R v Southern No. Sccrm-99-244

R V SOUTHERN

[2000] SASC 234

Court of Criminal Appeal: Chief Justice Doyle, Duggan and Lander JJ

DOYLE CJ. In my opinion the appeal should be dismissed. I agree with the reasons given by Lander J for so deciding.

DUGGAN J. I agree that this appeal should be dismissed for the reasons given by Lander J.

LANDER J. The appellant was charged, and after a trial before a judge and jury convicted of manslaughter.
He sought leave to appeal from that conviction but leave was refused by a single judge.
He then sought leave of this Court to appeal and that application was considered in private. This Court granted the appellant leave to appeal on three grounds of appeal. Those grounds are:
1.The learned Trial Judge erred by admitting into evidence over objection the audio tape of a conversation between the Crown witness Murrell and Constable Hannaford.

2.The learned Trial Judge erred in failing to adequately direct the jury as to impermissible use of the tape Exhibit P13.

3.The learned Trial Judge misdirected the jury as to function of the tape Exhibit P13 having regard to the fact that the Crown witness Murrell had agreed to the existence of prior and consistent statements put to him in the cross examination.

The accused and the deceased, Mr Horst Debes were friends. Both were heavy drinkers and regularly drank together.
During the afternoon of Thursday, 19 February 1998 the deceased, Marc Murrell, Asa Young and the accused had been drinking at Mr Debes’ place. During that afternoon they consumed two casks of white wine, a bottle of brandy and some cider. Mr Young was not present during the whole of the time. He arrived at the deceased’s place at about 4 or 5 o’ clock. The others had been drinking since about half past two.
When the incident which gave rise to the deceased’s death occurred all four were substantially affected by alcohol.
On at least two occasions during the afternoon and evening the subject of Iraq and the Gulf War was raised. On the second occasion on which the topic was raised the conversation became heated. The accused apparently had been a commando. Mr Debes spoke with a strong German accent. Mr Murrell said the deceased and the accused became louder and the deceased became more assertive. Each of them became angry.
Mr Murrell said the deceased started jumping up and down doing “shadow fighting” saying “take me on”. Mr Murrell said he got between the accused and the deceased and when he did the accused punched him in the ribs and punched him in the head and knocked him down. The accused then rabbit punched the deceased to the top of his thorax. He gave him a very hard punch to the jaw. He said when the deceased was lying on his stomach the accused jumped on his back and then kicked him in the head at least once. Mr Murrell described the kick as very forceful, vicious.
Mr Murrell said that somehow the deceased turned over and was lying on his back with blood running out the right side of his mouth. He seemed not to be breathing. Mr Murrell tried to take a pulse and called his name. He ran inside and rang the ambulance on the emergency number, 000.
Mr Murrell said that shortly after he made the telephone call both the police and the ambulance attended. He spoke to the ambulance officers. He was interviewed by a police officer, Constable Hannaford. The interview was tape recorded.
Mr Murrell had consumed a substantial amount of alcohol. He said, in his evidence in chief, that he had consumed most of a bottle of brandy and he estimated a third of a cask of white wine. He said, however, he felt good.
He said that the deceased and the accused had consumed a substantial amount of alcohol but neither of them were stumbling or slurring their words. Both, he said, could hold their alcohol very well.
Mr Murrell was cross examined about his conversation with the ambulance service. He said that he had no recall of what he had said to the ambulance service until the tape recording of that conversation had been played back to him two days before he gave evidence.
Apparently during the course of the telephone conversation with the ambulance service he checked on the deceased. He admitted that when he returned to the telephone he said: “My friend’s alright, but I’m not.” He agreed those words were on the tape but he had no memory of saying them. He admitted that the tape recorded him as saying in response to a question from the ambulance service: “Your friend’s alright now?”. “Yeah, but I’ve just been bashed in the head.” He further admitted that the tape records that he was asked: “Who bashed you?” And he said: “A couple of people”.
He was also cross examined about his conversation with Constable Hannaford and he admitted that he told that police officer that they had got very, very drunk. He admitted that on a subsequent occasion he had told the police that he was only slightly inebriated.
He admitted that he told the police officer that he did not remember that well what had happened.
