Supreme Court of SA|2003-07-29|Before: Sulan J, Prior J, Bleby J

R v PORTER No. SCCRM-02-210 [2003] SASC 233 (29 July 2003)

Court of Criminal Appeal: Prior, Bleby and Sulan JJ

2 BLEBY J I agree with the conclusion and reasons of Sulan J that this appeal should be dismissed.

3 SULAN J The appellant was charged that on or about 30 May 2001 he murdered Hartley Conrad Crafter ("Crafter"). On 17 May 2002 he was convicted by a jury. He has appealed against his conviction.

4 The prosecution case relied on circumstantial evidence and on the direct evidence of Nathan James Edge ("Edge").

5 At the time of his death the deceased was living alone at 3 Werona Street, Mount Gambier. The appellant lived at 7 Hall Street, Tarpeena, which is approximately 30 kilometres from Mount Gambier.

6 The prosecution case was that the appellant and the deceased had a difficult relationship in the months leading up to the death of Crafter. It was alleged that those difficulties centred around an agreement whereby the appellant was required to make regular instalment payments of $50 to Crafter for the purchase of a Mazda tray-top utility motor vehicle from Crafter.

7 A number of witnesses gave evidence that for some time prior to the deceased's death, the appellant had made threats, including threats to kill the deceased and to shoot him and dump his body in a pine forest. When he was interviewed by police on 1 June 2001, the appellant denied ever making such threats.

8 The prosecution alleged that on the afternoon of 30 May 2001, Crafter was in the company of a Ms Debra Evans. He dropped her at her home in Mount Gambier at about 5.30 p.m. He returned later that evening just before 7 p.m. and he ate dinner with Ms Evans and a Mr Douglas Kenny, who was a friend of Ms Evans. At about 8.30 p.m. that evening, the deceased drove Ms Evans to a service station in Mount Gambier. He was seen by Mr Dean Russ at the service station driving his utility. He then drove Ms Evans home. Ms Evans had arranged with the deceased that he would take her to the Tantanoola Caves the following morning. Another witness, Mr Stephen Harrison, gave evidence that on the evening of 30 May 2001 he telephone the deceased at his home at about 9.45 p.m and spoke to him.

9 At about 11.35 p.m. on 30 May 2001, Mr Thomas Harrington, a neighbour of the deceased, observed a disturbance across the road from the deceased's home. There was a scuffle and he heard a voice call out, "You done me this time, Peter." Mr Harrington's wife and son observed a utility in the street, which was similar in appearance to a utility that had been owned by the deceased, and which the Harringtons understood had been sold to the appellant. Mrs Heather Harrington and her son had also heard raised voices and had observed a scuffle. The following morning at about 8 a.m Mrs Harrington went outside. She saw a slipper on the footpath near where she had seen the activity the night before. She telephoned the police, who arrived later that morning.

10 Constable Tucker arrived at the deceased's home at Werona Street at about 11.45 a.m. on 31 May 2001. He, together with other police officers, entered the house. They observed that the bed was unmade, a television in the bedroom was switched on, the telephone was unplugged and a pair of dentures and a wallet were on one of the side tables. The police then commenced to investigate what appeared to be the disappearance of Carter.

11 The appellant was interviewed at the Mount Gambier Police Station on Friday, 1 June 2001. The police had spoken to him at the Department of Correctional Services office at Mount Gambier earlier that day. Constable Davis told the appellant that the police had concerns for the deceased's welfare because they had been led to believe that the deceased was missing. The appellant told Davis that the deceased had come to his home at Hall Street, Tarpeena, at about 6 p.m. on Wednesday, 30 May 2001, and had told him that he was going on a church trip. The appellant said he paid the deceased the last payment for the utility. The appellant said he had not seen the deceased after he left.

12 In a later interview at the police station, the appellant repeated that he had last seen the deceased at about 6 p.m. on 30 May 2001. He said that Edge had been there at the time. The appellant stated that the deceased had stayed for about ten to fifteen minutes at Hall Street, Tarpeena, having left his utility in the garage. The appellant said that he and Edge went to Murray Bridge later that evening where they had remained that night. He said he was not aware about any disturbance that might have occurred outside the deceased's home late in the evening of 30 May 2001. The appellant told the police that the utility that had been observed in Werona Street could not have been his as his vehicle was not driveable. He told the police that he had not driven the deceased's utility after the deceased had left it in the shed. He also told the police that having spent the previous night at Murray Bridge, he drove back to Mount Gambier on the evening of 31 May. He said that he did not return to his home at Tarpeena and on the following morning he reported to the Correctional Services offices at Mount Gambier.

13 Mr Christopher Dunn lived at 5 Hall Street, Tarpeena, next-door to the appellant. He was familiar with a red-coloured Mazda utility motor vehicle which the appellant used to drive. The utility had some distinctive features, including a high headboard, a bull bar and spotlight. The car had been painted from a light cream to a red colour. Mr Dunn said that he went to bed on Wednesday, 30 May 2001, at about 9.30 p.m. He awoke in the early hours of the following morning and went to the toilet. As he was returning to bed his attention was drawn to a vehicle on Hall Street. He looked out of his bedroom window and saw the outline of a utility with spotlights and a high headboard. He observed the vehicle for a few minutes and then he returned to bed. He heard a rumbling noise similar to a shed door being opened. It appeared to be coming from his next-door neighbour's premises. He then went back to sleep.

14 Mr Stuart Sharam lived in West Street, Tarpeena, which backs on to the appellant's premises. He went to bed at about 9.30 p.m. on 30 May 2001. At about 11 p.m. he heard the sound of a shed door and a motor vehicle. He said that the noise came from the area near the appellant's premises.

15 Edge, the nephew of the appellant, gave evidence that his grandmother, who had been married to the deceased, died in about May 2000. He and his family were living in Koroit, Victoria. Edge said that from about Christmas 2000 until the deceased's death he regularly saw the appellant. He stayed at the appellant's home at Tarpeena. He said that in late May 2001 he went to the appellant's home where he intended to stay for a few days and work on a motor vehicle which was garaged there. The appellant was working on a utility which the appellant had purchased from the deceased. The appellant had described that utility as "a heap of shit" and he appeared to become angry when he was working on the vehicle.

