R v WILTON - [2019] SASCFC 65

Supreme Court of South Australia
(Court of Criminal Appeal)
R v WILTON
[2019] SASCFC 65
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Parker and The Honourable Auxiliary Justice David)
13 June 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - FUNCTIONS OF JUDGE AND JURY - DIRECTIONS TO JURY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - TRESPASS TO LAND
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
This is an appeal against conviction on one count of aggravated serious criminal trespass in a place of residence contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), and one count of theft contrary to s 134(1) of the CLCA.
The appellant was found in the complainant’s house with a backpack containing various items belonging to the complainant. Following the arrival of the police, the appellant uttered the words “I fucked up” and begged the complainant not to press charges. The appellant contends that the trial Judge erred in respect of directions to the jury regarding these purported confessional statements.
Held, per Parker J (Kelly J and David AJ agreeing), dismissing the appeal:
1. The appellant’s two grounds of appeal regarding, first, the statement “I fucked up”, and second, begging not to be charged, must be considered together because these remarks were intrinsically linked in both time and context (at [42]).
2. It was unnecessary for the Judge to direct the jury that they needed to be satisfied that the appellant had made the remarks and that the remarks were true, as this was not disputed at trial (at [43]-[44]).
3. The directions given by the Judge must be considered in light of the issues in the particular case, the circumstances of the trial and the submissions of counsel (at [49]-[50]).
4. When considering the adequacy of the Judge’s directions to the jury, it is of fundamental importance that the factual issues were few and not complex, and that the trial was short with addresses by counsel, the Judge’s summing up and the jury’s deliberations all occurring on the one day (at [51]-[52]).
5. The directions given by the Judge were not deficient (at [53]-[56]).
Criminal Law Consolidation Act 1935 (SA) ss 134, 170, referred to.
RPS v The Queen (2000) 199 CLR 620; R v Golubovic [2016] SASCFC 144; Shepherd v The Queen (1990) 170 CLR 573; R v Bauer (2018) 359 ALR 359; R v Wildy (2011) 111 SASR 189, applied.
R v MMJ (2006) 166 A Crim R 501; R v Burns (2009) 103 SASR 514; R v Buckley (2004) 10 VR 215; R v Thompson [2018] SASCFC 104; Burns v The Queen (1975) 132 CLR 258; Ross v The King (1922) 30 CLR 246; Flood-Smith v The Queen [2018] NSWCCA 103, considered.

R v WILTON
[2019] SASCFC 65
Court of Criminal Appeal: Kelly and Parker JJ, David AJ

KELLY J: I agree with the Orders proposed by Parker J for the reasons he has given.
PARKER J: This is an appeal against conviction on one count of aggravated serious criminal trespass in a place of residence contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), and one count of theft contrary to s 134(1) of the CLCA.
Grounds of appeal
The appellant advances the following grounds of appeal:
1. The Learned Trial Judge erred in failing to adequately direct the jury as to the use that could be made of the purported confessional statement “I fucked up”.
1.1.No direction was given as to the reasoning that the jury must apply to the evidence, namely, satisfaction that:
1.1.1.The words were uttered by the appellant;
1.1.2.That those words were capable of sustaining an inference that they amounted to an admission;
1.1.3.That the admission was referable to one or more of the charged offences; and
1.1.4.That the admission was true.
1.2.No direction was given as to the use to which the evidence could be put.
2. The Learned Trial Judge erred in failing to adequately direct the jury as to the evidence of the appellant begging not to be charged, in that:
2.1.No direction was given as to the reasoning that the jury must apply to the evidence, namely, satisfaction that:
2.1.1.The conduct occurred;
2.1.2.That the conduct was capable of sustaining an inference that it was an admission;
2.1.3.That the admission was referable to one or more of the charged offences; and
2.1.4.That the admission was true.
2.2.No direction was given as to the use to which the evidence could be put.
Background
The appellant and the complainant were in a relationship from about 2006 until 2012. Two children were born of that relationship. They were aged nine years and 11 years at the time of the trial.
Following the breakdown of the relationship between the appellant and the complainant, a Family Court order was made governing the appellant’s access to the two children. He was granted regular fortnightly access to the children. A Family Court order also restrained the appellant from being within 50 m of the complainant’s place of residence or work.
The complainant moved into a home at Aldinga Beach in about 2013 in which she lived with her two children. The appellant has not resided at that address at any time. However, he would have attended there on about four or five occasions to drop things off.