It was put to him that in that conversation with Constable Hannaford he told the police officer that they were all seated at the table when the accused reached across and hit him in the chin. He said he could not remember if that happened.
He said the audio tape of that conversation with Constable Hannaford had been played back two days before he gave his evidence. He said when he heard it he was surprised about some of the things he had said to the police officer.
At the end of the accused’s counsel’s cross examination of Mr Murrell the Trial Judge advised counsel, in the absence of the jury, that he had received a message from the jury that “the jury would like to hear any tapes which have been referred to this morning: a) ambulance call, b) police interview.”
He asked counsel whether they proposed to seek to tender either of the tapes. The matter was adjourned to allow counsel to obtain instructions. On the resumption the accused’s counsel sought to tender the tape of the conversation recorded in the ambulance call. He said that he did not seek to tender the tape of the conversation between Mr Murrell and Constable Hannaford. He said:
“I do not seek to tender, nor wish to tender, nor would agree to the tendering, of that tape.”
Counsel for the Director of Public Prosecutions did not object to the tape of the ambulance call being tendered. However he sought to tender the tape of the conversation between Mr Murrell and Constable Hannaford. Counsel for the Director of Public Prosecutions did not claim that there was any unfairness in the accused’s counsel’s cross examination of Mr Murrell nor did he claim that the evidence was otherwise incomplete without the playing of the tape. The Trial Judge, at that stage, without further calling on the accused’s counsel refused to admit the tape of the conversation between Mr Murrell and Constable Hannaford saying:
“I really don’t think I can admit it. I can understand the jury’s desire to hear it, but I think that it would be a dangerous course to admit it, in view of the course things have taken.”
The jury returned to the Court and the tape of the call to the ambulance service was played.
Immediately after that tape was played and Mr Murrell acknowledge that to be the tape of his call to the ambulance service the Trial Judge said:
“HIS HONOUR:......... I have decided on reflection, and having heard that, to admit the tape of the interview with Constable Hannaford if you tender it. You are tendering that, are you?”
“PROSECUTOR: I do.
HIS HONOUR:.......... I admit it on the basis that it has a bearing upon the weight to be attached to statements made and answers given by this witness to the police that night.”
The Trial Judge did not seek submissions from counsel before admitting that tape. In particular he did not call upon accused’s counsel. By the same token accused’s counsel did not seek to be heard in opposition to the ruling. He did not seek to address the Judge before the tape was played.
The tape of the interview of Marc Murrell by Constable Hannaford was then played.
In due course his Honour gave a ruling for admitting the tape of interview with Constable Hannaford which I set out in full:
“The witness, Murrell, was cross-examined by Mr Stokes for the defence as to answers given in an interview with Constable Hannaford, which appeared to be inconsistent in certain respects with the account which he had given in his evidence-in-chief.
The witness admitted the inconsistent statements, but asserted that he was drunk, that he could not understand why he would have said certain things. He said that he was, and I quote, ‘Really labouring just to get my brain working, so it comes out rather a scramble’. He went on ‘Events were getting mixed up in a non-sequential order’. He also complained about the inflection which counsel was putting into the witness’s words. He said ‘I was slurring my words slightly because of the alcohol’. In answer to one question, he said ‘That is not what happened. It sounded like that on the tape, but that is not what I meant.’
In view of that evidence, it came as no surprise when the jury requested to hear the tape. Mr McEwen for the prosecution sought to tender the tape.
After consideration, and on hearing the tape of the witness’s phone conversation with an ambulance officer just before the interview with Constable Hannaford, I came to the conclusion that the jury could not properly evaluate the inconsistent statements in the interview without hearing the tape.
I consider that the cross-examination and the witness’s responses in cross-examination rendered the tape admissible for that purpose. Upon Mr McEwen tendering the tape, I, therefore, admitted it into evidence as Exhibit P13.”
The appellant has made three complaints. First the appellant says that the Trial Judge should not have admitted the tape of the conversation with Constable Hannaford without first hearing the accused’s counsel. Secondly the appellant argues that the tape was inadmissible. Thirdly if contrary to those two complaints the tape was admissible the Trial Judge failed to give appropriate directions to the jury as to the use of the tape.
