R v Anderson (No 2) - [2014] SASC 97

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v ANDERSON (No 2)
[2014] SASC 97
Reasons for Rulings of The Honourable Justice Sulan
5 August 2014
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPTED MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - ACTS INTENDED TO CAUSE DANGER TO LIFE
Submissions by defence that there was no case to answer and that a Prasad direction ought to be given. Whether insufficient evidence on prosecution case to establish the accused intended to kill the alleged victim. Whether state of the evidence unsatisfactory to convict the accused.
Held: The evidence, if accepted, was sufficient to produce in the mind of a reasonable person satisfaction beyond reasonable doubt of each element of the offence. There was a case to answer. Application refused.
There was nothing patently unsatisfactory or lacking in cogency about the evidence adduced in the prosecution case. The accuracy and reliability of the evidence were matters properly left for the consideration of the jury. Application refused.
Criminal Law Consolidation Act 1935 (SA) s 11, s 29(1), s 270A, referred to.
Zanetti v Hill (1962) 108 CLR 433; R v Bilick (1984) 36 SASR 321; R v Pahuja (1987) 49 SASR 191; Dean v The Queen (1995) 65 SASR 234; R v Prasad (1979) 23 SASR 161, considered.

R v ANDERSON (No 2)
[2014] SASC 97

SULAN J: On 21 July 2014, following the conclusion of the prosecution case, I ruled that there was a case to answer in the trial of Michael Craig Anderson for attempted murder or, alternatively, aggravated endangering life. I further declined to invite the jury to consider acquitting the accused without hearing further evidence or the addresses. I indicated that I would provide reasons for ruling at a later date. These are those reasons.
The accused was charged on an Information with the following offences:
First Count
Statement of Offence
Attempted Murder. (Section 11 and 270A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Michael Craig Anderson on the 12th day of July, between Kimba and Iron Knob, attempted to Murder Zephatali Walsh.
Second Count
Statement of Offence
Aggravated Endangering Life. (Section 29(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Michael Craig Anderson on the 12th day of July, between Kimba and Iron Knob, without lawful excuse, did an act, namely discharge a firearm, knowing that act was likely to endanger the life of another, intending to endanger the life of another, or being recklessly indifferent as to whether another’s life was endangered.
It is further alleged that Michael Craig Anderson used an offensive weapon, namely a firearm when committing the offence.
The prosecution case is that on 12 July 2012, the alleged victim, Zephatali Walsh, was driving from Ceduna to Middleton along the Eyre Highway. He was travelling at around 90-95 km/h in order to conserve fuel. At about 11:30am that day, when he was about 20 km from Kimba travelling in the direction of Iron Knob, he noticed a silver Commodore sedan behind him. The accused was driving that vehicle. An incident then occurred which involved multiple overtaking manoeuvres and a collision between the two vehicles. The prosecution allege that during the incident the accused loaded a handgun whilst driving his vehicle, leaned out of the driver’s side window and fired several shots towards Mr Walsh’s car as they were travelling along the highway, at times reaching speeds of up to 180 km/h in wet conditions.
Mr Walsh called the police on his mobile phone whilst the incident was unfolding. The recordings of the phone conversations were tendered by the prosecution. The total duration of the three calls is around 26 minutes. The police stopped the accused’s vehicle a short time later. They located a handgun, speed loader and spent cartridges in the accused’s vehicle. Subsequent crime scene investigation of Mr Walsh’s vehicle revealed a bullet hole in the petrol tank. A bullet, consistent with the ammunition in the accused’s vehicle, was extracted from the petrol tank.
Before considering the submissions of counsel, it is necessary to say something about the course in which the trial proceeded. The accused was arraigned before the jury at the commencement of the trial. He pleaded not guilty to count 1 and guilty to count 2. The plea to count 2 was not accepted by the prosecution in satisfaction of the Information and the trial proceeded. I then ruled, in accordance with these reasons, that there was a case to answer. The accused then gave evidence. Following his evidence, I granted defence counsel’s application for the accused to withdraw his plea of guilty to count 2.
Accordingly, at the time of ruling on the present applications, the primary issue for the jury to consider was the accused’s intention at the time of the relevant act or acts, the accused having admitted the essential ingredients of count 2 by his plea of guilty to that charge.
In support of the submission that there was no case to answer, counsel for the accused asserted there was no objective evidence from which the jury could conclude the accused ever formed an intention to kill Mr Walsh. It was submitted that the direct evidence was only capable of establishing that a gun was produced by the accused, that five rounds had been discharged from that firearm since it was last cleaned and that there was a bullet, which could have been fired from the accused’s firearm, located in the petrol tank of Mr Walsh’s vehicle. It was submitted that the bullet entered Mr Walsh’s car at a very low point on the victim’s vehicle, not where it would be expected to hit if there was an intention to kill. It was further submitted that there was no evidence as to the juxtaposition of the two vehicles when the shot was fired or when the other four rounds had been discharged from the firearm.
The test as to whether or not there is a case to answer is whether, with respect to every element of the offence, there is some evidence which if accepted would either prove the element directly or enable its existence to be inferred.[1]
