R v Taheri - [2017] SASCFC 92

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TAHERI
[2017] SASCFC 92
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Parker and The Honourable Justice Lovell)
2 August 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
Appeal against convictions for serious criminal trespass and threats committed against the appellant’s estranged wife. Grounds complain about directions to the jury on the topics of the appellant’s out of court statements to police, the discreditable conduct evidence led by the prosecution, the evidence in support of count 3, and putting the defence case. It is further complained that the trial miscarried as a result of certain cross-examination by the prosecution of one of the defence witnesses and that the directions given to address that matter were not capable of retrieving the trial.
Held (Vanstone J, Parker and Lovell JJ agreeing): Appeal dismissed. Directions on the out of court statements were correct. The defence case was properly put. The provision of agreed facts together with the Judge’s directions about the prosecutor’s cross-examination were apt to restore the situation and to address any risk of miscarriage. With one exception the directions on discreditable conduct were comprehensive and sufficient. The failure to direct on one aspect of that evidence was of such a nature that no substantial miscarriage of justice resulted.
Evidence Act 1929 (SA) s 34P, s 34R; Criminal Law Consolidation Act 1935 (SA) s 281, s 285C, s 353, referred to.
Mule v The Queen (2005) 79 ALJR 1573; R v Helps (2016) 126 SASR 486; R v Collie (2005) 91 SASR 339; CTM v The Queen (2008) 236 CLR 440; Nudd v The Queen (2006) 80 ALJR 614; Perara-Cathcart v The Queen (2017) 91 ALJR 411; Hargraves v The Queen (2011) 245 CLR 257, considered.

R v TAHERI
[2017] SASCFC 92
Court of Criminal Appeal: Vanstone, Parker and Lovell JJ

VANSTONE J: The appellant was tried in the District Court before Judge and jury for four offences arising from a confrontation between the appellant and his estranged wife and her sister. His defence was one of alibi, evidence of which was led from his witness Fedayee Qadir, and, to a lesser extent, from the appellant’s sister, Zhara Taheri. The appellant was found guilty as charged of each count.
A single Judge of this Court considered the appellant’s amended notice of appeal which contained 10 grounds. He granted permission on most of them, but referred the application for permission on grounds 3, 4 and 6 to this Court. At the appeal hearing the grounds were further amended by provision of a new document. Most of the grounds are similar to those considered by the single Judge. In the result, six grounds are pressed. Of those, grounds 3 and 5 (in part) are not the subject of a grant of permission. Grounds 4 and 8 in the final formulation of the grounds are abandoned.
Background
The information charged four offences, being count 1, aggravated serious criminal trespass in a place of residence, count 2, aggravated threatening harm against the appellant’s wife “V”, count 3, aggravated threatening life against V, and count 4, aggravated threatening harm against V’s sister. Each was alleged to have occurred at the former matrimonial home at Parafield Gardens.
The appellant and V married on 3 November 2012. After a short time living with a friend, the couple moved to the home of the appellant’s parents for three months.
The prosecution alleged that the appellant had been violent from the commencement of their relationship, including while they lived at his parents’ home. On the prosecution case, the volatility of the relationship reached a crescendo in November 2013, when the appellant took V’s first aid certificate and demanded money. The stand-off ended in the appellant assaulting V. She notified the police and the appellant was arrested and placed under an interim intervention order which, among other things, prohibited him from being within 100 metres of V, or entering or remaining in her place of residence.
After the appellant’s arrest in November 2013, he was admitted to bail. The following day he attended the home of V’s parents, armed with a knife. He banged on the door and demanded his wife back. It was alleged that he threatened to kill V’s sister and her family. He then slashed his own wrist before leaving.
It was the prosecution case that on 27 January 2014 the appellant attended the former matrimonial home at Parafield Gardens, armed with a knife and a length of rope. V and her sister were present. Upon seeing V, the appellant cut open a fly wire screen to gain access to the house and entered. This was count 1. He then pushed V into the bedroom and, while holding the knife, said “I will kill you”. V said he also put the knife to her throat telling her to take back her police statement. This was count 2.
Count 3 was alleged to have occurred in the bedroom. On the prosecution case as outlined in the opening address the appellant placed the rope around V’s neck while telling her that he would kill her. V also said that in the bedroom the appellant was saying to her words to the effect “I am going to kill you. Take back your statement and I want you back”.
During this period V’s sister was nearby and was telling the appellant to leave V alone. It was alleged that the appellant told V’s sister he would kill her and produced the knife to her. This was count 4.