16 Edge said that in the late afternoon of the night that the deceased disappeared, he and the appellant drove out to a wooded area in Victoria about 30 kilometres from Tarpeena where they cooked a barbecue and drank some alcohol. The appellant said he wanted to visit the deceased to talk about the car that he had purchased. The appellant placed a large piece of wood in the back of the utility and they drove to the deceased's home.

17 Edge estimated that they arrived at the deceased's home somewhere around 10 or 11 p.m on 30 May 2001. The two of them went to the front door. The deceased came to the door and the appellant said he wanted to speak to him and then started to punch him. Edge said that he was surprised when the appellant began to assault the deceased. Edge went inside the house and he heard the deceased and the appellant talking in another room. Edge saw the appellant kneeling over the top of the deceased who was lying on the bed. The deceased was asking the appellant why he was assaulting him. The appellant told the deceased that he wanted to go back to his home to talk. He told the deceased to get dressed. The deceased put on a dressing gown. The three men walked out of the house. The deceased started to run across the road and was pursued by the appellant. The appellant caught the deceased and started to punch him. Edge observed the two men on the ground. The appellant gave Edge the keys to the deceased's car and told Edge to drive the deceased's car. The appellant and the deceased then got into the appellant's utility. Edge drove the deceased's car and the three of them travelled to the appellant's home at Tarpeena. On the way towards Tarpeena the two cars stopped. Edge observed that the deceased had blood coming from his face. When the appellant tried to start the utility again it would not start. He attached a tow rope to the car Edge was driving and they towed the other utility to the appellant's home. The deceased's car was then placed in the garage.

18 The appellant told Edge to go and get some paper which Edge gave to the appellant. It was the prosecution case that whilst they were at the appellant's home that night, the deceased signed a receipt acknowledging that the appellant had been paid in full for the utility. Edge identified the paper on which that acknowledgment was written as similar to the paper that he obtained for the appellant. Edge said they were inside the appellant's house for some minutes. He said that the appellant then told him to get his car. The appellant and deceased then got into the deceased's car and he followed in his car. They travelled through Tarpeena back to the main road and into a forest area. Edge saw the deceased and the accused get out of the car. He said that they were talking and he then heard the appellant raise his voice. There was something said about a wheel. He saw the accused hit the deceased with the back of his hand.

19 After Edge saw the appellant hit the deceased Edge returned to his car. He said he was listening to the radio and he heard raised voices. After some time the appellant came over and told Edge it was all over. Edge got out of his car and saw that the appellant had a gun in his hand. He had not seen a gun before that evening. Edge followed the appellant and saw the deceased on the ground. He had blood coming out of his mouth. The appellant then put a bag over the deceased's head and the two of them placed the deceased on the back of the deceased's utility. The appellant drove the utility along some tracks and stopped in the forest. Edge followed in his car. They dragged the deceased into the forest on a tarpaulin. Edge did not see what happened to the gun.

20 When they arrived back at the appellant's home, Edge observed blood in the back of the utility. The appellant poured beer over the area where there was blood. The utility was then left in the appellant's shed and the two of them drove to Mount Gambier. Ms Patricia Sharam, who lived behind the appellant's home, heard a shed door open and close at about 6 to 7 a.m. on 31 May 2001. She also heard what sounded like a vehicle. On the way to Mount Gambier, Edge stopped at a service station and purchased petrol. Edge paid with a credit card. ATM records confirmed that a purchase was made at 7.21 a.m. on 31 May 2001. They then drove to Koroit in Victoria. On the way they stopped at an area in the forest and the appellant disposed of the gun which he had with him in the front seat of the car. When they arrived at Koroit they met Edge's brother. Ms Jennifer Johnson, Edge's mother, also saw Edge and the appellant at about 8 to 9 a.m. that morning. Later that day they left Koroit and returned to the forest. The appellant dug a hole and buried the gun and a jacket which he had been wearing on the night of the murder.

21 The appellant and Edge then drove back to Tarpeena. As they were returning they observed the police. The appellant told Edge to keep driving and they drove to Mount Gambier. They eventually stopped at a truck stop where they slept the night. The next morning they returned to Mount Gambier where the appellant visited the Department of Correctional Services to report to his parole officer. Whilst he was there the appellant was detained by police.

22 Edge and the appellant had earlier discussed that they would tell the police that they had been fishing at Murray Bridge on Wednesday, 30 May 2001, and that the deceased had come to the appellant's home prior to them leaving for Murray Bridge. They agreed that they would say that the deceased had left his vehicle at the appellant's home that evening having told the appellant that he was going on a church trip. When the appellant was interviewed on 1 June 2001 he told the police that story.

23 The appellant's version to the police conflicted with the evidence of Ms Evans and Mr Kenny, that they had been with the deceased at 8.30 p.m. on 30 May 2001. It also conflicted with the evidence of Mr Harrison, that he had spoken to the deceased at the deceased's home at 9.45 p.m. that evening. Edge gave the police a similar story about their movements over the past two nights.

24 On 8 June 2001, Edge contacted the Mount Gambier police and provided them with a statement. He was in the company of his solicitor. He took the police to the area where the deceased's body had been left and he also took them to the location where the gun and jacket had been buried. The gun and jacket were recovered and a DNA sample was obtained from the end of the barrel. When tested the DNA from the barrel was consistent with the DNA of the deceased. The gun was identified as having been stolen from the appellant's neighbour several weeks prior to the killing.

25 The appellant's clothing was examined. There was blood-like material on the left boot, which had DNA consistent with the DNA of the deceased. Dr Both, a forensic scientist, gave evidence that the blood-like material which had been found was consistent with having been deposited as a result of spray from a gunshot wound. She came to that conclusion by examining the size and shape of deposits on the appellant's shoes.

26 The ballistics examination of the rifle and fragments of projectile retrieved from the deceased at a post mortem were compared, but the results were inconclusive because the sample was of an insufficient size. A post mortem examination revealed that the deceased died as a result of two gunshot wounds to the head, one to the left temple and the other to the bridge of the nose, both being inflicted from a range of about six to eighteen inches.

27 The appellant told the police that he had made a final payment for the utility on the Wednesday evening. Financial records showed that the appellant had little, if any, money available to him at the time. The document which purported to show that the appellant had made payments had been altered and it was the prosecution's case that these alterations had been made by the deceased whilst being threatened.

