Supreme Court of SA|1996-04-03|Before: Doyle CJ

R v SHANE MICHAEL MARTIN No. SCCRM 95/479 Judgment No. 5542 Number of pages - 17 Criminal law - evidence (1996) 65 SASR 590 [1996] SASC 5542 (3 April 1996)

COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA DOYLE CJ(1), MATHESON(2) AND DEBELLE(3) JJ

CWDS Evidence

witnesses - impeaching and reestablishing credit and evidence in contradiction - Witness F testified as to admissions made by accused to her - victim's death only discovered some time later and not public knowledge - F cross-examined - suggestion by counsel that F's evidence was fabricated to conceal true events, namely sexual intercourse between the accused and M - prosecution permitted to lead evidence of F's de facto husband, S, that M had told him of the admissions at a time before they became public - evidence admissible to rebut an allegation that F fabricated her testimony after hearing of the death of the victim - allegation necessarily implicit In counsel's suggestions as a matter of logic - no necessity for a bald or explicit allegation - failure of trial judge to adequately identify the basis of the admission to the jury. Barry v The Queen , applied. Nominal Defendant v Clements ; , discussed.

(per Matheson J) Criminal law - Murder - admissions allegedly made to a friend - whether her repetition of those admissions to two other witnesses was admissible - attitude of counsel then appearing for the accused and relevance thereof- failure to direct the jury as to use it could make of alleged admissions of earlier attempts to kill the deceased - whether trial judge should have directed the jury on evidence of good character of the accused - whether defence adequately put to the jury - appeal allowed. Gilles, "The Law of Evidence in Australia" 2nd Edn p159; Ligertwood "Australian Evidence" 2nd Edn pp393-394; Smith v Commonwealth Life Assurance Society Ltd [1935] NSWStRp 53; (1935) 35 SR NSW 552; The Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476; Fox v General Medical Council (1960) 3 All ER 225; Fraser v R Supreme Court No 5335 delivered 13 December, 1995, (unreported, available on SCALE); Bannon v A (1995)132 ALR 87; Teper v The Queen (1952) AC 480; De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1; Birks (1990) 19 NSWLR 677; Roughley, Marshall v Hayward [1995] TASSC 14; (1995) 78 A Crim R 160; Andrews (1992) 60 A Crim R 137; R v Dolan [1992] SASC 3638; (1992) 58 SASR 501; R v S (1992) 58 SASR 523; Warasta (1991) 54 A Crim R 351; McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468; R v B and D [1993] SASC 3887; (1993) 66 A Crim 192, referred to. Barry v R (1995) 183 LSJS 333, distinguished.

HRNG ADELAIDE, 21 February 1996 #DATE 3:4:1996 #ADD 20:5:1996

Solicitors for accused: McGee and Associates

Counsel for respondent Crown: Mr P Rofe QC with Mr J Powell

JUDGE1 DOYLE CJ I have read in draft the judgment of Matheson J. I adopt his summary of the facts.

I agree that the appeal should be allowed and that a new trial should be ordered. First, because the trial Judge did not warn the jury against the impermissible use of the evidence of the witnesses Mr Schloithe and Mr Nitschke, being the evidence of those witnesses that the witness Ms F had told them of admissions by the accused that he had committed the crime in question. Secondly, because the trial Judge did not warn the jury against the impermissible use of the evidence which was led to establish motive and to establish a bad relationship between the accused and the deceased. Thirdly, because the trial Judge did not canvass adequately matters relevant to the credibility of Ms F, Mr Schloithe and Mr Nitschke. Their credibility was such a central issue in the trial that, in my opinion, the jury required more guidance and assistance on the matter than was given. These three matters, in combination, in my opinion warrant the setting aside of the conviction even if any one of them, had it stood alone, might not have done so.

But I do not agree with His Honour that the evidence of Mr Schloithe relating to the alleged admission by the accused was inadmissible. The admissibility of the evidence of Mr Nitschke on the same matter is not so clear, and depends upon facts which were not clearly established. For present purposes it is not necessary to express a final view on that evidence. But, because there will be a retrial, it is desirable that I should explain why it is that I consider that the evidence of Mr Schloithe was admissible and that the evidence of Mr Nitschke may be admissible.

Ms F gave evidence of a confession by the accused in the early hours of Sunday 18 December. She said that it took place at a nightclub. The body of the deceased was discovered at 10.30 am that day. It appears that the discovery first became public knowledge as a result of television news services at about 5.00 pm that day or later. There is no evidence as to whether radio news services revealed the death of the deceased at an earlier time. The evidence at trial from the witnesses concerned seems to have related only to television news services.

