R v Anderson No. Scgrg-99-139, Scgrg-99-149 Judgment No. S423
[1999] SASC 423
•1 October 1999
R v ANDERSON
[1999] SASC 423
Court of Criminal Appeal: Doyle CJ, Debelle and Martin JJ (ex tempore)
DOYLE CJ, DEBELLE AND MARTIN JJ: This is an application for leave to appeal against conviction and against sentence. The applicant was convicted upon the verdict of a jury of manslaughter. The applicant applied for leave to appeal against the conviction, and against the sentence imposed by the trial Judge. A single Judge of this court has refused leave to appeal against conviction and against sentence.
By application dated 9 September 1999, the applicant applied to have determined by the Full Court her application for leave to appeal against conviction and against sentence. The application is supported by a written summary of argument.
The application was considered by the Full Court in private, pursuant to rule 15(7) of the Supreme Court Criminal Appeal Rules 1996. The Court, for that purpose, comprised Debelle J, Martin J and me. We are unanimously of the opinion that leave to appeal against conviction should be refused, and that leave to appeal against sentence should be refused.
The first ground on which leave to appeal against conviction is sought relates to a comment made by the trial Judge when dealing with the topic of the responsibility of a jury to do its duty. In effect, the Judge told the jury that they had a responsibility to bring in an appropriate verdict, and not to be deflected by nervous scruples or worries. The complaint is that that comment has undermined the Judge's direction about proof beyond reasonable doubt.
No criticism can be made of the direction about proof beyond reasonable doubt. The only complaint is that in doing so, the Judge said that the jurors should have regard to their duties and responsibilities as jurors.
The Court is satisfied that the jurors could not have regarded the earlier comment about nervous scruples as in any way affecting the question of reasonable doubt. The Court does not consider that this ground of appeal has any reasonable prospect of success.
The second ground relates to a comment that the Judge made that the accused had the capacity to tell lies, if it suited her purpose. The comment was made in the context of a case in which it was admitted that the accused had told lies. The Court does not consider that the comment was impermissible, nor was it the sort of comment that implies that the evidence of the accused is to be treated differently from the evidence of other witnesses.
The third complaint relates to a comment that a Judge made about the issue of self-defence. The effect of the comment was that it was open to the accused to flee. The complaint is that the Judge should have explained to the jury the reasons why the accused might not have chosen to flee. We take the view that the comment was permissible, and that in the context of the summing up, there was nothing unfair about the failure to canvass reasons why the accused might not have fled in the particular circumstances.
For those reasons, the Court is of the view that leave to appeal against the conviction should be refused.
As to the sentence, it suffices to say that the Court is of the view that there is no reasonable prospect of a court being satisfied that the sentence is manifestly excessive. The Judge sentenced the accused on the basis of a finding of fact that it was open to him to make. On that basis, the sentence cannot be regarded as excessive.
Accordingly, the order of the Court is that leave to appeal against conviction be refused, and that leave to appeal against sentence be refused, and I direct that a copy of these remarks be made available to Ms O'Connor for provision to the applicant.
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