R v MARTIN No. SCCRM-00-15 [2000] SASC 436

1 PRIOR J. I agree with the reasons now given by Justice Perry. There is nothing I can usefully add.

2 OLSSON J. I agree with the reasons expressed by Perry J.

3 PERRY J. On 22 December 1999, following a trial by judge alone, the applicant was convicted of murder. The offence was found to have occurred on 16 December 1994 at Smithfield. The victim was the applicant's father. The trial, at which the applicant appeared unrepresented, extended over some 25 days of hearing.

4 The applicant applied for leave to appeal against conviction and sentence.

5 The application was heard in the first instance by a single judge.[1] The judge refused leave, giving written reasons for doing so.[2]

6 The applicant then exercised his right to have the application determined by the Full Court.[3] In accordance with the Rules, he lodged a written summary of argument. The application was considered by three judges sitting in private, whereupon an order was made that the application be listed for oral argument.[4]

7 On the hearing of oral argument, the court refused leave on the basis that the appeal had no reasonable prospect of success. In doing so, the court expressed agreement with the reasons given by the single judge. At the same time the court reserved the right to publish further reasons as to the first of the five grounds set out in the proposed Notice of Appeal. I concurred in the decision to publish further reasons as to that ground, in deference to the arguments presented by Ms Powell QC who appeared for the applicant, and in view of the importance of the question of principle involved.

8 The complaint which finds expression in ground 1 of the proposed Notice of Appeal is as follows:

"1. The Learned Trial Judge erred in making an assessment of the applicant from his conduct in the course of representing himself (Judgment pp 1 and 2, para 4). In so doing he placed reliance on extraneous material and applied it in determination of the issues (Judgment p 24, para 89; p 43, para 149; p 50, para 177; pp 74 and 75, para 251; p 93, para 316 and p 104, para 348)."

9 Ground 1 should be read in conjunction with ground 2 which reads:

"2. Further, the error identified in Ground 1 was compounded by the failure of the Learned Trial Judge to warn the applicant that his conduct in representing himself would be brought to account or to give him the opportunity to address what interpretation should be placed upon that conduct, what inferences should be drawn from it or what weight should be given to any such interpretation or inference."

10 Ground 1 relates to the following passage in the learned trial judge's reasons for verdict:

"The fact that the accused represented himself gave me an excellent opportunity to observe and assess him. Although, in his words, he "dropped out" of school early in Year 11, the accused is an intelligent person. He was polite in all his dealings with me and with the witnesses. His preparation for the trial had obviously been meticulous and it was apparent from the way in which he organised his papers and conducted his questioning of witnesses during the trial that he was very well organised. The accused conducted his questioning with an air of confidence and without any trace of distress or anger. During the cross-examination of the key Crown witness, Mrs Emily Schloithe (nee Fiegert), at times his questions were delivered with a degree of force. He exhibited a similar tone when cross-examining Ms Kylie Bligh and Mr Jeremy Schloithe, the husband of Emily Schloithe. Apart from the occasional brief smile appropriate to the circumstances of the questioning, the accused did not display any emotion. His lines of questioning were relevant and he approached his task in a direct fashion without straying into any substantial irrelevancies. The questions were appropriately framed with the manner and content usually expected of qualified counsel rather than unrepresented litigants without legal qualifications. The accused frequently paused between questions to consult his notes and conducted his cross-examination in an unhurried manner. In a logical approach to the evidence of the various witnesses, the accused's questioning displayed a good grasp of difficult concepts such as cross-examination on previous evidence and statements. Bearing in mind that the majority of the witnesses had given evidence in three previous trials, the accused frequently referred to the previous evidence and statements of various witnesses without hesitation and in an appropriate fashion. His closing submissions were logical and well presented."

11 The applicant complains that those observations, which are said to constitute the "assessment of the applicant" referred to in ground 1, demonstrate an error of law.[5]

12 Notwithstanding his counsel's use of the expression "error of law", it is implicit in Ms Powell QC's argument that the applicant does not suggest that this ground involves a "question of law alone", as if that was to be the case, the appeal would be as of right and there would be no requirement for leave.[6] In any event, the argument was heard out as fully as if leave had been granted.