Counsel for the accused suggested that the evidence of the confession by the accused to Ms F was a fabrication. He cross examined Ms F in considerable detail about an alleged sexual relationship with the accused which relationship supposedly was terminated by the accused while at the nightclub where he was alleged to have admitted killing the deceased. There is no doubt that if there had been a sexual relationship between Ms F and the accused, Ms F would not have wanted Mr Schloithe, with whom she was living, to know of that. Ms F said so herself. The cross examination, part of which is set out in the judgment of Matheson J, clearly suggested that the evidence of the confession was fabricated by Ms F to cover up what happened between her and the accused at the nightclub in the early hours of the Sunday morning. That is, to cover up the sexual intercourse which took place then.

Proof of the repetition by Ms F of the alleged admission to Mr Schloithe a few hours later at their home could not rebut the suggestion of fabrication which was made explicitly. The motive which the cross examiner identified, concealing a sexual escapade, was already in existence when the alleged conversation between Ms F and Mr Schloithe took place. That is why proof of the statement to Mr Schloithe could not rebut the suggestion made explicitly. The motive which was suggested as the basis for the fabricated confession equally affected the repetition of the confession to Mr Schloithe.

But proof of the repetition to Mr Schloithe of the alleged confession before the discovery of the body of the deceased and before the fact of the discovery of the body became public does rebut the suggestion of invention. How could Ms F have known of the death, and especially what she said about the manner of death, before the body had been discovered other than from the person who committed the crime? It is implicit in the suggestion made by the cross examiner that, upon learning of the death of the deceased and something of the manner of death, Ms F then used that information to fabricate the alleged confession. I have already mentioned that the evidence of Mr Nitschke may stand differently. It appears that Ms F repeated the alleged admission to him before he had heard from any other source of the death, but after the death had been disclosed in television news services. The evidence is not completely clear on the matter and that is something which can be clarified at the retrial.

The position is, then, that implicit in the cross examination was the suggestion that Ms F invented the relevant part of her evidence after she learned of the death of the deceased. But there was no such explicit suggestion.

There was, as I have already said, a very strong attack upon the credibility of Ms F, and an attack also upon the credibility of Mr Schloithe and Mr Nitschke. The cross examiner suggested that all of them had reasons to lie.

Under these circumstances was the evidence of Mr Schloithe and Mr Nitschke admissible?

The relevant principles are authoritatively expounded by the High Court in The Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476. In his judgment Matheson J cites a number of relevant passages from the judgments in that case. However, I have not been able to find anything in the judgments which clearly decides whether or not the basis for the admission of a self serving statement must be something made explicit by counsel in the questioning of the relevant witness, or whether the basis may be something which is necessarily implicit in the questioning. It does, however, seem to me that the admission of the evidence now under consideration is not inconsistent with anything said in Clements case. It is also my opinion that the present case falls within the principle formulated by Windeyer J when he said (at 494): "The kind of imputations and allegations that - if sufficiently clearly made

will let in prior consistent statements are: First, that the witness's testimony is a recent fabrication, in the sense of being invented at or after a particular time. Evidence that he had said the same thing before that time becomes admissible. Secondly, that his testimony was the result of some motive, bias, influence or moral duress operating from some particular time and not before. Evidence that he had said the same thing before that time becomes admissible. The two situations can obviously overlap and in many of the cases in which the evidence was admitted elements of both operated."

The cross-examination necessarily suggested that Ms F fabricated the confession after she learned, presumably through the news media, of the death of the deceased. What the prosecution led was evidence that she reported the confession to Mr Schloithe before the news media made public the fact or manner of death.

The present case also, although not so clearly, falls within the scope of the following passage which is at the conclusion of the discussion by Windeyer J of the relevant principles (at 495): "... There must be an imputation, clearly made and not unequivocally disclaimed, that the witness is not speaking from his own recollection of events, but is recounting a story subsequently made up by him or for him. Furthermore, the statement which it is sought to use to dispel this imputation must be made in such circumstances that it logically does so. For if evidence be attacked as a recent

fabrication, the attack is not repulsed by proving another statement, itself the product of pressure or of a motive to

falsify. And, finally, if evidence of an earlier statement be received, the grounds for doing so should be made clear to the jury lest they should regard it as evidence of the facts stated."

I say that the present case falls within this statement, although not so clearly, because the imputation upon which I would base the admissibility of the evidence was clearly made, as a matter of logic, although not made explicitly because the cross examiner said nothing about the use by Ms F of the knowledge of the death acquired by sources other than the accused.

It is true that all members of the High Court stressed the exceptional nature of the rule allowing proof of self serving statements, and that they stressed the duty of the Judge to satisfy himself or herself that circumstances existed which justified the proof of such statements and that they stressed further the need for caution in the application of the rule. But if an implicit suggestion does suffice, then the circumstances justifying proof of the statement to Mr Schloithe existed here.

