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. The Crown case was that L had entered into a relationship with the appellant about 18 months before the events in question. It was an on-off relationship, punctuated by violence on his part. Her evidence was that she had broken off the relationship about three months beforehand, and that she had moved into the subject premises with her two children, about two days before the offences were alleged to have occurred.
She said that she was asleep on the lounge in the lounge room of the house at about 7.30 pm, when she was woken up by screams from her 9 year old son, N. He was yelling out that “Chris” (the appellant) was trying to break in. She said that when she awoke, the appellant was standing over her, and that she noticed what she believed to be a gun pushed into the top of his pants.
She did not know how he had got into the house, as she had locked the doors. She said that she was frightened of him, and proceeded to run out of the back door. She alleged that the appellant then said that he was going to “fucking kill” her, following which she heard what she thought was the gun being loaded and then a gun shot.
She said that the appellant then followed her outside and pinned her to the ground while he punched her. N attempted to separate them. At one stage she ran off down the front driveway, but he caught her again and continued to assault her. Eventually N ran to a neighbour’s house to summons help, following which police arrived and arrested the appellant.
N, who was aged 10 at the time of the trial, gave evidence on oath. He said that he had seen the appellant outside the house, breaking his bedroom window with what he thought was a spanner. He said that the appellant entered the house through the broken window and that he then approached L and asked her for a cigarette. He said he saw the gun pushed down the appellant’s pants. The appellant appeared to be “picking on” L, following which she ran out of the back door, after which the appellant fired a shot from inside the house. He said that a second shot was fired after L had run to the front of the house, and that he saw the appellant punching and hitting her.
The Crown called a neighbour, Ms Smith, who remembered N coming to her door and asking her to call the police, which she did. From the driveway in her front yard she was then able to see the altercation between the appellant and L taking place in the front of L’s house, which was opposite. Ms Smith crossed the road and picked up L’s daughter and brought her back to her own house. She continued to hear yelling and screaming, and then a little later she saw a man, who very likely was the appellant, smash a window in the house.
The appellant did not give evidence, but called two witnesses.
One of them, Ms Cameron, gave evidence that she was visited by the appellant and L earlier on the day in question, which contradicted L’s evidence that she was alone with her children in the subject premises throughout the day. Ms Cameron’s evidence also suggested, if true, that the appellant and L were associating at the time, contrary to L’s evidence that they had separated.
The appellant’s mother was called to give evidence of an occasion when L had said that she had a gun. That was said to support the assertion put in cross examination of L by counsel for the appellant that the gun was hers; that the appellant became incensed when he found the gun in her handbag while looking for cigarettes; that they struggled and that during the course of the struggle it accidentally discharged.
Leave to appeal was given on seven grounds, which were enlarged by a further ground at the commencement of the hearing of the appeal. Most of the grounds relate to the trial judge’s directions to the jury.
For present purposes, it is only necessary to have regard to two grounds, being grounds which raised the issues which prompted the quashing of the convictions.
The two grounds in question are that the trial judge erred in directions which he gave as to the elements of aggravated serious criminal trespass; and that he erred in the procedure which he followed in addressing the question whether or not N had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, having regard to the provisions of s 9(1) of the Evidence Act 1929.
I deal with each of those points in turn.
Direction as to aggravated serious criminal trespass in a place of residence
Although the particulars of this offence as pleaded in the information assert that the appellant “entered or remained” in the place of residence of L, from start to finish, the Crown case was presented on the basis that he entered as a trespasser, more particularly by breaking the window at the front of the house.
However, the evidence raised a very real issue as to whether or not the appellant and L were in fact living together at the time, and that he may have been in the premises before the altercation erupted between them. As to that possibility, it is significant that, contrary to the evidence given by his mother, N’s evidence was that the appellant was living with his mother and the two children in the subject premises at the time of the alleged offence.
Clearly, a direction as to that possibility would need to deal with the issue of consent, knowledge of consent, and the appellant’s intention to trespass.