[1] Zanetti v Hill (1962) 108 CLR 433, 422.
In other words: [2]
On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution is accurate, and on the further assumption that all inferences most favourable to the Prosecution which are reasonably open are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?
[2] R v Bilick (1984) 36 SASR 321, 337.
In my view, there is evidence from which, taking the prosecution case at its highest, the jury could be satisfied that the accused had an intention to kill Mr Walsh. If the jury accept that Mr Walsh gave honest and reliable evidence, it could be satisfied that the incident involved a course of aggressive driving on the part of the accused which included an overtaking manoeuvre followed immediately by the brakes of his vehicle being suddenly and forcefully applied, causing the front of Mr Walsh’s car to collide with the rear of the accused’s vehicle. The jury could be satisfied that a gun was produced by the accused and pointed at Mr Walsh and that a high speed chase then ensued during which the accused discharged five rounds from the firearm.
If the jury accept that what Mr Walsh said to police during the phone conversations with police is an accurate and reliable account of the incident as it unfolded, there is evidence from which they could conclude that several shots were fired at Mr Walsh’s car during the incident, including one when Mr Walsh was forced to slow down due to a slower moving semi-trailer in his path.
There is undisputed evidence that five shots were fired during the course of the car chase. One bullet entered the petrol tank of Mr Walsh’s car. There is no dispute that the accused loaded the gun and fired it. The accused removed the five spent cartridges and one live round and placed them in a handkerchief in the boot of the car. Taken at its highest it was open to a jury to conclude that when the accused fired the shot or shots he intended to kill Mr Walsh. The submission of no case to answer was rejected.
I turn then to the submission that I direct the jury in terms commonly referred to as a Prasad[3] direction and inform the jury of its power to bring in a verdict of not guilty at any time after the conclusion of the case for the prosecution. Counsel for the accused asserted that the state of the evidence is unsatisfactory to convict the accused.
[3] (1979) 23 SASR 161.
In R v Pahuja, King CJ considered the appropriate use of a Prasad direction. He observed that the direction should be used sparingly and only when the prosecution evidence is insufficiently cogent to justify a verdict of guilty. He observed:[4]
The undoubted right of a trial judge to inform the jury of its power to bring in a verdict of not guilty at any time after the conclusion of the case for the prosecution, should be used sparingly and only when the judge is of opinion that the evidence for the prosecution, although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty. Even in such a case, the judge should bear in mind that the evidence called by the defence might strengthen the prosecution's case. The decision as to whether to inform the jury of its power must be made by the trial judge in the light of his assessment of the case and it would not be helpful to offer general advice as to the circumstances in which it would be proper to adopt that course.
[4] R v Pahuja (1987) 49 SASR 191, 201.
In the same case Cox J considered the appropriate use of a Prasad direction in cases involving allegations of sexual assault. He observed:[5]
Secondly, it seems to me that this was not a proper case for a Prasad direction at all. The typical occasion for it in a sexual case will be the discrediting of the complainant in the witness-box — admitted lies or plain contradictions or vacillations — or important contradictions with other Crown witnesses. No doubt there may be other occasions for its use as well, but they are the obvious ones. So far as I can see, there was no foundation at all for the direction here. There was nothing to suggest that the witnesses, including V, did not conform substantially to their witness statements, for instance, and nothing else, certainly on the face of the transcript, that would lead one to type the witnesses as unsatisfactory.
[5] R v Pahuja (1987) 49 SASR 191, 218.
Similarly, in Dean v The Queen,[6] Cox J (with whom Mohr J agreed) observed:
There was no suggestion of the police witnesses being patently unsatisfactory or of the appellant being put to a lengthy but inevitably successful defence. Practically everything turned on the appellant's state of mind and that was a subject on which the jury was likely in the circumstances to be very interested in hearing from the appellant himself, as indeed they showed by their answer. All the indicators, in short, pointed to a continuation of the trial in the normal way. A Prasad direction should not be given merely because the trial judge considers that the Crown case is not a very strong one. That would be to usurp the function of the jury. With all respect to the learned judge, the direction should not have been given in this case.
[6] (1995) 65 SASR 234, 239.
In my view, there is nothing patently unsatisfactory or lacking in cogency about the evidence adduced in the prosecution case. Mr Walsh was candid in his acceptance that he was clearly mistaken when he thought that a shot was fired which struck the side of his vehicle when he was parallel with the accused’s vehicle during one of the overtaking manoeuvers. Whilst giving evidence, Mr Walsh accepted that he could not now recall whether the accused aimed and fired the gun in his direction on any of the occasions which he described in the phone conversations with police. In my view, the accuracy and reliability of this evidence are matters properly left for the consideration of the jury and cannot be said to label the evidence as unsatisfactory.
I therefore refused the applications.