I can find nothing in the judgments in Clements which requires that the basis for the admission of self serving statements be a bald or explicit assertion. What Clements and other cases emphasise is that an attack on credibility or a suggestion of invention does not as such allow in self serving statements. Case after case emphasises that the Court must be careful not to hamper legitimate cross examination and careful not to confuse suggestions of exaggeration and fabrication with suggestions which are in fact rebutted by evidence of a self serving statement.

It is important that the Court should not unduly hamper legitimate cross examination. On the other hand, to my mind, it is not desirable that the Court should put a premium on subtlety or artifice. I consider that the present case illustrates this. To any reasonable person proof that Ms F repeated the alleged admissions before she could have known of the death of the deceased from any source other than the killer was relevant to rebut a suggestion that she had fabricated the alleged admissions after hearing of the death from a source other than the killer. Why should the Court not allow the jury to hear such evidence when the suggestion was implicit in the attack upon her credibility? I do not overlook the fact that the basis of the exclusion of self serving statements has two aspects. First, there is the simple fact that in many situations the proof of the repetition of the impugned statement is not probative of anything, and adds nothing to the credit of the witness under attack. That is not the case here. Quite apart from this, there is the traditional common law focus upon testimony given at the trial, and the traditional common law willingness to exclude material which might logically be probative but which involves distracting and time consuming enquiries into collateral matters. I refer in passing to what I said on this matter in Fraser v The Queen (1995) 184 LSJS 223 at 229-230.

This latter matter in particular does support a cautious approach to the rule in question, but should that caution go to the extent of requiring an explicit assertion by counsel of a time or circumstance of fabrication before one allows proof of statements which tend to rebut that assertion? As I have already asked, why should one reject as a basis for proof of a self serving statement, an implicit assertion, particularly if the questioning is such that the basis is laid for the making of that assertion in a closing submission to the jury?

I have already said that I can find nothing in the judgments in Clements which in terms excludes the application of the rule laid down in Clements to a situation such as that which now presents itself. I do not consider that the stress in the judgments upon the need for caution, and the emphasis that the mere suggestion of fabrication does not allow any self serving statements necessarily means that an implicit assertion may not be the basis for the admission of self serving statements. In this context it is worth noting that in Clements itself counsel at the trial in question disavowed any intention to claim that the evidence of the plaintiff had been invented under coaching by his father. Despite this, a number of the members of the High Court said that the trial Judge was justified in concluding that the questioning provided a basis for such a suggestion, and that accordingly the relevant evidence was admissible.

In my opinion there is no reason to take such a restrictive approach to the rule laid down in Clements that it would not permit the admission of the evidence in question in the present case. In substance this was the approach taken by Cox J in Barry v The Queen (1995) 183 LSJS 333. The facts of that case and the relevant passage from the judgment of Cox J are set out in the judgment of Matheson J. It seems to me that what I have said so far is consistent with what Cox J said in that case and with the ruling which he made, and I would respectfully agree with the approach which His Honour took.

In my opinion the approach which I would adopt will not impose unreasonable restrictions on cross examining counsel, and represents a reasonable balance between the interests of the accused and the interests of the public.

It is for those reasons that in my opinion the evidence of Mr Schloithe and possibly the evidence of Mr Nitschke (although he may stand in a different position) was admissible. It remains important that in such cases the trial Judge should identify the basis of the admission of the relevant self serving statement. In such a case, and particularly in the present case, it is important that the trial Judge remind the jury of the attacks made upon the credit of relevant witnesses. In the present case this was particularly important because the evidence of Mr Schloithe and Mr Nitschke was also subject to a strong attack on credibility. In the present case, as I have already said, the Judge failed to identify the basis upon which this evidence was admitted and failed adequately to guide and assist the jury in considering the weight to be given to the relevant evidence of Mr Schloithe and Mr Nitschke.

I should add that, although I have looked at a good many cases on point and the discussion of the relevant principles in a number of text books, I have been unable to find anything which bears upon the point at issue in the present case.

JUDGE2 MATHESON J The appellant appeals against his conviction by a jury for murder, particulars being that on or about 16 December 1994 at Smithfield he murdered his father Malcolm John Martin.

