R v Thompson - [2005] SASC 189

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v THOMPSON
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Layton)
26 May 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Appeal against conviction for two counts of false imprisonment, common assault and assaulting a police officer - whether trial judge erred in allowing questions in cross-examination about prior attendances of police officers at the appellant's house - whether the questions tended to show the appellant was of bad character - whether the questions were unfairly prejudicial to the appellant - whether appellant received a fair trial - whether the statement made by the appellant to a police officer was more prejudicial than probative - appeal dismissed.
Evidence Act 1929 (SA) s 18(1)(d), referred to.

R v THOMPSON
[2005] SASC 189
Court of Criminal Appeal: Gray, Sulan and Layton JJ

THE COURT: This is an appeal against conviction.
The appellant was convicted by jury verdict following a trial in the District Court of two counts of false imprisonment, of common assault, and of assaulting a police officer.
Background
The appellant is paraplegic. He has been in a wheelchair since about 1999, when injured in a fire. He also suffers from asthma and, at times has problems with breathing. He resides at the premises at Hillcrest.
On the morning of 21 September 2002, the appellant was having difficulty breathing. He telephoned emergency services on 000 and asked for an ambulance to attend. Ambulance officers, Mardy Lee Hunt and Meika Joy Kellow, responded to the call. At the same time, Mrs Hunt requested police assistance.
The ambulance officers arrived at the appellant’s home at about 6.30 a.m. On arrival, they observed the appellant through a screen door inside the house. Mrs Hunt had attended at the premises on an earlier occasion. She was aware that the appellant used a wheelchair. The ambulance officers entered the premises. Mrs Hunt conducted an examination of the appellant. After the ambulance officers had been at the premises for about ten minutes, police officers arrived.
Constable Duance attended, together with Constable Thomas. One of the officers opened the front screen-door of the house, and observed the two ambulance officers in the front foyer. The appellant was seated on the ground next to the two ambulance officers. Constable Duance asked whether he and his colleague could be of any help.
Constable Duance gave evidence that the appellant became extremely aggressive and commenced to yell abuse at the police. The appellant moved towards the officers by dragging himself along the floor. Constable Duance stepped outside onto the porch area. The appellant moved towards the front door. He beckoned the police officers to come closer. He then spat at Constable Duance. Mucus landed on the officer’s right arm. The appellant continued to abuse the officer. The officer let go of the screen-door, and the appellant pulled the screen-door shut and locked it. The appellant then shut the wooden front door.
The appellant said to the ambulance officers that he was not going to let them out the front door, because he wanted them to help him; he did not want them to leave, and he would not let them out. The evidence of the ambulance officers was that they were in fear of what might occur. The appellant was sitting near the front door.
The ambulance officers moved towards the lounge area to a sliding door, and tried to get out through that door, but it was locked. The appellant had followed them into the lounge. One of the police officers could be seen outside. At that stage, the appellant grabbed Mrs Hunt around the middle of her thigh. She began to scream. There was a commotion, and the appellant released his grip sufficiently for Mrs Hunt to be able to pull her leg away. She ran to the front door and unlocked both the wooden door and screen-door. She and Ms Kellow left the house through the front door.
Constable Duance gave evidence that he saw the ambulance officers trying to open the sliding door, and he began to bang on the door. He observed Mrs Hunt struggling free. At that stage, Constable Duance was attempting to get through a window. He ran to the front of the premises, where he observed the two ambulance officers at the front with Constable Thomas. He entered the house. The appellant was agitated. By then, other police officers had arrived and attempted, unsuccessfully, to speak to the appellant. He was mumbling, and appeared to be agitated.
The appellant had held the two ambulance officers in the house against their will, resulting in the two charges of false imprisonment. The act of grabbing Mrs Hunt’s thigh was the basis of the assault charge.
Eventually, the police escorted the appellant from the house. The police were unable to place him in a police vehicle, so they called for a taxi which was equipped to convey wheelchair-bound people. Whilst they were waiting for the taxi to arrive, the appellant told Constable Duance in mumbled words that he:
…wanted a full-time carer and, if he didn’t get it by this method, which was attacking ambulance officers, he was going to call them again, and this time he would kill them.
The taxi conveyed the appellant to the Holden Hill Police Station where police charged him.
