Stone v Police
[2015] SASC 28
•3 March 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STONE v POLICE
[2015] SASC 28
Judgment of The Honourable Justice Sulan
3 March 2015
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS
MAGISTRATES - ORDERS AND CONVICTIONS - ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY - CONTRAVENTION AND SENTENCING
Appellant charged with three counts of contravening an intervention order. He pleaded not guilty. The Magistrate convicted on counts 1 and 3, finding count 2 not proved beyond reasonable doubt. No conviction was recorded. Two separate bonds were entered for a period of 18 months in the amount of $500. Appeal was on numerous grounds, including that the Magistrate erred by admitting evidence of past discreditable conduct resulting in a miscarriage of justice. This ground was conceded, and consideration of the appellant's other complaints was therefore unnecessary. Appeal allowed.
Evidence Act 1929 (SA) s 34P, s 34P(2), s 34P(4), s 34Q, s 34R; Criminal Law (Sentencing) Act 1988 (SA) s 39; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 6, s 11, s 31, s 31(2), referred to.
R v MJJ, R v CJN [2013] 117 SASR 81; R v C, G [2013] SASCFC 83, discussed.
STONE v POLICE
[2015] SASC 28Magistrates Appeal: Criminal
SULAN J: The appellant, Brenton Graham Stone, was found guilty of two counts of contravening an intervention order pursuant to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“the Act”). No convictions were recorded. The alleged offending occurred on separate occasions on 14 June 2013 and 12 September 2013. The appellant was acquitted of an additional count of contravening an intervention order. The appellant appeals against the Magistrate’s decision.
The appellant was unrepresented. There were numerous grounds of appeal, including a ground that the Magistrate erred by admitting evidence of prior discreditable conduct which resulted in a miscarriage of justice.
During argument, counsel for the respondent conceded that ground had been made out. It became unnecessary to consider the other complaints made by the appellant.
The Act
The relevant provisions of the Act are as follows:
6—Grounds for issuing intervention order
There are grounds for issuing an intervention order against a person (the "defendant") if—
(a) it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and
(b) the issuing of the order is appropriate in the circumstances.
Section 12 gives the court wide powers to make orders protecting a person or persons who the court determines may be the subject of abuse. The orders that may be made include prohibiting a defendant from harassing, threatening or intimidating a person at his or her place of residence or work, and prohibiting a person from being in a specific locality. There is a general power enabling a court to impose any requirement on a defendant to take or to refrain from taking specified action.
31—Contravention of intervention order
(1) A person who contravenes a term of an intervention order imposed under section 13 is guilty of an offence.
Maximum penalty: $1 250.
Expiation fee: $160.
(2)A person who contravenes any other term of an intervention order is guilty of an offence.
Maximum penalty: Imprisonment for 2 years.
(3) A person is not guilty of an offence of aiding, abetting, counselling or procuring the commission of an offence against this section if—
(a) the person is a person protected by the intervention order that has been contravened; and
(b) the conduct constituting contravention of the intervention order did not constitute contravention of the order in respect of another person protected by the order or of any other intervention order (of which the person was or ought reasonably to have been aware) in force against the defendant and protecting another person.
(4) Section 10(6) of the Criminal Law (Sentencing) Act 1988 does not apply in relation to an offence against subsection (1).
The charges
The appellant was charged with three counts of breaching an intervention order, contrary to s 31(2) of the Act. The appellant pleaded not guilty to each count. The complaint alleged:
1. On the 14th day of June 2013 at OAKLANDS PARK in the said State, contravened a term of an intervention order.
Section 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009.
This is a summary offence.
2. Between the 6th and 16th day of August 2013 at DOVER GARDENS in the said State, contravened a term of an intervention order.
Section 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009.
This is a summary offence.
3. On the 12th day of September 2013 at DOVER GARDENS in the said State, contravened a term of an intervention order.
Section 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009.
This is a summary offence.
