SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, FG
[2013] SASCFC 24
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice David)
11 April 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY - ADEQUACY OF WARNING - LIES BY ACCUSED
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - WITHDRAWAL
Applicant convicted of murder and sentenced to life imprisonment with a non-parole period of 20 years – sought permission to appeal on grounds that trial Judge failed to direct the jury as to the use that could be made of lies told by the applicant – whether jury adequately directed on lies – whether failure to give lies direction amounted to error of law or miscarriage of justice – whether trial Judge misdirected the jury in setting out possible defence that applicant withdrew from extended joint criminal enterprise – whether test for withdrawal from extended joint criminal enterprise is the same as test for withdrawal from joint criminal enterprise.
Held: Appeal dismissed.
Per Sulan J: Notwithstanding that prosecution disavowed reliance on applicant’s lies as consciousness of guilt there was a real danger that jury may have used the lies in that way – the trial Judge erred in failing to warn the jury about the use that could be made of the applicant’s lies – miscarriage of justice only established where a reasonable possibility that such a failure may have affected the jury and deprived the applicant of a chance of acquittal which was fairly open to him – the evidence strongly pointed to applicant being a member of the group armed with various weapons who attacked the Sudanese group – no reasonable possibility that failure to give lies direction could have affected the verdict.
Per David J (Anderson J concurring): It is clear that the alleged lies of the applicant went to the issue of the applicant’s guilt – a Zoneff direction was therefore inappropriate and the issue to be decided is whether an Edwards type direction should have been given – the trial judge did not err in failing to give an Edwards direction as the proof presented at trial that the applicant told those lies was no more or less than proof of the circumstances to prove the charges – on the facts of this case, to suggest there might be a situation where the applicant has lied but at the same time would not be guilty of the offences would be fanciful.
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - MINIMUM TERM, NON-PAROLE PERIOD
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE…
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- AGLC
- R v B, FG [2013] SASCFC 24
- Case
- [2013] SASCFC 24
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the trial judge erred by failing to adequately direct the jury on the use that could be made of lies told by the applicant, and whether such a failure constituted a miscarriage of justice. Additionally, the court considered whether the trial judge misdirected the jury on the defence of withdrawal from an extended joint criminal enterprise, and if the test for withdrawal from an extended joint criminal enterprise differs from that of a standard joint criminal enterprise. The court also addressed potential conflicts between various sections of the Criminal Law (Sentencing) Act 1988 (SA) concerning mandatory minimum non-parole periods and the parity principle, as well as the constitutional validity of these sections.
Per Sulan J, while the prosecution did not rely on the applicant's lies as evidence of guilt, there was a risk the jury might have inferred guilt from them, and the trial judge erred in failing to provide a warning. However, a miscarriage of justice requires a reasonable possibility that the failure affected the verdict, which was not established given the strong evidence pointing to the applicant's membership in the attacking group. David J, with whom Anderson J agreed, found that the lies were integral to proving the charges, making a "Zoneff" direction inappropriate and an "Edwards" direction unnecessary, as suggesting the applicant could have lied but still be innocent would be fanciful on the facts. The court also found no conflict between the relevant sections of the Sentencing Act, holding that mandatory minimum non-parole periods apply equally to adults, that s 10(1a) applies only to the head sentence, and that the parity principle is not offended by different sentencing regimes for adults and youths. The court further determined that the impugned sections of the Act were not constitutionally invalid.
The appeal against conviction was dismissed. Permission to appeal was allowed on one ground but that ground was dismissed, and permission was refused on another ground. The appeal against sentence was also dismissed.
Orders
Orders of the court
Held: Appeal dismissed.Per Sulan J: Notwithstanding that prosecution disavowed reliance on applicant’s lies as consciousness of guilt there was a real danger that jury may have used the lies in that way – the trial Judge erred in failing to warn the jury about the use that could be made of the applicant’s lies – miscarriage of justice only established where a reasonable possibility that such a failure may have affected the jury and deprived the applicant of a chance of acquittal which was fairly open to him – the evidence strongly pointed to applicant being a member of the group armed with various weapons who attacked the Sudanese group – no reasonable possibility that failure to give lies direction could have affected the verdict.Per David J (Anderson J concurring): It is clear that the alleged lies of the applicant went to the issue of the applicant’s guilt – a Zoneff direction was therefore inappropriate and the issue to be decided is whether an Edwards type direction should have been given – the trial judge did not err in failing to give an Edwards direction as the proof presented at trial that the applicant told those lies was no more or less than proof of the circumstances to prove the charges – on the facts of this case, to suggest there might be a situation where the applicant has lied but at the same time would not be guilty of the offences would be fanciful.
Held: Appeal dismissed.
Per Sulan J (Anderson and David JJ concurring): No conflict arises between s 10(1)(o) and ss 32A and 32(5)(ab) of the Criminal Law (Sentencing) Act 1988 (SA) – if two adults are sentenced to murder the non-parole period applies to them both equally – no conflict arises between s 10(1a) and ss 32A and 32(5)(ab) – it is clear that s 10(1a) is meant to apply to the head sentence only – as no conflict arises between these sections then the mandatory minimum non-parole periods continue to operate – the parity principle is not offended where different sentences are imposed on an adult as compared to youths who are involved in the same offending – the age of the offenders and the different sentencing regimes is a relevant factor to discriminate between the offenders – ss 32A and 32(5)(ab) are not constitutionally invalid – the sections do not impose duties on a court which are incompatible or repugnant with the institutional integrity of the Supreme Court of South Australia – the sections do not deny the reality or appearance of impartiality or independence on the part of any court called upon to apply the provisions.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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