Logically it would be appropriate to address the second of those complaints first. If the tape was inadmissible then the first and third grounds need not be addressed. If on the other hand the tape was admissible then logically ground 1 would be next addressed and then ground 3.
The appellant argued that the tape was not admissible in circumstances where the prosecutor did not complain about the manner in which accused’s counsel cross examined Mr Murrell and in particular in relation to statements made by Mr Murrell to Constable Hannaford. The appellant argued that the tape was not necessary to be admitted in order to prove prior inconsistent statements. He submitted that in fact Mr Murrell admitted the inconsistencies which were put to him during his cross examination.
The Director of Public Prosecutions on the other hand argued that Mr Murrell’s evidence was pivotal to the trial. The jury could only convict the appellant if they accepted Mr Murrell’s version of the incident. He argued that the Crown was entitled to adduce evidence to supplement and explain Murrell’s evidence so as not to “leave the Court with an impression of the facts, derived from the witness, that is capable of being construed unfavourably to the side responsible for calling the witness, and that represents a distortion, or an incomplete account, of the truth as the witness is able to present it”: R v Lavery (No. 2) (1979) 20 SASR 430 at 451; R v Szach (1980) 23 SASR 504 at 568.
I think the tape was admissible for the reasons given by the Trial Judge.
Mr Murrell admitted in his evidence-in-chief that he had consumed a significant amount of alcohol during the afternoon and evening of the incident and in cross-examination he admitted that he was drunk at the time of the incident.
It was put to Mr Murrell that he was drunk at the time of the incident; that his recollection of events was inaccurate; that he had reconstructed events since the incident; and that his evidence was inconsistent in several respects with what he told the police that night and what was recorded on the tape.
It was put to him that there were inconsistencies between what was recorded on the tape and his testimony relating to how drunk he was; his memory of the incident; a description of shadow boxing or feinting punching: where the incident started; who was struck first; whether Mr Murrell moved the deceased on to the grass after the assault; and Mr Murrell’s overall account of the incident including the location and sequence of events.
In cross examination, Mr Murrell agreed, as I have said, that there were inconsistencies between what he had told Constable Hannaford and his testimony.
He put those inconsistencies down to shock. He said that he was labouring to get his brain working so what he said to Constable Hannaford came out rather scrambled. He said events were getting mixed up in a non sequential order. He said he was slurring his words slightly because of alcohol. He said that at one stage something did not happen although it sounded like that on the tape, but that is not what he meant.
The jury heard the tape of the call to the ambulance service and could assess Mr Murrell’s condition at the time of that conversation.
The jury was entitled to hear the conversation between Mr Murrell and Constable Hannaford to assess his condition at the time that he had that further conversation and to evaluate in the light of that assessment the inconsistencies between his account to Constable Hannaford and his testimony in Court.
In my opinion the evidence was not inadmissible because Mr Murrell had admitted the inconsistencies which were put to him during his cross-examination. In admitting those inconsistencies Mr Murrell had brought into sharp focus his condition at the time that he spoke to Constable Hannaford.
The evidence was admissible for the purpose of assessing the inconsistencies between the two accounts in the light of Mr Murrell’s condition when he spoke to Constable Hannaford which was evidenced in the tape of the conversation with him.
Ground 1 fails.
The accused’s counsel objected to the tender of the tape but did not further address the Trial Judge when he announced that he would admit the tape of the conversation.
Clearly enough, at that stage, there was an opportunity for defence counsel to ask to be heard and to further argue for the exclusion of the evidence.
There seems to me, however, little that could have been said. The Judge had indicated why, in his view, the tape of the conversation should not be admitted which must have reflected all that could have been said by defence counsel. After hearing the tape of the conversation with the ambulance service the Judge was moved to change his mind. The Judge correctly, in my respectful opinion, concluded that the evidence was admissible. Defence counsel could not, in my opinion, have persuaded the Judge that it was appropriate not to admit the evidence because for reasons which I have already given which are the same as those of the Trial Judge, the evidence was admissible.