Background
The appellant resides at Renfrey Street, Oaklands Park. He has lived there for the majority of his life. His neighbours, Andrew Tamblyn and Yanbing Tang, the complainants, purchased their property in 2008. They embarked upon renovating their home. The renovations took about four months to complete. During this period, the appellant and renovators were in conflict. The appellant objected to the renovators parking their vehicles on the street. The conflict led to a series of hostile actions by the appellant towards the complainants, which included threats, abusive notes about the complainants posted on the appellant’s front fence, taking photos of the complainants and their property and sending allegedly defamatory letters to Mr Tamblyn’s workplace.
In his evidence, Mr Tamblyn referred to an earlier incident during which the appellant allegedly threatened him with a chain. This allegedly occurred after Mr Tamblyn had approached the appellant in relation to an interaction the appellant had with a home-stay student residing with the complainants at the time.
Ms Tang gave evidence alleging that on an earlier occasion the appellant had damaged their fence and, on another occasion, was standing in close proximity to and staring at Ms Tang, her son and an international student while they were sitting in their car. The complainants eventually increased the height of the adjoining fence over the objection of the appellant, after obtaining a court order.
In November 2009, the appellant obtained a restraining order against Mr Tamblyn for a period of six months. A subsequent restraining order protecting the appellant was granted in May 2010 for a period of three years. Mr Tamblyn gave evidence that he decided not to contest these orders. In November 2010, Mr Tamblyn obtained a restraining order protecting his son and himself for a period of two years. That order was varied in September 2012 to prohibit the appellant leaving his car engine running and moving a wheelie bin on his property at night. Mr Tamblyn and Ms Tang both gave evidence about these prior incidents during the trial. The appellant objected to the introduction of evidence of these earlier incidents.
The intervention order the subject of the charges included the following terms:
1. The defendant must not assault, threaten, harass or intimidate the protected persons.
2. The defendant must not follow or keep the protected persons under surveillance.
3. The defendant must not contact or communicate with the protected persons either directly or in any way including, phone, letter, cards, SMS messages, E-mail, Facsimile, Facebook, Skype (and any other form of communication).
4. The defendant must not enter or remain on the premises of the protected persons at 4 Renfrey Street, OAKLANDS PARK, SA.
5. The defendant must not damage or interfere with the premises of the protected persons at 4 Renfrey Street, OAKLANDS PARK, SA.
6. The defendant must not leave any motor vehicle on or adjacent to 6 Renfrey Street, OAKLANDS PARK, SA with the engine running for a period longer than 3 minutes.
7. The defendant must not start any motor vehicle on or adjacent to 6 Renfrey Street, OAKLANDS PARK, SA between the 12 am and 6 am on any day except for the purpose of using that vehicle to travel to another location.
8. The defendant must not push or pull any garden wheelie bin, being a receptacle used for the storage of garden rubbish, along the driveway of 6 Renfrey Street, OAKLANDS PARK, SA between the hours of 7 pm and 7 am and at other time must not manoeuvre any garden bin with 3 meters of the fence line between the premises at 6 Renfrey Street, OAKLANDS PARK, SA and 4 Renfrey Street OAKLANDS PARK, SA.
9. The defendant must not push or pull any general waste rubbish bin or any recycling waste rubbish wheelie bin along the driveway of 6 Renfrey Street, OAKLANDS PARK, SA between 11 pm and 6 am on any day and must not push or pull the said bins other than along the said driveway of the premises at 6 Renfrey Street, OAKLANDS PARK, SA other than on one day per week in accordance with the collection day set by the council and then not within 3 meters of the fence line between 6 Renfrey Street, OAKLANDS PARK, SA and 4 Renfrey Street, OAKLANDS PARK, SA.
10. Any firearm in the possession of the defendant and any license or permit held by the defendant authorising possession of a firearm must be surrendered to the Registrar or Firearms forthwith.
11. For so long as this intervention order remains in force, any license or permit held by the defendant authorising possession of a firearm is suspended and the defendant is disqualified from holding or obtaining a license or permit authorising possession of a firearm including in the course of his or her employment.
