R v Yout - [2012] SASCFC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v YOUT
[2012] SASCFC 1
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Stanley)
11 January 2012
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - DIRECTIONS TO JURY
CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY - ADEQUACY OF WARNING - LIES BY ACCUSED
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DIRECTION TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EXPRESSION OF JUDGE'S OWN OPINION - PARTICULAR CASES
Appeal against conviction – appellant found guilty of aggravated causing serious harm with intent to cause serious harm and aggravated causing harm with intent to cause harm –appellant involved in a brawl during which he hit two men with a piece of wood – whether trial judge erred in directions to jury on self-defence – whether judge erred in direction to jury on use that could be made of lies the appellant had admitted telling when first interviewed by police – whether judge reversed onus of proof – whether judge’s direction had the effect of usurping the jury’s role.
Held: Vanstone J (Doyle CJ and Stanley J agreeing) appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 15, referred to.
Harris v The Queen (1990) 55 SASR 321; Dhanhoa v The Queen (2003) 217 CLR 1, considered.

R v YOUT
[2012] SASCFC 1
Court of Criminal Appeal: Doyle CJ, Vanstone and Stanley JJ

DOYLE CJ: I would dismiss the appeal against conviction. I agree with the reasons of Vanstone J. There is nothing that I wish to add.
VANSTONE J: The appellant stood trial in the District Court, together with another man, Jol, charged with two offences of violence committed against two victims. The first count was aggravated causing serious harm with intent to cause serious harm against a man whom I shall call Branch and the second count was aggravated causing harm with intent to cause harm, the victim being one Rigney.
The appellant was convicted on both charges. Jol was convicted only on Count 2.
The appellant now appeals against the convictions upon grounds that the judge erred in the directions given to the jury on the topic of self‑defence, and about lies which the appellant admittedly told police during an interview. He further complains that the judge incorrectly reversed the onus of proof at one point and that, at another, he gave a direction which had the effect of usurping the jury’s function. A judge of this Court granted permission to appeal on these grounds.
Background
The charges arose out of a confrontation between the occupants of two motor vehicles in the vicinity of Port Road, Beverley at about 11 o’clock on the night of 25 January 2008. Branch and Rigney had been at a party. At some stage, along with two others, they went in Branch’s car to the Halfway Hotel to purchase liquor. They were served in the drive-in area of that hotel. The appellant and his companions were also at the hotel purchasing liquor. There were four persons associated with the vehicle driven by the appellant, which was a green Holden Commodore. There was an exchange between some of the occupants of the two vehicles, after which the appellant drove his vehicle away. When the victims left the hotel they saw that the appellant’s vehicle was parked on Port Road. When they passed by, it was driven from the roadside and began to follow them. Shortly afterwards the lights of the appellant’s car flashed at them and both vehicles ended up stopping in a side street running off Port Road. The prosecution case was that a confrontation ensued between the two groups, leading to a fight started by one of the appellant’s group. The prosecution witnesses said that the appellant – identified as being the driver of the green Commodore and the biggest man among his group – then struck Branch to the head with a piece of timber, felling him. It was alleged that shortly afterwards the appellant struck Rigney with the same piece of timber. Other members of the group also engaged in fighting. The confrontation did not last very long. After the groups separated it was realised that Branch had suffered serious head injuries and he was taken to the Queen Elizabeth Hospital.
On the following day the appellant was spoken to by police. Initially he said that at the relevant time he had been at a party at Kilkenny and that another person had been in possession of his car. He said he did not know who had been driving his car at about 11.00pm. He said that when he left the party he went back to his car and drove into the city to drop some female friends there and that he had then gone home. He said he did not know the girls’ surnames and could not provide their addresses. When asked about a piece of wood found by police in the boot of his car he denied knowledge of it. After being told by police that a piece of wood which matched the piece in his car had been found on the side of the road near where the fight had occurred, he admitted being present during the incident; but he denied hitting anyone with the wood. He went on to say that he was not initially involved in the confrontation with the victims’ group, that one of his own group had taken the piece of wood from his boot, that at the point of his joining the fight his friends were getting the worst of it and that he had delivered a “couple of punches” to the driver of the other car (one Wilson). He further said he had hit the man with the red top (Rigney) “across the back” once with the piece of wood. The appellant was arrested and advised of his rights. The questioning continued. The appellant then told police that he had been defending himself. He said that one of his friends had yelled out: “Watch out, he’s carrying a knife”, and that the appellant then grabbed “a stick” from his friend and hit the man wearing the red top with it. He also said that he punched the driver of the other car twice.
