R v Peter David Copeland No. Sccrm-97-154 Judgment No. 6286/97 Number of Pages 11 Criminal Law

[1997] SASC 6286

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

DOYLE CJ, MILLHOUSE AND BLEBY JJ

Criminal law - jurisdiction, practice and procedure - summing up -direction to jury - whether trial judge misdirected by telling jury to take into account any interest that accused might have to serve by giving false evidence - whether direction explicitly or by implication referred to accused's interest in outcome of the case. Robinson v The Queen (1991) 180 CLR 531; Stafford v The Queen (1993) 67 ALJR 510; Asquith v The Queen (1994) 72 ACrimR 250, applied.

Criminal law - jurisdiction, practice and procedure - summing up -direction to jury - provocation - whether trial judge failed to adequately direct jury as to the effect of alcohol. Masciantonio v The Queen (1995) 183 CLR 58; The Queen v Perks (1986) 41 SASR 335, considered.

Criminal law - jurisdiction, practice and procedure - summing up -direction to jury - Self-defence - whether directions given by trial judge did not make it clear that the first stage of the inquiry was a subjective one.

ADELAIDE, 19 August 1997 (hearing), 12 September 1997 (decision)

#DATE 12:9:1997

#ADD 15:9:1997

Counsel for the Appellant: Mr D Peek

Solicitors for the Appellant: Michael J Sykes

Counsel for the Respondent: Mr P R Brebner

Solicitors for the Respondent: DPP (SA)

Appeal dismissed.

DOYLE CJ

The appellant appeals against his conviction for murder, the conviction being consequent upon the verdict of a jury. He complains about three aspects of the summing up.

Facts

The appellant was 39 years of age at the relevant time. The victim, David Thomas, was 38 years of age. Each of them was a longstanding alcoholic. They had not met each other until 29 September 1995, the day on which Thomas was killed. In circumstances that do not matter, the appellant on that day went to a house where Thomas was staying. The house was owned by an agency that cares for alcoholics, and was used for their accommodation. Thomas agreed to the appellant spending the night at the house. They were the only two persons at the house on the night in question.

The appellant gave evidence that he had been sexually abused as a young child and again as a teenager while at boarding school. There is no reason to doubt the truth of what he said. He had told others of this well before the relevant events occurred.

The appellant gave evidence at his trial of the events of the night in question. When first questioned by police he appears to have told substantially the same story. The essence of the story is that he and Thomas consumed a considerable amount of alcohol. The appellant then went to bed. He was wearing underpants, and possibly a T-shirt. Sometime later he woke up. Thomas was fondling the appellant's genitals. The appellant resisted this approach. The two men began fighting. At this point it is convenient to set out an extract from an early interview between the defendant and a police officer. This extract occurred relatively early in the interview, and the defendant had already explained how he came to be at the house, and that he and Thomas had consumed a considerable amount of alcohol:

"A. Well I always sleep with my underpants, mainly because I usually piss myself when I drink or something, so I um so I always sleep with my underpants. I was woken up with David um leaning over me or sitting on the edge of the bed, leaning over me, with his hand around my penis and testicles. I suppose trying to arouse me in some way. Um as I've mentioned to your, yourself in the past, as a child in New Guinea where I was born, before I arrived in Australia I was molested by my father's boss, boss's son actually, and again when I was in a boarding school um for my late teens years, oh well sorry from 14 to 16, and um it, it brought back er a lot of dramas and I'm afraid I, I just cracked it immensely in the sense that we tussled a bit er, we you know I jumped it roaring and ranting. We tussled a bit and I must have got over him somehow and um found a cord which I used to strangle him.