The evidence as to the precise circumstances in which the appellant was said to have entered the premises was, to say the least, unsatisfactory.
In one of her statements to the police, which was tendered in evidence, L had said that the appellant broke in through a door. She did not, however, acknowledge the truth of that when in the witness box.
There was no evidence of any door to the premises being broken, or of having been forced.
As I have said, the Crown case proceeded throughout on the basis that the appellant had entered through the broken window. While this was N’s evidence, it does not square with the evidence of Ms Smith, the neighbour, who might be thought to be a witness with no axe to grind. She was adamant that the window was not broken until after she had seen the appellant and L struggling in the front yard.
It was suggested in the cross examination of L that it was N, and not the appellant, who had smashed the window.
There was a photograph of the broken window, and one of the police witnesses gave evidence that he agreed that it would be difficult to enter the house through the broken window without suffering some injury. There was no evidence that the appellant suffered any lacerations or the like.
Given the unsatisfactory nature of the evidence as to the smashing of the window, and the evidence, including that of N, which, if accepted, would support the view that the appellant was living at the house with L at the time, a careful direction was necessary as to how the jury should approach the question whether the Crown had satisfied the onus of proving that the appellant was a trespasser.
In his summing up, the trial judge said very little about the mental element involved in proof for the purposes of count 1, that the appellant was a trespasser.
In giving to the jury a direction as to the elements involved in aggravated serious criminal trespass in a place of residence, the trial judge explained to the jury that there were four elements for them to consider. He summarised them as follows:
“The first element is that the accused entered a place of residence.
The second element is that the accused did so without the consent of the lawful occupier; in other words, the accused was a trespasser. You can accept that [L] was the lawful occupier of the residence, because the evidence shows that she was the sole tenant of the Housing Trust at the relevant time.
The third element is that the accused intended to commit an offence, namely an assault, upon the occupier, [L].
The fourth element is in the alternative, either [L] was lawfully present in the house and at the time of his entry the accused knew of her presence or was reckless about whether she was in the house or, at the time of his entry, the accused was in possession of an offensive weapon. Proof of one only of the alternatives would be enough to satisfy the fourth element.”
Later, he said:
“In relation to count 1, I make the perhaps obvious point that if the accused was living with [L] at the relevant time, and as you know, there is a dispute about this, the first and second elements of count 1 would still be satisfied by proof beyond reasonable doubt that the accused entered the house on the occasion in question without [L’s] consent.”
I agree with the submission of Mr Schapel of counsel for the appellant that the import of those directions was that the element of trespass would be satisfied by mere proof of an entry without consent. The direction went no further than to refer to entry without consent.
However, the prosecution also had to negate the possibility that the appellant believed that he had L’s consent, or had not given any thought to the question of her consent when he entered the premises.
Furthermore, the jury should also have been given a direction as to what the position might have been if the possibility could not be excluded beyond reasonable doubt that the appellant was living in the house and was present in the house before any altercation developed between him and L. This would have involved a direction as to whether in such circumstances consent to be in the premises should be regarded as having been revoked once the violence erupted, and whether in those circumstances, even if there was a consensual “entry”, the appellant was unlawfully “remaining” on the premises as a trespasser.
Difficult questions would then arise upon which the jury were entitled to have some guidance, particularly given that the Crown case was never presented on that basis.
There is a question, which it is unnecessary for me to address, whether a charge of criminal trespass in a place of residence can be made out if parties are living together in the house and a domestic dispute erupts, leading to violence on the part of the defendant. For example, I very much doubt that when there is a falling out between parties living together in premises owned or tenanted by one of them, leading to the commission by the other person of an offence to which s 168 of the Criminal Law Consolidation Act 1935 applies, the other person must necessarily be characterised as a trespasser for the purposes of the section.
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.