The appellant gave evidence. He said that when the ambulance officers arrived he was having difficulty breathing. He said that they gave him oxygen. About ten minutes later, the police arrived. He said that he did not want the police to enter the house and when they entered the house, he told them he did not want them inside. He denied that he deliberately spat at the police officer.
Continuing with his evidence, the appellant agreed that he had shut and locked both the screen-door and the wooden door. He said that he told the ambulance officers that they could go out through the sliding door. He said he did not want to open the front door because the police would come in. He said that the sliding door was not locked, and it could be pushed open. He said that as he moved to the lounge area the police were knocking on the door. He denied that he grabbed Mrs Hunt by the thigh in the manner in which she described, but said he might have touched her on the leg. He also denied that he ever wanted to hold the ambulance officers against their will.
After the ambulance officers had left the house, the police took the appellant into custody. He said that, whilst they were waiting for the taxi, he was mumbling negative things to the police.
In cross-examination, the appellant continued to deny that he deliberately spat at the police officer. He said that there was often discharge from his throat where a tracheotomy had been performed.
On the topic of the mumbled conversation with Constable Duance while waiting for the taxi, he gave the following evidence:
Q.Do you remember yesterday in evidence that Constable Duance told the court that what you said to him, waiting for the ambulance, was this, at p.143 of the evidence ‘When he’s told me that he wanted a full-time carer and that he was going to get it by taking the ambulance officers, I replied something to the effect of “That’s not the way to do it” and we’ve left it at that. I tried not to talk to him at that point’ and the gist of that conversation was that if you didn’t get a full-time carer it was your intention to call the ambulance officers, because they would have to respond to your request –
A.No.
Q.- and that you would kill them.
A.That is not true. That’s not nice. Why would anybody say that? It isn’t good. I would not say that. I only rang them because I needed help. I rang up. I didn’t ring for any other purpose.
Q.You simply didn’t say that.
A.I did not. For no other reason than an emergency.
Unfair cross-examination
The appellant complains that questions directed towards him in cross‑examination on the topic of attendances by ambulance officers at his home in the company of police prior to the attendance on 21 September 2002 were unfair, and ought not to have been asked.
Prior to the trial, there had been correspondence between the Director of Public Prosecutions and the appellant’s counsel. The Director asked whether the defence would object to the prosecution leading evidence that there was a practice of police attending with ambulance officers to calls at Mr Thompson’s address. It follows, and it was accepted by counsel for the appellant, that he was aware that it was part of the prosecution’s case that police had attended on prior occasions when ambulance officers had been called.
As it transpired, the prosecution did not lead the evidence. The reason for their deciding not to lead the evidence is unclear. Defence counsel was on notice that it was material which the prosecution might seek to introduce.
In examination-in-chief Mrs Hunt gave evidence that upon being informed by the communications centre of the address, she had requested police attendance. This was confirmed also by Ambulance Officer Kellow.
Later Mrs Hunt was asked in cross-examination:
Q.Did you know the address at 11 Fleet Street, Hillcrest.
A.When I was given the information via Communications, I realised where we were going, yes.
Q.You contacted the Police Department yourself; is that right.
A.No, we don’t do that. We asked our Communications to request them.
Q.So whilst you were on your way to that address, is it the case that you contacted your Communications Centre and asked them ‘Have you sent police?’.
A.Yes.
Q.And they said ‘No’, is that right.
A.That’s right.
Q.And you said ‘I want police there’.
A,That’s right.
Q.When you arrived at 11 Fleet Street, the police weren’t there.
A.No.
Ambulance Officer Kellow was also cross-examined:
Q.Were you personally responsible for contacting the Communications Centre to have the police there.
A.Mardy did the consultation with our Communications Centre because I was driving.
Q.Whilst you and Mardy were examining Mr Thompson, you didn’t tell him at any time that the police would be arriving, did you.
A.I can’t recall.
The appellant gave evidence. His evidence-in-chief included the following:
Q.Did anybody else come to your house on that morning.
A.Yes, the police come eventually.
Q.Do you remember how long you were with the ambulance officers before you saw police officers.
A.I think about ten minutes at least.
Q.What did you think when you saw police. What was on your mind.
A.I don’t like them much.
Q.Did you know that the police were going to be coming to your house.
A.No.
Q.Did the ambulance officers discuss that topic at all with you.
A.No.
Q.Where did you first see the police.
