R v Rigney - [2005] SASC 264

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RIGNEY
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Vanstone and The Honourable Justice Anderson)
21 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF LEGAL PRACTITIONERS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - PARTICULARS
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appeal against convictions for murder and wounding with intent - whether prosecutor's failure to call witness led to miscarriage - whether prosecutor should have withdrawn after interviewing and discarding witness - defence left to call witness - whether cross-examination by prosecutor about interview with that witness introduced prosecutor's credibility - prosecutor's address - use of labels such as the "old I can't remember defence" - whether prosecutor disparaged appellant's defence by reference to other cases - discussion of principles guiding counsels' conduct.
Uncertainty on prosecution case as to which offence first occurred - whether prosecutor should have been required to elect as between versions.
Complaint as to directions in summing up - whether trial judge misdirected as to permissible use of "relationship evidence" - whether judge wrongly introduced scope for conviction on basis of joint enterprise - whether directions as to relevance of appellant's and victim's intoxication to lesser verdict of manslaughter adequate - appeal dismissed.
Evidence Act 1929 s28, referred to.
R v Frederick [2004] SASC 304, discussed.
R v Shaw (1991) 57 A Crim R 425; Sheahan & Anor v Northern Australia Land & Agency Co Pty Ltd & Ors (1994) 176 LSJS 257; Whitehorn v The Queen (1983) 152 CLR 657; R v Apostilidis (1984) 154 CLR 563; Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; R v Kneebone (1999) 47 NSWLR 450; R v O'Brien (1996) 66 SASR 396; R v Webb (1996) 186 LSJS 184; Browne v Dunn (1893) 6 R 67; R v Pfennig (1995) 182 CLR 461; O'Leary v The King (1946) 73 CLR 566; R v Wingfield (1994) 176 LSJS 14, considered.

R v RIGNEY
[2005] SASC 264
Court of Criminal Appeal: Bleby, Vanstone and Anderson JJ

BLEBY J: In my opinion the appeal should be dismissed. I agree with the reasons of Vanstone J and have nothing to add.
VANSTONE J: The appellant was convicted by verdicts of a jury of the murder of his de facto wife, Ingrid O’Connor, and of the wounding with intent to do grievous bodily harm of one Adam Aspel (“Aspel”). Both offences occurred on 21 August 2003 at the appellant’s home at Tailem Bend.
The prosecution case was that Ms O’Connor died as a result of a sustained beating with a wooden pole causing multiple injuries, and that the violence was observed by the principal prosecution witness, Mr Grant Bilney (“Bilney”). The evidence suggested that the assault started at a time when the victim was sitting in a lounge chair and that it continued after she had been placed in the bath at the premises. Upon autopsy at least 60 blows were isolated and at least 14 of those were to the head. There is no question but that all three of the persons present had been drinking liquor over some hours and were markedly intoxicated, Ms O’Connor more so than the two men. There was also evidence of the ingestion of cannabis and benzodiazepam. The prosecution evidence placed Ms O’Connor’s death during the afternoon.
The victim of the second count, Aspel, told the jury that when he arrived at the house soon after 4.00 pm he was abused by both men for bringing with him only a small quantity of cannabis and that he was attacked by the appellant, using a wooden pole. He sustained a number of blows to the head, causing profuse bleeding. When he went to the bathroom to tend to his injuries he saw the victim in the bath with her face submerged in about eight inches of water. When he returned from the bathroom, Bilney urged him to go and he left and sought help for his injuries. Bilney claimed to witness the attack on Aspel, but his evidence was that it occurred prior to the attack on the victim.
At just before 5.00 pm Bilney left the house and went to a public phone box, where he telephoned 000 and reported Ms O’Connor’s death.
Forensic examination of the wooden pole – which was in the nature of an axe handle or similar – showed DNA material consistent with coming both from the victim and from the appellant. There were spatters of the victim’s blood on the appellant’s track suit pants, consistent with his being close to and in front of the victim during the period she was injured. There was evidence before the jury that on previous occasions during their short relationship, the appellant had been violent to the victim.
No evidence of any interview between police and the appellant was before the jury. Tapes of three intercepted telephone calls, in which the appellant apparently spoke to a relative, were introduced. Those calls took place whilst the appellant was in custody on these charges. In the first of them, about seven weeks after the victim’s death, the appellant made the following remarks, suggestive of resignation that he would be convicted of at least manslaughter in relation to the victim’s death:
AppellantJust give me a little bit of fuckin’ help, you know, to see me through the first fuckin’, at least 12 months.
ManYeah, that’s right.
AppellantAnd like, you know, if, if worse comes to worse, I’m looking at 20 years on the bottom.
…
AppellantYeah. Hopefully I can get it knocked down to manslaughter, you know –
…
AppellantYeah, if I can get it knocked down to manslaughter, well, you know, I can look at probably ten years under.
…
AppellantYeah, well on -, once I get my stretch or whatever, you know, I’ll make my way up to Mobilong, you know, and just gonna be –
…
AppellantYeah, well, well it wasn’t premeditated, you know –
…
AppellantIt was just one of them things that happened and –
…
AppellantFuckin’ got out of hand and –
In the later calls the appellant denied any memory of what had happened to Ms O’Connor and expressed the belief that Bilney must have committed the crime whilst he, the appellant, was away from the house obtaining additional liquor.