13 The case raises for consideration the important question as to the circumstances in which it is permissible for a trial judge to rely upon undisclosed observations as to the appearance or conduct of parties or witnesses made during the course of the trial.

14 The question has been considered on a number of occasions in this Court and elsewhere. It is convenient to deal first with relevant principles which may be deduced from the reported cases.

15 In Coldwell v Municipal Tramways Trust,[7] after a trial in the Local Court, without the concurrence of the parties and in their absence, the trial judge inspected the locality where the subject road accident had occurred. While there, he made measurements and observations which led him to reject the evidence of a witness as to the comparative speeds of the two vehicles which were involved.

16 The Full Court held that there had been a mis-trial. Piper J, in delivering the judgment of the court, observed: [8]

"In substance and effect the Local Court Judge received evidence without the knowledge and in the absence of the parties and allowed his judgment to be affected by it."

"We must not be understood to hold that there is any objection to a Judge acting upon the facts which are made apparent to him in the course of a regular view or inspection, that is to say, where the view is had in the presence, or the knowledge and approval of, the parties. Where the view brings to his notice the obvious physical conditions of the locality apparent to any observer, the parties must be taken to know that these matters may be observed and taken into account as evidence." (emphasis added)

18 Minagall v Ayres[10] concerned the propriety of the conduct of a Special Magistrate who dismissed a drunk driving charge after observing in his reasons for judgment:

"..... I had the opportunity of having the defendant under constant observation for nigh on three days during this case, and as a result I have come to the conclusion that his actions, mannerisms, and idiosyncrasies could have honestly been mistaken by the witnesses for the prosecution."

19 In ordering a re-trial, Hogarth J said that the magistrate had taken into account the conduct of the defendant:[11]

"... while ..... sitting in the body of the court,.... out of range of vision of both his own and opposing counsel ...... Such conduct is analogous to a statement made by a party in his own favour out of court, evidence of which, in general, would not be admissible. No reference was made during the hearing of the conduct observed by the Special Magistrate, and of course counsel for the prosecution had no opportunity to investigate its genuineness."

20 On appeal to the Full Court, Napier CJ and Travers J in a joint judgment observed:[12]

"... while we agree with Hogarth J, we desire to guard ourselves against being understood as laying down any absolute rule upon the subject. It seems to us that it is a matter of what we should regard as 'fair play and common sense'. The condition upon which a judge is at liberty to take notice of what he has seen for himself is that the parties should know or be informed of what he has noticed, and have an opportunity of answering or dealing with it."[13]

21 Chamberlain J in a separate concurring judgment added that he agreed with Hogarth J:[14]

"... that conduct of a party out of the witness box which is calculated to influence the Court in his favour is analogous to a self-serving statement made out of Court, and therefore in general not proper matter for the Court's consideration. If a party has peculiarities which may assist his case they should be proved by evidence, and if they are to be demonstrated this should be done as part of the evidence."

22 In Jobst v Inglis[15] the plaintiff claimed damages for personal injury suffered in a road accident. She was alleged to have suffered a "whiplash" injury to the neck.

23 The learned trial judge concluded that she had exaggerated her injuries and the extent of her disability. In reaching that conclusion he took into account evidence of a film which had been taken of her while engaged in various activities, observations which he had made of her in the witness box, and what he suggested was her contrasting presentation when sitting in the body of the court.

24 The trial judge in that case raised with the plaintiff's counsel during his final address his view that his observations of the plaintiff while she was sitting in the body of the court were not consistent with the appearance she gave when she was being filmed. Counsel responded by agreeing that it was proper for the trial judge to take the observations into account.

25 Despite that concession, the majority of the Full Court (Matheson and Johnston JJ) held that counsel should have been told earlier of the observations, at a time when he might have sought instructions and possibly applied to recall the plaintiff.

