R v Tulisi

Case [2008] SASC 306

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TULISI

[2008] SASC 306

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Vanstone and The Honourable Justice David)

12 November 2008

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IRREGULARITIES IN RELATION TO EXHIBITS

Appellant appealed on several grounds against conviction and sentence on charges of conspiracy to commit assault occasioning actual bodily harm, aggravated serious criminal trespass in a place of residence and unlawful wounding – tried together with co-accused - First ground complains that the jury were mistakenly supplied with photographs that had not been tendered – not discovered until after jury had retired to consider verdicts – trial judge directed jury to ignore the photographs – whether one of the photographs was prejudicial to the appellant and if so, whether the direction adequately addressed this.

Held: No risk jury would have ignored trial judge’s direction to disregard photographs – no prejudice to appellant in any case.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES - POWER OF CROWN TO CALL OR REFUSE TO CALL WITNESSES - DISCRETION OF CROWN - GENERALLY

Second ground complains that the prosecutor did not call or present for cross-examination by defence a witness who may have been present at the scene of the alleged assault – prosecutor regarded witness as not a witness of credit and as having reason to falsify his account because of his involvement – witness called as part of appellant’s case and cross-examined by prosecutor – whether miscarriage of justice resulted from prosecutor’s decision.

Held: No miscarriage of justice occurred – sufficient basis for prosecutor to conclude witness was not a witness of credit and had reason to lie.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING UP

Third ground complains that the trial judge provided to the jury written directions which were deficient in relation to the conspiracy count – directions summarised in detail the prosecution case but made no reference to the defence case – following complaint from defence counsel, the trial judge orally summarised the essential elements of the defence case in relation to the conspiracy count – later the trial judge provided an addendum to the written directions which gave a brief and general written summary of the defence case – whether the written directions were inadequate.

Held: A written summary of facts is a permanent record and the potential for jurors to focus on such written directions should be borne in mind – written directions on conspiracy were deficient but no substantial miscarriage of justice resulted when considered in the context of the summing up as a whole.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES - POWERS OF JUDGE - LEAVE TO RE-OPEN CASE AND RECALL WITNESSES - EVIDENCE BY CROWN IN REBUTTAL

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL -…

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AGLC
R v Tulisi [2008] SASC 306
Case
[2008] SASC 306
Decision Date

CaseChat Overview and Summary

In the case of R v Tulisi, the appellant was convicted of conspiracy to commit assault occasioning actual bodily harm, aggravated serious criminal trespass in a place of residence, and unlawful wounding. The case was heard by the court of appeal where the appellant contested his conviction and sentence on several grounds. The first ground of appeal was that the jury were mistakenly supplied with photographs that had not been tendered and were directed to ignore them. The second ground was that the prosecutor did not call a particular witness who may have been present at the scene of the alleged assault. The third ground was that the trial judge provided to the jury written directions which were deficient in relation to the conspiracy count. The fourth ground was that the trial judge allowed the prosecution to call evidence in rebuttal. The fifth ground was that the trial judge erred in leaving an email to the jury as evidence affecting the credit of a defence witness. The sixth ground was that the trial judge erred in his direction as to the possibility of different verdicts on the conspiracy charges against the two co-accused.

The court considered each ground of appeal and found that no substantial miscarriage of justice had occurred. The court found that the trial judge's direction to ignore the photographs was sufficient to ensure that the jury would not be influenced by them. The court found that the prosecutor had a sufficient basis to conclude that the witness was not a witness of credit and had reason to lie. The court found that the written directions on conspiracy were deficient but no substantial miscarriage of justice resulted when considered in the context of the summing up as a whole. The court found that the trial judge did not err in permitting the prosecution to call evidence in rebuttal and that the probative value of the evidence outweighed any prejudicial effect. The court found that it was not open to leave the email to the jury as something which could be used to assess the defence witness’ credibility and that no miscarriage of justice resulted from its admission. Finally, the court found that the trial judge erred in his direction as to the possibility of different verdicts on the conspiracy charges against the two co-accused and that the verdicts on conspiracy were inconsistent. The appeal was allowed on this ground and the conviction for conspiracy was quashed and a finding of not guilty was entered on this count.

The court confirmed the sentence of imprisonment for six years on other counts and substituted a non-parole period of four years.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I would dismiss this ground of appeal.The calling of evidence in rebuttal The appellant claimed that he purchased the gloves and duct tape from Bunnings in Sydney and had these items in his possession in Adelaide because he was due to commence employment in Sydney at 6.00am on the following Monday, when he returned to Sydney. The appellant contended that the trial judge erred in permitting the prosecution to call rebuttal evidence from two witnesses who gave evidence which was relevant to the appellant’s claim. The prosecution did not dispute the fact that the appellant had enquired about employment at the premises of Toll Personnel (“Toll”), a labour hire service in Sydney, on the Thursday before he left for Adelaide. However, the prosecution disputed the assertion by the appellant that employment had been arranged for him and that he was due to commence that employment on the Monday morning. After the close of the defence case, the prosecution applied for permission to call Mr Barnard, a former employee of Toll, and Mr Merchant, Toll’s State Manager for South Australia and the Northern Territory. These witnesses were called to establish that the appellant had not been assigned employment and, in particular, that it had not been arranged for him to commence employment on the Monday. The appellant stated in evidence that he was to be employed as a forklift driver. The rebuttal evidence was called to prove that, if he had been employed in this capacity, he would have had to produce a forklift driver’s licence and a “blue card”, which is an occupational health and safety certificate. In the ordinary course of business these documents would have been scanned and saved to the company’s computer records. According to the evidence, neither of these documents had been recorded. Evidence was also given that gloves were supplied to forklift drivers by Toll, and these gloves are leather gloves, not cotton gloves like those found on the appellant. It was argued that the trial judge should not have permitted this evidence to be called. In The Queen v Chin[12] Gibbs CJ and Wilson J referred to the principles which govern the admission of rebuttal evidence. They said in their joint judgment:[13]The principles that govern the exercise of the discretion of a trial judge to call evidence after the close of the case for the defence have been discussed in this Court in Shaw v The Queen[14]; Killick v The Queen[15]; and Lawrence v The Queen[16]. The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant: Reg. v Levy and Tait) and the need to give it could have been foreseen it will, generally speaking, be rejected.[12] (1985) 157 CLR 671[13] Ibid at 676[14] (1952) 85 CLR 365[15] (1981) 147 CLR 565[16] (1981) 38 ALR 1

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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