R v Blair

Case [2005] SASC 319

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BLAIR & KIPA

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Debelle and The Honourable Justice Besanko)

19 August 2005

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT

Appeal against conviction – appellants jointly charged with one count of false imprisonment, one count of demanding money with threats and three counts of robbery in company – jury unable to reach verdict in relation to first, second, third and fifth counts – verdict of guilty in relation to fourth count – alleged inconsistency of verdicts – whether verdict unsafe and unsatisfactory – appeal dismissed.

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE

Additional grounds of appeal raised by appellant Kipa – admissibility of photographic identification – admissibility of dock identification – whether prosecution introduced a new case in its closing address to the jury – whether miscarriage of justice resulted – alleged deficiencies and inconsistencies in and between evidence of Crown witnesses – whether verdict unsafe and unsatisfactory – appeal dismissed.

Kidnapping Act 1960 s 3(1); Criminal Law Consolidation Act 1935 ss 158(b), 353(1); Crimes Act 1990 (NSW) ss 327(1), 328; Criminal Appeal Act 1912 (NSW) s 6(1), (2), referred to.
Mackenzie v The Queen (1996) 190 CLR 348; R v Stone (unreported, EWCA Crim, Devlin J, 13 December 1954); R v Kirkman (1987) 44 SASR 591; MFA v The Queen (2002) 213 CLR 606; Jones v The Queen (1997) 191 CLR 439; R v Hansen (2002) 84 SASR 54; Alexander v The Queen (1981) 145 CLR 395; R v Bunting & Wagner (No 6) (2003) 231 LSJS 44; R v Dixon & Henry (unreported, SASC, 11 December 1996, judgment no S5924); R v Britten (1988) 51 SASR 567; Clark & Ors v The Queen (1996) 91 A Crim R 46; M v The Queen (1994) 181 CLR 487, considered.

R v BLAIR & KIPA
[2005] SASC 319

Court of Criminal Appeal:  Duggan, Debelle and Besanko JJ

  1. DUGGAN J.         I agree that the appeals should be dismissed for the reasons given by Besanko J.

  2. DEBELLE J.        I have had the advantage of reading the draft reasons of Besanko J.  I agree with them.  I agree that the appeals should be dismissed.

  3. In respect of that ground of each appeal which in effect complained that the verdict of guilty on count 4 was inconsistent with a failure to reach a verdict on the other counts, I add the following.  The failure of the jury to reach a verdict means no more than that the jury was unable to agree.  It does not go so far as to indicate that the jury disbelieved the complainant, a conclusion which might be open if a verdict of not guilty had been returned.  Where, as here, the…

Continue reading R v Blair

Sign in free to access the full text

Details
AGLC
R v Blair [2005] SASC 319
Case
[2005] SASC 319
Decision Date

CaseChat Overview and Summary

In the case of R v Blair, the appellants, Blair and Kipa, were jointly charged with one count of false imprisonment, one count of demanding money with threats, and three counts of robbery in company. The jury was unable to reach a verdict on the first, second, third, and fifth counts but found the appellants guilty on the fourth count. The appellants appealed against their convictions, arguing that the verdicts were inconsistent and unsafe. Additionally, Kipa raised specific grounds of appeal, including the admissibility of photographic and dock identification, the prosecution introducing a new case in its closing address, and alleged deficiencies and inconsistencies in the evidence of Crown witnesses.

The court examined whether the verdicts were factually inconsistent and if they were unsafe or unsatisfactory. It concluded that the inconsistency, if any, was factual rather than legal. The verdict could only be set aside if it was established that the verdict was unsafe or unsatisfactory, which the court did not find to be the case. The court also considered the additional grounds of appeal raised by Kipa, including the admissibility of identification evidence and the alleged introduction of a new case by the prosecution. After evaluating these issues, the court found no basis to conclude that the verdict was unsafe or unsatisfactory.

In light of the court's reasoning, it dismissed the appeals of both appellants. The court upheld the convictions, finding that the evidence supported the jury's decision and that the verdicts were not inconsistent or unsatisfactory. The court did not identify any procedural errors or misdirections that warranted overturning the jury's decision. Consequently, the convictions remained intact, and the appeals were dismissed in their entirety.

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

On 1 November 2001 Mr John Callus and Mrs Irene Callus met the appellant Blair in the metropolitan area of Adelaide. Mr Callus first met the appellant Blair at the Belair Hotel. The appellant Blair was with four other males who were all big men with solid builds and the appellant Blair told Mr Callus that they were all Maoris. They went to Mr Callus’ home and there was a discussion between the appellant Blair and Mr and Mrs Callus. The appellant Blair said that he was hoping to get some money from Mr Sadler and he mentioned a figure of $60,000. Mrs Callus gave evidence that the appellant Blair said that Mr Sadler owed him $60,000 and that, if he did not give it to him, he was going to be put in the back of the van and they would “rough him up”. Mr Callus overheard the appellant Blair saying something to this effect to his wife.The evidence of the appellant Blair It is convenient at this point to identify the key features of the appellant Blair’s evidence. The appellant Blair said that Mr Sadler owed him money as a result of their business dealings. In October 2001 he lived in Sydney. He wished to come to Adelaide with the appellant Kipa to inspect a hotel he was looking to purchase. He hired a Tarago van and drove to Adelaide with the appellant Kipa and another man. When they arrived in Adelaide they were joined by two other men. They stayed at the Old Lion Apartments from 31 October 2001 to Friday 2 November 2001. He then drove back to New South Wales with the appellant Kipa. While in Adelaide he decided to speak to Mr Sadler who owed him about $60,000. He met Mr Sadler at about 9.30 am on 2 November 2001. There were no threats and no journey to the Adelaide Hills in a van. Mr Sadler asked the appellant Blair if he could help him to dump his Porsche but the appellant Blair said that he was not interested. The appellant Blair said that he did not drive back to New South Wales in convoy with a Porsche or indeed with any other vehicle. The appellant Blair and the appellant Kipa came back to Adelaide about a week later at which time they were arrested. I turn now to consider the grounds of appeal. I start with the grounds which are common to both appellants.Alleged inconsistency of verdicts The appellants submit that the conviction in relation to the fourth count is inconsistent with the jury’s inability to reach a verdict of guilty in relation to the first and second counts. The particulars of this ground of appeal are as follows:The Crown case was that the facts which based Counts 1 and 2 ie, the false imprisonment and the demanding money with menaces were the basis upon which the car subject of Count 4 was stolen.As the jury were not satisfied that either Count 1 or Count 2 occurred they could not be satisfied that the requisite element of robbery had occurred sufficient to justify a conviction for Count 4.The jury must have speculated that the robbery must have occurred some other way, about which there was no evidence.A number of general points may be made at the outset. First, this is not a case of legal or technical inconsistency. Such a case will be apparent on the face of the court’s record and the examples of legal or technical inconsistency given by Gaudron, Gummow and Kirby JJ in Mackenzie v The Queen (1996) 190 CLR 348 (“Mackenzie”) include a person being convicted of attempt to commit an offence and of the completed offence, and a person being convicted of larceny and receiving in respect of the same property and on the same occasion. If this is a case of inconsistency, it is a case of factual inconsistency. In a case of alleged factual inconsistency, the verdict will only be set aside if it rises to the point of establishing that the verdict is unsafe or unsatisfactory.

Decision

Reasons for decision

DUGGAN J DEBELLE J
In my opinion the verdict is not unsafe or unsatisfactory.Conclusion In my opinion the appeal of the appellant Blair and the appeal of the appellant Kipa should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J, DEBELLE J

Full text does not contain this section.