R v Suppiah - [2018] SASCFC 11

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SUPPIAH
[2018] SASCFC 11
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Hinton)
23 February 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - OTHER ACTS OR OMISSIONS RESULTING IN DEATH
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ALTERNATIVE VERDICTS - DIRECTIONS TO JURY
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - FUNCTIONS OF JUDGE AND JURY - DETERMINATION OF ADMISSIBILITY
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION
Appeal against conviction for murder.
The victim was stabbed in the abdomen with a kitchen knife in the course of an altercation between the appellant and the victim. The prosecution case was that no other person was involved in the stabbing. The defence case was that Boby Mahalingam grabbed the appellant’s hand and deliberately or accidentally caused the victim to be stabbed.
The prosecution called as a witness Jega Selvanayagam, who gave evidence that approximately three weeks after the stabbing he asked the appellant why he killed or murdered the victim and the appellant said that on that morning the victim had called him a ladyboy. The appellant objected to admission of this evidence and Jega gave evidence on the voir dire. The Judge admitted the evidence.
The appellant appeals on the grounds that:
1. the Judge erred in his directions as to the dangerous act element of the alternative offence of manslaughter;
2. the Judge erred in admitting the evidence of Jega, or in the alternative, failing to exclude the evidence of Jega;
3. the Judge failed to adequately direct the jury as to Jega’s evidence;
4. the Judge erred in his directions as to specific intent required to prove murder and the relevance of intoxication thereto;
5. the Judge erred in his directions as to the burden of proof;
6. the Judge failed to adequately present the defence case.
Held:
(1) Although the Judge erred in directing the jury on the elements of manslaughter that a dangerous act is one exposing the deceased to an appreciable risk of injury rather than an appreciable risk of serious injury, the error was not material to the jury’s finding that the appellant was guilty of murder (at [62]) per Blue J and [155] per Hinton J (Kourakis CJ agreeing)).
(2) The Judge did not err in admitting the evidence of Jega or in declining to exclude the evidence (at [73] and [88] per Blue J and [187] and [207] per Hinton J (Kourakis CJ agreeing)).
(3) The Judge’s directions in relation to Jega’s evidence were not inadequate (at [93]) per Blue J and [219] per Hinton J (Kourakis CJ agreeing)).
(4) The Judge’s directions in relation to intention to kill or cause grievous bodily harm and the relevance of intoxication were not inadequate (at [111]) per Blue J (Kourakis CJ and Hinton J agreeing).
(5) The Judge’s directions as to the burden of proof were not erroneous (at [119]) per Blue J (Kourakis CJ and Hinton J agreeing).
(6) The Judge did not fail to adequately present the defence case (at [126]) per Blue J (Kourakis CJ and Hinton J agreeing).
(7) Appeal dismissed (at [127]) per Blue J (Kourakis CJ and Hinton J agreeing).
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; Dupas v The Queen (2012) 40 VR 182; Foster v The Queen (1993) 67 ALJR 550; Gilbert v The Queen (2000) 201 CLR 414; Gillard v The Queen (2003) 219 CLR 1; IMM v The Queen (2016) 257 CLR 300; James v The Queen (2014) 253 CLR 475; McDermott v The King (1948) 76 CLR 396; Mraz v The Queen (1955) 93 CLR 493; Murray v The Queen (2002) 211 CLR 193 ; Police v Dunstall (2015) 256 CLR 403; R v Lee (1950) 82 CLR 133; R v Lowe [2016] SASCFC 118; R v Ly, Nguyen and Ngo (2011) 111 SASR 259; R v Machin (1996) 68 SASR 526; R v Parker (1990) 19 NSWLR 177; R v Azar (1991) 56 A Crim R 414; Wilson v The Queen (1992) 174 CLR 313; Sinclair v The King (1946) 73 CLR 316; Police v Dunstall (2015) 256 CLR 403; Tofilan v The Queen (2007) 231 CLR 396; R v Parker (1990) 19 NSWLR 177; Van der Meer v The Queen (1988) 62 ALJR 666; Swaffield v The Queen; Pavic v The Queen (1998) 192 CLR 159; Tofilan v The Queen (2007) 231 CLR 396, discussed.

R v SUPPIAH
[2018] SASCFC 11
Court of Criminal Appeal: Kourakis CJ, Blue and Hinton JJ
KOURAKIS CJ:

I agree with the reasons of Blue and Hinton JJ for the dismissal of grounds 2 and 5 of the appeal. I agree that permission to appeal on ground 2A should be refused for the reasons given by Blue and Hinton JJ. I would refuse permission to appeal on grounds 1, 3 and 4 for the reasons given by Blue J. I would therefore dismiss the appeal.
BLUE J:
This is an appeal and application for permission to appeal against a conviction for murder.
The appellant, Satheeswaran Suppiah, was found guilty by a jury of the murder of Ketheshwaran Sivaperuman on 16 January 2014.
The appellant appeals and seeks permission to appeal against the convictions on the grounds that:
1.the Judge erred in his directions as to the proof of the fourth element of the alternative offence of manslaughter by unlawful and dangerous act in that his Honour failed to direct the jury in terms of serious injury or harm;[1]
2.the Judge erred in admitting the evidence of the witness Jega; alternatively, the Judge erred in failing to exercise his discretion to exclude the evidence;[2]
3.alternatively the Judge erred in failing to adequately warn the jury of the dangers of acting upon Jega’s evidence as an admission and/or failed to direct the jury adequately as to its permissible and impermissible use;[3]
4.the Judge erred as a matter of law in relation to his directions as to specific intent required to prove murder;[4]
5.the Judge erred in his directions as to the burden of proof and in repeating the prosecution argument without correction as to the proper application of the burden of proof;[5]
6.the Judge erred in failing to adequately present the defence case.[6]
[1]    Ground 5.
[2]    Ground 2.
[3]    Ground 2A.
[4]    Ground 1.
[5]    Ground 3.
[6]    Ground 4.
Background
The appellant came to Australia in 2012 as a refugee from Sri Lanka. In July 2013 he moved into in a house at 9 Griffiths Street Elizabeth South where he lived together with other Sri Lankan refugees.
The deceased (known as Sathees) came to Australia in June 2013 as a refugee from Sri Lanka. He moved into the house at 9 Griffiths Street.
Biratheev Mahalingam (known as Boby), his wife Hemalatha Biratheev (known as Hema) and their elder daughter came to Australia in 2013 as refugees from Sri Lanka. In October 2013 they moved into a house at 8 Griffiths Street across the road from 9 Griffiths Street. They lived there together with other Sri Lankan refugees.
In November or December 2013, the deceased moved from 9 Griffiths Street into 8 Griffiths Street. Sripalan Fernando (known as Sripalan or Sri) moved into 8 Griffiths Street and shared a room with the deceased. Ilayarasa Tharmakulasingam (known as Ilayaraja) and Kathirgamayogeswaran Vryamuthu (known as Sothi) also moved into 8 Griffiths Street.
On the morning of 16 January 2014 the deceased parked his car in the driveway at 9 Griffiths Street and collected a sack of cans and bottles from the occupants. At about 6.40 pm in the afternoon the deceased was washing his car in his own driveway at 8 Griffiths Street. Ilayaraja was talking to him while he was washing his car.