Ground 1 – directions about the appellant’s out of court statements
The impugned directions were given by the Judge in relation to evidence which came before the jury by way of admissions of fact. It was agreed that the appellant had gone to the Elizabeth Police Station and participated in an audio visual interview. It was agreed as follows:
In that interview the accused told police, with the assistance of a Farsi interpreter:
a)That he denied the allegations made by [V];
b)That [V] is his Islamic wife;
c)That on 27 January 2014 he:
(i)    slept until 10am;
(ii)     then went to Qadir Fedayee’s Afghan shop in Salisbury;
(iii)    was collected from his sister’s house by Qadir Fedayee;
(iv)    then travelled to Qadir Fedayee’s business premises;
(v)     remained at the business premises until around 10pm; …
The trial Judge gave directions about these matters at two points in her summing up. The first of those was as follows:
Ladies and gentleman, on 28 January 2014 the accused, as you know, spoke to the police in an interview that was recorded. Portions of that interview are now contained in the agreed facts. I want to give you some directions in relation to the use that you can make of those statements.
You can give such credit to the accused as you see fit for having made those statements to the police. Whilst it is a matter for you entirely you may think that the accused’s statements potentially seek to exonerate him or excuse him. They may be described as self-serving statements. You can take them into account in considering whether the prosecution have proven the case against the accused beyond reasonable doubt.
You are also entitled to take into account that these statements were not made on oath and were not the subject of cross-examination.
You should give the statements made to the police such weight as you see fit bearing in mind these considerations if you wish.
The second occurred later in the summing up. The Judge said this.
You will recall what I told you in relation to these statements made by him as they may be classified or classed as self-serving statements that have not been subject to any cross-examination in these courts. It is for you to give what weight you think appropriate to the statements he made to the police in these circumstances.
The appellant’s complaint is that by use of the descriptor “self-serving” and by referring to the appellant’s apparent purpose in making the statements as being to exonerate him, the Judge depreciated the value of what the appellant said to the police. This, it was argued, undermined the force of the appellant’s denials of involvement in the crimes and tended to suggest that the jury should take an approach to those statements inconsistent with the presumption of innocence and the burden of proof.
I do not consider there is any force in these complaints. I note at the outset that the way in which these exculpatory statements were introduced was highly unusual and, in my mind, undesirable. If the material were to be placed before the jury then it should have been done in such a way as to provide the jury with the context in which the various statements were made and the accused’s own words in making them.
However, dealing with the directions given, these were plainly based on passages from the High Court decision of Mule v The Queen (2005) 79 ALJR 1573. In that case the appellant had given an interview to police which contained what are referred to as mixed statements, some being exculpatory and others arguably inculpatory. The Court stated at [20] that the Judge was correct in telling the jury that they were not obliged to give the same weight to everything that was said in the interview, that the exculpatory statements were not sworn testimony and the jury could give them less weight than the admissions: [21] and that the jury were entitled to evaluate the statements in light of the fact that they were self-serving: [22]. The Court further held that it was not a derogation of the appellant’s right to silence for the Judge to point out that the statements were not on oath: [22]. In the present case the Judge’s terminology drew much on these reasons for judgment.
Mr Handshin, for the appellant, argues that the use of the terms “self‑serving”, “exonerate”, and “excuse”, were depreciatory in nature and would have led the jury to approach the appellant’s out of court statements with scepticism. I do not consider that such an inference is valid. While the term “self-serving” is not one in common usage, I think its meaning is fairly clear. In point of fact the statements were self-serving. The appellant apparently went to the Elizabeth Police Station of his own volition for the very purpose of making a statement in these terms. Plainly the statements were made with a view to exonerating him of the allegations; but that does not imply anything as to their truthfulness. The Judge’s terminology merely characterized the nature of the appellant’s assertions and offered no comment on whether or not they were to be accepted.
In my view there was no force in ground 1.
Ground 2 – failure to put defence case
The appellant complains that the Judge failed to adequately put the defence case. In particular it is argued that the Judge did not descend into any detail as to the content of the appellant’s statements to police – as opposed to their broad thrust – and did not compare the detail of those statements with the evidence of Zhara Taheri and Qadir Fedayee.
Two points must immediately be made. First, the appellant did not give evidence in the trial. Therefore his case was to be deduced from the suggestions put to the prosecution witnesses by the appellant’s counsel, the agreed facts put to the jury and the evidence of the witnesses the appellant called at trial. The second is that at the conclusion of the summing up neither counsel made any request for any further direction, indeed for any correction of what had been put to the jury by the Judge.
There is a controversy in this court and elsewhere as to the admissibility and evidentiary value of purely exculpatory out of court statements. This has been discussed in a number of authorities, including, most recently R v Helps (2016) 126 SASR 486; R v H, ML [2006] SASC 240; R v Collie (2005) 91 SASR 339; CTM v The Queen (2008) 236 CLR 440, 456-457 and see Mule. However, in this case, as I have said, excerpts from the appellant’s interview with police went to the jury as agreed facts and so the admissibility of them does not arise for determination.
