• Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108;
• Miller v The Queen (1980) 55 ALJR 23;
• Mills v The Queen [1986] HCA 71; (1986) 61 ALJR 59;
• McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108;
• R v Britten (1988) 49 SASR 47;
• Chan Wing-Siu v The Queen [1984] UKPC 27; [1985] AC 168;
• R v Robinson and Tiplady (1985) 123 LSJS 37;
• Beauregard-Smith v The Queen (1995) 180 LSJS 188;
• Becerra [1975] EWCA Crim 6; (1976) 62 Cr App R 212, considered.
• R v White [1999] SASC 43, distinguished.

Counsel: MR S MILLSTEED QC - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (SA)

Judgment No. [2000] SASC 98

(Court of Criminal Appeal: Doyle CJ, Bleby and Martin JJ)

[2000] SASC 98

Court of Criminal Appeal: Doyle CJ, Bleby and Martin JJ

1. DOYLE CJ This is an appeal by two men who were jointly charged and tried for offences arising out of, or related to, the same incident. Mr Jenner has appealed against both his conviction and sentence. Mr Masters has appealed only against his sentence.

2. In the early hours of the morning on 28 September 1998 Mr Jenner and two other men went to the home of Mr and Mrs Williams with the intention of stealing cannabis plants they had been told were being cultivated by the Williams' son. One of the other men was named Marshall. He has played no part in these proceedings. Mr Jenner would not identify the third man saying that he was afraid of him. The third man has been referred to simply as "Mr X".

3. The three men drove together from Mr Jenner's home to the Williams' house. Before they left Mr Jenner's house, Mr X insisted on taking a crossbow which had been hanging on the wall of Mr Jenner's lounge room. It was Mr Jenner's case that he did not think the crossbow was loaded at any time during the events that followed as he had no arrows that could be fired from it. Mr Jenner gave evidence that he told Mr X there was no need for the crossbow and that it would be useless as there were no arrows. He said Mr X persisted and in the end Mr Jenner gave in thinking that it would not be able to be fired.

4. The cannabis was being cultivated in a storeroom on the lower level of the Williams' house. The noise the men made while trying to open the security door to that storeroom woke Mr and Mrs Williams. Mr Williams armed himself with a pickaxe handle and chased the three men from the scene. As the men were running from the scene, Mr X fired the crossbow at Mr Williams. The arrow fired from the crossbow penetrated Mr Williams' shoulder causing him very serious injuries from which he nearly bled to death.

5. It was the prosecution case that Mr Masters was one of the three men who went to the Williams' house that night and indeed was the person who fired the crossbow. In other words, it was the Crown case that Mr Masters was Mr X. Mr Masters did not give evidence. His case that that there was insufficient evidence to prove his involvement. Mr Jenner and Mr Masters were both charged with attempted burglary and attempted murder, the latter charge being reduced before trial to wounding with intent to cause grievous bodily harm. For convenience I will refer to this as wounding with intent. Mr Masters was also charged with the offence of attempting to dissuade a witness. I will deal with the facts relating to this charge later.

6. Mr Jenner pleaded guilty to the charge of attempted burglary. He was found guilty by a jury of the offence of wounding with intent. The jury found Mr Masters not guilty of wounding with intent or attempted burglary. This verdict indicates that the jury was not satisfied that he was involved in the attempted burglary. He was found guilty of the offence of attempting to dissuade a witness.

7. In sentencing, the Judge concluded that given the verdict of guilty, the jury must have rejected Mr Jenner's evidence that he thought the bow could not be used because there were no arrows for it. Mr Jenner was sentenced on that basis. Mr Masters, having been found not guilty on the charges of wounding with intent and attempted burglary, was sentenced on the basis that he was not Mr X and was not at the scene of the offence.

Mr Jenner has appealed against his conviction on several grounds.