In the afternoon at about 3.30pm Kirubakaran Ramalingam (known as Kiruba) and the appellant came back to 9 Griffiths Street and drank vodka and soda. At one point the appellant used a knife (the knife) to cut up an apple for those present in the house. The blade of the knife was approximately 30 centimetres long.
At about the 6.40 pm the appellant walked across the road with the knife and approached the deceased. The appellant and deceased were being observed by Ilayaraja and by Hema who was looking out of the lounge room window. Hema came out of the front door when she saw the appellant cross the road. Hema gave evidence that the appellant said to the deceased in an angry tone “You think you're a big person. Just because you've got a car, do you think you're a big shot, do you think you are bigger just because you've got a car?” Ilayaraja heard the appellant use an angry tone of voice but did not know what he said. The appellant pushed (according to Ilayaraja) or punched (according to Hema) the deceased in the chest with his right hand a few times.
The appellant pulled out the knife from his shorts. At this point Ilayaraja was frightened and ran into the house. Hema shouted out to Boby and Sripalan to help. She continued to observe the appellant and the deceased and followed them as they moved towards the back of the house. The appellant advanced towards the deceased who backed away.
Hema gave evidence that the appellant said to the deceased “I will kill you. I will kill you” and heard the deceased say “He stabbed me. He stabbed me.” She did not see any stabbing because her view was obscured by the appellant’s back.
Hema, Boby and Sripalan gave evidence that Boby and Sripalan arrived after the deceased was stabbed. Sripalan gave evidence that he slipped as he ran towards the deceased and the appellant and tried to stand between them. He then gave his whole attention to assisting the deceased who was holding his stomach.
Hema, Boby and Sothi gave evidence that the appellant said to the deceased “I will not leave without killing you” (according to Hema) or “I’ll kill you” (according to Boby and Sothi). Hema and Boby gave evidence that Boby grabbed the appellant’s hand. Hema, Boby and Sothi gave evidence that Boby took the knife from the appellant and the appellant ran away.
Hema, Boby, Sripalan, Sothi and Ilayaraja gave evidence that the deceased said “He stabbed me”.
Hema and Boby gave evidence that, at the suggestion of Hema, Boby threw the knife away under the car.
At 6.47 pm Hema telephoned 000. At 6.49 pm Ilayaraja telephoned 000.
The appellant twice telephoned 000 and at 6.49 pm was put through to the police. He said that someone had been beaten by someone with a knife and they needed an ambulance.
At 6.54 pm ambulance officers arrived and administered cardiopulmonary resuscitation to the deceased but he died and was later pronounced dead at 7.40 pm. The cause of death was a stab wound to the lower abdomen which had pierced the right common iliac artery and the inferior vena cava and reached the spine.
At around 7.00 pm the police arrived and took statements from the witnesses at 8 Griffiths Street.
Between around 7.00 and 7.30 pm the appellant phoned Jeyakumar Selvanayagam (known as Jega), Yathavan Rajaculendran (known as Raj) and Kandiah Paramsothy (known as Param). He told each of them that he was eating an apple with a knife, went across to the road and Boby grabbed the knife and stabbed the person. He said the same thing to his housemates at 9 Griffiths Street.
At 7.51 pm the police activated an audio visual camera and spoke to the appellant. The appellant volunteered that he did not do the beating, he had gone with the knife that he had used to cut the apple, he approached the deceased and Boby was the one who stabbed the deceased with the knife. The police arrested the appellant on suspicion of murder and conveyed him to the Elizabeth police station.
At around 10.30 pm the police reactivated the audio visual camera and interviewed the appellant with the assistance of an interpreter. He said that, when he spoke to Hema on the phone, Hema asked him to come across to talk. He said that he walked across the road and punched the deceased in the face with his left hand. He had the knife in his right hand and Boby grabbed his hand and caused the deceased to be stabbed with the knife.
At 2.40 am the next morning a blood sample was taken from the appellant. It was subsequently analysed and found to contain 0.051 per cent alcohol.
In the first half of February 2014 the appellant telephoned Jega. Jega gave evidence at the trial that he asked the appellant “Why did you murder Ketish?” and the appellant replied “That morning, Ketish came to collect the bottles and cans and at that point Ketish abused me, verbally, and called me a ladyboy”. Jega also gave evidence that at some point during the conversation he said to the appellant “This is an accident that you didn't intend to do”.
The trial
The prosecution called Kanesalingam Thularasa (known as Kanesh), who lived at 9 Griffiths Street, who gave evidence about the deceased collecting cans and bottles on the morning of 16 January.
The prosecution called Kiruba to give evidence and a witness statement by Indiran Rasaratnam who lived at 9 Griffiths Street was read to the jury. They gave evidence that Kiruba and the appellant were drinking vodka and soda from about 4.00 pm in the afternoon. Witness statements by Sivakaren Manikkam (known as Karan) and Chandrakumar Kandiah (known as Chandran), who each lived at 9 Griffiths Street, were also read to the jury. They corroborated that Kiruba and the appellant were drinking vodka and soda.
The prosecution called each of the persons living at 8 Griffiths Street, Hema, Boby, Sripalan, Ilayaraja and Sothi, who gave evidence about the events of the early evening of 16 January 2014.
The prosecution called Raj and Param who along with Kanesh gave evidence about the appellant’s statements to them about Boby causing the deceased to be stabbed with the appellant’s knife.
The prosecution called a pathologist Dr Heath to give evidence about the cause of death and a pharmacologist Professor White to give evidence about the appellant’s likely blood alcohol percentage at about 6.40 pm.
The appellant applied to the Judge to exclude the evidence of Jega in relation to their telephone conversation in February 2014 in the exercise of the Christie discretion. Evidence was given on the voir dire by Jega and Dr Raeside, a psychiatrist. The Judge declined to exclude the evidence.
Jega gave evidence of his telephone conversations with the appellant on 16 January and in February 2014.
The appellant did not give or adduce any evidence.
The defence case was that Boby rather than the appellant caused the stabbing and the jury should entertain a reasonable doubt as to this issue.
The prosecution accepted that, if the jury entertained a reasonable doubt about that issue, it should find the accused not guilty (of murder or manslaughter). The Judge directed the jury accordingly. The Judge directed the jury that it was only to consider manslaughter after deciding on murder and if it had first found the appellant not guilty of murder.
Direction on elements of manslaughter
The appellant contends that the Judge erred in directing the jury that the fourth element of manslaughter that the act was dangerous meant that a reasonable person in the position of the accused would have realised that he was exposing the deceased to an appreciable risk of injury when it should have been an appreciable risk of serious injury.[7] The appellant contends that the error was material notwithstanding that the jury found the appellant guilty of murder because, correctly directed on manslaughter, the jury might have brought in a verdict of guilty of manslaughter instead of murder.
[7] Ground 5. Permission to appeal granted.