In terms of their weight, at most they could be a possible version of events, just as was the unsworn statement made from the dock in earlier times when that was allowable: Collie at [375]; Mule at [22]-[23]. In those circumstances I do not consider that the Judge was obliged to reiterate to the jury the details of the appellant’s exculpatory statement. What was important was that he asserted that he was not guilty of the allegations and that he was elsewhere at the time when he was alleged to have committed the offences. He called evidence to that effect. The Judge gave an extensive outline of that evidence. Indeed, an examination of the Judge’s summing up reveals that the summary of the defence case ran to some seven pages of transcript, being about one quarter of the summing up. This was positive evidence that he could not have committed the offence. The agreed facts merely set out in short form what he asserted to police. The importance of them was that his assertion of not being present at the relevant time was consistent with, and supported by, the evidence of the witnesses he called. Had the Judge repeated the assertions made by the appellant to police, that would have tended to give those statements a status which they did not deserve. I do not consider that more was required.
Mr Handshin pointed out that there was a matter attested to by Mr Fedayee that was shown to be wrong. The witness said he attended a livestock auction at Dublin before picking up the appellant on the relevant Monday morning. However, it was an agreed fact that there was no such auction on that Monday. Mr Handshin argued that the appellant’s statements to police were not tarnished by this admitted falsity in Mr Fedayee evidence. However, the appellant’s statement to police was consistent with that of Mr Fedayee in relation to the appellant’s whereabouts at the time of the alleged offences. As mentioned, his defence was one of alibi and his main alibi witness was Mr Fedayee. It is true that Mr Fedayee’s evidence was weakened by the admitted falsity and perhaps by the manner in which he gave evidence. However, it is unrealistic to suggest, as Mr Handshin has, that even if the jury rejected Mr Fedayee’s evidence it might still accept the appellant’s out of court statements to the effect that he was with Mr Fedayee at the relevant time. Plainly, it was for the jury to evaluate the significance, if any, of Mr Fedayee’s admitted inaccuracy.
I can find no fault with the way in which the defence case was left to the jury.
Ground 3 – Irregularity in the trial
During the trial, what might be called an irregularity arose. It was dealt with by presenting the jury with some agreed facts and by directions about it given by the Judge. Both counsel were in agreement as to this course. The appellant now complains that the appellant’s defence was irreparably damaged by this event and that a miscarriage of justice resulted.
Prior to the defence witness, Mr Fedayee, commencing his evidence, the prosecutor overheard defence counsel talking to him. The prosecutor heard defence counsel tell Mr Fedayee that the witness Mr Tavaselli had said in evidence that on a particular day Mr Fedayee had visited V’s home three times. The prosecutor raised this issue with defence counsel privately and it was agreed between them that the prosecutor could cross-examine Mr Fedayee about this single issue without objection.
Having cross-examined on the single issue, the prosecutor began to go further. The prosecutor began to explore what else Mr Fedayee knew of what the previous witnesses had said. This cross-examination occurred without the prosecutor having been advised by the appellant’s counsel that anything beyond the single issue had been revealed to the witness. It is common ground that this further cross-examination should not have occurred. It ran the risk of causing the jury to think that the appellant’s counsel had done something improper, which, true or not, could have compromised the trial. Appropriately, the Judge intervened and suggested that both counsel take advice. Both did so over the lunch break. When they returned to court the way ahead had been agreed. Admissions of fact had been formulated covering what had occurred and those facts were then read to the jury. Those facts were as follows:
Prior to the evidence commencing on 11 November 2016, defence counsel brought Mr Fedayee into courtroom 5 at the Sir Samuel Way building to show him the witness box and to discuss the arrangements for being sworn as a witness and giving evidence. In the context of that conversation, defence counsel inadvertently said to Mr Fedayee ‘[Mr Tavaselli] said you had visited [V’s house] three times’.
Defence counsel has not told Mr Fedayee of any other aspect of any witness’ evidence.
The prosecution is not suggesting in any way that defence counsel has acted improperly.
Once the agreed facts were read the Judge immediately directed the jury not to draw any adverse inferences against the appellant, or to act on the basis that there had been any improper conduct by the appellant’s counsel or anyone else associated with the defence case.
There was no application for a mistrial, or any complaint about the directions. Mr Fedayee’s evidence then proceeded. A similar direction was given in the summing up.
The appellant now claims that the defence case was irreparably harmed by these events. It is put that presentation of the agreed facts effectively asked the jury to accept a fiction. First, they were asked to accept that there was no suggestion of impropriety by defence counsel, when that was a clear implication arising from the cross-examination. Then, Mr Fedayee had said that he was told more than merely the single issue; that he was also told by defence counsel that Mr Tavaselli said “he introduced himself to [Mr Fedayee] to talk about [the appellant]”. The agreed facts were contrary to this evidence.
The appellant’s counsel submitted that in this way the agreed facts effectively played defence counsel and Mr Fedayee against each other. In all, it was put that the situation was “unsalvageable”. Although it was acknowledged that those involved might be seen to be in the best position to determine the appropriate response to what happened, these events put the trial beyond redemption.