Mr Tamblyn gave evidence that on the morning of 14 June 2013 he walked to the local library. Upon his return to Renfrey Street, he noticed the appellant leaning over the front fence of the appellant’s property. In an attempt to avoid a confrontation, Mr Tamblyn stepped off the footpath and walked in the middle of the road as he passed the appellant’s property in the direction of his home. The appellant then stepped over his fence and approached Mr Tamblyn from behind. The appellant followed Mr Tamblyn for approximately ten metres at a distance of around one metre as he was passing a red Holden Commodore parked out the front of the appellant’s property. The vehicle is said to belong to the appellant’s father.
Mr Tamblyn became uncomfortable and turned around. He said, “Don’t you come near me”. The appellant replied that he was going to the car. He stopped following Mr Tamblyn. Mr Tamblyn continued walking along the street to talk to a neighbour about what had just occurred. The appellant contends that he stopped by the car parked outside his house to observe whether it had been damaged. The allegation relating to count 1 of causing Mr Tamblyn to feel harassed and intimidated was found proved.
The appellant was acquitted of count 2, alleging that the appellant went to Ms Tang’s place of work on a day between 6 and 16 August 2013 at around 7.45 am and walked slowly past her work until eye contact was made. The charge amounted to an allegation that the appellant kept Ms Tang under surveillance, in breach of the relevant order, or that he was following her.
As to count 3, Ms Tang gave evidence that she observed the appellant staring at her from a position on the road outside the childcare centre where Ms Tang works. On 12 September 2013, at around 7.45 am, Ms Tang was distracted by the sound of screeching tyres while she was supervising children and talking to parents at the childcare centre. When she looked out the window, she saw the appellant standing on the median strip in the middle of the road, gesturing and yelling at a car which may have collided with him. There is a pedestrian crossing a short distance from the centre. Ms Tang stated that, as the appellant walked to the other side of the road, he walked backwards and stopped to look in her direction at least twice. This incident amounted to keeping Ms Tang under surveillance and causing her to feel intimidated.
The appellant gave evidence that the problems had begun with the renovations, as the builders created parking difficulties and brought a large dog to the site on one occasion. The appellant stated that when he raised these issues with Mr Tamblyn, he received a hostile response. The appellant stated that, while walking his dog, Mr Tamblyn had stalked him in a vehicle, and that his police complaints were not taken seriously. The circumstances surrounding the appellant’s application for a restraining order were explained, and he further stated that the ongoing nature of these problems had led to the engagement of a private security firm to patrol Renfrey Street.
The appellant gave evidence that on 14 June 2013 he saw Mr Tamblyn walking down the middle of the road, and regarded this as suspicious. Fearing damage to his father’s Commodore, the appellant investigated the car and, at this point, Mr Tamblyn turned and called out to him, “Don’t you come near me”.
As to the incidents alleged by Ms Tang, the appellant conceded that while he may have been seen on the relevant dates, he did not go to the childcare centre to watch Ms Tang, and any looks in her direction were incidental. The appellant maintained that, at the time, he was unaware of where Ms Tang worked. The appellant denied the events alleged by Ms Tang in relation to both counts, in particular the incident in which he and a car had a near collision. The appellant’s explanations for possibly being in the area at the relevant time were to attend a doctor’s appointment at a nearby surgery, or to visit a friend who lived in the area. The appellant acknowledged that the surgery did not open until 8.30 am, and conceded that he did not have a doctor’s appointment between 6 and 16 August 2013, but may have gone there to check opening times.
The Magistrate’s findings
The Magistrate accepted Mr Tamblyn’s evidence beyond reasonable doubt and rejected the appellant’s version. The Magistrate regarded Mr Tamblyn as a measured, truthful and reliable witness. The Magistrate found that the appellant deliberately approached Mr Tamblyn from behind to within about a metre, and followed him for a distance of about ten metres. The appellant did so due to an unreasonable belief that Mr Tamblyn had damaged his father’s Commodore. This proven conduct could be regarded as either following the protected person or harassing and intimidating the protected person.
The Magistrate considered Ms Tang to have honestly described seeing the appellant on both occasions. The Magistrate stated that only the evidence relevant to counts 2 and 3 would be relied upon, and that no inference as to guilt would be made from the finding in relation to count 1.
