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R v Collie

R v Collie

Case [2005] SASC 148 20 April 2005

Hearing in Open Court and in Presence of Accused

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COLLIE
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Vanstone)
20 April 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - HEARING IN OPEN COURT AND IN PRESENCE OF ACCUSED
Appellant charged jointly with co-accused on two counts of murder - application by co-accused for separate trial heard in absence of appellant - whether breach of general rule that an accused person must be present throughout his or her trial - whether breach of rule automatically vitiates trial.
Gazepis v Police (1997) 70 SASR 121; R v Preston & Ors [1994] 2 AC 130, discussed.
R v Jones [2002] 2 Cr App R 128; Wilde v The Queen (1988) 164 CLR 365, considered.

CRIMINAL LAW - EVIDENCE
Challenge by appellant to admissibility of relationship evidence between appellant and victims - whether evidence admissible to prove identity of offender.
Wilson v The Queen (1970) 123 CLR 334; R v Hissey (1973) 6 SASR 280; Plomp v The Queen (1963) 110 CLR 234; R v Frawley (1993) 69 A Crim R 208; R v Vollmer [1996] 1 VR 95; R v Serratore (1999) 48 NSWLR 101; R v Toki (No. 3) [2000] NSWLR 999; R v Keogh (No 2) (unreported, 13 May 1997, judgment no. S6152); Ratten v The Queen [1972] A Crim R 378; Walton v The Queen [1988] 166 CLR 283; R v Matthews (1990) 58 SASR 19; R v Georgatsoulis (1994) 62 SASR 351; R v Clark [2001] NSW CCA 494, discussed.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE
Judge's summing up - direction that appellant's failure to give evidence had the consequence that some of the evidence led by the prosecution was uncontradicted - whether comment permissible.
Evidence Act 1995 (NSW) s 20(2); Evidence Act 1929 (SA) s 18(1)(ii), referred to.
Azzopardi v The Queen (2001) 205 CLR 50, distinguished.
R v Porter (2003) 85 SASR 581, discussed.
R v Byron (1988) 145 LSJS 141; Weissensteiner v R (1993) 178 CLR 217, considered.

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS
Relationship evidence disclosed bad character of appellant - whether misdirection to direct jury that evidence of bad character was relevant to credibility - whether proviso should be applied in event of misdirection as to use of evidence of bad character.
Criminal Law Consolidation Act 1935 (SA) s 353(1); Crimes Act 1958 (Vict) s 399, referred to.
Donnini v The Queen (1972) 128 CLR 114; R v Hissey (1973) 6 SASR 280; Harriman v R (1989) 167 CLR 590, applied.
BRS v The Queen (1997) 191 CLR 275; Gipp v The Queen (1998) 194 CLR 106, discussed.
Krakouer v R (1998) 194 CLR 202; Glennon v The Queen (1994) 179 CLR 1; Walker v Walker (1937) 57 CLR 630

Grounds of appeal

[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 Collie

Details

AGLC: R v Collie [2005] SASC 148
Case: [2005] SASC 148
Decision Date: 20 April 2005

CaseChat Overview and Summary

The case of R v Collie dealt with an appeal against conviction, where the appellant was charged jointly with a co-accused on two counts of murder. The key issue before the court was whether the trial was conducted in a manner that was legally sound and just. Specifically, the court had to consider whether the appellant's absence during part of the trial of the co-accused was a breach of the general rule that an accused person must be present throughout their trial. This ruling raised questions about the implications of such a breach on the validity of the trial.

The legal issues at hand centred around the principles of fairness and the right to a fair trial. The court examined whether the appellant's absence during the co-accused's trial, which was held in their absence, constituted a breach of the principle that an accused must be present for their trial. Additionally, the court had to determine whether any such breach would automatically render the trial invalid, or if there were circumstances under which the trial could still be deemed fair and just.

In its reasoning, the court found that the appellant's absence during part of the co-accused's trial did indeed constitute a breach of the rule requiring an accused to be present throughout their trial. However, the court also concluded that such a breach does not automatically vitiate the entire trial. The court held that the trial was otherwise conducted in a fair and just manner, with all other legal requirements being met, and therefore the conviction was upheld. The court emphasised that while the presence of an accused is a fundamental right, the breach must be significant enough to affect the fairness of the trial to warrant a nullification of the conviction.

The final orders of the court confirmed the conviction of the appellant on the two counts of murder. The court determined that the trial, despite the procedural irregularity, was fair and did not prejudice the appellant's rights to a fair trial. The conviction was upheld, and the appeal was dismissed.

Orders