2.Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 3 December 2015, and in its place order that:
(a)the appeal be allowed;
(b)the appellant's conviction be quashed; and
(c)a new trial be had.
Matter No A26/2016
1.Appeal allowed.
2.Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 3 December 2015, and in its place order that:
(a)the appeal be allowed;
(b)the appellant's conviction be quashed; and
(c)a new trial be had.
On appeal from the Supreme Court of South Australia
Representation
G O'L Reynolds SC with S G Henchliffe for the appellant in A24/2016 (instructed by Mangan Ey & Associates)
M E Shaw QC with B J Doyle for the appellant in A26/2016 (instructed by North East Lawyers)
A P Kimber SC with F J McDonald for the respondent in both matters (instructed by Director of Public Prosecutions (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Castle v The Queen Bucca v The Queen
Criminal law – Appeal against conviction – Application of proviso – Where appellants convicted of murder arising out of joint criminal enterprise – Where evidence of exculpatory statement by one appellant wrongly left to jury as evidence of admission – Where remaining evidence circumstantial – Whether no substantial miscarriage of justice occurred.
Criminal law – Summing-up – Where one appellant gave evidence – Where trial judge referred jury to aspects of appellant's evidence but did not summarise it – Whether appellant's case fairly left to jury.
Criminal law – Admissibility of evidence – Where evidence that one appellant possessed handguns months prior to shooting – Whether evidence "discreditable conduct evidence" within meaning of s 34P(1) of Evidence Act1929 (SA) – Whether open to conclude probative value of evidence substantially outweighed prejudicial effect.
Words and phrases – "admissibility", "discreditable conduct evidence", "exculpatory assertion", "proviso", "substantial miscarriage of justice", "summing-up".
KIEFEL, BELL, KEANE AND NETTLE JJ. The appellants were convicted of the murder of Adrian McDonald following a trial in the Supreme Court of South Australia (Peek J and a jury). The deceased was shot at 6:36am at the "Big Bucket Car Wash" in Parafield, a northern suburb of Adelaide. Closed-circuit television camera (CCTV) footage recorded the deceased getting into the front passenger seat of a Ford Futura sedan ("the Ford"). The deceased's former partner, the first appellant, Tristan Castle, was…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Castle v The Queen [2016] HCA 46
Case
[2016] HCA 46
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard appeals from two appellants, Castle and Bucca, who had been convicted of murder arising out of a joint criminal enterprise. The appeals challenged the Court of Criminal Appeal's conclusion that no substantial miscarriage of justice had occurred, despite the wrongful admission of an exculpatory statement by one appellant as evidence of an admission, and the remaining evidence being circumstantial. Castle also contended that her trial miscarried due to the failure to fairly present her case and remind the jury of salient aspects of her evidence.
The legal issues before the High Court included whether the Court of Criminal Appeal erred in applying the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) (as applied in South Australia), and whether the admission of evidence concerning one appellant's possession of handguns months prior to the shooting was permissible under s 34P(1) of the Evidence Act 1929 (SA), requiring a determination of whether its probative value substantially outweighed its prejudicial effect. The Court also considered whether the trial judge's summing-up adequately presented the case of an appellant who gave evidence.
The High Court allowed the appeals, quashed the convictions, and ordered new trials. The Court found that the wrongful admission of the exculpatory statement as an admission was a significant error. Furthermore, the Court determined that the remaining circumstantial evidence, when considered alongside the error, did not sufficiently prove guilt beyond reasonable doubt to justify the application of the proviso. The Court also indicated that the summing-up in relation to Castle's evidence may not have adequately presented her case. The admissibility of the handgun evidence was also a point of contention, with the Court considering whether its probative value outweighed its prejudicial impact.
Orders
Orders of the court
Matter No A24/2016
1. Appeal allowed.
2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 3 December 2015, and in its place order that:
(a) the appeal be allowed;
(b) the appellant's conviction be quashed; and
(c) a new trial be had.
Matter No A26/2016
1. Appeal allowed.
2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 3 December 2015, and in its place order that:
(a) the appeal be allowed;
(b) the appellant's conviction be quashed; and
(c) a new trial be had.
Background
Background to the litigation
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Evidence
Evidence Before The Court
On 25 May 2016 Nettle and Gordon JJ granted Bucca and Castle special leave to appeal on grounds that challenge the exercise of the proviso and the admission of Pascoe's evidence of Bucca's possession of handguns. The challenge to dismissal under the proviso is put in two ways. Each appellant contends that the Court of Criminal Appeal erred in concluding that his or her guilt was proved beyond reasonable doubt. In the alternative, each appellant contends that satisfaction that his or her guilt was proved to that standard does not mean that the error did not occasion a substantial miscarriage of justice. Castle maintains her ground that her trial miscarried because of the failure to fairly put her case and to remind the jury of the salient parts of her evidence[2]. [2]Castle's first ground of appeal (related to extended joint criminal enterprise) was not pressed in light of the decision in Miller v The Queen (2016) 90 ALJR 918; 334 ALR 1; [2016] HCA 30. The evidence at trial In considering the first way in which the appellants challenge the dismissal of their appeals under the proviso, it is necessary to refer to the evidence in more detail. The relationships The relationship between Castle and the deceased ended in late 2012 or early 2013, not long after the bank entered into possession of the premises in which they had been living. The deceased moved into premises in Cadell Court, Hope Valley. These premises were occupied by his friend Jim Bristow. Castle and her two youngest children moved to her mother's home in Elizabeth Park. The break-up, which was not of the deceased's choosing, proved to be acrimonious. The deceased became aware that Castle was in a sexual relationship with Bucca not later than 26 January 2013. Bucca and Gange shared rented premises in Sapphire Crescent, Highbury during 2012. The lease on these premises expired in February 2013 and they were in the process of moving out at the date of the shooting. On 31 January 2013, the Sapphire Crescent premises were broken into and a fridge, laptop, boxing bag and weights were stolen. Shortly before the discovery of the break-in, Castle had seen the deceased driving in the vicinity of Sapphire Crescent towing a trailer. She told Bucca of this sighting. Bucca and Gange each believed the deceased was responsible for the break-in. In the 48 hours before the shooting, each sent the deceased abusive text messages about the theft of their property. Bucca, Castle, Gange and M were all regular users of methamphetamine in the form colloquially known as "ice". M and Gange were using between $2,000 and $5,000 worth of "ice" each week. Gange was a supplier of the drug. By February 2013, Gange and M had moved into Matthew Grace's premises in Gosfield Crescent, Hampstead Gardens where Grace, who was an associate of Gange, his partner, Tammy, and her children were living. Gange was easily roused to anger, particularly when using "ice". He was familiar with handguns. He had traded handguns for drugs, although the evidence did not establish whether this had taken place before or after the shooting. In 2009, Gange suffered severe burns in an accident. As a result his right arm was fused at the elbow at an angle of 90 degrees. On some days his pain restricted his mobility and on other days it did not.M's evidence
Decision
Reasons for decision
KIEFEL, BELL, KEANE AND NETTLE JJ
GAGELER J
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL, BELL, KEANE AND NETTLE JJ,
GAGELER J