R v Roberts

Case [2019] SASCFC 94

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ROBERTS

[2019] SASCFC 94

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Hughes)

1 August 2019

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE - GENERALLY

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS

CRIMINAL LAW - EVIDENCE - HEARSAY - ADMISSIBILITY

The appellant was convicted by a jury of causing harm with intent to cause harm to Ms Cheryl McKenzie (the complainant) on 5 March 2017. The appellant and complainant were then living together in a sexual relationship in a house at Murray Bridge. The complainant gave evidence that the appellant, while in an intoxicated state, grabbed her at the front door, dragged her for some distance, pushed her onto the footpath and kicked her to various parts of her body, causing various injuries. The appellant’s two brothers Stephen and Joe were both there on this day.

The complainant gave evidence that before living with the appellant, she had been in a relationship with a man, Ray, who had been violent to her. The defence case, put to the complainant in cross-examination, was that the appellant did not perform the charged assault and that it was Ray who had done it.

Neither the appellant nor Stephen Roberts gave evidence. Ray was by then dead.

The only facts in issue were: (1) that the complainant was violently assaulted; (2) that such assault caused harm to her; (3) that it was the appellant who so assaulted her; and (4) that he acted deliberately and with the intention of causing her harm.

Ground 2 of Appeal complained that a police officer attending at the scene gave evidence of two tranches of Stephen’s statements/conduct. First, that he loudly told police to leave the property and he shut the front door; and secondly that, on being told that the appellant was being arrested for assaulting the complainant, said, “If she’s saying those things she needs to be dealt with. She needs to learn the Aboriginal way”. The single Judge granted permission to appeal on Ground 2.

Ground 1 of Appeal did not complain of the fact that the Judge admitted the complainant’s general evidence that the appellant was “rough to me nearly every day we were together”, namely, by “slapping [her] around, arguing…” but did complain of the admission of the complainant’s specific allegation that on 14 February 2017 the appellant had got angry with her and twisted and broken her arm, after which she had surgery. The complainant had told doctors that her injuries had been caused by her accidentally falling off a deck. The single Judge referred the question of permission to appeal on…

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R v Roberts [2019] SASCFC 94
Case
[2019] SASCFC 94
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by the appellant, R v Roberts, against his conviction for assault occasioning actual bodily harm. The dispute centred on the admissibility of certain evidence led by the prosecution, specifically statements made by Stephen Roberts, the appellant's brother, during the appellant's arrest. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Peek and Hughes JJ.

The primary legal issue before the court was whether the trial judge erred in admitting the evidence of Stephen Roberts' statements and conduct. The prosecution sought to justify the admission of this evidence by arguing it was relevant to rebutting the defence's assertion that the appellant and his family had merely assisted the complainant after she had been assaulted by another person. The defence contended that this evidence, particularly Stephen Roberts' statement that the complainant "needs to learn the Aboriginal way," was unfairly prejudicial and inadmissible hearsay.

The court reasoned that the statement made by Stephen Roberts was not being relied upon for its testimonial content, but rather as an expression of anger and hostility. This hostility, coming from a member of the household that the defence claimed had aided the complainant, was inconsistent with the defence's narrative. Therefore, the statement and conduct of Stephen Roberts rendered less likely the defence's proposition that the appellant had assisted the victim after an assault by another. The court distinguished this from inadmissible hearsay, finding it relevant circumstantial evidence that tended to disprove a key aspect of the defence case. The court also considered the principles established in cases such as *Walton v The Queen* and *R v Hendrie*, which deal with the admissibility of statements to prove a person's state of mind or intentions, and found them distinguishable from the present circumstances.