Ground one relates to the direction the trial Judge gave to the jury on the topic of joint enterprise. That direction was as follows:

"The Crown case is that the three men, of whom Jenner and Masters were two, had agreed, either expressly or implicitly, to commit the burglary whilst armed with a loaded crossbow. You have to be satisfied, beyond reasonable doubt, that there was such a joint enterprise. If you are, then you may be satisfied that Jenner ... is responsible for the shooting of Mr Williams and for causing him grievous bodily harm if you also find two other things proved: first, that Jenner ... foresaw the possibility that in the course of carrying out the burglary, one of the others might deliberately and unlawfully wound someone, and, second, that they not only foresaw the possibility of the deliberate wounding but foresaw the wounding accompanied by the intention to cause grievous bodily harm."

Mr Boucaut, counsel for the appellant Mr Jenner, argued that because the primary purpose of the joint enterprise was not to wound Mr Williams, it was incumbent upon his Honour to direct the jury that a "possibility" had to be more than a slender chance. He submitted that the direction to the jury should have been in the following terms. That Mr X's use of the crossbow had to be a "substantial risk" which was specifically within the appellant's contemplation as a possible incident of the common unlawful purpose. Further, that if the risk that the crossbow would be used was dismissed by Mr Jenner as negligible, that would not be enough to sustain a finding of guilt on the basis of joint enterprise.

Mr Jenner's second ground relates to the direction given by the trial Judge as to the manner in which the jury could or should approach the evidence given by Mr Jenner in his defence. The direction given was in the following terms:

"An accused has two choices at the close of the Crown case. He can stay in the dock and say nothing, merely leaving it to the Crown to prove its case against him, if it can. Alternatively, he can get into the witness box, like any other witness. In this trial the accused, Daniel Jenner, has given evidence. You should give him the credit you think due to him for having done so. On the other hand, Peter Raymond Masters has not given evidence. That was his right. He was not obliged to do other than he did. You should not take his silence as any admission of guilt."

I have included the final sentences of his Honour's remarks as they relate to Mr Masters to highlight the difficult position in which the trial Judge found himself. Mr Jenner gave evidence in his defence, Mr Masters did not. While it was appropriate for the trial Judge to tell the jury that they might give credit to Mr Jenner for the fact that he gave evidence, he had to do so in a way which did not penalise Mr Masters for not having done so.

Mr Boucaut complained about this direction on several grounds.

The first is that the Judge should have told the jury that Mr Jenner was entitled to be treated like any other witness when the jury came to assess his evidence. Mr Boucaut made the point that Mr Jenner's credibility was vital, because the case turned on his claim that he had no knowledge that the crossbow was loaded. In short, it was submitted that the jury should have been told that they had to treat Mr Jenner's evidence on the same footing as the evidence of other witnesses.

There was also a complaint that the Judge did not adequately summarise the defence case, and did not adequately explain how the evidence given by Mr Jenner tended to meet the prosecution case. I will return to that later.

Ground four is that the combined effect of the two complaints already identified is to produce a miscarriage of justice.

Ground five is that the trial Judge did not direct the jury as to the possibility that Mr X fired the crossbow accidentally, or did not intend to cause grievous bodily harm. Mr Boucaut submitted that if Mr X had intended to fire the crossbow in Mr Williams' direction without intending to hit him, for example in order to deter him from chasing the group or otherwise to scare Mr Williams, Mr X would not have the requisite intention for the offence of wounding with intent to cause grievous bodily harm. If that proposition is correct, it follows that Mr Jenner could not be convicted of that offence.

Mr Boucaut also took issue with the following direction to the jury on the basis that it wrongly assumed an intention which had to be proved by the Crown beyond a reasonable doubt and did not address the possibility that the crossbow was accidentally discharged:

"Whoever it was who fired the arrow from the crossbow, you should have no difficulty in finding that it was intentionally fired, and at Mr Williams."

He submitted that this direction wrongly instructed the jury to make a finding of fact adverse to Mr Jenner's case, or at least invited the jury to find that the required intention on the part of Mr X was established.

At the hearing of the appeal, Mr Jenner was given leave to argue an additional ground of appeal. The Court indicated that it would consider the question of leave to appeal on this ground at the same time as it considered the merits of this ground of appeal.

