of a conversation in which Mr Mannix said ‘I fucken did it’ and Mr Ormond replied ‘No, you didn’t’. What you make of that conversation is a matter for you but I direct you that it cannot be used as an admission of guilt by Mr Ormond, bearing in mind the circumstances and the nature of that comment.
The same direction was given during the course of the trial following the giving of the evidence.
The position of the defence was readily understandable having regard to the defence submission that the plea of Mannix should be before the jury. There was a forensic advantage to Ormond in having the admission of Mannix in evidence. A price of having the Mannix statement before the jury was that the response of Ormond would also be admitted.
To my mind, the evidence was admissible. The Judge’s direction was unduly favourable to Ormond. Ormond made a forensic choice at trial. It would appear that this complaint is the result of different counsel on appeal than at the trial taking a different approach to an evidentiary matter. There is no risk that a miscarriage of justice arose. There is no substance to this complaint.
A Further Statement by Mannix
As earlier noted, evidence was led at trial that, after the incident, Mannix was heard by a police officer to say, “Get the body off my lawn, this is my property”. The evidence further established that Ormond was calling out at this time, but the police officer could not say what was said. Neither counsel addressed on this evidence. When summing up, the Judge simply reminded the jury of the evidence.
Ormond complained that the Judge failed to direct as to the permissible and impermissible uses of the evidence. However, Ormond had not identified any impermissible use that may have been made of the evidence. There was none.
Mannix’s conduct and statement were inconsistent with the attack on the deceased having been defensive as it showed an aggressive and dismissive attitude toward the deceased. If the members of the jury were satisfied that Mannix was part of a joint enterprise with Ormond, then evidence of Mannix’s state of mind was relevant and admissible.
As there was no objection to the evidence, it is open to conclude that Ormond’s counsel saw a forensic advantage in the evidence being led. The defence case at trial was that Ormond had not inflicted the fatal blow. It was in his interests to establish that Mannix was belligerent and completely unconcerned for the welfare of the deceased. It may have increased the likelihood that Mannix was responsible for what happened to the deceased.
Ormond further complained that the Judge had attributed the impugned statement to both Mannix and Ormond. It does appear that the Judge made an error in this respect. At the end of the summing up, the Judge invited counsel to raise any matters of concern. Counsel for Ormond did not raise this error. It apparently had not struck counsel as being a significant matter. It is relevant to note further that the evidence had not been the subject of submissions by any counsel. This illustrates the insignificance with which the evidence was viewed. Having regard to the foregoing, I do not consider that this error by the Judge could give rise to any risk of a miscarriage of justice.
Inconsistent Statements
On the appeal, counsel for Ormond drew attention to prior inconsistent statements having been made by both Mr Goodridge and Mr Madlur. Defence counsel addressed at some length on the issue of inconsistent statements.
The Judge, when summing up, directed the jury with respect to the most significant of the allegedly prior inconsistent statements. In the course of his summing up, the Judge observed:
There is one other matter of law before turning to the facts. During the course of the trial you have heard evidence of statements given by witnesses out of court. You remember there has been a degree of cross-examination of, in particular, eyewitnesses about what they might have said to police officers or other people on other occasions. Let me direct you about the use to be made of that type of evidence. The cross-examination of a witness as to why they said on another occasion things which might be inconsistent with what they now say in court is a perfectly proper and legitimate means of testing both their reliability and their truthfulness and for that purpose you are presented with that type of cross-examination, details of what they might have said on other occasions which may or may not be inconsistent with what they now say and you heard their explanation and reactions to those inconsistencies. I direct you that that is a perfectly normal part of the trial process. If you have an argument with someone, ‘You said something different the day before than you are saying now’ you are testing what they are saying now. It is a perfectly proper way of going about it.
However, it is important that I direct you that those comments that are made out of court, namely the statements they give on other occasions, are not evidence of the truth unless they are adopted in this courtroom. Evidence of what a witness says happens is what he says in this courtroom under oath. If they say something in another place which is different and they do not adopt that as the truth in giving evidence here, as I said, that is important material that you can use in weighing up whether they are accurate in court or telling the truth in court. However, what they say in that other place is not evidence itself of what happened. It is what they say in this courtroom that is important. You remember there was some statements made by Mr and Mrs Madlur to the police, there was the filming of a conversation between Mr Goodridge and police officer Thiele in the back of the car, they can be used for the purpose of testing their evidence here but what they say of itself is not evidence of what happened. I hope that is clear, ladies and gentlemen.
