Supreme Court of SA|2003-12-18|Before: Doyle CJ, Gray J

R v HAWKINS No. SCCRM-03-215 [2003] SASC 419 (18 December 2003)

Court of Criminal Appeal: Doyle CJ, Perry and Gray J

2 A single Judge granted leave to appeal on grounds one, two, three, four, six, nine and 10. The Judge refused leave on grounds five, seven and eight. Mr Hawkins requested that his application for leave to appeal be considered by this Court. The Court heard the application for leave to appeal on grounds five, seven and eight when we heard the appeal on the grounds on which leave had been granted.

3 The grounds of appeal raise the following issues. First, a complaint that count one and count two could not properly have been joined as a matter of law, and a complaint that in any event the Judge should have directed separate trials. Grounds one and two raise these issues. Second, a complaint that the Judge should have told the jury that Mr Grocke and Mr Sheedy were unreliable witnesses, and that special care was needed before the jury accepted their evidence. Grounds three, four and six raise these issues. Ground five, which was closely linked to these grounds, was one on which leave was refused. Third, there is a complaint that the Judge erred in deciding that Mr Grocke was a hostile witness, and in his directions to the jury about the use of his evidence. Grounds seven and eight, on which leave to appeal had been refused, raise these issues. Fourth, that the verdict on count two was "unsafe and unsatisfactory". Grounds nine and 10 raise these issues. The argument was that on the evidence the jury could not properly have been satisfied beyond reasonable doubt of Mr Hawkins' guilt.

4 On 27 November 2001 at about 7.15 pm Mr Protheroe drove along the river front area adjacent to the river Murray at Waikerie. He was with his partner Ms Ogle. He drove past Mr Hawkins, who was sitting in a white van. They knew each other. Mr Hawkins made a shooting gesture at Mr Protheroe, using his fingers. Mr Protheroe drove on a short distance, stopped his car, got out and shouted some abuse at Mr Hawkins. Mr Hawkins then drove his van to where Mr Protheroe was. There were other people in the van and they all got out. They included Jack Hawkins, the son of Mr Hawkins, Mr Boatswain, Mr Grocke and some others. Mr Protheroe and Mr Hawkins had a discussion. Mr Protheroe said they "sorted things out". Then Jack Hawkins began to shout at Mr Protheroe, and to threaten him with a hammer. Mr Protheroe pushed Jack Hawkins away. Then Mr Hawkins grabbed Mr Protheroe by the throat and punched him twice to the head. All this happened very quickly. Another man also punched Mr Protheroe. There was evidence that Mr Boatswain was standing nearby, holding a shovel. Mr Protheroe tried to get into his car to get away. Mr Hawkins tried to pull him out of the car, and ripped his shirt. Jack Hawkins was hitting the car with the hammer, and was jumping on the bonnet, saying he was going to "bash" Mr Protheroe. That was count one.

5 Mr Protheroe drove away, and a little later drove to his house at Ramco. This was only a few kilometres away. He arrived there about twenty minutes later. As he arrived he saw Mr Hawkins' van near his house, and he saw people getting into the van. Mr Protheroe went into his house and got an iron bar. When he came outside the van had gone. Then he saw Mr Sheedy lying on the opposite side of the road.

6 Mr Sheedy said he was walking along the road to Mr Protheroe's house. He lived nearby. He knew Mr Hawkins. They had had a falling out. He saw Mr Hawkins' van approaching. The van slowed down and as it went past Mr Hawkins rolled down the window and said to Mr Sheedy "You're dead, you cunt". The van stopped a short distance past Mr Sheedy and the people in the van, including Jack Hawkins, got out. They armed themselves with tools and pipes. Mr Hawkins said to the men "Don't talk to him, just kill the cunt". The men surrounded him. Mr Hawkins hit him on the head with a pipe, and the others began hitting him. He was given a severe beating, and suffered loss of consciousness. That was count two.

7 Other witnesses saw the van at the scene, and men running to the van. One witness identified Mr Hawkins as being present.

8 Mr Grocke was one of the men in the van. He was 17 years old. He was declared hostile by the trial judge. His statement to the police supported the evidence of Mr Protheroe on crucial aspects of count one. He said that after this incident occurred, while they were in the van and driving towards Ramco, Jack Hawkins said "we are going out to find the fella and sort him out", which Mr Grocke took to be a reference to Mr Protheroe. His evidence about what happened at Ramco substantially supported the evidence of Mr Sheedy. He saw Mr Hawkins hit Mr Sheedy.

9 There was other evidence supporting the prosecution case.

10 Mr Hawkins' evidence was to the effect that there was a confrontation at Waikerie, that his son was upset, that he restrained his son and left the scene without doing anything to Mr Protheroe. He took his son and the other men from the scene in the van. They went to a hotel and got some alcohol. Then, to get the group out of town (there were some teenagers in the van), he drove out in the direction of a property owned by the father of one of the boys. He did not know that Mr Protheroe lived at Ramco. He had to stop the van because Mr Sheedy pushed a trolley out at the van, that Mr Sheedy was pushing or pulling along the roadside. His son, who had continued to be in an aggressive mood, got out of the van and ran towards Mr Sheedy. The effect of his evidence was that to prevent Mr Sheedy hitting Jack Hawkins with a chain that Mr Sheedy had, Mr Hawkins wrestled him to the ground, took the chain, got his son back into the van and drove away.