The appellant did not give evidence upon his trial. In cross-examination of Bilney it was put by defence counsel that the appellant had left the house and that upon his return he had found that the victim had been bashed and placed in the bathtub. Inferentially, the suggestion was that Bilney was responsible.
Role of counsel
Against that background I turn to the grounds of appeal, which fall into four groups. The first of those focuses on the conduct of the case by counsel for the prosecution.
One of the witnesses named on the back of the information was a Ms Wright. She was one of three ambulance officers who attended at the scene and who saw the deceased’s body in the bath and removed it. Ms Wright personally knew the appellant, Bilney and the deceased.
About a week before the trial was to commence Ms Wright was spoken to at the Tailem Bend police station by the two prosecutors who were to appear for the Director of Public Prosecutions at the trial. The senior prosecutor later sent a facsimile letter to defence counsel summarising certain statements made by Ms Wright during that interview. These were new matters raised by Ms Wright during the interview. That letter was before this Court. Certain assertions in it are relevant to the prosecutor’s decision not to call the witness at trial. Some of those were later confirmed in evidence.
Ms Wright told the prosecutors of her knowledge of the persons involved in the incident. She said she did not like Bilney. She said that was because he had “tried to crack on to her” even though he knew she was in a relationship. She said she did not think Bilney was telling police the whole truth about the matter. She said that Bilney had come to her home since the victim’s death and showed her his statement. She said he told her that he, Bilney, had given Ms O’Connor “a few hits” when she was in the bath. (In evidence this became “a couple of good slaps”.) She said her partner was present when that was said. She also said that she had her own views about what happened to the victim; that there was a sexual assault involving the appellant, Bilney, Aspel and Ms O’Connor. The senior prosecutor then told Ms Wright that she would need to put that new information into a further police statement and that it was important to be accurate. She instructed the investigating officer, who was available elsewhere in the station, to take such a statement. Ms Wright spoke briefly to that officer, but she became upset and she left the station before giving such a statement. The officer made a statement of his own as to what had passed between Ms Wright and himself prior to Ms Wright’s departure. In that statement he attributed to Ms Wright an acknowledgment that she was not absolutely sure that Bilney said that he, as opposed to the appellant, had hit the victim in the bath.
Mrs Shaw QC, who appeared for the appellant upon the appeal, submitted that notwithstanding these matters Ms Wright should have been called to give evidence by the prosecution; even if only presented for cross-examination. It was submitted that despite the fact that Ms Wright was made available to the defence to be called, and was called by defence counsel, a miscarriage of justice resulted. That was said to be because the value of the evidence was potentially depreciated on account of Ms Wright being a defence and not a prosecution witness. In that context reliance was placed upon R v Shaw (1991) 57 A Crim R 425 at 450. It was also because of the course of cross-examination of Ms Wright by the same prosecutor and further because of submissions made about Ms Wright’s evidence by that prosecutor in the final address.
The essence of the argument was that because of the decisions taken by the prosecutor, she put herself into a position whereby in cross-examining Ms Wright she was pitting her own credit against that of the witness. In other words, she was putting assertions to the witness which were based on her own recollection of what had occurred between them at the proofing session and in that sense she descended into the arena and her role as counsel blurred with a potential role as a witness. It was further put that since the two prosecutors were counsel at the trial, they could not be called to prove any previous inconsistent statements that might be sought to be established, and that therefore the assertions should not have been put. In that context reference was made to Sheahan & Anor v Northern Australia Land & Agency Co Pty Ltd & Ors (1994) 176 LSJS 257. It was further submitted that the situation was compounded by submissions made to the jury in the senior prosecutor’s final address, including the submission “make what you will of Ms Wright’s allegation that the prosecution in this case were intimidating and threatening”.
There is no doubt about the obligation of prosecuting counsel to act objectively and with propriety in carrying out that important role. The principles which apply have been clearly stated and need no repetition: Whitehorn v The Queen (1983) 152 CLR 657; R v Apostilides (1984) 154 CLR 563; Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 294 per Fullagar J. An important aspect of that role relates to the decisions as to which witnesses to call as part of the prosecution case. Such decisions are to be made having regard to the overriding considerations of justice rather than for tactical reasons: Apostilides at 576. The fact that a witness gives an account of an event which is contrary to that provided by other witnesses in whom the prosecution has confidence and whom it plans to call will not generally, of itself, justify the failure to call that witness or, at least to present that witness for cross-examination: R v Kneebone (1999) 47 NSWLR 450 at 460-461; R v Shaw at 429. At least in the case of a material witness, a decision not to present that witness should not be taken without the benefit of interview of that witness by the prosecuting authority: Kneebone; R v O’Brien (1996) 66 SASR 396. It is noteworthy that in the cases of Kneebone and Shaw the witness under consideration was said to be an eye witness to the crime. The significance of a witness in a case will obviously be an important factor in the decision as to whether to call that witness.
