R v Henderson [1999] VSCA 125

5. The offence carried a maximum penalty of five years' imprisonment and you admitted a number of prior convictions from more than 20 court appearances. The judge sentenced you to be imprisoned for 21 days. You had not undergone any pre-sentence detention.

8. Later you lodged notice of application for leave to appeal against the conviction claiming:

"Wrongful admission of evidence; bad comment by prosecution in summation regarding silence of accused from witness box; failure of his Honour to direct the jury on credibility of witnesses; unsafe and unsatisfactory verdict."

12. I will make brief reference to the findings his Honour made to the facts of your case in sentencing you.

15. The relevant events occurred on 4 June 1997 when you were being detained by employees of a hardware store for questioning about an alleged offence. You had agreed with a request from one of those employees to go with him to the manager's office, but when approaching the staircase you decided to leave claiming false arrest. You were restrained forcibly by one employee who was joined by another. You threw a punch at the first employee who ducked and your blow struck the second employee on the bridge of his nose causing bleeding and pain. Evidence as to the above was given by the witnesses named Palmer, Rigas and Elder. A police officer arrested you running away from the store pursued by store employees. He put it to you that you had punched the witness Palmer but you did not admit that this was so. You did not give evidence at your trial.

18. When your application was called on you asked for leave to add additional grounds. This was not opposed by the Crown and leave to add those grounds is granted. They read:

"The learned primary judge erred in law by the omission of a mandatory direction, namely, the presumption of innocence. 3. The verdict was against the weight of the evidence since the learned primary judge erred in law in failing to put the defence case either sufficiently in part or at all to the jury in its entirety. 4. The learned primary trial judge erred in law by not admitting into evidence a prior inconsistent statement of the witness named Elder. 5. The learned primary judge erred in law by omitting a corroboration of warning".

22. The composite ground on which you pleaded we have treated, and you wish it to be treated, as ground 1.

25. Today, being unrepresented, you addressed the Court. You began by reminding the Court that ground 1 of your grounds involved an allegation of an unsafe and unsatisfactory verdict. You submitted that perusal of the transcript shows a very confused picture of events provided by the key prosecution witnesses. You said that they jumped back and forth in giving their evidence and that, consequently, the jurors received, you submitted, a confused picture. You submitted that this confusion would have prevented or might well have prevented a safe verdict being returned.

28. You acknowledge that the judge did helpfully summarize the evidence to the jurors but its presentation, you submitted, was very confusing and indeed the judge's efforts reflected this.

31. You pointed to evidence that you were grasped from behind by one of the staff members. This showed, you said, that it was the staff who were making the running so far as violence was concerned. You also pointed to evidence that only some 10 seconds elapsed between you being grasped and the witness being hit, which illustrated the confusion in the situation.

34. You submitted that things, according to the evidence, were happening with speed and that several people were involved.

37. You then turned to the evidence touching the count of theft on which you were acquitted by direction of the trial judge. You said some of this evidence was wrongly admitted in the trial generally. You said your counsel submitted (p.83) that evidence that you caused damage to a bar code was merely evidence that went to a propensity of a malicious nature in you, but, you said, the judge admitted evidence from Palmer that he saw you run a sharp knife along a bar code on an oil container. You submitted that this evidence may well have tainted the verdict on the count where you were convicted.

40. You acknowledged you were in error in saying when your application was called on that the prosecutor at your trial had pointed both to you and to the witness box when making remarks to the jury that appear at page 207 of the transcript and to which I shall refer later. I interpolate here that it is clear from the video that the prosecutor merely points at the witness box.

43. You then turned to ground 2, which alleged a failure in the judge to refer to the presumption of innocence. You allowed that your counsel had referred to it twice in addressing the jury but you said the judge, in effect, negated this by directing the jury that they were not bound by counsels' comments.

46. You produced an extract from "Australian Criminal Directions" by Messrs. Glissan QC and Tillmouth which lists "Presumption of Innocence" as a necessary trial direction.

49. You next submitted that the judge did not put your defence sufficiently. You said that a decision to defend yourself might have been taken quickly in circumstances where it was open to the jury that you were taken by surprise, but the judge did not specifically advert to this circumstance.

