Edwards v The King; Piccinin v The King - [2023] SASCA 113

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
EDWARDS v THE KING; PICCININ v THE KING
[2023] SASCA 113
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice Kimber)
19 October 2023
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - DIRECTIONS AS TO PARTICULAR MATTERS - OTHER MATTERS
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION
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 - WHERE NEW TRIAL ORDERED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - OTHER OFFENCES INVOLVING GRIEVOUS BODILY HARM OR SERIOUS INJURY - GENERALLY
Mr Edwards appeals against conviction. Ms Piccinin appeals against both conviction and sentence.

The appellants pleaded not guilty to joint charges of the offence of aggravated causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA). Both appellants were convicted following jury verdicts. The primary judge imposed a head sentence on Ms Piccinin of four years and three months with a non-parole period of two years and two months.
The appellants were in a relationship. Ms Piccinin lived next door to the complainant and his family. There was pre-existing tension between the occupants of the two neighbouring houses. On the afternoon of 26 December 2018, there was an altercation between the appellants and the complainant. The prosecution case was that the appellants came through the adjoining side gate between the two properties and Mr Edwards stabbed the complainant. The case against Ms Piccinin was based on principles of joint criminal enterprise. The complainant suffered lacerations to his lip, chin and chest. The aggravated nature of the offending that the jury found proved was that harm to the complainant was caused through the use of an offensive weapon, namely a knife, and was committed whilst the appellants were in the company of one another.
Following the incident, the complainant extracted himself and made a triple-zero call. Ms Piccinin also made a triple-zero call. Police attended at Ms Piccinin’s house where body-worn camera footage was captured of Mr Edwards speaking.
Each appellant made statements in the triple-zero call and the body-worn camera footage respectively, to the effect that the complainant had been the aggressor. The prosecution submitted that certain of those statements were lies and that what they told police was circumstantial evidence that the jury could use in satisfaction of the charged conduct.
Both appellants contended that a miscarriage of justice arose from the primary judge’s failure to give a direction in accordance with the requirements indicated in Edwards v The…

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

Case: [2023] SASCA 113
Decision Date: 19 October 2023

CaseChat Overview and Summary

This case concerned appeals by Mr Edwards and Ms Piccinin against their convictions. The prosecution case involved allegations that Mr Edwards had unlawfully caused serious harm to a neighbour, and that Ms Piccinin had assisted him in that offence. The appeals were heard by Lovell, Bleby and Kimber JJ of the Supreme Court of South Australia.

The central legal issue before the Court was whether the trial judge had misdirected the jury regarding the treatment of alleged lies told by the appellants to the police. Specifically, the appellants argued that the judge’s directions on this matter were erroneous and had the potential to improperly influence the jury's assessment of their credibility and the overall evidence.

The Court found that the trial judge's directions concerning the alleged lies were indeed problematic and could have significantly impacted the jury's evaluation of the appellants' accounts. Despite acknowledging the strength of the prosecution's evidence, the Court determined that the contest of credibility between the prosecution and the defence was so finely balanced that it could not be certain that guilt had been proven beyond a reasonable doubt, given the misdirection. Consequently, the Court declined to apply the proviso to dismiss the appeal.

The Court granted permission to appeal on the primary ground for both appellants, allowed the appeals, quashed their convictions, and ordered that the charges be remitted for retrial. Ms Piccinin's appeal against sentence was dismissed as it was considered to have no practical utility.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

When police attended at Ms Piccinin’s house after the triple-zero calls, they spoke to Mr Edwards and recorded a conversation on a body-worn camera. In the course of that conversation, Mr Edwards:· said he ‘got attacked by a neighbour’;· said he ‘was attacked by a knife’;·said the neighbour ‘got me with a broken beer bottle after he failed to get me with the knife. Threw it at me pretty much like’;·said, ‘Well he went for me with a knife, I’ve grabbed that off him and just pushed it against him and in his other hand it looked like he had this broken beer bottle’;· said the neighbour had come to the front door of Ms Piccinin’s house;·said the knife was a ‘kitchen sort of like a big knife’. The handle was ‘wood maybe’;·When asked if he had stabbed the neighbour, said, ‘Oh I pushed it towards him I reckon I did get him yer’. He confirmed that this was with the knife that the neighbour was holding.Other evidence The prosecution relied on the complainant’s and Mr Edwards’s injuries as being broadly consistent with the account given by the complainant. Inside Ms Piccinin’s house, there was a small amount of blood inside the front door and a greater amount in the kitchen/dining area. That blood was not tested. There were blood-like stains in the side yard of the complainant’s house. These were tested. The first returned a single source DNA profile with a statistical weighting of greater than 100 billion in favour of the complainant being a contributor. The second returned a mixed DNA profile (two contributors) with a statistical weighting of greater than 100 billion in favour of the complainant being a contributor and 1.8 million in favour of Mr Edwards not being a contributor. A pair of thongs was located in the side yard of the complainant’s house near the blood-like stains. The various members of the complainant’s family gave evidence that they did not recognise these thongs as belonging to anyone in their house. Testing of the left thong showed as follows:·a blood-like stain on the strap, which returned a single source DNA profile with a statistical weighting of greater than 100 billion in favour of the complainant being a contributor;·a blood-like stain near the toe area, which returned a single source DNA profile with a statistical weighting of greater than 100 billion in favour of Mr Edwards being a contributor;·a blood-like stain on the sole, which returned a mixed DNA profile (two contributors) with a statistical weighting of greater than 100 billion in favour of the complainant being a contributor and 62 in favour of Mr Edwards not being a contributor;·a tape lift taken from the underside of the straps returned a mixed DNA profile (three contributors) with a statistical weighting of greater than 100 billion in favour of the complainant being a contributor and greater than 100 billion in favour of Mr Edwards being a contributor. Testing of the right thong showed a blood-like stain on the strap, which returned a single source DNA profile with a statistical weighting of greater than 100 billion in favour of the complainant being a contributor.

Decision

Reasons for decision

The treatment by the Court of what were said on the prosecution case to be lies by both Mr Edwards and Ms Piccinin had the potential to interfere markedly with the jury’s assessment of the credibility of the respective accounts. Notwithstanding the strength of the prosecution case, the contest of credibility was such that it is not possible for this Court to assess whether guilt was proved to the criminal standard, notwithstanding the erroneous directions. We would not apply the proviso.Conclusion It is not necessary to determine the other grounds of appeal. We grant permission to both appellants to appeal on Ground 1, allow the appeal, quash the convictions and order that the charges be remitted for retrial. It is not necessary to consider Ms Piccinin’s appeal against sentence. That appeal should be dismissed on the basis that it has no utility.

Ratio Decidendi

Legal Principle Established

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