26 However, all three judges approved what was said in Minagall v Ayres (supra), more particularly that the propriety of the trial judge's conduct was a matter of "fair play and commonsense". Jacobs J made the further observation:[16]

"A Judge cannot be required or expected to interrupt a trial every time a party gestures or grimaces from the body of the Court, which happens not infrequently; no doubt if the conduct is persisted in, it may be prudent to draw it to the attention of counsel, or even 'warn' the party concerned; but what is 'fair play and common sense' in dealing with such a situation will vary from case to case."

27 In the same case, Johnston J commented:[17]

"In my view it is inevitable that a judge will make observations of a party he observes in the court when that party is not actually giving evidence. Generally speaking such observations will be of no real moment, often perhaps confirming impressions already formed from seeing the person give evidence, perhaps adding slightly to the overall impression. I do not think that a judge is called upon to draw to the attention of counsel every single observation that he makes."

28 After referring to Minagall v Ayres (supra), Johnston J continued:

".... if any real significance is to be attached to what is observed, the party should be informed of what has been noticed."

29 Angaston and District Hospital v Thamm[18] concerned a claim in the Industrial Court by an injured worker. The judge at first instance took into account observations of the applicant's actions and demeanour in the body of the court, out of sight of counsel. He did not bring those observations to the attention of counsel.

30 After citing with approval the decisions in Minagall v Ayres (supra) and Jobst v Inglis (supra), King CJ, with whom Cox and Johnston JJ agreed, said with reference to the relevant observations by Napier CJ in Minagall v Ayres:[19]

"The rule, as appears from the passage cited, is not to be regarded as absolute in the sense that it must be applied rigidly to every observation which a judge might make of a party during the course of a trial outside the witness-box. Something will depend, no doubt, on the circumstances of the particular case and upon the significance of the particular observations. It is clear, however, that where the judge makes observations of the actions or demeanour of a party, which actions and demeanour are not observable by counsel, and makes use of those observations in a way which has a significant influence upon his decision of the case, he is required in justice, before making such use of those observations, to make those observations and the possibility of his using them in the course of his judgment known to counsel at a stage of the hearing at which counsel still has an opportunity of dealing with them in a proper and effective way." (emphasis added)

31 The line of South Australian authority to which I have referred was considered in the Court of Appeal of New South Wales in Government Insurance Office of New South Wales v Bailey.[20] Although he dissented as to the outcome of the appeal in that case, Kirby P, as he then was, delivered an extended judgment in which he canvassed many authorities, during which he referred favourably to the South Australian authorities which I have cited. In the course of his judgment he made the following observations:[21]

"Justice is not truly blind. A decision-maker (whether judge or magistrate), sitting in a courtroom is not blinkered. The decision-maker observes the drama which is played out in the well of the courtroom. As Jacobs J remarked in Jobst parties and witnesses frequently sit in court and grimace, frown, laugh and otherwise display facial and body language which it is virtually impossible for the decision-maker to fail to see. ........ The appearance of a witness as he or she approaches the witness-box may properly be taken into account where agility and ease of movement are in contest. To require otherwise would be to require a division of the mind quite unrealistic in the case of a jury and equally artificial for judicial officers. In this modern age, the suggestion that a form of transmogrification of the witness occurs by administration of the oath (or taking the affirmation) so that body language and facial features or other elements of the demeanour can be taken into account thereafter but not a moment before, would involve a rigidity and artificiality which the law should reject. So long as the conventional theory reigns that observations of a party or other witness are an important and legitimate element in curial decision-making, it is appropriate to permit at least the observations to be taken into account which occur inside the courtroom."

32 Kirby P goes on to point out that there is a separate question as to the circumstances in which the parties or counsel should be notified of the observations, a question which assumes importance in a situation where:

"..... the observations have occurred ..... outside the actual period of the trial and when the person being observed is at the back of the court behind the representatives of the parties who thus have no opportunity to observe the features in question and by interrogation, evidence or advocacy, to persuade the decision-maker to a different view about them than has been formed."