11 Before the trial began, objection was taken on behalf of Mr Hawkins to the joinder of count one and count two. Counsel argued that joinder was not permitted by s 278 of the Criminal Law Consolidation Act 1935 (SA). Alternatively, he argued that the Judge should direct separate trials because the evidence on count one was not admissible on count two.

12 The Judge rejected each submission. The Judge published detailed reasons for so deciding.

13 The joinder of count one and count two as against Mr Hawkins was authorised, as a matter of law, by s 278. The charges were "founded on the same facts" for the purposes of that section. On the evidence to be led by the prosecution, count two had its origin in the confrontation that gave rise to count one. The prosecution case was that Mr Hawkins and the others were looking for Mr Protheroe, when count two was committed, and that Jack Hawkins might have mistaken Mr Sheedy for Mr Protheroe, or linked them in some way. The same group of men were allegedly involved in each incident, although in varying degrees. Similar weapons were used. It may well be that the two offences were also "part of a series of offences of the same or of similar character" (punctuation omitted): see R v Liddy [2002] SASC 19; (2002) 81 SASR 22 at [113]- [120] Mullighan J. The joinder of Mr Boatswain and Mr Hawkins on count two was clearly permissible: R v Collie Kranz and Lovegrove [1991] SASC 2996; (1991) 56 SASR 302 at 307-310 King CJ.

14 As the joinder of the charges was permissible as a matter of law, the role of this Court on appeal is not to review the decision of the trial Judge to proceed with a joint trial, but to consider whether the joint trial has given rise to a miscarriage of justice: Collie at 310 King CJ.

15 As to that, Mr Ibbotson, counsel for Mr Hawkins, appeared to rely on a suggested weakness in the claim that the men in the van were looking for Mr Protheroe when they drove to Ramco, and on the submission that there was no solid evidence that Mr Hawkins knew where Mr Protheroe lived. He also relied on some inconsistencies in the evidence of prosecution witnesses. These were matters for the jury. I do not understand how they can be said to give rise to a miscarriage of justice in the relevant sense.

16 The Judge gave the jury clear and appropriate directions as to the use of the evidence on count one in relation to count two. He told the jury that it was open to them to decide that the incident the subject of count one was capable of explaining why Mr Hawkins drove to Ramco, with the other men and boys. He made it clear that that was the extent to which the evidence on count one was relevant to count two. He could also have referred to the fact that the evidence on count one suggested that Jack Hawkins at least was in an aggressive mood, and to the use of tools as weapons or potential weapons in each incident.

17 In my opinion, there is no risk of a miscarriage of justice from the joinder of these two counts. I would reject grounds one and two.

The evidence of Mr Grocke and Mr Sheedy - was a warning called for?

18 Mr Grocke was present during both incidents. He was not charged. On his evidence he took no part in either assault. There was no suggestion at trial that he was an accomplice. He was interviewed by the police two or three days after the incident.

19 Mr Ibbotson argued that Mr Grocke had an interest in distancing himself from the incidents, and, to assist that, in laying blame on Mr Hawkins and others, and in assisting the police. He pointed to the fact, as is obvious from the transcript, that Mr Grocke was a very reluctant witness for the prosecution, and that he displayed resentment about being brought to court to give evidence.

20 I have considered the helpful review by Cox J of a number of relevant decisions in R v Sinclair and Dinh (1997) 191 LSJS 53. I consider that the Judge's directions were adequate. He explained that the prosecutor had been permitted to cross-examine Mr Grocke because of his "reluctance to tell the whole truth". He reminded them that Mr Grocke had claimed to have no memory of the incidents, before the prosecutor was permitted to cross-examine him on his statement. He told the jury that "careful scrutiny of it is necessary".

21 It would have been better if the Judge had told the jury that Mr Grocke had a possible reason to distance himself from the incidents, and to lay blame on others. But in the circumstances his failure to do so did not create a risk of a miscarriage of justice. The real issue, to which the jury's attention was invited, was Mr Grocke's general reliability.

22 There was evidence in hospital notes, available to counsel for Mr Hawkins, that Mr Sheedy had been diagnosed as suffering from a paranoid personality disorder. There was also evidence that he was hostile to Mr Hawkins. There were some inconsistencies in his evidence about the assault. One of the policemen who dealt with him said that at times he was inclined to be angry, agitated and disillusioned with the police, and at times behaved in an irrational manner.

23 There was no dispute that Mr Sheedy had suffered a severe beating. As I understand the evidence, there could be no real doubt that a person or persons who had been in the van had given him the beating. The issue for the jury was Mr Hawkins' involvement.

24 A surgeon who treated Mr Sheedy for his injuries was called as a witness by the prosecution. Counsel for Mr Hawkins cross-examined the surgeon, referring to the hospital notes, and in effect got him to agree that a person suffering from a paranoid personality disorder might suffer from delusions. Counsel put a number of other general propositions to the surgeon, that might have suggested unreliability on the part of Mr Sheedy.