Q. Well when you say cord, are you talking about electrical cord.

A. I think it was an electrical cord of some sort. I might have even cut one off a um a lamp or something or something or other er -

Q. Cut one.

A. I think so.

Q. Right. So where was this taking place, in what part of the house.

A. In the bedroom I was in, the main bedroom. He had a, a, he had a little room out the back I think or somewhere.

Q. Did you actually punch him.

A. Oh not in the sense that it would have any damage because um we were both still probably three parts gone. Our blows would have you know, I, I can't remember landing any decent - I mean I'm not a fighter anyway -

Q. Right.

A. And I can't remember him you know reeling from any blows or anything like that.

Q. If um if I told you this person that is now deceased -

A. M.

Q. David, had a broken jaw -

A. Mm.

Q. Er and that his injuries are also consistent with being strangled -

A. Mm.

Q. Do you agree that that is a result of what you did.

A. Well the strangling is definitely the, the result of my outburst. But as far as the jaw's concerned, he might have fallen over or something, but I don't, I'm sure you know, I was still drunk as a lord. My blows wouldn't have had any weight or anything behind them.

Q. So you've had a struggle with him.

A. Yeah.

Q. You've gone and gut a cord.

A. Mm. I think. There was a cord of some sort I sued, I know that.

Q. So er you put that round this throat.

A. I held him down with it, like just across his, just to sort of maybe you know, he'd sort of think oh this bloke's a bit serious, I'd better pull up.

Q. Yeah.

A. But he um he sort of kept on going and I sort of held it down a bit more and um and after a while he just er didn't move.

Q. Mm hm.

A. And er it was then that I sort of oh well I, I just sat back. I looked at what I'd done. I tried to see if he was still alive, I, I just couldn't, as to, I wouldn't know what to feel for in a pulse or anything, even though I tried and put me ear on his chest to see if he was breathing or anything. I still didn't, couldn't find out, um so er hoping that he was you know just unconscious or something I, I dragged him out to the back of the house where there was a garage and just covered him over with some grass, cut grass that was you know, was just you know in the hope that he'd sort of just wake up later on and off he'd go. But I'm told now that um when I've strangled him I must have gone right to the end.

Q. These, this grass that was cut. Was that, is that lawn clippings.

A. Yes, just like lawn clippings it was."

A little later in the interview the questioning returned to the subject of the cord used to strangle Thomas. There were further questions and answers as follows:

"Q. Right. You said about the cord -

A. Yeah.

Q. That you cut it. How, do you know how you cut it or where you go it from or anything like that.

A. I'm not sure whether it was a lamp or an alarm clock or something like that but it might have been an electrical cord. I keep thinking an electrical cord.

Q. Right.

A. But whether it was or not I'm not sure. It might have been a cord off those big curtains that I pulled down or something right, I'm really yeah.

Q. So can you actually recall cutting it or do you think you've pulled it down or -

A. Well I say cut it, because if it was an electrical cord I would have had to I imagine. cut it instead of pulling that out, but as I said whether it was the cord from the curtain or not I don't know either. It's probably still lying there I imagine."

After the appellant had covered Thomas' body, he left the house and made his way to Melbourne. The body was found about two weeks later. The appellant was apprehended about another two weeks later.

The effect of the medical evidence at trial was that Thomas had suffered a fractured jaw. There were signs within the neck consistent with Thomas having been strangled to death with a cord or similar item. Strangulation was considered to be the probable cause of death. An electric can opener was found in the house. The electrical cord attached to the can opener had been cut off. The cord that had been cut off was not to be found at the house. The house had been cleaned between the time of the incident and the time when the body was found, and it was quite possible that the person who cleaned the house had removed the cord. As to Thomas' broken jaw, the effect of the medical evidence was that that might have occurred at about the time of death or within a few days before death. It would have required a significant blow to cause the break. There were blood stains on the mattress in the room in which the appellant said he had gone to sleep. There were also blood stains on the pillow and on the wall in that room. That blood could have been from Thomas, and could not have been the appellant's blood. The presence of blood stains was used by the prosecution to support an argument that Thomas' jaw was broken in the course of the struggle, and that the blood stains resulted from bleeding as a result of that injury. The defence, on the other hand, relied upon other evidence to the effect that someone might unknowingly have trodden on Thomas' body while it was covered by lawn clippings, and caused the fracture in that way.