Similar directions were given on this issue during the course of the trial. At the conclusion of the summing up, no further direction was sought by defence counsel.
In my view, there is no substance to this complaint.
Self-Defence – Count 2
In the course of summing up, the Judge directed the jury with respect to self-defence and count 2 as follows:
Ladies and gentlemen, the question of self-defence also has to be considered in relation to count 2. However, it is in a slightly different varied form than that of murder. The same general comments I made about self-defence in relation to murder apply to this charge. However, the difference is this: that for there to be a defence if all the other elements are made out, firstly the defendant must genuinely believe that the conduct to which the charge related, and this was the fracturing of the skull on Mr Rankine-Meredith, was necessary and reasonable for a defensive purpose and the conduct was in the circumstances as the defendant genuinely believed them to be reasonably proportionate to the threat that the defendant genuinely believed to exist, in this situation, bearing in mind that the onus of proof is on the Crown, in the same way as my directions for murder, even if the defendant genuinely believed the conduct was necessary and reasonable for defensive purposes but you looking at the position that he was in found his actions were not proportionate to the threat as he saw it, then there would be no question of self-defence.
That is unlike the situation in murder. In murder you have the alternative verdict of manslaughter if the accused’s actions were disproportionate to the threat. In saying that I am at pains to tell you, however, and direct you, that the onus of proof is upon the Crown. They must prove beyond reasonable doubt that the defendant did not genuinely believe that the conduct was necessary and reasonable for the defensive purpose or must prove beyond reasonable doubt that the conduct and the circumstances as the defendant genuinely believed them to be was reasonably proportionate to the threat that the defendant reasonably believed them to exist. The bottom line is in relation to count 2, if bearing in mind the onus of proof, he genuinely believed he had to act in self-defence but what he did was out of proportion, then you can forget about self-defence. Both limbs must exist. The onus, however, is on the Crown to prove that either limb did not exist.
Initially, defence counsel at trial complained about this direction. That complaint was that the direction might suggest that the genuine belief had to be with respect to the injury caused; that is, that the direction was made with respect to the consequences rather than the conduct of Ormond. However, the complaint was expressly abandoned and counsel informed the Judge “[i]n fact on consideration I withdraw the request that your Honour elaborate on that”.
The Director submitted that it is open to conclude that there was no error in the direction. It was said that, properly understood, the Judge was directing the jury’s attention to the conduct the subject of the charge; namely, the blow or blows that fractured the skull of the victim. It was necessary to focus attention to the relevant injury as the victim had been the subject of a sustained attack that included more than one blow. The Judge was not suggesting that a genuine belief as to the specific consequence had to be excluded as a reasonable possibility.
In considering the question of genuine belief as to the conduct, the degree of force involved in that conduct cannot be ignored. The degree of force is an essential feature of the conduct and important when assessing whether the conduct is defensive and reasonably proportionate. The direction given is also capable of being viewed as one that directs attention to essential aspects of the conduct. Further, it is to be borne in mind that the Judge gave repeated directions to the effect that the honest and reasonable belief related to the conduct.
Even if there was a misdirection, no risk of a miscarriage arises. The evidence was that “significant” force was needed to inflict the injury. There was no evidence that the victim was armed. The injury was likely to have been inflicted with a weapon. The injury was in all likelihood inflicted when the deceased was on the ground. In these circumstances it was not a reasonable possibility that the force required to inflict the injury was either defensive or reasonably proportionate.
The fatal attack on the deceased preceded the attack on Mr Rankine-Meredith giving rise to the second count. It may be reasonably inferred that Mr Rankine-Meredith was going to the aid of the deceased. If that is so, the only reasonable inference to be drawn is that the conduct toward Mr Rankine-Meredith in count two cannot have been defensive.
I do not consider that the construction of the summing up advanced by defence counsel is open but, in any event, there is no risk of a miscarriage of justice arising. This ground of complaint should be rejected.
The Plea of Guilty by Mannix
As noted above, before Ormond’s trial commenced, his former co-defendant, Mannix, pleaded guilty to both counts on the Information.
Ormond’s counsel at trial requested that the pleas of guilty be led in evidence. The prosecution agreed. The pleas were the subject of the prosecutor’s opening and also an agreed fact.