25 Mr Ibbotson argued that the Judge should have directed the jury that special care was called for in dealing with Mr Sheedy's evidence. No such direction was sought at trial. I do not accept the submission. The possibility that Mr Sheedy suffered from a disorder that made his evidence unreliable, calling for a warning, was almost entirely speculative. It was based on the cross-examination of the treating surgeon. There was no evidence of behaviour indicating delusional tendencies. To the extent that there were aspects of Mr Sheedy's evidence that called for care, the Judge reminded the jury of them. Included in the matters the Judge mentioned was a reference to the evidence extracted from the treating surgeon.

26 I consider that the jury would have been well aware of the need for some care with Mr Sheedy's evidence, because of his hostility to Mr Hawkins and the aspects of his personality that were brought out in evidence. There was no need for the Judge to warn the jury that it was dangerous to act on his evidence. Nor would such a warning have been appropriate in my opinion.

27 I would reject grounds three, four and six. I would refuse leave to appeal on ground five. I consider that that ground is not reasonably arguable.

28 When called to give evidence, Mr Grocke claimed to have virtually no memory of the incidents. The Judge allowed the prosecutor to question him, in the absence of the jury, about his statement to the police. He admitted making the statement, but continued to equivocate and to claim a lack of memory. He was clearly trying to avoid answering questions about the incident.

29 The Judge was satisfied that Mr Grocke was deliberately withholding evidence by reason of an unwillingness to tell the truth. He declared him to be hostile.

30 The prosecutor was then permitted to cross-examine Mr Grocke before the jury on his statement. Mr Grocke rather reluctantly agreed, as to most of the statement, that what was in the statement was what he told the police, and that it was true. The statement implicated Mr Hawkins.

31 The course that the Judge followed was correct. There were clear indications that Mr Grocke was deliberately withholding the truth. The Judge was entitled to so find. This provided a basis for permitting the prosecutor to cross-examine him: R v Hutchinson (1989) 53 SASR 587 at 592 King CJ.

32 The prosecutor followed the correct procedure. He identified Mr Grocke's statement to him, and took him through it. To the extent that Mr Grocke agreed that the contents of the statement were the truth, that stood as admissible evidence for the prosecution. To that extent the statement was more than an inconsistent statement, going only to credit because it showed the unreliability of his evidence that he had no memory of the event: The Queen v Jacquier (1979) 20 SASR 543 at 554-555 Walters and Wells JJ; R v Thynne [1977] VicRp 10; [1977] VR 98.

33 The Judge gave the jury appropriate directions about the evidence given by Mr Grocke. He explained why he allowed the prosecutor to cross-examine. He told the jury about the distinction between mere inconsistency between statements, and the adoption of a statement as the truth. He summarised the issue this way:

_"_So the issue, for you is really to decide whether some truth was extracted from him or whether the conflict and inconsistency in the sense which I have explained to you is such that you can't regard him at all as credible".

No criticism can be made of the course followed at trial.

34 I would refuse leave to appeal on grounds seven and eight. They are not reasonably arguable.

35 As argued, the submission was that it was not open to the jury to be satisfied beyond reasonable doubt that Mr Hawkins was guilty of count two. The test to be applied for these purposes is that stated by Mason CJ, Dean, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493, in a passage approved by the majority (Gaudron, McHugh, Gummow JJ) in Jones v The Queen (1997) 191 CLR 439 at 450- 451.

36 The Court must make its own examination of the evidence. The Court must bear in mind, when appropriate, the jury's advantage in seeing witnesses give their evidence.

37 There is no doubt that Mr Hawkins was present when Mr Sheedy was attacked by one or more of the persons who were in his van. The evidence of Mr Grocke and of Mr Sheedy directly implicated Mr Hawkins. Mr Hawkins admitted that he had subsequently disposed of the weapons. DNA material from Mr Sheedy was found on Mr Hawkins' shirt. The woman with whom he lived gave evidence of statements made by him to her that evening, which appeared to implicate him. His own evidence about what happened in relation to Mr Sheedy was implausible, and would have cast doubt on his credibility. The evidence about the earlier incident, if accepted, tended to support the prosecution case.

38 There are reasons why one would be cautious about the evidence of Mr Grocke and Mr Sheedy, but I emphasise that what is called for is caution only. There was nothing implausible or inherently unreliable about their evidence.

39 As to count two, my view is that the prosecution case was not as strong as it was on count one. However, having considered the evidence as a whole, I can find no reason why it was not open to the jury to accept the evidence implicating Mr Hawkins, and to find him guilty.

41 For all those reasons I would dismiss the appeal against conviction on each count.

42 PERRY J. I agree that the appeal against conviction on each count should be dismissed for the reasons given by His Honour the Chief Justice.

43 GRAY J. This appeal should be dismissed. I agree with the reasons of Doyle CJ.

R v HAWKINS No. SCCRM-03-215 [2003] SASC 419

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R v HAWKINS No. SCCRM-03-215 [2003] SASC 419 (18 December 2003)

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