The Director concedes the existence of this error by the Judge because it was established by the High Court in R v Wilson[8] that the requirement is that there is an “appreciable risk of serious injury”.[9] However, the Director contends that the error was not material because the jury found the appellant guilty of murder and therefore necessarily found that the appellant deliberately stabbed the deceased and in any event the direction understated the threshold for dangerousness and would not have caused the jury to not bring in a verdict of manslaughter if the jury would otherwise have done so.
[8] (1992) 174 CLR 313.
[9] At 333 per Mason CJ, Toohey, Gaudron and McHugh JJ (compare Brennan, Deane and Dawson JJ at 341-342).
The jury generally is assumed to follow the trial judge’s directions of law. In Gilbert v The Queen[10] Gleeson CJ and Gummow J said:
The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges.[11]
[10] [2000] HCA 15, (2000) 201 CLR 414.
[11] At [13].
McHugh J said:
The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. …. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.[12]
[12] At [31].
The High Court has recognised an exception to this general principle in cases of murder in which an alternative of manslaughter should have been but was not left to the jury in circumstances in which, notwithstanding the trial judge’s directions that the jury was required to be satisfied beyond reasonable doubt of each element of murder, the High Court considered that the jury might have brought in a verdict of manslaughter if left with an intermediate alternative between guilt and innocence of murder.
In Ross v The King[13] Ross was charged with the murder of a 12 year old girl who had been raped and whose cause of death was strangulation. Evidence was adduced of a confession by Ross that he raped the girl and afterwards when she called out he put his hand over her mouth and unintentionally choked her. The trial judge did not leave manslaughter to the jury as an alternative verdict. While counsel for Ross made a decision not to ask for an alternative verdict, the High Court dealt with the point on its merits without considering counsel’s conduct of the case.[14] Knox CJ, Gavan Duffy and Starke JJ (with whom Higgins J agreed) said:
… we think it is clear that, if on a trial the Judge correctly instructs the jury on the essential ingredients of the crime charged and fully and fairly puts to the jury the defence set up by the prisoner, a verdict of guilty amounts to a finding by the jury of every essential element of that crime, and cannot be disturbed by a suggestion that the jury on the evidence might have found him guilty of a lesser offence if the Judge had informed them that they were at liberty to do so.[15]
[13] (1922) 30 CLR 246.
[14] At 253.
[15] At 254.
In Mraz v The Queen,[16] the Crown case was that the deceased was killed while being raped and relied on the felony murder rule. Mraz had been in some form of relationship with the deceased for the previous 12 months. A post mortem examination could not identify the cause of death. The trial judge erroneously and bizarrely directed the jury that, if Mraz raped the deceased and caused her death during the rape, he would be not guilty of murder for want of malice if he performed the rape for his own gratification without intending specific injury to the deceased but he would be guilty of manslaughter. Mraz was found guilty by the jury of manslaughter. Neither the Crown nor the accused had asked that manslaughter be left.
[16] (1955) 93 CLR 493.

The High Court held that the direction was erroneous and that, if the jury had been properly directed, given the evidence about the appellant’s relationship with the deceased and the medical evidence, there was a prospect that the jury would have found Mraz not guilty. Williams, Webb and Taylor JJ said:
No doubt if the appellant had been convicted of murder he could not now succeed upon an appeal based upon the misdirection for it would be a simple matter to say that the summing-up was too favourable. The same observation might also be made if it could be assumed, without doubt, that with proper directions the jury would have returned such a verdict. But the fact is no such verdict was returned and it does not appear to us to be safe to assume that, properly instructed, the jury would have returned such a verdict. …
… it is clear that the appellant was entitled to have the issues decided upon the graver charge and, to us, it seems quite wrong to attempt to justify the verdict of manslaughter, returned in the circumstances of this case, by the observation that the jury, upon an issue of manslaughter which they were invited to consider, must have reached conclusions on issues of fact which would have required them, if properly instructed, to have returned a verdict of murder. It is, of course, quite possible to say that the same conclusions on these issues of fact must have led the jury to find the appellant guilty of murder if they had been properly instructed. But it would be ignoring the realities of the matter to assume that if they had been required to consider whether they should convict the appellant of murder or acquit him they would have reached the same conclusions. The degree of doubt which we entertain on this aspect of the case is increased by considerations which present themselves upon a careful reading of the whole transcript. As we have already said the deceased was thirty years of age whilst the defendant was twenty-two, they were, and had been for some time, on friendly, if not affectionate terms and were in the habit of going about together, the rape is said to have taken place only fifty or sixty yards away from the appellant's home and there was no indication that any attempt had been made to silence the deceased and, finally, examination of the deceased's body failed to disclose any tangible cause of death.[17]
[17] At 506-508. (Citation omitted)
In Gilbert v The Queen[18] Gilbert drove his brother and the deceased to a location at which his brother killed the deceased. The defence case was that Gilbert believed only that his brother intended to assault the deceased. If the jury accepted the defence case as a reasonable possibility Gilbert would have been guilty of manslaughter but the trial judge instructed the jury that manslaughter was not open. The High Court by majority (McHugh and Hayne JJ dissenting) held that the erroneous failure to leave manslaughter was material notwithstanding that the jury found Gilbert guilty of murder and the trial judge correctly directed the jury on the elements of murder. Gleeson CJ and Gummow J immediately after the passage extracted at [39] above said:
It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.
In the days when murder attracted the death penalty, appellate courts were well aware, and took account, of the possibility that juries may be influenced in their deliberations by the presence or absence of manslaughter as a possible verdict.[19]
[18] (2000) 201 CLR 414.
[19] At [13]-[14].
After referring to and quoting from Mraz their Honours continued:
These statements are inconsistent with the notion that an appellate court must assume, on the part of a jury, a mechanistic approach to the task of factfinding, divorced from a consideration of the consequences. Indeed, juries are ordinarily asked to return a general verdict. They make their findings of fact in the context of instructions as to the consequences of such findings, and for the purpose of returning a verdict which expresses those consequences.
When, in Mraz, the majority referred to "ignoring the realities of the matter", one of the contemporary realities to which they were referring was the death penalty. That was why, tactically, defence counsel might prefer to conduct a homicide case on a "murder-or-nothing" basis. The death penalty has gone, but there are other, perhaps equally influential, realities. This is an age of concern for the victims of violent crime, and their relatives. To adapt the words of Fullagar J, a jury may hesitate to acquit, and may be glad to take a middle course which is offered to them. [20]
[20] At [16]-[17].
Callinan J took a similar approach, saying:
The appellant was entitled to a trial at which directions according to law were given. It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only or inevitable choice.[21]
[21] At [101].
McHugh J dissented, holding that:
Where a trial judge correctly directs the jury as to the essential elements of the crime charged, a verdict of guilty necessarily amounts to a finding of every essential element of the crime, and the verdict cannot be set aside on the ground that the trial judge should have directed the jury that on the evidence they could convict the accused of a lesser offence. That proposition is subject to the qualification that, where the evidence, in substance but not necessarily in form, gave rise to a "defence" by way of confession and avoidance which the trial judge failed to put to the jury, the verdict can be set aside…
Where the issue that should have been left to the jury is not in substance a matter of confession and avoidance and the factual elements of that issue are negatived by the verdict, however, the general principle applies. That being so, in the present case, the jury could not as a matter of law, fact or conscience find the appellant guilty of manslaughter. The jury's verdict negatives the essential facts that the appellant had to rely on to obtain a verdict of manslaughter.
