Sorgenfrie, Peter David v. The Queen [1981] FCA 22

ON APPEAL from the Supreme Court of the Australian Capital Territory

IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY No. A.C.T. G25 of 1980

ON APPEAL from the Supreme Court of the Australian Capital Territory

BOWEN C.J. and FISHER J.: The appellant was charged on indictment before the Supreme Court of the Australian Capital Territory on a count of assaulting William Van Veen ("Van Veen") thereby occasioning him actual bodily harm. After a trial before a judge and jury the appellant was convicted on this count and sentenced to imprisonment for three years with

a non-parole period of 16 months. He appeals to this Court

against the verdict of the jury, his conviction and the sentence.

The essence of the Crown case at the trial was that the appellant and Brett Matthews, a person charged with the appellant, made an unprovoked physical attack upon Van Veen. The Crown relied upon evidence given by Van Veen and Miss Glendenning, who was in his company at the time, and on evidence given by police officers and admissions by the appellant and the co-accused. The defence case was put by way of unsworn statement and was to the effect that Van Veen consented to or voluntarily participated in the skirmish and that the appellant acted in self defence.

The evidence at the trial, in so far as it is necessary to state it, is as follows:

At about 10.30 p.m. in the evening when Van Veen and Miss Glendenning were seated on stairs in a plaza in Canberra they were approached by the appellant and the co-accused. The co- accused made a comment in what was said to be a sneering tone to Miss Glendenning and then put both of his hands on Van Veen's shoulders. Van Veen brushed the co-accused's hands off his shoulders and asked him what was his problem. The co- accused put his hands again on the appellant's shoulders, shook him and said that he had commented "what a good looking bird he had". Van Veen again brushed off the hands and told the co-accused to "back off" and that he did not want any trouble. Van Veen said that an argument broke out and that

the appellant told the co-accused to stand aside as he would

take care of Van Veen. Van Veen was taking his coat off when

he was struck by the appellant on the left eye. A fight then

ensued and Van Veen was knocked to the ground where he was hit by both the appellant and the co-accused whilst on his back.

Eventually the police arrived and intervened to put an end to

the fighting. Van Veen sustained a number of injuries, having

a black eye, a bleeding nose, three broken teeth, an injury to

the back of his head and bruising to his body. Statements

were subsequently made to the police by the appellant and the co-accused and by Van Veen and Miss Glendenning.

The argument advanced before us on behalf of the appellant was based on a number of grounds of appeal, some of which were more strenuously pressed than others and were consequential upon the primary grounds of appeal. The grounds which were pressed can be stated as follows:

(a) that the trial judge's instruction to the jury on previous inconsistent statements was inadequate and he erred in law in rejecting the application that he further instruct the jury on such statements;

(b) that he misdirected the jury in relation to the appellant's unsworn statement;

(ec) that he should have discharged the jury in consequence of the failure of a witness to refrain from referring to the

Reference was also made by the appellant's Counsel to the

disallowance by the trial judge of questions to Van Veen which

it was contended might have led the jury to believe that Van Veen was at the time "conducive to engage in a fight".

Counsel for the appellant relied mainly upon first, the allegedly inconsistent previous statements of Van Veen and Miss Glendenning and the trial judge's rejection of an application to further instruct the jury upon them, and secondly, his treatment of the appellant's unsworn statement.

Dealing with the alleged inconsistent statements, the appellant's Counsel pointed to a number of passages in the

evidence of Van Veen at the trial. The following passage, to

the extent material, appears in the cross-examination of Van

"You see, you told His Honour and members of the jury earlier today that Mr. Mathews put his hands on your shoulders and shook you. Do you remember giving that evidence this morning? - Yes.

You see, Mr. Van Veen, you never told Mr. Nichols that that is what happened when you gave evidence before him in September last year did you, that Mr. Mathews shook you when he put his hands on your shoulders? - I was definitely shaken.

But do you agree with me that you never told Mr. Nichols that in September of last year? - I cannot be sure.

You see ... what I suggest that you told Mr. Nichols in September of last year was that Mr. Bentwood, who was acting for the Crown, said to you, "What happened next?" and you said "the smaller guy, he put his hands on my shoulders and he said to me 'what a great looking bird you have got'". Then Mr. Bentwood said, "what happened next". "I pushed his arms off me and told him to back off and leave us alone". There is no mention there, Mr. Van Veen, about the shaking of shoulders? - No, my shoulders were definitely shaken.

That is something that has occurred to you between when you gave evidence to Mr. Nichols and today, is it? - That is correct."

In these passages Mr. Mathews is the co-accused and Mr. Nichols the magistrate who conducted the preliminary hearing.

Counsel emphasised the fact that before the magistrate there was no reference by Van Veen to the fact that his shoulders had been shaken by the co-accused, and that his subsequent evidence at the trial was inconsistent in that for the first time Van Veen made reference to the shaking of his shoulders.

In respect of the same incident attention was also drawn to the fact that before the magistrate Van Veen said that when the co-accused first placed his arms on his shoulders he had said "what a good looking bird you have got". At the trial Van Veen denied that this was said on this first occasion. However, he said that when the co-accused again placed his arms on his shoulders he said "I was just saying what a good looking bird you had" or words to that effect. Furthermore, at the trial Van Veen said that the first comment he made to Mathews was to ask him what was his problem, whereas at the preliminary hearing the first remark he said he made was "back off and leave us alone".

Counsel also drew attention to a further discrepancy in Van Veen's evidence in that at the trial he said that the

appellant hit him and then grabbed him by the throat and

pushed him backwards, whereas at the preliminary hearing he made no reference to being pushed backwards.

It was also said that Miss Glendenning made inconsistent statements and that the trial judge should in this regard also have given the jury a direction. Attention was drawn to the fact that at the trial she said that the appellant pushed Van Veen's head whilst he was on his back so that it hit the ground on three occasions. However, she agreed that she had not mentioned this fact at the preliminary hearing. Counsel made the point that because she did not tell the magistrate, in circumstances where she was given every opportunity to do so, that Van Veen's head hit the ground on three occasions, there was a material inconsistency in her evidence. He acknowledged, however, that she was not specifically asked at the preliminary hearing whether Van Veen's head hit the ground and, if so, on how many occasions, nor did she say at that hearing that she had told all that she could remember. At the trial she said that she had been nervous on the earlier occasion and had omitted to tell all she could recollect of the incident.

A further alleged inconsistency in Miss Glendenning's evidence was that at the preliminary hearing she said that at the outset Mathews spoke to her saying "how are you" in a fairly loud voice. However, at the trial she said that these words were spoken in a very sneering and not a pleasant tone. Counsel contended that in saying this, matter prejudicial to

the appellant was introduced which was not before the

magistrate and ought to have been the subject of a direction by the trial judge. Such a direction, it was acknowledged, should have been in the nature of a warning rather than a direction to the jury to ignore the evidence.

Counsel's final alleged inconsistency was said to lie in the fact that at the preliminary hearing Miss Glendenning said that the appellant and Van Veen were still fighting when the police arrived, whereas at the trial she gave evidence that Van Veen was on his back with the appellant knocking his head on the ground. It is, however, in our view, impossible to describe such latter evidence as inconsistent, in that it cannot be said that the fighting had ceased by the time the police arrived.

After the jury retired at the conclusion of the summing up Counsel for the co-accused made an application based on what he described as the trial judge's failure to make mention or comment on what he alleged to be the prior inconsistent statements by Van Veen and Miss Glendenning. He referred in support of his application to a passage in the judgment of the Court of Appeal delivered by Lord Chief Justice Parker in Reg. v. Golder, Jones and Porritt [1960] 3 All E.R. 457 at p.459,

"In the judgment of this Court, when a witness 15s shown to have made previous statements inconsistent with the evidence given by that witness at the trial the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements, sworn or unsworn, do not constitute evidence on which they can act."

Counsel for the co-accused submitted that as there was uncontradicted evidence that statements (to which he indicated he had referred in his address to the jury) were earlier made by the two witnesses which were inconsistent with their evidence at trial, the trial judge should give a further direction to the jury in line with that stated by Lord Chief Justice Parker supra.

Counsel for the appellant supported the application, but the trial judge, after noting that by making it Counsel had protected their clients' rights, rejected the application.

R. v. Golder, supra, has been considered by the High Court in Driscoll v. The Queen (1977) 137 C.L.R. 517 and the passage set out above was held not to state correctly the law of this country. It follows that the trial judge was correct in refusing to give a further direction to the jury exactly in thase terms.