52. You then turned to the matter of ground 4, which related to an alleged prior inconsistent statement of the witness Elder and you referred to a submission of your counsel that appears at page 256 of the transcript. Here it appears your counsel is asking the judge to remind the jury about a piece of Elder's evidence concerning you having been touched.

55. As to ground 5, you explained that you meant by the reference to corroboration was to convey that the Crown witnesses from the store described a particularly confusing event, and that it would have been desirable for the jury to be told that they should look for some confirmatory evidence from another source.

58. As I earlier explained to you, you must understand that according to the law this proceeding is not for the purpose of simply retrying your case. On the contrary, before this Court can intervene in the matter of your conviction you must show that some defect or error occurred in the trial which warrants your conviction being set aside.

64. As to your complaint that the judge wrongly admitted evidence which related to the theft count, we think that the admission of that evidence was warranted to give the jury an accurate picture of the setting in which the second count took place. Indeed, your own counsel put to the judge that both matters were inter-linked. Further, your counsel made no application for the jury's discharge after your acquittal on the first count became certain.

67. We have also looked at the setting in which the Crown prosecutor's remark, "That's not in evidence, tested evidence, from the witness box" was made. There was no objection from the Crown prosecutor to the showing of the video film of this incident, and without setting a precedent in any way, the relevant portion has been viewed in this court room. As I have earlier indicated, when the film was viewed it did not show the prosecutor pointing at you and the witness box as you have earlier alleged, and you have indeed acknowledged this.

70. Nevertheless, you submit that the words themselves justify this particular ground being upheld. Having examined that setting, however, we think that the remark was not directed at your failure to give evidence, rather counsel was reminding the jury that it had not been put to the prosecution witnesses in cross-examination that you had said to them that you had an appointment to go to. We think the jury would have so understood the remarks. These views are reinforced by your counsel's lack of complaint as to these remarks.

73. We have also considered your claim that the jury was not instructed as to the credibility of witnesses. Looking at the charge as a whole we are satisfied they were sufficiently so instructed, see pages 229 and 230.

76. As I earlier explained to you, your ground of unsafe and unsatisfactory verdict requires us to conduct an independent review of the whole of the evidence and to ask ourselves at the end of that exercise whether it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt of your guilt. We have done that and in our view it was open to the jury to be so satisfied. The evidence of the witnesses Palmer, Rigas and Elder features prominently in that conclusion.

79. Ground 2 of your new grounds asserts that the judge omitted a necessary direction, namely, the presumption of innocence. Such a direction was not specifically given but we are satisfied that the burden and onus of proof were accurately and sufficiently explained to the jury, see pages 231, 234, 240, 253 and 254 of the transcript. See R v. Palmer N.S.W.C.C.A. (unrep.) judgment given 4 September 1992.

82. In any event the matter does not end there because the transcript shows that your own counsel referred to the presumption of innocence on two occasions, see pages 217 and 218.

85. The transcript also shows that the learned judge later told the jury that your counsel had drawn their attention to what he called a number of "fundamental principles of law". We think the jury would have taken his Honour to be then endorsing your counsel's remarks. Your counsel must be taken to have been content with the charge on this point because he took no exception to it.

88. Your next new ground, ground 3, alleges your defence was not sufficiently put "in part or at all to the jury in its entirety". We have examined the charge in the light of this allegation. We think the judge did make adequate reference to portions of cross-examination by your counsel, which of course form part of your case, and that his Honour adequately summarised your defence, see pages 253 and 254.

91. Your counsel was asked by the judge at the end of the charge if he had any exceptions to it. Your counsel did mention some but did not complain that your defence had been inadequately put.

94. Ground 4 of your new grounds claims that the judge erred in law by not admitting into evidence a prior inconsistent statement of the witness Elder. Assessment of this ground has proved to be very difficult. All that clearly appears is that your counsel made an apparently reasoned decision not to tender some document relating to Elder's evidence. In those circumstances we are unable to uphold this ground.

97. Your final ground, 5, alleges that the judge omitted a corroboration warning and, as I have said earlier, you have explained that what you meant by this ground was that the essential prosecution witnesses were a confused lot with a confused story to tell, and that a direction to look for some confirmatory evidence by the judge was desirable. It is sufficient to say that having read that evidence we see no reason why the judge should have done that.

100. Accordingly, we think none of your grounds is made out and so we cannot assist you and your application must be dismissed.