The deceased was last seen alive on Thursday 15 December. His body was discovered at about 10.30 am on Sunday 18 December by his next door neighbours. It was subsequently established that his death was caused by a shotgun blast to his head at point blank range. Crucial to the Crown case was a confession allegedly made by the appellant to the witness Emily F at The Venue Nightclub in Hindley Street in the early hours of Sunday morning, 18 December. The appellant worked there as a part-time barman. F said that the appellant told her that "he'd knocked off his father's head". There was then a break in their conversation, and she said that a little later "he said something along the line of he'd shot his dad and I asked him how. He said that he'd gone to his dad's house. It was night time and it was around late Thursday night, early Friday morning and that he'd gone into his dad's bedroom while his dad was asleep, put his hand near his dad's head to feel where his father's hair was, put the gun to his dad's head and shot him". She added that he said that he had used his own shotgun.

The prosecutor called two of F's friends, namely Jeremy Schloithe (to whom she was engaged) and Geoffrey Nitschke. The former deposed that F recounted the alleged confession to her in their bedroom after they had returned home together the same morning. The latter said that she recounted the alleged confession to him at his house at about 7 pm the same day.

Mrs Shaw, counsel for the appellant, only argued Grounds of Appeal numbered 5 - 10 inclusive. I will deal with them in the same order as she did. In grounds of appeal numbered 7 and 8, the appellant complains about the admission of the evidence of the conversations between F and Schloithe, and between F and Nitschke, on the ground that the evidence "was self-serving and hearsay. Alternatively, the learned Judge erred in failing to direct the jury as to the permissible and impermissible use of such evidence".

The DPP, Mr Rofe QC, sought to defend the admission of this evidence on the ground that it was relevant to the allegation made by the accused that F had fabricated the confession. He did not submit that counsel for the accused had sought to rely on what is called in the cases "recent invention", but he referred in particular to the following passage in the cross examination of the witness F. "Q. I want to put to you quite bluntly that you have made up this confession in The Venue, and that you have made it up perhaps by degrees, but in an attempt to cover up what happened at The Venue that night.

A. No. If I've lied, then I'm not sitting here - that's all I say. Everything that I've said in my statement and have said to the police is the truth. I've had no hate at all towards Shane. I still don't hate him now. I just don't like what he's done."

It was not suggested in cross-examination that F had concocted the alleged confession after she saw a report of the murder on television.

It was the appellant's case at trial that he had had an earlier sexual relationship with F (for which he had support from a witness called for the defence, namely Kylee Mell), that he had broken off the association some time before, but that at The Venue on the night of 17/18 December, F and another woman called Kylie Bligh (both of whom were engaged and living at the time with their respective fianc s, but who were not present with them at The Venue) and the appellant had all three participated sexually in a "threesome" in the office at The Venue. The appellant said that subsequently when they were together on their own, he told F that their relationship was finished.

The counsel then acting for the accused did not oppose the admission of the conversations F had with Schloithe and Nitschke. Mr Rofe informed us that that counsel had been at the bar for a long time (as we knew), but had had limited experience in the Criminal Court. I propose to quote from the transcript at the trial. Mr Powell, counsel prosecuting for the Crown, was addressing the learned trial Judge. I will call counsel for the accused "Mr A". Mr Powell said: "One other matter. It concerns the witnesses to be called at the completion of Constable Sheridan's evidence.

The witnesses to follow will be Emily F, a Jeremy Schloithe, and ultimately a Geoffrey Nitschke. Your Honour will note

from the statement of Emily F - Miss F is the witness who is said to have received from the accused a confession in the early hours of Sunday morning, 18 December of last year. Following some time after that she is said to have reported what she was told to her fiance, Jeremy Schloithe, back at their house in their bedroom at about 7 or 7.30 in the morning. Similarly, later that night it is said that she also told another witness, a Geoffrey Nitschke, about what the accused had said to her at The Venue nightclub later that night at Nitschke's house or some other house.

It is anticipated that the defence will conduct its case in this way, and that it will involve putting to F that she has concocted what she says was a confession received by the accused. Ordinarily speaking, the leading of evidence in relation to what she then told other witnesses might, in some circumstances, be objectionable. However, were that type of defence to be pursued, the Crown would say that it then becomes relevant to rebut the suggestion of a concoction and to reinforce the credibility of a witness to be entitled to lead a prior consistent statement: And specifically, the statements made to Schloithe in the morning and Nitschke later in the evening.

Typically, then, that would be something that would arise in the course of re-examination once it has been suggested to the witness that it is a fabrication or a recent invention, or something to that effect. To avoid that circuitous route, I have suggested to my learned friend that he might consider whether or not that evidence might simply be led during the course of examination-in-chief. As I understand him, he is content for that to occur. I raise that now so that your Honour knows precisely what evidence will be led.

HIS HONOUR: Yes, I would have been a little surprised if you hadn't told me. That is correct, Mr (A), is it?

