(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice White)
8 July 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction - defendant and appellant convicted of one count of aggravated serious criminal trespass at a place of residence and two counts of aggravated robbery - whether verdicts unsafe and unsatisfactory and against the weight of the evidence.
Held: verdicts not unsafe or unsatisfactory - assessment of evidence allowed the conclusion that it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty.
EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PUBLIC POLICY - OTHER MATTERS
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - PUBLIC INTEREST IMMUNITY - GENERALLY
CRIMINAL LAW - PROCEDURE - HEARING IN OPEN COURT AND IN PRESENCE OF ACCUSED - IN PRESENCE OF ACCUSED PERSON
Whether ruling of Judge upholding a claim for public interest immunity with respect to the identity of an informer gave rise to a miscarriage of justice - whether procedure followed in determining claim for public interest immunity where the defendant and his counsel were excluded from the courtroom during part of the Court's consideration, gave rise to a miscarriage of justice.
Held: the Judge's ruling with respect to public interest immunity not in error - substantial public interest in maintaining confidentiality with respect to identity of informer.
(Gray and Vanstone JJ) procedure followed by Judge in excluding defendant and his counsel when considering claim for public interest immunity did not give rise to any material unfairness nor a risk of a miscarriage of justice.
(White J) exclusion of defendant and his counsel from the courtroom when considering claim for public interest immunity amounted to a significant irregularity in conduct of the trial - however, that inappropriate exclusion did not give rise to a miscarriage of justice and the proviso should be applied.
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF PROSECUTOR OR PROSECUTION
Evidence at trial given by one witness called by prosecutor at odds with evidence of other witnesses - prosecutor made submission in closing address that witness' evidence may have been affected by bias or otherwise untruthful - whether prosecutor's submission inappropriate - whether Judge's failure to direct in relation to submission resulted in miscarriage of justice.
Held: (Gray J) Although the witness not having an opportunity to answer an allegation against her credibility, was unfortunate, it was not an irregularity that gave rise to miscarriage of justice.
(Vanstone and White JJ) prosecution submission not irregular and did not give rise to miscarriage.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading R v Andrews
Sign in free to access the full text
Details
AGLC
R v Andrews [2010] SASCFC 5
Case
[2010] SASCFC 5
Decision Date
CaseChat Overview and Summary
The appeal concerned a defendant convicted of aggravated serious criminal trespass at a place of residence and two counts of aggravated robbery. The appellant argued that the verdicts were unsafe and unsatisfactory, and against the weight of the evidence. The appeal was heard by Gray, Vanstone, and White JJ of the Supreme Court of South Australia.
The court was required to determine whether the evidence presented at trial was sufficient to satisfy the jury beyond reasonable doubt of the defendant's guilt. This involved assessing the overall strength of the prosecution's case and considering whether any doubts about the defendant's guilt were reasonably entertained. Additionally, the court examined the trial judge's handling of a public interest immunity claim concerning an informer's identity and the procedure adopted for its determination, including the temporary exclusion of the appellant and his counsel. The court also considered the conduct of the prosecuting counsel's final address to the jury, specifically regarding references to a witness, Ms. Williams, and whether these references were improper or prejudicial.
The majority of the court concluded that an independent assessment of the evidence supported the jury's findings, and it was open to them to be satisfied of the defendant's guilt beyond reasonable doubt. They found that the jury could not be said to have entertained a doubt about the defendant's guilt based on the material presented. Regarding the public interest immunity claim, the judges agreed with the trial judge's ruling and found the procedure, though unusual, to be justified in the circumstances and not an irregularity that called the propriety of the trial into question. The court also found that the prosecuting counsel's references to Ms. Williams in the final address were not reprehensible, and that the prosecution had presented reasonable options for the jury to consider regarding her evidence and potential bias.
