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 the appellant – whether failure to pursue the concerns gave rise to a miscarriage of justice.
HELD: appellant had the opportunity while giving evidence to correct any factual misconceptions which may have arisen, in particular in relation to the accuracy of the photographs and the identity of the relevant knife – suggestion made to the victim that appellant was swinging punches at the victim, if made at all, was of little significance as it was not referred to in the addresses or Judge’s summing up – failure of counsel to explore issues raised by appellant not such as to give rise to a miscarriage of justice – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 23(3), referred to.
TKWJ v The Queen (2002) 212 CLR 124, applied.

R v WALLACE
[2009] SASC 186
Court of Criminal Appeal: Doyle CJ, Layton and David JJ

DOYLE CJ: After a trial before a District Court Judge and jury Mr Wallace was found guilty and convicted of recklessly causing serious harm to Mr Kemp, contrary to s 23(3) of the Criminal Law Consolidation Act 1935 (SA). The jury acquitted Mr Wallace of the more serious offence of causing serious harm with intent to cause serious harm.
Mr Wallace now appeals against this conviction, permission to appeal having been granted by a single Judge.
There are four grounds of appeal, but only three were pursued.
The first two grounds challenge the admissibility of a video recording that the Judge admitted into evidence. It is a video recording of Mr Wallace, handcuffed, shortly after he had been arrested by the police at the scene of the alleged offence. The submission on appeal is that the video recording was not admissible, and in the alternative that it should have been excluded by the trial Judge on the basis that its prejudicial effect exceeded any probative value that it had.
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.
The police decided not to interview Mr Wallace until they had a video camera.
At 28 minutes past midnight the video recording in question began. The Court viewed the video during the hearing of the appeal. The video runs for about 30 minutes. The Court viewed the video.
Having regard to the timing of events, the video recording must have begun about 40 minutes or 45 minutes after the stabbing.
The video shows Mr Wallace sitting on the ground for most of the time, his hands handcuffed behind his back. From time to time police officers present at the scene can be heard asking him questions about matters arising in the course of the investigation at the scene. They began by asking him his name, told him that he was under suspicion of having committed an aggravated assault, cautioned him, and sought to confirm which of the units on the property was the one in which he lived. There are a number of periods during the video when no questions were being asked of Mr Wallace, and the video shows nothing more than Mr Wallace sitting on the ground. From time to time the police returned to him and asked him about matters connected with their enquiries at the scene of the stabbing.
When Mr Wallace speaks, his speech appears to be slurred. He appears to understand the questions put to him. Sometimes he answers the questions appropriately, sometimes he refuses to answer, and on other occasions gives inconsequential or uncooperative answers.
On some occasions when he is recorded sitting there, with no-one speaking to him, he appears to be close to falling asleep, or to fall asleep very briefly. At one point, towards the end of the recording, he rolls on to his side on the ground, and possibly falls asleep. The police then sit him up, and move him to sit in the rear of a car, where they tell him he will be more comfortable. After a short time sitting there he appears to suffer something like a minor panic attack. Shortly after that the video ends.
In my opinion the video recording was relevant and, for that reason, admissible. As I have already said, it was common ground that each of the men had consumed a substantial quantity of alcohol on the night in question. As the Judge correctly told the jury, they should consider the question of intoxication when considering whether Mr Wallace intended to cause serious harm, whether he caused harm recklessly, and also when considering his reliability as a witness and his ability accurately to recall the events of the evening.
The video recording, which began within less than an hour of the stabbing, provided relevant material for the jury to consider. The evidence about Mr Wallace falling to the ground shortly after he was handcuffed was a matter for the jury to consider when deciding what weight they would put on the video recording. There is nothing in that evidence that suggests that Mr Wallace would have sustained a significant blow to the head in the fall, but in any event that again was a matter for the jury to consider.
In short, the effect of alcohol on Mr Wallace that night was a matter relevant to a number of issues of fact that the jury had to decide, and the video was capable of providing relevant evidence on that topic.
Mr Vadasz, counsel for Mr Wallace on appeal, argues that the video recording was highly prejudicial to the defence case. He submits that its depiction of Mr Wallace’s “demeanour, aggression and violence to police” are the “highly prejudicial” aspects of the video recording.
