R v Tulisi - [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 - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
Fourth ground complains that the trial judge allowed the prosecution to call evidence in rebuttal – on arrest appellant had two pairs of gloves and duct tape in his possession – used by prosecution as circumstantial evidence to support the conspiracy to assault allegation – appellant gave evidence that he had the items because he needed them for employment – prosecution called two witnesses to rebut appellant’s claim – whether trial judge erred in permitting witnesses to be called in rebuttal.
Held: No error – the prosecution could not have anticipated the explanation the appellant gave for possessing the items – the probative value of the evidence outweighed any prejudicial effect.
Fifth ground complains of an email tendered during the giving of rebuttal evidence – prosecutor tendered an email sent to a rebuttal witness from a witness who had given evidence for the appellant – the email could be viewed as an attempt by the defence witness to influence the rebuttal witness – whether trial judge erred in leaving the email to the jury as evidence affecting the credit of the defence witness.
Held: It was not open to leave the email to the jury as something which could be used to assess the defence witness’ credibility – credit is a collateral issue and the defence witness was not cross-examined on her email – defence witness’ evidence provided little support for appellant’s case - no miscarriage of justice resulted from admission of email.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - PARTICULAR CASES - WHERE APPEAL ALLOWED
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT - INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS - GENERALLY
Sixth ground complains of the trial judge’s direction as to the possibility of different verdicts on the conspiracy charges against the two co-accused – the evidence suggested the appellant was the main actor in the alleged conspiracy – evidence of telephone conversations between the appellant and others, which went to proof of the appellant’s intention and state of mind, were ruled inadmissible against the co-accused – trial judge directed the jury that it was open to find one accused guilty of conspiracy and the other not guilty despite the allegation they conspired with each other – jury found appellant guilty and co-accused not guilty – whether trial judge erred in his direction.
Held: The cases against the alleged co-conspirators were not materially and relevantly different – the jury should have been directed that although they were to consider the case against each accused separately, it was not open to find one accused guilty and the other not guilty of conspiracy – the verdicts on conspiracy are inconsistent – appeal allowed on this ground – conviction for conspiracy quashed and a finding of not guilty entered on this count – sentence of three years imprisonment for conspiracy set aside - sentence of imprisonment for six years on other counts confirmed - non-parole period of four years substituted.
The Queen v Apostilides (1984) 154 CLR 563; Whitehorn v The Queen (1983) 152 CLR 657; R v O’Brien (1996) 66 SASR 396; R v Dunn (2006) 94 SASR 177; R v Radford (1986) 133 LSJS 110; The Queen v Chin (1985) 157 CLR 671; The Queen v Darby (1982) 148 CLR 668; Dharmasena v The King [1951] AC 1; Jones & Kelly (1985) 20 A Crim R 142; Mok (1987) 27 A Crim R 438; Ahern v The Queen (1988) 165 CLR 87, considered.

R v TULISI
[2008] SASC 306
Court of Criminal Appeal: Duggan, Vanstone and David JJ

DUGGAN J: The appellant has appealed against conviction and sentence on offences of conspiracy to commit assault occasioning actual bodily harm (“the first count”), aggravated serious criminal trespass in a place of residence (“the second count”) and unlawful wounding (“the third count”). He was charged jointly with a man named Mr Taiwhanua who was found not guilty on the first count, but guilty on the second count. Mr Taiwhanua was also found guilty of unlawful wounding.
Background
It was alleged that the conspiracy took place between 13 March 2006 and 21 April 2006 and that the other two offences were committed on 12 March 2006.
The prosecution alleged that the offences arose out of a dispute between the victim, Mr Bonato, and the appellant, in connection with a drug transaction in which the two men were involved.
At the time of the alleged offences Mr Bonato lived in Adelaide and the appellant resided in Sydney. They had been involved in drug dealing over a period of time and, in February 2006, they were in dispute over a particular transaction. The appellant had deposited $13,000 in Mr Bonato’s bank account so that Mr Bonato could purchase five pounds of cannabis. According to the plan, Mr Bonato was to purchase the cannabis and forward it to the appellant in Sydney. Mr Bonato said in evidence that he purchased the cannabis and made arrangements through a contact in a bus company to forward the parcel to the appellant.
The appellant did not receive the parcel of cannabis. Mr Bonato said in evidence that he assumed the cannabis had been lost in transit. The appellant’s counsel suggested in cross-examination that Mr Bonato did not buy the cannabis and that he used the money to pay off debts. Mr Bonato denied this.
However that may be, a dispute arose between the appellant and Mr Bonato over the non-delivery of the drugs and it was this dispute which led to the events which form the basis of the charges.
After a series of discussions between the appellant and Mr Bonato, the appellant travelled to Adelaide alone on 21 February 2006 and confronted Mr Bonato. A heated meeting took place and Mr Bonato agreed to repay the money. The appellant returned to Sydney.
The money was not paid and there followed a series of communications between the two men. The appellant then travelled to Adelaide by car with his brother in law, Mr Taiwhanua, and the owner of the car, Mr Barons. They arrived on the morning of 12 March 2006.