"So far as the duty to alert the parties or their representatives of such matters is concerned, it involves, as Davidson J acknowledged in Hodge v Williams,[22] the drawing of 'a very fine line between what is proper and improper'. Or between what is essential and unnecessary. Inevitably, the point at which that line will be drawn depends upon the circumstances of the case. Matters relevant will include the opportunity which the parties have had to respond to the considerations in question; the significance of those considerations for the decision under challenge; and the apparent importance which the decision-maker attaches to the undisclosed material in reaching the decision."

33 Having regard to the authorities to which I have referred,[23] it seems to me that observations made by a trial judge outside of the courtroom could rarely, if ever, properly be taken into account by the trial judge. However, if there has been a formal view or inspection outside of the courtroom in the presence of the parties and their representatives, the judge may observe and take into account as part of the evidence obvious physical conditions apparent to any observer. In such a case, however, it would be prudent for a written note of any important observations to be made as part of the record of the trial. Furthermore, it would generally be prudent for the trial judge to draw the attention of counsel to particular observations which the judge regards as significant, so as to give to counsel an opportunity to comment.

34 So far as in-court observations are concerned, I would summarise the relevant principles as follows:

(a) The trial judge is entitled to take into account the demeanour and physical presentation of any witness or party while they are in the witness box.

(b) The appearance of a party or witness or his or her behaviour when approaching the witness box or sitting in the body of the court may likewise be taken into account.

(c) Whether in the circumstances postulated in (a) or (b) the trial judge should draw the attention of counsel to his or her observations is a matter for the judge's discretion, bearing in mind the judge's obligation to maintain procedural fairness. If what he or she has observed was not in full view of counsel or may have escaped counsel's attention, the matter should be disclosed to counsel in time for counsel to comment and, if thought proper, to call or recall the party or witness concerned.

(d) Likewise, there should generally be disclosure of matters which have the potential to have a significant effect on the outcome of the trial, for example, where physical movements of a party under observation by the trial judge might have a tendency to support or throw doubt on other evidence as to the party's condition.

(e) On the other hand, the trial judge may take into account patent physical conditions which are equally obvious to counsel relating to a witness or party, such as the height of the party or witness, his or her build, or the colour of their eyes, without the need for any particular comment by the trial judge.

35 It must be accepted that when a party is unrepresented every care must be taken to ensure that he or she is not disadvantaged unduly in presenting their case. I use the word "unduly", as in any case where a party is unrepresented, there is a level of disadvantage which cannot be eliminated.

36 But in the case of an unrepresented party, the same principles should apply to the question of observations by the trial judge, although their application may vary. For example, where a party is unrepresented, the judge should obviously err on the side of caution and raise any matter the significance of which, if undisclosed, might not be apparent to a person lacking legal expertise.

37 In this case I am unable to accept that the observations made by the learned trial judge were in any different category from observations which might have been made as to the colour of a party's eyes or the size of their nose. The observations in question as to the level of intelligence of the applicant were not observations which could be equated, for example, with an attempt by a trial judge to make fine distinctions as to levels of intellectual capability in a case where intellectual capacity was in issue. They were unexceptional observations which, in his application to the process of reasoning leading to the ultimate outcome of the case, could hardly be likely to catch even an unrepresented party by surprise.

38 The passages in the learned trial judge's reasons for verdict to which the applicant draws particular attention are not passages in which he brought any fine distinctions as to the applicant's presumed state of intelligence to bear. Indeed, in some instances it is not apparent to me that he took into account any particular view as to the intelligence of the applicant.

39 An example is para 89 in the judgment, which is one of the passages to which the applicant draws attention. It reads as follows:

"In arriving at my conclusion as to when the deceased was killed, I have carefully considered the accused's evidence concerning the fridge and the state of food in the fridge on Thursday 15 December 1994. I reject the suggestion that the deceased shopped on Friday 16 December 1994. The deceased was in possession of money collected on Wednesday 14 December 1994 and there was no reason why he could not have shopped on the Wednesday or on Thursday 15 December 1994 in accordance with his usual practice. The car was available on both days. I find the accused's evidence concerning the state of the fridge on Thursday 15 December 1994 unconvincing. I reject it. I am satisfied that the accused has embellished his evidence to support his case that the deceased was alive on Friday 16 December 1994."