On the afternoon of 3 March 2017, the complainant left home to collect her children from school, but left the back door unlocked. When she returned, she entered the house through the front door. The appellant walked out of the complainant’s bedroom. When she asked what he was doing, he said that he was there to see the children. The complainant noted that the appellant was wearing multiple t-shirts and latex gloves. He said that he wished to speak to the complainant in her bedroom. Upon the complainant moving into her bedroom she noticed that the drawers of her dressing table were open and there was a backpack on the floor. At this time, she sent a text message to a friend asking her to call the police because the appellant was in her house. The complainant stated that the appellant became agitated as he said she was not listening to his side of the story. The appellant then allegedly assaulted the complainant. However, he was acquitted by the jury of a corresponding aggravated assault charge.
When the police arrived the appellant was bare chested and sweating profusely. The complainant drew the attention of the police to the backpack located on the floor of her bedroom. It was found to contain jewellery, perfume and sunglasses belonging to the complainant and an iPad belonging to one of her children. A head torch, screwdrivers and a receipt were also in the backpack. The police also seized latex gloves found on the bedroom floor. A DNA profile matching that of the appellant was later recovered from the head torch.
After the police arrived, the appellant was directed by one of the two officers to remain in the lounge room. He remained there with his two children until he was arrested outside the premises.
While the appellant remained seated in the lounge room there was a conversation between the two police officers. The conversation between the officers occurred a short distance away from the appellant. It included a discussion as to the nature of the charges upon which the appellant was to be arrested. The unchallenged evidence of one of the officers was that their conversation was conducted in hushed tones with the intention that the appellant would not be able to overhear the discussion. However, it was unclear whether or not the appellant may have overheard some or all of the conversation.
After the conversation between the two police officers had occurred, the appellant called out to the complainant that “I fucked up”. He also said to the complainant that he was sorry and begged her not to have him charged. During this time the appellant was visibly quite upset and crying. He was also holding his children. The police evidence about this issue was not challenged in cross‑examination.
Following his arrest, the appellant was taken to a police station and interviewed. He told police that the complainant had invited him to her house to discuss arrangements concerning their children. He told the police that the backpack was not his and nor were its contents. He also said that he had not been wearing the latex gloves. He claimed to police that he had knocked on the doors of the complainant’s home. He was at the back door when he heard noise from the front. He then entered the house at the same time as the complainant and the children. The appellant told the police that he went with the complainant into her bedroom to discuss the children. He asserted to police that he believed that he had been set up by the complainant. He also said that he did not recognise the screwdrivers, torch and receipt found in the backpack. However, he also said that these items may have been taken from his house during a break‑in.
Conduct of the trial
This was a relatively short trial extending over three days and the factual issues were not complex. The closing addresses by counsel, the Judge’s summing up and the deliberations of the jury all occurred on the final day. The closing address of defence counsel was reopened so that she could address the jury concerning the alleged admission and apology made by the appellant.
The prosecutor referred in her opening to the words used by the appellant as follows:
While this was happening, one of the police officers, the one who was speaking with the accused, will tell you that he yelled out a number of times that he was sorry, “he had fucked up” and he was begging that charges not be pressed.
The prosecutor also referred to the appellant’s words in her closing address where she stated:
You heard that while he was crying and holding onto his children he was calling out that he was sorry, he’d “fucked up” and was begging not to be charged. In my submission the only explanation for the accused making that apology was because he had been caught in the act of stealing [the complainant’s] belongings. When he had been caught he assaulted her. When the accused said that he was sorry, that he “fucked up”, you might think that those were the events that he admitted and he was begging not to be charged for.
The appellant’s counsel indicated in her address to the jury that when these remarks were made, the appellant was in a heightened state of emotion and both of his children were with him. Counsel submitted to the jury that there was uncertainty as to what his words referred to. She also stated that there may be alternative explanations for the appellant’s conduct that were consistent with those words being other than an admission to the alleged offending.
The Judge referred to the words used by the appellant when he was summarising the police evidence for the jury. His Honour stated that after the two officers had been discussing the matter, the appellant was upset and crying and said that he was sorry, he had “fucked up” and begged the complainant not to have him charged.