Mr Bonato said in evidence that he was at his home at Athelstone when the appellant and another man came to the house. It is not in dispute that the other man was Mr Taiwhanua. Mr Bonato said the two men began pushing and kicking him. He said at one stage the appellant took a knife from the kitchen and slashed Mr Bonato’s face with it before stabbing him in the leg.
According to Mr Bonato, his friend, Lisa Christensen arrived at the home while the two men from Sydney were there. He said she was detained in the bathroom. Ms Christensen gave evidence that she arrived at the house and saw the two men. However, she said she did not witness the assault on Mr Bonato. Mr Taiwhanua said in evidence that she was not at the house.
The appellant said in evidence that he made the trip to Adelaide with the others in order to assist Mr Bonato with problems he was having with a local motorcycle gang. He said he, Mr Taiwhanua and Mr Barons went to Mr Bonato’s home and saw two men coming out of the kitchen. Mr Bonato then appeared from the bathroom and the appellant noticed that he had injuries to his face. The appellant said he and his companion left the house and drove back to Sydney. He denied assaulting Mr Bonato.
After the three men returned to Sydney, Mr Bonato began receiving threatening text messages. The messages commenced on 14 March 2006. The police obtained a telephone intercept warrant in relation to Mr Bonato’s telephone. It was alleged at the trial that the messages were sent to Mr Bonato by the appellant. They were directed mainly to obtaining the $13,000. Eventually the appellant began making telephone calls to Mr Bonato and these too were intercepted.
According to the prosecution case, the appellant made further arrangements to return to Adelaide in order to pursue the collection of the money. On 21 April 2006 Mr Bonato was due to appear in the Adelaide Magistrates Court on a drug related matter. The appellant rang the Adelaide Magistrates Court on 10 April 2006 pretending to be Mr Bonato and asking when Mr Bonato was next required to attend court.
By this time the appellant was under surveillance by New South Wales police and, on the morning of 21 April 2006, he was seen boarding a Virgin Airways flight to Adelaide with Mr Taiwhanua. The two travelled to Adelaide under the names Linden Barker and Daniel Bruce. They arrived in Adelaide, where surveillance was continued by local police, and they were picked up at the airport by a Mr Oakeshott.
Mr Oakeshott and the appellant had become aware of each other’s existence through the playing of games on the internet. The appellant had contacted Mr Oakeshott on a previous occasion and told him he was trying to find an old friend in Adelaide. He asked Mr Oakeshott to check Mr Bonato’s house to see if anyone was living there. Mr Oakeshott later agreed to drive the appellant and Mr Taiwhanua in his car while they were in Adelaide. The men told Mr Oakeshott they wanted to travel to the Adelaide Magistrates Court.
While the appellant, Mr Taiwhanua and Mr Oakeshott were driving to the city from the airport the police apprehended them. The vehicle was searched. In a bag belonging to the appellant the police found two pairs of new cotton gloves, two cable ties and a roll of duct tape.
It was the prosecution case that it could be inferred from these circumstances and the background of the dispute between the appellant and Mr Bonato that the appellant and Mr Taiwhanua had agreed to assault Mr Bonato.
The appellant said in evidence that he returned to Adelaide on this occasion in a further attempt to obtain the money. He said he became aware that Mr Bonato was going to court on 21 April and that he would probably have his lawyer with him. The appellant said that he decided to go to the Adelaide Magistrates Court and confront Mr Bonato in the presence of the lawyer. He planned to tell Mr Bonato that, if he did not reimburse the money, the appellant would go to the Director of Public Prosecutions and tell him about Mr Bonato’s illegal drug activities. He said that he purchased the gloves and the tape at Bunnings in Sydney because he was about to start a new job and they were part of the equipment he would need. He said he took them to Adelaide because he was due to start the new job in Sydney on the following Monday and he wanted to be prepared to commence his job as soon as he arrived back in Sydney. The appellant said he did not know how the ties came to be in his bag. He said that the two airline tickets were in the names of the men who had driven him and Mr Taiwhanua to the airport in Sydney.
Distribution of untendered photographs to the jury
The first ground of appeal arises out of an incident which occurred during the trial when the jury were supplied with several photographs which had not been tendered in evidence. The prosecutor had tendered a series of photographs which depicted various items found in the vehicle in which the two accused were arrested on their way from the Adelaide airport.
Unfortunately, when copies of the photographs were handed to the jury, the bundles they were given contained additional photographs which had not been tendered. The additional photographs were not included in the bundles handed to the court and counsel. The judge, the prosecutor and defence counsel did not become aware that the extra photographs had been given to the jury until one of the jurors raised the matter in a question to the judge after the jury had retired to consider their verdicts.
Only one photograph was the subject of complaint on the hearing of the appeal. This photograph depicts a series of bank notes, mostly $50 notes, totalling $750.
The mistake in supplying the additional photographs to the jury was discovered after the jury had been deliberating for some time. The jury sent out a note to the judge which asked:
Who had the money in P35 picture 24 and why did they have this money?
Picture 24 was the photograph described above.
