R v. Pretorius
[2007] QCA 432
•4 December 2007
SUPREME COURT OF QUEENSLAND
CITATION:
R v Pretorius [2007] QCA 432
PARTIES:
R
v
PRETORIUS, Johannes Petrus
(applicant/appellant)FILE NO/S:
CA No 301 of 2007
DC No 357 of 2007DIVISION:
Court of Appeal
PROCEEDING:
Application for Extension (Conviction)
Appeal against ConvictionORIGINATING COURT:
District Court at Maroochydore
DELIVERED ON:
4 December 2007
DELIVERED AT:
Brisbane
HEARING DATE:
30 November 2007
JUDGES:
Jerrard and Holmes JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER:
1. Extend the time for appealing
2. Allow the appeal
3. Set aside the convictions
4. Set aside the sentences
5. Set aside the fine
6. Order a re-trial on all three countsCATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted of committing indecent assault on three women while swimming in the surf – where defence counsel at trial committed a number of fundamental errors – whether such errors in totality created a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where the Crown relied upon the identification evidence of the victims – where there were circumstances that could have impaired the accuracy of the identification – where there was inconsistent evidence given regarding the departure of the accused – whether the judge should have given a direction in accordance with Domican v The Queen (1992) 173 CLR 555
Domican v The Queen (1992) 173 CLR 555, considered
COUNSEL:
P Callaghan SC for the appellant
M R Byrne for the respondentSOLICITORS:
Boe Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
JERRARD JA: On 6 September 2007 Mr Pretorius was convicted by a jury of three counts of sexual assault, and on 16 October 2007 was sentenced to 12 months imprisonment on each count, wholly suspended, and in addition was fined $2,000, that fine to be paid on or before 16 January 2008 in default of two months imprisonment. Mr Pretorius has applied for an extension of time within which to appeal against his conviction, on a number of grounds.
His application for an extension of time is supported by an affidavit in which he explains that he was taken to the Caloundra Hospital after experiencing chest pains in the dock following his conviction, and during the sentencing process then underway, and had wanted to appeal. On 25 October 2007 he received correspondence from a solicitor (a copy is annexed to his affidavit) advising that he had one month from the date of his sentence, within which to lodge an appeal against conviction and sentence. It is accepted on this application that that advice was incorrect, and by the date on which Mr Pretorius instructed new solicitors –
22 October 2007 – the date by which he was obliged to lodge his notice of appeal had already been reached, on 6 October 2006. In those circumstances it is appropriate to extend the time within which Mr Pretorius may give notice of his appeal against his convictions until 13 November 2007.
The notice of appeal filed on 12 November 2007 lists five separate grounds. Mr Callaghan SC, appearing for Mr Pretorius on the appeal, made written and oral submissions in respect of each of those, although not in the order in which they appeared in the notice of appeal. One ground of complaint was that the learned judge had erred in admitting evidence of uncharged acts, allegedly committed by Mr Pretorius on the same day – 1 January 2006 – on which he allegedly assaulted the three complainants in respect of whom he was convicted.
Dealing first with that ground, the evidence of the complainant A was that on 1 January 2006 she went swimming at the beach at Alexandra Headlands, and when catching a wave into shore felt someone grab her leg. She thought the contact was accidental but a few minutes later when catching another wave, she felt someone slide a hand down her arm. She saw the face of the person she thought responsible, and he gave her a look she described as “lecherous”. She then moved from the southern end of the flagged area towards the northern end, and was catching another wave when she felt someone grab her by the waist. It was the same person as the man who had grabbed her arm. She saw that he had what she said were blue board-shorts with a yellow stripe down the side, and with a yellow V down the back. He had a thick gold wedding band, was quite tall, and a little bit podgy. She then left the surf and sat on the sand, and then went to complain to a person whom she described as a Surf Patrol Captain. She saw that man was talking to two other women, who were also reporting similar incidents. She said:
“Are you talking about that sleaze out there?”
and upon receiving affirmative responses, said:
“Yeah, him. He grabbed me.”