…
In my opinion, nothing in Mraz cuts down the general principle stated in Ross v The King that [quoting the passage extracted at [42] above].[22]
[22] At [26]-[27], [38]. (Citations omitted)
Hayne J dissented, holding that:
… the contention that the appellant lost a chance of acquittal of murder that was fairly open to him because the jury were not told that they should consider whether he had some different and less precise knowledge of the intentions of his co-accused must be rejected. It is a contention that assumes that the jury disregarded the judge's direction that the appellant could be convicted of murder only if the jury were satisfied to the requisite standard that the appellant knew of the murderous intent of one or both of his co-accused.
…
… It is a conclusion which depends entirely upon giving due weight to the verdict of the jury in light of what they were told by the judge and assuming (there being no basis for suggesting otherwise) that they did their duty conscientiously.[23]
[23] At [49], [51]. (Emphasis in the original)
In Gillard v The Queen[24] the circumstances were very similar to those in Gilbert and the High Court applied the decision in Gilbert.
[24] [2003] HCA 64, (2003) 219 CLR 1.
In James v The Queen[25] James was charged with intentionally or recklessly causing serious injury. After the jury retired the prosecutor raised the question whether the statutory alternative of intentionally causing injury should be left but the trial judge refused to leave it. The High Court was invited to extend the principle articulated in Gilbert and Gillard beyond a failure to leave manslaughter on a charge of murder and declined to do so. French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said:
Gilbert and Gillard are concerned with the consequences of the wrongful neglect of the obligation to leave manslaughter to the jury in any circumstance in which it is open. History and recognition of the gravity of conviction for murder inform the obligation. Gilbert and Gillard do not state any wider principle respecting the obligation to leave alternative verdicts for included offences (including alternative verdicts for offences other than manslaughter on an indictment of murder) or the consequences of the failure to do so.
…
Discharge of the trial judge's role in ensuring fairness to the accused requires that the jury receives instruction on any defence or partial defence, provided there is material raising it, regardless of the tactical decisions of counsel.
…
… it is wrong to equate leaving a defence or partial defence with leaving alternative verdicts. The two are distinct. Where there is evidence to support a defence or partial defence it is incumbent on the prosecution to negative it. Satisfaction that the defence or partial defence has been negatived will be an issue in the trial and almost always will require the trial judge to so direct the jury. Where the prosecution does not seek the jury's verdict for an offence not charged, the circumstance that in law the evidence may support conviction for a lesser offence does not without more make guilt of that lesser offence an issue in the trial.
…
The trial judge's duty with respect to instruction on alternative verdicts is to be understood as an aspect of the duty to secure the fair trial of the accused. The question of whether the failure to leave an alternative verdict has occasioned a miscarriage of justice is answered by the appellate court's assessment of what justice to the accused required in the circumstances of the particular case. That assessment takes into account the real issues in the trial and the forensic choices of counsel.[26]
[25] [2014] HCA 6, (2014) 253 CLR 475.
[26] At [23], [31], [33], [38]. (Footnotes omitted)
The appellant contends that the principle articulated by the High Court in cases in which the trial judge erroneously fails to leave manslaughter as an alternative to murder applies also to cases in which the trial judge erroneously understates one of the elements of manslaughter. The appellant contends that the jury may have reasoned that, because it was directed that an element of manslaughter involves a reasonable person realising that he or she was exposing the deceased to an appreciable risk of injury (as opposed to serious injury), a verdict of manslaughter would not be sufficiently serious as an alternative to murder and hence a verdict of guilty of murder should be delivered
The appellant’s contention is not supported by High Court authority, is contrary to High Court authority, is not the result of the application of the general principles articulated by the High Court and should be rejected.
The appellant’s contention is not supported by High Court authority because the High Court authorities all involve cases in which the trial judge erroneously failed to leave manslaughter or erroneously left manslaughter. While it may be accepted that an erroneous overstatement of one of the elements of manslaughter might (depending on the circumstances) perhaps be similar in effect to an erroneous failure to leave manslaughter, none of the High Court authorities were cases in which there was an erroneous understatement of one of the elements of manslaughter.
The appellant’s contention is contrary to the statement by Williams, Webb and Taylor JJ in Mraz v The Queen[27] in the first paragraph extracted at [43] above where their Honours said:
No doubt if the appellant had been convicted of murder he could not now succeed upon an appeal based upon the misdirection for it would be a simple matter to say that the summing-up was too favourable.[28]
[27] (1955) 93 CLR 493.
[28] At 506.
The appellant’s contention is not the result of the application of the general principles articulated by the High Court. As noted above, the starting point is that the jury is generally assumed to follow the trial judge’s directions of law. If the jury follows the trial judge’s directions to consider first the more serious charge and finds the defendant guilty thereof, the jury will not reach a less serious alternative or engage in backwards reasoning. Nevertheless, it has been considered that a jury, otherwise faced with the stark alternatives of guilty or not guilty of murder, might take a merciful view if an intermediate alternative of manslaughter is available. This rationale for the pragmatic exception to the general starting point established by the High Court does not apply in a case in which manslaughter is left as an alternative to the jury and the trial judge understates an element of the offence of manslaughter.
It is one thing to recognise an appreciable risk that a jury might take a merciful view if left with an alternative of manslaughter. It is quite another thing to contemplate that a jury would engage in the tortuous reasoning of first assessing the seriousness of the offence of manslaughter by reference to an element being appreciable risk of injury; secondly taking a different view of that seriousness compared to the view it would have taken if the element had been appreciable risk of serious injury; and thirdly bringing in a verdict of guilty of murder rather than manslaughter because manslaughter is not a sufficiently serious alternative offence. It is fanciful to attribute to the jury such a tortuous reasoning process. Moreover it would involve the jury engaging in Machiavellian reasoning.
It is noteworthy that in England[29] and Canada[30] the relevant element of manslaughter does indeed involve an appreciable risk of injury (as opposed to serious injury), before the High Court’s decision in Wilson[31] in 1990 there was a substantial body of Australian law which applied the same approach[32] and in Wilson itself three of the seven Justices in the High Court held that Australian law should apply the English approach. It is fanciful to suggest that a jury in England or Canada would find a defendant not guilty of murder and guilty of manslaughter but a jury in Australia would find a defendant guilty of murder on identical facts merely due to the difference in the element of manslaughter.
[29] Director of Public Prosecutions v Daley [1980] AC 237 at 246 per Lord Keith of Kinkel delivering the judgment of the Privy Council comprising Lords Diplock, Hailsham of St Marylebone, Salmon, Keith of Kinkel and Edmund-Davis; R v Williams [1992] 1 WLR 308 at 388 per Stuart-Smith LJ, Waterhouse and Morland JJ.
[30] R v Creighton [1993] 3 SCR 3 at 43 per McLachlan J (with whom L’Heureux-Dubé, Gonthier and Cory JJ agreed); R v DeSousa [1992] 2 SCR 944 at 961 per Sopinka J delivering the judgment of the Supreme Court of Canada comprising Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.[
[31] (1992) 174 CLR 313.
