SHELDON v Police
[2011] SASC 105
•5 July 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SHELDON v POLICE
[2011] SASC 105
Judgment of The Honourable Justice Peek
5 July 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE
Appeal against convictions of two counts of assault – appellant alleged to have assaulted complainant on 16 August 2009 – photographs were taken of complainant by crime scene officer on 18 August 2009 – statement of crime scene officer stating that photographs were taken on 28 August 2009 was tendered by consent at trial – whether miscarriage of justice occurred by reason of this materially incorrect statement.
Held: appeal allowed - a miscarriage of justice has occurred – defence counsel at trial proceeded on the basis that photographs were taken on 28 August 2009 when they were actually taken on 18 August 2009 – the Magistrate proceeded on an incorrect factual matrix - one cannot be confident to the requisite degree that her Honour would in any event have convicted the appellant – convictions on counts 2 and 3 are set aside – the appellant may be re-tried by a different Magistrate on counts 2 and 3 only on the present Information.
R v Edwards [2007] SASC 202, applied.
Tran v The Queen (2000) 118 A Crim R 218; Grey v The Queen (2001) 75 ALJR 1708; Mallard v The Queen (2005) 224 CLR 125; R v Softley (1999) 206 LSJS 48; R v Moubarak (2002) 219 LSJS 276; R v Hamilton (1993) 68 A Crim R 298; R v Oliverio (1993) 61 SASR 354; Siebel v The Queen (1992) 57 SASR 558; The Queen v MRW (1999) 113 A Crim R 308; Stead v State Government Insurance Commission (1986) 161 CLR 141, considered.
SHELDON v POLICE
[2011] SASC 105Magistrates Appeal
PEEK J. This is an appeal against two convictions of assault contrary to s 20(3) Criminal Law Consolidation Act 1935 (SA).
Background
The charges arose in the context of an argument on 16 August 2009 between the appellant and the complainant who were then in a sexual relationship. They had been out drinking together and had encountered another male who had previously had a relationship with the complainant. Subsequently, when they were alone at the appellant’s house at Birkinhead later that night, an argument developed arising out of the appellant’s concern or jealousy in relation to that other male. The relative states of intoxication of the appellant and the complainant were in dispute at trial. The complainant later complained to police that the appellant had threatened her and then assaulted her before allowing her to leave. The appellant was charged on Information as follows:
1.On the 16th day of August 2009 at BIRKENHEAD in the said State, without lawful excuse threatened to harm [D.S.] intending to arouse a fear of threat would be, or was likely to be, carried out, or was recklessly indifferent as to whether such a fear is aroused.
Section 19(2) of the Criminal Law Consolidation Act, 1935.
2.On the 16th day of August 2009 at BIRKENHEAD in the said State, assaulted [D.S.]
Section 20(3) of the Criminal Law Consolidation Act, 1935.
3.On the 16th day of August 2009 at BIRKENHEAD in the said State, assaulted [D.S.]
Section 20(3) of the Criminal Law Consolidation Act, 1935.
Count 1 alleged a threat prior to any assault. Count 2 was particularised as alleging that the appellant pushed the alleged victim to the lounge. Count 3 was particularised as alleging that the appellant had then placed his hands around the alleged victim’s throat and squeezed the throat. All three offences were alleged to have occurred seriatim over a short period of time.
At the end of the prosecution case, the Magistrate found there was no case to answer with respect to count 1, recording a not guilty verdict. Her Honour found there was a case to answer on counts 2 and 3. The defendant then gave evidence denying any intentional assault. The case was essentially one of oath against oath but there were two other evidential matters of importance. The first was an alleged contemporaneous observation by Constable Bellenger of a mark on the neck of the complainant. The second was a set of six photographs taken by a different police officer which may have had an important bearing on both the acceptance of the evidence of Bellenger and the case generally. It is the combination of these two matters that forms the centre piece of the appeal.
