R v Schulz - [2016] SASCFC 150

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SCHULZ
[2016] SASCFC 150
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Lovell)
23 December 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
Appeal against conviction for aggravated causing harm with intent to cause harm. Appellant found guilty by jury. Where prosecution case was that the appellant intentionally struck the victim twice in the head with a machete. Where defence case was that he deliberately struck out with the machete, but without aiming to hit the victim. Where appellant gave evidence. Where trial Judge directed in terms of evaluating the appellant’s evidence by reference to acceptance or rejection of it.
Whether trial Judge erred in his directions to the jury going to the onus and standard of proof, and in particular, the approach to the assessment and use of the appellant’s evidence.
Held per Vanstone J (Blue and Lovell JJ agreeing): Appeal allowed. The relevant directions to the jury were erroneous. The conviction should be set aside and a new trial ordered.
Liberato v The Queen (1985) 159 CLR 507; R v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013; Murray v The Queen (2002) 211 CLR 193; Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086, applied.
R v Woods (2008) 102 SASR 422, not followed.
R v Jeisman [2008] SASC 266, considered.

R v SCHULZ
[2016] SASCFC 150
Court of Criminal Appeal: Vanstone, Blue and Lovell JJ

VANSTONE J: Shane David Schulz appeals against his conviction for aggravated causing harm with intent to cause harm. He was found guilty of that offence after a trial before a Judge and jury in the District Court.
The only ground of appeal concerns the directions given to the jury going to the onus and standard of proof, and in particular, the approach to the assessment and use of the appellant’s evidence.
For the reasons that follow, I consider that the directions to the jury on this topic were erroneous and that this amounts to an error of law. The error goes to the heart of the trial process. I do not consider that the proviso should be applied.
There is also an application for permission to appeal against sentence. Having regard to the disposition of the conviction appeal, it is unnecessary to consider it.
Background
The charge arose from an incident which occurred on 17 September 2014 at Northfield. The appellant and the victim named in the charge, Mr Wahlstedt, were living in Housing Trust premises of which the appellant was the tenant. Mr Wahlstedt had met the appellant at a previous stay at the St Vincent de Paul men’s shelter and later, Mr Wahlstedt approached the appellant and asked whether he could stay with him. Their relationship was not a happy one, the two men being in disagreement over…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Schulz

Details

AGLC: R v Helps [2016] SASCFC 150
Case: [2016] SASCFC 150
Decision Date: 23 December 2016

CaseChat Overview and Summary

The appeal concerned a criminal conviction arising from an incident on 17 September 2014. The appellant, R v Schulz, was accused of striking Mr Wahlstedt with a machete. The prosecution's case relied on eyewitness accounts of the confrontation, which concluded with Mr Wahlstedt being struck twice to the head. The appellant maintained he struck the machete in self-defence or accidentally while attempting to warn Mr Wahlstedt away. The South Australian Court of Criminal Appeal was required to determine whether the trial judge's directions to the jury regarding the appellant's evidence and the onus of proof were legally sound.

The central legal issue was whether the trial judge's summing up had misdirected the jury on the burden of proof and the use of the appellant's defence evidence. Specifically, the appellant argued that the judge repeatedly limited the jury's consideration of his evidence to situations where they accepted it, effectively instructing them to disregard his testimony unless it was fully accepted and to then consider the prosecution's evidence in isolation. This, it was contended, improperly shifted the onus of proof and prevented the jury from considering whether the appellant's evidence, even if not fully accepted, might still raise a reasonable doubt.

The Court of Criminal Appeal, comprising Vanstone, Blue, and Lovell JJ, found that the trial judge's directions were erroneous. Applying the principles established in *Liberato v The Queen* and *Douglass v The Queen*, the Court held that the jury must understand that defence evidence does not lose its force simply because it is not "accepted" or "positively believed." The jury must be directed that even if they do not believe the defence evidence, they cannot find an issue against the accused contrary to that evidence if it gives rise to a reasonable doubt. The judge's directions had created a false dichotomy, obliging the appellant to satisfy the jury of his evidence's acceptance as a prerequisite to its consideration, thereby steering the jury away from its potential to raise reasonable doubt.

Consequently, the Court of Criminal Appeal quashed the appellant's conviction, finding that the misdirection went to a fundamental matter and vitiated the trial. A new trial was ordered, and the application for leave to appeal against sentence was rendered unnecessary and therefore dismissed.

