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
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CaseChat Overview and Summary
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
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).