Before us it was contended that in accordance with Driscoll's Case, supra, the trial judge should have warned the jury to treat with caution the evidence of the two witnesses because they had each been shown to have given evidence at the preliminary hearing inconsistent with evidence given at the trial. The question before us is whether in order to ensure a fair trial it was necessary for the trial judge to have given such a warning.

Counsel's submission was in essence that the trial judge was obliged as a matter of course to give such a warning if

the subsequent evidence was more damaging to the appellant

than the earlier statement, in which case his failure was a ground for setting aside the verdict. This submission was based on two assumptions, namely, that if a witness does give inconsistent evidence, it is a rule of general application that a direction or warning must be given and also that such a warning must be given if the evidence is inconsistent only to the extent that it includes a statement which earlier the witness failed to include.

In our opinion neither of these assumptions is necessarily warranted. Furthermore, the nature of the alleged inconsis- tencies, particularly if they do not amount to outright contradictions, is one of the circumstances to be taken into account in determining whether it is necessary to warn the jury. In the end, the only purpose of confronting a witness with his earlier statement is to indicate that he is unreliable and his evidence should not be accepted, which is a matter for determination by the jury.

Support for this approach is to be found in the reasons of Gibbs J. in Driscoll's Case, supra, with whose reasons the other members of the Court agreed. He went to some length to deny that where a previous inconsistent statement was made "it is always necessary or even appropriate to direct a jury that the evidence of a witness who has made a previous inconsistent statement should be treated as unreliable" (p.536). At p.537

"Although what was said in R. v. Golder, Jones and Porritt has since been cited with approval (see Reg. v. Oliva [1965] 1 W.L.R. 1028, at pp.1036-1037) it cannot be accepted that in cases where a witness has made a previous inconsistent statement there is an inflexible rule of law or practice that the jury should be directed that the evidence should be regarded as unreliable. I agree with the observations made on this point by Stanley J. and Lucas A.J. in Reg. v. Jackson [1964] Qd.R. 26, at pp.29, 40. A similar view has been expressed in Canada, Deacon v. R. [1947] 3 D.L.R., at p.776."

Earlier in his reasons Gibbs J. had indicated differing circumstances in which warnings might or might not be warranted, thereby acknowledging that the need for the warning would depend upon the circumstances of the particular trial. It is desirable to set out the passage in full as Counsel for the appellant relied strongly on that part relating to the circumstances where the subsequent statement is more damaging.

"As to the second question, the whole purpose of contradicting the witness by proof of the inconsistent statement is to show that the witness is unreliable. In some cases the circumstances might be such that it would be highly desirable, if not necessary, for the judge to warn the jury against accepting the evidence of the witness. From the point of view of the accused this warning would be particularly necessary when the testimony of the witness was more damaging to the accused than the previous statement. In some cases the unreliability of the witness might be so obvious as to make a warning on the subject almost superfluous. It is possible to conceive other cases in which the evidence given by a witness might be regarded as reliable notwithstanding that he had made an earlier statement inconsistent with his testimony".

It was contended by Counsel for the respondent that none of the previous statements relied upon by the appellant were in fact inconsistent because such a statement is one which flatly contradicts what was said before and in any event the rule was restricted by the authorities to statements by witnesses declared hostile. There are, however, cases (Reg. v. Thompson, an unreported decision of the New South Wales Court of Criminal Appeal delivered 25 March 1977; and R. v. Schmal [1965] V.R. 745) where consideration was given to the application of the rule when the evidence did not directly contradict and the witness was not declared hostile. In the circumstances of this matter it is not necessary for us to determine whether the application of the principle is restricted as contended for by the respondent.

The observations of Stanley J. in Reg. v. Jackson [1964] Qd.R. 26 at p.29 made in circumstances where the previous statement was in direct contradiction of the evidence at

"There may be some satisfactory explanation for the making of the original statement, e.g. it may have been merely ironic, or extorted by fear. If there is any alleged explanation for making the original statement, it is usually for the jury to say what weight should be attached to the evidence in the light of the circumstances. If there is no explanation, or if explanation is such that no reasonable man could give it any weight, a judge would properly direct a jury that the witness was unreliable and his or her evidence should be neglected, and that they should consider any other evidence in the case to determine whether any such other evidence alone justified a conviction beyond reasonable doubt."

That part of the reasons for judgment of Lucas A.J. which was approved by Gibbs J. appears at p.40 of Jackson's Case,

"It cannot in my opinion be a rule of law of general

application that a jury must be warned to disregard or even to treat with caution the evidence of every witness who is shown previously to have made an inconsistent statement about a material matter. One can imagine many instances in which a witness may change his testimony without any reflection upon his credit being proper: for example, a witness may genuinely change a previously held belief as to a material fact, or may correct a genuine mistake as to that fact."

The above comments apply in our opinion a fortiori if the allegedly inconsistent statement does not amount to a flat contradiction but merely the giving of more detailed evidence at the subsequent hearing. Whether any of the former statements are to be treated as inconsistent "is not to be determined by splitting hairs about the form of the statement but whether it is inconsistent as a matter of commonsense". See Cotton v. Commissioner for Road Transport (1943) 43 S.R. N.S.W. 66 per Jordan C.J. at p.7l.

The reasoning of the Full Court of Victoria in R. v. Schmal, supra, and the judgment of Pape J. in particular illustrate the various circumstances which fall for consideration when a decision has to be made whether the inconsistencies require a warning.

The question for us is whether in all the circumstances of

this trial, including in particular the nature of the alleged

inconsistent statements, it was necessary for the trial judge to give the jury a warning on the question of credibility. Matters which persuade us to the contrary are that the case was relatively simple, the hearing was complete within two days, the issues were few and the evidence limited. Moreover, the inconsistencies were not flat contradictions, were drawn to the notice of the jury by Counsel for at least one of the defendants in his address and related primarily to peripheral and not crucial issues. In particular, in many instances the issues in respect of which the inconsistencies arose were corroborated by other witnesses. In our opinion the appellant fails on this ground of appeal.

We turn now to the treatment of the unsworn statement of

the appellant. This unsworn statement was in the following terms: "My name is Peter David Sorgenfrie. I met my friend

Brett Mathews out at Woden Plaza, we were celebrating, having a drink for his birthday so we went into Civic to Ads, the disco. We were down there for a while and had a couple of drinks and then we left there and we come up the stairs. Brett was on my right hand side. We turned right at the top of the stairs. We were walking towards the car park and there was a woman and a man sitting on the step and as we were walking past my friend Brett Mathews leant over and rested his hands on the man's shoulders and he give him a compliment on his girlfriend. He said what a good looking bird he had.

With this this bloke just jumped up and started jumping around ready to fight and that and I seen this happening and I tried to get between it to break it up. I did manage to break it up and that and I called this bloke maggot and asked him what sort of a bloke he was. All my mate did was give him a compliment on his girlfriend and you want to

punch his head in. And with this the bloke started jumping at me and bouncing, you know, shaped his fists up and that and I thought he was going to hit me so I hit him first and we were sparring around throwing punches at each other, both on our feet and while we were fighting I noticed a bit of blood running out of his nose and I asked him if he wanted to call the fight quits or what.

As I was saying he sort of hit me in the head, hit me, you know, pretty hard, and I just sort of lost my temper with him and just kept hitting him. In that, while that was happening, I remember Brett getting into it. I seen him come in. I do not think he hit him or anything, but I pushed Brett back out of the road. And the next thing I know the police were there and dragged us off. But I feel that I was put in a position where I was scared for myself and that and through trying to stop trouble I ended up in trouble myself, and I feel that I am not guilty of these two charges. Thank you."

In the course of his full and careful charge to the jury the trial judge made reference on a number of occasions to the defences of self defence and consent. He did not during his summing up read to the jury the appellant's unsworn statement

but he made the following comments in reference to it.

"In this case each of the accused made an unsworn statement as he is entitled to do. That statement is not evidence in the sense that evidence from the witness box or the exhibits that have been tendered are evidence. Nevertheless, and though it could not be tested on cross-examination you are entitled to consider it as a possible explanation of the facts of the case. And you may take into account with the evidence in the case, giving 1t such weight as you think it should have in comparison with the facts which you find to be proved by the evidence. Had either of the accused chosen to do so, he could have gone into the witnessbox, given his version and submitted himself to cross-examination. He was not, of course, bound to do so. As he did not do so the only evidence you have is the evidence of the Crown witness and the exhibits."

