R v B, FG

Case [2012] SASC 157

SUPREME COURT OF SOUTH AUSTRALIA

(Applications Under Various Acts or Rules: Permission to Appeal)

R v B, FG; R v S, BD

[2012] SASC 157

Judgment of The Honourable Chief Justice Kourakis

12 September 2012

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - ACCESSORY BEFORE THE FACT

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - AID, ABET, COUNSEL OR PROCURE - KNOWLEDGE

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE - PROBABLE CONSEQUENCE

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - STATUTORY PROVISIONS - AIDING, ABETTING, COUNSELLING OR PROCURING

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE - WHERE RESULT OF TRIAL NOT AFFECTED

Application for permission to appeal against convictions – the applicants FB and BS were charged and tried together with three other co-accused and found guilty by a jury for the offences of murder and aggravated cause harm with intent to cause harm.

The applicants sought permission to appeal against their convictions on multiple grounds.

BS complained on 18 separate grounds: (1) whether the verdicts of guilty in relation to BS were unsafe and unsatisfactory; (2) whether the verdicts were unreasonable and could not be supported having regard to the evidence; (3) whether the trial Judge erred in directing the jury that if they were to find that WH was the stabber, it remained open for them to return verdicts of guilty on both counts; (4) whether the Judge erred in directing the jury that it was for them to determine whether a prosecution witness, NW, was an accomplice – whether it amounted to a miscarriage of justice; (5) whether the trial Judge erred in directing the jury that there was evidence capable of corroborating the evidence of a prosecution witness with that of one of the co-accused – whether it amounted to a miscarriage of justice; (6) and (7) whether the Judge erred in leaving to the jury a prosecution case based on the allegation that BS inflicted the fatal wound to the first victim; (8) and (9) whether the Judge erred in leaving it open to the jury to convict BS of murder on the basis that he aided and abetted the principal offender; (10) whether there was no evidence that BS aided and abetted the perpetrator of the attack on the first victim; (11) whether the prosecution failed to put the case against BS that he was an aider and abetter of the principal offenders against the second victim; (12) and (13) whether the trial Judge’s directions on aiding and abetting were inadequate; (14) whether the trial judge erred by failing to exclude the record of interview of BS; (15) whether the Judge falsely refused to receive a plan from BS that had been drawn by a co-accused; (16) whether the Judge failed to put BS’s defence of intoxication in a balanced way;…

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AGLC
R v B, FG; R v S, BD [2012] SASC 157
Case
[2012] SASC 157
Decision Date

CaseChat Overview and Summary

The applicants, BS and FB, sought permission to appeal their convictions for murder and aggravated cause harm with intent to cause harm. The applicants were part of a group that engaged in a violent attack on a group of Sudanese immigrants at Wingfield Oval. BS was found to have provided assistance to the group prior to the attack, while FB was found to have participated in the attack itself. The applicants argued that there were several errors in the trial that led to a miscarriage of justice.

The legal issues before the court were whether the trial judge's directions to the jury were sufficient, and whether the evidence was sufficient to support the applicants' convictions. Specifically, the applicants argued that the trial judge failed to adequately direct the jury on the need for corroboration of certain witness testimony, and that they were denied a fair trial when the judge directed the jury that the applicants had to communicate their withdrawal from the enterprise to the other participants. The applicants also argued that there was insufficient evidence to support their convictions.

The court found that the trial judge's directions to the jury were sufficient, and that the evidence was sufficient to support the applicants' convictions. The court found that the trial judge's direction on the need for corroboration was adequate, and that the evidence against the applicants was overwhelming. The court found that the direction on withdrawal was unduly favourable to the applicants, but that this did not result in a miscarriage of justice. The court found that the applicants' convictions were supported by sufficient evidence, and that there was no miscarriage of justice.