The conclusion of the Magistrate
Her Honour considered the evidence of both the complainant and the appellant at some depth and with care. She found the appellant guilty of counts 2 and 3.
The grounds of appeal
The grounds of appeal were as follows:
1.That the verdict was unsafe and unsatisfactory.
2.That the learned Trial Magistrate erred in accepting evidence of the Crime Scene Officer under s 59J of the Evidence Act where it conflicted with the oral evidence of the complainant.
An extension of time was required. I grant that application and extend time until the date of the filing of the Notice of Appeal on 20 April 2011.
The statement of Brevet Sergeant Goodwin
The appeal was argued by reference to ground 1 of appeal, the complaint essentially being that a miscarriage of justice occurred due to a materially incorrect written statement by a SAPOL Crime Scene Officer, Brevet Sergeant Goodwin (Goodwin) being sworn and received into evidence. The statement was as follows:
I am a member of the South Australian Police Forensic Services Branch and have been since December 1990. My present role is that of a Crime Scene Investigator for the Northern Operations Service (PORT ADELAIDE LSA).
I have completed a Crime Scene Examiners Course and have received on going training from specialist members of the Branch as well as staff from other relevant Government Departments and Laboratories, relating to examination techniques, collection and preservation of trace materials and the examination for and development of fingerprint evidence.
I am authorised to perform forensic procedures under the Criminal Law (Forensic Procedures) Regulations 1999 (Gazetted 29th June 2000).
The photographs taken in relation to this matter are now produced as DMS-1 and are listed in Appendix A of the statement.
[D.S]
At about 10.20am on Tuesday 28th August 2009, I attended at the Port Adelaide Police Station, 244 St Vincent Street PORT ADELAIDE.
At this location I photographed alleged injuries to a female person now known to me as D.S.
(Emphasis added)
Six photographs of the complainant are then referred to. The statement and photographs were received at trial as exhibit P1. The trial was conducted from beginning to end on the basis that the photographs were in fact taken on 28 August 2009, some eleven days after the alleged assaults. In fact that date was incorrect and the photographs were taken at about 10.20am on 18 August 2009, the assaults being alleged to have occurred late on the night of 16 August 2009.
Her Honour delivered her judgment on 28 March 2011. Some time subsequent to that date there was apparently some communication from the DPP to the appellant advising that there had been an error as to the date and eventually, on 8 June 2011, an affidavit was sworn by Goodwin. A copy of that affidavit was not provided to chambers until less than an hour prior to the scheduled hearing of the appeal on Tuesday, 14 June 2011. At the hearing, the prosecution tendered the affidavit and it was received by consent as exhibit P1 (on appeal). It read in full as follows:
1.I currently hold the rank of Brevet Sergeant 11437 and I compiled this statement on 8th June 2011.
2.In relation to the statement made by me (dated 13th October 2009), reguarding [sic] D.S. (Police Incident Report 10/Q78582/Forensic Services Workfile 10-553). The date the photographs (DMS-1) were taken of S (at the Port Adelaide Police Station) was at about 10.20am on Tuesday 18th August 2009 (and not the 28th August 2009, as stated in the previously submitted statement).
The absence from the affidavit of any explanation as to how the error occurred, let alone any expression of regret, is surprising. It is in fact this error by Goodwin which alone is responsible for the trial miscarrying and the consequent not inconsiderable expense to the State of the holding of a re-trial should it be decided that it is appropriate to proceed against the appellant a second time.
The course of the trial and the admission of exhibit P1
It appears that counsel appearing for the appellant at trial, in the belief that the date of 28 August 2009 was genuine, consented to Goodwin’s statement and the photographs of the complainant being admitted by consent and without Goodwin attending for cross-examination. However, the appellant argues that there was no real or valid consent because the decision was made upon a false understanding of the photographs’ provenance and date and that if the true date had been known, competent counsel would have insisted that Goodwin be called and cross-examined. I will refer to some of the matters as to which the correctness of the date was material.