The appeal was dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GRAY J
An independent assessment of the evidence outlined allows the conclusion that it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty. It cannot be said on the evidence that the jury must have entertained a doubt about the defendant’s guilt. Conclusion I would dismiss the appeal. VANSTONE J: I have had the benefit of reading the reasons in draft of Gray J and White J. I agree with them that this appeal should be dismissed. In his reasons Gray J summarises the factual context of the various issues and I need not cover that ground again. I agree that on the material before him, the trial judge’s ruling on the question of disclosure of the basis for the claimed public interest immunity and the identity of the informer was correct. I agree with the reasons of both Gray J and White J for so deciding. The procedure followed in this case, and in particular the exclusion of the appellant and, briefly, his counsel, from the courtroom while the claim for public interest immunity was explored, is very unusual. However, I agree with Gray J that, had the trial been interrupted and delayed while the relevant police evidence was reduced to affidavit form for the judge’s eyes, the procedure would have been barely more satisfactory from the appellant’s viewpoint and the result the same. The judge plainly acted to expedite the resolution of the issue, without allowing it to jeopardise the trial. I would be slow to criticise such a decision made in the pressing circumstances faced by the trial judge. I do not consider that the brief exclusion of the accused or his counsel was an irregularity of such character as to call into question the propriety of the trial. I turn to the issue arising from the final address to the jury of counsel for the prosecution. I cannot agree with counsel’s submission that the conduct of prosecuting counsel in respect of Ms Williams – either in counsel’s examination-in-chief, or references to Ms Williams in the final address – was in any way reprehensible. In order to consider this issue it is necessary to set out a lengthy passage from her final address. [PROSECUTOR]: Ladies and gentlemen, before lunch I was telling you about the evidence of the STAR Force officers and some suggestions that the prosecution has as to what you might think of their evidence. But in considering all of that, you might be wondering what to make of Linda Williams and how her evidence fits in with all of this.What I suggest about Linda Williams is that there are really three options for you to consider. The first option is that what she told you is what happened; that is, the accused was arrested in the front yard of No.8 and that she saw a kicking and a punching motion towards him, although you will remember she did not suggest that she saw any direct contact between police and the accused at that point.The second option is that she was perhaps mistaken about what she saw and that what she saw was perhaps, actually, the apprehension of the father of the accused. After all, she said that when she looked out the window, she saw the accused face down.So perhaps she was mistaken about who she saw on the ground and, indeed, what she saw happening to that person. Perhaps it was the accused's father she saw because it will be open to you to find that he was, perhaps, much closer or, indeed, in the front yard of No.8, if not still on it when he was being dealt with by, who you might think, was Brevet Sergeant Wheeler.The third option is that perhaps due to the nature of the relationship with the accused - she told you her daughter was still in a relationship with him - she was somewhat biased in what she told you about that evening and perhaps not even being entirely truthful with you about it.Might not her relationship with the accused have clouded what she told you about that night? After all she, like any witness in this trial giving evidence, was giving evidence from a particular perspective and that was, essentially, in the position of the mother-in-law of the accused.So, just looking at option No.3 for a moment, ask yourselves what did you make of Linda Williams as a witness? Do you think, perhaps, that she did come to court with a little bias in favour of the accused? I will give you some examples.You will recall her evidence about the appearance of the accused. In particular, you might think she was adamant that she had never seen him with more than a little bit of growth on his face, maybe four to five days, and that he was usually clean-shaven. She told you that prior to March of 2007 he had been in a relationship with her daughter for approximately three years. Ask yourselves, ladies and gentlemen, how does that sit with the photograph on the accused's driver's licence, which is agreed was taken in January of 2006? You can see that photograph in the photographs that you have and the original will be available to you. But in that photograph, you might think the accused clearly has quite a substantial amount of facial hair. So, you might think that there is some proof there that perhaps she has been a little bit biased about what she says. It is a matter for you.Another example might be what she told you about coming out of her house, because she told you this about when she came out of her house that night: 'I noticed when I came out the driveway, Rick was handcuffed ... and he was screaming out to his dad too.'You might remember when the accused was first sitting in the police car, on the video after the handover by STAR Force, he was asked about people inside the house by Senior Constable Mundy, and he was asked this question 'Is Linda asleep now?', and his answer was 'Yeah' and then there was some discussion about where her bedroom was, you might remember from that video. So, ladies and gentlemen, ask yourselves: how do those two pieces of evidence fit together? Linda Williams would have you believe she saw the tail-end of this episode, that she was out the front and the accused was saying 'Come on now, you have got a witness here'. The accused told police she was asleep, not out the front of the house, but asleep.You might think that that would have been the case because you might think that there had to have been a delay, however brief, in the arrest team arousing the people in the house, if that's what happened and those people, including the number of small children who had to be woken up, actually coming outside.So, ladies and gentlemen, if you think that perhaps Ms Williams has been a little biased or maybe even not entirely honest on some of those topics, how does that affect your opinion of her, about what she says she saw from the front window or even her evidence about the hair clippers outside her house that she told you were used to shave the children's hair? Might you not have a doubt about some of those matters? It is a matter for you, but I suggest that you might.