With the exception that he directed the jury's attention to the fact that certain topics which were put to Van Veen in cross-examination were "echoed in the statement made by Mr. Sorgenfrie to the Court", he made no further comment on the unsworn statement.

After the jury retired the application was made for a further direction in respect of the prior allegedly inconsistent statements. This application was rejected. The

trial judge then of his own volition and without any request or prompting by Counsel said that he was prepared to give the jury a further direction in that he would read to them the statements by the appellant and the co-accused. Counsel agreed to this course.

Prior to reading the statement of the appellant to the

"Members of the jury, I had not read to you when I sent you out to consider your verdict, the two statements which were made by each of the accused to you from their places in the court room today. It seems to me that as I have given you some extensive passages from the evidence of the prosecution which came some time earlier in these two statements, it would be desirable for me to refresh your memory of what was said in these two statements.

You will understand that these statements are not evidence in the sense that the other pieces of evidence given from the witness box are evidence. They are not subject to cross-examination and testing in that way but they are nonetheless material which you are entitled to take into account in considering your verdict."

Counsel for the appellant challenged, in particular, the last sentence of the first passage quoted above concerning the unsworn statement where the trial judge, after drawing attention to the fact that the appellant did not go into the witness box and submit himself to cross-examination, said "As he did not do so, the only evidence you have is the evidence of the Crown witnesses and the exhibits".

Counsel acknowledged that apart from this sentence the trial judge's direction on the unsworn statement was "almost unimpeachable". However, his argument was that the consequence of the direction in this sentence was to nullify all he had earlier said about the use the jury could make of the unsworn statement and required them to ignore it when weighing up the evidence. When considering this submission it is of some significance to note that neither of the defence Counsel sought at the conclusion of the summing up any further direction on this aspect making it clear to the jury that the unsworn statements did have to be taken into account.

In our opinion it is possible that the jury was misled by this sentence coupled with the absence of any comment concerning its bearing on the two defences raised by the appellant of self-defence and consent and in consequence failed to give adequate consideration to the version of the incident put forward by the appellant. Doubtless the learned trial judge was using the word "evidence" as meaning "sworn evidence" and was contrasting the unsworn statement of the

appellant with the sworn evidence. But in our opinion he did

not make this sufficiently clear to the jury and, in particular, he did not impress upon them that with all its inadequacies the unsworn statement did have probative value. He did, of course, draw to the attention of the Jury on a number of occasions the appellant's defences of self defence and consent but his failure to indicate the particular passages in the statement which were capable, if accepted, of supporting such defences would tend to confirm in the mind of the jury that the statement had no probative value. The overall impression which we have of the summing up and its likely impact on the members of the jury is that it is possible that they felt they should exclude the material in the statement from their minds in arriving at their opinion as to what happened on the evening in question. Because all reasonable doubts are to be resolved in favour of the appellant it is essential to ensure that the jury understands that the statement is "evidence", albeit not sworn evidence, and as such forms part of the probative material capable of raising such a doubt. We agree with the conclusion that Smithers J. has reached that there was a misdirection, which misdirection is a misdirection in law.

It is necessary to decide whether in these circumstances a new trial should be ordered, and the Crown carries the burden of satisfying us that if there had been no error such as we have found, the jury would have come to the same conclusion.

This aspect of the matter has been considered in some detail

by Smithers J. We adopt his view that a new trial is not warranted and the reasons which he gives.

Counsel also complained that the trial judge erred in failing to discharge the jury after a witness had made reference on a number of occasions to the use by the appellant of an alias, "O'Shea". This reference was made when the witness told of words spoken to him by the co-accused. It is for the trial judge to determine on the facts before him whether there was sufficient prejudice to the appellant to warrant a discharge of the jury. An appellate court will not lightly interfere with the exercise of that discretion, and only if the trial judge was manifestly wrong and the appellate court is of opinion that it would have discharged the jury (R. v. Ball [1961] 61 S.R. (N.S.W.) 37). In this matter there is nothing to persuade this Court to interfere and no reason to think that the trial judge exercised his discretion other than correctly.

We reach the same conclusion in respect of the ground of appeal relating to the alleged refusal by the trial judge to permit the appellant's Counsel to pursue a line of cross- examination directed, we were told, to show that at the time Van Veen was conducive to a fight. On our reading of the transcript Counsel elected not to pursue this line of questioning and we do not see any prospect of a miscarriage having ensued.

The appeal against severity of sentence was based on a

contention that the trial judge failed to take into account

certain material which was before him and, in particular, the opinion of a welfare officer that the appellant was "susceptible to welfare supervision". It was also submitted that on the aspect of deterrence the trial judge should have taken into account the appellant's relatively recent period of imprisonment for another offence. Neither these particular Matters nor any of the other matters put before us by Counsel on this score satisfied us that we should interfere with the sentence of imprisonment imposed.

However, this appeal against sentence is an appeal from the discretionary act of the trial Judge and there are grounds upon which we consider it necessary and proper that we should review the sentence. In particular, we should review it to determine whether the trial Judge has erred in the exercise of his discretion because he has taken into account circumstances which as a consequence of our findings on the summing up must be regarded as insufficiently proved. In Cranssen v. R. (1936) 55 C.L.R. 509 at p.519 the High Court in the joint

judgment of Dixon C.J. Evatt and McTiernan JJ. said:

"The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over- severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made.

which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence

itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority."

It could not be said that in the present matter the sentence appears unreasonable but in the events that have happened and with the benefit of hindsight it was not "fixed in the due and proper exercise of the court's authority". The trial Judge took into account circumstances and considerations which because of the misdirection can not be found to be satisfactorily proven and in consequence his exercise of his discretion miscarried.

determining the appropriate sentence of imprisonment were

"You attacked Van Veen without provocation. As he was bending down you struck him a severe blow. When you and your companion, if you had both attacked him had driven him to the ground you bent over him and continued to thrash him and did substantial injury. There are no redeeming features in the circumstances of your attack. It was gratuitous and violent and you desisted only when Matthews pulled you off and the police sergeant arrived. ... The circumstances leave me no option but to sentence you as I say to a period of imprisonment."

It is apparent that in the sentencing the appellant to a term of imprisonment for three years the trial Judge acted on the basis that the verdict of the jury established that the appellant was guilty of unprovoked aggression and that there were no redeeming features. In our earlier reasons we were of opinion that the consequences of the misdirection was that there was doubt whether the jury were aware that they should take into account "redeeming features" set out in the appellant's unsworn statement. The trial Judge understandably assumed that the jury had taken that into account and that the effect of the verdict was that that had been rejected. However, the consequence of the misdirection is that this assumption is not warranted. We can not conclude with certainty that the jury if properly directed would have found that the assault was unprovoked or Van Veen was not consenting at least in the earlier stages to the fight. Thus these factors should not have been taken into account by the trial Judge. The consequence of his having done so is that it may be said there are grounds upon which his discretion has been improperly exercised.

With the benefit of hindsight we can say that it was unsafe for the trial Judge to sentence on the assumption that the assault was unprovoked or that there were no redeeming features. In sentencing on this assumption he acted in circumstances where it must be held he was mistaken as to the facts. The discretion should be exercised on the basis that

having become involved in a fight the appellant lost his

temper, used far more force than was necessary in the circumstances and occasioned actual bodily harm to Van Veen. An adequate sentence in our opinion is two years imprisonment with hard labour with a non-parole period of one year. It follows that the appeal against sentence will be

I certify that thisandthe &/ preceding pages are a true copy of the Reasons for Ju. uit herein of his Honour the Chief Judge, 51r Nagek Bowen # Aw

SMITHERS J.: The appellant Peter David Sorgenfrie was

convicted in the Supreme Court of the Australian Capital Territory on 29 August 1980 of assault occasioning actual bodily harm to one William Van Veen. He was sentenced to imprisonment with hard labour for three years, and a non-parole period was fixed of one year and four months. He

appeals to this court against both conviction and sentence.