In the case upon appeal Ms Wright’s role was not, originally, of much significance. As mentioned, she arrived, with two others, after all the violence had concluded and her statement was included in the brief only because of her observations of the scene. True it is that her two companions were called, but it is hard to see that their evidence added much to the narrative. The real significance of Ms Wright’s evidence was, of course, her account of what Bilney later said to her. That evidence was admissible only as a previous inconsistent statement under s 28 of the Evidence Act 1929. Even if Ms Wright gave such evidence and was believed, the only impact that evidence could properly have was upon the credibility of Bilney. It did not become proof that Bilney had given Ms O’Connor a few slaps in the bath. Nonetheless, the potential undermining of Bilney’s evidence was a crucial matter, both from the point of view of the prosecution and also of the defence.
In all the circumstances of the material placed before this Court I have formed the view that the decision taken by the prosecutor not to call Ms Wright is not suggestive of any error of judgment. Indeed, inasmuch as the use sought to be made of the witness was its tendency to prove a prior inconsistent statement by the witness Bilney, it seems to me that the decision was consistent with the promotion of the overriding interests of justice. Only under cross-examination from the prosecutor would the jury learn that at the time when Bilney allegedly made the admission to her, Ms Wright chose not to advise the police, that she was not later sure that her partner had heard the admission, that she had her own reasons for disliking Bilney and that she had told the investigating officer that she was not absolutely sure that Bilney referred to himself, as opposed to the appellant, delivering the hits in the bath to Ms O’Connor. These were matters material to evaluation of her credibility.
Nor do I consider that the fact that a witness is called by the defence and not the prosecution is likely to give to an impression that the witness is “against the Crown” or “tainted with or by the accused”, as suggested in Shaw at 450. This was not a suggestion that Doyle CJ found to be of concern in O’Brien (at 399) where, as here, the prosecutor discarded a witness after forming a judgment that he was unreliable.
The decision not to call Ms Wright as a prosecution witness coupled with defence counsel’s decision to call her meant that the prosecutor was put in the position of cross-examining about an event – the interview – in which she herself had taken part. I agree that that this situation is not a particularly desirable one and that there can be dangers arising from it. However, it will be a situation which comes to pass from time to time, particularly if prosecutors are responsive to criticism for failing to interview witnesses prior to discarding them, as was levelled in the cases of Kneebone and Shaw. I note that had Ms Wright given a statement to the investigating officer after his interview with the prosecutors, and assuming that statement contained the same assertions made to the prosecutors, then the situation would have been very much neutralised.
Mrs Shaw put to this Court that once the decision was made not to call Ms Wright, the prosecutors became potential witnesses and should have withdrawn from the case. I cannot think that is correct. Quite apart from implications to the timetable set for the trial and the prosecution resources, there is no reason to think that the same situation would not have recurred. Perhaps, with the benefit of hindsight, the junior prosecutor might have been required to provide a statement and to have withdrawn from the matter. It is unnecessary to form any final view about that. What can be said is that the way the events unfolded required that in cross-examination of Ms Wright the prosecutor should attempt to keep herself at a distance from the subject matter of her cross-examination, so far as was possible. For the most part that was here achieved, although I acknowledge that the use of the pronouns “I” and “me” would have been best entirely avoided. And in fact on almost all of the topics canvassed in cross-examination common ground was established. But in any event, by the end of the cross-examination the state of Ms Wright’s position on the crucial out of court statement which Ms Wright attributed to Bilney was that although she stood by her evidence that Bilney had made the admission to her, she did not deny that she might have told the investigating officer that she was not “absolutely sure” that Bilney was speaking of his own conduct and not the appellant’s. (The prosecutor sought leave to call the investigating officer to prove that Ms Wright had acknowledged such uncertainty, but it was refused.)
It seems to me that Ms Wright’s acknowledgment that she could have admitted such a doubt markedly undermined the value of her evidence to the defence. That acknowledgment stood outside any question of a contest between prosecutor and witness as to their conversation. A fair reading of the entirety of Ms Wright’s evidence leads me to the conclusion that despite the chain of events in respect of that witness, it cannot be said that the prosecutor’s credibility became an issue in the trial. Nor do I apprehend that for any related reason a miscarriage of justice resulted.
Counsel’s address
The second aspect of the complaints about the way in which the prosecution case was presented focussed on counsel’s final address. Essentially Mrs Shaw argued that the prosecutor put to the jury that the very manner in which the accused had conducted his defence led to an inference of guilt. Attention was drawn to the prosecutor’s submissions to the jury containing phrases such as “the old I can’t remember defence”, “the old conspiracy defence”, “a pathetic finger-pointing exercise”, and referring to the calling of Ms Wright’s evidence as a “last ditch effort” to discredit Bilney.
There is no doubt that it would be reprehensible for a prosecutor to convey to the jury that the particular defence advanced by an accused person should be discounted by reason of its being, in that prosecutor’s experience, commonplace in the situation faced by the accused, or the resort of guilty persons, or indeed the current vogue. To address the jury in that way would be to imply that exposure to other cases would cause the jury to view the defence with scepticism. It would be an attempt to introduce evidence from the bar table, that is, evidence of the stances of accused persons in other cases. That is to be contrasted, though, with counsel appealing to the jury’s experience of human reactions.