MR (A): My friend has announced what he intends to do, and I don't raise any objection to the course to your Honour at

this stage. These things can sometimes change as the evidence emerges.

HIS HONOUR: Yes. If things go as Mr Powell anticipates, then he will lead that evidence and you won't take an objection to it because of the line which he anticipates you are going to take in cross-examination.

MR (A): Yes. I don't make any concession about this, but I don't think it is necessary for -

HIS HONOUR: It is not necessary that you make a concession at all. But that is how he has presented it to me, and I repeated it to you to make sure that I have understood the situation.

MR POWELL: I'm a little bit concerned. If I understand my learned friend, it is that he is not objecting to that course being followed.

Immediately following that passage in the transcript, the following appears: "MR POWELL SAYS HE HAS RAISED WITH MR (A) THE MATTER OF LEADING DURING THE EVIDENCE-IN-CHIEF OF THE PROPOSED CROWN WITNESS EMILY F STATEMENTS MADE TO THE PROPOSED CROWN WITNESSES SCHLOITHE AND NITSCHKE AND THAT MR (A) IS CONTENT FOR THAT TO OCCUR.

MR (A) INDICATES HE DOES NOT OBJECT TO THAT COURSE BEING FOLLOWED."

I understand this last passage to be a paraphrase by the court reporter of the earlier verbatim exchange. Since reserving judgment, this court now has an affidavit from Mr (A) in which he deposes:

"During the course of the trial I made no objection to the admission of statements made by the witness Emily F to the witnesses Jeremy Schloithe and Geoffrey Nitschke on the 18th December 1994 to the effect that the appellant had confessed to murdering his father. I made no objection not because I perceived that the accused had anything to gain from the evidence, but because I believed the evidence to be admissible."

Apart from the evidence under consideration, the Crown case consisted of evidence of motive, evidence of opportunity and evidence that the deceased could have been shot with a gun and cartridge owned by the appellant. He did not make any admissions to the police. The credibility of F was essential to the Crown case. Mr Rofe agreed that there was "no sufficient Crown case without the confession (to F)". Mr Powell in his powerful final address to the jury stressed "the support" F got from Schloithe and Nitschke. For example, he said Schloithe's evidence "simply seals the accused's fate".

I think it is a fair inference that the jury, or at least some of them, had difficulty in reaching a verdict and presumably in accepting the confession to F as reliable. They retired to consider their verdict at 11.10 am on 13 September. At 2.26 pm they asked the following questions: "1. Is it possible for the jury to find out (l) what time was the news of the shooting first released; (2) what exact details were released?

Is it possible to verify the call by Emily to Crisis Care (F said in evidence that when visiting her mother at Gawler on Monday 19 December she telephoned the Crisis Care. After speaking to Crisis Care, she went to the Gawler Police Station.)"

His Honour informed the jury that there was no evidence before them to answer the questions.

The jury did not reach a verdict until 4.08 pm on 14 September.

By way of introduction to the cases relevant on these grounds, I refer to the predictably illuminating remarks of Jordan CJ in Smith v Commonwealth Life Assurance Society Ltd [1935] NSWStRp 53; (1935) 35 SR NSW 552 at pp555- 557. Both counsel referred to The Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476, and it contains much that is helpful and relevant. At pp479-480 Dixon CJ said: "If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the

account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court. It is evident however that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party but also that the contents of the statement are in fact to the like effect as his account

given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack. It is obvious that it may not be easy sometimes to be sure that counsel is laying a foundation for impugning the witness's account of a material incident or fact as a recently invented, devised or reconstructed story. Counsel himself may proceed with a subtlety which is the outcome of caution in pursuing what may prove a dangerous course. That is one reason why the trial judge's opinion has a peculiar importance."

I interpolate here that it is abundantly clear in the case at bar that the trial Judge was not asked to consider the so-called "rule of evidence", and clearly did not in fact make any "determination" in relation to it. I regard this as an important factor on the appeal.

At p485, Menzies J said: "Notwithstanding the earlier rule, it is now firmly established that an earlier statement is not admissible merely as confirmation of the evidence given by the witness; furthermore, if there be nothing more than that the evidence of a witness has been attacked in the course of cross- examination, that does not of itself render admissible earlier statements by the witness consonant with his

At p490, after referring to many of the cases, Menzies J said: "It seems to me that in some of the cases to which I have referred, the rule is too widely stated or the evidence admitted went beyond what a strict application of the true rule would authorize. I regard evidence of an earlier consistent statement as admissible in accordance with this

exception only when the Court itself considers that the evidence of a witness has been impeached as a later contrivance and this has been done by the opposite party in the conduct of the case, whether by the cross-examination of the witness, or by eliciting evidence of the fabrication from another witness, or in some other positive way."

