R v Pascoe - [2004] SASC 420

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PASCOE
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Nyland and The Honourable Justice Gray)
13 December 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
The appellant appealed against his convictions for aggravated serious criminal trespass in a place of residence and threatening life - the Crown case was that he broke in through a window and assaulted his de facto partner - the evidence raised as a distinct possibility that he had in fact been in the premises consensually and did not break in - held that the trial judge failed adequately to direct the jury as to the elements of criminal trespass, particularly as to the approach to be taken if it was possible that the appellant had been in the premises beforehand - consideration of question whether a re-trial should be ordered - evidence equivocal and the appellant had already spent two years in gaol - conviction quashed and verdict of acquittal substituted.
Criminal Law Consolidation Act 1935 s 168, referred to.

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - COMPETENCE AND COMPELLABILITY - COMPETENCE TO TAKE OATH
During the course of a criminal trial, the Crown called a ten year old child to give evidence on oath - on appeal, consideration of the question whether the trial judge had properly satisfied himself as to whether the witness had a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence - observations as to the procedure which should be followed - held that the inquiry by the trial judge was not adequate to support his ruling that the witness give evidence on oath.
Evidence Act 1929 s 9(1), referred to.
R v Starrett (2002) 82 SASR 115; R v Climas (Question of Law Reserved) (1999) 205 LSJS 139; R v P, BR [2004] SASC 323, Court of Criminal Appeal, 15 October 2004 (unreported), considered.

R v PASCOE
[2004] SASC 420
Court of Criminal Appeal: Perry, Nyland and Gray JJ

PERRY J. The appellant was presented for trial in the District Court on an information which alleged three counts, namely, aggravated serious criminal trespass in a place of residence, threatening life, and shooting at with intent to do grievous bodily harm.
Following a trial before a judge and jury, the appellant was convicted on the first two counts, but acquitted on the third count, that is, the shooting charge.
He appealed to this Court against the convictions.
Following a hearing on 22 July 2004, the Court ordered that both convictions be quashed, and that there be substituted verdicts of acquittal. The Court reserved the right to publish reasons at a later date.
My reasons for concurring in that order, follow.
I will call the alleged victim of each of the charges L.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Pascoe

Details

AGLC: R v Pascoe [2004] SASC 420
Case: [2004] SASC 420
Decision Date: 13 December 2004

CaseChat Overview and Summary

In the case of R v Pascoe, the appellant sought to appeal his convictions for aggravated serious criminal trespass in a place of residence and threatening life. The Crown's case was that the appellant had broken into a residence and assaulted his de facto partner, but the evidence suggested that the appellant may have been in the premises consensually and did not actually break in. The appeal focused on the trial judge's direction to the jury regarding the elements of criminal trespass, particularly in scenarios where there was uncertainty about whether the appellant had been in the premises beforehand.

The legal issues central to the appeal were whether the trial judge had adequately directed the jury on the elements of criminal trespass and if there was a sufficient basis for the jury's verdict given the ambiguous evidence. The court examined whether the trial judge's directions were comprehensive enough to allow the jury to properly consider all factual possibilities and whether these directions were sufficient under the circumstances presented. The appellant argued that the trial judge's failure to adequately address these elements constituted a significant misdirection, potentially affecting the jury's decision.

The court concluded that the trial judge did not sufficiently guide the jury on how to approach the elements of criminal trespass, especially considering the equivocal nature of the evidence and the various scenarios it opened up. Given the uncertain evidence and the fact that the appellant had already spent over two years in custody, the court determined that a re-trial was not warranted. Consequently, the convictions were quashed, and verdicts of acquittal were substituted in their place. This decision was based on the court's assessment that the misdirection by the trial judge was significant enough to warrant setting aside the convictions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At all events, for the reasons which I have given, in my view, insufficient guidance was given by the trial judge to the jury as to how they should deal with the elements of the offence, particularly having regard to the unsatisfactory state of the evidence and the various factual scenarios which it opened up.The preliminaries to N giving evidence on oath Section 9 of the Evidence Act relevantly provides:“9.(1) A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.(2) If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that-(a)the judge-(i)is satisfied that the person understands the difference between the truth and a life; and(ii)tells the person that it is important to tell the truth; and(b)the person indicates that he or she will tell the truth.(3) In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit. …” The reference to a person in s 9(1) applies to a person of any age. It follows that N was presumed to be capable of giving sworn evidence unless the trial judge determined that he did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. The approach to be adopted in addressing that question was the subject of comment by this Court in R v Starrett[1] and in R v Climas (Question of Law Reserved).[2][1] (2002) 82 SASR 115.[2] (1999) 205 LSJS 139. In Starrett, Doyle CJ indicated that it was preferable for the judge rather than counsel to question a witness before determination is made under s 9(1), and that it was desirable that the determination be recorded in the transcript with brief reasons.[3][3] Ibid 119. He further held that:“The legislative provisions found in s 9 cannot be dismissed as mere matters of form. Parliament has made it plain that evidence is to be given on oath unless the presumption that the witness is capable of giving sworn evidence is rebutted. Parliament has also made it plain that appropriate inquiries are to be made before a decision is made as to whether evidence is given, sworn or unsworn.”[4][4] Ibid par 15. In Climas, Lander J, with whom Millhouse J agreed, said:“The Act does not indicate what the understanding of the obligation to be truthful entailed in giving sworn evidence is. It must be more than simply an understanding of an obligation to be truthful otherwise the Act would only have required an understanding to be truthful in giving evidence and not included specifically ‘sworn evidence’.Because of the provision of s 9(2) it must be more than simply an understanding of the obligation to be truthful. That subsection allows for a person who understands the difference between a truth and a lie and also indicates that he or she will tell the truth to give unsworn evidence.Section 9(1) contemplates an obligation more than simply an obligation to be truthful. In my opinion, what is contemplated in s 9(1) is an understanding that, in giving sworn evidence, the person is thereby accepting the solemnity of the taking of an oath or the making of an affirmation and the sanctions which would follow, both morally and legally, if that person failed to comply with the obligation to tell the truth. It is not simply the legal obligation which attaches to sworn evidence which is important.” [5][5] Ibid 164.

Decision

Reasons for decision

PERRY J NYLAND J GRAY J

While I agree that there is no rigid form of questioning which must be put in every case, and while cases will differ as to what is required, in this case I am of the view that the matters to which I have made reference ought to have been canvassed in order to provide a proper foundation for the determination required by s 9.Conclusion Very fairly, at the outset of the hearing of the appeal, Mr Muscat of counsel for the DPP indicated his concern as to both of the matters which I have dealt with. The Court then heard short argument on the matter before making its order disposing of the appeal. Before concurring in the order, I considered whether or not it would be proper to order a re-trial. As did the other members of the Court, I decided against that course, given the difficulties in the evidence associated with proof of the circumstances in which the appellant was present in the house at the time in question, whether it would have been open to a jury to conclude that he was a trespasser, and given the fact that he had already spent over 2 years in custody at the time when the appeal came on for hearing. For these reasons, I concurred in orders quashing the convictions and substituting verdicts of acquittal. I agree with the reasons published by Perry J in making the orders setting aside the convictions and substituting verdicts of acquittal. On 22 July 2004 I joined in this Court’s orders setting aside the appellant’s convictions and substituting verdicts of acquittal. I have nothing to add to the reasons published by Perry J for the making of those orders.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J, NYLAND J, GRAY J

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