Carter v The King

Case [2024] SASCA 140

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

CARTER v THE KING

[2024] SASCA 140

Judgment of the Court of Appeal  

(The Honourable Justice S Doyle, the Honourable Justice Stanley and the Honourable Justice Stein)

5 December 2024

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL

CRIMINAL LAW - PROCEDURE - DISCLOSURE OBLIGATIONS

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FURTHER EVIDENCE - IN GENERAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - DIRECTIONS TO JURY - REASONABLE DOUBT - GENERALLY

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - POINTS AND OBJECTIONS NOT TAKEN BELOW - WHEN NOT ALLOWED TO BE RAISED ON APPEAL - COURSE OF CONDUCT AT TRIAL

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - WHOLE ACT TO BE CONSIDERED

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE - WHERE RESULT OF TRIAL NOT AFFECTED

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

Appeal against conviction.

On 30 December 2018, a helicopter employed for police operations was hit by a blue light emitting laser while on approach to land at Adelaide airport. The pilot and a passenger gave evidence that the light impacted upon their vision and the pilot said it interfered with his night vision goggles. Following an investigation by police inside the helicopter and on the ground, the appellant was located and thereafter arrested and charged with doing an act capable of prejudicing the safe operation of an aircraft with intent to prejudice the safe operation of the aircraft contrary to s 10 of the Aircraft Offences Act 1971 (SA). The appellant was convicted by a jury.

The appellant appeals his conviction on multitudinous grounds, including, in summary:

1.There was a failure by the Crown to disclose relevant evidence which gave rise to a miscarriage of justice (grounds 1 and 2);

2.The trial Judge failed to adequately direct the jury in relation to post offence conduct and to lies by the appellant to police (grounds 3 and 4);

3.The trial Judge failed to adequately direct and misdirected the jury as to the meaning of reasonable doubt (ground 5);

4.The trial Judge misdirected the jury in relation to the honesty of a witness (ground 6);

5.The trial Judge misdirected the jury as to the identification evidence (ground 7);

6.The trial Judge failed to adequately direct and misdirected the jury in relation to the elements of the offence (ground 8); and

7.The verdict…

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Carter v The King [2024] SASCA 140
Case
[2024] SASCA 140
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Carter against his conviction. The dispute centred on the Crown's alleged failure to disclose crucial evidence, namely a breath-alcohol analysis, and various alleged misdirections by the trial judge to the jury. The appeal was heard by S Doyle, Stanley and Stein JJ of the Supreme Court of South Australia.

The legal issues before the Court included whether the fresh evidence of the breath-alcohol analysis, which was not disclosed at trial, created a substantial risk of a miscarriage of justice. The Court was also required to consider whether the Crown's failure to disclose this evidence constituted a breach of statutory and common law duties, leading to unfairness and a miscarriage of justice. Further issues involved alleged errors by the trial judge in failing to adequately direct the jury on the appellant's statements to police, his post-offence conduct, the meaning of "reasonable doubt," the dishonesty of a witness, and the identification evidence presented. The Court also had to determine if the verdict was unsafe or unsupported by the evidence, particularly concerning the appellant's intent and the capacity of his actions to prejudice the safe operation of an aircraft.

The Court acknowledged its power to receive fresh evidence on appeal and noted that a failure to disclose relevant evidence can lead to a quashing of a guilty verdict. It was established that the South Australian Police (SAPOL) had an obligation to disclose the breath-alcohol analysis results to the Director of Public Prosecutions, and the respondent was taken to have constructive knowledge of this information. The central question was whether the non-disclosure resulted in a miscarriage of justice, defined as depriving the accused of a chance of acquittal that was fairly open. The Court reiterated that a trial is not unfair if an accused, of their own volition, fails to call available evidence or evidence they could reasonably have been expected to discover. The Court considered whether the non-disclosure of the breath-alcohol analysis deprived Mr Carter of a fairly open chance of acquittal.

