R v Porter No. Sccrm-02-210
[2003] SASC 136
•22 April 2003
R v PORTER
[2003] SASC 136
Court of Criminal Appeal: Duggan, Debelle and Lander JJ (Ex tempore) This is a matter which has been referred to the Full Court following the refusal by Besanko J to grant leave to appeal on some grounds in the original notice of appeal.
Leave to appeal was granted in respect of other grounds in the original notice.
The first ground of appeal, which is the subject of this application, is ground 3.5. The particulars relating to that ground are identified in the appellant’s outline of argument in para.2.
Para 2(a) complains that the trial judge failed to give a specific direction in relation to the degree of proof required in relation to DNA evidence before the jury could rely on that evidence. Various passages in the summing up have been referred to us in which the trial judge dealt with the question of the standard of proof. In our view, the summing up would have left no doubt in the minds of the jury that the evidence relating to DNA would have to be established beyond reasonable doubt before the jury could rely upon it.
We are of the view that it would not be appropriate for us to grant leave to argue that particular aspect on the hearing of the appeal.
The other aspects which are sought to be argued under para 3.5 of the original grounds of appeal are set out in paras 2.2 and 2.3 of the appellant’s outline of submissions.
The first aspect refers to evidence relating to blood which was alleged to have been found on a jacket which, at some stage in the history of the matter, was worn by the appellant. However, it appeared in the course of argument this morning that this blood was the blood of Mr Edge. It was not the blood of the appellant and, in our view, we cannot see that this particular item of evidence was of any real significance in the case.
The third matter which is relied on under ground 3.5 is set out in para 2.3 and relates to the complaint that the learned judge failed to make it clear that the material found on the accused’s boot may not have been blood and that red paint and horseradish were capable of returning the same result. In the course of argument Mrs Shaw, for the appellant, conceded that this point was not arguable as there had been not only a presumptive test for blood, but that there was DNA evidence of a match which was led in the course of Dr Both’s evidence.
It is our view that leave to appeal in respect of ground 3.5 should be refused.
The background to ground six is a complaint that, according to the prosecution case, the appellant told police, after the alleged offence that he had gone on a trip to Murray Bridge at a relevant time. Nathan Edge, told the court that this was a lie and that he and the appellant had gone on a trip to Victoria at this time and had passed through the South-East of the State on this date on the way to Victoria.
The defence elicited from Nathan Edge in the course of cross-examination that the appellant and Edge had discussed the matter before speaking to the police and had decided that they would tell the lie because the appellant was on parole at the time and it would have been a breach of his parole for him to go to Victoria.
There was an application at the commencement of the trial to exclude the conversation in which these lies were told to the police. One of the matters mentioned in the course of the argument as to whether the judge should exercise his discretion to exclude the evidence was that defence counsel may be in the position of having to elicit the reason for lies told in the course of the interview, namely, that the appellant was on parole and the lies were told for that purpose.
In our view, the trial judge was clearly correct in allowing the interview to be led in the exercise of his discretion.
Furthermore, the jury were given a strong direction by the trial judge that they were not to use the information that the appellant was on parole in any way adverse to the appellant in relation to the charge. No evidence was led as to the offence or offences in respect of which the appellant was on parole.
Mrs Shaw has argued that, if the Full Court were to find that the trial judge should not have left this evidence to the jury as evidence of consciousness of guilt, then the point raised was relevant to the consequences of that decision by the trial judge.
We can see no reason (and Ms Davidson, for the Director of Public Prosecutions, agrees) why the complaint made in ground six could not be brought to the attention of the court as an indication of the consequences of the error, if the court found error on the part of the trial judge in this respect.
For these reasons, we are of the view that ground six should not be allowed to be argued as a ground of itself and we refuse leave to appeal.
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