Similarly, counsel may not convey by words or by inference what is their personal opinion about the case generally or any of the persons involved, or about any issue. To do so breaches both the professional conduct rules which apply in this state and long-accepted principles governing the conduct of an advocate. (See Law Society of South Australia, Rules of Professional Conduct and Practice (March 2003) r 13; Glissan JL and Tilmouth SW, Advocacy in Practice (3^rded, Butterworths, 1998) p 222ff; DuCann R, The Art of the Advocate (Penguin Books, 1980). A prosecutor must not address the jury in language which is intemperate or over-zealous in its nature. Nor may a prosecutor criticise the framework designed to ensure that accused persons receive a fair trial: R v Webb (1996) 186 LSJS 184 per Cox J.

In order to assess whether any of the expressions employed by the prosecutor in this case contravened such rules, it is necessary to examine those expressions in their full context.
I start with the “old I can’t remember defence”. Submissions utilising this theme arose from the prosecutor’s analysis of the three intercepted telephone conversations, which took place after the time the accused was arrested for the offence. The prosecutor reminded the jury of certain passages in each conversation. She suggested to the jury that in the first conversation the appellant effectively admitted the offence, asserting that although it was not premeditated, things had “got out of hand” and then the killing had occurred. The prosecutor contrasted that acceptance of responsibility for the offence to the appellant’s position in the second and third telephone calls. She suggested that in statements made during those conversations the genesis of the appellant’s attempt to evade responsibility for what he had done could be seen. The prosecutor referred to the fact that it was apparent from the recording that during the second call the appellant had been told of a house fire at his premises, being the same premises at which the killing had occurred. He was told that Bilney had been questioned in relation to that fire. The prosecutor suggested that from statements made by the appellant after that point it could be seen that the appellant conceived the idea that Bilney might have started the fire to destroy evidence which could link him, that is Bilney, with the victim’s death. The prosecutor pointed to passages in the second and third calls which she suggested demonstrated the development of this plan in the appellant’s mind. She suggested that this amounted to “a pathetic finger-pointing exercise” designed to defeat the charges. Allied with this submission was the prosecutor’s suggestion that, unlike in the first conversation where the appellant did not claim amnesia in respect of the events leading to the victim’s death, in the later conversations he was said to have used the “old I can’t remember defence” to account for why he could not describe the actions Bilney must have taken to kill the victim. The prosecutor’s submissions in this regard were supported by reference to passages in the subsequent calls, including the following excerpts from the second and third calls:
Second Call
AppellantNow that just mention in there he’s burning everything, this way, that way –
FemaleYeah.
AppellantIt’s starting to make me think, yeah, that’s -, this is starting to play on his mind.
FemaleYeah, like, me and Ritchie was saying the same thing, me and Ritchie were yarning last night –
AppellantYeah.
FemaleAnd me and Ritchie were thinking that what you were saying.
AppellantYeah.
FemaleMm.
Appellant‘Cos I reckon there’s a bit more to it than, than –
FemaleYeah.
AppellantWell you know, me doing this because –
FemaleYeah.
AppellantI can’t remember doing anything such –
FemaleYeah.
AppellantAs that.
FemaleYeah.
AppellantThat’s the honest truth, I cannot remember a thing about it.
Third Call
…
AppellantYou know, I, I reckon [Bilney’s] got more behind this here than what meets the eye, you know, I don’t believe I’ve done this.
FemaleNo, I don’t believe you did either, mate.
AppellantNuh, because why would he burn the house down, why, you know, he –
…
AppellantOnce, once I got a good barrister, you see, and once my barrister gets [Bilney] in the court, he’s gonna … he’s gonna bury him, I know it.
Female Yeah, good.
AppellantSo, you know, I, … I believe this happened before I come back from the pub.
Once the prosecutor’s use of the impugned expressions is placed in context, it seems to me that the criticism of them can be dismissed as unjustified. In no sense was the prosecutor putting to the jury any suggestions based on material beyond that which was in evidence. She was entitled to draw a contrast between the appellant’s position in the various telephone calls. Whether or not the points she made were strong ones was a matter entirely for the jury. I am uncertain what the adjective “pathetic” added to the expression “finger-pointing exercise”. If, by the use of that word, the prosecutor meant to imply that the attempt to implicate Bilney was a weak one, then I would not be critical of the use of that word. Although, it must be said that whether or not there was such an attempt and whether or not it was a weak one were ultimately matters for the jury.
Mrs Shaw was critical for another reason of the prosecutor’s suggestion that the appellant’s claim not to remember the killing appeared for the first time in the second and third telephone conversations. She referred to the statement of the prosecutor, speaking of the second and third calls, to this effect:
You see, what happened between that first phone call on 9 October 2003 and the second phone call on 13 October 2003? The house fire at 24 Seymour Street. … Up until that point you had the accused talking about how long the stretch might be for him; whether he can get it reduced from murder to manslaughter. Up until that point you don’t have the accused saying “I am innocent, I am innocent, I have been falsely charged, I should not be here”; quite the contrary, up until that point the accused was saying “Yeah, well it wasn’t premeditated…”
Mrs Shaw put to the court that in fact in his first statement to police (which had been excluded by the trial Judge on the application of the appellant) the appellant had denied responsibility for the victim’s death and had said that he had found her dead in the bath. When spoken to about five hours later, he claimed very little memory of that statement or the conversation surrounding it.
