R v GROSSER No. SCCRM-97-9, SCCRM-96-463 Judgment No. S302 [1999] SASC 302

R v GROSSER No. SCCRM-97-9, SCCRM-96-463 Judgment No. S302 [1999] SASC 302 - SASC 1999 case summary — Zoe

[17]

"A Well, there was a gap in the curtain of about roughly a foot and I could see part of a person and I could see what I thought was a 44 magnum revolver. That's what I saw. Q Who did you think it was? A I thought it was Cass. Q What happened. A I fired immediately. Q Can you tell us the direction in which you fired? A I fired - well, because I turned around, the gun was in the wrong position. I had the gun across my body at waist height and when I came back around I saw this rough outline of a person with a gun and I fired before the gun was in position, low and to the left of this person that was at the door. Q Do you mean low and to your left as you were looking towards the back of the house, or do you mean something else? A Low and to my left. Q What happened? A Well, I was in great fear, I was in terrible fear. I just fired the gun. I intended to fire the gun to protect the life of my wife and children and myself. It was an evil man at my door. Q Can you say how many times you fired? A No, I can't accurately. Q What weapon did you have? A I fired a number of shots, low and in that area. Q What weapon did you have? A I had an SKK, it had 60 rounds of ammunition on it and I fired a number of them. Q What did you see happen? A Well, I didn't see much happen at all. All I saw happen was a hole come through the glass and something hit me in the head around that period of time. Q Could you tell what it was or not at that stage? A No. Q Could you tell whether any fire was coming at you, apart from that? A Not really, no. Q Did you fire again? A Well, I fired a number of shots to stop this person shooting us. I did fire again later, because somebody was still shooting us - at us. Q How much later was that, just to identify it? A I don't really know about the period of time, but it was a very short period of time. Q You say you were hit by something? A That's right. Q How did that make you feel. What effect did that have on you? A It stunned me. Something hit me in the head and stunned me, and it stunned me to the effect that I still can't remember what happened there for a few seconds. Q Did you see the man outside? A Not at that time. I'd only seen him previously. Q Did you see him at any stage after that? A No."

[57]

"Next, I mention the evidence we have heard that there were 197 fraud charges pending against the accused. That the accused wanted to delay the hearing in the Adelaide Magistrates Court of the charges was the reason really why all this happened. The police went to 96 Moppa Road with a warrant for his arrest, so that he could be brought before the court for the hearing to begin. As there has been no trial and as, so far as we know, the accused has made no admissions, the charges against the accused of fraud have not been proved, yet even the fact that he has been charged may lead you to think that he is not a man of good character. Put it the other way; you may think the very fact of the charges shows him to be of bad character. Even if that is how you think, then you should not let that influence you, for this reason. Fraud, and the offences with which the accused is charged in this court, are totally different. Just because a man may be dishonest doesn't mean to say that he will attempt to commit murder or to endanger life. So, put the fact of the fraud charges out of your minds. It is not relevant to his guilt or otherwise on the seven counts in this court. The fact of the fraud charges was not the only thing that we heard about the accused which may lead you to think poorly of his character. I mention, as other examples, the report that the accused had threatened his wife's life, that he had been on a cannabis charge or charges, the firearms offences he had committed, the matters of which Chief Inspector Attwood spoke; the accused's reputation for making cars disappear, the rumour that he was going to set up the police to come to his house and shoot the first one who appeared. You must not - because it would be unfair to the accused - use any of these things as evidence of the accused's guilt on the seven counts to reason that, because he may have done all or some of these things, that it means he is guilty of any of the counts you are considering. Please, put them out of your minds."

[60]

"The next matter is this. I gave you a direction on the fraud charges and other matters concerning the accused. Please forget what I said then, because I give you this fresh direction. The only relevance of the fraud charges is that it provides part of the history leading to the events which took place on 3 May. The only use you may make of the evidence of the fraud charges is as background to what happened on that day. Otherwise, you should draw no inference at all against the accused from the fact of the fraud charges, such that he was a man of bad character, that because he had been charged with these offences and the other offences which I mentioned he is more likely to have committed the offences on 3 May. Now, I was going to put in there something. Can either of you gentlemen remind me what I was going to say there? MR BARRETT: In relation to the other topics. HIS HONOUR: The other charges, that's right. I think this was the part that I should repeat to you. Gentlemen, tell me if this not the part, but I think it is. The fact of the fraud charges is not the only thing which we heard about the accused which may lead you to think poorly of his character. I mention, as other examples, the report that the accused had threatened his wife's life, that he had been on a cannabis charge or charges, the firearms offences he had committed, the matters of which Chief Inspector Attwood spoke - the accused's reputation for making cars disappear, the rumour that he was going to set up the police to come to his house and shoot the first one who appeared. None of those things are relevant to his guilt on these charges. There is another matter relevant to this which I should mention. It concerns the events of 16 July 1992. That is the day on which the accused was arrested on the fraud charges. I didn't remind you of it, and perhaps I should have, that a loaded weapon was found in his car. I did remind you that a number of weapons were found in the house. Now, the use you may make of that evidence is, first, to explain why the accused came to be charged with possessing a loaded firearm and why his and Lorraine Bailey's firearms [licences] were cancelled and, secondly, the evidence is also relevant because, on the prosecution case, it tends to rebut any suggestion that he had the firearms in his house on 3 May 1994 to protect himself from Cass or other underworld figures. Prior to 16 July 1992, the Crown case is that the accused had not made any complaint about being in fear of his life, and he had the firearms to resist the police if they came on the property. The defence case, on the other hand, is that the accused was already in fear."