On various grounds it 1s urged that the conviction should be set aside and a new trial ordered. It is said

(a) he misdirected the jury with respect to the weight to be given to an unsworn statement

(d) he did not accede to an application that the jury be discharged by reason of the failure of a Crown Witness to comply with his

The appellant was charged in the alternative with common assault. The charges against him were heard jointly with a charge against one Matthews, of common assault. The charges against the appellant and Matthews arose out of events which occurred in a plaza in Canberra in the A.C.T. on the night of

17 April 1979. It is common ground that at about 10.30 p.m.

on that night the appellant and a friend Brett Matthews were walking from a discoteque in Civic, a part of Canberra City, when they observed a young man and woman, namely, William Van Veen and Sally Glendenning sitting on a _ step. Matthews approached Van Veen, placed his hands on his shoulders and referred to Van Veen's companion as being a good looking girl. Van Veen took Matthews' conduct to be offensive and rose to his feet. There was a heated exchange between them whereupon the appellant intervened. A fight then developed, the appellant striking the first blow. Blows were exchanged for a

short period and Van Veen fell down at least once and the fight ended with Van Veen on the ground and the appellant on top of him delivering blows. The incident came to an end as police arrived and pulled the appellant off Van Veen. Van Veen suffered severe injuries to his face, teeth and eyes and

There was little dispute that save for the injury to the back of the head, these injuries were caused almost exclusively by blows delivered by the appellant. The defences were that they were delivered in self defence or that Van Veen consented thereto in the sense that he voluntarily joined ina

fight with the appellant and consented to receive the blows

The case for the Crown was supported by the evidence

of the events which occurred on the night in guestion as

experienced and observed by Van Veen, Miss Glendenning and a police officer, Sargeant King, and a record of interview between the appellant and C@rgeant King. The appellant called no witnesses and did not give evidence on oath but made an unsworn statement from the dock. The case for Matthews was

For reasons hereafter appearing it 1s my view that the grounds of appeal other than that relating to the direction concerning the unsSworn statement made by the appellant are not established. However, in my opinion there is substance to the ground concerning the unsworn statement. And that 1S because his Honour adopted a view concerning the role of an unsworn statement which, although in line with certain authority, is not in accordance with the weight of authority bearing more directly upon trials of indictable offences in the A.C.T. The issue depends upon whether according to his Honour's direction, the jury would understand that statements of fact made by the appellant in his unsworn Statements and relevant to the issues lacked probative value

In essence the basis of the appellant's submission 1s that his Honour directed the jury, 1n effect, although not in express terms, that statements of fact made by the appellant in his unsworn statement did not have probative

value although they might in some way be taken into account by

the jury in deciding issues before them. A direction to this effect immediately raises the question as to the manner in which, aS a practical exercise, the contents of the unsworn statement so far as they consist of statements of fact, can be taken into account by the jury. What use are they if they lack probative value? Where a direction concedes that statements of facts in an unsworn statement do have probative value a further direction that those statements are not evidence in the same sense as testimony on oath given from the witness box are evidence, but that they may be taken into account for what they are worth, causes no problem. Put in this traditional way facts stated in the unsworn statement are accorded the status of evidence, albeit evidence in a special sense. That special sense arises from what O'Connor J. calls the "infirmities" of an unsworn statement. It has not the

sanction of an oath and the prisoner who makes it is deeply

interested in asserting his innocence. (See Peacock v. King (1911) 13 C.L.R. 619 at p. 674) In addition the statements proceed under a pretence of full credibility whilst: taking shelter from the revealing light of cross-examination. Also

false unsworn statements will not sustain a charge of perjury.

With respect to evidence which suffers from these infirmities a direction that it be taken into account "for what it 1S worth" can be readily understood. Assessment of the worth of such evidence inevitably requires not only the

application of the usual tests to determine credibility such

as demeanour and probability, but also consideration of the infirmities themselves as affecting at least the prima facie

But if the direction 1s that the statements of fact lack probative value then in attempting to take. them into account, the jury face a difficult intellectual problem, likely, in the absence of further direction to be resolved by

some kind of guess work or by ignoring them altogether.

The view that assertions of fact contained in an unsworn statement are not evidence has, as pointed out by

Windeyer J. in Bridge v. The Queen (1964-1965) 38 A.L.J.R. 280

at p. 284, been much discussed. See R. v. Riley (1940) 40 S.R. (N.S.W.) 111, R. v. Kelly (1946) 46 S.R. (N.S.W.) 344;

v. McKenna (1951) St. R. Q'd. 299, and in South Africa in R.

v. Woolridge (1956) 1 S.A. 5; also Cross on Evidence 2nd Ed.

(1963) pp. 163-164, Cowen & Carter, Essays on the Laws of

Evidence (1956) pp. 209-218. Expressing the view that the statements of fact are not evidence, in the most categorical form, 1S the observation of Townley J. speaking for the Full

Court in R. v. McKenna (Supra) at p. 307 as follows:-

"In my opinion an examination of the authorities quoted and of others leads to the conclusion that in Queensland an unsworn statement by an accused person is not evidence. It should be accorded persuasive rather than probative force. The practice has grown up of allowing a prisoner to make Statements of fact but those statements are

not evidence of the facts stated. Such statements of fact have come to be regarded

as something less than evidence but something more than mere argument.

It follows that I think the learned trial judge was correct in telling the jury that the appellant's statement was not evidence of the facts stated. I think he was also entitled to tell them the statement was

It may be observed that a direction to the jury that an unsworn statement 1S less than evidence, but more than argument which without more would leave a jury in an impossible position. The Jury would inevitably be faced with the intellectual problem of devining just what was the Significance of the statement and how to deal with 1t. For such a matter to remain in a state of uncertainty would not be compatible with the rational performance of the jury's task. In R. v. McKenna (supra) it was a central consideration in the reasons of the Court that so far as Queensland was concerned, the making of an unsworn statement proceeded without statutory authority. It was pointed out that, unlike corresponding provisions in other states the Queensland statute permitting a prisoner tO give evidence on oath did not provide for the retention by accused persons of the privilege of making an unsworn Statement. The Court took the view that the procedure, although well established, of permitting a prisoner to make such a statement was but a continuation as a matter of

practice of the previous Common Law procedure. The Court took

the further view that at Common Law the unsworn statement of the prisoner was not evidence. Accordingly the unsworn statements made as a matter of practice was not evidence. It would seem however, that this was not the universal view at Common Law. Thus as early as 1837 Lord Coleridge in Reg. v. Beard (1837) C & P 142 held that a prisoner unrepresented by counsel might "tell his own story which 1s to have such weight with the jury as all circumstances (sic) considered it is entitled to." Further in R. v. Shimmin (1882) 15 Cox C.C. 122

at p. 124 Cave J. after consulting with his brother judges

"'A prisoner ... ought to be heard in his defence, and have the opportunity of making his explanation of the circumstances proved against him. True his statement was not made on oath, and he was not liable to be cross-examined by the prosecuting counsel, and what he said was therefore not entitled to the same weight as sworn testimony. Still it was entitled to such consideration as the jury might think 1t deserved ...'

This means, clearly enough, [as the learned authors of unsworn statements by accused persons, Essays on the Law of Evidence, comment] that the unsworn statement may be received into the body of proof, although its weight will be less than that of sworn evidence."

Particularly upon the observations of Windeyer J. in R. v.

Morrison (1889) 10 L.R. N.S.W. 197 and the decision of the Full Court of New South Wales in R. v. Tyford (1893) 14 L.R.

N.S.W. 5. In this latter case the Court said that the unsworn

"cannot be regarded in the nature of evidence, as we understand the word 'evidence' in Courts of Justice. The statement is not upon oath nor is the

The same class of comment appears in, R. v. Kelly (1940)

S.R. N.S.W. 244. However, a further decision on the subject

in the Full Court of New South Wales is that in R. v. Riley (1940) 40 S.R. N.S.W. 111 at p. 115 1t was said by Jordan C.J.

"In R. v. Morrison (Supra at p. 206) the view was expressed by this Court that the section which is now s.405 of the Crimes Act, 1900, 'really does nothing more than make permissible when a prisoner is defended, a statement which he would be at liberty to make at common law if he were not defended.' It is in that case pointed out that formerly prisoners were not allowed to be defended by counsel, or themselves to give evidence as witnesses. They were however, allowed to make an unSworn statement. This statement was not evidence in the ordinary sense, because it was unsworn. It was, therefore, not entitled to the same weight as sworn

testimony. Still, it was entitled to such consideration as the jury might think it deserved. 'Tt would be against justice and

utterly impossible to prevent the jury from taking that statement into consideration for what 1t was worth': ibid p.207; R. v. Shimmin (supra); Brown v. R. 17 C.L.R. 570 at 587. In Peacock v. R. 13 C.L.R. 619 at 640 Griffith C.J. said: 'The proper direction to be given, 1t seems to me, 1S this: that the jury should take the prisoner's statement as Prima facie as possible version of the facts and consider it with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established by evidence.'