I consider that there is no substance in that submission.
The video recording does not depict any physically aggressive conduct by Mr Wallace. True it is that at the beginning of the video recording Constable Cartwright is heard to say to Mr Wallace that he is going to turn him over (sit him up) but that “you cannot kick out at us anymore…”. In the overall scheme of things, I fail to see how this could be regarded as prejudicial. In any event, the Judge specifically directed the jury that they should not reason from the fact that Mr Wallace had struggled with police and had to be restrained that he was the sort of person who might stab someone. If anything, the video recording depicts Mr Wallace as relatively passive for most of the time in question. Admittedly, at times he is uncooperative with the police when they ask him questions, but I fail to see how this could have operated prejudicially to his case.
Moreover, there are aspects of the video recording that could have operated in Mr Wallace’s favour, and to which reference was made by trial counsel in his address to the jury. At one stage Mr Wallace says that he could not drive his truck because he was “blind” (apparently meaning blind drunk). He says that that is why he called the ambulance or police. He adds inconsequentially, but relevantly and apparently referring to Mr Kemp: “I love him. I love him dearly”. Very shortly thereafter he indicates concern for Mr Kemp, asking if he is on his way to hospital yet. A little later again, somewhat inconsequentially, he says: “I must be insane”, apparently referring to what had happened. And a little later again, when a caution has been repeated to him, he says: “It was an absolute accident”.
To my mind, there is nothing at all about the video recording that could be regarded as unfairly prejudicial. To the contrary, there are aspects of it that had the potential to assist Mr Wallace’s defence, and that were relied upon by defence counsel.
I reject the submission that in the exercise of his discretion the Judge should have excluded the video recording from evidence.
In argument we were taken to passages in the transcript that record submissions to the trial Judge in relation to the admissibility of the video recording. Mr Pallaras QC submits that after initially objecting to the admission of the video recording, counsel for Mr Wallace abandoned his objection to its reception into evidence. He may well be correct, but there is no need to rely upon this ground as a basis for rejecting the two grounds of appeal that complain of the admission of the video recording.
Conduct of trial
The defence case from beginning to end was that Mr Wallace acted in self defence. On Mr Wallace’s case, Mr Kemp made an unprovoked attack on him, which Mr Wallace did his best to resist. He retreated and defended himself. At a certain point Mr Kemp produced, or armed himself with, one of Mr Wallace’s knives. Mr Kemp then attempted to stab Mr Wallace. In the course of resisting the attack with the knife, Mr Wallace stabbed Mr Kemp.
The cross-examination of Mr Kemp clearly put the defence case to him. Mr Wallace was equally clear in his evidence. The Judge summed up on the basis that there were two conflicting stories about the fight, and that if it was a reasonable possibility that Mr Wallace acted in self defence, he must be acquitted.
The case was a clear one. The nature of the case is relevant when considering the complaint about the conduct of the trial.
Affidavits sworn by Mr Wallace and by trial counsel were tendered on the hearing of the appeal. Each of them gave evidence.
I turn now to the complaints under this head.
At one point the transcript records that trial counsel put to Mr Kemp that at a certain point in the fight Mr Wallace was swinging punches at Mr Kemp. Mr Kemp denied this. On Mr Wallace’s case all that he ever did was resist and block. He never swung any punches.
Trial counsel accepts that, at that particular moment, he might have put the relevant question the wrong way around. Alternatively, he suggests, the question was transcribed inaccurately.
There is nothing in this point. Even if counsel erred, what he put to Mr Kemp did not erode the defence case. What is recorded in the transcript is not inconsistent with the defence case overall. No-one seems to have noticed the point. Neither the Judge nor the prosecutor said anything about it. If counsel made a mistake, it could not have caused or contributed to a miscarriage of justice.
Mr Wallace complains that trial counsel failed to suggest to Mr Kemp, and presumably to other prosecution witnesses, that the knife tendered at trial as the knife with which Mr Wallace stabbed Mr Kemp was not in fact the knife used, but another of Mr Wallace’s knives.
