(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]).
[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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AGLC
R v WILTON [2019] SASCFC 65
Case
[2019] SASCFC 65
Decision Date
CaseChat Overview and Summary
The appeal in *R v Wilton* concerned the adequacy of directions given by a trial judge to a jury regarding certain statements made by the appellant. The appellant was charged with property offences, including theft and trespass to land, arising from an incident at the complainant's residence. The core of the dispute on appeal related to two pieces of evidence: the appellant's alleged utterance of the words "I fucked up" and his subsequent behaviour of begging not to be charged. The appeal was heard by Kelly and Parker JJ and David AJ in the appellate court.
The appellant argued that the trial judge failed to adequately direct the jury on how to consider these statements. Specifically, the appellant contended that the jury should have been directed to be satisfied that the words were uttered by him, capable of being an admission, referable to the charged offences, and true, before they could be used as evidence. Similar directions were argued to be necessary in relation to the appellant's conduct of begging not to be charged. The appellant's grounds of appeal asserted that the absence of these directions constituted a misdirection and a potential miscarriage of justice.
The appellate court rejected the appellant's submissions. It reasoned that the statements made by the appellant were not indispensable to the prosecution's case, but rather constituted circumstantial evidence. The court found that there was no dispute at trial that the appellant had made the remarks, nor was the truthfulness of the statement "I fucked up" a relevant issue. The court considered that directing the jury to determine the truth of such a statement would have been absurd and potentially confusing. Furthermore, the court noted that the appellant's counsel had presented a plausible alternative explanation for the appellant's conduct, suggesting it was a reaction to the imminent prospect of arrest, and that a direction on whether the appellant overheard police conversations could have added unnecessary confusion.
Consequently, the court concluded that the directions given by the trial judge, when viewed in the context of the entire trial, were sufficient and did not create a risk of jury misunderstanding. The appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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; and1.1.4.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; and2.1.4.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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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.