Neither the appellant, nor Jol, gave evidence in his defence. Apart from statements made in the appellant’s interview, there was no material from which an inference could be drawn that he was acting in self-defence when he hit Rigney.
The prosecution relied on joint enterprise to inculpate Jol. But it accepted that the appellant was the principal in the first degree in relation to both counts; that is that he had himself inflicted the injuries to both victims with the piece of wood.
The defence put to the jury by the appellant’s counsel in relation to Count 1 was one of identity. In relation to Count 2 the defence was self‑defence.
I shall deal with each of the grounds in sequence.
Directions on self-defence
The appellant complains that, in the directions going to self-defence relevant to Count 2, the judge told the jury that self-defence would not be available if the jury concluded that the appellant was party to a joint enterprise to commit violence. Counsel appearing upon the appeal, Mr Barklay, argued that such a direction was too absolute. He submitted that even where there was a joint enterprise to inflict violence, resort could be had to self-defence in circumstances where the violence offered by the opposing group went beyond that which it was agreed or understood by the two groups would be used. Mr Barklay also complained that the basis upon which self-defence was left was unduly narrow, in that it was said only to be available to justify a hit to Rigney’s back, but not to his head. Then it was argued that in making several references to “reasonable self-defence” the judge misdescribed the relevant concept. Next it was submitted that in the oral directions (although not in the written memorandum supplied to the jury) the two limbs of self-defence were not fully described, and, that in the written memorandum there was a suggestion that the genuine belief of the appellant that his conduct was necessary and reasonable needed to be based on “the actual situation in which he was at the time”, as opposed to the appellant’s appreciation of the situation.
I consider that in the circumstances of this case the judge was correct in directing the jury that self-defence was not available if the appellant had willingly engaged in combat. This was not a situation analogous to a boxing match where consent was given in advance to a certain level of violence. There was no suggestion, even in the appellant’s interview, of an agreement between the two groups and then a departure from its terms. In any event it is apparent, even from the appellant’s interview, that the piece of timber was introduced into the fight by the appellant’s group before there was any suggestion that the victims’ group had a knife. Of course, on the version given by the occupants of the car driven by Branch, the fight had been commenced by the appellant’s group and no knife was introduced.
In discussion with the judge in the absence of the jury it was agreed by counsel then acting for the appellant that self‑defence would not be available in the face of a joint enterprise to fight the victims’ group. I consider that concession was correct.
I do not agree that the directions given by the judge had the effect of precluding the jury from considering self-defence if it found the appellant had hit Rigney to the head, as opposed to the back. Read as a whole the directions do not confine the availability of self-defence in that way. Naturally enough, the judge referred to the version given in the interview which admitted only a blow to Rigney’s back. That was, of course, the only material coming from the appellant which the jury could consider. However, in describing the principles underlying self-defence the judge did not limit the nature of the violence which might be justifiable.
I do not consider that any error was involved in the use of the shorthand term “reasonable self-defence”. As I have said, the judge gave more expansive directions on self-defence both in his oral directions and in the memorandum provided to the jury. The jury could have been under no misapprehension that these were other than shorthand references to the definition of self-defence given in the oral and written directions. While the appellant now complains that the oral explanation about the first limb of self-defence was inadequate, the failure identified resulted in a direction which was in fact too favourable to the appellant. The inadequacy highlighted was as follows. The judge at one point omitted a direction to the effect that there had to be, not only a genuine belief in the need to act defensively, but also that the belief needed to extend to the reasonableness of the action taken: s 15 Criminal Law Consolidation Act 1935 (SA). Other references contained the full direction, but as I said, the omission was to the appellant’s advantage.
The further complaint about the directions arises from the written memorandum. In relation to the first limb of self-defence the relevant question was posed in the memorandum as follows:
At the time when he struck Mr Rigney is it at least reasonably possible that Mr Yout genuinely believed that it was necessary and reasonable to do so for a defensive purpose?
[In answering this question you must consider what Mr Yout himself genuinely believed was necessary and reasonable to act for a defensive purpose in all the circumstances in which he found himself. You do not answer this question by considering what some imaginary reasonable person would have believed. This stage of enquiry is concerned with Mr Yout’s own belief, given the actual situation in which he was at the time.]
(Emphasis added)
Mr Barklay’s complaint is that the reference to “the actual situation in which he was at the time” would lead the jury to contemplate, not the appellant’s appreciation of the situation facing himself and his companions, but rather the situation as it truly was.
I acknowledge that the reference to the “actual situation” was not very helpful. There is a tension between that expression and the earlier reference to “the circumstances in which he found himself”. However, the thrust of the question as posed, as well as the bracketed explanation, was clearly directed to the appellant’s state of mind and the situation as he saw it. In my opinion the jury could not have been under any misapprehension on account of the reference to “the actual situation”.