Mr Boucaut submitted that the trial Judge erred in failing to give the jury a direction as to the permissible and impermissible uses of evidence put before them of Mr Jenner's bad character. The evidence in question was Mr Jenner's plea of guilty to the charge of attempted burglary and evidence of his drug usage.

The submissions in support of ground one involve a consideration of ground covered by the High Court in Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108, Miller v The Queen (1980) 55 ALJR 23, Mills v The Queen [1986] HCA 71; (1986) 61 ALJR 59 and McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108.

The present case is one in which the case for the prosecution was that Mr Jenner knew that Mr X was carrying a crossbow and a bolt with which the crossbow might be loaded, and knew that that weapon would be carried by Mr X in the course of the burglary of Mr Williams' premises. The prosecution case was that even if the common purpose of Mr Jenner and Mr X was limited to the burglary of the Williams' house, Mr Jenner was guilty of the crime of wounding with intent to cause grievous bodily harm because he contemplated the possibility that in carrying out the burglary Mr X would commit that further crime, and continued to participate in the burglary with that knowledge. That being so, the present case falls precisely within the circumstances considered by the High Court in McAuliffe. The court described those circumstances by contrasting them with the circumstances before the court in Johns, making the point that Johns had not addressed the precise situation that came before the court in McAuliffe. The court said (at 115):

"The Court [in Johns] did not consider the situation in which the commission of an offence which lay outside the scope of the common purpose was nevertheless contemplated as a possibility in the carrying out of the enterprise by a party who continued to participate in the venture with that knowledge. That situation would occur where, for example, a party knows that another party to a joint criminal enterprise is carrying a weapon which that other party might use to kill or inflict grievous bodily harm in carrying out the enterprise and expressly rejects any agreement that the weapon might be used but nevertheless continues with the venture. The question arises whether both parties are liable if the weapon is used to inflict harm in the course of executing the common purpose, that action being one which lay outside the scope of the common purpose or agreement, but within the contemplation of the secondary party."

The court in McAuliffe went on to refer to a number of decisions, including Johns. The court stated the applicable principle in the following passage, which it is appropriate to set out in full (at 117 - 118):

"In Johns this Court was concerned with the common purpose of a joint criminal enterprise. In particular, it was concerned with whether the scope of the common purpose extended to possible as well as probable incidents of the venture. The scope of the common purpose is no different from the scope of the understanding or arrangement which constitutes the joint enterprise; they are merely different ways of referring to the same thing. Whatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement. That is why the majority in Johns in the passage which we have cited above spoke in terms of an act which was in the contemplation of both the secondary offender and the principal offender. There was no occasion for the Court to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture. However, the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose. Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind. But there is no other relevant distinction. As Sir Robin Cooke observed, the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and that is so whether the foresight is that of an individual party or is shared by all parties. That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it."

In my view, the direction that the Judge gave in the present case is in accord with the principles stated by the High Court in McAuliffe. I consider that there is nothing to be found in the decisions in Johns, Mills or Miller to the contrary.

The submission for the appellant was that because the wounding of Mr Williams was not the primary purpose of the joint enterprise, the Judge should have directed the jury that Mr Jenner was not guilty unless he foresaw the use by Mr X of the crossbow, with intention to cause grievous bodily harm, as a substantial risk rather than as a possibility. That submission was founded upon the fact that a reference to the concept of a "substantial risk" of a crime being committed as an incident of a contemplated crime appears in the reasons of Stephen J in Johns (for example, at 119), the reasons of the Court in Miller (at 26) and in the reasons of King CJ in R v Britten (1988) 49 SASR 47 at 53 - 54. However, it is equally clear that directions have been upheld which appear to make no reference to the concept of substantial risk, and which are expressed simply in terms of what was contemplated as a possible incident of the agreed enterprise. It appears that the jury was directed in terms of what was contemplated as a possibility in Johns (see at 109), and in McAuliffe (see at 113). On a number of occasions members of the High Court have expressed approval of a statement of principle by Street CJ to the effect that an accessory before the fact and a principal in the second degree are criminally liable for an act which was within the contemplation of the accessory or principal in the second degree on the one hand and the principal in the first degree on the other as an act "contemplated as a possible incident of the originally planned particular venture": for example, McAuliffe at 115. On a number of occasions the High Court has also referred with approval to what was said by Sir Robin Cooke, delivering the advice of the Privy Council, in Chan Wing-Siu v The Queen [1984] UKPC 27; [1985] AC 168 at 178:

"In some cases in this field it is enough to direct the jury by adapting to the circumstances the simple formula common in a number of jurisdictions. For instance, did the particular accused contemplate that in carrying out a common unlawful purpose one of his partners in the enterprise might use a knife or a loaded gun with the intention of causing really serious bodily harm?"

It is clear that when Sir Robin made those remarks he was contemplating a case like the present one, and not the rather different sort of case in which, as he said (at 179) "there is an evidential foundation for a remoteness issue."

These observations of Sir Robin Cooke were approved by the High Court in McAuliffe (at 116 - 177) and in Mills (at 59).

In the end, the question is whether the relevant direction adequately brought home to the jury the issue for their consideration. In the present case the issue was whether Mr Jenner entered into an understanding or arrangement with Mr X to commit the crime of burglary, foresaw, without necessarily agreeing to, the possibility of a further crime being committed in the course of the planned venture, and continued to participate in that planned venture under those circumstances thereby becoming a party to that further crime as an incident of the planned venture.

In the present case, the Judge instructed the jury that they had to be satisfied that Mr Jenner and Mr X had agreed, expressly or by implication, to commit the burglary while Mr X had with him a loaded crossbow or, to be more precise, a crossbow and a bolt with which it might be loaded. He did not direct them that it was sufficient that they had agreed merely to take the crossbow. He told the jury that if they were satisfied of that, and satisfied that Mr Jenner foresaw the possibility that in the course of carrying out the burglary, one of the others might use the crossbow deliberately and unlawfully to wound someone, with the relevant intent, then Mr Jenner was guilty. I add, for what it is worth, that in evidence Mr Jenner acknowledged that Mr X was "a person with a violent disposition" and "a very violent man".

In my opinion, the Judge's direction adequately brought home to the jury the issue that they had to decide. It is a direction that is supported by authority. There was no need to direct the jury in terms of the risk of the further crime being committed being a substantial risk. As King CJ said in R v Britten (at 54), in circumstances like this "objectively there was clearly a substantial risk" that the further crime would occur. The circumstances were not such that the Judge's direction was likely to cause the jury to take into account speculative or hypothetical possibilities. It was not a case in which any real issue of foreseeability arose. There was no need for a more detailed direction to bring home to the jury the issue that fell for their consideration in the proper application of the principles identified by the High Court in McAuliffe.

For those reasons, I would reject this ground.

This Court has not held that in directing a jury a Judge is required to tell them that, if the accused has given evidence, they must give him credit for having done so. In R v Robinson and Tiplady (1985) 123 LSJS 37 at 38 King CJ said that "a trial Judge is not required to commend a witness for having given evidence on oath". It is for the trial Judge to decide whether or not, in the particular circumstances, the Judge will do that. The fundamental point is that the Judge must not give a direction that might convey to the jury that they are entitled to attach less weight to the evidence of an accused person than they might attach to the evidence of any other witness, simply because the person is the accused. In that context, the court has held that there is no obligation upon a Judge to direct a jury that the evidence of the accused must be treated in the same way as the evidence of other witnesses: Beauregard-Smith v The Queen (1995) 180 LSJS 188 at 194. The fundamental principle is that nothing must be said or done to diminish the weight that might be attached to the evidence of an accused person, simply because that person is the accused.

The direction that the Judge gave met these requirements. There is no substance in this aspect of this ground.

It is also relevant to bear in mind that the Judge had to ensure that Mr Masters received a fair trial. He had to avoid making a comment, in relation to Mr Jenner, that might reflect unfairly upon the fact that Mr Masters had not given evidence. The Judge achieved this.

