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

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.

CaseChat Overview and Summary

The Court of Criminal Appeal dealt with an application from Miho Christian Alavija, who was convicted of murder. Alavija sought leave to appeal on the grounds that the trial judge should have allowed manslaughter as an alternative verdict and that the verdict was unsafe due to new evidence that emerged post-conviction. The single judge granted leave to appeal on the latter ground but denied it on the former. Alavija renewed his application concerning the manslaughter point, which was reviewed by the Full Court.

The legal issues before the court were whether the trial judge should have allowed manslaughter as an alternative verdict and whether the verdict was unsafe in light of the new evidence. The court had to consider whether the trial judge's decision was correct and whether the new evidence warranted a new trial. The primary focus was on the adequacy of the trial judge's directions to the jury and whether the new evidence was sufficient to render the original verdict unsafe.

The court found that the trial judge had correctly decided not to leave manslaughter as an alternative verdict, as the evidence presented was consistent only with a finding of murder. The identification evidence relied upon by the Crown did not support manslaughter as a reasonable possibility. The court held that if the victim's death could have been accidental, the only possible outcome would have been a complete acquittal, not manslaughter. Therefore, the application for leave to appeal on the ground of the alternative verdict was dismissed. The court concluded that the trial judge's decision was correct, and the new evidence did not undermine the safety of the verdict.

No leave to appeal was granted on the first ground.

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