The court refused the applicants permission to appeal their convictions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The legal significance of a countermand is not in its effect on the mens rea of the accessory. Rather, the common law regards subsequent conduct that sufficiently nullifies the actus reus, the previously given assistance, as a supervening exculpatory event. Nonetheless, it is for the prosecution to prove, if an accused satisfies the evidential onus, that the accessory’s previous assistance was not nullified.The Evidence During the afternoon of 26 October 2009, Akol Akok and Dor Achiek were at the Wingfield Oval with about 20 fellow Sudanese immigrants including the witnesses Bol Deng and Luka Deng, Nuar Ruy, Fuel Agoud, Daniel Kuac, and Joseph Makur (the oval witnesses). Some members of the group left during the afternoon to travel into the city centre. The Wingfield Oval has a north to south orientation. It runs roughly parallel with Eastern Parade to its west and is bounded by St Johns Road to the north and Rosewater Terrace to the south. The oval is enclosed by a low fence. A little to the west of the oval, a grandstand overlooks its western wing. The Sudanese men occupied an area between the grandstand and that western wing. It is common ground that at about 3.00 pm, BS went to the oval and approached the Sudanese men. He asked for and received a cigarette from Achiek. At that time, BS was not wearing a t-shirt and was bleeding from several incised wounds to his torso. The evidence does not reveal when, how, and by whom the wounds were inflicted, but they were not inflicted by any of the Sudanese men at the Wingfield Oval. Several of the oval witnesses testified that when BS was given the cigarette he was carrying a long, yellow handled knife which resembled a meat worker’s knife. The testimony of the oval witnesses differed as to whether BS was accompanied by one or two other persons, and how close his companions were to him at the time. Evidence of BS’s movements shortly before and after he was given the cigarette by Dor Achiek was adduced from several independent witnesses who drove past the oval at about the time. They saw a man without a top and with cuts to his torso walking along nearby streets. One passing motorist testified that she saw two men who had been walking close to the oval loitering in the nearby Foodland supermarket car park on Grand Junction Road. Prosecution witness NW testified that she and WH picked up BS from the Foodland Shopping Centre. BS was with his cousin, JW NW and WH took BS to the home of the co-accused BB, where NW treated BS’s wounds. Prosecution witness JC was at BB’s house at the time. NW testified that at the house BS told the others that he had been “cut by black dogs at the Wingfield Oval”. A little later the group left the house in WH’s car. WH was driving and NW was in the front passenger seat. BS, BB, JW and JC were in the rear seat. JC testified that at first he thought that they were conveying BS to hospital. NW testified that she believed that they were taking him home. Both of them denied any knowledge of a plan to travel to the Wingfield Oval and both claimed to be surprised when the car was driven there. On the way they stopped at the home of HR, who joined them in the car. JC and NW gave inconsistent evidence about how the stopover at HR’s house was arranged but both agreed that they travelled from there to the Wingfield Oval.

Decision

Reasons for decision

Finally, the applicant complains that the cumulative effect of the preceding grounds is that there has been a miscarriage of justice. I have found that no miscarriage of justice was caused by any of the individual matters complained of. Directions which in themselves have not adversely affected the trial of an accused cannot, by their accumulation, have any different effect.Conclusion I refuse the applicants BS and FB permission to appeal.

Ratio Decidendi

Legal Principle Established

I accept that there are many cases in which it is important that the Judge remind the jury that the rejection of an accused’s evidence cannot constitute a makeweight and that even if an accused’s evidence is rejected, it is necessary for the jury to be satisfied beyond reasonable doubt, on the prosecution evidence, that the offence was committed. However, in the circumstances of this case no miscarriage of justice could possibly have occurred. This is not a case in which FB’s evidence might have been rejected because of the contradiction of his testimony on a collateral issue. The jury could only have found FB to have lied about what he saw of the arms carried by the other men, if they accepted JC and NW’s evidence. Having regard to the evidence of the Sudanese witnesses that they were confronted by an armed group that came around the corner of the grandstand, the evidence that FB must have seen the weapons was overwhelming. The evidence that he was the person who struck Akok with the baseball bat was also very strong. In the circumstances of this case the only basis upon which the jury could have rejected FB’s evidence was the very prosecution evidence that proved his knowing participation in the violent attack on the Sudanese men. In those circumstances, no miscarriage of justice arose from the failure to give the direction contended for. This ground is not arguable. I refuse permission to appeal.Ground 4 – Directions or Corroboration FB complains that the Judge failed to direct the jury on the corroboration required of JC and NW’s evidence when considering their testimonial accounts of FB’s involvement. I accept that the corroborative evidence of their account of FB’s involvement necessarily differed from that of the other accused. However, as I have earlier observed, the corroborative evidence of that part of their evidence that implicated FB was overwhelming. It included FB’s own evidence that he was on St Johns Road with a baseball bat. The evidence of the oval witnesses was further strong corroboration of their accounts. This ground is not arguable. I refuse permission.Ground 5 – Directions on Withdrawal On this ground the applicant complains that the Judge erred in law in directing the jury that FB had to communicate his withdrawal from the enterprise to the other participants. It is true that participation in a joint enterprise requires a subjective intention to participate in it and, insofar as extended joint enterprise is concerned, contemplation of the possibility of the commission of the parasitic offence. However, it does not follow that a mere change of mind is sufficient for exculpation by withdrawal after intentional participation. Indeed, the authorities to which I earlier referred show that that is plainly not so. It is an abuse of process to put such a hopeless proposition of law. The direction that was given was unduly favourable to FB. First, JC’s evidence that FB stood back did not discharge the evidential burden carried by the applicant to raise the issue of withdrawal. There was no evidence of any attempt on his part to communicate his change of mind. Standing back was not, in the circumstances of this case, communication of a decision to withdraw. Secondly, having struck the blows that substantially incapacitated Akok, much more than a communication of his change of mind was required to effectively nullify his facilitation of the offences by striking Akok with his baseball bat. This ground is not arguable. I refuse permission.Ground 6 – Direction that NW was an Accomplice