Several matters should be emphasised. When the course of evidence was interrupted, it was interrupted by the trial Judge. It was she who anticipated where the questioning might lead. It was she who suggested that each side should seek advice, the prosecutor from a senior prosecutor, and defence counsel from senior counsel. Each said he did. It was they who jointly proposed the antidote of agreed facts. It may be assumed that the question of a mistrial was privately canvassed and rejected. The failure to seek a mistrial is significant. The appellant is bound by the course of the trial: Nudd v The Queen (2006) 80 ALJR 614.
Furthermore, I do not agree that the course taken could not restore the position. There was every reason to believe that the agreed facts, together with her Honour’s immediate direction to the jury – not to infer any impropriety on the part of counsel – did just that. Plainly the Judge thought so, and her assessment of the situation is important, since it was she who raised the issue.

In my view the single issue argument has even less force. Considering the insignificance of the second thing allegedly said by defence counsel, relating to Mr Tavaselli introducing himself to Mr Fedayee, the jury would hardly have been surprised that it did not warrant mention in the agreed facts. It was not a matter of dispute between the defence witnesses and was of no interest to the prosecution. Indeed, the only inference open from the agreed facts was that counsel had not told Mr Fedayee of this matter. That counsel and the Judge let that aspect of the matter fall away demonstrates that nothing turned on it.
The appellant further argues that the “stain” against Mr Fedayee’s credibility or reliability caused by the prosecutor’s inappropriate cross‑examination, was further darkened by the suggestion to Mr Fedayee that the appellant himself had told the witness what to say in evidence. But of course, on the prosecution case, Mr Fedayee was falsely providing an alibi for the appellant. If that were true, that would necessitate an agreement between them that he would tell certain lies to the Court. As a matter of fairness, a suggestion along those lines needed to be put to Mr Fedayee. The appellant can hardly complain of that.
In my opinion the course taken by counsel, with the imprimatur of the Judge, was appropriate and effectively addressed any risk of a miscarriage arising from the cross-examination.
Ground 5 – discreditable conduct evidence and directions
It is convenient to set out the terms of this ground:
5.The learned trial Judge failed to direct the jury as to the permissible uses and impermissible uses of “discreditable conduct of evidence” before the jury, as required by s 34R of the Evidence Act 1929 (SA) and, in particular:
a.     Failed to adequately direct the jury as to the permissible uses of evidence concerning the nature of the appellant’s relationship with the complainant in the context of counts 1, 2 and 3.
b.    Failed to direct the jury as to the permissible and impermissible use of evidence that the appellant had threatened to kill [V’s sister], the alleged victim of count 4, in November 2013 at the complainant’s parents’ house.
c.     Failed to direct the jury as to the permissible and impermissible use of evidence concerning the history of the appellant’s relationship with the complainant when considering count 4, in the context of having not directed the jury that the evidence was inadmissible as to count 4.
d.    Failed to adequately direct the jury as to the permissible and impermissible uses of evidence that the appellant had breached conditions of bail or been in jail.
The discreditable conduct evidence may be summarised as follows. The appellant forced V to give him money and hit her daily and sometimes twice a day for this purpose. He forced her to give him money every fortnight. One example of the appellant hitting V was in November 2013 when he took her first aid certificate and hit her on the left ear. V fell down on the floor and the appellant hit her leg and her body. V called the police and the appellant was arrested. An intervention order was issued. The day after his November 2013 arrest, the appellant attended V’s parents’ home armed with a knife and (a) demanded his wife back, (b) threatened to “kill you all”, (c) threatened to kill V’s sister, and (d) slashed his wrist with a knife. The appellant continued to follow V after the intervention order was issued. The appellant’s witness Mr Fedayee said that he was told the appellant had breached the conditions of the bail he was placed on at the end of November 2013. The appellant was in gaol after the events of 27 January 2014.
This evidence was admitted under s 34P(2)(a) of the Evidence Act 1929 (SA). It was not admitted as propensity evidence under s 34P(2)(b). The obligation which fell upon the Judge in terms of directions about such evidence derives from s 34R which is in these terms:
34R—Trial directions
(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2)[Not relevant]
The directions required by s 34R will be dictated by the circumstances of the case and the real issues in the trial. In Perara-Cathcart v The Queen (2017) 91 ALJR 411 the plurality put the proposition as follows:
[53] ... Whether [the] directions conform to the requirements of s 34R(1) can only be determined having regard to the real issues in the case. In Huynh v The Queen, French CJ, Crennan, Kiefel, Bell and Gageler JJ reiterated that the general responsibility of the trial judge to direct the jury on matters of law is as stated in Alford v Magee; that is, the trial judge is obliged:
“to decide what the real issues in the case are and to direct the jury on only so much of the law as they need to know to guide them to a decision on those issues.”