Later he said:
“Section 9(1) therefore, in my opinion, contemplates obligations attaching to sworn evidence which would not attach to similar statements made outside the court even though social obligations would suggest that those extra curial statements should also be truthful.
In my opinion, such a construction is consistent with the scheme of s 9(2) which provides for the taking of unsworn evidence. Unsworn evidence cannot be taken unless the Judge is satisfied that the person understands the difference between the truth and a lie and that the person indicates that he or she will tell the truth. Both of those criteria must be pre-requisites to giving sworn evidence as well as unsworn evidence. There must, therefore, be something more in sworn evidence apart from a recognition of the difference between truth and a lie and an undertaking to tell the truth. That recognition, in my opinion, embraces all the matters to which I have referred.” (emphasis added)
In this case, in the absence of the jury, N was questioned by both the trial judge and counsel for the prosecution. It would have been better if he had been questioned by the judge alone.
At all events, the questions and answers were recorded in the transcript as follows:
“HIS HONOUR
Q.[N], could you give me your full name.
A.[N].
Q.You appreciate that you have been brought into a courtroom.
A.Yes.
Q.Where serious matters will be discussed. You understand that.
A.Yes.
Q.The man standing with the gown and the wig on is going to ask you some questions. Will you do your best to answer his questions.
A.Yes.
MR PRESTON
Q.Do you understand that you are here in this courtroom to tell the court, when the time comes, about something that happened between your mum and a man called Chris Pascoe.
A.Yes.
Q.And do you know what it means if you were to take an oath to tell the truth.
A.Yes.
Q.What does it mean.
A.It means that you have to tell the truth.
Q.So if you were to tell the court what happened between your mum and Chris, if someone gave you the bible and asked you to tell the truth, would you know what that means.
A.Yes.
Q.What does it mean.
A.It means that you really, really have to tell the truth.
Q.And does it mean that you are not to depart from the truth in any way.
A.No. It means that you have to tell the truth.
Q.And that is what you understand an oath to mean.
A.Yes.
HIS HONOUR
Q.How old are you.
A.10.
Q.Can you tell me your birthday.
A.Yes, 3 June 1993.
Q.And what class are you in at school.
A.Grade 4.
Q.And what is the name of your teacher.
A.Miss [S].
Q.And how many students are in your class.
A.A couple.
Q.Beg your pardon.
A.I think there’s about 30.
Q.About 30.
A.Yes.
Q.What are your favourite lessons.
A.Football, and soccer and maths.
Q.Do you have any Bible studies or religious instruction at school.
A.No.
Q.I told you that you are in a courtroom. Do you understand that a courtroom is a very important place.
A.Yes.
Q.Because only the truth can be told in a courtroom.
A.Yes.
Q.Do you realise that it is much more important to tell the truth in a courtroom than it is in the schoolyard or at home.
A.Yes.”

After some further short discussion with counsel, the trial judge made a formal finding that the presumption in s 9(1) was not displaced, and he recorded a determination that N was capable of giving sworn evidence.
In my view, the questioning of N did not go quite far enough to provide a proper basis for the determination.
N was not asked whether he understood the distinction between telling the truth and a lie. He was not asked whether he understood what a lie was.
Neither was he asked whether he understood the importance of telling the truth by reference to any of the consequences or sanctions that might arise if he did not tell the truth.
In considering whether the fact that those questions were not asked should lead to the conclusion that the inquiry was flawed, I have considered the recent decision of the Court of Criminal Appeal in R v P, BR.[6]
[6] [2004] SASC 323,Court of Criminal Appeal, 15 October 2004 (unreported).
In that case Mullighan J (with whom Nyland and Anderson JJ agreed) referred to Climas and Starrett (supra), and concluded that the observations made in those cases did not “provide a formula to determine whether the presumption in s 9(1) is displaced”.
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.
NYLAND J. I agree with the reasons published by Perry J in making the orders setting aside the convictions and substituting verdicts of acquittal.
GRAY J. 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.