This topic of the relevance and admissibility of pleas of guilty has been discussed in several authorities. In Moore, Lord Goddard CJ observed:[9]
… When two people are indicted together for a criminal offence and one pleads Guilty and the other does not, it is the commonest thing in the world to tell the jury, as was done in this case, “You must not pay any attention to the fact that the other man has pleaded Guilty.” Even if the plea has not been taken in the presence of the jury, it is very difficult to avoid telling the jury in some way that the other person has pleaded Guilty, but the fact that he has pleaded Guilty is no evidence against his co-prisoner. …
In Cowell, Street CJ remarked that: [10]
The principle there enunciated is, notwithstanding a suggestion to the contrary, one which has always been recognised in the criminal courts of this State. When, in the course of a trial, one of a number of co-accused pleads guilty, that fact is, of course, inevitably known to the jury who must be invited (but not directed) to return a verdict in consequence of that plea. At the same time, trial judges are astute to ensure that juries are made plainly aware that a plea of guilty by a co-accused is not to be taken into account in the slightest degree in determining the question of guilt of those who remain in charge of the jury.
Lord Goddard comments that, even if the plea has not been taken in the presence of the jury, it is very difficult to avoid telling the jury in some way that the other person has pleaded guilty. This is by no means always the case. It is only permissible to tell the jury that another person has pleaded guilty if that is a necessary part of the overall material that the jury must have before them.
I would agree with the observations of Street CJ that it is only permissible to tell the jury that another person has pleaded guilty if it is a necessary part of the overall material that the jury must have before them. I also agree that where a jury does learn that a co-offender pleaded guilty, the jury should be informed of the limited use that they are entitled to make of that piece of information.
[9] R v Moore (1956) 40 Cr App Rep 50, 53-54.
[10] R v Cowell (1985) 24 A Crim R 47, 50.
The evidence of the plea of guilty by Mannix came with a forensic advantage for Ormond on the charge of murder. On the defence case, Mannix’s plea would be seen by the jury to be consistent with Ormond’s case at trial that Ormond had not inflicted the fatal blow.
Further, it is relevant to observe that the risk of misuse was as significant in the case against Melbourne as it was in the case against Ormond. The jury did not use the plea of guilty to reason to guilt with respect to Melbourne. He was acquitted of both counts.
The Judge gave directions that Mannix’s pleas could not be used in any way against Ormond:
At this stage it is important to direct you about one matter. The person Duane Joseph Mannix who the Crown alleged in the original charge as being one of the people involved in this offence is not here. You have heard by way of agreed fact that he has pleaded guilty to both of these charges before the court. Ladies and gentlemen, the fact that he has pleaded guilty cannot be used against either of these accused. What he did is a matter for him. His state of mind and the course he took is not evidence against these men. This case has to be looked at quite separately in relation to them and upon the evidence you hear in this courtroom. …
…
Once again you have heard by agreed facts that Mr Mannix has pleaded guilty to the charge and that fact that he has pleaded guilty to that charge cannot be used against the two accused.
The direction given in the summing up, and extracted above, ensured that there was no risk of a miscarriage of justice.
Miscarriage of Justice
On the appeal, it was contended that when the complaints advanced by Ormond were viewed collectively, it gave rise to a real risk that a miscarriage had occurred. Earlier I have discussed each of the grounds of complaint and found none to be of substance. A review of the evidence of the trial and the summing up of the Judge confirms that there is no risk that a miscarriage of justice arose.
Conclusion
I would dismiss the appeal against both convictions.
WHITE J. I agree that the appeal should be dismissed. Subject to the qualifications contained in the reasons of Peek J, I agree with the reasons of Gray J.
PEEK J. I have had the advantage of reading in draft form the judgment of Gray J. I respectfully agree with his summary of the facts, with his conclusion that there is no real risk here of a miscarriage of justice and with the orders he proposes. I simply add the following remarks.
It seems to me that a function of a Court of Criminal Appeal is to provide a mechanism for a full and independent appellate review in all cases of miscarriage of justice and, accordingly, the Court will sometimes need to consider new matters not raised at trial.
As a ready example, there are many authorities concerning the independent responsibility of a trial Judge to direct the jury as to all defences arising on the evidence even if trial counsel has taken a deliberate tactical position of eschewing such defences. It is plain that a trial Judge is obliged to direct as to all elements of the charge, all possible defences as to which there is any factual basis in the evidence and the legal effect or significance that a matter referred to in evidence may have on the ingredients of the charge or on any of the possible defences. An appeal on the basis of a trial Judge’s failure to do so may be allowed even though counsel at trial actively opposed such directions as being disadvantageous to the defendant. In Pemble v The Queen the High Court emphasised the distinction between civil and criminal trials and the independent duty of the trial Judge in a criminal case.[11] Barwick CJ said:[12]
Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.