28 The prosecution case relied upon the evidence of Edge, the circumstantial evidence relating to the movements of the appellant throughout the relevant periods and the records of interview of the appellant and, in particular, the false statements he made about his whereabouts at various times. It was alleged by the prosecution that the appellant told the police a number of significant lies, and those lies were told out of a consciousness of guilt

29 The defence case relied upon the denials made to the police. The appellant did not give evidence. Counsel for the appellant put to the jury that the prosecution had not proved beyond reasonable doubt that the appellant was the only candidate for the murder. He submitted to the jury that this was a case about who killed Crafter. It was suggested to the jury that others had a motive to kill the deceased and that they could not be excluded.

30 It was also suggested to the jury that Edge could not be excluded. It was suggested that Edge had a motive, that being, that his mother had received offensive telephone calls from the deceased. It was suggested that at the time that the rifle was stolen from the home of the appellant's neighbour, Edge and his brother, Mr Aaron Edge, were staying at the appellant's home. It was also put to the jury that Edge had made a false statement to the police.

31 During cross-examination of Edge and his brother, it was suggested to both of them that they had been responsible for the murder of the deceased. They both denied the allegation.

32 It was submitted to the jury that the circumstantial evidence in the case, putting aside the direct evidence of Edge, did not point conclusively to the appellant as the person who killed Crafter. It was submitted that the jury could not be satisfied beyond reasonable doubt that it was the appellant who was responsible for Crafter's death.

33 It was put to the jury that at about the time when the rifle was stolen from Mr Dunn's premises both Edge and his brother were staying at the appellant's home. It was argued by counsel that the appellant was not the only candidate for the theft of the firearm. Counsel suggested to the jury that Edge was a person who was so inherently unreliable and that they should reject his evidence. He pointed to a number of unsatisfactory aspects of Edge's evidence and submitted to the jury that the scenario painted by Edge, when considered against the scientific evidence, was implausible. He submitted that blood found on Edge's jeans led to the conclusion that Edge was involved in manipulating and moving the body. The lack of blood on the appellant's clothing might suggest to the jury that the roles described by Edge were reversed and that it was Edge not the appellant who was involved in killing the deceased and moving the body.

34 Defence counsel dealt with the lies that the appellant had told to the police and suggested to them that he may have lied because of his concern about breaching his parole.

35 Although counsel for the appellant did not suggest in his address that it was Edge who committed the murder, it is clear from his address that he was putting a hypothesis to the jury that it was Edge who committed the murder. Further, he had suggested to Edge and to Aaron Edge, that they were responsible for the murder.

36 The jury could have been left in no doubt, at the conclusion of the address of the appellant's counsel, that it was the defence case that the prosecution had not excluded as a reasonable possibility that others or another had been responsible for killing the deceased. The jury was urged to conclude that the appellant's statement to the police that he was not involved should be accepted.

37 Defence counsel suggested that the evidence of witnesses who heard vehicles entering and leaving the garage at the appellant's home did not identify the appellant as being involved in the movement of vehicles that evening. He went on to submit to the jury that the evidence of blood in the utility, the evidence of finding the body, the gun and the jacket, although on one interpretation pointed to the appellant, also pointed to Edge, either alone or with another, as the person who could have committed the crime.

38 Defence counsel dealt with the evidence of the witnesses who spoke of threats made by the appellant towards the deceased and pointed to a number of discrepancies in their evidence. As to Mr Kenny it was suggested that he may have had a problem with the deceased who had shown an interest in Ms Evans and he could not be excluded as one of the persons who may have been involved in assaulting the deceased during the evening at Werona Street, Mount Gambier.

39 Mrs Shaw QC for the appellant submitted that there was a failure by the trial judge to adequately put the defence case. She argued that there was a failure to direct the jury that before they could convict the appellant they must exclude any hypothesis consistent with the innocence of the appellant. One such hypothesis was that Edge was responsible for the death of the deceased. She submitted that there were a number of misdirections and that in combination those misdirections have resulted in a miscarriage of justice.

40 The appellant complains that in directing the jury that Edge's evidence was uncontradicted and that propositions put to Edge and other witnesses (which were denied) did not amount to evidence of those propositions, the trial judge had effectively withdrawn the defence case from the jury. It was submitted that the specific complaints which formed the grounds of appeal should be considered together and the combined effect of the errors is that the appellant has been deprived of a fair trial.

41 I turn to the specific complaints made on behalf of the appellant.

42 The appellant complains that the trial judge misdirected the jury in directing them that they were to bear in mind that the failure of the accused to give evidence had left the Crown case uncontradicted, in part, when assessing the evidence relied upon by the Crown.

43 The trial judge had given general directions to the jury about the burden of proof and about how to assess the evidence of the witnesses. He directed the jury that they were the sole judges of the facts and it was for them and them alone to decide whether they believed the whole or any part of the evidence of any witness. It was for them to assess the reliability of any witness. The trial judge then turned to the course which the accused chose to take in the trial. He said:

"I now want to turn to the course which the accused took in this trial. He did not give evidence. He remained silent. He is not obliged to give evidence. He was perfectly entitled to adopt the course which he did. He was entitled to remain silent and see if the Crown had proved the case against him. You must not assume that he is guilty because he did not give evidence. You must not assume that he is guilty for that reason.

True it is that you have been deprived of hearing what he has to say and of hearing his version of events as it might have been tested in cross-examination, but, as I say, you must not assume him to be guilty or draw any inferences of guilt or any inferences adverse to him because he has not gone into the witness box.

Of course, his not giving evidence has deprived you of hearing from him and has left the evidence on the Crown case, which is largely circumstantial, but not entirely, and from which the Crown asks you to draw the inference that the accused committed the murder, uncontradicted, in part. You have no evidence from the accused to explain, vary, add or contradict any of the other evidence put forward by the prosecution apart from what you have heard in his answers when questioned by the police and you will bear that in mind when assessing the weight that you should attach to that evidence.