This being the position in New South Wales, can such a statement be regarded as 'proof' within the meaning of s.60? The late Mr. Phipson in his treatise on the Law of Evidence 7th ed., p.l defines proof as the establishment of a material fact by proper legal means to the satisfaction of the Court:

definition appears to be accurate so far as 1t goes. As a general rule, no material can be placed before a Court to establish a fact unless it is verified by oath. The Legislature may, however, 1f it chooses, depart from this general rule too any extent that it considers desirable.

The Legislature of New South Wales has thought fit to provide that an unsworn statement may be made by an accused person before the jury who are trying him. In our opinion this must be regarded as 'proof' in the sense of material to which the jury are entitled to give such weight as they think it deserves, for the purpose of determining whether the accused person had a lawful excuse within the meaning of s. 60? There 18 nothing in the section which states either expressly or impliedly that proof may be given only by sworn testimony."

Brown 17 C.L.R. 570 at 587 1t was observed by Isaacs

"The provision waS a compromise. On the one hand it avoided compulsion and on the other 1t allowed the accused to place his personal explanation or contradiction of the Crown case before the jury, but only as an unsworn

In R. v. See Lun and Welsh (1932) 49 W.N. 116 it was decided by the Court of Criminal Appeal per Davidson and James JJ, Streck C.J. dissenting, that when the accused referred to an article namely an o11 drum, in the course of making his unsworn statement the drum should be marked and admitted for the inspection and consideration of the jury. In the reasons for judgment it was said by Davidson J. speaking of ss.405 and

"It appears to me from this legislation that an accused person was given the privilege of being able to bring to the notice of the jury and for their consideration all facts relevant to his defence to which he could depose if he went into the witness box but without having to state them on oath. If he were denied the right to refer to some article of which he could only secure the benefit by enabling the jury to look at it and compare it with objects or other facts in evidence against him he would have no real opportunity of stating the facts of his case at all.

Assume for instance that the defence in a case of stealing was that the accused had bought and paid for the article in question and has been given a receipt from the prosecutor which had been lost. He would no doubt be disbelieved. But if at the time when he was entitled to make a statement from the dock in his defence the document was found and produced to him, and if he could not show it to the jury without going into the box he would be deprived either of his defence or of his right under that statute to refrain from giving evidence on oath."

In Peacock v. The King (1911) 13 C.L.R.619 Barton J. expressed

the view that where the prisoner makes an unsworn statement

"he is entitled to have his statement considered by the jury, not only where it gives an explanation consistent with the assertions of fact sworn to by the prosecution, but where it flatly contradicts such assertions by its own."

Court was dealing with an unsworn statement made pursuant to the Victorian Crimes Act 1891 which authorised the accused to make an unsworn "Statement of facts", and provided that such statement could be made "ain lieu of or in addition to any evidence on his behalf". Accordingly 1t may be said, as was said in R. v. McKenna (supra) that the conclusions of the Court in Peacock's Case lack significance where it 1S made under different legislation or merely as a matter of judicially permitted procedure. However, s.405 of the Crimes Act of New South Wales which was the statutory provision

pursuant to which the unsworn statement considered in R. v.

Riley (supra) and R. v. See Lun (Supra) were made contain no provision beyond the mere authority for the making of such

405. Statement and address to jury by accused. (1) every accused person on his trial, whether defended by counsel or not, May make any statement at the close of the case for the prosecution, and before calling any witness in his defence, without being liable to examination thereupon by counsel for the Crown, or by the Court, and may

thereafter, personally or by his counsel, address the jury.

(2) Accused may open his case before calling witnesses. Where the accused intends to give evidence or to call any witness or witnesses un support of the defence the accused or his counsel shall be entitled to open the case for the defence before calling his evidence."

It is this section as applicable to trials of offences in the Australian Capital Territory which was applicable to the trial

of the appellant. It is to be noted that s.407 of the New South Wales Crimes Act 1900 as applicable in the Australian Capital Territory was repealed in 1971. But in its place s.74 of the Evidence Ordinance 1971 was enacted. That section

"74. (1) On the trial of an indictable offence, the failure of the person charged or his spouse to give evidence shall not be made the subject of comment by counsel for the

(a) two or more persons are being tried together for an indictable offence; and

of those persons on the failure of any of those persons or of the spouse of any of those persons to give evidence,

the judge may make such observations to the jury in regard to the comment or the failure to give evidence as he thinks fit."

In the application of those provisions in accordance

with the principles enunciated in R. v. Shimmin (supra) and R.

v. Riley (supra) the Court is able to give to the jury "a

direction based squarely on the character of such [unsworn]

14, statements as evidence, but directing attention, as affecting

their quality, to the fact that they are unsworn and have not

been subjected to cross-examination" which, "1s, in our

opinion, preferable as candidly factual and more informative

to the jury". See Masnec v. The Queen (1962) Tas. L.R. 254 at

Once it is conceded that statements of fact in an unsworn statement may, if believed, constitute proof of the facts stated then the observations of Barton J. in Peacock v. The King (supra) at p. 647 are necessarily applicable. It seems to me that there is no half way house and that to avoid intellectual uncertainties on the part of the jury in the performance of their task and to ensure that an informative and practical approach which is fundamental to the working of

the system, those observations require to be implemented.

"Tt follows then from the terms of the section that the accused is entitled to have his statement considered by the jury not only where 1t gives an explanation consistent with the assertions of fact sworn for the prosecution, but where it flatly contradicts such assertions by 1ts own. It is the right of the accused 1n such circumstances that the jury be asked to decide how much credence they will give 1t where the two sides are in absolute conflict. They may conclude that it 1S not worthy of any weight at all. On the other hand, from observations of the utterances and demeanour of the opposing witnesses, they may conclude unsworn though it 18, that it outweighs their testimony, or at any rate that 1t raises a reasonable doubt

• and in either of the two latter views they

may and ought to acquit. Such being the Statutory right of the accused, the question

is whether the direction of the learned Chief Justice assured it to him."

Griffith C.J. adopted by the Full Court of New South Wales in

Having regard to the foregoing it is my opinion that the trial in the Australian Capital Territory of the offences for which the appellant was tried it was necessary that the jury should be directed that statements of fact in the appellant's unsworn statement, were to be considered as

evidence of the facts stated and given such weight, alongside

the other evidence, as the jury might, in all the circumstances and having regard to its inherent "infirmities", consider 1t to be entitled. Whether any such statements would be believed would of course depend on whether it was, in itself regarded as credible by the jury, and whether although otherwise credible it might be contradicted by other evidence more credible. But the evaluation of the credibility of what waS said in the unsworn statement, inherently in itself, or in competition with other evidence supporting a contrary inference or fact, would be for the jury. But nevertheless in some circumstances a jury acting properly and sensibly might believe the unsworn statement of the prisoner rather than the sworn evidence of some other witness. It 1S always possible

that the truth may be spoken from the dock and falsehoods from

I turn therefore to the question of whether the jury would have understood from the summing up that the statements of fact in the appellant's unsworn statement did not have probative value. For this purpose, because of the nature of

the issues under consideration in this appeal 1t 1S necessary to set out certain of the evidence in some detail. The learned Judge in his summing up to the jury dealt with the incident in three parts, namely the start of the incident, what happened during the central part of 1t, and what occurred in the latter part of it. It is convenient to adopt this

sitting on a step as the appellant and Matthews came towards them from the direction of a discotheque known as "AJ's". He

"One of them, Mr Mathews, said something to Sally. I am not certain what he said. He faced me and put both his hands on my shoulders, the palms of his hands. I brushed his arms off and stood up and said words to the effect, 'what is your problem?' He then put his arms on my Shoulders again and said, "I was just saying what a good looking bird you had' or words to that effect. As he put his hands on my shoulders he shook me. I was standing at that stage. I brushed his arms off again, told him to back off and that I did not want any trouble. An argument broke out, the exact context I cannot remember, for maybe 30 seconds. It involved Mr Mathews. Sorgenfrie was to my right and Mathews to the

I told him I did not want any trouble. He started arguing and he pushed me again. I proceeded to take my coat off. I had it in my right hand and was looking for somewhere

on the stairs to lay it. I was not even looking at him at that stage and he struck me in the left eye. It was solid. It was

Sergeant King said that he spoke to the appellant, told him that Van Veen had received three broken teeth and injuries to

his eye and forehead and asked, "can you tell me anything

about this assault?" and the following passage occurred,

"Is he that bad? I didn't do that, did I? TI believe in giving a bloke a punch, but I must have got carried away". I said, "Peter, I want to ask you some questions', Van Veen has told me that he was sitting on a ledge

outside a shop in AJ's when he first saw you, is that correct?