[89]

"Another matter of law on which to direct you concerns the telling of lies. You, first of all, before what I'm going to explain becomes relevant, must have found that the accused has told lies. I shall explain the law on lies and then link it to the evidence by giving three examples of occasions on which you may think that the accused has lied. You may, but it is for you, come to the conclusion that the accused has lied either in court, in his evidence or on some occasion out of court, and that the reason for lying was his knowledge and consciousness of his guilt. It's open to you to infer that the accused entertained a consciousness of guilt, if, but only if, you are satisfied beyond reasonable doubt that what the accused said were lies: that what he said was not only untrue but that the accused knew at the time of saying it that it was untrue, and that the only logical explanation for the accused's telling lies was a consciousness of guilt: that the lies revealed a knowledge of some aspect of what happened, and that they were told because the accused knew that the truth would implicate him. You may only properly arrive at that conclusion if you are satisfied that there is no reasonable hypothesis open other than that the lies were told with a consciousness of guilt. If you are so satisfied you are entitled to use the accused's consciousness of guilt as evidence of his actual guilt. However, lies told by an accused person in or out of court do not, of themselves, necessarily constitute evidence of guilt. They may merely bear adversely upon that person's general credibility. Commonsense and experience tells us, that there may be many reasons for lying. Sometimes, for example, a person may lie because of panic or fear that the simple truth is may sound feeble or a feeling that he may not be believed. An accused may lie for reasons irrelevant to the charges. Sometimes an accused may lie for what appears to be no rational reason at all. There is a variety of possible motives for falsehood and this must always be carefully borne in mind in making an assessment."

[92]

"You remember that I identified three matters on which you may come to the conclusion that the accused has lied; the question of the white car, the man pointing the gun from outside inwards through the door, and who fired first. Now, I gave them as lies, if you find them to be, which you may conclude were indicative of a consciousness of guilt. And they are the only matters during the trial which you may use in this way. Earlier I said they were examples. That was wrong. They are not examples. They are the only matters which you may consider in this way. You may think that the accused has told other lies. Well, if you do, please remember what I said to you; that lies told by an accused in or out of court do not, of themselves, necessarily constitute evidence of guilt. They may merely bear adversely upon the general credibility of the accused. The only lies in this trial which are capable of indicating a consciousness of guilt are the three I have identified. As to each of them, as I said in summing up, you must be satisfied beyond reasonable doubt that what the accused said was a lie, that what he said was not only untrue, but that he knew at the time of saying it that it was untrue, and that the only logical explanation for the accused telling lies was a consciousness of guilt; that the lies revealed a knowledge of some aspect of what happened and were told because the accused knew that the truth would implicate him. I also remind you of what I said earlier; that there may be many reasons for lying. I will mention them again. Bear them in mind in considering the three matters - the white car, the gun pointing inwards, and who fired first. Common sense and experience tells us that there may be many reasons for lying. Sometimes, for example, a person may lie because of panic or fear that the simple truth may sound feeble, or a feeling that he may not be believed. An accused may lie for reasons irrelevant to the charge. Sometimes an accused may lie for what appears to be no rational reason at all. There are a variety of possible motives for falsehood and this must always be carefully borne in mind in making an assessment. It is only if you consider they were told out of a consciousness of guilt that you may use them as evidence of guilt. That is all I say to you on lies."

[95]

"Lies told by an accused person either to the police or in the witness box are likely to have an adverse effect upon the credibility of the accused as a witness. But even the total discrediting of an accused as a witness is not a substitute for evidence of the commission of the crime charged. Generally speaking 'a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all': see Broadhurst v The Queen [1964] AC 441 at 457, per Lord Devlin. In that case Lord Devlin warns against the 'natural tendency for a jury to think that if an accused is lying, it must be because he is guilty'. The circumstances in which the accused's lies will have an effect transcending mere damage to his credibility and will constitute positive evidence of the commission of the crime have been discussed in the context of corroboration in the cases of R v Lucas [1981] QB 720 and R v Evans (1985) 38 SASR 344. The probative character of some lies rises from their tendency to indicate that they proceed from a consciousness of guilt on the part of the accused. Instances of lies of that kind are false denials of having been in the company of an alleged victim at a material time or of having been at the scene of the crime at a relevant time, made at a time when the accused could not have known, unless he was the culprit, that there had been any wrongdoing in connection with the alleged victim or at the scene of the crime. Even in such cases courts must be on their guard against collateral motives for telling lies, such as the desire to conceal from a spouse that the accused was in the company of the alleged victim or was at the scene of the crime. The circumstances in which lies told after an accused becomes aware that he is or might be under suspicion in connection with the crime can amount to positive evidence of the commission of the crime must be rare. The tendency of persons under suspicion to wish to distance themselves from the persons or events connected with the alleged crimes and to endeavour to improve their position by falsehood is far too common to enable an inference to be drawn with confidence, in any but the rarest of cases, that lies proceed from a consciousness of guilt. Unjust results can easily flow from a readiness to treat lies of an accused person as positive evidence of guilt." (emphasis added)

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Judgment (121 paragraphs)

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Cases Cited (10)