[32] See for example R v Bush [1970] 3 NSWR 500 at 504 per Herron CJ, Manning JA and Nagle J; R v Andrews (1979) 2 A Crim R 182 at 198 per Begg J; R v Croft [1981] 1 NSWLR 126 at 138-139 per O’Brien CJ of CR D (with whom Street CJ and Samuels JA agreed); R v Windsor (1980) 4 A Crim R 197 at 203 per McInerney J (with whom Young CJ agreed).
In the present case neither experienced senior counsel for the Director nor experienced senior counsel for the accused noticed the erroneous reference in the Judge’s summing up and aide memoir to an appreciable risk of injury as opposed to an appreciable risk of serious injury. It is not tenable that the distinction escaped the notice of experienced senior counsel and yet the distinction may have made a fundamental difference to the jury in returning a verdict of guilty of murder as opposed to manslaughter.
The appellant submits that his contention is supported by the decision of this Court in R v Ly, Nguyen and Ngo.[33] In that case the trial judge directed the jury that it was an element of manslaughter that the accused intended to cause harm to the deceased. This direction was erroneous in three respects: first it involved a subjective test when the test is objective; secondly it involved actual harm as opposed to a risk of harm; and thirdly it involved harm as opposed to serious harm. Nguyen was convicted of manslaughter and Ngo and Ly were convicted of murder. On the appeal, the Director not only conceded that the direction was erroneous but also conceded that there was no room for the application of the proviso and the matters should be remitted for retrial on the charges of manslaughter and murder respectively. Given this concession, the question argued on the present appeal did not need to be decided. Gray J (with whom Anderson J agreed and Peek J relevantly agreed) said:
The judge’s direction that an agreement to cause harm would be sufficient to satisfy the requirement of “dangerous” was a material misdirection. As earlier mentioned, the Director accepted that there had been a misdirection and accepted that there was no room for the application of the proviso. In the Director’s submission, the appellants Ly and Ngo should be remitted for retrial on the charge of murder and the appellant Nguyen should be remitted for retrial on the charge of manslaughter.
In the case of the appellants Ly and Ngo the jury did not have adequate directions on the law to enable them to consider the alternative verdict of manslaughter. The jury may have considered that this was a case where the relevant intent was to perform an unlawful and dangerous act and thereby give rise to the risk of serious injury. The judge’s directions precluded the jury from properly considering the alternative verdict of manslaughter. In the case of Nguyen there is a risk of a miscarriage of justice in that the jury may have proceeded to convict of the crime of manslaughter on an erroneous basis.
The Director’s concession that there had been a material misdirection was properly made. I consider that a risk of a miscarriage of justice arose in the case of each appellant. There is no room for the application of the proviso.[34]
[33] [2011] SASCFC 133, (2011) 111 SASR 259.
[34] At [51]-[53].
The decision is Ly not authority for the contention advanced by the appellant. The Director conceded that the convictions should be set aside and the matters remitted for retrial. No detailed consideration of the underlying principles was required or undertaken. The trial judge’s direction overstated the relevant element of manslaughter in two respects as well as understating it in one respect.
Although the trial judge erroneously identified one of the elements of manslaughter, this error was not material to the conviction of the appellant of murder. This ground of appeal is not established.
Jega’s evidence of conversation with appellant
Admissibility
The appellant contends that the Judge erroneously admitted the evidence of Jega’s telephone conversation with the appellant in February 2014 because it was not proved to be voluntary and the Judge ought to have excluded it in the exercise of the “general fairness or Christie discretion.”[35]
[35] Ground 2.
Evidence was given on the voir dire by Jega in the nature of a Basha inquiry. He gave evidence that during the telephone conversation:
… I ask him, 'Why you kill [Kethees]?',[36] because he say - he say that morning, that morning Sathees came home, collect bottles, then - some things, then he's bring to outside, that time call him a ladyboy and shemale.
[36] The transcript read “Sathees” but it is common ground that Jega said “Sathees”.
In cross-examination on the voir dire, Jega was asked whether the reason why he asked the question was that he had been told this by someone else and he agreed. Jega said that at the beginning of the conversation that the appellant asked Jega to visit him; Jega said that he could not; the appellant said that everybody had left him; Jega said “God bless you. Look after yourself”; the appellant said “I'm very sad, everybody has left me”; and Jega said “This was a mistake you didn't intend to do. Take care of yourself and take care of your body very well and yourself very well”.

Dr Raeside gave evidence on the voir dire which is referred to below. The appellant did not give evidence on the voir dire.
Voluntariness
The appellant contends that, the onus lying on the prosecution, the prosecution failed to discharge its onus of proving voluntariness. He points to the fact that he was detained in Glenside Hospital at the time of the telephone conversation because he was a suicide risk, having made what appeared to be a suicide attempt, had been prescribed anti-psychotic and anti-depressant medication, was in a state of desperation and vulnerability and his statement to Jega was on its face inconsistent with his statements to Jega and others on the evening of 16 January 2014 suggesting an aberration indicative of the absence of a free choice.
Evidence of a confession is inadmissible as a matter of law if not made voluntarily.[37] The onus lies upon the prosecution to prove that a confession was made voluntarily once the issue is raised.[38]
[37] Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 at [2] per Gleeson CJ, [28]-[30] per Gummow and Hayne JJ, [123]-[124] per Kirby J and [245] per Callinan, Heydon and Crennan JJ.
[38] Hough v Ah Sam [1912] 15 CLR 452 at 457 per Barton J cited with approval in MacPherson v The Queen [1981] 147 CLR 512 at 519 per Gibbs CJ and Wilson J.
In the present case senior counsel for the appellant at trial explicitly accepted that, following the evidence given by Dr Raeside, no issue of voluntariness arose and eschewed a contention that the appellant’s statement to Jega was not voluntary. There is no suggestion on appeal of incompetence of trial counsel. No issue of error of law therefore arises: the appellant must establish a miscarriage of justice.
Dr Raeside gave evidence on the voir dire that, although the appellant had been prescribed Seropquel which is an anti-psychotic medication, it was prescribed as an anti-anxiety medication rather than because the appellant had a psychotic condition. The doses prescribed were relatively low compared to usual therapeutic doses. The medication was not likely to have impaired the appellant’s thinking so that he did not know what he was doing or saying. Dr Raeside did not regard the appellant as psychotic or delusional. He said that the appellant’s key problem was that he feared deportation to Sri Lanka where he reportedly had suffered traumatic stress. Dr Raeside expressed the opinion that the suicide attempts were a combination of a feeling of helplessness and manipulation to achieve transfer from a prison to a hospital setting.
Dr Raeside said that most detained patients are quite capable of understanding and responding to questions asked of them without having severe impairment in their thinking or judgment about responding. Dr Raeside offered a tentative opinion that there did not appear to be any serious psychiatric factors that would render a conversation with Jega inherently unreliable. Dr Raeside said that he did not think that in its broad sense stress would cause the appellant to make an admission. However, if the appellant was distressed he may have been seeking more support from trusted friends than otherwise and may have chosen to make admissions that he might not otherwise have done but in Dr Raeside’s view that would still be quite voluntary and knowing on his part.