I do not consider that any of these complaints are of substance. In any event, I note that in circumstances where the jury found the appellant guilty of Count 1, it had clearly rejected that part of his interview in which he denied hitting anyone apart from the man wearing the red top. His plea of self-defence in relation to that blow was then, almost inevitably, to face the same fate.
Directions on lies
In this case the prosecution relied on lies which the appellant told police in the earlier stage of his interview. It was suggested to the jury by prosecuting counsel that the lies not only reflected on the appellant’s credibility in his denial of use of the piece of wood other than once on Rigney’s back in self-defence, but were also indicative of a consciousness of guilt.
The lies were to the effect that he had no involvement with the relevant events, that he had not been driving his car at about 11.00pm and that he had no knowledge of the piece of timber found by police in his boot. Statements he made later in his interview contradicted all of those denials. He also admitted having earlier lied. He said he had been “Try[ing] to be smart”. With the acquiescence of counsel then acting for the appellant, the judge left the lies to the jury as potentially amounting to evidence of guilt. The judge’s direction was as follows:
The prosecutor has argued that you should pay close attention to the fact that Mr Yout both admitted he initially lied to the police but eventually admitted wielding the piece of wood as a weapon and striking a person likely to be Mr Rigney with it. He argued that apart from the admission that Mr Yout indeed did use the wood as a weapon, each of the accused tried to minimise their role in the events. And he argued that you should give their comments to that effect little weight.
I need to give you a direction about what use you might make if you do find that there are lies in the record of interview. The telling of a lie, if you find a lie was told, can affect the credit of the person who tells the lie. It is commonsense. Also it can in some circumstances amount to a comment which you might find indicative of guilt. Not every lie will amount to that. It is only if you conclude that the lie has been told because the person perceives the truth inconsistent with his innocence that the telling of the lie is evidence against him. The lie must also relate to a material issue in the case for it to have this effect. If someone lied about their age of course out of vanity that might be a lie but it would have nothing to do with this case.
Of course you may also conclude that the lie does not indicate a consciousness of guilt, that even if material, that it could stem from some other reason and that you will recall that [counsel] indicated several reasons that he cited to that effect. So you will consider all of that in determining what you make of any statements by Mr Yout that you conclude are lies.
Mr Barklay argued that the judge was wrong in leaving the lies as potentially demonstrating a consciousness of guilt. He put that at least some of the lies amounted to no more than a denial of the offences. He relied on a statement by King CJ in Harris v The Queen (1990) 55 SASR 321 to the effect that lies told after an accused person becomes aware that suspicion has rested upon him rarely amount to evidence of guilt. Further, it was argued that, even if the lies could be seen to evince a consciousness of guilt, the directions given regarding the evaluation of such lies were inadequate. It was submitted that the lies were not adequately identified and the jury was not instructed to bear in mind that the appellant might have lied for reasons unrelated to his role in the incident.
In my view the appellant’s false denials of knowledge of the incident and of the piece of timber were capable of amounting to some evidence of guilt. The false story given to police by the appellant was a rather elaborate one. It accounted for his movements during the relevant period in such a way that police could have had no avenue to verify his story. Importantly, it also allowed for the possibility that someone else had been driving his motor vehicle at the relevant time. The appellant persisted with his denials for a significant period of time. His false denials covered a number of pages of transcript. The change of story was only precipitated by police asserting that the piece of wood from the appellant’s boot matched one found on the side of the road where the fight had occurred. While I acknowledge the force of the statements of King CJ in Harris I also consider that it was open to the jury to take the view that the false denials had significance going beyond the issue of credibility. It is not always easy to draw the line between lies evincing consciousness of guilt and those which merely reflect on credibility. In Dhanhoa v The Queen (2003) 217 CLR 1 there was a marked difference in the approach taken by members of the High Court to the appellant’s denial at interview of having been at the hotel where the offence had occurred. That divergence of opinion illustrates the difficulty of which I speak. Nevertheless, as I said, I am satisfied that the false denials here were of the calibre that could give rise to an inference of guilt.
In his directions to the jury the judge identified the relevant lies as being the initial denials of involvement. In the circumstances of this case that was sufficient. The jury would have been well aware of the appellant’s initial false denials of being either the driver of his car at the relevant time or involved in the incident. In addition, there was no need to draw the jury’s attention to the question of whether the lies were deliberate. The appellant had admitted lying and given his, rather weak, reason for having done so. Plainly the lies went to a material issue. The judge drew the jury’s attention to the fact that some lies were only capable of affecting the credit of the person telling them, and that other lies might be indicative of guilt. He alerted the jury to the hallmark of the latter type of lie.