The evidence of First Class Constable Bellenger
First Class Constable Bellenger (Bellenger) was an important witness for the prosecution. He gave evidence that on 17 August 2009, he and Constable Thomas (Thomas) had been tasked to an address at Birkenhead where they spoke to the complainant. He stated that “she had some minor redness around her throat consistent with being grabbed”, indicating either side of the middle throat area to her Honour. There is no doubt that this aspect of Bellenger’s evidence was strongly disputed. He was cross-examined in relation to his statement made on 4 November 2009 (signed on 22 November 2009) and agreed that there was no mention there of the complainant alleging that she had had her neck or throat choked or, importantly, of him observing that she had any redness around her throat. He stated that “having left those things out was an oversight”. He stated that his partner Thomas was the investigating officer, but Thomas was never called by the prosecution.
Bellenger was not cross-examined as to the photographs which clearly do not show any such redness. However, this was obviously for the very good reason that it was thought that the photographs had been taken about eleven days later when such redness, if it had existed, would likely have dissipated; there can equally be no doubt that if defence counsel had known that the photographs were in fact taken the day after the alleged assaults, there would have been strong cross-examination as to the absence of any mark at that time.
Her Honour specifically stated that careful consideration had to be given to the question of whether the critical aspect of the evidence of Bellenger should be accepted having regard to its belated nature. She stated in relation to the photographs:
[41]His observations were made the morning after the alleged incident. He indicated he saw redness. He does not say he saw bruises. Photographs of the complainant were not taken for a further 12 days. Only the lower part of her neck is seen on Photograph 1 in Exhibit P2. The complainant was of the view that bruising did not ever show itself on her neck area. I find I can rely upon the evidence of Officer Bellinger on this point.
Her Honour appears to formulate two (alternative) propositions concerning the absence of any apparent mark on the complainant’s neck in photograph 1.
The first alternative was that, in light of the fact that the complainant stated that these marks never turned to bruises, any redness seen on 17 August 2009 would have disappeared by the time the photographs were taken 12 days later. The point made on appeal is that it would seem clear that her Honour would not have so reasoned if she had known that the photograph had in fact been taken the next day.
The second alternative was that, in stating that “Only the lower part of her neck is seen on Photograph 1” her Honour was referring to the fact that the upper part of the complainant’s neck is somewhat obscured by the lower part of her face, thus possibly obscuring some marks consistent with the observations of Bellenger. This would also seem to be the interpretation placed on her Honour’s words by the DPP whose outline of argument states:
In any event, the Magistrate said of the photographs, “Only the lower part of her neck is seen in Photograph 1 in Exhibit P2”. It is submitted that the inference to be drawn from this remark is that the photographs do not depict the area on which the red marks were observed, and were accordingly uninstructive in any case.
However, the point made by the appellant is that if defence counsel at trial had known that the photographs were taken on 18 August 2009, there is no doubt that he would not have consented to the statement of Goodwin being tendered without him attending for cross-examination. Such cross-examination would inevitably have included questions as to Goodwin’s conversation with the complainant as to, inter alia, her injuries, his observations of the presence or absence of relevant marks and the fact that Goodwin would undoubtedly have arranged to take unobscured photographs of any mark to the neck if such mark was obscured by the particular pose adopted by the complainant in the present photograph 1. In short, the appellant argues that these matters would have produced a different factual matrix by which Bellinger’s evidence was to be assessed.
It is clear that, having decided to accept the contested evidence of Bellinger, her Honour then used that evidence to the detriment of the appellant. Her Honour makes clear that she took into account “all evidence”[1] and, more specifically, stated:
[60]… I have considered the evidence before the court. I have considered findings made, including findings as to credit. I find that I can be satisfied that the truth lies on the complainant’s account. I rely upon findings made in this decision, including findings made as to credit and as to the defendant’s state of intoxication in rejecting the defendant’s version of events.
[1] Reasons [17].