In essence, the case for the defence was that the appellant was not guilty of murder because he did not intend to kill or to cause grievous bodily harm, and reliance was also placed upon self-defence and upon provocation. In that context, the intoxication of the appellant at the time of the incident was an important aspect of the case.

The prosecution case was that the appellant had broken Thomas' jaw with a blow, then cut the cord off the can opener and strangled Thomas. The prosecution case was that although he might have been drunk, and although Thomas might have started things, this was a deliberate killing by a man who knew what he was doing and who had not lost his self-control. Alternatively, the prosecution argued that an ordinary man in the position of the appellant would not have lost his self-control.

Clearly enough, the credibility of the appellant was important. The decision of the jury in relation to self-defence and provocation rested to a considerable degree upon the jury's assessment of the appellant's evidence. The issue of whether the appellant cut the cord off the can opener during the course of the incident was of obvious importance. At the trial, the appellant was the only witness whose credibility was the subject of a substantial attack. Most of the evidence was relatively uncontroversial.

Directions relating to the evidence of the appellant

His Honour gave directions to the jury about how they should assess the evidence of witnesses. He said, in part:

"And you have to assess those witnesses and decide how much weight you are prepared to place upon their evidence. In doing that, you will be influenced by how the witness has come across to you in the witness box, what we call the demeanour of the witness, how impressive the witness was to truthfulness and accuracy, whether there are any indications of lack of candour or prevarication, or whether the witness appears to be giving the evidence in a straightforward way. You would, of course, take into account any interest of his own that a witness might have to serve by giving false evidence or, indeed, any interest which might incline him to give biased evidence which might produce a bias in the witness's mind. Important considerations are the reliability of the memory of a witness, the witness's powers of observation, his state of sobriety, at the relevant time."

His Honour then went on to refer to the assistance that cross-examination provided, the question of how evidence of a witness fitted in with other evidence, and the fact that the jury could accept or reject all or part of the evidence of a witness.

His Honour then referred to the fact that the appellant had given evidence. He said:

"He has elected to make his defence by going into the witness box, taking the oath, exposing himself to the test of cross-examination, and you should assess his evidence and evaluate his evidence in exactly the same way as you would that of any other witness. You should not disregard his evidence or treat it lightly or discount it simply because he was the accused person. You should evaluate his evidence as you would evaluate the evidence of any other witnesses in the case and according to the same criteria as you would apply to other witnesses."

The appellant complains that this direction was erroneous. Counsel argued that the effect of what the judge said about the accused was to link the assessment of the accused as a witness to the assessment of other witnesses. That was then an invitation to the jury to take into account any interest of his own that the accused might have to serve by giving false evidence. That would suggest to the jury that they should consider the interest that the accused had in securing an acquittal. Things were made worse, counsel argued, by the fact that in this case there had been no suggestion that any other witness had any particular interest to serve by giving false evidence. Therefore, the accused was singled out as the only person with such an interest to serve. There was no aspect of the case that raised any interest that the accused might have to serve by giving false evidence, other than his interest in securing an acquittal. It was argued that in this way the presumption of innocence was undermined, because there was an invitation to subject the accused's evidence to special scrutiny because of the interest that he had in securing his acquittal. It was submitted that the direction impaired the fairness of the trial in the same manner as did the directions criticised by the High Court in Robinson v The Queen (1991) 180 CLR 531 and in Stafford v The Queen (1993) 67 ALJR 510.

In Robinson v The Queen (supra) the trial judge invited the jury to assess the credibility of witnesses in a number of ways, one of which included the interest that the witness might have in the outcome of the case. At one stage of the summing up he said that the jury might think that the accused had the greatest interest of all the witnesses in the outcome of the case and that therefore the jury should scrutinise his evidence closely. The High Court held that the fairness of the trial was seriously impaired by this direction. As the court said, the direction had the effect that the evidence of the accused was to be scrutinised more carefully than the evidence of any other witness, for no reason other than that he was the accused. In addition, the direction tended to treat the accused as a "suspect witness". The direction tended to erode the presumption of innocence because it carried the implication that evidence denying guilt required particular scrutiny. Having explained why the direction was unfair, and why it meant that the conviction must be set aside, the court then said (at 536):

"Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown."