All that defence counsel could have addressed was whether, in the exercise of the Judge’s discretion, the evidence should not be admitted.
In my opinion there is nothing that could have been said on behalf of this appellant which would have caused the Judge to exercise his discretion to refuse to admit the admissible evidence.
In my opinion once the Trial Judge had correctly concluded that the evidence was admissible then the tape of the conversation had to be admitted. There was no good reason why the tape of the conversation should be excluded.
For those reasons ground 2 fails.
Early in his summing up the Trial Judge directed the jury that they should focus on the evidence of the case and decide the case on the evidence before them. In particular he told them that what people might have said outside the Court was not evidence of the facts. He pointed out that there was an exception in relation to what the accused might have said to the police and then referred to statements by other witnesses. He said:
“Statements by other witnesses out of court are not evidence of the truth of the facts that are mentioned in those statements.
In this case, you heard evidence of the telephone call to the ambulance officers and of the interview with Constable Hannaford in the early morning of the day of the incident. You heard that evidence because, although what is said is not evidence of the truth of the matter because it is not given in the witness box, you are entitled to take into account any inconsistent statements which a witness makes out of court when you are assessing how far you can rely on what the witness says in court. That is how that got introduced: because you will recall there were inconsistencies and I will not discuss them at the moment, I will refer to them briefly later on, but the reason that evidence was introduced was to enable you to judge how far you could rely on Marc Murrell’s evidence in court judged in the light of what he said shortly afterwards, some of which was inconsistent with what he said in the witness box. In this case, his reliability has to be judged in the light of his sobriety or otherwise and those tapes perhaps throw light on that issue, too.”
The next day he reminded the jury that anything a witness says out of Court is not evidence in the case but simply used for testing the purpose of truth and accuracy of what the witness has said in Court. He pointed out that anything a witness has said out of Court may be used for the purpose of assessing the evidence of the witness given in Court. He again referred to the tapes.
He then identified, what he described, was the issue in the case and that was whether or not the accused deliberately kicked the accused in the head. He pointed out the evidence that the accused had kicked the deceased was that of Mr Murrell and he said:
“Of course, Murrell was drunk. There was no question about that. You have heard evidence of the quantity of liquor that he had drunk. You heard his voice on those tapes, which probably speak for themselves, I mean, even allowing for the fact that he was no doubt upset by what had occurred, you may think that there are unmistakable indications on those tapes that he was seriously affected by liquor. That’s for you to judge.”
Later, in discussing Mr Murrell’s evidence, he pointed out the inconsistency between what had been told to the ambulance officers and what had been told to Constable Hannaford and in particular he said:
“His account to Hannaford of the events generally differ from his evidence in important details as to the sequence of the events, and as to where they occur.”
Having discussed Mr Murrell’s evidence, his sobriety and the inconsistencies he said that it was necessary for him to warn the jury that it would be unsafe to act upon Mr Murrell’s evidence unless the evidence had received confirmation of a substantial kind from other evidence in the case.
He put the proposition bluntly:
“It would really be quite unsafe to just convict a person of a criminal charge on the evidence of a man who was as drunk as Murrell was, and who made these inconsistent statements.”
In my opinion the directions given by the Trial Judge were appropriate and adequate. He reminded the jury they had to decide the case upon the evidence given in Court not anything said out of Court. He properly directed the jury that the tape had been admitted for the purpose of evaluating the evidence of Mr Murrell and in particular the inconsistencies between what Mr Murrell had said to Constable Hannaford and his evidence.
The jury were properly and adequately directed as to the use of both tapes.
Curiously enough the appellant has not complained that the directions given in relation to the call to the ambulance service were inadequate although that evidence could only be used for the same purpose as the tape of the conversation with Constable Hannaford.

Ground 3 also fails in my opinion.
In my opinion the appeal should be dismissed.

[2000] SASC 234

13 July 2000