Clearly, “findings made in this decision” included her Honour’s specific finding at [42], referred to above, ending “I find I can rely upon the evidence of Officer Bellinger on this point.”
The photographs generally
Her Honour specifically assessed the evidence of the complainant and the appellant by reference to the apparent bruises and marks in the photographs. The photographs did show various marks on the body of the complainant and her Honour made detailed observations of colours and sizes of the marks. Such depictions were highly misleading when assessed by reference to an assumed 12 day separation (as her Honour put it) from the relevant events and reasoning processes would necessarily have been different if the correct delay had been known. Again, the course of such cross-examination, and the final evidence matrix that would have eventuated if the correct date had been furnished, simply cannot now be known.
Discussion of relevant principle: too little information, too much information and positive disinformation
Although facts will infinitely vary, three factual situations of present relevance tend to recur. First, a failure to disclose to the accused the existence of material (too little information). Second, information being incorrectly placed before the tribunal of fact, particularly in the context of jury trials (too much information). Third, positively incorrect information being supplied to the accused and/or the Court (positive disinformation).
Too little information
It is well settled that in a criminal prosecution, the prosecutor is required to disclose to the defence all potentially relevant material and that failure to do so will usually lead to a conviction being quashed.[2] The role and duties of the prosecutor were extensively examined by the Full Federal Court in Tran v The Queen[3] where the Court stated in relation to the matter of disclosure:[4]
[131]There are special obligations upon those who prosecute. These include, inter alia, a duty to make full and proper disclosure of “unused material”, or material which may be exculpatory …
[2] Some of the Australian decisions are referred to in R M Lunn, Criminal Law South Australia, vol 1 (at Service 124) [700.7].
[3] (2000) 118 A Crim R 218 (Black CJ, Weinberg and Kenny JJ).
[4] Ibid 238
In the subsequent case of Grey v The Queen[5] the High Court considered the effect of an innocent failure to supply information to the representatives of the accused, it being accepted that the prosecutor was unaware of relevant material in the hands of the police which should have been disclosed. Although it was not known what, if any, importance would have been placed by the jury upon cross-examination based upon that document, the Court was unanimous in allowing the appeal. Gleeson CJ, Gummow and Callinan JJ stated:[6]
[18]It is not difficult to imagine a fertile area of cross-examination that could have been tilled by the appellant on the basis of this false statement to whose makers Mr Reynolds was patently beholden. The letter should have been provided to the appellant, as is correctly conceded in this Court by the respondent. Its revelation and admission into evidence could have put a quite different complexion on the case for the appellant and the way in which it was conducted.
[5] (2001) 75 ALJR 1708.
[6] Ibid 1712.
The Court considered that the prosecution case was very strong but emphasised that this could not be determinative. Their Honours stated:[7]
[26]The strongest point that the respondent makes is that it is very unlikely that the appellant could have innocently been in possession of, and have been able to sell five indisputably stolen motor vehicles. It is a powerful point. The respondent nonetheless was bound to facilitate fair process by providing to the appellant all materials to which he was entitled to have access. This did not happen.
[7] Ibid 1714.
In the more recent decision of the High Court in Mallard v The Queen,[8] Gummow, Hayne, Callinan and Heydon JJ confirmed this approach, stating:[9]
[17]At this point it is relevant to note that the recent case of Grey v The Queen in this Court stands as authority for the proposition that the prosecution must at common law also disclose all relevant evidence to an accused, and that a failure to do so may, in some circumstances, require the quashing of a verdict of guilty. …
[8] (2005) 224 CLR 125.
[9] Ibid 133.
