R v Anderson

Case [2017] SASCFC 125

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ANDERSON

[2017] SASCFC 125

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Doyle)

21 September 2017

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - PROOF AND EVIDENCE - BURDEN OF PROOF

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE - VERDICT AGAINST WEIGHT OF EVIDENCE - WHEN NEW TRIAL REFUSED - VERDICT NOT UNREASONABLE - GENERALLY

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - GENERAL PRINCIPLES AS TO GRANT OR REFUSAL OF NEW TRIAL

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY

CRIMINAL LAW - EVIDENCE - RES GESTAE - STATEMENTS - PARTICULAR CASES

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - NATURE OF DISCRETION - OTHER PARTICULAR MATTERS

Appeal against conviction. The appellant was convicted by a jury of one count of attempted murder.

On 12 July 2013 Mr Walsh was driving from Penong to Adelaide on a remote stretch of the Eyre Highway between Kimba and Port Augusta when the appellant began tailgating him. The appellant overtook Walsh and then braked heavily in front of him, causing a minor collision between the two vehicles. Walsh attempted to get away from the situation by overtaking the appellant, accelerating at speeds in excess of 150 kilometres per hour. A high speed pursuit ensued, during which the appellant fired five rounds from a hand gun. During the pursuit Walsh telephoned the police on 000. The recordings of the 000 calls were tendered by the prosecution. Police stopped the appellant’s vehicle on the highway a short time later, locating a hand gun, a speed loader and spent cartridges in the vehicle. A bullet hole was discovered in the petrol tank of Walsh’s vehicle and a bullet consistent with the ammunition located in the appellant’s vehicle was extracted from the petrol tank.

The appellant appealed against conviction on five grounds, that the trial Judge: (1) failed to properly direct the jury about the appellant’s failure to comply with the rule in Browne v Dunn and improperly characterised the case to the jury as a choice between the appellant or the principal prosecution witness; (2) made various errors in directing the jury as to the burden of proof and failed to correct matters improperly put to the jury by the prosecutor; (3) failed to give a lies direction; (4) erred in admitting the entirety of the 000 calls as part of the res gestae, and; (5) that the verdict is unsafe, unsatisfactory and against the weight of the evidence.

Held per Kelly J (Kourakis CJ and Doyle J agreeing): Dismissing the appeal. 

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R v Anderson [2017] SASCFC 125
Case
[2017] SASCFC 125
Decision Date

CaseChat Overview and Summary

The appeal concerned a criminal conviction arising from a dangerous car chase. The appellant, R v Anderson, was accused of offences stemming from an incident where he allegedly fired a handgun at another vehicle driven by Mr Walsh. The dispute centred on the appellant's intent and the sufficiency of the evidence presented at trial to prove his guilt beyond a reasonable doubt. The matter was heard by the Full Court of the Supreme Court of South Australia.

The primary legal issues before the court were whether the verdict reached by the jury was against the evidence or the weight of the evidence, and whether the evidence presented was sufficient to satisfy the jury beyond a reasonable doubt of the appellant's guilt. The court also considered grounds of appeal relating to alleged misdirection by the trial judge and the admissibility of certain evidence, including statements made by Mr Walsh during emergency calls.

The court's reasoning focused on an independent assessment of the evidence. It noted that forensic evidence established that five bullets had been fired from the appellant's gun, and tests on the appellant's hands and clothing were capable of inferring he had discharged the firearm. Crucially, a bullet consistent with the ammunition found in the appellant's vehicle was recovered from Mr Walsh's vehicle's petrol tank. The court found that the firing of five shots at Mr Walsh's vehicle in the circumstances described was capable of founding an inference beyond reasonable doubt that the appellant intended to kill Mr Walsh. The court also considered inconsistencies in Mr Walsh's evidence and directed the jury to assess these carefully, finding that the trial judge had properly directed the jury on all critical issues.

The appeal was dismissed on all grounds.