The Magistrate found Ms Tang’s account of the appellant looking in her direction and appearing to maintain eye contact to be accurate. The Magistrate also found that Ms Tang’s evidence was given in a logical sequence, without exaggeration. The Magistrate found it likely, but not proven beyond reasonable doubt, that the appellant walked past the childcare centre between 6 and 16 August 2013, either knowing Ms Tang worked there, or to determine if she did. The Magistrate also found it likely, but not proven beyond reasonable doubt, that the appellant looked at Ms Tang through the window and made eye contact with her. The Magistrate found that the evidence fell short of establishing a breach of the intervention order with regards to count 2.
As to count 3, the Magistrate rejected the appellant’s evidence that he was not near the childcare centre crossing on 12 September 2013 at about 7.45 am. The Magistrate found proved beyond reasonable doubt that the appellant had lied about this in his evidence, and that this lie was made deliberately due to a consciousness of guilt about his reasons for being in the area at that time. The Magistrate was also satisfied beyond reasonable doubt that, even discounting the lie, by 12 September 2013 the appellant knew the location of Ms Tang’s workplace and her working hours, and that he either followed her there or was keeping her under surveillance, in breach of the intervention order. The Magistrate rejected as a reasonable possibility that the appellant was in the area by coincidence because he was visiting a friend nearby, while noting that the appellant denied being in the area at all. While the Magistrate was not satisfied beyond reasonable doubt that eye contact occurred, she was satisfied that the appellant’s actions amounted to keeping Ms Tang under surveillance and intimidating her, in breach of the intervention order.
The appeal
The appellant contends that the Magistrate failed to exclude evidence of discreditable conduct, thereby resulting in a miscarriage of justice.
The evidence the subject of complaint was given by Mr Tamblyn, and included the following:
QIn relation to Mr Stone, can you perhaps give some background to the court as to how you know him first of all.
AYes, sir. We bought our property next door to Mr Stone six years ago. We spent some time getting it renovated before we moved in. Then we started to take in international high school students who stayed with us as home stay students. Even before we moved in Mr Stone had become belligerent towards us and towards tradesman we had employed and he left some anonymous letters in our letterbox. So that the relationship was off to a poor start.
QIf I could just stop you there.
AYes.
QWhen you say he was belligerent towards tradesman etc, can you give some examples of what you mean by that.
AWell had an initial handyman in doing some general work and he had a dog that had roamed out onto the street and Mr Stone took great affront of this and I believe, I mean this is just hearsay, but I believe they nearly came to blows.
HER HONOUR
QWe don’t hear about hearsay generally speaking. Sometimes we can hear it. But it is probably not necessary in this case.
AYes your Honour.
XN
QSo in terms of incidents which you have personally been present for, have there been any incidents with any of the neighbours that; first of all led you to getting the intervention order and secondly if you could just describe it. The nature of that relationship between you.
AAbout six months after we had moved in one of our home stay students complained that Mr Stone had tried to talk to her on the footpath. I, the next morning, tried to speak to him as he went past and he pulled a chain from his pocket and threatened me with the chain. On another occasion he had put a lot of unpleasant kind of notices about me and my wife on his front fence. I went to photograph these because I had been speaking to Mental Health SA and they had asked me to try and do that. As I was photographing Mr Stone came out with I think it was a pruning saw and a rake handle and threatened me at that point. Another incident consisted of –
QI will just stop you there before you go on. Just keep your train of thought. What was the content of those notes that were posted on the front.
AThat is the whole thing, the one I was able to able to (sic) to read was basically proclaiming us as bad neighbours and saying that we were lowering the tone of the neighbourhood. But after I attempted to photograph them we had police attendance and the officer I believe asked Mr Stone to take them down, which he did.
QSorry, you were about to go onto a further incident.
AOther instances involved, there were three anonymous letters sent to my place of employment. At that time I was a high school teacher, I have since retired, but they were directed to my school principal. Even though they were anonymous they were, I believe, in Mr Stones hand and these were submitted as evidence when –
OBJECTION: MS POWELL OBJECTS
OBJECTION OVERRULED
AAt Mr Stones trial of my application for an intervention order, the Magistrate Mr Broderick read the letters. He was also of that opinion and he stated that the, I have his judgment, that the content was defamatory.