It is true that the judge did not draw the jury’s attention to the reason given by the appellant for the lie; however he did refer to the fact that defence counsel had discussed with the jury possible reasons for the lies. They were that the appellant was possibly scared, not in his native country, not familiar with the way police operate in this country and perhaps doubtful that the police would believe him. Inasmuch as these reasons amounted to possibilities which counsel had advanced on behalf of his client and were not grounded in the evidence, I do not consider that the judge was obliged to reiterate them.
There is no substance in this ground.
Direction on onus of proof
The appellant accepted that the judge’s general directions regarding the onus and standard of proof were unexceptional.
This ground complained of a particular passage in the summing up which, it was suggested, could be read as imposing on the appellant a burden of proving affirmatively the exculpatory matters upon which he relied in his interview. The asserted misdirection appears in the following passage:
A record of interview, or in other words a conversation between a police officer and an accused person is evidence. It was called in this case and it is part of the material before you. A statement or record of interview of each of the accused is admissible against the accused that made the statement. You may consider it together with all of the other evidence in determining what facts you find proven in the case. It is like anything else a person says, you can accept all of it as the truth, you can accept part of it as the truth, you may accept it as a half truth or you may accept none of it as the truth. You may consider things said by a particular accused together with all of the other evidence to come to your view of what facts you find proven. Again, ladies and gentlemen, I reiterate that as I have been going through my summing up and I have been saying ‘You must be satisfied’, ‘you might find this proven’, in every case I mean beyond reasonable doubt when I have used that term in the context of the prosecution case or anything that has to be proven against the accused.
(Emphasis added)
The particular complaint relates to the underlined passage.

This direction was given in the course of discussing the prosecution case. It would have been plain to the jury that the judge was directing them about using the interviews against the accused men. In the passage set out he specifically directed the jury that the burden and standard of proof applied to the prosecution in relation to anything that had to be proved against an accused.
No complaint was made by any of the counsel then appearing related to this (or any other) direction now the subject of complaint.
I do not consider that the passage contains any misdirection.
Directions said to usurp the jury’s function
This ground complains that in his survey of the evidence relevant to Count 1 the judge effectively usurped the jury’s function by indicating his view on the only matter in contention from the appellant’s viewpoint, namely identity.
The passage complained of occurred in a section of the summing up dealing with the evidence from one of the occupants of the car containing the victims, Arthurson, as well as such evidence of the victims’ group which might be a basis for a finding of joint enterprise. The passage is as follows:
As I mentioned, Mr Arthurson said his group lined up behind the car and the other group appeared to be doing the same. He said ‘We were just stood there and then we just knew they were going to fight us, and then we shaped up and then the biggest male out of their group pulls out a plank of wood and hit [Branch]’. Mr Arthurson reiterated the first act he could recall of the fight was a big man hitting [Branch] with a plank of wood. He said [Branch] just fell straight to the ground and that the person who hit him was African, tall and a big build. He said he recognised this person as one of the males from the bottle shop. He said Exhibit P5 looked like the plank of wood with which [Branch] was struck to the head. He said at the time [Branch] had shaped up for a fight but was not actually fighting with anybody. He said [Branch] was hit from behind.
Together with the other evidence in the case, including the evidence suggesting that Mr Yout was the biggest man in the group and the driver of the dark car, whilst it is entirely a matter for you, you may think this is direct evidence that Mr Yout struck Mr Branch in the head, as alleged in count 1 of the information.
(Emphasis added)
The passage I have emphasised does not amount to a direction to the jury that the evidence under consideration should be accepted. The evidence from members of the victims’ group was that the driver of the green Commodore was much bigger than the others in his group. In the passage complained of all the trial judge did was identify Arthurson’s evidence as evidence going to Count 1 and evidence which, together with the other descriptive evidence, pointed to the appellant as the person delivering the blow the subject of Count 1. It was not a direction to the jury to accept either Arthurson’s evidence or that of any other witness. In my view, it was merely a direction which could assist the jury in assimilating the evidence of the various prosecution witnesses.
I do not accept that such a direction had the effect of usurping the jury’s function. Nor do I accept that the jury might have misinterpreted the instruction as being an expression of the judge’s own view, as the appellant’s counsel argued.
I do not consider there is substance in this complaint.
Conclusion
None of the grounds of appeal has been made good.
I would dismiss the appeal.
STANLEY J: I would dismiss the appeal. I agree with the reasons of Vanstone J.