The court dismissed the appeal, finding that the trial judge had not erred in admitting the evidence of Stephen Roberts' statement and conduct.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Grouch was in the process of arresting the appellant and reading him his rights when Parkinson said to Stephen Roberts that the appellant was getting arrested for assault on the complainant. Parkinson gave evidence (led over strong objection by the defence) that Stephen Roberts then said: “If she’s saying those things she needs to be dealt with. She needs to learn the Aboriginal way”. This is the second tranche of evidence complained of in Ground 2. On the hearing of the appeal, the prosecution attempted to justify the admission of both tranches of evidence by reference to well-known authorities standing for the proposition that in some circumstances a person's state of mind may be proved by contemporaneous acts or statements made by that person, relying principally upon Walton v The Queen[5] and R v Hendrie.[6] [5] (1989) 166 CLR 283.[6] (1985) 37 SASR 581. However, it is necessary to consider at least two matters here: first, the basis of the particular decisions such as Walton and Hendrie; and, secondly, the broader state of the authorities in the area. The basis of the particular decisions in Walton v The Queen and R v Hendrie In Walton, an accomplice of Walton gave admissible evidence that on 4 December 1985 Walton told her that he had arranged to meet the deceased at the Elizabeth Town Centre at 7.00 pm on the following evening, and that at about 11.30 pm on 5 December 1985, he arrived home covered in blood and told her that he had picked up the deceased at the bus station at the Elizabeth Town Centre just after 7.00 pm, that they had driven to a hotel and later into the country, and that he had there killed her with a rock and a hammer. Walton gave evidence on oath, specifically denying all of the above evidence. The prosecution tendered a number of items of evidence in order to corroborate the accomplice. The challenged evidence of Mrs Stitt is representative of that evidence. She gave evidence over objection that the deceased had told her that she was going to meet Walton at the Elizabeth Town Centre on 5 December 1985 and that she was going to the Centre by bus.[7] The Court held that the evidence of the intention of the deceased (as expressed to Mrs Stitt) was admissible circumstantial evidence tending to prove by inference that she was likely to have acted on that intention. [7] Evidence was also given that a bus ticket was found in a pocket of the deceased's clothing and a bus driver gave evidence that it was sold by him on 5 December 1985 on a run which included a stop at which the deceased might have been expected to board the bus; a bus on that run would have arrived at the Town Centre stop just before 6.50 pm if it were on schedule. In summary then, whether the deceased did or did not meet Walton at the Elizabeth Town Centre on 5 December 1985 at 7.00 pm was clearly an important fact in issue and the challenged evidence of Mrs Stitt as to what the deceased had told her was unequivocally directed to that clear fact in issue.

Decision

Reasons for decision

However, it is necessary to consider at least two matters here: first, the basis of the particular decisions such as Walton and Hendrie; and, secondly, the broader state of the authorities in the area. The basis of the particular decisions in Walton v The Queen and R v Hendrie In Walton, an accomplice of Walton gave admissible evidence that on 4 December 1985 Walton told her that he had arranged to meet the deceased at the Elizabeth Town Centre at 7.00 pm on the following evening, and that at about 11.30 pm on 5 December 1985, he arrived home covered in blood and told her that he had picked up the deceased at the bus station at the Elizabeth Town Centre just after 7.00 pm, that they had driven to a hotel and later into the country, and that he had there killed her with a rock and a hammer. Walton gave evidence on oath, specifically denying all of the above evidence. The prosecution tendered a number of items of evidence in order to corroborate the accomplice. The challenged evidence of Mrs Stitt is representative of that evidence. She gave evidence over objection that the deceased had told her that she was going to meet Walton at the Elizabeth Town Centre on 5 December 1985 and that she was going to the Centre by bus.[7] The Court held that the evidence of the intention of the deceased (as expressed to Mrs Stitt) was admissible circumstantial evidence tending to prove by inference that she was likely to have acted on that intention. [7] Evidence was also given that a bus ticket was found in a pocket of the deceased's clothing and a bus driver gave evidence that it was sold by him on 5 December 1985 on a run which included a stop at which the deceased might have been expected to board the bus; a bus on that run would have arrived at the Town Centre stop just before 6.50 pm if it were on schedule. In summary then, whether the deceased did or did not meet Walton at the Elizabeth Town Centre on 5 December 1985 at 7.00 pm was clearly an important fact in issue and the challenged evidence of Mrs Stitt as to what the deceased had told her was unequivocally directed to that clear fact in issue. In Hendrie, the deceased, Mrs Olds, was residing with her husband, Mr Olds at Lambert Road, Royston Park. Mr Olds left home at about 8.00 am when Mrs Olds was alive. He returned home at about 5.00 pm to discover her dead, lying on the bed in the bedroom, partly clothed. She had been raped and strangled. Marks on her wrists indicated that they had been bound and there was a length of flex at her side. There were indications of a struggle in the bedroom but nowhere else. Two mugs in the kitchen had apparently been used for coffee at some time during the day; one contained dregs of sweetened coffee and there was evidence that Hendrie drank sweetened coffee. Hendrie was a house renovator. He had done a considerable amount of work on their house previously and had agreed to do some further work for them. The prosecution case was circumstantial and depended largely upon forensic evidence connecting the crime scene with Hendrie and his house; and other evidence such as a van resembling the appellant's van being seen in Lambert Road that day. However, Hendrie gave evidence on oath that he had not been in Lambert Road on the day in question and that he was not in any way responsible for her death.