The Judge directed the jury as follows concerning what the appellant had said to the police:
What the accused said to the police, both at the house and during the interview, is material in the case that you can take into account and use as you think fit. You can use what he said either for him or against him, you can accept or reject anything that he said either in whole or in part, and you can attach different degrees of significance to different parts of it. Indeed, you can, if you see fit to do so, attach greater significance to any incriminating statements that he might have made. In short, it will be for you to say what, if anything, ought to be made of what the accused said on the day in question.
At a later point in the summing up the Judge referred to the prosecutor having submitted that:
when the accused’s account of why he was in the house is viewed in context, it can be seen to be implausible and she points to the accused’s statement that he had “fucked up”.
Soon after making that statement to the jury his Honour summarised the relevant submissions of the appellant’s counsel as follows:
Finally, she submitted that the accused’s behaviour is consistent with him going to the house to talk to [the complainant] about the children and she submitted that his statement that he had fucked up, and so on, is potentially equivocal and cannot be regarded as determinative.
The appellant’s submissions
Counsel for the appellant submitted that although there was no challenge to the police evidence that the appellant had said “I fucked up”, apologised and begged not to be charged, the jury still should have been directed that they needed to be satisfied that these the remarks had been made. They also needed to be directed that they needed to be satisfied that the words amounted to an admission. Because the remarks may have been a reaction to overhearing the police conversation, it was necessary to consider separately the words “I fucked up” and the plea not to be charged.
The appellant also contends that because the precise wording of the conversation between the police officers was not clearly established in evidence, and also because it was possible that the appellant only heard part of the police conversation, it was unclear as to what matter the implied admissions related. Thus, it was unclear whether the words related to a charged act.
Counsel referred to the judgment of Ashley JA in R v MMJ where his Honour considered the appropriate analysis of the evidence that was said to ground an implied admission.[1] Ashley JA held that it was necessary for the jury to consider three questions. Those questions were, first, whether any admission was made, secondly, what was the subject matter of that admission and thirdly, was the admission either true in part or wholly. Within those three broad headings further issues may arise. Ashley JA held that it was necessary to consider what use could be made of an admission in respect of its relevance to a charged act.
[1] (2006) 166 A Crim R 501 at 520-523 [70]-[92] (Ashley JA).
The appellant also submitted that the observations of Kourakis J (as his Honour then was) in R v Burns provide assistance when considering whether an implied admission was referrable to a charged act.[2] His Honour had noted the importance of identifying the probative value of the evidence and its prejudicial effect.
[2] (2009) 103 SASR 514 at 536 [79] (Kourakis J).
The appellant submits that it was necessary for the jury to be satisfied that in fact he had made the alleged statements referred to by the police. In addition to giving a direction to the jury about that matter, the appellant also submits that it was necessary to give a direction concerning the availability of alternative explanations for the appellant’s words. In that respect, the appellant’s counsel at trial had referred to the possibility that the words used were due to panic or the heightened state of emotion of the appellant. A further possible explanation was that the appellant was referring to his breach of the Family Court order that prohibited his attendance at the complainant’s home. There was a reasonable possibility that the appellant thought that the police had attended to enforce that order. The presence of the appellant’s children supported that possible explanation. In view of the several possible explanations, the appellant contends that the Judge erred in failing to give a direction to the jury about this issue.
The appellant also submits that the sole use to which the evidence of the appellant’s words could be put was as circumstantial evidence. The law in South Australia was unsettled as to the required level of satisfaction in relation to an implied admission. Earlier South Australian authorities[3] and also some interstate authorities[4] had favoured the adoption of the criminal standard in relation to proof of post‑offence conduct. That approach has been doubted more recently.[5] The appellant submitted that the current trend in the authorities is to require a jury to be satisfied but to no particular standard.
[3]    R v Wildy (2011) 111 SASR 189 at 210-211 [105]-[106] (White J).
[4]    R v Buckley (2004) 10 VR 215 at 224 [30] (Nettle JA).
[5]    R v Wildy (2011) 111 SASR 189 at 196 [26] (Vanstone J).
The appellant submitted that the relevant question, in relation to post‑offence conduct that was said to amount to an implied admission, was to determine whether a miscarriage of justice had occurred due to the failure to give a direction in the terms contended by the appellant. The failure to give such a direction was said not to involve an error of law.[6] However, the appellant submits that the failure to give a direction in the terms contended for has given rise to a miscarriage of justice. On that basis, the appellant submits that his convictions should be set aside and a fresh trial ordered.