Sorgenfrie said: Yeah, me and my mate walked past him and his bird,

I said "He also said that you both stopped and one of you leant down and took hold of his shoulders, 1s that correct? He said, "Yeah, that was me mate Brett Mathews."

I said, 'After Brett took hold off your shoulders what happened next?' He said,

'This bloke jumped up and started bouncing around and threatening us'.

I said, 'What do you mean by "threatening us"' He said, 'You know, 1f we didn't move he'd do us'.

I said, 'Why did Brett take hold of his shoulders?! he said, 'Just to tell him what a good looking bird he had'.

go away and to leave him and his girl alone. Is that correct?

Sorgenfrie said, 'No such thing, he was jumping around and wanting to fight'.

I said, 'Van Veen has stated that the bigger one of the two said something to the effect

of, 'Stand aside and I'll take care of this. Let's see how good this cunt is'",

Sorgenfrie said, 'Yeah, that could be right, I threw the first punch, I'll admit that."

As to this part of the incident the version of the appellant contained in his unsworn statement was that he met his friend

Matthews at "AJ's" where they had a couple of drinks -

«+. and then we left there and we come up the stairs. Brett was on my right hand side. We turned right at the top of the stairs. We were walking towards the car park and there was a woman and a man sitting on the step and as we were waklking past my friend Brett Mathews leant over and rested his hands on the man's shoulders and he give him a compliment on his girlfriend. He said what a good looking bird he had.

With this this bloke just jumped up and Started jumping around ready to fight and that and I seen this happening and I tried to get between 1t to break 1t up. I did manage to break it up and that and I called this bloke a maggot and asked him what sort of bloke he was. All my mate did was give him a compliment on his girlfriend and you want to punch his head in. And with this the bloke started jumping at me and bouncing, you know, shaped his fists up and that and I thought he waS going to hit me so I hit him first..."

As to the second part of the incident that is, from the time

of the first blow, the evidence of Van Veen was as appears in

"Sorgenfrie grabbed me by the shirt and pulled me backwards and started hitting me to my face and body area."

Q. When you were struck those further blows what were you doing?

A. I was moving backwards at that Stage. The smaller one of the two then began hitting me as well. I was trying to defend myself. I could not do much because I was really - I was stunned. I was just - I Just kept moving backwards. I can remember Sally trying to drag one of them off me and Saying, 'Get away from him' and I can vaguely remember again one of them grabbing her. I am not certain which one and flung her up against the wall. I am pretty sure the smaller one of the two grabbed Sally. After Sally was pushed away I was knocked to the ground.

A. Being stunned, a combination of blows and possibly tripping.

• Managed to stand up. I can remember the bigger one of the two being a slight distance away from me, possibly a metre and a half, and he came in for me again and that 1s when I hit him. After I hit Mr. Sorgenfrie I was knocked to the ground again."

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Q. You say you got up again and you hit Mr. Sorgenfrie?

. A. I could have done, yes. Q. you would agree with me you hit him

Q. I put it to you, Mr. Van Veen, that immediately before you hit him in the head he said to you, that is, Mr. Sorgenfrie said, 'Have you had enough. Do you want to call it quits or what? And the answer, 'No definitely not'.

The evidence of Sergeant King concerning the second and third

parts of the incident was contained in the following passage:-

""After you threw the first punch, what happened?' --- 'I threw some punches and we rolled around I know me mate butted in and I pushed him away.' I said, 'Where did you punch this person?' He said, 'Everywhere. Around the head and everywhere.' I said,

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'Upon my arrival I saw you punching into Van Veen when he was lying on the ground. Do you deny this?' He said, 'No, I was out to win.' 'Do you consider you lost your temper?' He said, 'Yeah, I guess I did when you put it like that.' 'Do you clearly recall punching Van Veen around the face?' --- 'It was a blue, mate. You're out to win. you're out to get him before he gets you.' 'How did you injure the knuckles on your right hand' --- 'All I could say is in the fight.'

Van Veen also claims that whilst you were punching him he was struck from behind in the back of the head. Do you know who struck that blow?

Not by me. I know my mate stepped in but I threw him out of it.

'Would you know how many times you struck Van Veen? ~--- I have no idea. I just kept punching.'

Peter, I am of the opinion that you are the person responsible for cauSing injuries to Van Veen and I am therefore going to charge you with assault occasioning actual bodily harm. Do you understand? --- Yes, I guess I just went a bit too far."

The appellant's version of these two parts of the incident

were contained in his unsworn statement in the following

at each other, both on our feet and while we were fighting I noticed a bit of blood running out of his nose and I asked him 1f he wanted to call the fight quits or what.

As I waS saying he sort of hit me in the head, hit me, you know, pretty hard, and I

just sort of lost my temper with him and just kept hitting him. In that, while that was

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charges. Thank you." The evidence of Van Veen as to the third part was that he fell to the ground a second time and the appellant started hitting

. From the above 1t appears with respect to phase one of the incident Van Veen's version was that he was punched when he had punched no one and his most aggressive act was to take off his coat. The appellant's version in substance was that after verbal conflict between Mathews and Van Veen, Van Veen danced around, flung his arms and acted in such a way that the appellant thought he should intervene to protect Mathews and that after or during argument between himself and Van Veen and more aggressive dancing around and swinging of arms, Van Veen clearly indicated that he intended to fight by

taking off his coat and laying it to one side, and as the

appellant said, "I thought he was going to hit me so I hit him

consent the learned Judge stated to the jury the substance of

. 23. the evidence of Van Veen, Sargeant King and the evidence of Miss Glendenning. But save that he read to the jury the appellant's unsworn statement in the circumstances mentioned hereafter, he did not discuss with the jury any of its contents or their significance. The circumstances referred to are that after the jury had been asked to retire and consider their verdict and had retired, counsel for the appellant sought 'a redirection with respect to certain alleged

inconsistencies in the evidence of the witnesses for the Crown

HIS HONOUR: Well, gentlemen, you have protected your rights in that respect. I decline to re-direct them on that matter. There is, however, one matter on which I would give them a re-direction if you sought it, and that is, I would read to them the respective statements made by the accused in court today.

MR LEAHY: Yes, well that might be appropriate, your Honour.

HIS HONOUR: Would you have anything to say to that, Mr Crown?

MR BUXTON: No, your Honour. It is, your Honour, the practice of judges in the territory to read the statement.

HIS HONOUR: Yes. I am prepared to do so, I do not know that 1t 1s necessary, but I

am prepared to do so. Would you bring the jury back please."

"Members of the jury, I had not read to you when I sent you out to consider your verdict,

RSC ete iain isnt ntniadne ites ean RAEREAEANSRC ie eroT AS et PAWEL cS nA CST. Laat, TET.

the two statements which were made by each of the accused to you from their places in the court room today. It seems to me that as I have given you some extensive passages from the evidence of the prosecution which came some time earlier than these two statements, it would be desirable for me to refresh your member of what waS sald in these two statements.

You will understand that these statements are not evidence in the sense that the other pieces of evidence given from the witness box are evidence. They are not subject to cross-examination and testing in that way but they are nonetheless material which you are

entitled to take into account in considering your verdict."

His Honour then read the unsworn statements of the appellant and Mathews and without further comment asked the jury to

"Your verdict must be arrived at my determining dispassionately whether the Crown has proved that the accused committed the offence charged in the indictment. Or, in the case of Sorgenfrie either of those offences. You will note that the question for your determination is whether the Crown has proved that the accused committed a particular offence. It is not for the accused to prove his innocence. It is for the Crown to prove his guilt. The accused is presumed to be annocent unless and until the Crown proves his guilt.

The way in which the Crown seeks to prove guilt is by evidence. That is by calling witnesses to give evidence in the witness box here or by tendering the photographs which you will have in the jury room or other pieces of evidence that might have been available and you can inspect the exhibits which are the photographs to whatever

extent you wish in the jury room. Neither guestions asked by counsel nor submissions made by counsel are evidence in the case. When

counsel put to Mr. Van Veen, for example, that Mr. Sorgenfrie said during the incident have you had enough? Do you want to call it quits or what? And that proposition was categorically denied by Mr. Van Veen that is no evidence at all that those words or words of that kind were said.