It was then that the judge became aware that this photograph had been included in the copies of the photographs handed to the jury. The jurors were asked to retire and the prosecutor made enquiries. He reported to the judge that the money had been found in the appellant’s wallet in his bag. He also said that no mention had been made of this fact in the police statements. The photograph of the money had been included in the jury copies by mistake.
Counsel for the appellant applied to the trial judge to discharge the jury on the ground that the photograph of the money was prejudicial to his client.
The trial judge refused the application. He recalled the jury and gave the following directions:
Members of the jury, I am sorry to interrupt your deliberations but there are some other directions that I wish to give you.
You will remember during the main body of my summing up that I said to you that you are obliged as jurors to accept and act on any directions that I give you, and this is one of those directions.
You had a question late yesterday about Exhibit P35 and you will obviously know that the court Exhibit P35 which I have here, it is in the jury room actually, has only 13 photographs. The copies of what the court thought was copies of its P35, of course, were supplied to you and you will obviously well know that there are additional photographs in the photographs that you saw.
The direction I give you is that those additional photographs were included in your copies in error. You should act upon the court Exhibit P35 which is the one that contains 13 photographs and you should ignore and put out of your minds the whole booklet of photographs that you received as part of your material. I know that you have seen those photographs but you received them in error and I direct you that you should and must ignore them and that you should and must act on the court Exhibit P35 as you have in the jury room.
I further direct you that the defence submissions still hold good and that you should proceed upon the basis that the court Exhibit P35 shows the only money in possession of the accused on 21 April.
So quite simply, members of the jury, you block out of your minds the photographs that formed what was meant to be P35 in your possession and act on the court Exhibit P35 and the defence submissions about that still hold true and that the only money in possession of the accused on that day is what is shown in the court Exhibit P35. That is the first matter I wanted to cover.
Mr Mead, for the appellant, said the incident resulted in prejudice to his client because he had implied in his address to the jury that the appellant did not have any money at the time he boarded the plane and when he arrived at the Adelaide airport. Mr Mead said that he had used this as part of his argument to the jury when he raised the issue as to where, on the Crown case, Mr Bonato was to be assaulted. Mr Mead said that he told the jury that it was unlikely that the assault would have taken place at the Adelaide Magistrates Court. In another passage in his address Mr Mead said to the jury:[1]
…I say it is more fanciful that you would go to the Adelaide Magistrates Court to assault someone. How were they going to assault Mr Bonato? Were they going to assault him at the front of the courthouse, inside the courthouse? If not, how were they going to take Mr Bonato away? What were they going to do with Mr Bonato once they had taken him away? In my submission, the Crown case in that regard is simply speculation. There is simply no evidence to support that.
[1] T963.32
In neither of the passages referred to by Mr Mead had he suggested that the appellant had said he had no money, or that him having or not having money was in some way relevant to how the two accused could get Mr Bonato away from the court.
At one stage in his evidence the appellant was asked whether he had cash available to him at the time he was obtaining his airline tickets. He gave a somewhat equivocal answer but did not say that, at the time he travelled to Adelaide, he did not have any cash.
The trial judge told the jury that the photograph was included in the copies distributed to them in error. He told them they were to ignore the extra photographs and that they were to proceed on the basis that Exhibit P35 (the bundle without the extra photographs) depicted the only money the appellant had in his possession on 21 April. The judge was referring to a photograph which showed only small change amongst the appellant’s possessions.

In my view, there was no risk that the jury would have ignored the judge’s directions and then proceeded to the assumption that the sum of $750 belonged to the appellant. Even if they did, the appellant had not said anything in his evidence which would have been contradicted by his possession of this amount of money.
I would dismiss this ground of appeal.
The prosecutor’s refusal to call Mr Barons
The next ground of appeal alleges that a miscarriage of justice resulted from the fact that the prosecutor decided not to call Mr Dennis Barons as a witness or present him for cross-examination by the defence.
As already stated, Mr Barons accompanied the appellant and Mr Taiwhanua on the trip to Adelaide on the occasion when the prosecution alleged Mr Bonato was assaulted in his house. According to the appellant, Mr Barons accompanied the appellant and Mr Taiwhanua to Mr Bonato’s home and was present there when the appellant was talking to the two men who, it was claimed, were already in the house with Mr Bonato. The appellant said that Mr Barons and Mr Taiwhanua left the house with him when the appellant became concerned about the two men.
The police took a statement from Mr Barons, but he was not interviewed by the prosecution. The statement taken from Mr Barons was in the form of a record of interview. A copy of the interview was given to the defence prior to the commencement of the trial.
Before the prosecution opening, counsel for the appellant advised the trial judge that he had been informed that Mr Barons would not be called by the prosecution. The prosecutor then advised the court that Mr Barons was regarded by the prosecution as a suspect in the offences alleged in the second and third counts and that he had exculpated the appellant and Mr Taiwhanua when interviewed by the police. The prosecutor pointed out that Mr Barons was not listed as a witness on the information.
