R v Anderson No. Scgrg-99-139, Scgrg-99-149 Judgment No. S423 Summary

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.

CaseChat Overview and Summary

The case of R v Anderson involved an application for leave to appeal against both the conviction and the sentence imposed by the trial judge. The applicant, who was convicted of manslaughter by a jury, sought leave to appeal against both the conviction and the sentence. The initial application for leave to appeal was refused by a single judge of the Supreme Court of South Australia. The applicant then applied for the Full Court to review that decision. The Full Court, comprising Doyle CJ, Debelle J, and Martin J, considered the application in private session and unanimously decided to refuse leave to appeal against both the conviction and the sentence.

The primary legal issues before the Full Court were whether the trial judge's comments during the summing up had any prejudicial effect on the jury's understanding of the principles of proof beyond reasonable doubt and the evaluation of the accused's evidence. Additionally, the court had to determine whether the trial judge's comments regarding self-defence were permissible and whether the sentence imposed was manifestly excessive. The applicant argued that the trial judge's comments had undermined the jury's duty to deliberate without being swayed by nervous scruples, had implied that the accused's evidence should be treated differently, and had failed to explain why the accused might not have chosen to flee.

The Full Court found that the trial judge's comments did not prejudice the jury's understanding of the principles of proof beyond reasonable doubt or the evaluation of the accused's evidence. The comments made by the trial judge were considered permissible and did not imply that the accused's evidence should be treated differently from that of other witnesses. The court also found that the trial judge's comments on self-defence were permissible and did not unfairly influence the jury's consideration of the accused's failure to flee. Finally, the Full Court determined that the sentence imposed was not manifestly excessive as it was based on a finding of fact that the trial judge was entitled to make. The Full Court concluded that there was no reasonable prospect of success on any of the grounds of appeal.

The Full Court's final order was that leave to appeal against both the conviction and the sentence be refused. The court directed that a copy of their remarks be made available to the applicant's legal representative.

R v Anderson No. Scgrg-99-139, Scgrg-99-149 Judgment No. S423

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