Orders

Orders of the court

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Background

Background to the litigation

There is also an application for permission to appeal against sentence. Having regard to the disposition of the conviction appeal, it is unnecessary to consider it.Background The charge arose from an incident which occurred on 17 September 2014 at Northfield. The appellant and the victim named in the charge, Mr Wahlstedt, were living in Housing Trust premises of which the appellant was the tenant. Mr Wahlstedt had met the appellant at a previous stay at the St Vincent de Paul men’s shelter and later, Mr Wahlstedt approached the appellant and asked whether he could stay with him. Their relationship was not a happy one, the two men being in disagreement over a number of matters. The prosecution case relied principally on two female witnesses who were seated in a motor vehicle parked nearby. They observed a confrontation between the men which took place at the front of the house. It culminated in Mr Wahlstedt being struck twice to the head with a machete wielded by the appellant. There was no suggestion that Mr Wahlstedt was armed during the incident. Both women described Mr Wahlstedt moving backwards in retreat from the appellant to a position where his back was against a roller door. They described the appellant moving towards him and delivering one or more blows to his head with the machete. Mr Wahlstedt was taken to hospital where two wounds were sutured. Prior to Mr Wahlstedt giving a statement to police in relation to the matter, he died of unrelated causes. The appellant was interviewed by police. In essence, he agreed he had struck Mr Wahlstedt with the machete, but he said that he was defending himself. In his evidence at trial, he denied intentionally striking Mr Wahlstedt with the machete, saying that his intention had been only to strike the roller door behind him in an attempt to warn him off. The second wound was described as having resulted from a movement by Mr Wahlstedt deflecting the machete blow upwards and the machete coming back down onto his head. Consequently, the issues at trial were whether the blows were inflicted deliberately and with the necessary intention, and whether the appellant was acting in self-defence.Arguments on appeal The summing up was brief and delivered with a degree of informality. The usual directions concerning the presumption of innocence and the onus and standard of proof were given in a truncated form. What was said in that regard was correct. It is germane to note that the Judge did not instruct the jury that the accused bore no onus of proof and that, if he put forward a defence, he did not have to prove it. The appellant’s complaints focus on the directions given in the course of instructing the jury on the elements of the offence. In essence, the complaint is that, in his directions, the Judge repeatedly limited any use of the appellant’s evidence to a situation where they accepted that evidence; that he effectively instructed the jury to set aside the appellant’s evidence unless it was accepted and to proceed to determine the particular issue under consideration without reference to the appellant’s evidence.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my opinion, the directions given in this trial vitiate the appellant’s conviction. It must be quashed. There need be no consideration of an application of the proviso since the directions went to a fundamental matter. Indeed, the respondent did not argue against either the quashing of the conviction, or the order that there be a new trial.Conclusion I would quash the conviction and order a new trial. In those circumstances, I would not deal with the application for permission to appeal against sentence. It falls away. BLUE J: I agree that the appeal should be allowed, the conviction quashed and a new trial ordered. Subject to the qualification below, I agree with the reasons of Vanstone J and with the elaboration by Lovell J. I prefer to express no opinion on the desirability of a reconsideration of the correctness of this Court’s earlier decision in R v Woods[1] as the appeal is to be allowed regardless of that decision. For the reasons given by Lovell J, all of the circumstances and the entirety of the summing up need to be considered in any individual case to determine whether the directions on or relevant to the burden of proof involve an error of law or give rise to a miscarriage of justice.[1] [2008] SASC 335 LOVELL J: I agree with Vanstone J. How a judge structures a summing up will be dependent on a number of factors. Matters which influence the structure of a summing up include the nature of the charge or charges, the number of charges, whether there are alternative charges to be determined, whether there are uncharged acts, the number of witnesses and of course the way in which the issues are joined at trial. Importantly, in a case in which the accused gives evidence, the directions on the burden of proof are liable to vary depending on whether the case is essentially oath against oath or circumstantial case against oath or a combination. While I agree that in many cases the preferable course will be to avoid discussing an accused’s evidence in terms of acceptance of it, there will be some cases where such a direction will be unavoidable. In such a case it will be necessary for a judge to direct on the full spectrum of possibilities as discussed in R v Liberato[2] and R v Murray.[3] [2] (1985) 159 CLR 507.[3] (2002) 211 CLR 193.

Ratio Decidendi

Legal Principle Established

The complaint in the present case is encapsulated by the often quoted passage of Brennan J in Liberato v The Queen (1985) 159 CLR 507 at 515. The terms of this passage provide a bridge between directions on the evaluation of evidence and the correct application of the onus of proof. This passage was referred to with approval in Douglass v The Queen [2012] HCA 34 at [13]. Brennan J said:When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.The point relevant to this appeal is that the jury must be made to understand that the force of any defence evidence is not spent merely because the jury does not “positively believe” (or here “accept”) it. To put it another way, acceptance of an accused person’s evidence is not an essential preliminary to a not guilty verdict. Consideration It was conceded by Mr Henchliffe that the directions impugned in the present case must be considered in the context of the entire summing up. It was said in R v Jeisman [2008] SASC 266, that a reference in the summing up to accepting the evidence of the accused is not, itself, an error provided it is complemented by directions on the other possible situations which may pertain; so that the directions as a whole put the position properly: at [35] – [36]. In my opinion, the directions given in the present case were erroneous. As Mr Henchliffe argued, the Judge left to the jury a dichotomy involving either acceptance or rejection of the appellant’s evidence. Furthermore, the Judge instructed the jury that, if they did not accept the appellant’s evidence, then they should put it aside and consider the balance of the evidence – that is, only the prosecution evidence – to determine whether the prosecution had proved its case. Both vices are present in directions a. and b. set out earlier; only the first vice is present in direction c. The directions had the effect of obliging the appellant to satisfy the jury that his evidence should be accepted as a pre-requisite to using it at all. In other words, the jury were steered away from having any regard to the appellant’s evidence if they did not categorically accept it.