In Stafford v The Queen (supra) the court refused an application for special leave to appeal. It did so because the central question was simply whether, in the context of the particular circumstances of the case, the particular summing up was, as the Court of Appeal had found, favourable to the applicant. After referring to the decision in Robinson v The Queen (supra) the court said (at 510):

"Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness. That is what the decision in Robinson was directed against."

Drawing on these remarks, the appellant argued that in the present case the direction had indirectly invited the jury to assess the reliability of the evidence of the accused by reference to his interest in the outcome of the trial.

I begin by observing that what the trial judge said to the jury reflects what the High Court said, in the passage set out above taken from its judgment in Robinson v The Queen (supra). On its face, the direction avoided the feature that attracted the criticism of the High Court, that is, a reference to the interest that a person might have in the outcome of the case.

In my opinion it was both appropriate and necessary for the trial judge to give the jury guidance in relation to the assessment of the accused as a witness. If nothing is said there is a danger that the jury might, in fact, discount the evidence of the accused simply because he was the accused, or for some other inappropriate reason. In principle, in my opinion it was appropriate to direct the jury to treat the accused like any other witness: Robinson v The Queen (supra). I cannot think of any better way of maintaining the right balance. It is desirable to give the jury an explicit warning, as the judge did here, against discounting the evidence of the accused because he is the accused. In short, what the judge said here seems to me to be completely appropriate for most cases.

I agree with the submission of counsel for the Director of Public Prosecutions, that a direction which referred only to the reliability of the accused runs the risk of appearing to single the accused out in some way. That is another reason for directing the jury that they should treat the accused like any other witness.

In my opinion it will usually be appropriate, in relation to other witnesses, to give the guidance that the trial judge gave.

In my opinion it follows that, in the usual sort of case, the direction that the trial judge gave will be appropriate. It is appropriate even though there is the risk, in theory, of the jury interpreting a reference to the "particular interest or purpose of the witness" (Robinson v The Queen (supra) at 536) as a reference to the outcome of the case. That risk is a reason for warning the jury not to discount the evidence of the accused. What the High Court said in the passage that I have set out from its judgment in Robinson v The Queen (supra) appears to endorse a direction along the lines that the trial judge gave.

I do not accept that in that passage the High Court intended to do no more than identify a process of reasoning that a jury might follow, as distinct from something that a trial judge might permissibly say to the jury.

All that being so, in my opinion it follows that no valid complaint can be made about the direction that the trial judge gave, unless it makes all the difference that the accused in this case was the only witness whose testimony was under attack. My conclusion that, subject to that factor, the direction that the trial judge gave was appropriate, is supported by the decision of the Court of Criminal Appeal of New South Wales in Asquith v The Queen (1994) 72 ACrimR 250 at 256.

Did the particular circumstances of this case make the direction that the trial judge gave inappropriate? The answer to that question turns upon whether the direction was likely to disadvantage the accused in the manner identified in Robinson v The Queen (supra).

I do not consider that the direction had the suggested effect. The judge carefully avoided any reference to an interest in the outcome of the case, the criterion for assessing credibility which the High Court considered was disadvantageous to the accused. The risk of the jury concluding that the reference to the interest or purpose of a witness, when related to the accused, raised for the jury's consideration the interest of the accused in the outcome of the case, was really no greater in this case than it is in any other case. Granted, if the jury reasoned in the way suggested by counsel for the appellant, it must work to the disadvantage of the accused, but the antidote to this surely must rest in the warning that the trial judge gave against discounting the evidence of the accused because he is the accused. In my opinion, if the submission advanced by the appellant is correct, the direction that the trial judge gave and which the High Court appeared to contemplate in Robinson v The Queen (supra) would be generally inappropriate, because it would in all cases tend to invite the attention of the jury to the interest that the accused has in the outcome of the case.