The mere fact that the appellant was in custody does not indicate the admission was not voluntary. Jega was not a police officer or person in authority. The telephone call was initiated by the appellant.
The appellant did not give evidence on the voir dire. In light of Dr Raeside’s evidence, the appellant’s statement to Jega was voluntary.
Exclusion in the exercise of discretion
Where a confession is voluntary, it might nevertheless be excluded in the exercise of a trial judge’s discretion on one of three grounds: impropriety (often called the Bunning v Cross discretion), unfairness (often called the Lee discretion) or the residual discretion to exclude evidence the prejudicial impact of which exceeds its probative value (often called the Christie discretion).[39] The onus of proof and persuasion lies on the defendant to exclude the evidence if admissible.[40] The relationship between the three discretions was recently explained by the High Court in Police v Dunstall.[41]
[39] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 at [51]-[52] per Toohey, Gaudron and Gummow JJ; Tofilau v The Queen (2007) 231 CLR 396 at [3] per Gleeson CJ, [28] and [65]-[68] per Gummow and Hayne JJ and [245]-[248] per Callinan, Heydon and Crennan JJ.
[40] Cleland v The Queen (1982) 151 CLR 1 at 19 per Deane J.
[41] [2015] HCA 26, (2015) 256 CLR 403.
At trial, the appellant sought exclusion in the exercise of the Christie discretion (albeit potentially confusing the ground by referring to “unfairness”). Thus counsel for the appellant said:
What I'm effectively asking your Honour to do is exercise a Christie-type discretion that the admission of this evidence would be more prejudicial than probative, such that it would be unfair to the accused to admit it in the trial.
On appeal the appellant contends that the evidence should have been excluded in the exercise of either the Christie discretion or the Lee discretion.
At trial the appellant sought exclusion of the evidence in the exercise of the Christie discretion on the ground that the evidence was unreliable because he was in a mental hospital; the admission contradicted his statements to others on 16 January 2014 that Boby had caused the stabbing of the deceased; and the admission was equivocal because his statement may not have been responsive to the question.
On appeal, the appellant contends that the evidence should have been excluded in the exercise of the Lee or Christie discretion on one or more of eight grounds, some of which were not advanced at trial. Although the criteria for the exercise of the two discretions differs, each of the eight grounds can be considered at the same time by reference to the exercise of either or both discretions.
The appellant contends that the evidence was unreliable because of his mental state at the time and makes the same submissions as made above in the context of voluntariness. For the reasons given above, in light of Dr Raeside’s evidence and taking into account that the appellant did not give any evidence about his own mental state at the time, the appellant’s mental state could not afford a basis for exclusion in the exercise of the Lee or the Christie discretion.
The appellant contends that the evidence was unreliable because his reported statement to Jega was inconsistent with his statements to others on 16 January 2014. This was a question for the jury to assess. It is not illogical that the appellant may have admitted the truth to a good friend while having earlier attempted to shift the blame to Boby. There is nothing about the inconsistency which gives rise to any relevant unfairness or reason to exercise the Lee or the Christie discretion.
The appellant contends that his statement was self-evidently not responsive to the question. On the face of Jega’s evidence on the voir dire, it is not evident why the statement should be regarded as not responsive to the question. On the contrary the jury may have regarded the statement as an explanation why he stabbed the deceased. This was again a question for the jury and does not give rise to any relevant unfairness or reason to exercise the Lee or the Christie discretion.
The appellant contends that the question by Jega “Why you kill Kethees?” was objectionable because it was a “closed and loaded question”. The context of the dialogue was not an interrogation by a police officer or person in authority but a discussion between friends. There was nothing about the question which gave rise to any relevant unfairness or reason to exercise the Lee or the Christie discretion. Again, it was a matter for the jury to assess the meaning and significance of the question and answer.
The appellant contends that the fact that at another point in the conversation Jega said to the appellant “This was a mistake you didn't intend to do” was inconsistent with Jega understanding from the appellant that he had intended to kill Jega. Jega gave evidence on the voir dire that this statement that he made to the appellant occurred part way through the discussion in an attempt to comfort the appellant because he felt that everyone had left him and this was before he asked the appellant “Why you kill Kethees?”. In any event, considered prospectively at the point at which the Judge ruled, if counsel for the appellant chose during Jega’s evidence before the jury to ask about this part of the conversation, it would again be a matter for the jury to assess the conversation as a whole. There was nothing about this evidence which gave rise to any reason to exercise the Lee or the Christie discretion.
The appellant contends that the evidence was unreliable because Jega made no notes of the discussion and did not report it to the police until three weeks later. Jega was a layperson, not a police officer or person in authority. The fact that he did not make notes of the discussion does not give rise to relevant unfairness or reason to exercise the Lee or the Christie discretion. It was a matter on which Jega could be cross-examined before the jury and would be a matter for the jury to take into account in assessing his evidence.
The appellant contends that Jega’s question “Why you kill Kethees?” implied that Jega had been told by someone else that the appellant had killed the deceased and by adducing evidence of the question the prosecution was eliciting implicit impermissible hearsay evidence that a person unknown had told Jega that the appellant killed the deceased. However the telephone conversation needs to be understood in context. Jega gave evidence at trial that during the first telephone conversation on the evening of 16 January 2014 the conversation included the following:
Q.Tell us please what was said.
A.He called me and said Boby had stabbed Ketish and that intestines has come out 'Can you please help?'.
Q.How did Mr Suppiah sound to you when you were talking to him.
A.His voice was very sad, he was feeling very low and he was crying 'Help me, help me'.
Q.Did he explain to you how it was that the other person had been stabbed.
A.Yes, he did, he told me that Boby had taken his knife and stabbed and all the intestines had come out and he asked me - and he said 'Help me, help me' but at that point he never told me that the person died.
…
Q.Can you remember anything else that was said during that phone call.
A.He spoke many, many times 'Help me, help me' and at one point he was also like crying and said 'Help me'.
At the point of the second telephone conversation the appellant had been publicly arrested and charged with murder. The irresistible understanding the jury would have formed was that the source of Jega’s question was the appellant’s statements to Jega during the first telephone conversation coupled with the fact that the appellant was charged with murder rather than an implicit statement to Jega by a third party of which there was no suggestion before the jury. This understanding is confirmed by the fact that no such submission was made at any point to the trial Judge by senior counsel for the appellant nor was the issue raised with the trial Judge by the prosecutor. There was nothing about the evidence which gave rise to reason to exercise the Lee or the Christie discretion.
Finally, the appellant contends that Jega gave inconsistent accounts of the question as between his evidence on the voir dire and his evidence before the jury. Before the jury, in evidence in chief he said that he asked “Why did you murder Ketish?” whereas on the voir dire he said that he asked “Why did you kill Ketish?”. In cross-examination before the jury he said that he asked “Why did you do this?”. Invariably witnesses use different words when asked to recount a conversation occurring in the past each time they give an account of it and this does not give rise to relevant unfairness. Moreover, the question whether the Judge erroneously failed to exclude the evidence must be tested at the point at which the ruling was given and not after the witness had given evidence before the jury. There was nothing about the evidence which gave rise to reason to exercise the Lee or the Christie discretion. No application was made after the evidence was given at trial to discharge the jury or direct the jury to ignore the evidence of Jega as to the conversation or the reference to “murder”.