Ratio Decidendi

Legal Principle Established

On appeal, the prosecution submitted in writing that:26. The evidence of the conduct and words uttered by Stephen Roberts was relevant and admissible on the prosecution case in light of the manner in which the victim was cross-examined. The defence case was that Raymond Wilson had assaulted the victim and that the appellant and one of his brothers attended to her moments after the assault and took her back to their mother’s house. The implication of that is that the appellant and his family had helped the victim after a violent attack. The injuries sustained by the victim would have been obvious to anyone at the house. The evidence of the obstructive conduct and hostile words of Stephen Roberts were inconsistent with what was being put on the defence case, as the trial judge instructed the jury:The evidence of what happened when Brevet Sergeant Parkinson came to the front door of the house in Hawke Street and later spoke to Stephen can be used by you to rebut any suggestion that the first the accused knew of Ms McKenzie being beaten up was finding her in the street, and, with his brother, helping her back to the house. The brother’s refusing the police entry into the house might make that proposition look less likely. What Stephen said to Parkinson when his brother was being arrested also might make that less likely: summing up, pg 6 [3]. 27. Given the nature of the particular propositions that were put to the victim in cross-examination about the role of the appellant and his brother in coming to her aid, the statement and conduct of Stephen Roberts was relevant and admissible. The statement was not being relied upon by the prosecution in a hearsay or testimonial manner, indeed, it was incapable of a hearsay or testimonial use. The statement was an expression of anger or hostility uttered by Stephen Roberts when he was told the appellant was going to be arrested. Such anger and hostility – coming from a member of the house that had supposedly just helped the victim after a violent attack – was inconsistent with a key part of the defence case. Accordingly, the conduct and words uttered by Stephen Roberts rendered less likely the defence proposition that the appellant assisted the victim back to the house after she was assaulted by Raymond Wilson.Consideration At the commencement of the case, when the appellant pleaded “Not Guilty”, the only facts in issue were as follows. First, that on 5 March 2017 near Hawke Road, Murray Bridge the complainant was violently assaulted. Secondly, that such violent assault caused harm to her. Thirdly, that it was the appellant who so assaulted her. Fourthly, that he acted deliberately and with the intention of causing harm to her. As noted above, counsel put the defence case in the form of the two cross-examination propositions referred to at paragraph [19] above. They were denied by the complainant but the cross-examination fairly indicated that the defence would contend that it was reasonably possible that it was the man Ray, and not the appellant, who violently assaulted the complainant, a matter that went directly to a fact in issue, whether it was the appellant who assaulted the complainant.