The Patrol Captain (a Mr Thornton) then advised that he would arrange for police to be called, and all three women then stood with that man and watched, it appeared, Mr Pretorius who was swimming in the surf. On Ms A’s evidence that lasted for about half an hour, during which she said:
“To my mind” Mr Pretorius was: “Lining women up for a good half an hour, and smashing into them, doing exactly the same thing to them that he had done to me.”[1]
[1]At AR 34.
She added that Mr Pretorius did not crash into people every single time he caught a wave, but the majority of times he did. She did not see him crash into a male, only into females. She saw Mr Pretorius leave the water and the Patrol Captain go up and speak with Mr Pretorius for some minutes, and then she saw Mr Pretorius leaving the beach.
Another complaint was by a B, also swimming at Alexander Headlands, with her mother C. B described feeling someone touch her leg; she kept swimming and was touched again, this time on her back. She then saw that the person who had touched her was now close to her mother, and when her mother swam away from that man, he then swam back to B and:
“…grabbed me from my breasts, from like, you know, from behind again, because was I was swimming off. So grabbed his hands around, from my breasts, right down, my body because I’m trying to get my body free of him. Had his hand in – then down to my – top of my thigh. One hand was inside my groin, and one on the outside of my thigh, like sliding his hands down my leg.”
She tried to kick the man and said:
“What are you doing, you fucking freak?”
and said to let her go, and the man said “Sorry”. She noticed he had an accent. She swam to where her mother was, and her mother said to her:
“That man just put his hand down my bathers.”
After that she and her mother both caught a wave in and complained to a male and female life guard. That appears to have happened at the same time as Ms A made her complaint. B said she was able to describe the man as having dark blue shorts with a very visible yellow patch up the top of the shorts.[2]
[2]At AR 66.
The third complainant was C, who described having felt a hand brush her left shoulder when swimming, followed by another brush going all the way down her side. Then when she caught a wave she felt someone on her, and when she stood up she had a good look at the person, whom she recognised as being the same man who had been swimming close to her previously. After swimming back out, she felt a hand slide inside her bathers, and she kicked. The grip slipped down to her ankle and she got really frightened, and she thought the person was trying to drown her. She and her daughter both caught a wave to the beach where they spoke with the Surf Patrol Captain, a Mr Mark Thornton. She too was able to describe the man having board-shorts which were very dark with a yellow stripe down the side and a yellow lightening flash across the back.
B described standing on the beach with the life guard (Mr Thornton), Ms A and with her mother, and watching the man who was:
“…doing the complete opposite, looking okay, there some girls there; here comes a wave, great. Lining himself up, catching the wave and going straight into the women. And that probably, half an hour to forty minutes went on because the police had been called but the police hadn’t arrived at the beach so, we just watched. We just watched it going on.”[3]
[3]At AR 70.
B said each time that man caught a wave he crashed into a woman, and she did not see him crash into any men. Her mother C’s description was that she saw at that time the man:
“Surfing, having a good time, surfing in onto people, into people, bumping into people, going back out, surfing in again.”[4]
She said she saw him catch six or seven waves, and collide with someone else “probably every time”, but not with any men.
[4]At AR 89.
The other evidence was that when Mr Pretorius left the surf, Mr Thornton approached him and spoke with him. There was no challenge made in cross-examination to the clear assumption made by each of the three complainants that the man they had watched for about half an hour swimming in the surf, and who Mr Thornton spoke to, was Mr Pretorius, and that he was the same man who had, whether accidentally or intentionally, touched or stroked each of the three complainants in the water. None of the three complainants purported to make any identification in court of Mr Pretorius as the man who touched each of them.