Instructing a jury in a manner that is both helpful and intelligible to them as laymen, yet kept within a reasonable length, while dealing adequately with all relevant matters of law and fact and achieving an appropriate balance between prosecution and defence, is a difficult task. It will become even more difficult if a jury cannot be given the sort of assistance that the judge gave to the jury in relation to assessing the credibility of witnesses, because that might work to the disadvantage of the accused if, in the interests of fairness, the jury are directed to treat the accused like any other witness. As I have said before, in my opinion the antidote to the poison that counsel for the appellant identified is to be found in the warning given not to discount the evidence of the accused.

In my opinion this ground of appeal fails.

Direction in relation to provocation

In his direction to the jury relating to provocation, the trial judge was obliged to direct the jury in accordance with the law as established by the High Court in Masciantonio v The Queen (1995) 183 CLR 58. The essence of the law on this point is stated in the judgment of the majority in the following terms (at 66):

"The provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the accused did. The provocation must actually cause the accused to lose self-control and the accused must act while deprived of self-control before he has had the opportunity to regain his composure."

The complaint in relation to the trial judge's direction was that the direction did not adequately deal with the second part of that statement of the law. That is, that it did not adequately deal with the effect upon the accused of the conduct of Thomas. In particular, the complaint was that the direction did not bring home to the jury the fact that the effect of the alcohol consumed by the appellant did or might make it more likely that the appellant would lose his self-control.

It is well established that a trial judge should direct the jury that they are required, when considering the reaction of the accused to the alleged provocative conduct, to take into account the fact that the accused was intoxicated if they thought that to be so: The Queen v Perks (1986) 41 SASR
335.

When the trial judge came to the topic of provocation, he made it quite clear to the jury that one of the things that they had to consider was the effect of Thomas' conduct upon the accused, and in particular whether that conduct caused a loss of self-control in the accused. In that context the trial judge reminded the jury of the evidence from the accused about earlier experiences of sexual abuse. He reminded them of the accused's statement to the police that "I cracked it." He then said:

"Of course, you do have to take into account here the influence of intoxication. Perhaps he had lost control more readily than he would have if he were sober, but that is a matter for you to consider."

The complaint was that, if anything, this direction tended to diminish the significance of the effect of alcohol upon the accused. Counsel added that in a written memorandum to the jury, summarising directions on the law, there was no reference to the significance of the alcohol consumed. That is quite true, but it has to be borne in mind that the written memorandum dealt with directions on the law, and did not deal with the factual aspects of the case.

I do not accept the complaint made. In my opinion it was sufficient to say what the judge said. I do not accept that it was necessary, for the direction to be adequate, for the judge to spell out to the jury in more emphatic terms that intoxication might make it more likely that the accused would have lost his self-control. Nor do I accept that the reference to the earlier experiences of the accused in any way, by implication, downgraded the significance of the reference to intoxication.

In my opinion this ground of appeal was not made out.

Directions relating to self-defence

It was necessary for the trial judge to direct the jury in relation to self-defence. The law in relation to self-defence is to be found in s15 of the Criminal Law Consolidation Act. In broad terms, that section raised two issues for the jury. First, were they satisfied that the appellant, when he killed Thomas, did not genuinely believe that the force he used was necessary and reasonable to defend himself. If they were not so satisfied, then the accused could not be convicted of murder. However, if they were satisfied that the appellant's belief as to the nature or extent of the necessary force was grossly unreasonable, judged by reference to the circumstances as he genuinely believed them to be, the accused was to be committed of manslaughter. If they were not so satisfied, then he was to be acquitted. In broad terms again, it can be said that consideration of the defence involved firstly, consideration of the subjective beliefs of the appellant and secondly an objective test as to the reasonableness of the belief of the appellant.

The complaint here was that the directions given by the trial judge did not make it clear that at the first stage the question was a subjective one. That is, whether the accused in fact genuinely believed that the force used was necessary and reasonable.