(Footnotes omitted)
In her summing up the Judge addressed the obligation arising from s 34R in this way. First, her Honour instructed the jury about the general principle that evidence of other criminal acts is not usually before the jury, and the reason for that rule. Next, the Judge reminded the jury of V’s evidence raising prior discreditable conduct. The Judge then explained a number of aspects of the permissible use of the evidence, which was essentially related to enabling a better informed evaluation of the evidence of V. The Judge also instructed the jury that it should not employ any use of the evidence unless satisfied beyond reasonable doubt of it. This was unduly favourable, but nothing turns on it. The Judge then outlined the impermissible uses of the evidence. The jury was warned that it could only convict on the basis of evidence going directly to the particular count under consideration, and that it should not reason from the earlier conduct that the appellant was the sort of person who would likely commit the charged offences. The jury was also told that the evidence that the appellant has been in custody for a time and that he might have breached his bail must not be used to found a conclusion that he was the type of person who would commit the charged acts. The direction is set out as Appendix A to these reasons.
Against these quite extensive directions complaint is made that they lacked the necessary level of detail and failed to identify relevant uses in terms of the different stages of the history of events before the jury. Further, it is put that the directions failed to link the permissible and impermissible uses of various aspects of the discreditable conduct evidence to each count. Particular reference in this regard is made to the relevance of the discreditable conduct evidence to count 4, the charge concerning V’s sister.
In my opinion the directions were both clear and sufficiently detailed. I refute the suggestion that in this case the Judge needed to itemise each aspect of discreditable conduct evidence occurring on the different occasions and to identify its potential relevance to each count. Bearing in mind that the relevance of the evidence was to credibility only and that the discreditable conduct evidence bore on counts 1 to 3 in the same way, there was no need to distinguish between counts. It was enough to summarise the relevant evidence, to explain the general principles and to identify, in a general way, the manner in which the evidence might and might not be used. It was for the jury to determine whether the discreditable conduct evidence could assist them in their consideration of the matters which fell for determination. The purpose of s 34R and of the common law obligation which it enshrines is to explain that of which the jury would be otherwise ignorant: the strict approach of the criminal law to the admission, use and misuse of evidence of discreditable conduct on occasions other than those charged. It is not to instruct the jury in logic.
A separate aspect of the incident which followed the appellant’s arrest in November 2013 was the threat which V’s sister described as being made to her on the same occasion. She gave evidence that “he told me if I don’t open the door he will kill me, he will kill everyone”. The Judge referred to the threat to the family – which was described by V, her sister and her mother – when she summarised V’s evidence. However, only the sister reported having herself being specifically threatened and that was not mentioned in the summing up. No threat on that November occasion was mentioned in the Judge’s summary of the discreditable conduct evidence, although the occasion itself was summarised as being part of the “other alleged acts, conduct, or events allegedly committed by the accused on the complainant that occurred prior to the charged incidents”. The appellant argues that by omitting reference to these threats to V’s sister in the discreditable conduct direction the Judge failed in her duty under s 34R.
Before addressing that specific complaint I would make two points. First, the sister’s account of the events in November, 2013 was not disputed in the cross‑examination of her. It appeared that the appellant had no quarrel with this aspect of her evidence. Neither was V cross-examined to suggest that her account of that incident was wrong. Second, counsel did not highlight this aspect of the evidence. Defence counsel made no reference to it at all. That is not really surprising in light of the defence being that the appellant was not at V’s home on the charged occasion.
Applying the general directions on the discreditable conduct evidence to the evidence of the threat to the sister would result in the jury using the evidence to place all the events in context and using it to explain aspects of the behaviour of V, the sister and indeed the appellant on the charged occasion. The same directions against misuse were appropriate to the sister’s evidence of the threat towards her. Therefore, to the extent that the jury would have understood the directions to apply to the sister’s evidence of a threat to her, the directions were appropriate.
However, the directions did not literally cover the sister’s evidence of the earlier threat to her. The appellant argues that s 34R obliged the Judge to deal with this evidence. This was a failure to comply with the section and an error of law. For the following reasons I am satisfied there was no substantial miscarriage of justice. First, if the jury considered this evidence, they would have applied the discreditable conduct directions to it. In particular I consider they would have applied the broad warning against propensity reasoning. The principle had been clearly explained, as had the warning. In my view the failure to refer to this evidence and to direct on it could only have worked in the appellant’s favour. Directions on it would only have reinforced the consistent nature of the appellant’s behaviour towards members of the V’s family. But perhaps more importantly, the threat of which the sister spoke was very far from the central matter for the jury’s decision: was the appellant at V’s house on the charged occasion. If the jury found that he was, then guilty verdicts were almost inevitable. In relation to that issue the evidence of V, her sister and her mother about that occasion was critical. It was no doubt for this reason that counsel all but ignored the sister’s evidence of the earlier threats. Reaching a settled view about it was neither necessary nor helpful. With those considerations in mind I am satisfied that, even if directions about the sister’s evidence of the earlier threat should have been given, there was no substantial miscarriage of justice.
Finally, the appellant argues that the discreditable conduct evidence given by V was not admissible with respect to count 4, the threat against V’s sister. I consider that argument to be, quite simply, wrong. Even in the manner in which the Judge confined the permissible use of the evidence – to V’s credit – it was admissible, since V was a witness to count 4.
