R v B, FG

The applicant, R v B, FG, sought permission to appeal against a conviction for murder and a sentence of life imprisonment with a non-parole period of 20 years. The appeal concerned grounds relating to alleged misdirections by the trial judge regarding the use of lies told by the applicant, and the adequacy of directions concerning withdrawal from a joint criminal enterprise.

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.