Considered collectively, the Judge did not err in declining to exclude the evidence in the exercise of a discretion.
This ground of appeal is not established. I would grant permission to appeal on this ground but dismiss the appeal insofar as it is on this ground.
Adequacy of directions to the jury
The appellant contends that the Judge failed adequately to warn the jury of the dangers of acting upon Jega’s evidence as an admission and failed to direct the jury adequately as to the permissible and impermissible use of Jega’s evidence.[42]
[42] Ground 2A.
The adequacy of the Judge’s directions needs to be assessed against the background of the real issues in the case and the manner in which the defence case was conducted. The critical issue was whether the prosecution had proved beyond reasonable doubt that the appellant deliberately stabbed the deceased and the corollary whether the prosecution had negated the reasonable possibility that Boby’s intervention deliberately or accidentally caused the stabbing. Senior counsel for the appellant in his address to the jury focussed exclusively on this issue. While he referred at the outset of his address to the questions the jury needed to consider which included “Was there an intention to kill or do grievous bodily harm?”, this was in context a reference to the defence case that there was no such intent because the action of Boby lead to the fatal wound being inflicted. The jury was not invited to find that, if it rejected the defence case as a reasonable possibility, it should find the appellant guilty of manslaughter due to lack of specific intent. The address left the jury with the bare alternatives of guilty or not guilty of murder.
The adequacy of the Judge’s directions needs to be assessed by reference to the use sought to be made by the prosecutor of Jega’s evidence. In his address to the jury, the prosecutor invited the jury, if it accepted the evidence, to use it to find that the appellant had a motive to cause harm to the deceased. The prosecutor only sought to use the evidence as an admission in a secondary and limited way, namely to bolster the evidence of the eyewitnesses that Body did not cause the stabbing of the deceased. The prosecutor when narrating the question and answer to the jury narrated the question as “Why did you kill him?” (not “Why did you murder him?”). The prosecutor did not seek to use the evidence as an admission of intent to kill or cause grievous bodily harm but rather as an admission of the physical act of stabbing the deceased.
The adequacy of the Judge’s directions also needs to be considered in the context of the forensic contest in relation to Jega’s evidence. It was put to Jega in cross-examination that there was no discussion during the telephone call about why the appellant killed the deceased and no reference to the deceased having called the appellant a ladyboy. The difference between the prosecution and defence cases in relation to the conversation was black and white.
The Judge gave the following directions to the jury about Jega’s evidence insofar as it was said by the prosecution to be evidence of an admission by the appellant:
I also want to say something about the evidence of the last witness in the case, Jega. You may remember him. This is in relation to the alleged admission made by the accused over the phone, in other words a phone call between the accused and Jega, and that occurred about 3 weeks after the actual event.
First of all, you can only use that evidence if you are satisfied it is reliable. In other words, you must be satisfied beyond reasonable doubt that it was said and said in the terms as described by the witness. You will bear in mind that it was a short conversation, the witness made no notes at the time, and he did not bother to mention it to the police at all until about three weeks after the phone call, and that was only when they contacted him in relation to an earlier statement he made.
You will bear in mind that although they spoke to each other in Tamil, their native language, did the precise terms of what was discussed become fuzzy when interpreted in court? You will bear in mind the criticisms made of the evidence by Mr Mead in his address. Rhetorically he asked you: why would the accused suddenly, out of the blue, and to a member of the community where it would get around, suddenly admit to having committed a murder that he has so vehemently denied for so many weeks? Was his statement about seeing the deceased that morning perhaps related to another part of the conversation? They are all matters for you to consider.
You also have to consider whether it is actually an admission in that sense. It is implied at least. The words ‘I did it’ actually do not appear but, by implication, if you are satisfied of the reliability of the terms of that conversation, they do appear if you believe that to be an admission. Consider, for example, did he mishear the question, that is the accused? Was it precisely as Jega now remembers it? Did Jega actually use the expression ‘murder’? If you consider it to be an admission and you consider it to be reliable as discussed, then it is no more than another piece of evidence for you to weigh up when looking at the prosecution case. It does not prove the case against the accused by itself. The prosecution, of course, say to you it is reliable and it is an admission, and you should put that into the scales when looking at the evidence in this case.
No complaint was made by senior counsel for the appellant at trial about the summing up. No request was made for any further directions to the jury in relation to the Jega conversation. In R v Lowe[43] this Court said:
However, there are five further proposed grounds (with numerous sub-grounds and alternatives) which assert miscarriage of justice by reference to complaints concerning admission of evidence and the content of the summing up, with no objection having been taken at trial to any of such matters. No assertion of incompetence of trial counsel has been made.
While the fact that trial counsel did not object does not prevent interference by an appellate court if there is a real risk of miscarriage of justice, it is nevertheless relevant to the assessment of whether there is such a risk. As stated by Eames AJ for the Victorian Court of Criminal Appeal in R v Ibrahim:
It is important when considering arguments on appeal, especially when the trial was conducted by different counsel to those arguing the appeal, that the reality of the trial not be lost, and that the issues on which battle was joined before the jury not treated as of mere passing relevance to an academic appellate debate.
And more recently, that court stated in Velkoski v The Queen:
When an accused person has been convicted, and appeals, there is often an attempt to present the defence case in a new way. This appeal provides an example of the necessity, when evaluating criticisms of the trial process and the trial judge’s directions to a jury, to relate those criticisms to the manner in which the trial was conducted. The course followed by the defence throughout the trial has a profound bearing upon the evaluation of the complaints now made concerning the trial.[44]
[43] [2016] SASCFC 118.
[44] At [12]-[14] per Peek and Doyle JJ (with whom Nicholson J agreed). (Footnotes omitted)

Many of the appellant’s specific complaints on appeal focus upon whether it may be accepted that the appellant’s answer to Mr Selvanayagam’s question was, in fact, an admission, and, if so, an admission to what. The approach on appeal was very different to that at trial. In any event, to the extent that questions of language and translation arise, no reason arose as at the time the Judge was required to rule, or now, to think that they could not be properly fleshed out in cross-examination with, if necessary, the assistance of the interpreter. Equally, no reason arose to think that evidence of the various forces impacting upon the appellant at the time, such as that which Dr Raeside could give, could not be called. The argument that the answer was not responsive to the question could have been fleshed out through Dr Raeside, whom the appellant could have called, or as a submission in address. That Mr Selvanayagam was reliant upon his memory could have been brought out in cross-examination and been the subject of address, as could the fact that he had said to the appellant that “this was a mistake you didn’t intend to do”. The same can be said for the fact that Mr Selvanayagam asked his question against the background of what someone else had told him occurred. That topic could have been explored in cross-examination, and, if it was thought that there was any inadequacy in disclosure (i.e. as to the source of such information and what they said) as part of a Basha inquiry. The inconsistency between Mr Selvanayagam’s evidence in the trial and on the voir dire was irrelevant to the question of admissibility and discretionary exclusion (if it was accepted as an inconsistency, it was a fact not in existence as at the time the trial Judge considered the questions of admissibility and exclusion). It was in any event something which could have been exploited by defence Counsel in cross-examination and subject of submissions.