Section 34R imposes an obligation on a trial judge. Failure to comply with it is an error of law. No permission to appeal is required. I find that the Judge complied with the obligations upon her, except in relation to the sister’s evidence that she was specifically threatened on an earlier occasion. In relation to that error, I find that no substantial miscarriage of justice has actually occurred: s 353 Criminal Law Consolidation Act 1935 (SA).
Grounds 6 and 7 – case to answer on count 3 and directions on the evidence
Count 3 alleged an offence of aggravated threatening life. The particulars of the charge specified that the matter of aggravation was the use of “a piece of rope when committing the offence”. When the prosecuting counsel opened his case to the jury he said that:
Count 3 relates to the accused putting a rope around [V’s] neck and saying to her that he would kill her… If you are satisfied that the accused did threaten [V’s] life by a combination of putting a rope around her neck and saying that he would kill her, you would need to consider whether the offence is aggravated because he used that rope.
It appears from that statement that the prosecution case on this count was that, while placing a rope around the complainant’s neck, the appellant said he would kill her. Therefore the case on this count appeared to be based on the combination of the two actions, namely the placing of the rope around the complainant’s neck and the uttering of a threat to kill. However, when V gave evidence she was not asked whether any threat was uttered in the period that the rope was around her neck. The complainant’s sister, who was an eye witness, said that no such threat was uttered.
When he addressed the jury the prosecutor drew the jury’s attention to the fact that the complainant had not given evidence in support of what he had put in his opening address. He noted that there was no evidence one way or another from V as to whether such a threat had been made at that time. The case on this count was left to the jury on the basis that the placing of the rope around V’s neck itself established a threat to kill.
The appellant argues that an offence based on this evidence was a different offence from the one particularised by the prosecutor in his opening. Therefore, it is said, there was no case to answer on count 3 and there has been a miscarriage of justice as a result.
I do not agree that there was no case to answer on count 3. The charge as particularised and as opened upon had two components amounting to the actus reus. One was the suggested verbal threat to kill and the other was the simultaneous placing of the rope around V’s neck. If it were to be suggested that these acts amounted to two offences and that the charge as particularised was bad for duplicity, then the time to raise such an objection was then, rather than now: s 281 Criminal Law Consolidation Act 1935 (SA). The different nature of the two acts only matters, at this stage and in this context, if the placing of the rope around the complainant’s neck could not in law amount to an offence of threatening life.
The case can be likened to one where one assault is charged, but is based on two blows delivered in rapid succession. If the victim asserts that only one blow was delivered, then the case may proceed to the jury on that basis.
While the act of placing a rope around a person’s neck would not usually be charged as an offence of threatening life, and would more usually attract a charge of assault or something more serious, it seems to me that the jury was entitled to take the view that the act did amount to a tacit threat to kill.
It is noteworthy that no submission of no case to answer was made by defence counsel then acting. I consider there was a case to answer on count 3.
Although in summing up the Judge did not specifically refer to the fact that the complainant had not come up to proof, prosecuting counsel had referred to that fact in his final address. It would usually be assumed that the jury noted the deficit. However, in directing the jury on this count her Honour may have inadvertently clouded the issue in the course of setting out the elements of the offence. I reproduce the direction:
The third count on the information is a count of aggravated threatening life. There are five elements to this offence. The prosecution must prove that the accused made a threat to kill. In this case the Crown relies upon the words and conduct of the accused in saying that he was going to kill [V] and then placing the rope around her neck.
In order to prove that this was a threat to kill, the prosecution would need to prove that this was indeed a threat that the made to kill her. The prosecution will need to prove that it was a threat made seriously and that he was not just sounding off in the circumstances.
However, the prosecution need not prove that he did in fact intend to kill her at that time. The intention that the Crown must prove is contained within the third element. His intention must be that at the time that the made the threat to kill her by words or conduct he intended to arouse a fear in her that the threat would be or was likely to be carried out or that he was recklessly indifferent, that is that he turned his mind to whether or not that fear would be aroused and determined to carry on nevertheless.
I now want to go back to the second element and that is that the accused threatened the life of … [V]. Let me remind you of what she said to you in relation to this alleged offence. She said that she had been in the bedroom for about five minutes before he put the rope around her neck. During that time he was saying to her ‘I’m going to kill you, take back your statement to the police’, and ‘I want you back’.
He then put the rope around her neck for about 20-25 seconds. She said he pulled the rope and she had difficulty breathing. In this case there was also an aggravating circumstance. This must also be proven beyond reasonable doubt. This aggravating circumstance is that he used an offensive weapon, namely a rope, when committing the offence.
(Emphasis added)
The first part of the direction is correct. The potential for error arises from the italicised part of the direction.