Ms Tang gave evidence:
QPerhaps you can outline some of those problems to the court, the issues you had with him.
ASure, when I moved in our joint fence is really low and most time when we are out in the front yard he would just most of the time stare at us, took photo and sometime my son, young son, at that time was just 10 years old and if I had a visit and he would just look at. So and then we started try to raise the fence up and then stop him stare at us to intimidate us so I know my fence got damaged, my husband saw and after –
QI will just stop you there, so you had problems with him staring at you, taking photographs of you and as a result of that you tried to raise the fence to get a higher fence.
AYes.
QOkay. You said that there were problems when you were putting the fence up that he would watch you then.
APardon me, can you say again?
QIf you could repeat what you’d said about the fence.
AThe joint fence was raise up and then my husband saw him damage and push the new fence, the concrete was still wet and push the fence and then we have to ask people, the tradesman, come do it again, fix it again so we report it to police so it had a record.
QWhat if any other problems have you had.
AThen we have to actually – even we are in a car he sometimes he one time he put his face right next to our car window scaring my James. Also I had a student, overseas student, they don’t understand why this man have to do like that to us. And I feel very, very stressed and want to protect my family, my young son and then the student and myself and my husband as well. And also in the night time he make a noise all the time either push the wheelie bins and one, two years ago same time this – and I took the video about he revving the car for nearly 20 odd minutes, I report it to police as well.
OBJECTION: MS POWELL OBJECTS
HER HONOUR: Can I clarify the timeframe of the last question and answer. You may not be capable of clarifying this but the topic of making loud noises with a car and this witness taking a video I don’t quite recall how that seemed to link in chronologically with the sequence of events, was that before the intervention order came into place or not.
OBJECTION OVERRULED
The appellant was cross-examined:
QYou heard in Mr Tamblyn’s evidence that he states during the course of you being neighbours that you’ve continuously stared at him, is that correct.
AThat’s incorrect.
QHe also states that you constantly photograph, is that correct.
AThat is incorrect.
QYou heard his allegation that you posted notes on your fence about them, do you recall that.
AAnd that also is incorrect.
QYou didn’t post notes on your fence.
AI did not post notes on my fence about Andrew Tamblyn.
QDo you remember what the content of the notes were.
AThe notes were asking the building – the handyman or builders, whoever they were. There was never signs on their vehicles, they were just plain vehicles, they were just handyman type people. When I didn’t get anywhere with them after months and months and months and I was being diplomatic in the beginning. I was asking them nicely. I was getting threats and vulgar language from them and they were constantly taunting me, threatening me on a daily basis. They were making my life hell, my father’s life hell; they were turning our lives upside down. I posted notes on our fence asking the builders ‘Could you please, could you please park your vehicles on the other driveway of no. 4 Renfrey Street’. Mr Tamblyn had – has – still has two driveways. There was no front fence at the time. They could have parked anywhere across the front lawn.
QI’ll just stop you there. I think we’ve covered the parking issues of the builder. You recall him and I know you’ve answered the question in your examination, but there was a specific allegation that you may have approached Mr Tamblyn at one point with a chain in your hand.
OBJECTION: MS POWELL OBJECTS
OBJECTION OVERRULED
QAgain I’ll repeat the question. Did you specifically approach Mr Tamblyn at one point with a chain in your hand.
AWhat date was this sir?
QI can’t specify a date. Presumably you would have a memory if you had approached him with a chain in your hand.
MS POWELL: If it occurred. We don’t know when this –
HER HONOUR: I do understand Ms Powell. Can you just qualify the question please.
HER HONOUR
QIrrespective of a date, you understand the question, do you –
ANo.
QYou don’t, alright, just ask the question again. Leaving aside the question of a date, can you listen to the question please.
XXN
QWas there an incident where you approached Mr Tamblyn with a chain in your hand.
ANo, there was not.
QAnd in relation to Mr Tamblyn’s allegation that letters were sent to the school principal at his place of employment, had you sent those letters.
AThere were some letters were alleged to have been sent by me. I did send some.