In short, no reason arose as at the time the Judge was invited to rule on the question of discretionary exclusion that the now asserted frailties in Mr Selvanayagam’s evidence could not be fully explored in the trial, appreciated by the jury with the assistance of the Judge’s guidance, and afforded the appropriate weight. Accepting this, the probative value of the evidence was not outweighed by its prejudicial effect. In my view, the trial Judge’s refusal to exclude the evidence in the exercise of the Christie discretion was correct and cannot be said to be explainable only on the basis of some misconception.
I would grant permission to appeal on ground 2 but hold that such ground is not made out.
I turn to consider ground 2A.
Whereas the focus of the second ground of appeal is the evidence that it is anticipated Mr Selvanayagam would give in the trial, informed by the evidence he gave on the voir dire, the focus of ground 2A is the actual evidence he gave.
In examination-in-chief Mr Selvanagayam gave evidence of two telephone calls with the appellant. The first was shortly after Mr Sivaperuman had been stabbed. In it the appellant told Mr Selvanayagam that “Boby” was the killer. In the second telephone conversation:
He called me and asked me how I was and I asked him “why did you murder Ketish?” At that time he said when collecting the bottles – when he was collecting the bottles and cans, he asked Ketish “Why are you here?, and Ketish answered saying that he was a ladyboy.
In cross-examination Mr Selvanayagam was not asked about the first telephone conversation. As to the second, it was not suggested that it did not happen, nor that the question as put to the appellant was not as Mr Selvanayagam had stated to the jury. Rather, the cross-examiner suggested that the appellant had not said that he was called a ladyboy, which Mr Selvanayagam denied. Further, the cross-examiner brought out the fact that Mr Selvanayagam had said toward the conclusion of the second conversation that “this was an accident”, had made no notes of the conversations, and only told the police of the second conversation three weeks after it occurred.
In his address the prosecutor pointed to the admission made to Mr Selvanayagam as providing a motive for killing Mr Sivaperuman. It was unlikely, he suggested, that having asked the appellant why he murdered Mr Sivaperuman, Mr Selvanayagam would forget the answer or confuse it with something else. He also submitted that the reference in the conversation to the collection of cans and bottles tied in with other evidence suggesting that the appellant was also jealous of the fact that the deceased had a car.
Defence Counsel opened his address with a series of rhetorical questions, including, “was this a murder or was it something else? Was it an accident? An unintended injury? …”. In dealing with Mr Selvanayagam’s evidence defence Counsel put that the admission was an extraordinary statement in view of the many denials that the appellant had made. It was all the more extraordinary because, despite it supposedly being made, Mr Selvanayagam nonetheless considered the killing to have been an accident. That is, defence Counsel sought to neutralise the admission by pointing to its inconsistency with the denials that the appellant had repeatedly made and with Mr Selvanyagam’s own appreciation of what occurred despite the admission being made to him. It was not the defence case that the second conversation, including the adverse statements, did not occur, with the exception that it was contended that the appellant did not say that Mr Sivaperuman had called him a ladyboy. The approach was to explain away the adverse statements as being consistent with the defence case in the light of Mr Selvanayagam’s appreciation of what had occurred (and inferentially what had been said by the appellant) and the appellant’s denials. It is in this context that the directions given by the trial Judge regarding the assessment and use to be made of Mr Selvanayagam’s evidence fall to be considered.
The trial Judge said:
I also want to say something about the evidence of the last witness in the case, Jega. You may remember him. This is in relation to the alleged admission made by the accused over the phone, in other words a phone call between the accused and Jega, and that occurred about three weeks after the actual event.
First of all, you can only use that evidence if you are satisfied it is reliable. In other words, you must be satisfied beyond reasonable doubt that it was said and said in the terms as described by the witness. You will bear in mind that it was a short conversation, the witness made no notes at the time, and he did not bother to mention it to the police at all until about three weeks after the phone call, and that was only when they contacted him in relation to an earlier statement he made.
You will bear in mind that although they each spoke to each other in Tamil, their native language, did the precise terms of what was discussed become fuzzy when interpreted in court? You will bear in mind the criticisms made of the evidence by … [defence Counsel] … in his address. Rhetorically he asked you: why would the accused suddenly, out of the blue, and to a member of the community where it would get around, suddenly admit to having committed a murder that he has so vehemently denied for so many weeks? Was his statement about seeing the deceased that morning perhaps related to another part of the conversation? They are all matters for you to consider.
You also have to consider whether it is actually an admission in that sense. It is implied at least. The words ‘I did it’ actually do not appear but, by implication, if you are satisfied of the reliability of the terms of that conversation, they do appear if you believe that to be an admission. Consider, for example, did he mishear the question, that is the accused? Was it precisely as Jega now remembers it? Did Jega actually use the expression ‘murder’? If you consider it to be an admission and you consider it to be reliable as discussed, then it is no more than another piece of evidence for you to weigh up when looking at the prosecution case. It does not prove the case against the accused by itself. The prosecution, of course, say to you it is reliable and it is an admission, and you should put that into the scales when looking at the evidence in this case.
However, even if you are not satisfied it was an admission of an offence, the prosecution have another use for it. That is this: even if you consider it is not an admission to the offence, the evidence itself of him going across the road to collect cans and being called a ladyboy by the accused earlier that morning is a piece of evidence which may provide a motive for what occurred later and, as the prosecution put to you, dovetails, to an extent, with the conversation that they say Hema heard when they first started fighting. It is a matter for you as to what you make of that evidence.
The appellant is bound by the way in which he chose to run his case. No suggestion of incompetence on the part of his Counsel has been made. The second conversation was conducted in Tamil. In the absence of Counsel exploring with Mr Selvanayagam whether he used a Tamil expression bearing the same meaning as the word murder, the trial Judge could do no more than alert to the jury to the mere possibility that there might be a question as to the whether the equivalent carried the same meaning. There was no evidence that allowed him to put anything more to the jury without engaging in speculation.
Defence Counsel chose not to explore the inconsistency between the question Mr Selvanayagam said he asked on the voir dire and that he said he asked in the course of giving evidence in the trial. The inconsistency having not been explored in the evidence, the Judge’s hands were tied.
It must also be remembered that the appellant did not wish to destroy entirely Mr Selvanayagam as a reliable historian. His implicit assessment that what occurred was an accident was the chosen means of diluting the admission the making of which, or at least that the appellant spoke the words stated with the exception of referring to being called a ladyboy, was not disputed. That was a forensic choice.
Accordingly, bearing in mind the nature of the forensic contest, I do not consider it reasonably arguable that the above directions were inadequate.
I would refuse permission to appeal on ground 2A.
With respect to the first, third and fourth grounds of appeal, I agree with Blue J for the reasons he gives that permission to appeal should be refused.
The appeal should be dismissed.