R v Alavija No. Sccrm-98-7 Judgment No. S6586

[1998] SASC 6586

R V MIHO CHRISTIAN ALAVIJA

Court of Criminal Appeal
Coram:  Cox, Matheson and Debelle JJ

Cox J
         This is a matter of an application under the Criminal Appeal Rules.  The applicant was convicted of murder.  He sought leave to appeal on two grounds: that the trial judge should have left manslaughter as an alternative verdict; and that the verdict is unsafe, having in mind certain evidence that has come to light since the conviction.  The single judge gave leave on the second ground, but refused it on the first. 
The applicant now renews his application with respect to the manslaughter point, and the application falls to be determined by the Full Court on the papers.  It is has been considered by a court consisting of Matheson J, Debelle J and me. 
There was evidence before the jury upon which it could find beyond reasonable doubt that Ms Neumann was murdered and the case went to the jury on the footing of murder or nothing.  Defence counsel did not suggest otherwise.  The identification evidence upon which the Crown relied was inconsistent with manslaughter as a reasonable possibility. 
If, as the applicant wishes to argue, the victim's death may have been accidental, that could only result in a complete acquittal.
It follows that a complaint that the trial judge should have left manslaughter as an alternative verdict is not reasonably open.  Nyland J came to the correct decision on that issue. 
Leave to appeal on ground 1 is, therefore, refused.