Nor do I accept the complaint that the case for the defence was not fairly put. The central issues in the case were very clear. They were dealt with by the directions that I have outlined in dealing with ground one. As well as this, the Judge summarised the evidence given by Mr Jenner, explained to the jury the idea of a joint enterprise, applying his explanation to the case, and in brief but adequate terms put the central issues to the jury. In my opinion it cannot be said that any more was required.

Under this head there was a separate complaint that the Judge did not direct the jury to consider whether the evidence that Mr Jenner ran from the scene, after being disturbed by Mr Williams, provided a basis for the jury to find that Mr Jenner had withdrawn from the planned venture or common enterprise. Under the circumstances of the case, this is a flimsy argument, and was not advanced at trial.

In my opinion, the Judge was not obliged to give a direction to the jury on the matter. Mr Jenner ran from the scene only when he and his accomplices were disturbed by Mr Williams. Apart from this conduct, there is nothing to indicate a withdrawal from the planned venture, which surely included, in any event, making an escape from the scene of the planned crime. The defence of withdrawal does not realistically arise under circumstances like this. For the defence to arise there must be some communication of the intention to abandon the planned venture, or some action which can reasonably be regarded as terminating the effect of the previous joining by the accused in the planned venture. Furthermore, usually it would be necessary for the withdrawal to be voluntary, in the sense of not being merely motivated by a desire to avoid detection or apprehension: Becerra [1975] EWCA Crim 6; (1976) 62 Cr App R 212 at 218.

This ground necessarily fails, in view of my conclusion that the first two grounds lack substance.

In my opinion, this ground falls to be considered in the context of the trial Judge's overall duty to give the jury all directions necessary for a proper consideration of the case, and the Judge's further duty to direct the jury in relation to all matters that a fair consideration of the cases for the prosecution and for the defence require should be dealt with by direction. It is not the duty of the trial Judge to canvass every conceivable issue. Considerable latitude must be allowed to the judgment of the trial Judge in deciding what matters should be dealt with in the Judge's direction. This decision will be made in the light of the issues in the case and, to some extent, the manner in which the case is conducted.

It was not necessary for the Judge to give a specific direction in relation to the possibility of an accidental discharge of the crossbow.

The Judge directed the jury that to convict they must find that the crossbow was discharged intentionally. He also directed the jury that they had to be satisfied that it was fired with the relevant intention. In giving that direction, he necessarily implied that an accidental discharge of the crossbow would not lead to a conviction. There is no reason to think that the jury would not have appreciated that point.

The possibility of an accidental discharge was so remote as not to require further elaboration, nor did it require that the Judge develop the facts upon which that possibility might arise. In this respect, I agree with the submission by Mr Millsteed QC for the Director. As he pointed out, the crossbow had to be loaded and pointed in the general direction of the victim, for the injury to have occurred. As I understand it, the crossbow was not carried loaded. Mr Williams was shot while he was pursuing Mr Jenner and the other person involved in the offence. There was nothing in the facts to suggest that the person who fired the crossbow might have done so accidentally. Mr Jenner gave evidence that Mr X, after the event, admitted shooting Mr Williams, and there was no suggestion in that evidence that Mr X had suggested that the shooting was an accident. Under those circumstances it was sufficient for the Judge to have identified the need for the jury to find that the firing was intentional, and it was unnecessary for him to expand upon the circumstances in which the firing might have been accidental.

The direction by the Judge that the person who fired the crossbow had to intend to cause really serious harm to Mr Williams again, by implication, negatives a finding of guilt if the intention was only to scare Mr Williams. Once again, I consider that the direction was sufficient.

While one cannot exclude the possibility that the crossbow was fired to scare Mr Williams, I agree with the submission by Mr Millsteed QC that that is sufficiently unrealistic for there to be no need for the Judge to develop the facts in relation to that possibility. The crossbow was fired from a position to the rear of Mr Williams, while Mr Williams was pursuing the other offenders, and without any warning. Under the circumstances, it is difficult to see how one could realistically have any doubt that the purpose of the firing was not merely to scare Mr Williams.