Mr Wallace gave evidence that on a number of occasions he pointed out to trial counsel that a knife shown in photographs of the scene, and the knife tendered, was the wrong knife. Mr Wallace said that the knife used had disappeared. Mr Wallace could not explain how the wrong knife came to be in the position it was at the scene of the fight, nor how it came to be tendered, nor what had happened to the knife actually used. There is no need to go into the details of the evidence about this.
As trial counsel said in his affidavit, and as Mr Wallace acknowledged, trial counsel gave Mr Wallace strong advice that to pursue the suggestion that the wrong knife had been tendered would distract the jury from the main issue. Moreover, it is apparent that to take this point involved a challenge to other prosecution witnesses that, in a sense, seemed to go nowhere. There was no doubt that Mr Wallace stabbed Mr Kemp with a knife that belonged to Mr Wallace and that was at the shed that night. There was evidence to suggest that the knife tendered was the one with which Mr Wallace stabbed Mr Kemp. It was found embedded in the sofa near a pool of Mr Kemp’s blood. It was photographed and seized by police. It was an agreed fact that the photographs depicted the knife with which Mr Kemp was stabbed. I cannot see what gain there was in suggesting that the knife tendered was the wrong knife.
Be that as it may, Mr Wallace acknowledged in evidence that he reluctantly accepted the advice given to him. He had the opportunity in his evidence to say that the knife tendered was the wrong knife. He did not do so.
The issue raised by this ground of appeal is whether there has been a miscarriage of justice because of the manner in which trial counsel conducted the trial. As Gaudron J said in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [25]-[26]:
[25]Where decisions taken by counsel contribute to a defect or irregularity in the trial, the tendency is not to inquire into counsel's conduct, as such, but, rather, to inquire whether there has been a miscarriage of justice, or, if the proviso to the criminal appeal provisions is engaged, whether "no substantial miscarriage of justice has actually occurred". In that exercise, the question whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration.
[26]The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question "deprived the accused of a chance of acquittal that was fairly open". The word "fairly" should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.
Footnotes omitted
McHugh J took a similar approach. At [75]-[77] he said:
[75]But how does a court of criminal appeal determine whether counsel's conduct of the trial has led to a miscarriage of justice? By what standards is counsel's conduct judged? And, if counsel has failed to present the case properly, must the appellant show that the conduct possibly affected the verdict? The unattractive answer to the latter question must be that it depends on what counsel did or did not do.
[76]In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. …
[77]But in other cases - perhaps the majority - the conduct of counsel - although irregular - will not necessarily deprive the accused of a fair trial. Not every error makes the trial unfair. Nevertheless, the irregular conduct of counsel may have affected the outcome. And a miscarriage of justice always occurs when there is a significant possibility that a material irregularity at the trial has resulted in the conviction of an accused person.
Footnotes omitted
Without setting them out, I refer to similar observations made by Gleeson CJ at [16]-[17], and by Hayne J at [102]. Gummow J agreed with the reasons of Gaudron J and Hayne J: [101].

The ultimate test is whether there has been a miscarriage of justice. In each case the manner in which that question is approached will depend upon the nature of the complaint that is made.
In my opinion there is no substance in this ground of appeal.
This matter gives rise to no miscarriage of justice. The advice that counsel gave, and the course followed at trial, reflects a legitimate forensic decision. It is understandable why counsel gave the advice that he did. At the end of the day the decision was made by Mr Wallace to accept the advice and not to pursue the issue. Nor, for what it is worth, can I identify how Mr Wallace’s case could have been improved by raising the matter about which he complains.
The final complaint is that trial counsel failed to make the point that certain items shown in photographs of the scene of the fight had been moved after the fight concluded. That is what Mr Wallace claims had happened. The items are a loaf of bread, a broken chair and a portable barbeque. As best I can tell the main significance of this is that the portable barbeque appears in the relevant photograph to be in front of a punching bag on which Mr Wallace said he tripped during the fight. The prosecutor made the point in his address that the photograph suggested that Mr Wallace could not have tripped on the punching bag, because the barbeque was in front of it.
Once again, Mr Wallace had the chance to give his evidence on the point, if he wished to do so. The matter of the barbeque seems to me to be a minor matter. The failure of trial counsel to explore the point with prosecution witnesses could not have caused or contributed to a miscarriage of justice.
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.