Earlier on p487, his Honour said: "Such statements are admissible not to prove the truth of the facts stated but merely to show the consistency of the witness's assertion."

At p490, Windeyer J said: "The testimony of a witness, given on oath in the witness box, cannot ordinarily be supported by evidence that earlier and elsewhere he had said the same thing ..."

At pp494, his Honour said in a much quoted passage: "The kind of imputations and allegations that - if sufficiently clearly made - will let in prior consistent statements are: First, that the witness's testimony is a recent fabrication, in the sense of being invented at or after a particular time. Evidence that he had said the same

thing before that time becomes admissible. Secondly that his testimony was the result of some motive, bias, influence

or moral duress operating from some particular time and not before. Evidence that he had said the same thing before that time becomes admissible. The two situations can obviously overlap and in many of the cases in which the evidence was admitted elements of both operated."

It seems to me that the DPP has disavowed any reliance on either basis for admitting the evidence. I have already referred to the fact that he did not rely on "recent invention", and the evidence that F had said the same thing to Schloithe and Nitschke related to a time after what happened and what was said at The Venue night club, and not before.

And at p495, his Honour continued: "It is for the trial judge to decide whether there has been an attack on the evidence of a witness of such a character as to let in his earlier consistent statements. The trial judge not only hears counsel's questions. He hears the tone of them and is conscious of the suggestion they would convey to the jury. As Dodd J. put it in the King's Bench Division in Ireland in Flanagan v. Fahy (1918) 2 IR 361, 'there can be no difference in principle whether the imputation is made by one straight question or by skilful innuendoes of interrogation if the same meaning is conveyed. What, then, did the cross-examination mean? How would it reasonably be understood?'. But the evidence is only to be let in when the grounds for doing so clearly exist. It is not enough that a witness has been cross-examined as to credit, however much his credibility may appear to have been shaken (Britton v. Commissioner for Road Transport [1947] NSWStRp 5; (1947) 47 SR (NSW) 249; 64 WN 16; Smith v. Commonwealth Life Assurance Society Ltd. (1935) 35 SR (NSW), at p556). There must be an imputation, clearly made and not unequivocally disclaimed, that the witness is not speaking from his own recollection of events, but is recounting a story subsequently made up by him or for him. Furthermore, the statement which it is sought to use to dispel this

imputation must be made in such circumstances that it logically does so. For if evidence be attacked as a recent fabrication, the attack is not repulsed by proving another statement, itself the product of pressure or of a motive to falsify. And, finally, if evidence of an earlier statement be received, the grounds for doing so should be made clear to the jury lest they should regard it as evidence of the facts stated."

Mr Rofe sought to rely on Barry v R (1995) 183 LSJS 333. The appellant there was convicted of assaulting a man called Damien Clarke, thereby occasioning him actual bodily harm. There was no doubt that Clarke was severely assaulted outside the Ethelton Hotel, of which the appellant was the licensee. The question for the jury was whether the Crown had proved that the appellant was responsible. The evidence at the trial showed that by the time Clarke was ready to leave the Ethelton Hotel at about 5 pm he was well affected by liquor. When a taxi that he had ordered arrived he went outside. He said the appellant followed him and asked him for $20 which the appellant said Clarke owed him. Clarke denied owing the appellant any money, whereupon the appellant punched Clarke in the face with his clenched fist. Clarke's recollection of what happened from that point until the taxi driver named Burdon dropped him off at his parent's home was incomplete. He remembered speaking to Burdon but that is all. He was later taken to the hospital with a broken jaw. Burdon gave evidence that he saw Clarke standing on the footpath at the hotel corner vomiting blood. On the way home Clarke told him that "this guy came over and hit him for no reason and he thought he had a broken jaw and he said that the guy was a boxer or ex-boxer and that he knew the man". This evidence of Burdon was significant because the appellant told the jury that he was a former Australian amateur heavyweight boxing champion and later a professional fighter.

In a judgment with which Perry J agreed, Cox J said at pp336-337: "It is a nice question whether the conversation with Burdon was admissible under the recent invention rule. Merely to accuse a witness of telling a false story because of a specified motive does not enable the party calling the witness to bolster his evidence by proving that he has made other consistent statements outside the court. The cross-examiner here did not suggest that the false story was concocted at any particular time, although it is obvious from the telephone calls that it must have been some time on the Friday evening. However, given the severity of Clarke's injuries, the jury was entitled to conclude that he was unlikely to have been in any condition to concoct a false story for one or other of the suggested motives - family animosity and financial self-interest - by the time he told Burdon that he had been hit by an ex-boxer whom he knew. If in the nature of things it needed more time than this for Clarke to fabricate a story, it was open to the Crown to lead evidence that proved (if the jury were disposed so to regard it) a spontaneous if indirect identification of the appellant before that minimum time had elapsed. That does not mean that a malignant invention of the story in the cab itself had to be impossible. It is enough, I think, that the jury was entitled to consider it quite unlikely that this is what happened and therefore that the evidence of the statement to Burdon could assist them materially in assessing the weight of the concoction theory. In my opinion, the evidence was admissible on those grounds. There was no criticism of the learned Judge's direction to the jury on the subject. I would reject this ground of appeal."