B gave evidence that she had told Mr Thornton on the beach:
There’re so many people out there, you’ll have to come out. I’ll have to swim you out and show you because you know I don’t want to point the wrong person out.”[5]
Mr Thornton sent a younger life guard out in the water with her, and she identified the alleged offender (apparently Mr Pretorius) to that younger life guard, who stayed out in the water, presumably near Mr Pretorius, while B swam back in. Her mother’s evidence included that her mother had watched B and “the nipper” (Mr Thornton’s son) go out to “where this man was in the surf.”[6] Mrs C senior identified the man in the surf as “the man that assaulted” (me)[7] so the jurors were entitled to accept that Mrs C senior observed the act of identification by B, and agreed with it. On the other hand, there was no evidence that the complainant A saw that act of identification, but her evidence contained an assumption that she agreed with it. Mr Thornton’s son was not called, and so there was no identification evidence from him.
[5]At AR 69.
[6]At AR 89.
[7]At AR 89.
The learned trial judge admitted the evidence of Mr Pretorius allegedly often enough swimming into other, female, surfers, and permitted the three counts in respect of each complainant to be joined, because the judge held that the evidence was admissible in respect of each complainant’s account, to exclude accident and to identify the person responsible. Mr Callaghan SC makes the point that in respect of female body surfers with whom Mr Pretorius collided, if it was him, in that half hour period, there were no complaints made by any one about his behaviour at that time. That does not detract from the evidence of the three complainants (and from Mr Thornton) of Mr Pretorius appearing to each of them to have perhaps been deliberately swimming into other surfers, females only, as he caught waves. The lack of any complaint did not make that evidence inadmissible.
The third ground of appeal complained of the manner in which his counsel had conducted the trial. Mr Callaghan SC made a long list of complaints, which he said represented an accumulation of deficiencies on a scale which ought not to be allowed to occur in a trial in a superior court in Queensland. That included attempting to tender a document in the presence of the jury without laying a proper foundation for its admissibility, showing ignorance of the means by which a witness should be cross-examined on a prior inconsistent statement, asking what the learned trial judge described as “nonsensical” questions of a witness, failing to object to evidence to which objection could properly have been taken, appearing to be ignorant of the rule in Browne v Dunn,[8] informing the court (apparently, inaccurately) that her client had not provided her with a statement, and other deficiencies. Those included failing to tell the jury, in the opening of the defence case, what Mr Pretorius was going to tell them, and concluding the evidence-in-chief from Mr Pretorius without having him give evidence as to the actual offences with which he was charged. Those matters were corrected either by the judge or the prosecutor.
[8](1893) 6 R 67.
Mr Callaghan SC submitted that the consequences of the various failures by counsel were catastrophic in their totality, such that Mr Pretorius did not have a proper trial. That put the complaint very high in respect of a considerable number of defects in the presentation of the defence case. Those defects caused the learned trial judge to intervene on frequent occasions, and the following is an example (at AR 38):
“HIS HONOUR - there’s a proper way of cross-examining. If you’re going to ask Ms A about - - - -
(Counsel) - All right.
HIS HONOUR - - - about inconsistencies between her statement and what she’s said in Court then you must refer her to the statement. You don’t just make a statement that there is an inconsistency. It’s not a proper way to cross-examine.”[9]
[9]At AR 38.
Before very long had elapsed, the learned judge intervened twice again, saying (the second time) (AR 42):
“HIS HONOUR – No, no. Just hang on.
(Counsel) – Sorry, your honour.
HIS HONOUR – I’m not going to permit this form of cross-examination - - - -
(Counsel) – All right.
HIS HONOUR - - - to continue. You’re a barrister. You must know the rules.
(Counsel) – I do.
HIS HONOUR – You’ve got to establish these things before you put it as a proposition to the witness.”[10]
[10]At AR 42.
Later on in the same cross-examination the learned judge remarked (at AR 57):
“You simply can’t ask a question like that. How can that possibly help a jury? If there’s something on your instructions that you say conflicts with her evidence then your responsibility is to suggest it to her - - -
(Counsel) – Your Honour - - - -
HIS HONOUR - - - and give her an opportunity but saying something like that, I’ve never heard anything like that in my life.”[11]
[11]At AR 57.