[6] R v Thompson [2018] SASCFC 104 at [197] (Hinton J).
The respondent’s submissions
The respondent submits that the two grounds of appeal must be considered together as the statements made by the appellant were intrinsically linked in both time and context.
The respondent submits that there is no rule of law that evidence of the type in issue in this case must be separated and compartmentalised for the jury, nor is it required that such evidence must be made the subject of specific directions of the type contended by the appellant.
The respondent also submits that in Burns v The Queen the High Court had confirmed that the need for directions depends upon the circumstances of the case.[7] Barwick CJ, Gibbs and Mason JJ also stated in Burns that “there is no rule of law or of practice which requires the Judge to caution the jury against acting on such evidence or which prescribes any measure of the comment which it is his duty to make upon it.”[8] Similarly, in R v Thompson this Court had held that the principles governing post‑offence conduct did not apply to the statements of a defendant.[9]
[7] (1975) 132 CLR 258.
[8] Ibid at 261 (Barwick CJ, Gibbs and Mason JJ) quoting Ross v The King (1922) 30 CLR 246 at 255.
[9] [2018] SASCFC 104 at [128]-[133] (Peek J), [1] (Vanstone J agreeing). Hinton J also held that the absence of a direction was not an error of law at [197].
In this light, the respondent submits that whether or not there has been a miscarriage of justice due to a failure to give directions in the terms sought by the appellant depends upon the risk that the jury would misuse the evidence or fail to understand its limitations. The risk that the jury would misuse or fail to understand the limits of the evidence must be assessed in light of the circumstances of the trial.
The respondent notes that there was no dispute at trial that the appellant apologised, said “I fucked up” and asked not to be charged. For that reason the respondent submits that there is no basis for the suggestion by the appellant that the jury should have been directed that they must be satisfied that he actually made these comments.
The fact that the jury found the appellant not guilty of the charge of aggravated assault makes it clear that the jury had considered alternative explanations for the apology or admission. They had not simply assumed that the apology or admission applied to each of the alleged acts. The respondent submits that this was positive evidence that the jury had understood the limitations of the evidence referring to the apology or admission.

A further point made by the respondent is that the admission was not an integral part of the prosecution case. The comments made by the appellant were potentially inconsistent with the account he had given to the police and this fact was highlighted by the Judge. No further elaboration was required.
The respondent also submits that the appellant’s contention that each element of what he had said needed to be the subject of a separate direction to the jury defied common sense. The matter was treated as one comment at the trial and its meaning could only be established by considering all that the appellant had said. His reference to not being charged clearly identified the subject of his apology and also the subject of his statement that he had “fucked up”.
The respondent further submits that the contention by the appellant that the jury should have been directed to consider whether he had overheard the police conversation would have been inconsistent with the issues at the trial, and would simply have confused the issues for the jury. The basis for that submission is that the police officers were cross-examined about the possibility that their conversation had been overheard by the appellant. They had agreed that this was possible. They were also cross-examined to the effect that the appellant only became upset after their conversation had occurred “in front of him” or “a short distance away” from him. The appellant’s counsel had addressed the jury on the basis that he must have realised that he was about to be arrested and charged and this explained his reaction and comments. The giving of a direction to the jury that they should consider whether he had overheard the police conversation would only have confused the issues for the jury.
The respondent submits, in relation to the further directions that the appellant suggests were necessary, that much the same issue was considered by the New South Wales Court of Appeal in Flood-Smith v The Queen.[10]Hoeben CJ at CL with Walton and Button JJ agreeing, stated “in any event, the direction now said to have been necessary is really a matter of common sense: if the jury does not regard a statement said to be an admission as indeed an acceptance of guilt by the speaker, then self-evidently they will not use it as such.”[11]
[10] [2018] NSWCCA 103.
[11] Ibid at [120] (Hoeben CJ at CL), [152]-[153] (Walton and Button agreeing).
The respondent submits in the absence of some subtlety that might be missed by the jury, the directions now sought by the appellant were unnecessary. It was obvious that the appellant’s words were capable of supporting an inference that he had admitted to some act. The fact that the apology might support an inference that he was making an admission was not in issue at the trial and the need for the jury to be satisfied that the words constituted an admission was obvious. Because the appellant was on trial for more than one offence, it was obvious that his statement “I fucked up” might refer to one of those offences, some of them, all of them or none of them. It was not necessary to spell out the most basic reasoning process to the jury.