The Court found that the respondent accepted that the "alcotest" results should have been disclosed. However, the respondent contended that this failure did not result in a miscarriage of justice. The Court's consideration of this point, and the other grounds of appeal, would determine the final outcome of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Carter’s grounds of appeal are as follows:1. The fresh evidence being the breath-alcohol analysis conducted on the Appellant in the early hours of December 31st 2018 gives rise to a substantial risk of a miscarriage of justice in that it was cogent, reliable evidence that could have led to his acquittal by the jury.2. The Crown’s failure to comply with statutory and common law duty to disclose the applicant’s breath-alcohol analysis was unfair, and irregularity in the proceedings and caused a miscarriage of justice by depriving the applicant of cogent evidence of his innocence.3. The Learned Trial Judge erred in that he failed to adequately direct the jury as to the statements made by the appellant to police which were lies on his own evidence at the trial.4. The Learned Trial Judge erred in failing to adequately direct the jury as to the ‘post-offence’ conduct of the appellant and the use to which it may be put.5. The Learned Trial Judge misdirected the jury & failed to adequately direct them as to the meaning of ‘reasonable doubt’ when it was evident from their note that they required that direction.6. The Learned Trial Judge misdirected the jury such as to withdraw from their consideration that Brevet Sergeant McFarlane was dishonest, this did not fairly represent the defence case, usurped the jury function and misrepresented what had occurred at the trial.7. The Learned Trial Judge misdirected the jury as to the purported identification of the offender by Brevet Sergeant McFarlane and failed to adequately direct them as to the identification-type evidence in the trial.8. The Learned Trial Judge failed to adequately direct the jury as to the charge and the task required of them, misdirected the jury as to the pathways to guilt and reinforced or failed to correct the erroneous statements of law in the prosecutors closing address.8.1The jury were not properly directed that they did not simply need to find that the person sighted by McFarlane was the appellant, and that the appellant intended to prejudice the safe operation of the aircraft, but also that the intermediate step required was that the appellant intended to direct the laser beam at the aircraft.8.2The prosecutor opened and closed to the jury on the basis that it was sufficient in proving intent that the appellant sought to ‘annoy or distract’ the pilot, was repeated by the Learned Trial Judge in summing-up, if the jury found that was the appellant’s intent, then he was entitled to an acquittal.8.3The trial proceeded correctly as to the definition of prejudice, however failing to contextualise it against the charge and failing to assist in respect to the word ‘operation’ and its qualifier ‘safe’.8.4The jury were misdirected as to the specific intent required in the case and the preconditions that they would need to find before the evidence led could be used against him.9. The verdict was unsafe and cannot be supported having regard to the evidence, the appellant was entitled to an acquittal.9.1It was not open to the jury to be satisfied beyond reasonable doubt that it was the appellant who was directed the laser pointer.9.2It was not open to the jury to be satisfied beyond reasonable doubt, that the act alleged by the Crown was capable of prejudicing the safe operation of the aircraft.9.3It was not open to the jury to be satisfied beyond reasonable doubt that the appellant intended to direct the laser pointer at the helicopter9.4It was not open to the jury to be satisfied beyond reasonable doubt that the appellant intended to prejudice the safe operation of the aircraft.Grounds 1 and 2 – fresh evidence and failure to disclose

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Office of the Director of Public Prosecutions was not aware of the “alcotest”. The respondent appropriately accepted that the “alcotest” results should have been disclosed and the respondent was constructively taken to have known the information possessed by SAPOL. However, the respondent contended the failure to disclose the results of the “alcotest” did not result in a miscarriage of justice.Consideration We commence by observing that SAPOL had the obligation to disclose, and should have provided the “alcotest” result to the Director of Public Prosecutions. This Court has the power to receive fresh evidence on an appeal.[4][4] Criminal Procedure Act 1921 (SA), s 166; Joint Criminal Rules 2022 (SA), r 191.1. A failure to disclose all relevant evidence to an accused may result in the quashing of a verdict of guilty.[5] [5] Grey v The Queen [2001] HCA 65; (2001) 184 ALR 593 at [18]-[23] (Gleeson CJ, Gummow and Callinan JJ), as cited in Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 at [17] (Gummow, Hayne, Callinan and Heydon JJ); Ames v The King [2023] SASCA 85 at [212] (Livesey P, Bleby and David JJA). Fresh evidence is evidence which was not actually or constructively available to the accused at the time of the trial.[6] Where the evidence existed at the time of the trial, the question for consideration is whether that material could have been available to the accused by the exercise of reasonable diligence in the preparation of the defence.[7] An accused is entitled to assume that the prosecution will comply with their disclosure obligations and considerable latitude is extended to an accused in determining what evidence, by reasonable diligence, could have been available at trial.[8][6] Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 518-20 (Barwick CJ, McTiernan, Stephen and Jacob JJ agreeing), as cited in Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 at 674-5 (Mason J, Barwick CJ and Aiken J agreeing). [7] Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 516 (Barwick CJ, McTiernan, Stephen and Jacob JJ agreeing)[8] Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 512 (Barwick CJ, McTiernan, Stephen and Jacob JJ agreeing); Ames v The King [2023] SASCA 85 at [243] (Livesey P, Bleby and David JJA). The Court must determine whether or not a miscarriage of justice has resulted from the absence of the material in the trial. The question whether there has been a miscarriage of justice is usually answered by asking whether the accused was deprived of a chance of acquittal that was fairly open.[9] A trial is not unfair if the accused of his own volition has not called evidence which was available at the time, or of which he or she could reasonably have been expected to have become aware and produced at the trial.[10] This is so even if it may appear that if the evidence had been called and believed, a different verdict would most likely have resulted.[11] A decision to pursue or not to pursue a particular course at trial which is explicable on the basis it could have produced a forensic advantage may well have the result that a chance of acquittal which otherwise may have been open was not fairly open in the circumstances.[12] [9] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [26] (Gaudron J, Gummow J agreeing). [10] Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 517 (Barwick CJ, McTiernan, Stephen and Jacob JJ agreeing)[11] Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 517 (Barwick CJ, McTiernan, Stephen and Jacob JJ agreeing).[12] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [31] (Gaudron J, Gummow J agreeing).