Too much information
Secondly, there is the possibility of “too much information”, particularly in the context of jury trials. Obvious examples are inadmissible evidence being given in the presence of the jury, material incorrectly sent into the jury room and, ever increasingly, information actively acquired by individual jurors from sources such as the internet in contravention of directions given by trial Judges. The first example was considered in some detail by the Court of Criminal Appeal in R v Softley[10] where an innocent error was made by Court staff in sending into the jury room a prejudicial document which was not admitted as evidence. Although the prosecution case was there seen to be a strong one, the appeal was allowed on the basis that the jury had proceeded to consider the case with the incorrect matrix of evidence before it and one could not be sure that the inadmissible document had not affected the verdict.
[10] (1999) 206 LSJS 48.
The subsequent case of R v Moubarak[11] was a case perhaps closer to the present case and involved the tender of an “organiser” found in the possession of the appellant who was charged with drug trading. The facts were further outlined by Doyle CJ (with whom Prior and Lander JJ concurred) as follows:[12]
[7]The organiser, which was tendered as Exhibit P5, is in two parts. The entries in the first part are innocuous. They are a list of names and telephone numbers such as anyone might keep. The entries in the second part were potentially damaging to the defence. The comments written on some of the pages suggest that the names and numbers record business transactions, and suggest that the other pieces of paper that were tendered as exhibits, but had no comments on them, did the same.
[8]It is common ground that, due to a mistake, a solicitor employed by the Director gave counsel for Mr Moubarak a photocopy of only the first and innocuous half of the organiser. The organiser was duly tendered at trial. Defence counsel did not check it, thinking no doubt that he had a complete copy in his possession and that it was innocuous. …
[11] (2002) 219 LSJS 276.
[12] Ibid 277.
After the jury had retired they returned with a question, which, it was subsequently realised, must have resulted from a reading of the damaging part of the organiser. The jury later returned verdicts of guilty. These were set aside on appeal, Doyle CJ stating:[13]
[13]I consider that this gives rise to a miscarriage of justice. Counsel for Mr Moubarak reasonably believed that he had a complete copy of the organiser. The existence of the damaging material was not known to counsel. Had counsel known about the material, he would have had the opportunity to raise the material with Mr Moubarak, and could have given Mr Moubarak the opportunity to attempt to explain the damaging entries in particular. Counsel would have had the opportunity to address the jury on this material, and to ask the Judge to direct the jury about its use. Counsel dealt with this aspect of the case under a significant misapprehension. There is no suggestion of a tactical decision to say as little as possible about the organiser.
[14]It is correct but not to the point to submit, as does counsel for the Director on appeal, that the other lists were damaging and were left almost unexplained by Mr Moubarak. The material in the organiser is more damaging than the lists, and in any event the approach taken by the defence might well have changed had counsel been aware of the further damaging material.
[13] Ibid 278-279.
Positive disinformation
Thirdly, there are cases involving the supply of positive disinformation, to the accused and/or the Court.
One recurring situation is that where an accused person fails fully to inform counsel of his background which in turn leads to prejudicial material ultimately being placed before a jury. Cases such as R v Hamilton[14] and R v Oliverio[15] where defence Counsel acted on information supplied by the defendant are examples of such appeals being allowed despite counsel’s failure to check such information with the prosecutor. Of course, the present situation is a fortiori to that presented in those cases since here it was entirely reasonable for trial counsel to rely on what was stated by a police officer and presented to him and to the Court as fact.
[14] (1993) 68 A Crim R 298.
[15] (1993) 61 SASR 354.
The present case more resembles R v Edwards[16] where the factual situation was not dissimilar to the present. Edwards concerned a charge of manslaughter against a hotel security officer who was attempting to subdue an intoxicated patron. Detailed prosecution evidence was given by reference to security video material but the timing of particular events, and particularly that of the arrival of police personnel, was subject to an incorrect prosecution assurance that the time recorded by the hotel system was accurate; in fact the hotel time was inaccurate by about four minutes. This inaccuracy was discovered only very late in the trial and the prosecution then took the position that a mis-trial had occurred and the jury should be discharged. The trial Judge was prepared to adopt that course but counsel for the accused insisted on the matter proceeding. The accused was convicted but the verdict was set aside on appeal. Sulan J (with whom Doyle CJ and Bleby J concurred) stated:
[16] [2007] SASC 202.