It would, of course, be improper for counsel on either side to make a representation to the jury which counsel knew, from other material, was inaccurate or unsustainable. That was not the situation here. It is plain from the transcript of the prosecutor’s address that in making the submissions she did, she was simply contrasting statements made in the three telephone conversations. It is apparent to me that she was careful not to choose language which might have implied what the appellant’s position may have been on any other occasion.
The reference to a conspiracy theory or defence arose in another context. The defence called a police officer to prove that in November 2003 Bilney had telephoned the local police station (Sergeant Graetz) to advise that he had someone with him who had information about the house fire and that then Aspel had spoken to Graetz. Whilst Bilney agreed that this call had occurred, Aspel – who admitted to longstanding psychiatric illness – denied “making any phone calls at all with [Bilney] in November of 2003.” (That was the extent of the cross-examination on that point.) In her final address, the prosecutor attempted to anticipate the relevance which would be attributed to this evidence. She posited that perhaps it would be suggested that Aspel and Bilney had conspired to implicate the appellant in the wounding offence, which was in truth committed by Bilney. She then proceeded to make suggestions as to why such a theory would not stand examination.
Again, when these submissions are viewed in context, there seems to me to be little substance in the complaints. Jurors might know from their experience or from their reading that sometimes a person accused of something claims a conspiracy against them, just as they might have heard of persons hiding behind a feigned lack of memory. The arbiters of what submissions are fair, consistent with the evidence, telling, and of assistance, are first and foremost the members of the jury. Submissions which are extravagant or based on inaccuracies will be readily rejected by them. Their ability to appropriately sift such factual arguments is one of the many attributes for which we value them. I cannot see that the use of this expression or the submissions on the topic could have deflected the jury from its task.
Mrs Shaw also complained of the prosecutor’s observation to the jury that defence counsel had not put to Bilney certain assertions about Bilney’s conduct which the appellant had made in the telephone calls. Mrs Shaw dealt with this matter under the heading “Criticism for Failing to Comply with the Rule in Browne v Dunn based on the telephone calls”, but on my reading of the prosecutor’s address that was not the thrust of the suggestion. At any event the background of the matter was that it was clear at the commencement of the trial that a decision as to whether to lead evidence of telephone intercept material would await an appreciation of the defence case. Towards the end of the prosecution case, counsel indicated to the Court an intention to lead the first of the three calls, to which reference has already been made. An objection to its admission was overruled. Thereupon defence counsel asked that the second and third calls also be led. That course was followed.
As seen, it was in the second and third calls that the matter of the fire was raised, along with the suggestion that Bilney might have started the fire to hide evidence which he thought might incriminate him. And so, in the event, it was at the request of the defence that this material was before the jury. By the time the jury heard the tapes of those calls, Bilney had long left the witness box. If the defence had wished to positively assert to the jury that Bilney had started the house fire for a particular reason, then no doubt such a suggestion should have been put to Bilney, and he should have been recalled for that purpose. No application to recall him was made. However as I understand the defence case, that was not part of it, at least not in a positive sense. Consequently there was no duty to comply with Browne v Dunn on this point. However, the prosecutor’s point was a different one. She was drawing attention to the fact that the defence was not adhering to the position taken in the later phone calls: that the occurrence of the house fire was linked to the death of the victim. She was suggesting that although it suited the defence to raise a suspicion about that matter, it was not being actively pursued in the courtroom. And so, the prosecutor was attempting to discredit the appellant’s assertions made in the second and third calls. In my mind the point was a weak one as on almost any view the later conversations fell to be discarded as ill-considered fomentation by a charged man, in custody, either depressed and desperate, or perhaps big-noting himself. But I do not consider that there was anything intrinsically unfair in what occurred or in the submissions made.
The other aspect of this ground of appeal refers to the use of the expression “last ditch effort”. That phrase appeared in the prosecutor’s submissions to the jury in the following context:
So, what else do the defence want to use to try and make you think that it was Mr Bilney? As a last ditch effort are the defence going to say, “Well, what about the evidence of Donna Wright? Doesn’t that cause you some doubt about the accused guilt and point the finger at Mr Bilney?” Well, as with all witnesses, as I have said, you have to make your own assessment of her credibility. You might have no doubt about the prosecution position about her credibility; we say she has none.
The prosecution had immediately before that passage referred to the evidence that a few spots of the victim’s blood had been found on Bilney’s clothing; specifically an “airborne” spot on the back of his jeans, several such spots on the right shoe and one on the back of his jacket. Mrs Shaw’s point was that this submission amounted to criticising the appellant for the very calling of Ms Wright in the appellant’s defence. In my view the point is not well taken. It is not the calling of the evidence that the prosecutor criticised, but rather a particular use of it which she anticipated might be made. That might be a fine distinction, but the gravamen of the suggestion she made was that each of the potential bases on which the defence might seek to implicate Bilney was a flimsy one. That submission was well open to the prosecutor.