HER HONOUR
QThe question was; did you send those letters.
AI did send some, but I don’t know exactly which ones he’s referring to.
Counsel for the respondent accepted that the evidence which had been led was evidence of discreditable conduct.
Section 34P of the Evidence Act 1929 (SA) (“the Evidence Act”) provides:
Section 34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence ("discreditable conduct evidence”)—
(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b) is inadmissible for that purpose ("impermissible use"); and
(c) subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the "permissible use") other than the impermissible use if, and only if—
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5)The court may, if it thinks fit, dispense with the requirement in subsection (4).
The Magistrate made no reference to s 34P or s 34R of the Evidence Act. Having referred in general terms to the evidence of prior conduct by the appellant, she made the following observations:
Andrew Tamblyn is now a retired part-time university lecturer formerly a high school teacher. He explained how he came to live in the neighbourhood in a house which he organised to be renovated during four months before moving into the house some six years ago. He explained his first meeting with the defendant in which he told him about where he worked. They discussed some behaviour of the builders which had upset the defendant and Mr Tamblyn promised to convey the concerns to them. Mr Tamblyn summarised how the contact deteriorated in which the defendant became belligerent towards him and the builders, including leaving disturbing messages, making threatening gestures, erecting signs critical of his neighbour and ultimately sending anonymous letters to the school principal where Mr Tamblyn worked and which contained derogative remarks about Mr Tamblyn. As a result of these issues Mr Tamblyn said that he was motivated to seek the intervention order. He also erected a large fence around his property to minimise any eye contact with the defendant.
I do not intend to detail the evidence concerning the background leading to the conduct in dispute in this trial but bear the nature of the evidence given from this witness in mind and the way in which it was given when assessing his credibility. In my view the evidence given was confined somewhat, which was appropriate, but lead nevertheless to give meaning to what followed. Mr Tamblyn explained that before he decided to seek an intervention order against the defendant the defendant had successfully applied for orders against him. Mr Tamblyn gave an explanation for not disputing these intervention orders initiated by the defendant during 2009 and 2010 which I bear in mind but do not repeat. Essentially Mr Tamblyn explained that he was unwilling to spend any more money on legal fees concerning the defendant’s applications for orders and decided to accept the last order and just try to stay out of his way until the last order expired.
The Magistrate, having admitted a considerable amount of evidence about the appellant’s behaviour towards the complainants, failed to adequately identify or explain the purpose for which the evidence was used. She appears to have used the evidence in assessing the credibility of Mr Tamblyn. As to the evidence of Ms Tang, the Magistrate admitted evidence of earlier incidents with the appellant without adequately explaining for what purpose the evidence was permitted to be led.
Sections 34Q and 34R of the Evidence Act provides:
34Q—Use of evidence for other purposes
Evidence that under this Division is not admissible for 1 use must not be used in that way even if it is relevant and admissible for another use.
34R—Trial directions
(1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2) If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
Further, s 34P(4) requires that the prosecution issue notice of their intention to adduce the discreditable conduct evidence. No such notice was given. As indicated, an explanation as to the appropriate use of discreditable conduct evidence is required pursuant to s 34R, whether a jury is present or not.
Section 34P provides that there are exceptions to the general prohibition of using evidence of prior discreditable conduct. Evidence may be admitted if the judge or magistrate is satisfied that its probative value substantially outweighs any prejudicial effect it may have on the defendant. In R v MJJ, R v CJN, Kourakis CJ, with whom Vanstone J agreed, stated:[1]
Discreditable conduct which has a permissible use, other than by way of demonstrating a particular propensity, need only have a probative value, whether weak, moderate or strong, which substantially outweighs its prejudicial effect.
[1] [2013] 117 SASR 81.
Turning to the evidence admitted by the Magistrate in this matter, the starting point is whether the evidence is in fact evidence of discreditable conduct attracting the operation of s 34P. The prosecutor’s examination of both complainants and cross-examination of the appellant in relation to previous threatening behaviour, damage to the complainants’ fence and sending potentially defamatory letters to Mr Tamblyn’s workplace is plainly evidence of discreditable conduct which is not the subject of, or relevant to, the offences with which the appellant was charged.