You will remember my direction to you that the prosecution bears the onus of satisfying you beyond reasonable doubt that the accused is guilty as charged. The accused does not have to prove anything or even make any explanations and, as I say, you cannot infer guilt because the accused elected not to give evidence."[1] (emphasis added)

44 Mrs Shaw QC submitted that in that passage and in particular the words "uncontradicted in part", the trial judge had commented on the appellant's failure to give evidence in a manner which is prohibited. She submitted that the effect of the direction was that the Crown case remained uncontradicted and that this was a comment upon the accused's failure to give evidence. She submitted that the statement by the trial judge in the last sentence of the penultimate paragraph had the effect of suggesting that the appellant had failed to give evidence because he was or believed that he was guilty of the offence of which he was charged.

45 Mrs Shaw QC submitted that the words "you will bear that in mind when assessing the weight that should be attached to that evidence" relate back to the earlier direction that the accused did not give evidence and therefore the direction should be construed as telling the jury to bear in mind the appellant's failure to give evidence when assessing the weight of the prosecution evidence. She submitted the effect of the trial judge's direction was to direct the jury that they were able to feel more confident in relying on the evidence tendered by the prosecution because of the failure of the accused to give evidence.

46 The extent to which a trial judge is entitled to comment upon an accused's failure to give evidence was considered by the High Court in RPS v The Queen and in Azzopardi v The Queen.[2] In RPS v The Queen and Azzopardi v The Queen the Court considered s 20(2) of the Evidence Act 1985 (NSW) which provides:

"The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned".

47 The equivalent provision in South Australia appears in s 18 of the Evidence Act 1929. Section 18 provides:

"18(1) Every person charged with an offence shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person: Provided as follows:

(I) ........

(II) the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution."

48 In RPS v The Queen the accused was charged and convicted of sexual offences. The evidence against him was the direct evidence of the complainant. The accused denied the allegations in an interview with the police, although some of his statements were capable of being construed as a partial admission. Gaudron ACJ, Gummow, Kirby and Hayne JJ in considering the trial judge's direction to the jury concluded that five particular elements of the charge should be noted.[3] Their Honours noted firstly that the trial judge told the jury that the appellant's election not to contradict the evidence given by the complainant's mother of what was said to be a partial admission could be taken into account by the jury in judging the value of, and the weight of the prosecution's evidence about it. Secondly, he told the jury that in the absence of a denial or contradiction of the evidence given of the partial admission they could "more readily" discount any doubts about that evidence and "more readily" accept the evidence. Thirdly, he told the jury that as a consequence of the failure of the accused to give evidence if they thought it was reasonable to expect him to have denied or contradicted, the prosecution evidence they were entitled to conclude that his evidence would not have assisted him in the trial. Fourthly, the trial judge said that the appellant's election not to give evidence, although it could not fill any gaps in the prosecution case, it could enable the jury to feel more confident in relying on the evidence tendered by the prosecution and, fifthly, he told the jury that the absence of evidence from the accused meant that the version of events put in cross-examination of the witnesses for the prosecution was not supported by evidence.

49 In concluding that the directions amounted to a misdirection their Honours observed:

"The present case depended ultimately upon acceptance of the complainant's evidence, supported, perhaps, by an acceptance of the partial admission allegedly made by the appellant. In those circumstances the trial judge was wrong to direct the jury that they were entitled to conclude from the appellant's election not to give evidence that his evidence would not have assisted him in the trial. The trial judge was also wrong to direct the jury that the election not to put forward any denial or contradiction might lead them more readily to accept the evidence given by the witnesses for the Crown which the appellant was in a position to contradict of his own knowledge."[4]

50 Their Honours concluded that it was a misdirection for the trial judge to have told the jury that they were able to feel more confident in relying on the prosecution evidence as a consequence of the accused failing to give evidence. Their Honours went on to say:

"To attempt to instruct the jury about how they may reason towards a verdict of guilty (as distinct from warning the jury about impermissible forms of reasoning) leads only to difficulties of the kind that have arisen in the present case. Had the judge's instructions about the significance of the appellant not giving evidence stopped at pointing out that he was not bound to do so, that there may have been many reasons why he did not do so (and the jury should not speculate about those reasons) that it was for the prosecution to prove its case beyond reasonable doubt, and that the jury should draw no inference from the appellant not having given evidence, no complaint could have been made."[5]

51 In Azzopardi v The Queen in dealing with s 20(2) of the New South Wales Act the majority of the Court, Gaudron, Gummow, Kirby and Hayne JJ said:

"The effect of the subsection is that the judge, the accused and any co-accused may comment on the fact that the accused did not give evidence, but the judge may not, by that comment, "suggest" that the accused failed to give evidence because he or she was guilty, or believed that he or she was guilty, of the offence charged. It is very improbable that the accused would ever wish to make such a suggestion."[6]

52 Although the wording of s 18(1)II of the Evidence Act (SA) does not specifically prohibit a comment which suggests that the defendant failed to give evidence because the defendant was or believed that he or she was guilty of the offence concerned, in my view any such comment would amount to a misdirection because it would have the effect of contradicting the direction that an accused person is entitled to remain silent and the prosecution has the onus to prove the case against him or her beyond reasonable doubt.

53 In Azzopardi's case the Court concluded that although the trial judge had correctly told the jury that the accused bore no burden to prove anything, the effect of his further direction was to invite the jury to conclude from the fact that the appellant did not give evidence, that "any doubt which may have been cast upon the [prosecution evidence] may be more readily discounted and [that evidence] may be more readily accepted as the truth".[7] Their Honours concluded that was a misdirection because the effect of the direction, in circumstances where all that the accused had failed to do was to give evidence contradicting the prosecution evidence was to suggest to a jury that the accused did not give evidence because he was or believed he was guilty of the offence charged.

54 Mrs Shaw QC submitted that the effect of the trial judge's directions was such as to amount to directions which were criticised by the High Court in Azzopardi and RPS. I do not agree with Mrs Shaw's construction of the trial judge's direction. In my view, all that His Honour was doing was to remind the jury, as he was entitled to do, that there was a body of circumstantial evidence which was uncontradicted. Secondly, the trial judge directed the jury that there was no evidence from the accused and that the accused's denials or explanations of the prosecution evidence was contained in his answers to the police, and that they should have regard to those answers when assessing the weight to be attached to the evidence in the case.

55 The position in RPS v The Queen was entirely different from this case. In that case, the evidence against the accused relied almost entirely on the evidence of the complainant. The effect of the trial judge's direction was to invite the jury to more readily accept the complainant's evidence because of the election of the accused not to give evidence.

