R v Smith - [2006] SASC 155

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v SMITH
[2006] SASC 155
Reasons of The Honourable Justice Perry
29 May 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Applications for leave to appeal against conviction for murder and against sentence dismissed.

R v SMITH
[2006] SASC 155
Criminal

PERRY J: The applicant seeks leave to appeal against his conviction for murder following a trial in this Court before a judge and jury.
He also seeks leave to appeal against sentence.
The applicant was jointly charged with Adam George Hendry. Particulars of the offence were that on 28 February 2004 at Wingfield, they murdered David Falzon.
Both accused were found guilty and were sentenced to the mandatory term of imprisonment for life. The trial judge imposed the same non-parole period in respect of each of them, namely 20 years.
At about 1.00 am on the morning of Saturday 28 February 2004, the two accused and the victim, Mr Falzon, were sitting in a stationary car in a side street at Wingfield. The applicant had driven the car to the side street, where they stopped.
Mr Falzon was a drug user and a some-time drug dealer. He was in possession of a number of small bags of methylamphetamine, packaged for the purposes of sale.
The Crown case was that the applicant and the co-accused intended to rob Mr Falzon of the drugs.
As Mr Falzon sat in the front passenger seat, he was attacked.
While there was some uncertainty whether it was the accused Hendry or the applicant who initiated the assault, there was no doubt that between the two of them they began stabbing Mr Falzon, who ran from the car.
Mr Hendry followed him on foot, but the applicant followed in the car.
In the process of doing so, he mounted the kerb and rammed an iron fence of an adjoining property, almost pinning Mr Falzon against the fence.
Mr Falzon was stabbed again in that position, but managed to get away He staggered to Grand Junction Road which was nearby, where he tried to wave down passing cars for help.
The Crown case was that both accused, armed with knives, followed him and continued attacking him, by repeatedly stabbing him.
They broke off the attack only when a passing motorist stopped and got out of his car and confronted them. They made off by running through various properties, climbing over fences as they did so. They left articles of clothing, blood and other evidence of the course they took.
After their arrest, each accused asserted that it was the other who had been responsible for the stabbing, to the exclusion of the other, who simply stood by, helpless to prevent it.
They mounted a cut-throat defence at the trial based on the same assertions.
Mr Smith gave evidence at the trial, but Mr Hendry did not.
Against that background, the applicant seeks to raise two grounds of appeal.
The first of them is as follows:
GROUND 1
The learned trial judge erred in directing the jury that if they were satisfied as to the truth of the admissions made by the appellant, during cross-examination by the prosecutor, coupled with proof of the elements 2, 3 and 4, that would make the appellant guilty of the charge of murder. It is submitted that the answers given by the appellant in cross-examination by the prosecutor and relied on by the prosecution are not admissions by the appellant to the charge of murder. The appellant has not received a fair trial according to law, resulting in a substantial miscarriage of justice.
(Summing Up pages 42, 43, 64-71 and 82-99, Prosecution Closing Address Tpage 1308, Appellant’s evidence Tpages 1118, 1172, 1173-1183, 1187, 1188, 1195-1200, 1205-1209.)
From start to finish, the Crown case was conducted as against the applicant that he, as well as the co-accused Hendry, were both guilty of murder on the footing that they had both stabbed Mr Falzon, causing his death.
However, during the course of his cross-examination by Mr Pearce, counsel for the Crown, Mr Smith admitted that he knew that Mr Hendry had secreted a large carving knife down the side of his pants. He said further that he understood that he had armed himself with the knife to assist in carrying out the plan to rob Mr Falzon. [T1172] He said further:
It [Hendry’s knife] wasn’t necessarily going to be used. It was a last resort. [T1172]
A further passage in cross-examination was as follows: [T1175]
Q.Are you suggesting in that that Mr Falzon when being robbed, may have become violent as a response.
A.It is possible.
Q.That’s right, isn’t it, that is why the knife was taken; because it was always possible that he would become violent when being robbed.
A.It was a possibility, yes.
Q.That is exactly why the knife was taken, wasn’t it.
A.It was because of that and in case he had to be threatened with it.
Later he said: [T1180]
Q.So isn’t this the case, I suggest it is just a matter of common sense, that you, as you pull up in that side street in Wingfield, that when you effect your robbery of Mr Falzon there is a real chance he is going to produce his knife.