I agree that the Judge's direction, set out above, did invite the jury to find that the crossbow was fired intentionally. But early in the summing up the Judge emphasised to the jury that it was entirely for them to decide the facts. He told them that they should disregard any opinion that he might express about the facts. He said that more than once. This Court should not discourage trial Judges from indicating a view of the facts when they think it appropriate to do so, provided that at the end of the day the summing up is fair and balanced. In my opinion, there was nothing wrong with the Judge expressing the view that he did express.

During Mr Jenner's evidence-in-chief, his counsel led from him evidence the effect of which was that at the time of the alleged offence he was regularly consuming drugs, the consumption of which was unlawful. Counsel asked a number of questions on this point. Mr Jenner gave evidence that he had consumed cannabis on the day of the alleged offence. On the other hand, he also gave evidence which would have negatived any suggestion that he was so affected by the drugs as to be incapable of forming the intent required for the alleged offence.

It is unclear why counsel led this evidence from him. Perhaps the purpose was merely to suggest that Mr Jenner was not thinking clearly at the time. At no stage during his address did counsel for Mr Jenner identify the relevance of the evidence. I must say that in those circumstances I regard as rather hollow the complaint that the Judge erred in failing to direct the jury as to the permissible and impermissible use of this evidence, which I acknowledge to be evidence of bad character. No direction along those lines was sought at trial.

It would have been better if the Judge had warned the jury not to infer from this evidence that Mr Jenner was the sort of person likely to commit the crime alleged, and not to draw an adverse inference from the bad character revealed by the evidence. But, in my opinion, the chance of the jury reasoning in that way was so remote as not to require a direction in the circumstances of the case. I am satisfied that the failure to give a direction could not have given rise to a miscarriage of justice.

The case was all about an alleged offence committed in the course of an attempted burglary with a view to obtaining drugs. Evidence that Mr Jenner was a regular recreational user of drugs seems to me to have no link at all to the offence to which he had pleaded not guilty, other than that it provided the background setting in which the offence had occurred.

I make much the same response to the complaint that the Judge should have directed the jury not to use adversely to Mr Jenner his plea of guilty to the charge of attempted burglary. Once again, no direction to that effect was sought. In my opinion, no miscarriage of justice could have resulted from the failure to give the suggested direction. There was no realistic possibility of the jury reasoning that Mr Jenner's guilt of the offence to which he pleaded guilty made it more likely that he had committed the offence to which he had pleaded not guilty.

I would grant leave to appeal on these grounds but reject this ground of appeal.

It follows that the appeal against conviction should be dismissed.

Mr Jenner was sentenced to 7 years and 8 months imprisonment for the offence of wounding with intent to cause grievous bodily harm. He was sentenced to 3 years imprisonment for the offence of attempted burglary. Those sentences were ordered to be served concurrently with the result that Mr Jenner's total head sentence was 7 years and 8 months imprisonment. The Judge fixed a non-parole period of 4 years.

The Judge directed that the sentence that he imposed would begin when Mr Jenner had completed serving a period of imprisonment being served by him as a result of his failure to pay fines. The Judge had been given information indicating that when sentenced Mr Jenner was serving a period of imprisonment on that basis. Counsel for Mr Jenner did not have full instructions on the matter. The Judge invited counsel to give him agreed information on the matter, or to inform him within a week if there was a dispute.