The transcript reveals that Mr Pretorius’ counsel lacked trial experience, but his defence was put, even if somewhat diffidently, and his counsel revealed she had a sense of humour.[12] It was in fact a difficult defence case to conduct, because the evidence of the three complainants and the lifeguard, Mr Thornton, of how they had watched Mr Pretorius surfing and apparently deliberately colliding with other female surfers, presented a combined body of opinion evidence that was relevant, and difficult to challenge. The evidence Mr Pretorius gave[13] was that he had not intentionally touched anyone in the water that day, but that:
[12]At AR 49.
[13]At AR 190.
“You basically have all waves, you bump against each other”;
and in respect of the three complainants that:
“I’ve got no idea what they talk about”.
He also said he wore green board-shorts, with a dark colour down the side, which was not yellow. He agreed he had spoken with Mr Thornton immediately after he left the surf, and that Mr Thornton had related to him a complaint of his having indecently touched three women, and of having been observed surfing for some 30 minutes in which he had deliberately run into other females, but he insisted he had said at the time that anything which happened was an accident. The deficiencies in the presentation of the defence case were not such that Mr Pretorius did not have a proper trial. He did; his defence was advanced, namely that any touching was accidental and unintended.
A specific complaint was made in a separate ground of appeal, about a failure to object to inadmissible evidence led from the complainant A, as to the effect of the incident on her. She gave evidence that:
“I received no physical injuries. I have only been in the water once, been to the beach and into the water once since that. That was 20 months ago. I haven’t been able to get myself down there. I certainly don’t swim in crowded beaches, in flags. Can’t do it any more.”
In similar fashion B gave evidence that she did not receive or sustain any physical injuries but:
“No injuries physically but you know, I was, you know, I’m pretty strong girl. I was really shaken up by it, like I was really, I even – those next few nights I couldn’t stop thinking about it. It was just so wrong. I was so... I felt so, I don’t know what the word is. Just completely violated like, I swim, you know, every day. I’ve never been, you know, I’ve never been put in that position even in my – my many years at Alex Beach, or at any beach on the Sunshine Coast.”[14]
[14]At AR 72.
Mr Callaghan SC submitted that that evidence was highly prejudicial, appealing to the emotions of jurors, and ran the risk that the jury might reason backwards from the proposition that the witnesses were experiencing those feelings, to a conclusion that the events described must have happened.
He complains that there were no restrictions, imposed by directions by the judge, as to how that evidence might by used by the jury, and for that reason that the trial miscarried. Those answers by both women were in response to questions as to whether they had suffered any physical injury, and the answers were non-responsive and descriptive of non-physical injury. It would have been better if the questions were not asked, as the prosecution did not allege that any bodily harm was caused by any assault, so a responsive answer would simply be “no”. There would always be a risk of a non-responsive answer.
A separate complaint was that the learned trial judge erred in the directions given as to the method of proof by the Crown of its case. The complaint is that the trial judge, with the agreement of both counsel, described the case as a circumstantial one[15] to the jury. Mr Callaghan SC submitted that it was not; the issue was whether the person who emerged from the surf and spoke with Mr Thornton was the same person who had assaulted the complainants in the water, and whether that person was Mr Pretorius. That was a matter of identification. Mr Callaghan SC submitted that the judge should have warned the jurors about the danger of identification of the wrong man, in terms of the warnings required by the High Court in Domican v The Queen (1992) 173 CLR 555. Those directions would have included reference to the effect of saltwater on eyesight, the levelling effect of wet hair, the presence of a large number of people within a relatively short distance between the flags, the constant movement of those people which must necessarily have been occurring, and the fact that people would have been undergoing a constant process of submersion and emersion. Further, the jurors should have been reminded of the very real danger that the evidence of each complainant was affected by the descriptions given by the others, particularly to and in the presence of Mr Thornton, and whilst watching a man – apparently Mr Pretorius – surfing in the sea.