Before the close of the prosecution case the prosecutor again intimated that he would not be calling Mr Barons. He said that Mr Barons was not a witness of credit and that he had a reason to falsify his account because of his involvement in the matter.
In the result, Mr Barons was called as a witness as part of the appellant’s case. He gave a version which aligned with that of the appellant. He said he accompanied the appellant and Mr Taiwhanua to Mr Bonato’s home. He said two men accosted them at the house and demanded to see Mr Barons’ driver’s licence. Mr Barons said that one of the men then told him that they had his details and would come after him if he contacted the police.
The prosecutor cross-examined Mr Barons and put to him that much of his version, including the claim that he saw the two men at the house, was false. Mr Barons denied that this was the case.
In The Queen v Apostilides[2] the High Court made it clear that the prosecution alone bears the responsibility for deciding what witnesses will be called as part of the prosecution case. Their Honours continued in their joint judgment:[3]
A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.
[2] (1984) 154 CLR 563
[3] Ibid at 575
Their Honours went on to say:[4]
In our formulation of the sixth proposition [above] we have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome. It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice. No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being called. In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness. Nevertheless, the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred. Whitehorn[5] was regarded as such a case, by some at least of the members of the Court who took part in that decision. The absence, for whatever reason, of any evidence from the complainant was the basic reason, in the light of such evidence as was called, for the Court's conclusion that the verdict was unsafe and unsatisfactory. So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the central question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory.
[4] Ibid at 577
[5] Whitehorn v The Queen (1983) 152 CLR 657
The relevant authorities were considered by Doyle CJ in R v O’Brien.[6] The Chief Justice said:[7]
But it is quite clear that there will be cases in which, because the prosecutor considers the evidence unreliable and untrustworthy, it will be appropriate for the prosecutor neither to call a material witness as part of the prosecution case nor to call the witness so that the witness may be cross-examined by the defence.
[6] (1996) 66 SASR 396
[7] Ibid at 397
His Honour also referred to two passages from the judgments of Deane J and Dawson J in Whitehorn v The Queen.[8] In that case Deane J said:[9]
Among the considerations which may justify the Crown in refraining from leading evidence from a particular witness is that the evidence which he or she would give is plainly untruthful or unreliable.
[8] (1983) 152 CLR 657
[9] Ibid at 664
In the same case Dawson J said:[10]
However, a prosecutor is not bound to call a witness, even an eyewitness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief.
[10] Ibid at 674
In my view no miscarriage of justice resulted from the decision of the prosecutor not to call Mr Barons. There were sound reasons why the prosecutor decided not to call him. There was a sufficient basis for the prosecutor to conclude that Mr Barons was not a witness of credit and that he had his own purpose to serve in providing a version which aligned with that of the appellant and Mr Taiwhanua. The jury had an opportunity to consider Mr Barons’ evidence when he was called as a witness for the defence. It is true that the prosecutor was able to cross-examine the witness, but this tactical advantage was not the reason for the decision not to call the witness as a part of the prosecution case.
I would dismiss this ground of appeal.
The written directions on conspiracy
There is a further ground of appeal which complains of the written directions that the trial judge provided to the jury. The written directions summarised in detail the prosecution case in relation to the offence of conspiracy but, according to the argument, did not deal adequately with the defence case. This ground of appeal is confined to the count alleging conspiracy. The written directions provided to the jury in relation to the other counts on the information were restricted to issues of law.
The summing up commenced at 3.28pm on Wednesday 26 March 2008. The case was adjourned at 4.17pm and the summing up was resumed at 10.45am on Thursday 27 March 2008 when the jury were given written directions on various aspects of the case. The trial judge explained these written directions by going through them with the jury and reading excerpts from them.
One of the documents provided to the jury was entitled “Conspiracy to Commit a Crime”. It set out the legal elements of the crime of conspiracy and then tabled 18 points or features relied upon by the prosecution to prove the offence. The trial judge then proceeded in his summing up to deal with the arguments put by the prosecutor in support of the prosecution case.
When the jury left the courtroom at the luncheon adjournment on the Thursday, Mr Mead, for the appellant, complained to the trial judge about the document dealing with conspiracy. He said it provided a path to conviction and pointed out that it contained no reference to the defence case. The judge said the written directions on this issue were meant to explain the prosecution case, but that the absence of any reference to the defence case would be remedied.
The summing up resumed after lunch and the trial judge dealt with the defence case. In doing so His Honour, orally, summarised the essential elements of the defence case.
The jury retired to consider their verdicts at 2.47pm on the Thursday. When they retired Mr Braithwaite, for Mr Taiwhanua, suggested to the trial judge that it would have been appropriate to include reference to the points in favour of his client in that part of the written conspiracy directions which outlined the principal steps in the prosecution case. Mr Mead repeated his concern about the written directions. He pointed out that they constituted a permanent record which set out the prosecution case on conspiracy, but lacked balance in that they did not include an outline of the defence case. The trial judge replied that this was an oversight on his part. He said it had been his intention to include an encapsulated version of the defence case, but that he overlooked doing so. His Honour said that if the jury were out for very long he would prepare an addendum which would encapsulate the respective defences to the conspiracy count.