At p338, Lander J, who dissented on the admissibility of the conversation with Burdon, said: "The cross-examiner was suggesting quite unequivocally that the witnesses' evidence was a lie, and that the lie was motivated by a dispute between the victim's family and the appellant, which dispute pre-existed the offence."

After referring to many of the leading authorities, Lander J concluded at p341: "Whilst it might be that it is unlikely that Damien Clarke could have invented the story which he gave to Mr Burdon, that, in my opinion, does not render that previous statement admissible. The statement was not admissible because there was no suggestion of recent invention, nor any suggestion that from some particular time subsequent to the offence, as distinct from prior to the offence, that Damien Clarke was actuated by an improper motive."

I have some sympathy with the actual ruling of the majority in Barry's case, bearing in mind that Clarke had just been assaulted and his utterance was clearly spontaneous (see Gilles: The Law of Evidence in Australia 2nd Edn p159), but with respect I think the reasoning of Lander J is more consistent with authority. In any event, the case bears no factual similarity to the present.

I add references to Ligertwood "Australian Evidence" 2nd Edn pp393-394, where the learned author says the exception under consideration "applies only in the strictest circumstances"; Fox v General Medical Council (1960) 3 All ER 225 at pp230-231; and Fraser v R Unrep Jt of the Supreme Court No S5335 delivered on 13 December, 1995. Finally, it is to be noted, as Mrs Shaw pointed out, that in Bannon v R [1995] HCA 27; (1995) 132 ALR 87, the High Court rejected proposals for any further relaxation of the rule against the admissibility of hearsay evidence (see especially per Brennan CJ at pp89-93).

I have reached the conclusion that the evidence was inadmissible. To adopt the language of Lord Radcliffe in Fox v General Medical Council (supra) at p231, "the challenge to (F's) evidence that was raised by cross-examination was not of the order that could be affected by proof of statements made by (her)" to Schloithe and F. A trial Judge is required to exclude inadmissible evidence even where no objection is taken (see Teper v The Queen (1952) AC 480 at p492; De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1 at p3; Birks (1990) 19 NSWLR 677 at pp703-704 and Roughley, Marshall v Hayward [1995] TASSC 14; (1995) 78 A Crim R 160 at pp176-177). The credibility of F was so important that, in my view, the admission of the evidence in question lead to a miscarriage of justice. On these grounds, the appeal must succeed. I would add that even if my view as to admissibility is incorrect, the trial Judge should at least have warned the jury about its impermissible use (see Nominal Defendant v Clements per Menzies J at p487 and per Windeyer J at p495, passages I have underlined above).

I turn now to consider ground 5: "5. The Learned Judge failed to direct the jury as to the use it could make of the evidence of an alleged admission that the accused had previously attempted to kill his father with a poison."

The evidence was actually more extensive than the ground of appeal suggests. A number of witnesses said that they had heard the appellant say he hated his father. Both F and Schloithe said that the appellant told them that on one occasion he had acquired some monkshood, which he believed to be a poisonous plant, and had put it in his father's coffee. They also said that the appellant told them that his father had been walking through the house one day, and the appellant had his loaded .22 rifle with him. He said he had pulled the trigger, but misfired.

Counsel for the appellant did not object to any of this evidence, and most if not all that was probably relevant anyway to prove motive, and to show the relationship between the appellant and his father. However, his Honour failed to direct the jury that it was impermissible to use the evidence for the purpose of showing the appellant had a bad character or had a tendency to use violence, see Andrews (1992) 60 A Crim R 137 and the cases there cited and the wording of the actual direction given to the jury in that case by the trial Judge which was approved on appeal. Counsel then acting for the accused did not ask the Judge to give a direction as to the impermissible use of the evidence, but the cases suggest that any such omission can be fatal (see R v Dolan [1992] SASC 3638; (1992) 58 SASR 501 at p503, and R v S (1992) 58 SASR 523 at p526).

Next, I consider ground 10: "10. The learned Judge failed to direct the jury as to the use it could make of the accused's evidence of good character."

