Fox (a pseudonym) v The King; Richards v The King - [2024] SASCA 57

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
FOX (A PSEUDONYM) v THE KING; RICHARDS v THE KING
[2024] SASCA 57
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice David and the Honourable Justice Stein)
9 May 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE
It was alleged the appellants, Fox and Richards, along with two co-accused, Murch and Mather, broke into two houses with the intention of stealing cannabis. All four accused were tried before a jury. Murch and Mather were acquitted. The appellants were found guilty of two counts of aggravated serious criminal trespass, attempted aggravated robbery, aggravated threatening to cause harm and false imprisonment.
The appellants appeal against their convictions on the grounds that counsel for Murch and Mather, in their closing submissions, breached the rule in Browne v Dunn. The trial Judge refused their application for a mistrial and discharge of the jury. On appeal, the appellants submitted that the refusal by the trial Judge to discharge the jury led to a miscarriage of justice.
Held, per the Court, granting permission to appeal but dismissing the appeal of both appellants:
1. The directions by the trial Judge in relation to both counsel’s submissions had the practical effect of maintaining fairness and nullified any potential prejudice that arose.

2. The directions by the trial Judge did not lead to a miscarriage of justice.
Criminal Procedure Act 1921 (SA) s 158(1)(c), referred to.
Al-Salmani v The King [2023] NSWCCA 83; Browne v Dunn (1893) 6 R 67; Dupas v The Queen (2010) 241 CLR 237; Hofer v The Queen (2021) 274 CLR 351; JGS v The Queen [2020] SASCFC 48; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Macks v Viscariello (2017) 130 SASR 1; MWJ v The Queen (2005) 80 ALJR 329; NCH v Western Australia [2013] WASCA 29; New South Wales v Canellis (1994) 181 CLR 309; Nudd v The Queen (2006) 80 ALJR 614; Perara-Cathcart v The Queen (2017) 260 CLR 595; R v Birks (1990) 19 NSWLR 677; R v Fenlon (1980) 71 Cr App R 307; R v Glennon (1992) 173 CLR 592, considered.

FOX (A PSEUDONYM) v THE KING; RICHARDS v THE KING
[2024] SASCA 57
Court of Appeal – Criminal: Lovell and David JJA and Stein AJA

THE COURT: Wasleys is a small town situated a few kilometres north-west of Gawler. Geoffrey Bown and Shaun Richards lived in adjoining properties in Wasleys, and both grew cannabis on their respective properties. The prosecution alleged that on 29 March 2020 at about 3.45 am, a group of four or five offenders broke into the adjoining houses intending…

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: [2024] SASCA 57
Decision Date: 9 May 2024

CaseChat Overview and Summary

The appellants, Fox and Richards, appealed against their convictions recorded on guilty pleas. The appeal concerned the trial judge's refusal to grant a mistrial after alleged breaches of the rule in *Browne v Dunn* during closing submissions by counsel for co-accused Murch and Mather. The appellants contended that these breaches, coupled with the trial judge's refusal to discharge the jury, resulted in a miscarriage of justice.

The central legal issue before the Court of Appeal was whether the alleged breaches of the rule in *Browne v Dunn* by counsel for Murch and Mather, and the trial judge's subsequent refusal to grant a mistrial, constituted a miscarriage of justice warranting the quashing of the convictions. The appellants argued that the failure to properly cross-examine prosecution witnesses on crucial aspects of their evidence meant that the jury was not presented with a fair opportunity to consider alternative versions of events, thereby prejudicing the appellants' cases.

The Court of Appeal considered the application of the rule in *Browne v Dunn*, which requires that if a party intends to adduce evidence contradicting a witness, that witness must first be given an opportunity to explain or deny the contradicting evidence. The Court found that while there may have been some deficiencies in the cross-examination of certain prosecution witnesses, these did not rise to the level of a breach of *Browne v Dunn* that would necessarily lead to a miscarriage of justice. The Court reasoned that the trial judge had adequately directed the jury on how to approach the evidence and the role of closing submissions. The judge's refusal to grant a mistrial was upheld, as the Court concluded that the jury had been properly instructed and was capable of reaching a verdict based on the evidence presented and the directions given.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellants appeal against their convictions. Both contend that during closing submissions, counsel for both Murch and Mather breached the rule in Browne v Dunn.[1] The appellants applied for a mistrial which the trial Judge refused. On appeal, the appellants submitted that the breach of the rule in Browne v Dunn and the trial Judge’s refusal to discharge the jury led to a miscarriage of justice.[1] (1893) 6 R 67.Prosecution evidence Bown and Shaun Richards were neighbours who shared a boundary fence. They both grew cannabis. The prosecution alleged that the appellants Fox and Richards, along with Murch, Mather and a female, Coller, became aware that cannabis was being grown at the premises and planned to steal it. The prosecution alleged that on 29 March 2020 at about 3.45 am, the four accused plus Coller, attended Bown and Shaun Richards’ houses. They arrived in two cars that had false or obscured number plates. The offenders were armed and wearing dark clothing, gloves and masks. Coller may have stayed in the vehicle. Two offenders confronted Bown and demanded to know where the cannabis was. Bown was threatened, assaulted and tied up. He was taken outside and placed against the boot of a car. He heard people cutting down his crop while one offender stood guard over him. The offenders then left after Fox was injured. Bown was later untied by his partner. The prosecution alleged that Fox broke into Shaun Richards’ house through the kitchen window. Shaun Richards heard glass breaking and saw the offender climbing through a broken window in the kitchen. The police later observed shattered glass inside the house consistent with someone breaking into the house. Grabbing a machete from his bedroom, Shaun Richards confronted Fox who was in the house and struck him. At this time, Shaun Richards saw another person standing outside the window holding a gun. Fox was badly injured and bleeding. Fox was later identified from the injuries sustained during the altercation. After Fox was struck with the machete, the offenders fled the scene. The prosecution case was that two cars left the scene, one of which was driven by Coller. Coller, while driving away from the premises, called emergency services at 4.06 am. This call was recorded and the recording was played to the jury. Part of this recording was the focus of submissions at trial. At some point during this call, or shortly after, Fox was transferred from Coller’s car (a Holden Statesman) to the car that was driven by Murch (a Holden Caprice). Murch then drove Fox to Balaklava Hospital along with Mather and Richards. At the hospital Fox required emergency medical treatment. Mather stayed with Fox at Balaklava Hospital where they were both eventually arrested. Murch and Richards left the hospital in the Holden Caprice. At about 5.48 am, their car was stopped by police and the two accused were arrested. Upon searching the vehicle, police located four pairs of gloves and a “Scream” mask. DNA consistent with the profiles of the victim Bown, as well as Fox and Richards, were found on one glove. DNA consistent with Murch was located on the mask.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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