Before leaving these grounds I would add one matter. It is important, in my view, that counsel on both sides are careful to ensure that they are making suggestions as to how the jury might view the evidence or as to the inferences they might draw from it, as opposed to making assertions of fact about the case. Often counsel will make that clear at the commencement of the addresses and it will be reinforced throughout by use of expressions such as “you may think …” or “I suggest …” preceding the analysis which is being advanced. The use of such formulae is apt to distance the advocate from his or her case and to make it clear that personal views are irrelevant. For similar reasons, I consider that counsel should not “ask” a jury to accept or reject a particular witness or position, even less ask them to convict or acquit.
Had these formulae been more strictly adhered to in this case, then the issues might have been more clinically presented by both counsel. However, as I say, I see no reason to apprehend that a miscarriage resulted by reason of these matters.
Question of duplicity
As mentioned, there was a conflict on the evidence of Aspel and Bilney as to whether the violence causing Ms O’Connor’s death occurred before or after Aspel’s attendance at the premises. The prosecutor put to the jury that the account most likely to be correct was that of Aspel. That choice was unsurprising, since Aspel claimed to have seen Ms O’Connor dead in the bath, in which position she was ultimately found. Upon the appeal, Mrs Shaw argued that not only should specific directions have been given to the jury as to the need to reach a conclusion as to which version was accepted, but, further, the prosecution should have been required to elect as between the two accounts. Mrs Shaw cited R v Frederick [2004] SASC 304 as authority for the need to elect.
The circumstances of Frederick’s case were quite different. There the victim described having had intercourse with the defendant in his office on the upper floor of commercial premises. The victim’s mother claimed to have seen an act of intercourse in progress between her daughter and the defendant on the floor of her lounge room at the house where all three lived. She said she observed that scene by looking in from outside the house through the lounge room window. The prosecution presented the case on that count by suggesting that it was the same incident which was described by both witnesses, notwithstanding the discrepancies. There was a body of material to support that position. The trial Judge directed on the basis that the jury could convict the defendant irrespective of where the incident occurred. On appeal the conviction was quashed. It was held that the evidence and directions given left open the possibility that two different incidents were being described. If that was so then it could not be determined of which incident the jury were satisfied, even if they were satisfied of one or the other. In those circumstances an election by the prosecution should have been required. At [40] Duggan J, with whom Bleby and Anderson JJ agreed, said this:
This is not a case in which there is a single version of a set of facts which establish an act of intercourse, but the witness is unable to say with precision where the incident took place. Rather, it is a case in which there is considerable controversy within the prosecution case as to the circumstances of the alleged offence such that it is difficult to reconcile the two versions satisfactorily.
In my view Frederick’s case does not avail the appellant. Plainly there was one offence committed upon Aspel and whether it occurred before or after the killing of Ms O’Connor was not a material matter in the sense that it required to be proved beyond reasonable doubt. That is not to say that it could not give rise to a need for consequential directions as to matters such as the impact of the issue upon the credibility of Bilney and Aspel.
Cross admissibility and related directions
Mrs Shaw argued that it was necessary for the jury to reach a conclusion as to which incident first occurred if they were then to use proof of the first crime to aid in proof of the second. She argued for example that if the killing occurred after the offence upon Aspel, then there could be no valid use of the fact of the murder in relation to the earlier offence on Aspel. She put that the evidence relating to the later crime would be evidence of “post disposition”. I cannot myself see that the order of events is of significance for this purpose. But in any event, the jury was directed that they could only use a finding of guilt on one count for a limited purpose in respect of the other count. Her Honour told the jury:
You will remember that I told you earlier that you must consider each of the charges against the accused quite separately. You will appreciate, however, that the acts of the accused, which are alleged to constitute the separate charges, are alleged to have occurred on the same day and are quite closely linked in time. Accordingly, when you are considering the charge of murder you are entitled to take into account, as a piece of circumstantial evidence, that at some other time that day the accused was observed by Adam Aspel to be in possession of the wooden pole and to be behaving violently with it. That would only arise, however, if you were satisfied that Adam Aspel has told you the truth about what occurred. Similarly, if you accept the evidence of Grant Bilney that on an earlier occasion that day the accused was in possession of a wooden pole and had used it in a violent manner, that would be a piece of circumstantial evidence which you would be entitled to take into account when you consider the second charge.
It can be seen from that passage that the extent of the use to which the jury was told it might put certain findings on one or other counts was quite specific. In the first place it related to the appellant’s possession of the wooden pole and in the second it referred to use of that pole in a violent manner. These were matters that went only to proof of identity. They did not touch the question of intention. Inasmuch as these permitted uses were described to the jury as being exceptions to the requirement that they were to consider each charge separately, there was no need to warn them not to use their findings in any further way.
