R v Wallace - [2009] SASC 186

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WALLACE
[2009] SASC 186
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Layton and The Honourable Justice David)
2 July 2009
EVIDENCE - ADMISSIBILITY AND RELEVANCY - FACTS RELEVANT TO FACTS IN ISSUE - IN GENERAL
Appellant charged with causing serious harm with intent to cause serious harm – appellant found guilty by jury of lesser charge of recklessly causing serious harm – incident the subject of the charge occurred after appellant and victim had consumed a substantial quantity of alcohol – victim received knife wound to the upper abdomen – video recorded by police shortly after the arrest of the appellant was admitted into evidence – whether video relevant to a fact in issue and admissible.
HELD: video showed appellant shortly after the incident the subject of the charge and was relevant to the question of the appellant’s state of intoxication at the time of the incident – intoxication was a fact relevant to question of intention, and relevant to the credit of the appellant who gave evidence – appeal dismissed.

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE - GENERALLY
Video recorded police telling the appellant that he could not ‘kick out at [the police] anymore’ – whether video should have been excluded from evidence in the exercise of the Judge’s discretion on the basis that it was prejudicial to the appellant.
HELD: video did not capture any physically aggressive conduct by the appellant – statement of police recorded on video not prejudicial – trial Judge gave direction that jury could not reason that since the appellant struggled with police and had to be restrained, he was the sort of person who might stab someone – aspects of the video could be regarded as beneficial to the defence case – no occasion for the exercise of discretion – appeal dismissed.

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF DEFENCE COUNSEL
Appellant asserted that he raised a number of issues with defence counsel prior to or during the trial which defence counsel did not pursue – appellant asserted that he told counsel that the knife tendered in evidence as the knife which caused the injury to the victim was not the knife which was used to wound the victim – appellant asserted that he told counsel that photographs of the crime scene which were admitted into evidence depicted items in positions different to those occupied by the items immediately after the incident – transcript recorded defence counsel suggesting to the victim in cross-examination that appellant was swinging punches at the victim during the course of a struggle – appellant asserted that this suggestion was inconsistent with his instructions to counsel and that he informed counsel about the inconsistency – appellant asserted that counsel dismissive of appellant’s concerns – counsel did not pursue the concerns apparently raised by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] SASC 186
Decision Date: 2 July 2009

CaseChat Overview and Summary

In the matter of R v Wallace, the appellant was found guilty by a jury of recklessly causing serious harm. The appellant had been charged with causing serious harm with intent to cause serious harm, but was found guilty of the lesser charge. The incident in question occurred after the appellant and the victim had consumed a substantial amount of alcohol. The victim received a knife wound to the upper abdomen. A video recorded by the police shortly after the appellant's arrest was admitted into evidence. The appellant appealed against his conviction and sentence, raising several grounds of appeal.

The first issue considered by the court was whether the video was relevant to a fact in issue and therefore admissible. The court held that the video was relevant to the question of the appellant's state of intoxication at the time of the incident, which was a fact relevant to the question of intention, and relevant to the credit of the appellant who gave evidence. The second issue was whether the video should have been excluded from evidence on the basis that it was prejudicial to the appellant. The court held that the video did not capture any physically aggressive conduct by the appellant, and the statement of the police recorded on the video was not prejudicial. The third issue was whether the failure of defence counsel to pursue certain issues raised by the appellant gave rise to a miscarriage of justice. The court held that the appellant had the opportunity while giving evidence to correct any factual misconceptions which may have arisen, and the failure of counsel to explore issues raised by the appellant was not such as to give rise to a miscarriage of justice.

The appeal was dismissed by the court. The court found that the trial judge had exercised his discretion appropriately in admitting the video evidence and that there was no basis for finding that defence counsel had acted incompetently. The court found that the appellant had not been prejudiced by the admission of the video evidence and that the failure of counsel to pursue certain issues raised by the appellant did not give rise to a miscarriage of justice. The conviction and sentence of the appellant were upheld.

Orders

Orders of the court

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Background

Background to the litigation

The remaining ground of appeal raises an argument that counsel at trial failed to cross-examine Mr Kemp on, or otherwise pursue, certain aspects of Mr Wallace’s instructions and that counsel failed to obtain instructions from Mr Wallace on certain other matters that arose during the course of the trial. In effect, the submission under this ground of appeal is that the failure to put certain matters to Mr Kemp in cross‑examination or pursue issues raised by Mr Wallace during the course of the trial has led to a miscarriage of justice.Facts Having regard to the issues that arise, it is not necessary to go into any great detail about the circumstances of the offence. Mr Kemp and Mr Wallace were friends. On the night in question they were drinking together in a shed in which Mr Wallace lived. It was common ground that they consumed a substantial amount of alcohol, enough to affect significantly each of them. Shortly before midnight on the night in question they started fighting. Mr Kemp said in evidence that for no apparent reason Mr Wallace attacked him with a knife, stabbing him in the chest, and inflicting a serious injury on him. The police and an ambulance attended at the scene within about 15 minutes of the stabbing. Mr Wallace gave evidence at the trial. He said that for no apparent reason Mr Kemp attacked him. They wrestled on the floor of the shed. Then Mr Kemp got up, Mr Wallace remaining on the floor either sitting or lying down. After a few seconds Mr Kemp came back with a knife and Mr Wallace feared that Mr Kemp was going to attack him with the knife. There was a further struggle on the ground, and Mr Wallace grasped Mr Kemp’s left hand, in which he was holding the knife. In the course of the struggle, Mr Kemp still holding the knife in his left hand, the knife penetrated Mr Kemp’s chest. As I understand the effect of the evidence, Mr Wallace said that the stabbing occurred as a result of him forcing Mr Kemp’s left hand away from Mr Wallace and back towards Mr Kemp. The defence case at trial was self-defence. The only persons present at the relevant time were Mr Kemp and Mr Wallace. Obviously enough, their evidence, and the rival versions of the facts that they put forward, were central to the trial. The video recording The fight occurred shortly before midnight. An ambulance was called at about 11.55 pm, and it was common ground that the call to the ambulance was made almost immediately after the stabbing occurred. The police arrived at the shed at about 12.15 am. At that time Mr Kemp was on an ambulance stretcher. Mr Wallace was standing near the ambulance. Soon after their arrival the police arrested Mr Wallace, and handcuffed him behind his back. Constable Cartwright, one of the police officers at the scene, said that shortly after they had handcuffed Mr Wallace he fell to the ground, “… as if he was almost unconscious”. Constable Cartwright added that Mr Wallace appeared to be “in shock”. He said that Mr Wallace “came to”, and then started kicking out at the police and at a police vehicle. The police restrained him. He said that Mr Wallace suffered “a few grazes on the body” when he fell.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have not found it necessary to refer in any detail to the oral evidence of Mr Wallace and trial counsel. In the end, there was not much difference between them. However, it is appropriate to record that trial counsel gave his evidence in a straightforward manner. To the extent that he denied that Mr Wallace was as insistent on certain matters as Mr Wallace claimed, I accept the evidence of trial counsel.Conclusion The grounds of appeal should be rejected. I would dismiss the appeal against conviction. LAYTON J: I agree with the Chief Justice that the appeal should be dismissed for the reasons which he has given. DAVID J: I would dismiss the appeal for the reasons given by the Chief Justice. In my view, counsel for the appellant at trial conducted the defence in an able and competent manner.

Ratio Decidendi

Legal Principle Established

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