Two weeks later, when the Judge was ready to pass sentence, Mr Jenner's solicitor submitted that warrants in respect to the non-payment of fines had not been properly executed upon Mr Jenner. No evidence was offered to support this suggestion. The Judge declined to act upon this unsupported assertion. The Judge passed sentence on the basis indicated by me. Mr Boucaut submitted that if the assertion about the defective execution of the warrants was correct, time spent in custody since 26 June 1999 was time that ought to have been taken into account as being time served in respect of this offence, and that the sentencing Judge ought not to have proceeded until the position had been clarified. Mr Boucaut submitted that the sentencing Judge ought to have backdated both the head sentence and the non-parole period or otherwise given appropriate deductions for the period of time spent in custody between 26 June 1999 and 21 October 1999 when he passed sentence. Mr Boucaut tendered affidavit evidence to support this submission. No application had been made for leave to present fresh evidence in support of the appeal. Counsel for the Director had not been informed of the application until just before it was made. No explanation was given for the late application. There was no evidence to prove that Mr Jenner had the means to pay the fines, or in some other way had the ability to avoid serving the term of imprisonment referable to the fines.

The Court refused to permit the tender of the affidavit evidence, there being no proper application before the Court, the evidence having arisen as late as it did, there being no proper explanation for the delay, and because it seemed to the Court that, in any event, the period of imprisonment referable to the fines had to be served sooner or later.

There being nothing else to support the appeal against sentence, that appeal necessarily fails, and should be dismissed.

Mrs Donovan is the mother of Mr Jenner's de facto wife. Mrs Donovan gave evidence at trial that she arrived at the house occupied by Mr Jenner and her daughter just after 7:00am on 28 September and saw Mr Masters asleep on a couch in the lounge room. That evidence, and threats made by Mr Masters to Mrs Donovan, which the Crown argued showed consciousness of guilt, were the only evidence linking Mr Masters to the incidents that occurred at the Williams' property.

While on home detention bail in relation to the original charges, Mr Masters approached Mrs Donovan and threatened her.

The circumstances in which those threats were made are as follows.

Mrs Donovan was at a beauty salon in a local shopping centre when Mr Masters walked in and began to yell abuse at her. Mrs Donovan gave evidence that Mr Masters said, among other things:

"You fucking dog bitch, if you go to court and give a statement against me, you'll be fucking dead."

Mrs Donovan was shaking by the time Mr Masters left the beauty salon. Later Mrs Donovan left the salon and met her daughter in the shopping centre. While she was talking to her daughter Mr Masters approached her and again began to yell abuse. Mrs Donovan gave evidence that he said:

"Don't go to court and give evidence against me you fucking dog bitch, else you'll be dead. Go on, tell your mother, else you'll be dead ... I've already taken a shot at someone, so taking a few more out won't matter."

Mrs Donovan's response was to tell Mr Masters to "just fuck off, you've got short man syndrome".

Taking the not guilty verdicts of the jury into account, the trial Judge sentenced Mr Masters on the basis that he behaved in the way he did out of outrage at being charged with offences which he did not commit. On that basis he was sentenced to 2 years imprisonment with a non-parole period of 18 months.

Mr Edwardson submitted that the sentencing Judge fell into error when taking into account the time Mr Masters had already spent in custody in relation to these charges.

Mr Masters was arrested on 9 November 1998 on the original charges of attempted burglary and attempted murder. He spent 17 days in custody before being granted home detention bail on 26 November 1998. Mr Masters was arrested for the offence of attempting to dissuade a witness on 25 December 1998 and remained in custody until he was sentenced on 21 October 1999, a period of roughly 10 months.

When Mr Masters committed the offence for which he was ultimately convicted he had a balance of 1 year 2 months and 16 days to serve in respect of a previous conviction. The sentence imposed for attempting to dissuade a witness was ordered to take effect at the expiration of the balance of that sentence. The non-parole period of 18 months was fixed in relation to the combined head sentence of 3 years 2 months 16 days.

It appears from the sentencing remarks that his Honour was under a misapprehension as to when Mr Masters would complete serving the balance of the sentence in respect of a previous conviction. He calculated that to be the end of the first week in March 2000. In arriving at that date it would appear his Honour assumed that Mr Masters was serving that balance while in custody following his arrest. That is not correct. A letter from the Parole Board, tendered at the hearing of this appeal, indicates that this is not the case. Mr Masters will not be given any credit against the balance of that sentence for the 10 months he spent in custody following his arrest on 25 December 1998. As a result, he has been given an effective head sentence of 2 years and 10 months, because Mr Masters will not begin to serve the sentence imposed by the Judge until 10 months after the date anticipated by the Judge.