The evidence Of a witness is not to be found in the questions asked of him but in the answers given by him. Submisssions then are made by counsel upon the evidence, inviting you to find the facts according to the submissions made but the place for evidence to come from is the witness box, not from the bar table. So you will distinguish between the evidence that 15 given from the witness box and the submissions that are made from the bar table. You will have the evidence to consider in the course of determining .your verdict. The accused being under no

obligation to prove his innocence need call no evidence.

In this case each of the accused made an unsworn Statement as he is entitled to do. That statement is not evidence in the sense that evidence from the witness box or the exhibits that have been tendered are evidence. Nevertheless, though each statement was not a sworn Statement and though it could not be tested on cross-examination you are entitled to consider it as a possible explanation of the facts of the case. And you may take it into account with the evidence in the case, giving it such weight as you think it should have in comparison with the

It will be for you to say whether you are prepared to rely beyond reasonable doubt on the evidence of any witness whose evidence tends to establish the guilt of the accused.

Now in considering the evidence in this case, members of the jury, you have had some sworn testimony from the two persons who were immediately involved in the events of the night

of 17 April, namely Mr. Van Veen and Miss Glendenning.

sieliialtcsicn test DNIEL IE Dire ie UL 8 ER RNG TE ate oped YOR HARA SAR AN CARAS A IE NNN BE EEN CI CE

To a certain extent, at the end of that affair Sergeant King was also involved. But considering first Mr. Van Veen and Miss Glendenning, what did you think of the evidence which they gave? Do you have any reasonable doubt as to, first, their ability to tell the truth, and secondly, their desire to tell the truth, and finally, whether what they told you was their best endeavours to tell the truth as they knew it to be. Those are matters for you to consider.

There is this, I think, that I should say about the evidence in this case with respect to each of the accused. The evidence falls generally into two parts, one 1S evidence of what happened in the plaza area on the night of 17 April and then,

accused said to the police officers in the police station that night."

After indictating to the jury that the defences raised were

question of self defence and the guestion of whether more force was used than necessary for

the purpose of repelling an attack. Those are the suggested defences which you should consider, but you have to look at the evidence and see whether there is any evidence there which leads you to have a reasonable doubt about any of those suggested offences. I shall come to the evidence

in a moment." It appears quite clearly from the above that his Honour was proceeding in accordance with the view that the contents of the unsworn statement of the appellant did not have probative value. The statement that the contents of an unsSworn Statement is not evidence in the sense that evidence on oath from the witness box 1s evidence is one that has been

made to juries for many years. But the sense in which the

. 27. unsworn statement, as evidence, differs from the sworn statement made in the witness box, as evidence, is not that the former lacks probative value if believed, but that because of its "infirmities" referred to above, 1tS capacity to evoke belief is, ex facie, less potent than if a statement made on oath in the witness box. It is clear from the foregoing that his Honour did not regard the contents of the unsworn statement as evidence of the facts stated therein in the sense that if believed, the facts stated could be taken to be proved. In the context of the fourth paragraph of the extract from the summing up cited above, after stating that the unsworn Statement is not evidence in the same sense that evidence from the witness box or the exhibits that have been tendered are evidence, the notion that the unsworn statement is of probative value begins to recede. It is said that the jury 1S entitled to consider it as a possible "explanation" of the facts of the case. The jury 1s told that it may take the unsworn statement into account "with the evidence" in the cases. At this stage the unsworn statement is separate from what is regarded as evidence. It may give it such weight as it thinks it should have in comparison with "the facts which you find to be proved by the evidence". In these words there lurks the notion that certain facts have been proved without regard to the unsworn statement. But 1£ the contents of the unsworn statement conflict with the evidence referred to, 1t is a nice question what is the role of the unsworn statement?

With relation to the summing up in this case the important

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. 28. factor 1s that the jury waS presented with the concept of that which 1S evidence, namely the sworn evidence and the exhibits, and of something other than evidence,which 1S to be taken into account with the evidence. It 1S this concept which 15s embodied in the final sentence ~ "As he did not [go into the witness box and submit himself to cross examination] the only evidence you have is the evidence of the Crown witnesses and the exhzbits". It 1s this sentence which qualifies in a vital way the earlier comments about the two senses in which the expression "evidence" is to be understood. But for this sentence the actual direction might have been interpreted as directing a taking into account of the unsworn statement as evidence for what it was worth. But this sentence indicates that that 1s not what the learned judge meant. The sentence itself 1s quite unequivocal in this respect, and, that his Honour intended it to be understood according to its terms is confirmed by the manner in which he dealt with the "evidence". According to this sentence the unsworn statement does not rank as evidence in the sense in which that term is used in relation to the task of the jury in considering whether on the evidence the Crown had proved the elements of the offences charged. His Honour ommitted to discuss with the jury in relation to the issues, any of the statements of fact contained in the unsworn statement. It 1s confirmed also by the fact that even although, in the discussion of the evidence, those statements are not placed before the jury His

Honour expressed the view that 1t wasS unnecessary to read the

statement to the jury. The course taken by his Honour was consistent with the view expressed in some authorites, but not aS I have indicated with those which I think must govern the

It 1s clear that the statement by the appellant that

he thought Van Veen was about to attack him and therefore he hit him- first, went directly to the issue of self defence. Yet, it was not mentioned to the jury although most of the details of sworn evidence as to the commencement of the faght, were mentioned. This could only be on the basis that the unsworn statement had no probative value, was not evidence in the sense that that word was used by the learned Judge in relation to the proof of the relevant facts. The same appears from the reference in the summing up to the issue as to

whether, at one stage, the appellant said words to Van Veen such as "have you had enough? Do you want to call it guits?" referred to above. It was no doubt quite correct to tell the jury that counsel's question and Van Veen's denial that the words were said was no evidence that such words were said. But save in-the formal reading of the statement when the jury was recalled, the summing up does not come back to the matter and it is never stated, in any discussion with the jury on the issue of self defence, that in his unsworn statement the appellant did say that while they were fighting he noticed blood running out of Van Veen's nose and he asked him if he

wanted "to call the fight quits or what?" and that as he was

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Saving this Van Veen "sort of hit me in the head, hit me, you know, pretty hard". Such an incident 1f 1t occurred would be very relevant to the issue of self defence. But again its significance as such was not discussed and no doubt because of

the view that the unsworn statement was not evidence.

To fail to direct the jury that the statements of fact in.the unsworn statement were evidence, albeit with the infirmities mentioned, was an error of law. Had the trial Judge considered the unsworn statement to be evidence having probative value 1f believed, 1t was essential that the jury be directed with reference to each defence that such evidence may have supported. In a case of the nature of this one this requirement would persist notwithstanding a failure by counsel

to seek a direction. This principle was recently affirmed in

a unanimous decision of the Full Court of the High Court of Australia in Howe v. The Queen (1981) 55 A.L.J.R. 5 at p.7

"The essential question here is whether the trial judge should have perceived that an issue based on s.247 was fairly raised on the evidence. With respect, we think he should have done so, The appropriate principle is that stated by Barwick C.J. in Pemble v. The Queen (1971) 107 at pp. 117-118 as follows:-

'Whatever course counse] may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interests of his client, the trial judge Must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the

possible use of the relevant facts upon any Matter upon which the jury could in the circumstances of the case upon the material

before them find or base a verdict in whole Or in part.' "

It wasS a consequence of the course taken that the case for the defence, so far as reference to the evidence by which that case was said by the defence to be supported, was not put to the jury. It led also to the absence of any consideration as to whether during the incident the role of aggressor may have passed from the appellant to Van Veen. The significance of the appellant's statement that he asked Van Veen if he would like to call it quits is not discussed because it is treated as not being evidence. In this respect 1t 15S significant that not only is that statement of the appellant not put before the jury as part of the unsworn statement, but in that part of the summing up referred to above where the cross-examination on the matter is referred to, it 1s referred to as an example of something of which there was no evidence at all. In addition, there was no consideration as to whether in that event the reaction of the appellant was out of proportion to the fear of attack by Van Veen. See Helmhout v. The Queen No. F.C. 6 of 1980, an unreported decision of the Full Court of the Federal Court of Australia, dated 20 October 1980. As hereinafter appears the omission of the last matter 1s not of ultimate importance. But on the terms of the unsworn statement

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Accordingly, the error had quite important consequences in relation to the consideration by the jury of the issues. In these circumstances the problem before this Court is whether a new trial should be ordered. It was pointed out in the unanimous judgment of the High Court in Simic v. The Queen (1980) 54 A.L.J.R. 406 at p. 409 that the test, as to

whether, in the case of a mis-statement as to the effect of

evidence expounded in R. v. Legatt (1971) V.R. 705, an appeal

against conviction should be allowed, was that the Court should

be satisfied that it 1S probable that but for the mis-statement the jury would not have returned the verdict 1t did, and it

"The test thus stated 1s less favourable to an appellant than that which is applied in cases where there haS been a wrong decision of a question of law -- cases that would include those in which there has been a misdirection as to the law or in which evidence has been improperly admitted or rejected. Some of the statements of the principle to be applied in cases of that kind are collected in Mraz v. The Queen (1955) 93, C.L.R. 493, at pp. 514-515. In such a case the Crown must establish that if there had been no error the jury would (or must) have come to the same conclusion. According to the test approved in R. v. Legatt, the appellant has the burden of showing that the mis-statement probably affected the verdict, whereas in the case of an error of

law the appeal will be allowed unless the Crown shows that the error did not affect the verdict."