[72]The question is whether the irregularity which I have identified and the course adopted by the trial Judge resulted in a miscarriage of justice.
…
[81]The question of whether an appellate court will set aside a conviction, even in a case where it has not been demonstrated that the verdict was, on the merits, flawed, will depend on the circumstances in each case. It does not follow that in every case in which there has been an irregularity, or the accused perceives that he has not had a fair trial, or even when it might be said that there is a perception of a miscarriage of justice, the verdict will be set aside. However, if there is an irregularity which is fundamental to the trial, then that may have the effect of vitiating the conviction.
…
[86]The case, as presented by the prosecutor in her opening, and the way in which the evidence proceeded was that Ramsgate time and Real time were the same. At a very late stage in the piece, it became known that that assumption was an error. Defence counsel had presented his case, cross-examined witnesses and made decisions about calling evidence based upon an erroneous assumption.
[87]As the trial Judge correctly observed, it was difficult at that late stage to “unscramble” the position. Counsel for the Crown correctly sought a mistrial. The initial view of the trial Judge seemed to have been that that application was justified, but he appeared to have been influenced to refuse the application because defence counsel opposed it.
[88]It is undesirable to speculate about what facts influenced the decision of the jury. It is not possible to decide whether the jury might have viewed the appellant’s conduct differently had they known that the appellant was holding Mr Esposito for approximately five minutes before the police arrived, during which time the situation was chaotic.
[89]This was a case of acting for a defensive purpose. The defence case was that the appellant genuinely believed that his conduct was necessary and reasonable. As well, the defence case was presented on a false basis, influenced by the error in the prosecution case. It is not possible to know whether, if the jury had been aware of the correct position that might have influenced the jury’s decision. The appellant did not receive a fair trial because there is a real risk that the jury assessed the case on a false basis and because the defence case had, through no fault of the defence, been presented on a false basis.
[90]The case was left to the jury in an unsatisfactory manner. The jury was not informed of the correct position as to time.
[91] I would allow the appeal on this ground.
Conclusion
In the present case I consider that the course of the trial, the course of cross-examination and the final evidence matrix that would have eventuated, if the correct date had been furnished, simply cannot now be known. One cannot be confident to the requisite degree that her Honour would in any event have convicted the appellant.
Ground 1 of the appeal is therefore made out. The appeal must be allowed and the convictions on counts 2 and 3 set aside. (The dismissal and verdict of not guilty on count 1 is, of course, unaffected.)
Although a respectable argument could have been made that no re-trial should be ordered having regard to such factors as the now staleness of the charges, that no lasting injury is alleged to have been caused and, very importantly, that the miscarriage of the trial was not the fault of the defendant and was entirely the fault of police officer Goodwin,[17] counsel appearing for the appellant on the appeal made no such submission, although the matter was specifically drawn to his attention. He conceded that the order should formally be for a re-trial. In those circumstances, counsel for the prosecution has not been heard on the matter and, since her position was obviously that a re-trial should be ordered if I were to allow the appeal, it would not be appropriate for me to simply dismiss the Information whatever course I might have taken if such application had been made and argued.[18]
[17] See authorities such as Siebel v The Queen (1992) 57 SASR 558, 564; The Queen v MRW (1999) 113 A Crim R 308, 318-319 [53].
[18] Stead v State Government Insurance Commission (1986) 161 CLR 141.
It will, of course, remain a matter for the prosecution as to whether it does wish to proceed with a re-trial in all of the circumstances.
Orders
1. The application for an extension of time within which to appeal is granted and time is extended until the date of the filing of the Notice of Appeal on 20 April 2011.
2. The appeal is allowed and the convictions on counts 2 and 3 are set aside.
3. The defendant may be re-tried by a different Magistrate on counts 2 and 3 only on the present Information.
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