I consider that an error has occurred in the sentencing process. Accordingly, this court must sentence Mr Masters afresh.

Mr Millsteed, on behalf of the Crown, conceded this error, but submitted that in all the circumstances the sentence imposed was not manifestly excessive.

The offence of attempting to dissuade a witness is a serious one. As the sentencing Judge said, attempting to dissuade a witness from giving evidence strikes at the heart of the judicial system, by attempting to deprive a court of probative evidence. If a court is deprived of relevant probative evidence, the risk of a wrong decision clearly arises. The offence is serious not only because it involves the making of a threat to another person. It has the added seriousness that the purpose of the threat, and its possible consequence, is the making of a decision by a court which will be made on an incomplete appreciation of the relevant facts, and will possibly be erroneous for that reason. Such a decision can, in turn, weaken confidence in the system of justice. At the very least, some of the persons involved in the matter before the court are likely to know that a threatened witness has not given evidence and thus are likely to know that an unreliable decision has been made.

For those reasons, it is appropriate for the court to punish severely persons who commit this offence. In the end, the court must do so to protect the integrity of the system of justice.

Mr Edwardson emphasised the fact that the Judge accepted that what Mr Masters said to Mrs Donovan was no more than an expression of outrage at being implicated in a crime he did not commit. It was his submission that this put Mr Masters' offending into a less serious category than that considered in R v White [1999] SASC 43.

I do not consider that it is helpful to approach this case by making a close comparison with the decision in R v White, where the sentence was a sentence of imprisonment for 12 months, with a non-parole period of six months, the sentence being suspended upon the offender entering into a bond.

The offence in this case was a serious one. Mr Masters threatened to kill Mrs Donovan. He did so on two occasions, admittedly close together. His conduct had a significant effect on Mrs Donovan at the time. She was known to him, and there was every reason for her to think that he might find her should he wish to carry out his threat. The fact that the threat did not deter Mrs Donovan from giving evidence does not lead to the conclusion that it was not a serious threat, or to the conclusion that Mrs Donovan did not regard it seriously. I do not accept the suggestion that the manner in which she replied to Mr Masters indicates that she did not take the threat seriously.

Mr Masters has a bad record. His previous offences include offences involving violence. When he committed the offence he was on parole, and on home detention bail in respect of the charges of which he was found not guilty.

About all that can be said in mitigation is that it may be that the offence was committed on the spur of the moment, and, as the Judge accepted, fuelled by a sense of outrage that he had been charged with a crime he did not commit.

In my opinion, the seriousness of the offence warranted the sentence that the Judge imposed. There was no plea of guilty, and Mr Masters' poor record made it inappropriate to reduce that sentence on grounds personal to Mr Masters.

However, it is necessary to make allowance for the fact that Mr Masters had served 10 months in custody, and accordingly I would impose a sentence of imprisonment for one year and two months. I would order that that period of imprisonment begin at the expiration of the balance of the sentence of imprisonment for one year, two months and 16 days. In relation to the combined head sentence, I would fix a non-parole period of 12 months, that non-parole period to commence on 21 October 1999, being the day upon which Mr Masters was originally sentenced and upon which he began to serve the balance sentence of imprisonment in respect of the earlier offence.

I would dismiss the appeal by Mr Jenner against conviction and his appeal against sentence.

I would allow the appeal by Mr Masters against sentence, substitute a sentence of imprisonment for one year and two months, order that that period of imprisonment be served at the expiration of the unexpired balance of one year, two months and 16 days to be served by Mr Masters and, in relation to the combined head sentence of two years, four months and 16 days, fix a non-parole period of 12 months, that non-parole period to date from 21 October 1999.

BLEBY J I agree with the orders proposed by the Chief Justice and with the reasons that he gives.

MARTIN J I agree with the orders proposed by the Chief Justice for the reasons he has given.