A.After the ten minutes or more, they just arrived, and I saw them come toward the front door – like on picture three. I’m not sure if I heard them first or I saw them first. I think I saw them.
Q.What happened when the police arrived.
A.I didn’t want them to come near me and that.
Q.How was your breathing at that time.
A.I think it was a bit – like not as quick. I’d got myself a little bit worked up and that makes me labour more.
Q.When you say you were ‘worked up’, what do you mean by being ‘worked up’.
A.I just get very – like anxiety – and I don’t like the police to come in.
Q.Did the ambulance officers make you feel anxious.
A.No, I had no trouble with them.
Q.But it was the presence of the police that made you feel worked up.
A.Yes.
Q.What did you say to the police.
A.I told them I didn’t want them to come in and talk. I told them no.
When cross-examined, the appellant gave the following evidence:
Q.You’d had dealings with the ambulance officer, the blonde woman as you’ve described prior to this incident, hadn’t you, she’d treated you before.
A.I’m not sure on that. I’ve had a lot of ambulances.
Q.I suggest that she had attended at your place on at least two occasions prior to this incident.
A.I’m not sure on that.
Q.It could be the case.
A.It would be on their records. I have a lot of ambulances a year.
Q.On those occasions, at least one of those occasions she attended with the assistance of the police as with this occasion, do you remember that.
A.No, I don’t remember her before.
Q.Police had attended at your house to assist ambulance officers prior to this incident, hadn’t they.
A.Yes, they had pretty well.
Q.In fact that would occur on most occasions when ambulance officers would attend at your place to assist, would that be fair.
A.Yes. One the first time when this happened and afterwards but I didn’t know when this happened but ever since then they have come.
Q.I would suggest to you that prior to this incident, that is before the court, police attended at your house with ambulance officers.
A.No, not before this.
Q.Sure about that.
A.Yes – well, yes – no. I cannot remember that because this is what caused the police to have to be there.
Q.So you can absolutely say that there is no police attendance simply just to accompany an ambulance officer at your place prior to this incident.
A.I can’t remember, now it’s any time I ring.
Q.But it could have been the case.
A.I don’t remember that. There was no dramas at that stage.
Q.I suggest that police did accompany ambulance officers to your place prior to this incident.
A.I would have to look at their notes.
Q.In fact on the day of this incident you were quite familiar with police simply attending to assist ambulance officers.
A.No.
Q.And so therefore it was no surprise to you –
A.No, they didn’t come before. That was the first time when this situation happened, why I’m in court now.
Q.So you say now your memory is –
A.No, they did not come before that.
Q.So they did not come at all.
A.No. They did not tell me at all. I’d had no warning that any police was going to come.
Q.I suggest to you that police had accompanied ambulance officers prior to this incident and therefore on the day in question, that is – just let me finish the question – on this day it was no surprise to you that the police were to attend with the ambulance officers.
A.You’re wrong because that didn’t happen. They never came before. They don’t make a habit of coming. It was only this trouble that caused this.
Later in his evidence, under cross-examination, he repeated that he did not like the police, that he had had bad experiences with them.
At the conclusion of the cross-examination, the prosecutor sought to lead rebuttal evidence from Mrs Hunt that on at least one prior occasion, police had attended with ambulance officers. The trial judge indicated that he would not permit the evidence to be led, and that he proposed to direct the jury to ignore any evidence of prior attendance or prior trouble at the appellant’s premises. Counsel for the appellant did not press the matter further.
Counsel for the appellant complains in the Notice of Appeal that the questions and answers of the appellant during cross-examination on this topic ought not to have been asked, they were unfairly prejudicial to the appellant and that, as a consequence, he has not received a fair trial.
Counsel for the appellant complained about this evidence on a two-fold basis. First, that it tended to show he was of bad character and second, in the alternative it was unfairly prejudicial. As to the second of those complaints, counsel submitted that prejudice arose because they led to the inference that the appellant called the ambulance officers knowing that the police would attend, and with the intention of creating a situation in which the police would be forced to respond. It was therefore open to the jury to conclude that there was an ulterior motive or plan in calling the ambulance officers, that being to create a disturbance to draw attention to the appellant’s plight. The jury could therefore conclude that the call to the ambulance officers was not a genuine call for assistance.