The respondent also points out that the Judge had reminded the jury of the argument that the comment “I fucked up” might be inconsistent with his statement to police that he had been invited by the complainant to her house. By implication, that limited the potential relevance of the appellant’s comment to the question of him being invited to the house or being a trespasser. In support of that contention the respondent refers to the observations made by Gaudron ACJ, Gummow, Kirby and Hayne JJ in RPS v The Queen.[12] Their Honour’s had observed that it is often the safer course for a judge to make no comment on the facts beyond reminding the jury of the arguments of counsel when identifying the issues for the jury.
[12] (2000) 199 CLR 620 at 637-638 [41]-[43] (Gaudron ACJ, Gummow, Kirby and Hayne JJ).
On that basis, the respondent submits that a direction is required when there is a risk that a jury will not understand a potentially significant matter or may misuse the evidence. In this case, counsel had identified the issues for the jury and the facts were not complicated. The finding of not guilty on the aggravated assault charge suggests that the jury understood the limitations in the evidence. The giving of a direction that the jury must be satisfied that the apparent admission by the appellant was truthful would have been unhelpful and potentially confusing. There is no issue as to whether the appellant was being truthful when he made the statements. The issue was whether there was another possible explanation for what he had said. There was no obligation on the Judge to give directions about an issue which had not arisen in the trial.
The task of the jury was to consider whether the words used by the appellant were an admission to something and, if so, what was being admitted. This was not a case where the comments made by the appellant were an indispensable link in the chain of reasoning towards a finding of guilt. Thus, there was no requirement for the jury to be directed that they must be satisfied beyond reasonable doubt that the appellant’s comments related to a particular charge and were true before they could be relied upon by the jury.[13] The evidence about the words used by the appellant was simply another piece of circumstantial evidence and no further direction was required.[14]
[13] R v Bauer (2018) 359 ALR 359 at 386 [86] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Elderman JJ).
[14] R v Wildy (2011) 111 SASR 189 at 195-196 [25]-[26] (Vanstone J).
Consideration
I accept the correctness of the respondent’s submission that the two grounds of appeal must be considered together. That is because the statements made by the appellant to the complainant in the presence of the police were intrinsically linked in both time and context. The clear effect of the appellant’s remarks was that he acknowledged that he made a mistake, was sorry and pleaded not to be charged. The only issue relevant to this appeal was whether the words constituted an admission and, if so, in relation to what matter. In other words, were the remarks referable to a charged act or some other matter, such as a breach of the Family Court order.
I reject the appellant’s submission that it was necessary for the Judge to direct the jury that they needed to be satisfied that the appellant had in fact made the remarks referred to in the police evidence. There was no dispute at trial that he had made these remarks.
I also reject the appellant’s contention that it was necessary to direct the jury that they needed to be satisfied that the appellant’s remarks were true. That was not an issue at the trial. Moreover it borders on the absurd to suggest that the jury should have been directed to consider whether the appellant was speaking the truth when he said that he had “fucked up” and begged not to be charged. Accordingly, I agree with the respondent’s submission that a direction on this point may have confused the jury.
It was uncertain from the evidence given by the police whether the appellant had overheard all or any part of their conversation. The appellant’s counsel specifically addressed the jury to the effect that he must have realised he was about to be arrested and charged and that fact explained his remarks. That submission by the appellant’s counsel was plainly correct. Regardless of what he did or did not overhear, it must have been very obvious to the appellant from the time the police arrived that there was a real likelihood that they may arrest and charge him. In those circumstances, the respondent is correct in its submission that a direction that the jury must decide whether the appellant had overheard all or any part of the police conversation would have been a potential source of confusion.
On reopening her address, the appellant’s counsel had submitted to the jury that there was nothing to indicate to what the appellant was referring when he said “I fucked up”. There could be explanations for this comment other than that he committed the offences. The Judge commenced his summing up immediately after the jury heard those submissions.
Although it would have been fresh in the jurors’ minds, the Judge reminded the jury of the defence submission that the appellant’s remarks, including the statement that “I fucked up”, were potentially equivocal and could not be regarded as determinative. In the passage I have quoted at [18] above his Honour also clearly directed the jury that it was a matter for them what use, if any, they made of what the appellant had said to the police at the house and later when he was interviewed at the police station.