In a sense the second manner of use was a matter of disposition. However it was not so much a question of general disposition as in, for example, R v Pfennig (1995) 182 CLR 461, but was rather a matter of the behaviour of the appellant; behaviour of a specific type at a particular time and place, which had as its underlying theme the marked intoxication of the appellant by liquor, diazepam and perhaps cannabis as well. Very much as was held to be the situation in O’Leary v The King (1946) 73 CLR 566, these were occurrences or transactions, the one part of which helped to make the other intelligible. I am unable to see that the potential use by the jury of the dispositional aspect of the appellant’s behaviour gave rise to the need for any direction to the jury beyond those given. In addition, the jury’s use of their findings in this limited way meant that the reasoning process was not affected by the order in which the charged incidents occurred.
A further ground under the heading of “Cross Admissibility” related to the directions given on the permissible use of what is sometimes called “relationship evidence”. There was a body of evidence before the jury, coming from Bilney and Aspel, as well as other witnesses, that tended to prove that the appellant had been violent to the deceased on more than a few occasions prior to her death.

The trial Judge referred to the evidence in some detail, explaining its relevance. The jury was told that if they were satisfied of its reliability, they could take it into account for a particular purpose. They were directed:
56… you are entitled to take that circumstance into account when you are considering whether it was, in fact, the accused who was violent to Ingrid on 21 August, as it is said he was on those earlier occasions. It is also evidence which you may take into account when you are considering with what intention the accused acted on the night in question. (Emphasis added.)
57I must, however, make it clear to you – and this is very important – that none of the incidents of violence which are alleged to have taken place prior to 21 August is the subject of any specific charge against the accused at this trial.
58If you are satisfied that those other incidents took place, you must not leap to the conclusion that the accused must, therefore, have hit Ingrid on the occasion which is the subject of the charge before you.
Mrs Shaw argued that by these directions, and in particular in the italicised passage, her Honour left it open to the jury to use the relationship evidence, not only in respect of the murder charge, but also in relation to count 2.
I cannot accept that there was any such instruction or even ambiguity. The series of directions on this topic immediately followed the direction that each count should be considered separately. The impugned direction was set clearly in the context of the six month relationship between the deceased and the appellant. The permitted used was plainly confined to ascertaining whether, on the night of her death, it was the appellant who was “violent to” the victim and then, if it were so, what was his intention. Paragraph 58 confirmed the limits of the permitted use. In the passage which followed, the Judge directed as to impermissible uses of the evidence and, necessarily, those directions extended to both counts before the jury. However, the directions as a whole made clear that the permitted use was in respect of count 1 only.
Directions on the topic of joint enterprise
The prosecution case against the appellant on count 1 was always that he alone murdered Ms O’Connor. In her opening address to the jury the prosecutor made no mention of the concept of criminal complicity or joint enterprise. However, that matter was raised in defence counsel’s final address to the jury. Counsel referred to the evidence of the pathologist, who had described a fracture to the deceased’s skull going from one side of it to the other as probably being the fatal injury. The pathologist preferred the view that the fracture probably resulted from a series of blows rather than a single blow, but he said that if it were a single blow then it was a substantial one. Having referred to this evidence counsel suggested to the jury that if death was conceivably caused by one blow, then before convicting they would have to be satisfied that it was the appellant and not Bilney who delivered that blow. He pointed out that the allegation of “joint enterprise” was no part of the prosecution case and that therefore if they thought it reasonably possible that Bilney had delivered one or more blows to the victim, they would be obliged to acquit. The only evidence before the jury which touched upon possible involvement by Bilney in the delivery of blows was Ms Wright’s assertion that Bilney had admitted to her that “he gave Ingrid a couple of good slaps in the bathtub for being such a bitch to [the appellant]”. As already observed, this was no more than an alleged prior inconsistent statement by Bilney and did not amount to evidence that he had slapped Ms O’Connor. However, understandably, the prosecutor took exception to defence counsel’s submission and asked the trial Judge to rectify it.
What the Judge did to address the issue was as follows. First she alluded to defence counsel’s address and his reference to the principle of joint enterprise. She said she would make “some comment about that”. She reiterated that the prosecution case was that the appellant alone assaulted and killed the victim. She then told the jury that even if they reached a position whereby they thought it was reasonably possible that Bilney had participated with the accused in an attack upon the victim, that of itself would not lead to a verdict of acquittal. The Judge then explained in simple and concise terms that criminal responsibility could attach where persons act together in pursuance of a common unlawful purpose. She gave the often used example of a bank robbery whereby in pursuance of a plan, several persons are ascribed and carry out different roles, which together accomplish the crime of armed robbery. The following direction was then given:
181So in this case if you thought there was a reasonable possibility that Bilney as well as the accused struck some blows that night, that would not absolve the accused from liability for what he did if all of the elements of the crime of murder are otherwise proved to the requisite degree, notwithstanding that it is the accused alone who is on trial before you. Even if Bilney was involved in some way, he is not on trial before you and you should therefore not concern yourself with him in that respect. Your task in this trial is to determine whether the Crown has proved that the accused committed this crime.
182If, however, Bilney was involved, that is a matter which you might think would undermine his credibility and that is why I told you earlier that you must carefully scrutinise his evidence as in that situation he would have an obvious motive to exculpate himself.