The appellant, who was twenty-one years of age at the time of his father's death, said that except for traffic offences he had not been in trouble with the police since he was thirteen when, to quote him, he said "I believe I was done with possession of housebreaking implements". He was fined $100 without a conviction. He had no convictions involving dishonesty or violence.

The trial Judge made no reference to this evidence in his summing up, nor was he asked to do so. Mrs Shaw referred to the case of Warasta (1991) 54 A Crim R 351 where at p356 the Victorian Court of Criminal Appeal said: "It would be only in a rare case, where the accused gives evidence on oath, and his credibility is of crucial importance, that an omission to give such a direction could be justified."

I am inclined to think that this was one of those rare cases. If the Judge had given such a direction, he could hardly have failed to refer to the appellant's sexual promiscuity and to the evidence of F and Schloithe that the appellant told them that he had previously attempted to kill his father. I would reject this ground of appeal.

I propose to consider grounds 6 and 9 together. They are: "6. The Learned Judge failed to warn the jury as to the dangers of acting upon the evidence of the witness F, in particular in view of its significance as evidence of a confession, the circumstances in which it was allegedly made, the inconsistencies within her account, the evidence of a motive to lie and the conflicts with the evidence of the witness Bligh. ...

The Learned Judge failed to adequately present the defence case to the jury."

Mrs Shaw pointed out that there was no truly independent evidence to support F's claim that the appellant had confessed to her. On the defence case, she argued that had a motive to lie. The appellant had denied confessing to her on oath. In all the circumstances, Mrs Shaw argued that his Honour should have directed the jury to scrutinise her evidence. Whilst acknowledging that their Honours were focussing on confessions to the police, she referred to the judgment of Mason CJ, Deane, Gaudron and McHugh JJ in McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468, especially at pp475-476. As part of the trial Judge's duty to put the case fairly and accurately it was necessary for him to draw attention to those matters which brought the reliability of the alleged confession into question. Mrs Shaw referred to the judgments of King CJ and Perry J in R v B and D (1993) 66 A Crim l92. At p196 King CJ said: "No doubt these points were mentioned by counsel for the defence in the course of the address but they were so essential to the defence as to require express mention in the course of the judge's summing up of the issues of fact to be decided by the jury."

At p197, Perry J said: "It is not always sufficient simply to summarise the evidence of each of the witnesses in turn ... In my opinion, it is better that the trial judge summarise in his own words the salient features of the defence. With respect to the learned trial judge, the manner in which his summing up was constructed did not bring home the cogency of the evidence suggesting that the complainant may well have had a strong motivation to concoct."

His Honour did not refer to a number of matters that were relevant to the credibility of F, Schloithe and Nitschke. The appellant in his evidence deposed to his sexual relationship with F before and after she became engaged to Schloithe. According to him she asked him to marry her a week before she became engaged to Schloithe. He told her he did not know her well enough. After the so-called "threesome" at The Venue, he told her when they were alone together that their relationship was finished. Schloithe admitted to being paranoid about the infidelity of girlfriends, and at least twice tackled F about her relationship with the appellant. The appellant had also had a sexual relationship with Nitschke's wife. F and Schloithe were going to court about the time of the alleged murder on an admitted charge of receiving cigarettes. Schloithe also admitted that he and Nitschke had been involved together in some criminal undertakings, and when pressed he declined to answer further questions on the ground that his answers might incriminate him.

There were other aspects. The next door neighbour, a man called Breen, had an ongoing feud with the deceased and had threatened to shoot him. A Crown witness called Barrow overheard F telling the appellant that his father would be dead soon because someone had ordered a hit on his head. The deceased's ex-wife said that the deceased had told her on the telephone about eight weeks before he died that a next door neighbour had threatened to blow his head off.

In my opinion, Mrs Shaw's submissions on the presentation of the defence by his Honour have some merit, but whether sufficient merit to succeed on their own, divorced from other grounds of appeal, it is unnecessary to decide.

In my opinion, the success of grounds 7 and 8 is a sufficient basis for the appeal to be allowed and for the conviction to be set aside. I would order a retrial.

JUDGE3 DEBELLE J I agree that the appeal should be allowed and a new trial ordered. I agree with the substance of the reasons of the Chief Justice and, to the extent that those reasons agree with the reasons of Matheson J, I also agree with the reasons of Matheson J.

R v SHANE MICHAEL MARTIN No. SCCRM 95/479 Judgment No. 5542 Number of pages - 17 Criminal law - evidence

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R v SHANE MICHAEL MARTIN No. SCCRM 95/479 Judgment No. 5542 Number of pages - 17 Criminal law - evidence (1996) 65 SASR 590 [1996] SASC 5542 (3 April 1996)

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Cases Cited (11)