56 In my view it cannot be said that the effect of His Honour's direction amounted to a comment to the jury that they could more readily accept the prosecution evidence or that they could feel more confident in relying on the evidence tendered by the prosecution as a consequence of the appellant's failure to give evidence. The trial judge reminded the jury on a number of occasions that it was for the prosecution to prove the case beyond reasonable doubt and that they can draw no adverse inference from the failure of the accused to give evidence.

57 The trial judge later in his summing up reminded the jury that the accused had made statements to the police by which he sought to exonerate himself, and directed the jury that is evidence that they must consider and take into account along with all of the other evidence in the case.[8] He reminded them that the statements to the police were not evidence on oath, had not been subject to cross-examination and he told the jury that they were entitled to give those statements whatever weight they deemed fit. The trial judge also reminded the jury that it was for the prosecution to prove the case beyond reasonable doubt and that the appellant did not have to prove anything. He further directed them that they must exclude any reasonable possibility of innocence before they could convict the accused.[9]

58 Taking the summing up as a whole, it cannot be said that the trial judge in any way left the jury with the impression that the failure of the appellant to give evidence indicated his belief in his own guilt.

The direction about the appellant's statements to the police

60 The trial judge directed the jury about the appellant's statements to the police. He said:

"You will recall that the accused made statements to the police by which he sought to exonerate himself. As I have said, that is evidence that you must consider and take into account along with all of the other evidence in the case. They are, nevertheless, self-serving statements not on oath and not subject to cross-examination. You should give them such weight as you see fit, bearing these considerations in mind. You may regard some of the statements made by the accused as tending to incriminate him."[10]

61 It is contended on behalf of the appellant that the direction had the effect of commenting upon the failure of the accused to give evidence in an impermissible manner. I do not agree.

62 The trial judge correctly directed the jury that they should have regard to the statements made by the appellant to the police and that they should consider those statements along with the other evidence in the case. He correctly directed the jury that they were self-serving statements not on oath and not subject to cross-examination.[11] He left it entirely to the jury to give those statements whatever weight the jury considered was appropriate. He correctly told the jury that some of the statements made by the appellant may be regarded by them as tending to incriminate the appellant.

63 In my view, none of these directions either undermined the statements made by the appellant to the police nor did they in any way amount to a comment upon the failure of the accused to give evidence. The direction did no more than bring to the jury's attention the fact that the appellant had made statements to the police, that they should consider those statements together with other evidence in the case bearing in mind that the statements were not on oath and not subject to cross-examination. The trial judge left it entirely to the jury to give whatever weight they considered the statements to the police should attract. In my view, the direction was correct.

65 The appellant complains that the effect of the trial judge's summing up was to withdraw the defence case from the jury or, alternatively, to put inadequately the defence case to the jury.

66 The appellant contends that the trial judge failed to direct the jury that it was necessary for the prosecution to exclude any rational hypothesis consistent with the innocence of the accused. In particular, the rational hypothesis that Edge alone or with someone else was directly responsible for the murder, and the rational hypothesis that it may have been Kenny who assaulted the deceased at Werona Street were not adequately left to the jury.

67 The trial judge directed the jury that the evidence in the case was both direct and circumstantial. He said that the direct evidence was, first, the evidence of what the accused said to various witnesses leading up to the disappearance of the deceased. That evidence could be characterised as evidence of threats. Secondly, it consisted of the evidence of what the appellant said to the police and, thirdly, of the evidence of Edge in court. His Honour then proceeded to deal in turn with the evidence of threats, the circumstantial evidence and the evidence of Edge.

68 The trial judge reminded the jury of the evidence of a number of witnesses who spoke about the appellant making complaints about the deceased, the evidence of witnesses who heard the appellant threaten the deceased including a threat to kill the deceased, threats to cut up the deceased and throw his pieces into the pines and statements to witnesses that he would kill the deceased. The trial judge correctly directed the jury that they must first decide whether they accept that evidence. He then directed the jury of the use that could be made of the evidence. He told the jury that one use that can be made of the evidence was as circumstantial evidence of the state of mind of the appellant. He reminded the jury that the appellant denied to the police that he had made any threats towards the deceased.

69 The trial judge then turned to what he described as the substantial part of the case which was based on circumstantial evidence. He gave the jury the standard directions that circumstantial evidence simply refers to the drawing of an inference or inferences or conclusions from proven facts or circumstances. He directed the jury that the defence case was that the proven circumstances do not and could not possibly lead to the conclusion that the appellant murdered the deceased.

70 Mrs Shaw QC submitted that the trial judge had failed to direct the jury that the defence case was that the jury could not conclude that the prosecution had excluded a reasonable hypothesis consistent with innocence. The hypothesis was that Edge, or Edge in company with some other person, committed the murder. It is accepted that the trial judge did not give such a direction at that point in his summing up. However, he directed the jury in the following terms:

"When you have marshalled all of the facts and circumstances which you do find proved, you must consider what inferences you can draw from them. You must not draw the inference that the accused murdered Mr Crafter unless you are able to exclude beyond reasonable doubt any reasonable possibility to the contrary. You cannot find the accused guilty of the charge unless you are satisfied of his guilt beyond reasonable doubt."[12]

71 Having dealt with various items of circumstantial evidence, His Honour said:

"So that you do not go away tonight without being reminded in a general way of what the defence says about these things, it is that all of these incidents could have occurred without the accused being involved and someone else being involved and with the defence not being able to say who it is, but pointing at various possibilities for your consideration. You will have to consider very carefully what you make of that and we will perhaps look at that tomorrow. We will adjourn now."[13]

72 The following morning the trial judge dealt with the DNA evidence, then he dealt with the evidence relating to the rifle and the evidence relating to the jacket. He referred to the evidence relating to lies and flight. He concluded his directions on circumstantial evidence by reminding the jury that they must reach a conclusion as to whether each of the facts and circumstances that had been mentioned are proved to their satisfaction beyond reasonable doubt. He directed them that if those facts are not proved beyond reasonable doubt the jury should disregard them. These directions were favourable to the appellant. Not all facts from which the jury can draw inferences need be proved beyond reasonable doubt.[14]

73 The trial judge directed the jury that they must decide what inferences they can safely draw from the facts, and having considered them all, the jury must ask itself whether they are safely able to conclude that the appellant abducted the deceased, assaulted him, had him sign the payment invoice, took him into the bush and shot him with a rifle that had been taken from Mr Dunn's premises, disposed of his body in the small pine forest, and later disposed of the rifle and other items in the forest. His Honour then said:

"In considering that matter you must follow the directions that I gave to you and if you are not able to exclude, as a reasonable possibility, the innocence of Mr Crafter, [sic] then you cannot draw the inference of guilt beyond reasonable doubt from those facts and circumstances."[15] [The trial judge later corrected his reference to Crafter as a reference to the appellant.]