Counsel for the respondent submitted that the cross-examination should be considered in the context of how the evidence developed. There was no objection to the evidence of the ambulance officers both in examination-in-chief and in cross-examination that Mrs Hunt called for the assistance of the police. There was nothing from which it would be open to a jury to infer that the appellant was either of bad character, or that he had an ulterior purpose or plan in calling the ambulance.
Counsel for the respondent also submitted that the appellant gave evidence‑in-chief of his attitude to the police. It was contended that the cross‑examination complained of did no more than put in context the circumstances in which the police attended; further that the evidence of the appellant about his attitude towards police and whether he was aware that the police might attend, was relevant and unobjectionable in the context in which it was given.
The trial judge told the jury that they:
… must decide the case by reference only to the evidence of what happened in the accused’s house on the morning in question, and not by reference to any suggestion of inappropriate behaviour by Mr Thompson on any other occasion.
The questions that were asked by the prosecutor did not suggest that there had been any inappropriate behaviour by the appellant on prior occasions. Questions were asked in the context of evidence which had been led about the police attendance on the day in question. There was nothing in the questions which suggested that the appellant was of prior bad character. No objection was taken to the questions at the time, and no complaint was made about them subsequently when there was a discussion with the trial Judge about the further evidence of prior police attendance at the premises.
Counsel for the appellant also submitted that the questions were impermissible because they contravened s 18(1)(d) of the Evidence Act 1929 (SA). He suggested that the questions tended to show that the appellant is of bad character.
There is no merit in that submission. The questions put to the appellant suggested that the police had attended on prior occasions with ambulance officers to assist them. At first, the appellant agreed that there had been an occasion or occasions when that had occurred. He then said that he did not have a memory of that and, finally, that it had not happened on a prior occasion. The questions were not suggestive and did not tend to show that the appellant was of bad character. The section was not contravened.
Admission of statement
The appellant complained that the evidence of Constable Duance of the mumbled statement made by the appellant should not have been admitted.
The statement was not recorded by tape recorder or video. The appellant does not contend that there was a failure to comply with s 74D of the Summary Offences Act 1953 (SA).

Counsel for the appellant submitted that the trial judge should have excluded the statement because its prejudicial effect outweighed its probative value. Counsel contended that it was an unguarded statement made when the appellant was highly agitated. It was the mumblings of a person who was not properly considering what they were saying and, therefore, it had no probative value.
The trial judge declined to exclude the evidence. He considered that the statement was relevant to the appellant’s state of mind at the time of the alleged offending, and that the statement could provide a motive or reason for the offending.
Counsel for the appellant submitted that the evidence, when combined with the suggestions by the prosecutor to the appellant in cross-examination that police had attended with ambulance officers on prior occasions, made the evidence suggestive of a plan by the appellant to lure ambulance officers to his home, knowing that the police would also attend, therefore creating a disturbance to draw attention to his plight. Counsel submitted that the unfair prejudice to the appellant was that the jury may have reasoned that he had some wider ulterior plan in mind when he contacted the ambulance service, and that his call for assistance was, therefore, not genuine.
The submission of the appellant has no substance. The trial judge admitted the evidence in order to explain why the appellant might have acted in the manner in which he did that morning. Mrs Hunt had given evidence that she had previously been at the appellant’s home. The jury were aware from Mrs Hunt’s evidence that she had sought assistance from the police. The statement to Constable Duance by the appellant explained why the appellant may have acted as he did, and that this was a way in which to draw attention to his plight.
The judge in summing up explained to the jury how this evidence was relevant, and how it could be used:
You will also remember that Constable Duance gave evidence about something allegedly said by Mr Thompson outside his house while he was waiting for the taxi to take him to the Holden Hill Police Station. Constable Duance said that Mr Thompson mumbled words. He said that he wanted a full-time carer and that if he didn’t get it by this method, which was attacking ambulance officers, he was going to call them again and this time he would kill them.
Ladies and gentlemen, if you accept any of that evidence, you must not use it to reason that because Mr Thompson said he would attack or kill ambulance officers, that he is the type of person who would do so and he is, therefore, the type of person who would commit the offences with which he is now charged. That is not a permissible or fair line of reasoning. You may, however, use that evidence, if you accept it, to determine whether or not Mr Thompson could have had any reason or motive for behaving in the way in which the prosecution said he behaved on the morning in question.
The judge correctly directed the jury about the use that could be made of the evidence, how it was relevant, and how it might be probative. The evidence was relevant, probative, and admissible.
The appeal is dismissed.