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R v Copeland

R v Copeland

Case [2010] SASCFC 11 2 August 2010

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COPELAND
[2010] SASCFC 11
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice David)
2 August 2010
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
EVIDENCE - ADMISSIBILITY AND RELEVANCY - SIMILAR FACTS - IN GENERAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - CONTROL OF PROCEEDINGS - DISCHARGE OF JURY
Appeal against conviction – information contained six counts – whether trial judge erred in refusing to sever counts 2 and 6 from trial on other counts – whether evidence of counts 2, 3, 4, 5 and 6 cross-admissible – whether trial judge gave jury adequate directions with respect to use of similar fact evidence and cross-admissibility – whether trial judge erroneously refused to discharge jury – whether trial judge erred in failing to direct the jury that they should consider the evidence of the appellant in the same way as that of any other witness – whether defence case adequately put to the jury – whether argument as to implications to be drawn from appellant's willingness to take part in identification parade erroneously withdrawn from jury – whether convictions unsafe and unsatisfactory.
HELD: appeal dismissed – the trial judge did not err in refusing to sever counts 2 and 6 – counts 2 and 6 properly included in series of offences which exhibited underlying unity – evidence in relation to count 6 was cross-admissible with other counts of which the appellant was convicted – evidence of counts 2, 3, 4, 5 and 6 cross-admissible – trial judge gave adequate and proper directions in relation to use of similar fact evidence and cross-admissibility – no possibility of miscarriage of justice arising from incident which led to request for the jury to be discharged – sufficient direction given in relation to the proper approach in considering appellant's evidence – trial judge’s decision to withdraw evidence of appellant’s willingness to participate in identification parade could not have affected the result of the trial – verdicts not unsafe or unsatisfactory.
Criminal Law Consolidation Act 1935 (SA) s 278, referred to.
Moorov v H M Advocate (1930) JC 68; Director of Public Prosecutions v Boardman [1975] AC 421; R v Armstrong (1990) 54 SASR 207; Hoch v The Queen (1988) 165 CLR 292; R v Ong (2001) 80 SASR 537; R v Copeland (1997) 194 LSJS 1; M v The Queen (1994) 181 CLR 487, discussed.

R v COPELAND
[2010] SASCFC 11
Court of Criminal Appeal: Doyle CJ, Duggan and David JJ

DOYLE CJ: I agree with the orders proposed by Duggan J. I agree also with his reasons. There is nothing that I wish to add.
DUGGAN…

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 Copeland

Details

AGLC: R v Copeland [2010] SASCFC 11
Case: [2010] SASCFC 11
Decision Date: 2 August 2010

CaseChat Overview and Summary

The appeal concerned a criminal conviction where the appellant, R, was charged with six counts. The primary dispute revolved around whether the trial judge had erred in refusing to sever counts 2 and 6 from the trial of the other counts, and whether the evidence relating to these counts was properly admitted and considered by the jury. The appeal was heard by Doyle CJ, Duggan and David JJ.

The legal issues before the court included whether the trial judge erred in refusing to sever counts 2 and 6, whether the evidence of counts 2, 3, 4, 5, and 6 was cross-admissible, and if the trial judge provided adequate directions to the jury regarding the use of similar fact evidence and cross-admissibility. Further issues concerned whether the trial judge wrongly refused to discharge the jury, whether the appellant's evidence was considered appropriately, and whether the withdrawal of an argument regarding the appellant's willingness to participate in an identification parade led to an unsafe or unsatisfactory conviction.

The court held that the trial judge did not err in refusing to sever counts 2 and 6, finding that these counts were properly included as part of a series of offences exhibiting underlying unity. The evidence in relation to count 6 was deemed cross-admissible with the other counts of which the appellant was convicted, as was the evidence of counts 2, 3, 4, 5, and 6. The directions given by the trial judge concerning similar fact evidence and cross-admissibility were considered adequate and proper. The court also found no possibility of a miscarriage of justice arising from the incident that prompted the request to discharge the jury, and that sufficient direction was provided on the proper approach to considering the appellant's evidence. The decision to withdraw the argument about the appellant's willingness to participate in an identification parade was not considered to have affected the trial's outcome, and the verdicts were deemed not unsafe or unsatisfactory.

Orders