74 The trial judge went on to deal with the evidence of Edge. He reminded the jury throughout his directions about Edge's evidence that the defence case was that Edge could not be relied upon. He concluded his summing up by reminding the jury that the defence case was that the prosecution had not established its case and he reminded the jury that the standard of proof is a high standard, that being proof beyond reasonable doubt and that the jury must exclude any reasonable possibility of innocence before they could find the accused guilty of murder.

75 Mrs Shaw QC submitted that the trial judge failed to put to the jury that a hypothesis was that Edge alone or with someone, perhaps his brother, committed the murder and that if that was a reasonable hypothesis they should acquit. The trial judge told the jury when dealing with the cross-examination of Edge and of Aaron Edge, that the putting of questions was not evidence. Mrs Shaw QC submitted that in giving that direction the trial judge effectively excluded from the jury's consideration the defence submission. Mrs Shaw QC relied upon the decision of Griffiths v The Queen.[16] In that case the appellant, who was 16 years of age at the time and who was the best friend of the deceased, had gone into the mountains with the deceased. The deceased was found about twelve months later. There was a bullet hole in the back of his skull. Scientific evidence established that he had died some time before February 1990. The case against the appellant included the evidence of two girls who told the court that after the body had been discovered the appellant had admitted to them that it was he who had killed the deceased. He told one of the girls that it was an accident. The appellant did not give evidence at his trial. He had been interviewed by the police and gave conflicting versions of when he had last seen the deceased.

76 In Griffiths case the trial judge put the case to the jury on the simple basis that they should convict or acquit the appellant according to whether they found beyond reasonable doubt that he had made the admissions deposed to by the two young women. In directing the jury as to whether the killing was unlawful the trial judge directed them that the evidence raised no issue of authorisation, justification or excuse and if they were satisfied that the appellant killed the deceased then they should conclude that the killing was unlawful and they should find the appellant guilty as charged. Brennan, Dawson and Gaudron JJ allowed the appeal. In the course of their judgment Their Honours said:

"A plea of not guilty puts all the elements of the offence charged in issue and a trial judge is wrong to withdraw any element in issue from the jury, no matter how cogent a Crown case may be. That is not to say that a particular direction must be given as to each element of an offence in a case where no contest as to a particular element is raised in the conduct of the trial and where the evidence does not itself raise an issue as to the existence of that element. It is one thing not to give a direction on an issue; it is another to withdraw an issue from the jury's consideration. In this case, the trial judge erroneously withdrew from the jury critical issues, the burden of proof which lay on the Crown."[17]

77 In my view the trial judge did not withdraw any issue from the jury. Unlike the position in Griffiths' case at no time did the trial judge direct the jury that they should have no regard to any critical issue in the case. The trial judge directed the jury correctly that questions put to witnesses which were denied were not evidence. The trial judge was correct in directing the jury that questions are not evidence and propositions put to witnesses are not evidence of those propositions unless the witness accepts the proposition put to him. That is not taking an issue away from the jury. The trial judge was perfectly correct in telling the jury that a suggestion to Edge that he committed the murder or a suggestion to his brother that he was involved in the commission of the murder, which suggestions were denied, was not evidence supporting those suggestions.

78 The jury could not have been left in any doubt from the summing up that the defence case was, first, that Edge was lying and that other witnesses who gave evidence about threats, were either lying or mistaken about the threats. The jury could not have been left in doubt that the defence case was that an alternative view of the facts which was reasonably open was that Edge was the murderer and that his brother may have assisted him.

79 The jury were directed in unequivocal terms that they must exclude any reasonable hypothesis consistent with innocence. They could have been left in no doubt that one such hypothesis was that Edge was responsible for the murder and that the circumstantial evidence pointing to the accused was explicable because witnesses were lying or mistaken. In my view, the jury could have been left in no doubt about the defence case.

80 The appellant complains that the trial judge failed to direct the jury about the proper use to be made of the evidence of prior inconsistent statements made by the witnesses, Edge, Ms Johnson, Mr Teasdale and Mr Harrington.

81 The trial judge gave the jury a general direction about inconsistent statements. He told the jury that an inconsistency between what a witness says in the witness box and a previous statement that the witness made might cause the jury to doubt the reliability of the evidence of that witness. When he dealt with the evidence of Mr Teasdale, who had given evidence that he had heard the appellant threaten the deceased on about six occasions, he reminded the jury that on an earlier occasion Mr Teasdale had mentioned it was only on three occasions. As to the evidence of Ms Johnson the trial judge reminded the jury of the criticisms made of her evidence by defence counsel and he reminded the jury that she did not mention some relevant matters upon which she gave evidence when she was first spoken to by the police. The trial judge dealt with the evidence of Edge in some detail. He reminded the jury of the care that must be taken when considering Edge's evidence. He reminded the jury that Edge's evidence contained inconsistencies between what he told the court and what he told the police. He reminded the jury that Edge had told a false story to the police and he told the jury to treat the evidence of Edge with great caution.

82 In my view it was not necessary for the trial judge to deal with every inconsistent statement in detail. This was not a case upon which the Crown relied solely on the evidence of Edge. There was a great deal of circumstantial evidence to support Edge's version of events. In my view, the trial judge's directions on inconsistent statements were sufficient.

The direction that witnesses had their own interests to serve

83 It was submitted that the trial judge failed to warn the jury of the dangers of acting upon the evidence of Aaron Edge and Ms Johnson. It was submitted that the trial judge should have warned the jury that they both had interests of their own to serve. It was submitted that because Ms Johnson was the mother of Nathan Edge and Aaron Edge was Nathan Edge's brother, they had a motive to protect Nathan Edge and that the trial judge should have warned the jury that there was a danger in acting on their evidence.