It would seem that in this case the circumstances call for the

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. 33. relevant incident is of assistance. So far as the first phase 1s concerned it is my opinion that the omission to bring before the jury the statement of the appellant that he thought that Van Veen had acted in a way by gestures and taking off his coat, which caused the appellant to think that Van Veen was about to attack him, and that he hit him first for this reason waS an omission of a vital nature. It may well be that this version of the facts would not have been accepted by the jury but it might have been or at least have induced a

reasonable doubt as to whether the Crown had negatived self

Accordingly in my view the Crown cannot show that the jury would have been satisfied beyond reasonable doubt that in relation to the first phase of the incident the

appellant did not act in self defence or that Van Veen did not

consent to fight. It would seem also that the same considerations apply to the second phase of the incident. But as to the third phase the situation is different. True it 15 that the appellant said that, at one stage, which may be regarded as*the commencement of the third phase, he asked Van Veen if he wanted to call it quits and that he was answered by a hard blow to the head. It is quite arguable that this exchange of words and conduct caused Van Veen to adopt a

beligerent role to which the appellant reasonably considered

that he should defend himself. Owlng to the course of the

trial this issue was not presented. This was because the

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statement that the words were said and that Van Veen replied by a blow, being contained only in the unsworn statement, was never put to the jury as forming part of the evidence they had to consider. There was therefore an important omission in putting to the jury the case for the appellant. However, it is argued by the Crown that even had this case been put fully before the jury the verdict must have inevitably been one of guilty.- It is said that the jury could not, on the evidence, have failed to be satisfied beyond reasonable doubt that in the third phase of the incident the appellant was not engaged in self defence nor did Van Veen consent to what he did. It is said that this conclusion must follow from the terms of the unsworn statements and other evidence particularly that of Sergeant King both as to what he saw and what the appellant said to him and the omission of the appellant to contest the vital parts of Sergeant King's evidence. I accept this contention. After referring to the exchange of words and blows referred to above, the appellant, in his unsworn Statement States, "I just sort of lost my temper with him and just kept hitting him." After referring to his pushing Mathews out of the way the statement continues, "The next thing I knew the police were there and dragged us off". This description of events covers the time from when, as_ the appellant alleged in his unsworn statement, Van Veen replied to the suggestion of a truce with a blow, until the time when the appellant was dragged off Van Veen. It describes a bout

of continuous hitting which caused Van Veen to go to the

ground and persisted until the police dragged the appellant from on top of Van Veen. How long that was 1S not stated but 1t was long enough for the Sergeant in the police car to observe Mathews and the Appellant, neither of whom he knew, with the appellant on top of Van Veen, hitting him, to bring the police car to a halt and run to the scene some twenty

yards away. Sergeant King stated that following passage

Q. Upon my arrival I saw you punching into Van Veen when he was lying on the ground. Do you deny this?

Q. Do you clearly recall punching Van Veen around the face?

A. It was a blue mate. You're out to win. You're out to get him before he gets you.

From the above and from the absence of any qualification of this in the unsworn statement there can be no doubt that in the third phase of the incident the appellant was acting through loss of temper and continued punching accordingly for some appreciable time including the time when such blows were quite unnecessary, Van Veen being on the ground. It is beyond doubt that numerous blows were struck when Van Veen was on the

ground and more would have been struck but for the police

' 36. intervention. It cannot be doubted that some of the actual

bodily harm suffered by Van Veen was suffered while he was on

Having regard to the foregoing I am quite satisfied that had the summing up been in quite unexceptional terms the

jury would (must) have returned the verdict of "guilty".

It 1S unnecessary to consider in detail the other grounds of appeal. It is clear that they relate to alleged errors which, even if established were of much less significance than the matters alleged in the first ground of appeal. So far as they relate to the matters of fact the onus would lie upon the appellant to show to the Court that it was probable that but for the matter complained about the jury

would not have returned the verdict they did. See R. v.

Legatt (1971) V.R. 705 at 708 and Simic v. The Queen (1980) 54

A.L.J.R. 406. So far as they relate to the matters of law,

the Crown would be required to satisfy that the alleged

errors, if they were made, did not affect the verdict.

For the same reasons as have satisfied me that had the summing up been in unexceptional terms the jury must have returned a verdict of guilty, it 1S apparent that the appellant could not carry the onus resting upon him and the Crown must succeed in satisfying the Court, that even if the

errors alleged by the appellant were made, the verdict must

have been guilty. The appeal against conviction must

There 1S in this case an appeal also against sentence. If the situation were that the appellant should be regarded as having been found guilty of deliberately attacking a peaceful citizen and causing serious injuries for the mere satisfaction of so doing one would hesitate long before concluding that the sentence of three years imprisonment with

hard labour with a non-parole period of one year and four months was excessive. But in the light of the discussion above' the finding of the jury to this effect, although probably made, could not stand, because there was a fatal error in law in the direction to them in relation to phase one and two of the incident. In relation to the third phase there was an error of law but it was not fatal because of the great weight and nature of the evidence against the appellant on the critical issues. When therefore one comes to the question of sentence, one is forced to ask what, in substance, is the crime which can be regarded as having been proved according to law against- the appellant. In form it 1s that he was guilty of assault occasioning actual bodily harm. But in substance it 1s that being involved in a fight he lost his temper and used force well beyond what was proportionate to any peril

reasonably feared by him and that in doing so he occasioned

actual bodily harm to Van Veen. This 1s the only unlawful

In a verdict of this class like that of guilty of manslaughter 1t 1S not always possible to divine the basis upon which the verdict 1s based. Thus "guilty of manslaughter" may sometimes mean either provocation or manslaughter as the result of an unlawful act, by wilful

violence or merely culpable negligence. Thus in R. v. Doherty

"I£, gentlemen, you convict the prisoner of manslaughter, I must ask you to be good enough to say whether you mean manslaughter by violence wilfully inflicted or by culpable negligence, for of course it will make a considerable difference in the punishment." Similarly in the case of certain drug offences, the jury may have been told that the accused's ignorance of the precise

nature of the tablets was as a matter of law immaterial, but

no one would deny its relevance on the question of sentence.

In this case if any such question had been asked and the jury had said that it was satisfied of the applicant's guilt in respect of phase one or two of the incident the finding could not stand. But, for reasons stated above, the appellant might have been sentenced in respect of phase three.

In sentencing the appellant the learned Judge said:-

"But the offence of which you have been convicted demands that you be imprisoned for a substantial period. You attacked Van Veen without provocation. As he was bending down you struck

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him a severe blow. When you and your companion, after you had both attacked him, had driven him

thrash him and you did him a substantial injury. There are no redeeming features in the

and violent ..." It 1S apparent that his Honour interpreted the verdict as a finding that the appellant had gratuitously initiated the incident by violently attacking Van Veen. But this was the issue on which the appellant's "evidence"™ had not been before the jury and a finding on which would if made have been a finding arrived at on inadequate materials and thus not sustainable. It is highly likely that his Honour correctly Interpreted the verdict but the verdict, so far as it related to phases one and two, was undermined by the course taken 1n respect of the statements in the unsworn statement. In the present case, therefore, the proper course is to consider what sentence would be proper for the unjustified violence used by the appellant arising from his loss of temper in the course of

I consider that the period of imprisonment imposed by the trial Judge for the offence which he believed to have been proved was moderate in the circumstances. Therefore although I believe a substantial reduction in sentence 1s in order the magnitude of the reduction is less than it would otherwise have been. I concur with the sentence imposed according to the reasons of the Chief Judge and Fisher J.,

namely, that the sentence imposed by the learned Judge should

be reduced to imprisonment with hard labour for two years with

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