The memorandum that the judge provided to the jury dealt with self-defence. That part of the memorandum began as follows:

"A killing is not unlawful if it occurred in lawful self defence. A person who believes that he is under attack or threat of attack is entitled to use reasonable force to defend himself. A person does not commit murder by using force against another if that person genuinely believes that the force is necessary and reasonable to defend himself, even though death results and even though the person intended to cause death or grievous bodily harm."

The complaint really rested on the second sentence. The complaint was that this was so expressed as to suggest that, at the first stage, there was an objective element. It was said that that was introduced by the reference to "reasonable force". Counsel acknowledged that no complaint could be made about the third sentence standing alone.

I agree that it would have been better if the second sentence had not been expressed as it was. However, in the end the question is whether the directions given to the jury adequately indicated to them the need to consider the actual state of mind of the appellant, and in particular whether he did believe that the force he was using was necessary and reasonable. In expressing the matter this way, I ignore, for convenience, the impact of the burden of proof that rested on the prosecution.

In considering the judge's directions one must bear in mind that at the first stage reasonableness does have to be considered. What has to be considered is whether the accused believed that what he was doing was reasonable. So, even at this stage, a reference to what is reasonable is required.

When the judge came to this part of his summing up, he made a very brief reference to the memorandum and then said:

"A person who genuinely believes that he is under attack, or threat of attack, is entitled to use reasonable force to defend himself. I suppose that is commonsense. It would be a strange law if it precluded people from using the force necessary to defend themselves. A person does not commit murder by using force against another if that person genuinely believed that the force was necessary and reasonable to defend himself even though death results, and even though the person intended to cause death or grievous bodily harm.

To put it another way: a person is entitled in law to kill or to cause grievous bodily harm if he genuinely believes that that is necessary and reasonable in order to defend himself and, if that is the situation, he cannot be convicted of murder."

The judge then went on to deal with the objective aspect of self-defence.

The judge returned to the issue of self-defence when he came to apply the law to the facts of the case. He said:

"... and you will remember that the first question you have to answer is whether the accused genuinely believed at the time that he was applying the cord, genuinely believed, that that was necessary and reasonable to defend himself."

He expressed himself in almost identical terms on three more occasions.

Taking the summing up as a whole, in my opinion there is no risk of the jury having been left with an incorrect understanding of the matter that they were to consider. In a sense, as the criticised part of the memorandum said, they did have to consider whether the appellant had used reasonable force. They had to consider whether the appellant believed that the force he used was reasonable and then they had to consider whether his belief about that force was grossly unreasonable. I consider that the manner in which the judge explained the matter to the jury removed any risk that the sentence in the written memorandum, about which complaint is made, could have misled the jury. The judge repeatedly told the jury to consider whether the accused genuinely believed that the force was necessary and reasonable. I do not consider that the reference to the use of reasonable force in the written memorandum, and when the judge first touched on the matter in his oral directions, could have given the jury the impression that the judge was there raising a separate issue for the consideration of the jury.

For those reasons, in my opinion, the complaint made by this ground of appeal cannot be sustained.

Conclusions

In my opinion the appeal should be dismissed.

MILLHOUSE J

I agree.

BLEBY J

I agree that the appeal should be dismissed. Subject to what is said below, I agree with the reasons of the learned Chief Justice.

The directions of the learned trial judge with respect to the evidence of the appellant were, in my opinion, entirely appropriate. The appellant's submissions came close to suggesting that if the accused displayed any quality which might be relevant to an assessment of his evidence, e.g. intoxication, and if he were the only witness to exhibit that quality, such a factor should not be mentioned when discussing the assessment of oral evidence generally, lest the jury conclude that the topic related specifically to the accused, and therefore to his disadvantage. In my opinion, the cases to which the Chief Justice has referred do not go as far as that, but merely require that a direction not suggest that the accused's evidence be scrutinised more closely because he is the accused or because he has a particular interest in the outcome of the case.

As to the direction on provocation, different judges might have expressed the direction as to the effects of alcohol in different ways. I think I would have, but I do not, upon reflection, consider that the direction was inadequate.

As to the direction on self-defence I have nothing to add.