The court adjourned for the day at 5.30pm and the jury were permitted to withdraw overnight. They resumed their deliberations at 10.00am on the Friday. It was at this stage that the issue in relation to the photographs given to the jury was raised. After giving the directions on the photographs, the trial judge told the jury that he had overlooked providing an abbreviated summary of the defence case in the written directions and he handed the jury an addendum which stated as follows:
Concerning the numbered points 1-18, these are the items of evidence available to you from which the prosecution says you can infer a conspiracy as alleged. Whether you find any of these items proved is a matter for you, and whether you act on them is a matter for you.
The defence cases in relation to this count are different. Mr Tulisi says there was no unlawful agreement and that he was here with the intention of getting his money or going to the police.
Mr Taiwhanua was not part of any unlawful agreement and he was over to provide moral support for his brother-in-law.
These directions were handed to the jury at approximately 12.15pm. The verdicts were returned at 5.11pm.
As the complexity of directions in modern criminal trials has increased, the practice has developed of providing written directions to juries as aide‑mémoires to assist the jurors in recalling oral directions. No criticism can be made of this helpful practice which is often regarded as a necessity. The practice is frequently used to provide summaries of the elements of offences and an explanation of relevant defences.[11]
[11] R v Dunn (2006) 94 SASR 177 at 185; R v Radford (1986) 133 LSJS 110
However, difficulties can arise if written directions summarising the facts and the arguments in the case are provided to the jury. The main difficulty stems from the importance of providing a fair and balanced summary. Of course this is a factor which arises in the oral summing up. However, the potential for jurors to focus on written directions in the course of their discussions must be borne in mind. A written summary is a permanent record which, in a case such as the present, may be before the jury for many hours.
This was a complex case and the desire of the trial judge to assist the jurors by providing written directions on the law is understandable. However, the summary of the facts complained of gives rise to concern. It consisted of a comprehensive summary of the prosecution case which, in its original form, made no reference to the defence case. The trial judge quite properly acknowledged that this was an oversight. However, the jurors were not provided with the addendum to the document until the latter part of their deliberations.
Furthermore, the addendum did not deal with the defence case in the same way as the prosecution case. Whereas the original document set out the prosecution case in detail and enumerated its various components, the addendum referred to the defence case in terms of a general denial. In the light of the detailed treatment of the prosecution case in the written instructions, the summary of the defence case was inadequate.
The possible effect of this deficiency must, however, be considered by reference to the circumstances of the trial generally. In his oral summing up the trial judge adequately summarised the appellant’s evidence on the conspiracy count and provided the jury with a detailed summary of the arguments and criticisms advanced by the appellant’s counsel in respect of that count. No criticism was made of the treatment of the defence case in the oral summing up. As a result I have reached the conclusion that no substantial miscarriage of justice occurred by reason of this matter when considered in the context of the summing up as a whole.
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
In the present case the prosecution could not have anticipated the explanation which the appellant gave in the course of his evidence as to the reason for his possession of the relevant items. There was no evidence in the case up to that point that suggested what might be his explanation. The issue was important having regard to both the nature of the items and the prosecution case that they constituted circumstantial evidence of the appellant’s purpose for visiting Adelaide.
The probative value of the evidence outweighed any prejudicial effect. Its admission was an appropriate exercise of the judge’s discretion.
However, a further matter arose when the rebuttal evidence was being given. When Mr Barnard was giving evidence-in-chief the prosecution tendered an email which had been sent to a Mr Rigoli. The email was dated 15 March 2008 and it purported to come from Carissa Pagett, the former partner of the appellant. Mr Rigoli was known to Ms Pagett and Mr Barnard. Ms Pagett had been called to give evidence as part of the appellant’s case. She had given evidence which supported the appellant’s case in certain respects. She said that she was aware the appellant was going to Adelaide on the last occasion to confront Mr Bonato and take him to the police, in order to make a formal complaint about the money owed to the appellant.
The email was sent after Ms Pagett had given evidence. It requested that Mr Rigoli pass on certain information, concerning the appellant’s employment, to Mr Barnard. It was open to the jury to view this as an attempt by Ms Pagett to influence the version which Mr Barnard would give if asked about his role in the appellant’s application for employment.
The evidence was not left to the jury by the trial judge as direct evidence against the appellant, but rather as affecting the credit of Ms Pagett. In other words it was not to be regarded as evidence in rebuttal of facts in issue, but in assessing the veracity and reliability of the evidence of Ms Pagett.
On the hearing of the appeal Mr Hinton QC, for the Director of Public Prosecutions, acknowledged the difficulty in using the evidence in the assessment of Ms Pagett’s credibility. Apart from the problem of using the evidence to rebut the collateral issue of Ms Pagett’s credibility, she had not been cross-examined on this issue. The email was written after she had given evidence. It may have been open to the prosecution to apply to recall Ms Pagett for further cross-examination. However, although such an application was discussed at the trial, none was made.
In my view, it was not open to leave this evidence to the jury as something which they were entitled to take into account in assessing the credibility of Ms Pagett.