40 To suggest that the accused had "embellished his evidence" was not to bring to account in the process of judicial reasoning any particular view as to the level of his intelligence, except that he was, in the view of the judge, capable of embellishing his evidence, a process which many witnesses of varying levels of intelligence are capable of performing.

41 Another paragraph to which the applicant draws attention is para 149 which reads:

"As with other inconsistencies between the evidence of Mrs Schloithe at this trial and at previous trials, with some skill the accused endeavoured to create a picture of a witness who was shifting her ground to suit her own purposes and to avoid difficulties that arose during her evidence. I am satisfied that Mrs Schloithe was not deliberately shifting ground or altering her evidence in the manner suggested by the accused. The differences in her evidence concerning the cigarette lighter represent no more than the inconsistencies to be expected given the circumstances in which, and the background against which, Mrs Schloithe was giving evidence."

42 To suggest that the accused was creating a picture of a witness "with some skill" is to make a straightforward observation of fact. It is true that the use of the word "skill" means that at a fairly basic level the judge is making a value judgment. But it is an observation based upon the manner in which the applicant conducted part of the trial, not an observation in which on the face of it a judgment was applied which was drawn by reference to other aspects of the applicant's conduct.

43 Para 177 of the judgment to which the applicant also draws attention reads:

"In the course of his submissions, the accused suggested that the Crown had failed to establish a viable motive for him to kill the deceased. He suggested that what evidence exists came from his own admissions and that he was unlikely to make such admissions if he was a guilty person. While that submission is superficially attractive, it ignores the reality that the accused was aware he had expressed a dislike for the deceased to persons who were likely to be interviewed by the police in the course of the investigation. The accused is intelligent enough to recognise that he could not deny the statements of which he was aware others could give evidence."

44 The reference to the accused's intelligence in the last sentence of that paragraph embodies a judgment which the judge was entitled to make on the whole of the evidence in the case, including his observations of the applicant both in and out of the witness box.

45 The applicant also draws attention to para 251 of the judgment. This reads:

"The accused's behaviour in not challenging or questioning Mrs Schloithe does not sit well with his likely reaction if he was innocent and became aware that she was falsely accusing him of murdering his father. In those circumstances the accused would not have been backward in challenging Mrs Schloithe and complaining about her conduct. His conduct in not doing so is consistent with the conduct I would expect of him if he knew he had confessed to Mrs Schloithe."

46 I make the same comment with respect to this paragraph - in coming to a view of what he would "expect of" the applicant, the learned trial judge was entitled to bring to bear the impressions he gained through his observations of the applicant both in and out of the witness box during the course of the trial.

"The accused is an intelligent person. If he committed the crime it is highly unlikely that he would fail to wipe the weapon, particularly before placing it in the gun bag."

48 The level of intelligence of a person who might be expected to wipe a murder weapon clear of fingerprints would not necessarily be so high as to render it unfair for the learned trial judge to rely upon what his ordinary commonsense observations suggested as to the intelligence of the accused.

49 The remaining paragraph to which the applicant draws particular attention is para 348, in which the learned trial judge indicates that he was satisfied that the applicant had taken advantage of evidence as to the witness Mrs Schloithe's approach to sexual matters to falsely attribute jealousy to her with respect to an incident involving activity at a nightclub, which in turn the applicant sought to use "to establish a possible motive for Mrs Schloithe" in supposedly fabricating the confession which the applicant is alleged to have made to her.

50 In reaching that conclusion, the learned trial judge did not indicate that he was assisted in doing so by taking any particular view as to the level of intelligence of the applicant, although obviously it is implicit in the finding that he regarded the applicant as sufficiently intelligent to pursue that course.

51 Be that as it may, it does not seem to me that in any of the respects to which the applicant draws particular attention in the reasons published by the learned trial judge could it be said that he made such a use of his finding that the applicant was an intelligent person that it could reasonably be suggested that the findings or the conclusions based upon them, limited as they were, operated in any way unfairly upon the applicant.

