R v Corish - [2006] SASC 369

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CORISH
[2006] SASC 369
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Anderson)
8 December 2006
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS
Appeal against conviction - appellant convicted following trial by jury in the District Court of the offences of possessing methylamphetamine for sale and manufacturing methylamphetamine - during course of summing up, trial judge directed jury regarding a potential witness who had not given evidence - whether the trial judge erred in directing the jury that the failure of the appellant to call the witness in support of the defence case could be used adversely against him - appeal allowed.
Controlled Substances Act 1984 (SA) s 32(1)(a), s 32(3), referred to.
R v Zampogna (2003) 85 SASR 56; R v Granger (2004) 88 SASR 453; Dyers v The Queen (2002) 210 CLR 285; R v Reed (1993) 65 A Crim R 434, considered.

R v CORISH
[2006] SASC 369
Court of Criminal Appeal Bleby, Gray and Anderson JJ

BLEBY J: The facts relating to this appeal have been sufficiently stated by Gray J. I will not repeat them. Gray J has also referred to the reasons advanced by Gaudron and Hayne JJ in Dyers v The Queen[1] as to why a Jones v Dunkel direction cannot normally be given against an accused in a criminal trial. However, Dyers was a case which the court was not concerned with any statutory or other presumptions. It was a case where the burden of proof lay, from beginning to end, on the prosecution.
[1] (2002) 210 CLR 285, Kirby J (at 305) and Callinan J (at 325-328) generally agreed with Gaudron and Hayne JJ on this point.
Section 32(3) of the Controlled Substances Act 1984 (SA) provides:
(3) For the purposes of this section, a person who knowingly has in his or her possession more than a prescribed amount of a drug of dependence or a prohibited substance, being an amount that is prescribed for the purposes of this subsection, will, in the absence of proof to the contrary, be presumed to have that drug or substance in his or her possession for the purpose of the sale or supply of that drug or substance to another person. (Emphasis added)
Presumptions, particularly statutory presumptions, will have differing effects. Some may be no more than a logical inference to be drawn from a proven fact without in any way affecting the burden of proof. Some may merely raise an evidential burden where, once the primary fact is proved to the requisite standard, the ultimate burden of proof of the presumed fact remains on the party required to prove the primary fact. Some will impose a legal burden of proof if the presumed fact is to be negated.[2]
[2] See generally the classification discussed in J D Heydon, Cross…

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 Corish

Details

AGLC: R v Corish [2006] SASC 369
Case: [2006] SASC 369
Decision Date: 8 December 2006

CaseChat Overview and Summary

In the case of R v Corish, the appellant was convicted by a jury in the District Court of possessing methylamphetamine for sale and manufacturing methylamphetamine. The appellant appealed against his conviction, contending that the trial judge had erred in the direction given to the jury regarding a potential witness who did not give evidence. The potential witness was not called by the appellant to support the defence case, and the appellant argued that the trial judge's direction that this could be used adversely against him was in error.

The primary legal issue was whether the trial judge's direction to the jury regarding the appellant's failure to call the potential witness in support of the defence case was erroneous. The court had to consider the extent to which such a direction could be used adversely against an appellant and whether it amounted to an error that could lead to an unfair trial. The appellant argued that the direction was misleading and prejudicial, potentially influencing the jury's decision.

The court found that the trial judge's direction was indeed erroneous. It held that the direction could have misled the jury into believing that the appellant's failure to call the potential witness was an admission of guilt or a reflection of the case's strength. The court emphasised that the failure to call a witness should not be used as evidence of guilt or be construed as an adverse inference against the appellant. The error was significant enough to potentially affect the outcome of the trial, and thus the appeal was allowed. The convictions were quashed, and the matter was remitted to the District Court for a new trial.

Orders