However, in determining whether this may have resulted in a miscarriage of justice, it is important to have regard to Ms Pagett’s evidence. She gave background evidence of her relationship with the appellant. She said that he asked her for $20,000 which he said he wanted to invest in a cleaning business which Mr Bonato was setting up. She said that in December 2005 she lent the appellant $13,000 and said she was unable to give him $20,000. She also said that she paid his airfare to Adelaide on one occasion. As already mentioned, she said she understood that on the last occasion the appellant went to Adelaide he was going to confront Mr Bonato at court and take him to the police about the money Mr Bonato owed to him.

Whatever might have been claimed for this evidence, it provided little if any support for the appellant’s case. When stating the purpose of the loan to the appellant and the reason for his visits to Adelaide, Ms Pagett was not claiming to have first hand knowledge of these matters. She was repeating what she said had been told to her by the appellant. Furthermore, the appellant said in evidence that he was trying to raise money to buy into a cleaning business with Mr Bonato, but that in the end he decided to do this by making money from cannabis supplied through Mr Bonato. He said the $13,000 paid to Mr Bonato was for this purpose.
Even if the evidence relating to the email was used for the purpose of assessing Ms Pagett’s evidence, this could not have had a detrimental effect on the appellant’s case to the extent that it resulted in a miscarriage of justice.
I would dismiss this ground of appeal.
The directions on conspiracy
It was argued that the trial judge erred in directing the jury that it was open to find one accused guilty of conspiracy and the other not guilty of that offence. The written directions on conspiracy which were provided to the jury contained the following direction:
The case of each accused must be considered separately. In relation to each accused the prosecution must prove beyond reasonable doubt:
• That, on the whole of the evidence, there was a conspiracy, that is to say an agreement between these two accused to pursue a course of conduct involving the commission by one or both of them of the crime of assault occasioning actual bodily harm.
Evidence of the conspiracy is almost always circumstantial evidence, that is to say, evidence of the surrounding circumstances from which the prosecution invites you to draw the inference that there was an agreement and that the accused was a party to it. You should consider everything proved to have been said and done in furtherance of the common design by those alleged to be involved in order to determine whether there was an agreement or understanding to commit the crime alleged. If you are satisfied beyond reasonable doubt that an agreement or understanding of the type alleged existed, you must go on to consider the case in relation to each accused as to whether it is proved beyond reasonable doubt that that accused was a party to the agreement or understanding.
As I have said, the existence of the conspiracy and the involvement of the two accused will be a matter of inference from the evidence. Before you could find an accused guilty of the conspiracy, not only would you need to be satisfied that guilt was a rational inference, but that it was the only rational inference open on the evidence.
Because you need to consider the evidence against each accused separately, it is possible to have a different verdict in respect of each, even though the prosecution alleged they conspired with each other and no-one else. (emphasis added)
The trial judge commented on the written directions in his summing up:
The next sentence I will read out to you and then say a bit more about it because, in many respects, there is a paradox there: because you need to consider the evidence against each accused separately, it is possible to have a different verdict in respect of each, even though the prosecution allege they conspired with each other and no-one else.
The paradox really is this, members of the jury: what the prosecution allege here is that these two conspired together and with no-one else. But I have directed you that you need to consider the evidence in relation to whether or not they were part of that conspiracy separately. It could be in relation to one accused ‘Yes, I am satisfied beyond reasonable doubt that he conspired with the other co-accused’ and look at the evidence in relation to this one alone. Then when you switch your focus to the other accused you might say ‘Well, I am not satisfied beyond reasonable doubt that he conspired with the other one’. In that situation the direction I give you is that you could find, as it were, the first one guilty but the second one not guilty and the paradox is that in finding the first one guilty, you found that he agreed with the second one, but when looking at the second one you are not satisfied that he agreed with the first. That is a direction that I give you that you could do that. Whether you do this as a matter of reality in this case is something quite separate, I am just directing you that that is possible.
The paradox referred to by His Honour was considered by the High Court in The Queen v Darby[17]. Two accused were found guilty by verdict of a jury of conspiracy to commit robbery. The accused A appealed to the Victorian Court of Criminal Appeal which quashed his conviction. It was held that an overwhelming case had been made out to establish that A conspired with B to commit a criminal act, but that the evidence fell short of establishing a precise crime. B then appealed against his conviction on the ground that he had been charged with conspiring with A and no-one else and that A had subsequently been acquitted.
[17] (1982) 148 CLR 668
The court declined to follow the common law as applied in Dharmasena v The King[18] where it was held that, where two persons are charged on a single count of conspiracy between themselves and no other, the acquittal of one necessitated the acquittal of the other.