84 In Bromley v The Queen the High Court dealt with the issue of unreliable witnesses and warnings that may or may not be required.[18] Gibbs CJ with whom Mason, Wilson and Dawson JJ agreed said:

"What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence. Where a warning is required as to the way in which the jury should treat the unsupported evidence of a witness whose evidence is potentially unreliable, the question is, "Was that warning sufficient? Did it in clear terms bring home to the jury the danger of basing a conviction on the unconfirmed evidence of the complainants?" There is nothing formal or technical about this rule."[19]

85 In my view there was no formal warning required in respect of the evidence of either Mrs Johnson or Aaron Edge. The trial judge reminded the jury that Mrs Johnson was the mother of Edge and the sister of the appellant. He also reminded them that Nathan and Aaron Edge were brothers.

86 It is suggested by Mrs Shaw QC that a special warning was required when a witness has an exculpatory motive. In the case of Mrs Johnson and Aaron Edge there is no basis to suggest that they had any exculpatory motive in respect of the commission of the offence. The fact that a number of suggestions were put to these witnesses by defence counsel did not establish that they had any interest of their own to serve. In my view there was no requirement to give any special warning or caution to the jury about their evidence.

87 The appellant complains that the trial judge erred in relation to his directions about evidence capable of corroborating the evidence of Edge.

88 The appellant complains that the trial judge was in error in directing the jury that threats were direct evidence as opposed to circumstantial evidence. The trial judge directed the jury that the prosecution case falls into categories of direct evidence and indirect or circumstantial evidence. His Honour went on to say:

"The direct evidence generally falls into three categories. There is the evidence of what the accused said to various witnesses, including the threats that he is alleged to have made. There is the evidence of what the accused said to the police, and there is the evidence of what Nathan Edge told you. The circumstantial evidence is pretty well all of the other evidence that you have heard in the case. I now propose to remind you in a general way of the evidence and to give you some directions about it. I shall deal with the evidence of the threats first, then circumstantial evidence, then the evidence of Nathan Edge and then the evidence of what the accused said to the police."[20]

89 Insofar as the trial judge referred to the evidence of threats as direct evidence, in my view, in the context in which he gave that direction he was correct. He later went on to direct the jury as to how they can use that evidence in the case. He told the jury that it can be used as evidence relevant to whether the accused did kill Crafter and, secondly, he said it can be used as a piece of circumstantial evidence as to the state of mind of the accused at the time of the killing.

90 The evidence of threats came from five witnesses. Mrs Dodds gave evidence that about two months prior to the death of the deceased she was present when the appellant said to the deceased, "If you keep complaining about the ute I'll come back and get you and do away with you". She said that the appellant then left and she noticed that the deceased was "as white as a ghost". About four weeks before the deceased's death, Mr Harrison heard the appellant say to the deceased, "If this keeps going, I'm going to kill you". The witness, Mr Teasdale, said that there had been a number of occasions upon which he had heard the appellant make threatening comments about the deceased. He said that the appellant had said in the presence of the deceased that he would shoot the deceased and get rid of him in the pine forest. The witness Mr Fox said that about seven weeks prior to the deceased's death he heard the appellant say to the deceased that he would cut him up and throw him in little pieces in the pines. Ms Johnson gave evidence that the appellant had said to her that he was going to kill the deceased by shooting him and taking him out to a pine plantation at Tarpeena and burying him there.

91 A statement by a person that he will carry out an act can be relevant to the issue of whether the act was carried out by that person. The more specific the statement or threat the more probative it will be towards proof of the fact. Evidence of such a statement is admissible going to prove the fact of the crime and the identity of the perpetrator. It is also evidence going to prove the intent of the accused.[21] It follows that the utterances of the appellant that he would kill the deceased and leave him in the pines is evidence from which it was open to the jury to conclude that the accused was the person who carried out that act. The trial judge was correct in his direction as to the use that may be made of the evidence of threats.

92 The appellant further complains that the trial judge was incorrect in directing the jury that evidence of threats were capable of corroborating the evidence of Edge. The trial judge directed the jury that Edge may be treated by them as an accomplice. He gave a direction about accomplices and the danger of convicting on the evidence of an accomplice unless the evidence is corroborated. He directed the jury that corroboration is evidence from a source, independent of the witness to be corroborated, which implicates the accused in the crime charged by tending to show that both the crime was committed and the accused committed it. The essence of corroborative evidence is that it confirms, supports or strengthens other evidence in that it renders that other evidence more probable. It must do that by connecting or tending to connect the accused with the crime charged. It is sufficient if it strengthens the accomplice's evidence by confirming or tending to confirm the accused's involvement in the events as related by the accomplice.[22]

93 The appellant complains that the trial judge erred in directing the jury that the evidence of threats was capable of corroborating the evidence of Edge. I consider that the trial judge was correct. As the evidence of threats was independent evidence from which the jury could conclude that the appellant had killed the deceased, it follows that it was evidence capable of corroborating Edge's evidence.

94 The trial judge identified three lies which he invited the jury to consider as being of particular significance. The three lies were contained in the police interview of the appellant. The first lie told by the appellant was that the deceased came to his home at about 6 o'clock on the evening of the deceased's disappearance and that he was driving a utility which he left at the appellant's home. The appellant said that the deceased had then left to go to a church camp. The second lie was that the appellant and Edge had gone to Murray Bridge. The third lie was that the appellant's vehicle was not running for about a week which included the time when it is alleged that the vehicle was seen in Werona Street. The trial judge directed the jury that the first matter that they had to consider was whether each of the statements made to the police were, in fact, lies. He told the jury that they must be satisfied beyond reasonable doubt in respect of each alleged lie that the statement was a lie before they can consider it further. He directed the jury that if they were satisfied that the explanations to the police were lies then they must look to the reason for the appellant telling those lies. The trial judge told the jury that there may be a number of reasons for a person to tell lies. He reminded them that it had been suggested that the appellant may have told lies about the trip to Murray Bridge because of concerns about his breaching parole. He left it to the jury to consider that explanation. The trial judge directed the jury that usually a lie is not evidence of guilt in itself, but in some circumstances the nature of the lie or the circumstance in which it is told tends to indicate that it was told by an accused as a result of a realisation of guilt and an awareness that the truth would implicate him in the crime.