52 With respect to the separate question as to whether the learned trial judge should have put the applicant on notice at to the view he had formed, in my opinion, it was neither necessary nor would it have been advisable for the trial judge to give any sort of advance warning to the applicant, as suggested by Ms Powell QC. To say to an unrepresented litigant that he or she is under observation and that the observations (as to matters which could not at that stage be specified) might be in some way held against them, would be to make an in terrorem statement calculated to place unfair stress upon the party. It would justifiably cause such a litigant to wonder how he or she was expected to conduct themselves in order to avoid some sort of adverse view being taken of them by the trial judge.

53 Occasionally situations will arise in which it might become necessary to warn an unrepresented litigant that a specific act or instance of conduct on their part which occurs during the course of the trial in the face of the court might be held against them in some way, and perhaps to invite some explanation of it. But that was not the case here.

54 At the end of the day it is necessary to pose the question whether or not the applicant received a fair trial according to law.[24] If in the course of the trial the learned trial judge made in-court observations which were brought to bear in the process of reasoning adopted by him in reaching his conclusion of guilt, the learned trial judge was obliged to approach the matter in accordance with the principles to which I have referred.

In my opinion, there is no arguable case that the learned trial judge transgressed those principles in the respect suggested in proposed Ground 1, read with Ground 2. Leave to appeal as to that ground was properly refused.

1. Pursuant to s 367 of the Criminal Law Consolidation Act 1935.

2. See the written reasons published to the parties on 7 September 2000.

3. Supreme Court Criminal Appeal Rules 1996, r 15(4).

4. Supreme Court Criminal Appeal Rules 1996, r 15(8).

6. Criminal Law Consolidation Act 1935, s 352(1)(a)(i).

7. [1928] SAStRp 57; [1928] SASR 234.

10. [1966] SASR 151 at 153.

13. Citing Coldwell v Municipal Tramways Trust (supra) and Pearce v Bourke [1937] SAStRp 55; (1937) SASR 404.

15. (1986) 41 SASR 399.

16. 41 SASR 402.

18. (1988) 47 SASR 177.

20. (1992) 27 NSWLR 304.

22. [1947] NSWStRp 41; (1947) 47 SR (NSW) 489 at 492; 64 WN (NSW) 201 at 203.

23. See also the interesting article by Mr Justice Young Observations by Trial Judges Outside Court (1985) S Aust Bar Review 199.

24. McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468 per Mason CJ, Deane, Gaudron and McHugh JJ at 478:

"The central thesis of the administration of criminal justice is the entitlement of an accused person to a fair trial according to law."

Pursuant to s 367 of the Criminal Law Consolidation Act 1935.

[2] See the written reasons published to the parties on 7 September 2000.

[3] Supreme Court Criminal Appeal Rules 1996, r 15(4).

[4] Supreme Court Criminal Appeal Rules 1996, r 15(8).

[5] Written summary of argument, para 3.3.

[6] Criminal Law Consolidation Act 1935, s 352(1)(a)(i).

[7] [1928] SAStRp 57; [1928] SASR 234.

[8] Angas Parsons, Napier and Piper JJ at 237.

[10] [1966] SASR 151 at 153.

[13] Citing Coldwell v Municipal Tramways Trust (supra) and Pearce v Bourke [1937] SAStRp 55; (1937) SASR 404.

[15] (1986) 41 SASR 399.

[16] 41 SASR 402.

[18] (1988) 47 SASR 177.

[20] (1992) 27 NSWLR 304.

[22] [1947] NSWStRp 41; (1947) 47 SR (NSW) 489 at 492; 64 WN (NSW) 201 at 203.

[23] See also the interesting article by Mr Justice Young Observations by Trial Judges Outside Court (1985) S Aust Bar Review 199.

[24] McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468 per Mason CJ, Deane, Gaudron and McHugh JJ at 478:

"The central thesis of the administration of criminal justice is the entitlement of an accused person to a fair trial according to law."