Counsel for the appellant submitted that in those two paragraphs the trial Judge effectively recast the case against the appellant, so that a conviction might be based either on a finding that the appellant acted alone, or upon the basis of a finding of joint enterprise. In my view this submission cannot be made good. It is clear that having explained the legal concept of joint enterprise the Judge was, in paragraph 181, turning back to the facts of the matter before the jury to explain why defence counsel’s submission was, standing alone, incorrect. The Judge correctly told the jury that if all elements of the crime of murder were proved against the appellant, then the possibility of the striking of some blows by Bilney could not affect the appellant’s guilt. Then, importantly, the Judge directed the jury back to the actual importance of any reservation about Bilney’s conduct: that it would undermine his credibility. The Judge had earlier given a comprehensive warning to the jury about the need to scrutinize Bilney’s evidence and that warning included reference to the possibility that he was involved in the victim’s death and wished to cast blame elsewhere.
In that way the jury’s attention was brought back from the tangential consideration of joint enterprise to the real issue, namely their assessment of Bilney’s credibility. Although it was unfortunate that the matter of complicity was ever raised in this way, upon analysis, I cannot think that the jury were left in any doubt as to the correct approach to the evidence. Nor can it validly be said that the trial Judge enlarged the basis on which a verdict of guilty could be rendered.
Directions concerning intoxication
The appellant complained that in her summing up the Judge failed to adequately direct as to the significance in the case of the appellant’s, and indeed the victim’s, levels of intoxication. It was put that the directions failed to distinguish between the basic intent required to strike blows, as opposed to the specific intent required to be proved if the appellant were to be convicted of murder. Furthermore it was suggested that the direction failed to crystallise for the jury the way in which a consideration of the evidence of intoxication might lead to a conviction of manslaughter rather than murder.
The trial Judge gave quite extensive directions on the topic of intoxication. It was a topic which was prominent in the trial. Her Honour both extensively summarised the evidence – which included expert evidence from a pharmacologist – and gave directions as to how the accused’s intoxicated state might affect an evaluation of his actions. These directions were given in the context of a discussion of what the Judge described as the second and third elements of murder, being that the act or acts causing death must be conscious and voluntary and that they must be accompanied by the relevant intention. The Judge directed the jury that the issue of intoxication was relevant to both those elements. In respect of the matter of voluntariness, the jury were told that the accused’s acts needed to be deliberate and that meant that he had to have been aware of what he was doing at the relevant time. They were told that raised the issue of intoxication. [140] The necessity for proof of the specific intent for murder was put to the jury as an additional matter in need of proof, being the third element. In the course of that discussion the following directions were given.
163First of all, as I have told you, criminal responsibility in law attaches only to the actions performed in the exercise of the will. If a person is acting as an automaton, not under the control of the will, whether due to drink, drugs, sleep walking, concussion or other like cause, he is not criminally liable for his actions. The Crown must, therefore prove in this case that the accused acted consciously and voluntarily in acting as he did. If his will was so overborne that he was acting involuntarily, that is like an automaton or a sleep walker, he would not be guilty of the crime.
164If, however, you were satisfied that in this case, despite the amount of alcohol you find the accused consumed, his actions were conscious and voluntary, you would then have regard to the evidence relating to his intoxication when considering the question of intent which arises with respect to the third element.
165The inference which might be drawn in the case of a sober person from his actions might not be as readily drawn in the case of an intoxicated person. So when you are considering with what intention the accused acted that day, you will bear in mind the effect, if any, of the influence of alcohol and drugs upon his mind. If however, the guilty intention was present, it is immaterial that it was the product of or associated with intoxication.
Counsel for the appellant made no complaint about the correctness of any direction. The essence of the argument was that more should have been said to explain how intoxication might bear on the jury’s task.
It is true, as Mrs Shaw submitted, that no particular direction was given as to the way in which the victim’s intoxication might have subdued her responses to the violence shown her. If her reactions were minimal then that might not have brought home to the appellant the degree of injury he was inflicting. The strength of that submission has to be considered in the context of the number and force of blows rendered to the victim – more than sixty as I have outlined and at least fourteen to the head – together with the nature of the implement employed in the assault and indeed such reactions as the victim exhibited. Bilney’s description of the events coupled with the pathologist’s evidence suggested that a number of blows were extremely forceful, that a number of them caused profuse bleeding and that the victim recoiled from several of them, falling over more than once, including on one occasion “in a big pool of blood”.
In my view the directions given were sufficient to bring home to the jury that whereas one might readily infer from the infliction of such brutal injuries by a sober man that they were inflicted with intent to cause at least grievous bodily harm, where the appellant was in an advanced state of intoxication, such an inference was not so strong: see R v Wingfield (1994) 176 LSJS 14.
When it came to the matter of manslaughter the Judge directed in terms of the requirements of the unlawful and dangerous act genre. Specific reference was made again to the matter of intoxication. The directions in respect of both murder and manslaughter were clear and accurate. I consider that the extensive directions given on the topic of intoxication and its relevance to the issue of specific intent were apt to make clear to the jury the critical distinction between the elements of murder and manslaughter.
For these reasons I consider that none of the grounds of appeal are made out. I would dismiss the appeal.
ANDERSON J: I agree that the appeal should be dismissed for the reasons given by Vanstone J.