Lindsay v The King

Case [2025] SASCA 105

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

LINDSAY v THE KING

[2025] SASCA 105

Judgment of the Court of Appeal  (ex tempore)

(The Honourable Acting Chief Justice Livesey, the Honourable Justice David and the Honourable Auxiliary Justice Mullins)

18 September 2025

CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT

In 2016, following a third trial by jury, the applicant was convicted of murder, contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA), and sentenced to life imprisonment with a non-parole period of 23 years.

An appeal against conviction was dismissed by the Court of Criminal Appeal.

In 2013, Sulan J had heard an application for an order that the applicant was mentally unfit to stand trial and held that the applicant was mentally fit to stand trial.

The applicant now seeks permission to appeal against the ruling that he was not unfit to stand trial (the fitness ruling), permission to bring a “second or subsequent appeal” against his conviction for murder (the second or subsequent appeal), and permission to appeal against the non parole period of 23 years (the sentence appeal). 

The application to pursue the appeal against the fitness ruling is nearly 12 years out of time.  The application to pursue the sentence appeal is nearly nine years out of time.

Held (the Court), dismissing the application for an extension of time in which to seek permission to appeal against the ruling concerning the applicant’s fitness to stand trial, refusing permission to pursue a second or subsequent appeal against conviction, and dismissing the application for an extension of time in which to seek permission to appeal against sentence:

1.There is no utility in an appeal against the fitness ruling.  Following the third trial the question of the applicant’s fitness must be considered from the perspective of a miscarriage of justice, or substantial miscarriage of justice.

2.The expert opinion evidence is neither fresh nor compelling as s 159 of the Criminal Procedure Act 1921 (SA) requires. There is no merit in the application for permission to bring a second or subsequent appeal against conviction. There is no basis to consider whether there was a substantial miscarriage of justice.

3.There is no adequate explanation for the delay in pressing an appeal against the fitness ruling in 2013, nor against the sentence imposed in 2016.

4.Given the lack of merit in the proposed appeals, and the inadequate explanation for the long delays, the public interest in finality and against re opening long-running criminal litigation become important considerations.

Criminal Law Consolidation Act 1935 (SA) ss 11, 269H, 269Y; Criminal Law Consolidation (Mental Impairment) Amendment Act 1935 (SA); Criminal Procedure Act 1921 (SA) ss 157, 159, referred to.
Ames v The King (2023) 143 SASR 224; Brawn v The…

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AGLC
Lindsay v The King [2025] SASCA 105
Case
[2025] SASCA 105
Decision Date

CaseChat Overview and Summary

The applicant, Lindsay, sought an extension of time and leave to appeal against a ruling on his fitness to stand trial, as well as leave to appeal against his conviction and sentence for murder. The case involved the applicant stabbing Mr Andrew Negre to death following an incident at the applicant's home. The applications were heard by the Supreme Court of South Australia, Court of Criminal Appeal.

The legal issues before the Court were whether the applicant should be granted an extension of time to seek leave to appeal the ruling on his fitness to stand trial, whether he should be granted leave to pursue a second or subsequent appeal against his conviction, and whether he should be granted an extension of time to seek leave to appeal his sentence.

The Court refused the applications, finding no merit in the proposed appeals and noting the inadequate explanation for the significant delays in bringing these applications. The Court emphasised the public interest in finality and the avoidance of re-opening long-running criminal litigation, particularly given the lack of substantive grounds for the appeals. The applications for an extension of time to appeal the fitness ruling and the sentence were dismissed, as was the application for leave to pursue a second or subsequent appeal against conviction.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the applications for an extension of time and for permission to appeal should be refused.Brief background The applicant’s murder of Mr Andrew Negre has been recounted in a number of decisions. Briefly, the applicant had been drinking at his home before he went to the Cove Tavern to buy more alcohol. He met Mr Negre and invited him home. They and others continued to drink. At some time after 3.45 am Mr Negre made a sexual overture which he described as a joke. A short time later the applicant invited Mr Negre to sleep in a spare bedroom. Mr Negre again made a sexual overture which prompted a vicious attack. This culminated in the applicant stabbing Mr Negre 15 or more times to the chest, killing him. Whilst another man, Mr Luke Hutchings, used a knife to cut Mr Negre’s throat, death was caused by the applicant’s stabbing. Mr Negre’s body was put into a bin and taken to a nearby reserve. Between 12 and 21 June 2013, Sulan J heard an application pursuant to s 269H of the CLCA for an order that the applicant was mentally unfit to stand trial. The evidence established that the applicant had sustained two head injuries as a child and was left with marked cognitive impairment and was of lower-than-average intellectual capacity. Expert evidence suggesting that the applicant was not fit to stand trial was undermined by evidence which demonstrated that there was good reason to doubt the histories on which the experts had relied. This evidence concerned recordings of telephone conversations as well as interactions with the applicant over long periods.[1] The psychologist, Mr Balfour, ultimately said that though the applicant was not unfit to stand trial, he would require breaks approximately every hour to facilitate consultation with his solicitors.[2][1] R v Lindsay (2013) 117 SASR 307 (Sulan J).[2] R v Lindsay (2013) 117 SASR 307, [27]-[28] (Sulan J). There was no appeal against the fitness ruling made by Sulan J. On 22 July 2013, a trial before a jury and Sulan J commenced and resulted in a verdict of guilty. Although the applicant did not give evidence, it was suggested that witnesses were mistaken about the applicant’s involvement in the killing. On 3 October 2013, the applicant was sentenced by Sulan J to life imprisonment and a 23 year non‑parole period was fixed. The appeals against conviction and sentence were considered by the Court of Criminal Appeal on 20 November 2013. There was no issue raised about the fitness ruling by Sulan J. The principal question on appeal concerned the partial defence of provocation. The appeal against sentence concerned an argument about manifest excess having regard to the applicant’s age, Aboriginality and intellectual disability. Both appeals were dismissed in 2014.[3][3] R v Lindsay (2014) 119 SASR 320. The High Court granted special leave to appeal and allowed the appeal against conviction on the issue of provocation in 2015.[4] The conviction was set aside and a new trial ordered.[4] Lindsay v The Queen (2015) 255 CLR 272.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the lack of merit in the proposed appeals, and the inadequate explanation for the long delays, the public interest in finality and against re‑opening this long-running criminal litigation become important considerations.[26][26] Lowe v The King [2025] SASCA 24, [76] (Livesey P, David JA and B Doyle AJA).Conclusion The application for an extension of time in which to seek permission to appeal the ruling about the applicant’s fitness to stand trial under s 269Y of the CLCA should be dismissed. The application for permission to pursue a second or subsequent appeal against conviction under s 159 of the CPA should be dismissed. The application for an extension of time in which to seek permission to appeal against sentence under s 157 of the CPA should be dismissed.

Ratio Decidendi

Legal Principle Established

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