[18] [1951] AC 1
After considering a number of authorities Gibbs CJ, Aickin, Wilson and Brennan JJ said:[19]
In the light of the wealth of both academic and judicial consideration that has been devoted to this topic in recent years, we have no doubt that this Court should now redirect the common law of Australia on to its true course. It should determine that the conviction of a conspirator whether tried together with or separately from an alleged co-conspirator may stand notwithstanding that the latter is or may be acquitted unless in all the circumstances of the case his conviction is inconsistent with the acquittal of the other person. In our opinion such a determination will focus upon the justice of the case rather than upon the technical obscurities that now confound the subject. (emphasis supplied)
[19] The Queen v Darby at 678
Their Honours added:[20]
In the light of these considerations, in our opinion there is much to be said for the recent decision of the Supreme Court of Canada in Guimond v The Queen[21] requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other. We would encourage the adoption of such a practice. In cases where there is no, material distinction in the evidence admissible against both alleged conspirators, the trial judge's advice to the jury that they will either convict or acquit both accused will continue to be appropriate not because of any technical rule but because of the circumstances of the case (cf. Lord Simon of Glaisdale in Shannon[22]…)
[20] Ibid at 678
[21] (1979) 44 CCC (2d) 481
[22] [1975] AC 717 at 768
Jones & Kelly[23] is an example of a case in which there was no material distinction in the evidence against the alleged co-conspirators. The two accused were charged with a conspiracy to defraud. One accused was acquitted and the other convicted. The conviction was set aside by reason of inconsistency with the verdict of not guilty in relation to the other accused. Street CJ noted:[24]
The conspiracy that the Crown sought to prove here was in a comparatively common form, namely a series of overt acts, said to lead to the conclusion that the two men had agreed to practise a fraud in the drawing of this art union. There was no admission by either of the appellants at the investigatory stage of guilt in relation to the conspiracy. The Crown case rested in its entirety upon the evidence adduced at the trial from third parties of objective events that had taken place round about the time that the conspiracy was on foot.
The Crown case was in effect substantially identical against each of the two accused men. In that context one would necessarily have some misgivings regarding the legitimacy of the jury having found a case proved against one appellant, but not proved against the other.
[23] (1985) 20 A Crim R 142
[24] Ibid at 146
The court held that, as the jury found the conspiracy not proved against one accused, the other accused was entitled to an acquittal also.
The task of an appellate court faced with an argument of inconsistency of verdicts in such a case was referred to by Hunt J in Mok:[25]
The appellant, however, seeks to have a verdict and judgment of acquittal entered upon the basis that the jury's verdict that he was guilty of conspiracy was necessarily inconsistent with its acquittal of his alleged co-conspirator, Sam. Such a verdict of guilty of only one of two alleged conspirators is permitted to stand notwithstanding the acquittal of the other only if in all the circumstances of the case the conviction is not inconsistent with the acquittal: Darby (1982) 148 CLR 668 at 678. It is necessary in each case to consider the evidence given at the trial against each of the alleged conspirators and to determine whether any difference in the evidence admissible against each is of such significance as to provide an explanation of the jury's different verdicts. A practical, common sense approach is required, focusing upon the justice of the particular case: Jones (1985) 20 ACrimR 142 at 146-147.
[25] (1987) 27 A Crim R 438 at 442
In very few cases is a conspiracy proved by direct evidence. In most cases proof of the agreement between the conspirators is established by circumstantial evidence.[26] More often than not the evidence upon which the prosecution relies emanates from the actions of the conspirators which are alleged to constitute the overt acts in putting the conspiracy into effect.
[26] Ahern v The Queen (1988) 165 CLR 87 at 93. See also the discussion in Gillies, The Law of Criminal Conspiracy (2nd ed, 1990) p 176.
In the present case, the prosecution relied upon the evidence that the appellant and Mr Taiwhanua had been involved in the assault on Mr Bonato on 12 March 2006 and that the purpose of the assault was to intimidate him into refunding the money which was allegedly owed by him to the appellant.
Then, it was alleged, the two men travelled to Adelaide on tickets issued in the names of other persons. The appellant and Mr Taiwhanua were apprehended in a car being driven by a man who was unaware of the existence of any illegal enterprise. The appellant was carrying items which might have been intended to be used to restrain Mr Bonato. The appellant was also in possession of two pairs of gloves.
The prosecutor put to the jury that the evidence suggested the two men were “coming over kitted out to do a bashing”. Particular emphasis was placed upon the two pairs of gloves. The prosecutor also submitted in his final address that, although the appellant was the main actor, the case was “no weaker in regard to Mr Taiwhanua”.
On the hearing of the appeal Mr Hinton QC pointed to what he said were important differences in the case against each accused. He referred to the following considerations:
1Mr Taiwhanua had no part to play in the initial agreement to purchase cannabis.
2It was the appellant who made arrangements for Mr Bonato’s home to be checked to see if he was there.
3Mr Taiwhanua did not make the airline bookings when the tickets were issued in the names of other persons.
4The appellant purchased the gloves and duct tape.
5The items referred to in para 4, together with the cable ties, were found in the appellant’s bag when the vehicle was searched.
6The appellant said he came to Adelaide to get the money whereas Mr Taiwhanua said he was aware of the appellant’s purpose in obtaining the money but had no idea that the appellant was going to act illegally in obtaining the money.
7The court list referring to Mr Bonato’s appearance in the Adelaide Magistrates Court was located in the appellant’s computer.