…
Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial Judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused. I should mention in this connexion that this is an appeal and not an application for special leave to appeal.
[11] (1971) 124 CLR 107, 117(6)-118 (Barwick CJ); 132(8)-133 (Menzies J); 139(2) (Windeyer J).
[12] Ibid 117-118.
This decision and the principles there formulated have been approved by the High Court on many subsequent occasions[13] and have been consistently applied in South Australia[14] and throughout Australia. For a recent South Australian application of this principle in a case with some similarities to the present, see R v Roberts.[15] A helpful exposition of one aspect of the rationale for the rule is found in the Victorian Court of Criminal Appeal decision in R v Longley[16] where Sholl J stated:[17]
… on the whole it is a wise rule. It is aimed at the greater protection of accused persons, lest they suffer greater punishment than their deeds actually merit. It is designed to protect them from the possible consequences alike of their own optimistic falsehoods, forensic or otherwise, or of the misplaced ingenuity, erroneous judgment, or mere incompetence of their advisers. At first sight it might seem sound to say that an accused should be bound by the case he or his advisers make at the trial. In a civil case, there is a lot to be said for that proposition, and generally speaking, that is the law in the civil courts. But in the criminal courts, though it might still be poetic justice, it is not legal or social justice. To apply such a principle would, in effect, be to risk, eg punishing perjury with the penalty appropriate to murder, or misguided advocacy by imprisonment of the advocate’s client.
[13] Howe v The Queen (1980) 55 ALJR 5; Varley v The Queen (1976) 51 ALJR 243; Van Den Hoek vThe Queen (1986) 161 CLR 158; Pantorno v The Queen (1989) 166 CLR 466; BRS v The Queen (1997) 191 CLR 275; Suresh v The Queen (1997) 72 ALJR 769; Gipp v The Queen (1998) 194 CLR 106; Gillard v The Queen (2003) 219 CLR 1; Fingleton v The Queen (2005) 227 CLR 166; CTM v The Queen (2008) 236 CLR 440; Pollock v R (2010) 242 CLR 233; Braysich v The Queen (2011) 243 CLR 434.
[14] Discussion in South Australia includes: R v Perks (1986) 41 SASR 335; R v Murphy (1988) 52 SASR 186; R v Earley 1990 (S.Aust CCA Jud Nos 2199-2201); R vBall, Bunce & Callis (1991) 56 SASR 126; R v Shinner (1993) 173 LSJS 384; Bedi v The Queen (1993) 61 SASR 269; R v Williamson (1996) 67 SASR 428; R v B, MA (2007) 99 SASR 384; R v Tilley (2009) 105 SASR 306; R v Hajistassi (2010) 107 SASR 67; R v Roberts (2011) 111 SASR 100.
[15] (2011) 111 SASR 100, 115.
[16] [1962] VR 137.
[17] Ibid 140.
I respectfully note the remarks of Gleeson CJ in Crampton v The Queen[18] but I do not consider that they are inconsistent with my above remarks or the various authorities of the High Court to which I have referred.
[18] (2000) 206 CLR 161, [15]-[20].
Of course, to say that a Court of Criminal Appeal may sometimes have to entertain argument on matters not raised at trial is one thing. To say that an appeal will necessarily be allowed on the basis of such matters is quite another.
This brings me to the second and separate matter to which I wish to refer which is the matter of the statements made by the person Mannix who had pleaded guilty. I entirely agree with Gray J’s assessment of the background circumstances under which this material came before the jury. It was the understandable and reasonable strategy of trial counsel to suggest that Mannix was the true culprit to the exclusion of the appellant and it was therefore rightly seen as advantageous to have before the jury incriminating statements made by Mannix, including his plea of guilty to murder. As it happened, the appellant was convicted but in the present circumstances that does not mean, or even tend to indicate, that the strategy was inappropriate.
It is an arid and unproductive line of appeal to argue that all or some of that material was inadmissible and therefore, ipso facto, an appeal must be allowed. I agree with Gray J that the admission of the evidence in fact favoured the appellant and, if that material was inadmissible, the present is a clear case of there being no real risk of a miscarriage of justice. That is the basis upon which I would decide this appeal. I would simply add that in the light of certain decisions of the High Court, including the recent decision in Baker v The Queen,[19] I would wish to reserve my position on the question of the strict admissibility of the particular items of evidence in this case and as to the precise status of cases such as R v Moore[20] and R v Cowell.[21]
[19] (2012) 289 ALR 614.
[20] (1956) 40 Cr App Rep 50.
[21] (1985) 24 A Crim R 47.
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