A.Yes, that is possible.
Q.Likely, isn’t it.
A.Yes.
Q.And you knew that at the time that it was likely.
A.Yes.
Q.And you knew at the time it was also very likely that Mr Hendry would produce his knife.
A.Yes.
Q.And that that combination of men in a car involved in drug dealing producing knives was potentially fatal, wasn’t it.
A.Yes, it was.
Q.I mean that’s a powder keg ready to go up, isn’t it.
A.Yes.
Later again, he was asked:
Q.… there was always that real risk that Mr Falzon might be stabbed with one of the knives.
A.Looking back at it, yes.
In later passages in cross-examination he admitted that once Mr Hendry had produced his knife “the die was cast” and that it would be inevitable that Mr Falzon would want to fight back.
The applicant admitted further that after Mr Hendry had inflicted the initial blows in the car and chased Mr Falzon when he ran off down the street, he knew that Mr Hendry was “going to finish the job off”. He thought that Mr Hendry was “going to hurt him more”.
The applicant admitted that he drove the car off and followed the two others as they ran down the street, but he said that mounting the kerb and crashing into the fence was an accident.
He was cross-examined as to his motives in following the other two down the road: [T1208]
Q.That your role in following Adam down the road, knowing that Adam was likely to kill Mr Falzon, was to get Adam away.
A.It was to get Adam away, that was it.
Q.To get Adam away from a situation where you knew he had been stabbing Mr Falzon in the body.
A.Yes.
Q.In the stomach, firstly.
A.Yes.
Q.In the side.
A.Yes.
Q.And in the back.
A.Yes.
…..
Q.Anyway, knowing that Mr Hendry is inflicting these really serious injuries to Mr Falzon, you followed him down the road in the car to help Mr Hendry get away.
A.Yes.
Q.You were there to provide assistance for Mr Hendry by driving him away from the scene.
A.Yes.
Q.By getting him out of there.
A.Yes.
Q.Extricating him from the incident, getting him out of the incident.
A.Yes.
During the course of his address to the jury, after referring to the last mentioned passage of cross-examination, Mr Pearce said: [T1308]
That, as I said sometime ago, was an admission to the elements of the offence of murder. … That’s probably as close as Mr Smith comes to the truth but then Mr Smith went on at one stage of his evidence to admit his guilt to murder in another way, by being party to this joint criminal plan of Mr Hendry rob Mr Falzon; to rob him by using force, if it was necessary; by intimidating Mr Falzon to hand over his drugs and money. He knew that Mr Hendry had a knife and Mr Smith knew that if the knife was produced, if necessary, as he contemplated, if necessary to threaten Mr Falzon, knowing that Mr Falzon himself was in possession of a knife, he knew that that combination of men robbing each other in a car over drugs and money was potentially fatal.
In the course of her summing up, the trial judge explained to the jury that on the prosecution’s “first position”, it was a straightforward case of murder in which each accused stabbed the deceased.
She then referred to the possibility that there was an alternative route to guilt, if the jury was not satisfied that both men had a knife, namely what she described as “aiding and abetting murder”.
Then she dealt with the third possibility, that is, joint enterprise. She said that had “crept into the trial through the back door, as it were”, being based on the evidence of Mr Smith. She said:
The prosecution says that in this very courtroom Mr Smith has admitted guilt of murder on the basis of the common purpose principle.
She then referred to the effect of the answers to questions put in cross-examination to which I have referred above.
She said that on the basis of the evidence which he had given:
… Mr Smith knew that there was a real chance that Mr Falzon would produce his knife … indeed he agreed it was likely. He agreed that at the time he knew it was likely. He also agreed that he knew it was very likely that Mr Hendry would produce his knife and the combination of the men in the car involved in drug dealing producing knives was potentially fatal. He agreed it was a “powder keg” ready to go up. Well, ladies and gentlemen, you will understand from what I have said to you of the principle of law involved that those admissions, coupled with proof of elements 2, 3 and 4 of murder, would, depending on the way you view it, make Mr Smith guilty of murder. That would be so if you accepted the truth of those statements beyond reasonable doubt.
In my view, it is not reasonably arguable that the learned trial judge erred in giving that direction to the jury.
Although it was not the route by which the Crown preferred to present its case, it was clearly open on the evidence, more particularly the admissions made by the applicant during the course of giving evidence, for the jury to find him implicated in murder by reference to the principle of joint enterprise.