The appellant argues that the effect of the prosecutor’s address and the summing up was to leave an alternative pathway to guilt. As I have already observed, I see no unfairness where a composite act is charged and opened upon, but where the witness does not come up to proof on part of the charged conduct. The appellant also argues that the verdict gives rise to uncertainty; that the jury may have based its verdict on the threats which V said were uttered in the five minutes leading up to count 3, combined with the act of placing the rope around V’s throat, or only on the application of the rope without more.
I do not consider that there is any difficulty with the latter eventuality. There was no difficulty in the jury using the earlier threats to give colour and content to the act of placing a rope around V’s neck. The guilty verdict indicated an acceptance of V’s evidence that a rope was put around her neck and that amounted to an offence of aggravated threatening life, as charged.
The only potential for confusion that I perceive arises from the italicised portion of the direction and the use of the words “words or conduct” in relation to the threat. Could the inclusion of the words “words or” have misled the jury into thinking the case on count 3 remained as it was put in the prosecutor’s opening?
In my view, it would have been better had the Judge reminded the jury of the specific evidence on which count 3 finally rested. However, I do not consider that any risk remains that the jury overlooked the deficit in the evidence. The trial was short and the evidence straightforward. As mentioned, counsel for the prosecution had recently reminded the jury of V’s failure to describe a threat occurring contemporaneously with the rope being around her neck. Counsel did not complain of any lack of clarity or deficit in the summing up. The jury accepted the evidence of V and her sister and accepted that the rope was used as described. I am not persuaded that any risk of a miscarriages arises.

I find that neither ground 6 nor 7 is made good.
Conclusion
For the foregoing reasons I would grant permission to appeal on ground 3, but I would dismiss the appeal.
Appendix A
I now move to another topic that relates to the accused in this matter.
The general rule of our law is that evidence that an accused has previously been alleged to have committed other criminal acts, or is otherwise of bad character, is not admissible in a criminal trial.
The rule is that his guilt must be proved by evidence in respect of the conduct that is alleged against him in this trial.
Your verdicts are not to be influenced, nor are you to be prejudiced by anything arising from his past. In this trial you have heard evidence of other alleged acts, conduct, or events allegedly committed by the accused on the complainant that occurred prior to the charged incidents.
These acts are not the subject of any charges. In this regard you have heard evidence that the accused demanded money from [V] and that he would hit her in order to get her to give money to him.
She also gave evidence that there was an incident in November 2013 when he took her first aid certificate and would not give it back to her unless she paid for it. She said that the accused asked her to pay more than $100 to get it back. She said she was not going to pay him and then he started to hit her, he hit her on the left ear she said, and she fell to the floor. She said he was hitting her on the leg and body and she said she nearly died. She said she was unable to hear after he had hit her on the ear.
She gave evidence that she called the police on that occasion. They came to the house and they arrested the accused. As a consequence of this complaint an interim intervention order was put in place. You have some of the terms of that intervention order in the agreed facts.
[V] said that, on the day after the accused was arrested, he got bail and he came to her parents’ house. She went on to say that he had a big knife with him and was hitting the door and kicking it. He was shouting ‘Open the door’ and said he wanted his wife back. She went on to say that her father was coming back from the Afghani shop and the accused followed her father into the back of the house and that the accused was then told to leave the house.
[V] told you that, whilst the accused had been at the front door, he began to cut his wrists with the knife and there was a lot of blood. None of these acts are the subject of the charges before you.
As I said, usually in a criminal trial evidence of other alleged crimes does not come before you. However, in this case, you have heard this evidence because it is potentially helpful to you in evaluating the complainant’s evidence, that is the evidence of [V]. Hearing the whole of the allegations may better enable you to assess her evidence. The whole of the alleged course of conduct provides a context in which it is said that the charged incidents occurred. In a sense, the more evidence you have of the interaction between her and the accused, the better opportunity you have to evaluate her evidence and determine to what extent, if any, you are prepared to rely upon it.
In that way it can be said that the whole sequence of events throws light on the nature of the entire relationship that the complainant said existed between her and the accused at the relevant time.
You should consider the evidence of the uncharged incidents, along with the evidence going directly to the charges, in determining what weight, if any, you are prepared to place on [V’s] evidence. Evidence of the uncharged acts is available to you as material that may assist you in concluding that her evidence is reliable. Alternatively, it may assist the defence in showing inconsistency or unreliability or inherent improbability in her evidence and thereby raise doubts about the charges. In this particular regard the prosecution point to this evidence to show why the accused would have attended at [V’s] house uninvited, and it may provide a motive for him to have committed the charged offences.
It also, of course, may explain the background against which the charged offences came about. If you did not have this background material then the charged offences may otherwise have seemed unreal, unintelligible, not fully comprehensible. It may also explain why the complainant’s sister went with her to the house on the occasion when the offences were allegedly committed. It may also explain why it was that the police were not called until the complainant and her sister were safely back at their parent’s house.