Orders

Orders of the court

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Background

Background to the litigation

A single Judge granted permission in respect of grounds 1, 1A, 2 and 4 and referred the remaining grounds to this Court for permission. An extension of time in which to file the notice of appeal was also granted. Background On 12 July 2013 Walsh was driving from Penong to Adelaide to visit his mother for her 60th birthday. On a remote stretch of the Eyre Highway between Kimba and Port Augusta the appellant began tailgating him. As Walsh was negotiating a right hand bend in the road, the appellant overtook him by crossing double white lines on the road. Once the overtaking manoeuvre was complete, the appellant slammed on his brakes, causing a slight rear end collision between the rear of the appellant’s vehicle and the front of Walsh’s vehicle. Walsh attempted to get away from the situation by overtaking the appellant and accelerating at speeds in excess of 150 kilometres per hour. The appellant pursued Walsh and then overtook him a second time. As Walsh was again trying to overtake the appellant in order to get away from him, he saw the appellant hanging out of the driver’s side window pointing a gun at him. In the sequence which followed the appellant fired five rounds from a hand gun. During the chase which unfolded at that time Walsh telephoned the police on 000. The recordings of the phone conversations which Walsh had with the police at that time were tendered by the prosecution. The total combined duration of the three calls was around 20 minutes. Police stopped the appellant’s vehicle on the highway a short time later. They located a hand gun, a speed loader and spent cartridges in the appellant’s vehicle. Subsequently crime scene examiners discovered a bullet hole in the petrol tank of Walsh’s vehicle. A bullet consistent with the ammunition located in the appellant’s vehicle was extracted from the petrol tank. At trial the evidence that five shots were fired during the course of the car chase was undisputed. The appellant admitted to loading the gun and firing those shots, however there was some dispute as to timing of the shots being fired and the direction in which they were fired. The appellant also admitted to removing the five spent cartridges and one live round and placing them in a handkerchief in the boot of the vehicle. The contents of the 000 calls described an unfolding car chase between the appellant and Walsh with both men driving at speeds in excess of 150 kilometres per hour. In the 000 calls Walsh described seeing the appellant pointing a large hand gun towards his vehicle and hearing what he thought sounded like a bullet hitting the side of his vehicle shortly afterwards. In the calls he made a number of references to being shot at whilst speaking on the phone. The phone call reception was intermittent and the phone line dropped out which resulted in there being three separate and distinct calls made to the police. I turn now to the grounds of appeal. Grounds 1, 1A and 3: Complaints in relation to “choice reasoning”, the rule in Browne v Dunn and lies

Evidence

Evidence Before The Court

I would grant permission to appeal in respect of grounds 4A, 4B and 4C, however I would dismiss those grounds and ground 4. Ground 5: Verdict unsupported by the evidence I turn now to the final ground of appeal, the complaint that the verdict is unsupported by the evidence. The evidence in the trial was not extensive. It consisted principally of the evidence of the witness Walsh and the evidence of the appellant, together with evidence from a ballistics expert who examined the appellant’s gun and cartridges retrieved from the appellant’s vehicle at the time of his arrest. The forensic evidence in itself was capable of founding an inference that five bullets had been fired from the appellant’s gun. Tests conducted on the appellant’s hands and clothing also were capable of producing an inference that he had fired a gun. A bullet consistent with the ammunition located in the appellant’s vehicle was extracted from the petrol tank of Walsh’s vehicle. In other words, the prosecution were able to prove that the gun had been discharged five times, irrespective of whether the appellant had made the admission which he did. Walsh was cross-examined about the inconsistencies between the 000 calls he made to the police and the evidence he gave in court. The trial Judge directed the jury to consider those inconsistencies very carefully and they were properly directed that those inconsistencies were matters for them when assessing the credibility and reliability of Walsh. The issues in the case were correctly identified. The jury was reminded throughout the Judge’s summing up of the defence case in relation to every one of the critical issues which arose for the jury’s determination. Having carried out my own independent assessment of the evidence I consider that the evidence was sufficient to satisfy the jury beyond reasonable doubt of the appellant’s guilt. The evidence of Walsh, if accepted, established that the appellant tailgated Walsh before overtaking him on a double white line while going around a bend and slamming on his brakes causing a minor collision. During the high speed pursuit of Walsh which occurred thereafter and in which the appellant and Walsh overtook each other twice, the appellant produced a gun, pointed it at Walsh and fired five shots. To my mind the firing of not one but five shots from the hand gun at Walsh’s vehicle in those circumstances was capable of founding an inference beyond reasonable doubt that the shooter intended to kill Walsh. For these reasons I would grant permission to the appellant to appeal in respect of ground 5, however I would dismiss that ground of appeal. For these reasons I would dismiss the appeal on all grounds. DOYLE J: I would dismiss the appeal. I agree with the reasons of Kelly J, and with the additional reasons of the Chief Justice.

Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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