The second and only other proposed ground is as follows:
GROUND 2
The verdict of the jury is unsafe and unsatisfactory as being unreasonable and or cannot be supported having regards to the evidence of the prosecution witnesses William Goodman, Ricardo Basheer, Marita Caruso, as their evidence was so inconsistent, as amongst each other, and in relation to Goodman and Basheer so inconsistent in their own right, rendering their evidence unreliable, to the extent that it could not be relied on, either individually or together, to prove that the appellant was guilty of the charge of murder. The appellant has not received a fair trial according to law, resulting in a substantial miscarriage of justice.
The witness Goodman was a security patrol supervisor. He came upon the two accused and Mr Falzon when the three of them were on Grand Junction Road. He was travelling west along that road at the time.
His evidence was that he saw three figures standing in the middle of the road, two of them on either side of the man in the middle. He said that he saw the other two punching the man in the middle, and that the victim eventually collapsed on the ground. The other two ran off. He drove around the block looking for them, but did not come upon them, whereupon he returned to the scene to lend assistance.
In cross-examination by counsel for both accused, he admitted that in the two statements which he had given to the police there were a number of discrepancies as compared with his evidence in court.
The witness Basheer was also driving a motor car along Grand Junction Road. He saw the three figures, probably at an earlier stage when they were first seen by the witness Goodman. When he saw them, they were running out onto the roadway. One of them appeared incapacitated and unable to keep up, and the other two “sped up to him and surrounded him”. He saw the victim appear to be hugging himself with one arm over his stomach, and he saw both of the others stabbing him. Mr Basheer said that he pulled up alongside them and yelled out to them, asking them what they were doing, and they just continued to stab the victim.
He then opened his car door and screamed out “Freeze, under cover police”.
He said that the two assailants then appeared to pull away from the victim and slowly raise their hands to about hip level. [T594] They then ran off and the victim came towards him. Mr Basheer laid him down on the footpath and tried to talk to him. [T595] He said he was dying.
Mr Basheer was challenged about allegedly inconsistent statements made to the police and also as to internal inconsistencies in the evidence he had given.
The witness Marita Caruso lived in Hill Street. She was putting her car away in her garage. She looked up when she heard a noise, and saw a person who was likely to have been Mr Falzon get out of a car and start running around the car, which was in the street just in front of her. She then saw the first person chased by another who got out of the car, and then the car took off after both of them.
She got back into her car and drove down to the corner of the street, where it adjoins Grand Junction Road. After she turned into Grand Junction Road, she caught sight of a man trying to flag her down. This was likely to have been Mr Falzon seeking help. But she drove to a nearby hotel where she rang for the police.
There were certainly inconsistencies between each of the three witnesses and between their evidence and statements which they had made to the police. It must, however, be borne in mind that the three witnesses in question made observations at different times: Ms Caruso saw the incident at an early stage; Mr Basheer saw it at a slightly later stage; and Mr Goodman saw it towards the end. They were looking at the situation from different positions, in fairly poor lighting conditions.
The inconsistencies are typical of evidence given about an incident which occurs over a short space of time, in an emotive atmosphere. It was entirely a matter for the jury to evaluate the evidence and give it such weight as they thought fit.
In my view, such inconsistencies as there were associated with their evidence does not render the verdict arguably unsafe and unsatisfactory.
I was requested by Mr Ibbotson to read the evidence of Dr Carla, who performed an autopsy on the body of Mr Falzon, and Mr Edwards the Director of the Cardiovascular Unit at the Royal Adelaide Hospital, who performed emergency surgery on Mr Falzon on his admission to hospital.
I see nothing in the evidence of those two witnesses to give any buoyancy to proposed ground 2.
The application for leave to appeal against conviction should be refused.
The application for leave to appeal against sentence may be disposed of briefly.
The learned trial judge sentenced the applicant on the basis that both accused wielded knives and stabbed the victim. She described the killing as a vicious one.
The applicant is 27 years of age and has led a somewhat unsettled life. He had a history of prior offending, commencing in 2003. Although the prior convictions were not in themselves particularly serious, they involved offences of dishonesty and being armed with weapons.
In my view, the non-parole period of 20 years was modest, and it is not arguable that it is manifestly excessive.
The applications for leave to appeal against conviction and against sentence are dismissed.