Identification of the uses and application of the tests
Once discreditable conduct evidence has been admitted, the magistrate must identify the use to which that evidence will be put. The admissibility of evidence is a question of law.[2] The Magistrate was obliged to identify the purported use of the evidence and apply the appropriate test under s 34P when the prosecutor sought to lead evidence of prior discreditable conduct.
[2] R v MJJ, R v CJN (2013) 119 SASR 81 at [233]-[237] per Vanstone J.
The Magistrate stated:
I do not intend to detail the evidence concerning the background leading to the conduct in dispute in this trial but bear the nature of the evidence given from this witness [Mr Tamblyn] in mind and the way in which it was given when assessing his credibility. In my view, the evidence given was confined somewhat, which was appropriate, but lead nevertheless to give meaning to what followed.
It appears that the Magistrate did not seek to rely on the evidence of the prior incidents for impermissible propensity reasoning but to provide a background to assessing the appellant’s behaviour.
The evidence is highly prejudicial to the appellant because the discreditable conduct bears similarity to the offences with which he has been charged and suggests that the conduct resulting in the charges fits a historical pattern of incidents involving the complainants. The reliance on the appellant’s propensity or disposition to harass or intimidate the complainants requires the Magistrate to be satisfied that the evidence has strong probative value, having regard to the particular issue or issues arising at trial, in addition to being satisfied that the probative value substantially outweighs the prejudicial effect on the appellant. The Magistrate does not appear to have considered whether the probative effect outweighs the prejudicial effect of the evidence.
In my view, the allegations of threats, property damage and abusive behaviour in the past has little or no probative value in establishing whether the appellant contravened the intervention order by harassing or intimidating Mr Tamblyn or intimidating Ms Tang. The Magistrate does not appear to have considered the requirements of s 34P(2).
I briefly turn to s 34P(4) which provides that the party leading evidence of discreditable conduct must give reasonable notice to the other party. It appears no such notice was given to the appellant prior to the commencement of trial. In R v C, G,[3] the Court of Criminal Appeal considered whether a judge or magistrate is required to apply s 34P where there is no objection to the evidence. The Court stated:[4]
To our minds, if proposed evidence is under challenge, a judge is obliged to consider whether the evidence should be admitted. In the absence of the judge reaching a conclusion that the evidence should be admitted, it is to be excluded. If the evidence is unchallenged, we do not consider that the judge has to consider its admissibility under section 34P of the Evidence Act. Issues may, however, arise as to the proper use of the evidence.
[3] [2013] SASCFC 83.
[4] [2013] SASCFC 83 at [50].
Counsel for the appellant did not object at every opportunity in relation to each item of discreditable conduct adduced from the complainants during the trial. For example, the brief description by Mr Tamblyn of the appellant allegedly threatening Mr Tamblyn with a chain was not the subject of an objection. Nevertheless, several objections were raised and overruled by the Magistrate through the trial. In light of the nature of the evidence and uncertainty surrounding whether the prosecution provided reasonable notice, I am satisfied that sufficient objection was taken to the evidence of discreditable conduct. The Magistrate was required to consider its admissibility under s 34P.
It is also a requirement of a judge or magistrate to provide a direction on the use to be made of the evidence once admitted, whether or not sitting with a jury. Section 34R of the Evidence Act provides.
34R—Trial directions
(1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2) If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
The Magistrate did not adequately explain the purpose for which she used the evidence.
As I indicated earlier, the failure to comply with the requirements of s 34P of the Evidence Act is conceded by counsel for the respondent. I would allow the appeal and set aside the orders made by the Magistrate.
Conclusion
I have considered whether to order a retrial. Ultimately, even though the Magistrate found a number of the allegations proved, in sentencing the appellant she concluded that the offending was not sufficiently serious to record a conviction. She imposed bonds, pursuant to s 39 of the Sentencing Act, requiring the appellant to be of good behaviour for 18 months and to present himself for sentence if called upon. The intervention order remains in place.[5] Too much time and cost has been spent on this neighbourhood dispute.
[5] Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 11.
I therefore decline to order a retrial.
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