These are the proper uses for this evidence of the uncharged incidents. They are the only way in which you may use the evidence. Of course, you should not use any of the uncharged incidents at all unless you first of all accept that they have occurred. In this regard, you will need to consider all of the evidence that goes towards the uncharged acts and consider whether you are satisfied beyond reasonable doubt that these incidents did in fact occur.
If you are so satisfied, then you may use them in the way that I have described for you.
I must also direct you that there are certain impermissible uses of this evidence. I direct you that the fact that allegations are made about other occasions when the accused may have committed other offences does not in any sense absolve you from the task of determining whether the charges themselves have been made out. It would be wrong for you to say in effect that you are satisfied that the accused had assaulted [V], hit her, or threatened her at some stage, and ‘we will therefore convict him’.
It would be wrong for you to conclude on the uncharged conduct that the accused is the sort of person who would be likely to commit the offences with which he is charged. Remember: it is the evidence presented in proof of the charges themselves that are critical evidence in this trial. Evidence of the other uncharged incidents is given only to assist you in your evaluation of the evidence going directly to those charges.
Ultimately, it is upon the charges themselves that you must deliver your verdicts.
In this trial, you have also learnt that the accused was in custody for a time and that he may have breached his bail. In a similar way it would be quite wrong of you to conclude that he was the type of person who would commit the charged acts as a consequence of those things. Such reasoning would be most unfair and could lead you into error.
PARKER J: I agree with the reasons of Vanstone J and the orders that her Honour proposes.
LOVELL J: The circumstances of this appeal are set out in the reasons of Vanstone J. I agree with the reasons of Vanstone J and the orders she proposes. I add the following reasons relating to ground 1 of the appeal.
The day after the offences were committed the appellant attended the Elizabeth Police Station. He participated in an interview during which he informed the police of his alibi. His statement was totally exculpatory. The interview itself was not before the jury and a summary of his statement was admitted by way of agreed facts. The question of his reaction when first “taxed” with the allegations clearly did not arise given that the appellant’s statement came before the jury by way of the agreed facts.
The question of admissibility of the totally exculpatory statement does not arise on this appeal.[1] However, it is difficult to see the relevance on the prosecution case of this statement of agreed facts. It contained no admissions. The appellant, if he intended to adduce evidence of alibi at trial, was required by s 285C of the Criminal Law Consolidation Act 1935 (SA) to give a notice of his proposed evidence of alibi. It is extremely doubtful that his statement to the police constituted proper notice. Section 285C(7) authorises a certificate, signed by the Director of Public Prosecutions, regarding receipt or non-receipt of a notice to be tendered. No certificate was tendered.
[1] R v Helps (2016) 126 SASR 486 [377]-[409] (Lovell J).
However, s 285C does not authorise the tendering of an alibi notice itself. In R v Henstridge & Ors,[2] the Court held that the alibi notice could be tendered as, on the facts of that case, it was said to be a statement against self-interest. Assuming that factual basis to be correct, then the relevance and the admissibility of the alibi notice is obvious. However, here there could be no suggestion that the statement by the appellant to the police was a statement against self-interest.
[2] (1998) 198 LSJS 147, 165.
The appellant’s counsel at trial, as he was entitled to do, took advantage of the agreed statement of facts and urged the jury, on two occasions, to accept the truth of the exculpatory and untested hearsay statements of the appellant relating to his alibi.
Counsel said to the jury:
He told the Police exactly what happened on 27 January 2014. He gave them Mr Fedayee’s details. Isn’t that what you would expect an innocent man to do?
Later in his address, counsel said:
That man told the Police all of that on 28 January 2014. Didn’t say “No, I want my solicitor. I’m going to exercise my right to silence.” He spoke to Police, he told them what had happened.
As the agreed facts were before the jury and given the approach of the appellant’s counsel during his address the Judge was obliged to give some direction in relation to the statement of agreed facts and the use that the jury could make of it. As the appellant was relying on the truth of the assertions, it was open to her Honour to explain to the jury that what he said to the police was not on oath, un-tested by cross-examination and self-serving. That was an accurate description of the evidence. The Judge directed the jury that they could give “such credit to the accused as you see fit for having made those statements to the police”. This was consistent with her earlier direction that the question of the weight to be given to the evidence was a matter for the jury. Further, the Judge directed the jury that they could take the appellant’s statements into account in considering whether the prosecution have proven the case against the accused beyond reasonable doubt. Her Honour’s directions were consistent with the High Court decision of Mule v The Queen.[3]
[3] (2005) 79 ALJR 1573.
A judge’s directions or comments to the jury must not deflect the jury from its fundamental task of deciding whether the prosecution have proved the elements of the charged offences beyond reasonable doubt.[4] The Judge here made it clear that the weight to be given to the evidence was a matter for the jury and further she made it clear that the onus of proof remained at all times on the prosecution.
[4] Hargraves v The Queen (2011) 245 CLR 257.
Experienced counsel made no complaint about the directions at the end of the summing up.
In my view there is no merit in ground 1.