The Judge expressly stated that the appellant’s comments and statements could be used either for him or against him and could be rejected in whole or in part and different degrees of significance could be attached to different parts of what he had said.
The respondent has submitted that the directions given by the Judge must be considered in light of the issues in a particular case, the circumstances of the trial and the submissions of counsel. That submission correctly reflects the observations of the High Court in RPS v The Queen where Gaudron ACJ, Gummow, Kirby and Hayne JJ stated:[15]
It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge’s other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.
To attempt to instruct the jury about how they may reason towards a verdict of guilt (as distinct from warning the jury about impermissible forms of reasoning) leads only to difficulties of the kind that have arisen in the present case.
(Footnotes omitted; emphasis in original)
[15] (2000) 199 CLR 620 at 637 [42]-[43] (Gaudron ACJ, Gummow, Kirby and Hayne JJ).
Similar observations were made by Blue J, with Nicholson and Doyle JJ agreeing, in R v Golubovic where his Honour stated:[16]
A trial judge has a large measure of discretion as to the level of detail to which the judge descends in identifying the issues in the case and the respective cases of the parties on those issues. At one extreme, in a short trial in which there is a single real forensic issue, no contested evidence, no complexity and the addresses of counsel adequately identify and explain the issues and the respective cases of the parties, there may be very little, if any, need for the judge to identify the issue for the jury or explain to the jury the cases of the parties. At the other extreme, in a long trial in which there are multiple complex issues, contested evidence and important matters not addressed by counsel, it may be essential that the judge gives to the jury a comprehensive identification of the issues in the case and the cases of the parties on those issues. In cases across the spectrum, within limits it will still be a matter of discretion and personal style as to the detail which the judge identifies the issues and the parties’ cases.
[16] [2016] SASCFC 144 at [148] (Blue J), [163]-[164] (Nicholson and Doyle JJ agreeing).
The observations of the High Court in RPS and of this Court in Golubovic are directly on point in the present case. When considering the adequacy of the Judge’s directions to the jury, it is of fundamental importance that the factual issues were few and not complex.
The trial was also short. In the latter context it is significant that the addresses by prosecution and defence counsel, the Judge’s summing up and the jury’s deliberations all occurred on the one day. Thus, as I have said, the issues would have been fresh in the minds of the jury. Moreover, the fact that defence counsel reopened her address specifically to address the use that might be made of the appellant’s remarks must have served to emphasise to the jury his position that the remarks may have referred to any one of several other possible matters rather than being an admission to a charged act, and also that they may not have been an absolute indication of guilt but a reaction to the prospect of the appellant being arrested and taken away from his children.
For the preceding reasons I do not consider that it was necessary for the Judge to give more elaborate directions along the lines suggested by the appellant concerning the remarks made by the appellant. The several directions to which I have referred at [17] to [20], were sufficient to ensure the jury was not confused about the issues it needed to decide.
My view about that matter is reinforced by the majority verdict of the jury that the appellant was not guilty of the offence of aggravated assault. That finding is a strong indication that the jury understood the need to consider whether the appellant’s remarks constituted an admission and most importantly, if there was an admission, that it was necessary to consider to which charged act that admission related.
The remarks made by the appellant to the complainant in the presence of the police were only one element of the prosecution case. Even if the jury concluded that the appellant’s remarks did not relate to a charged act, there was much other evidence upon which a finding of guilt could be based. In other words, the evidence about the appellant’s remarks was simply one strand in the prosecution case and not an indispensable link in the chain of reasoning. Accordingly, it was not necessary for the jury to be directed that they needed to be satisfied beyond reasonable doubt that the remarks made by the appellant constituted an admission and related to particular charged acts before they could be relied upon.[17]
[17] Shepherd v The Queen (1990) 170 CLR 573 at 576-577 (Mason J); R v Bauer (2018) 359 ALR 359 at 386 [86] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); R v Wildy (2011) 111 SASR 189 at 195-196 [25]-[26] (Vanstone J), 191 [1] (Sulan J agreeing), 209 [102] (White J dissenting).
For these reasons, I reject the appellant’s contention that the directions given by the Judge were deficient and that a miscarriage of justice has occurred. The directions given by the Judge when viewed in the context of the trial were sufficient to remove any risk that the jury may have misunderstood the issues.
Conclusion
I would dismiss the appeal.
DAVID AJ: I would dismiss the appeal. I agree with the reasons of Parker J.