[15]At AR 237.
There is substance in that last complaint, because this was a matter of identification of the person who assaulted the complainants. The evidence that it was Mr Pretorius depends in part on the accuracy of the identification of him as the man whom the complainants and Mr Thornton watched surfing, and to whom Mr Thornton then spoke. There was no challenge in cross-examination to the assumption that it was Mr Pretorius whom they watched, and it would have been difficult to watch one man, and then for Mr Thornton to speak to another man. That would require a mistake by all four observers. The real point is whether the man – Mr Pretorius – whom all four watched was the only man who improperly touched the complainants.
The possibility of mistake in identifying Mr Pretorius was shown by the evidence of each of the B and C complainants, who both swore they had followed Mr Pretorius to his car, which each saw him drive away. The other evidence established Mr Pretorius got into the rear seat of a vehicle owned and driven by his friend Theodoris Saayman. Mr Saayman had taken Mr Pretorius (and Mr Saayman’s family) to that beach that day, and Mr Saayman gave evidence (for the prosecution) that he drove Mr Pretorius back from the beach to the latter’s home. That evidence showed the ease with which a mistaken identification can happen.
The complaint is valid that the jury needed to be reminded of the deficiencies in the evidence of the identification of Mr Pretorius as the man who assaulted the complainants, and the possibility of error. The learned judge reminded the jury of some of those, but not of the possibility that some of the complainants were affected by the opinion of another, or the others, in deciding that Mr Pretorius, whom they had watched surfing, was the one man who assaulted each of them.
The judge put it to the jury as a circumstantial case, of which one circumstance was the description given by each complainant. Another was Mr Pretorius’ conduct when watched, another was his conversation with Mr Thornton. Another was his accent. That was a sensible way to describe the prosecution case, but it still needed to be said that there was the risk that one or more complainant, acting alone, would not have said the man they all watched as a group was the one who assaulted that complainant. The jury should have been alerted to that weakness in the evidence.
The failure to direct in terms of the risks and dangers in relying on identification evidence means there was an error of law made in presenting the case to the jury, and a potential miscarriage of justice has resulted. I would extend the time for appealing, allow the appeal, set aside the convictions, sentences, and the fine, and order a re-trial on all three counts. It is a matter for the Director whether there is one.
HOLMES JA: I have read the judgment of Jerrard JA and agree, for the reasons he gives, that the directions in relation to identification were inadequate. I agree also with the proposed orders.
McMURDO J: I agree, substantially for the reasons given by Jerrard JA, with the orders he proposes.
On each count the issue for the jury was one of identification. The jury had to be satisfied that it was the appellant who had assaulted the complainant. It was necessary for the trial judge then to isolate and identify any matter of significance affecting the reliability of the identification evidence.[16] There was a real prospect that, as the three complainants stood together on the beach near where Mr Thornton spoke to the appellant, the identification by a complainant was influenced by the identification by another complainant.
[16]Domican v The Queen (1991-1992) 173 CLR 555, 562
That was the first identification by C and A. B had first identified the appellant when she and the young lifesaver went into the water to find him. That tended to make her evidence of her identification on the beach relatively more reliable. Still there was the possibility that she had influenced one or both of the other complainants. And the jury may have thought that her evidence was more reliable because the others had also identified the appellant. It was necessary then for the jury to have a clear direction as to the prospect that the identification by one complainant had contributed to the identification by one or both of the others.
So much was rightly conceded by Mr Byrne who then argued for the application of the proviso.[17] However, the proviso cannot be applied. The respondent gave evidence which denied the complaints. And as Jerrard JA points out, the complainants were mistaken in relation to at least one matter, in their evidence that it was the appellant who was in the driving seat of the car by which he left the scene. In these circumstances, not having seen the witnesses give their respective accounts, I could not be persuaded of the appellant’s guilt.
[17]S 668E(1A) of the Criminal Code