95 In accordance with the direction in Edwards v The Queen[23], the trial judge specifically identified each of the suggested lies. He assisted the jury by explaining how a particular lie might be evidence of consciousness of guilt. He directed the jury that they must consider whether the lies were told for reasons other than indicative of consciousness of guilt. He directed them to consider whether they may have been told out of panic, out of an attempt to improve an innocent version of events, or to avoid consequences of another kind, such as was suggested about the breach of parole conditions. I consider that the direction was adequate. If the jury concluded that the lies were told out of a realisation of guilt then that is evidence capable of corroborating Edge's account.

96 The appellant complains that the evidence that the appellant directed Edge to avoid the police at his home when they returned from Koroit could not be capable of corroborating Edge as the prosecution could not exclude the explanation that he wanted to avoid the police because he was in breach of his parole as a reasonable explanation for his conduct.

97 The trial judge directed the jury that an item of circumstantial evidence was the evidence that the appellant did not return to his home when he and Edge returned from Koroit on Thursday. The trial judge directed the jury that if they accepted that the appellant did not return to Tarpeena when he saw the police, then they could conclude that his conduct amounted to corroboration of Edge's evidence. He directed the jury that if they found that the appellant did flee and there was no explicable reason for him not going back to his home that evening, they must also be satisfied that his conduct in not going home was referrable in his mind to the offence with which he was charged. If they were to conclude that, then that could be evidence pointing to his guilt. The trial judge directed the jury that there may be other explanations, such as that the appellant wanted to go to Mount Gambier to keep his appointment. If it was a reasonable possibility that he failed to return to his home for some reason unassociated with the murder, then they should disregard the evidence of flight. However, if they were satisfied beyond reasonable doubt that the accused did flee because of his participation in and knowledge of the murder, then they may treat the flight as an indication of consciousness of guilt by the accused and, therefore, some evidence of his guilt.[24]

98 The direction made it clear to the jury that they could only use the evidence of flight as corroborating Edge's evidence if they concluded that the only reasonable explanation for his conduct was from a consciousness of his guilt of the crime. In my opinion the direction was adequate.

99 The trial judge referred to the evidence of Edge about the quantity of alcohol that he and the appellant consumed on the evening prior to the murder. He directed the jury about intoxication and that there must be a deliberate, conscious and voluntary act of the appellant before he can be found guilty. He went on to direct the jury that not only must it be proved that the act was voluntary, but the prosecution must prove that the appellant had the specific intention to kill or do grievous bodily harm before he can be convicted. He directed the jury as follows:

"The next matter is the question of the specific intention that I have mentioned, the intention to kill, or cause grievous bodily harm. Is it reasonably possible that the accused was so intoxicated that he did not actually form either of those intentions? Well, you will have to judge a person's intention by what they do and how they do it. Again, I remind you of the evidence of driving the vehicle, of what happened on the assumption that the accused shot Mr Crafter, the use of the gun, the loading of the body into the utility and the disposing of it in the forest. So you might think, ladies and gentlemen, again, it is a matter for you, that the degree of intoxication, if any, was nowhere near sufficient to call into question the capacity of the accused to form those necessary intentions."[25]

100 The trial judge did not direct the jury that it was open to them to return a verdict of manslaughter. The trial judge's failure to do so was in one sense favourable to the appellant because intoxication was left to the jury on the basis that if they were not satisfied beyond reasonable doubt that the appellant had the specific intent to kill or do grievous bodily harm because of the effects of alcohol upon him, then the case against him would not have been proved. That would have led in this case to an acquittal.

101 Intoxication was never part of the defence case. Nevertheless, the trial judge, having determined to direct the jury on intoxication, should have directed the jury that manslaughter was open as an alternative to murder.[26]

102 Although the trial judge was in error in not leaving the alternate verdict of manslaughter to the jury, can it be said that there was no miscarriage of justice? In order to determine that question, it is necessary to ask whether it is clear that a jury, properly instructed, would necessarily have returned a verdict of murder.[27] The primary issue in the trial was always identity. There was never any suggestion by the appellant of intoxication. The evidence which the jury must have accepted was that the appellant must have been aware of what he was doing and that he formed the requisite intent. The conduct of the appellant took place over a long period of time and included driving a motor vehicle, moving the body of the deceased, hiding the weapon and a jacket, returning to the house at Tarpeena, cleaning the tray of the utility and then driving to Victoria. Once the jury was satisfied beyond reasonable doubt that the appellant was the person who committed those acts, the evidence was overwhelming in excluding any suggestion that the appellant was so intoxicated that he could not form the requisite intention. I consider that there was no miscarriage of justice.

[11] This accords with the position adopted in relation to statements by the House of Lords in The Queen v Aziz [1996] AC 41 at 50.

[14] See Shepherd v The Queen (199) [1990] HCA 56; 170 CLR 573 at 575 per Mason CJ and at 579 per Dawson J, with whom Toohey and Gaudron JJ agreed.

[21] See Wigmore on Evidence Vol. IA; Tiller's revision pp 1666-1682 [102-108]; R v Hissey (1973) 6 SASR 280 at 288-289; Wilson v The Queen (1970) 123 CLR 344 at 349.

[22] See R v Kilbourne [1973] AC 729; R v Baskerville [1916] 2 KB 658; R v Hester [1973] AC 296; Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207.

[23] [1993] HCA 63; (1993) 178 CLR 193 at 210-211 per Deane, Dawson and Gaudron JJ; R v Andrews (2002) 220 LSJS 285 at 295-296 per Doyle CJ.

[24]See Dat Quoc Ho v The Queen [2002] NSWCCA 147; (2002) 130 A Crim R 545.

[26] See Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 at 125; Mancini v The Director of Public Prosecutions [1942] AC 1 at 7; Bullard v The Queen [1957] AC 635 at 644.

[27] See Gilbert v The Queen (2000) 201 CLR 414 at 422.

R v PORTER No. SCCRM-02-210 [2003] SASC 233

At a glance

Court

Decision date

Before

Source

Judgment (132 paragraphs)

R v PORTER No. SCCRM-02-210 [2003] SASC 233 (29 July 2003)

Parties

Cases Cited (11)