As the prosecutor stated in his final address to the jury, the appellant was the main actor. It is not unusual for a particular accused to play a leading role and be involved in the performance of more overt acts than other accused. However, it does not necessarily follow that there is a significant difference in the cases which are being presented against the alleged conspirators.
The core of the prosecution case against each of the accused in the present matter, as it was presented to the jury, is set out above. The most important items relied upon by the prosecution to establish the conspiracy were that the two men had been to Adelaide on a previous occasion when they assaulted Mr Bonato in order to obtain the return of the money; that, as the money had not been paid, they were returning; that they were travelling under false names; and that one of them had two sets of gloves and other incriminating objects in the vehicle when they were apprehended. Furthermore, the appellant said he was returning to speak to Mr Bonato about the money and Mr Taiwhanua said he was aware of that, albeit that he did not know of an intended assault.
The evidence that the appellant made the necessary arrangements, including obtaining the airline tickets, purchasing the items to which reference has been made, and arranging for surveillance on Mr Bonato’s house, does not compel the conclusion that the cases against the two accused were significantly different in the sense discussed in The Queen v Darby.
The evidence of telephone conversations between the appellant and others could not be used against Mr Taiwhanua. These conversations went to proof of the appellant’s intention and state of mind. Again, however, this was not evidence which rendered the prosecution case against the appellant significantly different from the case against Mr Taiwhanua. The evidence that the appellant was in Adelaide on the last occasion to further pursue Mr Bonato and to use force, if necessary, was strong. However, the question for the jury was whether he and Mr Taiwhanua had entered into an agreement to assault Mr Bonato. The enquiry for present purposes is whether the case against him to prove such an agreement was being put on a basis which was materially and relevantly different from the case relied upon to establish that Mr Taiwhanua was a party to the agreement.
In my view, there was no material distinction in the evidence relied upon by the prosecution to establish the alleged conspiracy against each accused. It follows that the jury should have been advised that, although they were to consider the case against each accused separately, it was not open to find one accused guilty and the other not guilty of conspiracy. It also follows that the verdicts on the charge of conspiracy are inconsistent.
I would quash the conviction of the appellant for the offence of conspiracy. As the appellant’s co-accused was found not guilty of this offence it would be inappropriate to order a retrial. I would enter a finding of not guilty in relation to the appellant on that count.
The matters raised on appeal in relation to the charge of conspiracy could not have resulted in unsafe and unsatisfactory verdicts with respect to the second and third counts. There was ample evidence to convict the appellant on these counts. I would dismiss the appeal insofar as it relates to the second and third counts.
The trial judge sentenced the appellant to imprisonment for six years on the second and third counts and three years imprisonment on the first count. The sentence on the first count was made cumulative so that the total head sentence was imprisonment for nine years. A non-parole period of six years was imposed.
The appellant was found guilty of aggravated serious criminal trespass in a place of residence and unlawful wounding arising out of the incident on 12 March 2006. I have referred briefly to the circumstances of this incident. Mr Bonato said he was taking some rubbish to bins outside his house when he was approached by the appellant and the co-accused. He said they grabbed him and began hitting him. They then dragged him inside the house. When they were in the lounge room they punched and kicked him. The co-accused was using knuckledusters and he struck Mr Bonato around the face and head with them.
At this point the appellant went into the kitchen and picked up a filleting knife. According to Mr Bonato he was then stabbed in the leg by the appellant and his face was slashed with the knife. He also received cuts to his right hand. While this was happening the co-accused continued to hit and kick him.
The appellant then told the co-accused to keep Mr Bonato in the bathroom while he ransacked the house. Mr Bonato said the appellant apologised as he was leaving the house but added that they had no choice. Mr Bonato’s mobile telephone and the keys to his house were taken by the men.
Mr Bonato’s friend arrived during the incident. She said that one of the intruders dragged her into the house by her hair.
Mr Bonato was taken to the Royal Adelaide Hospital by ambulance. His left eye was swollen. He had a laceration 10 centimetres long extending from the left side of the nose across the cheek. He had generalised tenderness to the chest and there was a laceration between the index finger and thumb of his right hand. The laceration was two or three centimetres deep extending to the joint space. There were multiple superficial lacerations to the left forearm. Finally, there was a laceration the left thigh. Mr Bonato was admitted to hospital and his lacerations were sutured.
Mr Mead pointed out that the appellant had no relevant previous convictions. He also said he had a good work record and there was evidence that he had been involved in community work. He said the appellant had good prospects of rehabilitation.
The judge was justified in taking the view which he did of this conduct. The attack was premeditated, it involved an aggravated home invasion and the unlawful wounding was a serious offence in itself. In my view the head sentence imposed for the two offences was appropriate and should be confirmed.
I would set aside the sentence of three years imposed in relation to the first count. I would confirm the sentence of imprisonment for six years on the second and third counts and substitute a non‑parole period of four years.
VANSTONE J: I agree with the orders proposed by Duggan J and with the reasons he has provided.
DAVID J: I also agree with the orders proposed by Duggan J and with the reasons he has provided.