R v Curran

Case [2008] SASC 30

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CURRAN

[2008] SASC 30

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Nyland and The Honourable Justice Bleby)

20 February 2008

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CORROBORATION - WHAT CONSTITUTES CORROBORATION - ADMISSIONS AND CONDUCT OF ACCUSED

Appeal against conviction for murder - evidence led of disposal by appellant after alleged offence of items said to be connected with the offence - whether evidence required direction similar to that prescribed in Edwards v R (1993) 178 CLR 193.

R v Nguyen (2001) 118 A Crim R 479; Conway v R (2002) 209 CLR 203; R v Ciantar [2006] VSCA 263, discussed.

EVIDENCE - COURSE OF EVIDENCE AND ADDRESSES

Reference by prosecutor in final address to failure of appellant's counsel to cross-examine prosecution witnesses on certain topics - whether trial judge should have directed the jury on possible explanations for such failure which did not reflect adversely on the conduct of the appellant's case.

Appeal dismissed.

R v Manunta (1990) 54 SASR 17; R v Singh (2003) 86 SASR 473, discussed.

R v CURRAN
[2008] SASC 30

Court of Criminal Appeal:  Duggan, Nyland and Bleby JJ

DUGGAN J.

  1. The appellant has appealed against his conviction on a charge of murder.  The information upon which he was presented for trial alleged that, on 18 March 2005, at Prospect he murdered Leila Maree Drapes.

  2. The prosecution alleged that the appellant, Ms Drapes and her defacto partner, Philip Owen, were involved in manufacturing and selling amphetamines.  It was further alleged that the killing of Ms Drapes arose out of her association with the appellant in these activities.  The case against the appellant was circumstantial in nature.  There were eyewitnesses to the incident during which Ms Drapes was killed, but they were unable to identify the assailant.

  3. Ms Drapes was stabbed to death in Ballville Street, Prospect which runs off Main North Road.  The Windmill Hotel is located on the corner of Main North Road and Ballville Street.  There is a car park at the rear of the hotel and one of the entrances to the car park is located in Ballville Street.

  4. At approximately 11.00 pm on Friday 18 March 2005 a resident who lives adjacent to the car park saw a man chasing a woman along Ballville Street towards Main North Road after the couple had got out of a vehicle which was parked in Ballville Street near the entrance to the car park.  The woman was screaming and she was eventually pulled to the ground by the man opposite the entrance to the hotel car park.

  5. Two men, Mr Stott and Mr Boys, who arrived at the scene independently of each other, also saw the man and the woman on the ground.  They were struggling and the man appeared to be punching the woman.  Mr Boys called out to the man…

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AGLC
R v Curran [2008] SASC 30
Case
[2008] SASC 30
Decision Date

CaseChat Overview and Summary

The case of R v Curran involved an appeal against the conviction for murder of the appellant. The court had to decide whether the trial judge had failed to properly direct the jury regarding the significance of certain evidence. Specifically, the appellant argued that the trial judge should have directed the jury that the evidence of the deceased, Ms Drapes, indicating that she was going to meet someone after parting from the appellant, could have been interpreted as suggesting that she met a third party who may have killed her. This argument was based on the premise that if the deceased met someone else, it could have negated the appellant's involvement in her death. The evidence in question came from a telephone conversation between Ms Drapes and Ms Newport, where Ms Drapes mentioned she would come and get Ms Newport and introduce her to a friend, or that she was about to see someone.

The court considered whether the trial judge's summing-up adequately conveyed the potential significance of Ms Drapes' statements. The trial judge had mentioned the phone call and left it to the jury to draw their own conclusions. The court concluded that the trial judge's summing-up sufficiently put the evidence before the jury, and the jury was aware of the defence's argument regarding the potential meeting with a third party. The court held that there was no need for a specific direction as suggested by the appellant's counsel. The evidence, while potentially supportive of the defence, did not necessarily exclude the possibility of the appellant's guilt beyond reasonable doubt.

The court dismissed the ground of appeal related to the trial judge's direction on this evidence. The court found that the jury was adequately informed of the argument and could consider the possibility of a third party's involvement in the death of Ms Drapes. The final orders of the court maintained the conviction of the appellant for murder, as the evidence, including the appellant's admissions and conduct, sufficiently supported the jury's verdict.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I would dismiss this ground of appeal.Ground 13 – the evidence that Ms Drapes was to meet someone Ground 13 states:The Trial Judge failed to direct that the evidence that the deceased said she was going to meet someone after parting from the appellant was evidence from which it might be inferred that she was intending to meet a third party and that that third party may have met and killed her and in failing to do so, committed adequately to put to the jury a crucial aspect of the defence case. There was evidence that at 9.57 pm on the night of the alleged offence Ms Newport spoke to Ms Drapes on the telephone. The evidence of Ms Newport was somewhat vague, but she agreed that it was a possibility that Ms Drapes told her that she would come and get her and introduce her to a friend. Ms Newport also said that Ms Drapes told her she was about to see someone. She was cross-examined as follows:QWasn’t it still a possibility at the time you finished that conversation with her on the phone that she would come and get you and that you’d be introduced to a friend of her?AA possibility.. . . . . . QDo you accept that it may have been the case that she was saying to you that she was about to see someone?AI’ll accept that.QIt could have been either she was waiting for someone or about to see someone and then she’d come to your place. Do you agree with that?AIt could have been. One of the arguments advanced by counsel for the appellant at the trial was that this was evidence that Ms Drapes was going to meet someone other than the appellant that night and that this person may have killed her. The appellant himself gave evidence that when he was with Ms Drapes at the café she said she had to meet someone. According to the argument on appeal, the trial judge should have told the jury that these statements of Ms Drapes indicated she was going to meet someone that night and that she did in fact meet that person. It was said that the evidence was capable of establishing the possibility that someone other than the appellant met and killed her. This argument was put to the jury by counsel for the appellant at the trial. The trial judge reminded the jury that Ms Drapes telephoned Ms Newport at 9.57 pm. Later in her summing-up the trial judge said:The next event which I mention is at 10.31. This is call 288 which records the deceased telephoning Bernadette Newport. The chart shows it was not connected and the details of it were obtained from the deceased’s telephone. You might remember that Newport claimed there were two conversations between herself and the deceased on that night, but the chart only shows one of them, which I mentioned a little while ago. The rest of their communication was by text message, according to the chart. Ms Newport also told you that in one of the calls the deceased said she was waiting on someone. Anyway, you will make what you will of that. In my view, the jury would have been aware of the significance claimed for the evidence of Ms Newport to which reference has been made and it was not necessary for the trial judge to say more about it.

Decision

Reasons for decision

DUGGAN J NYLAND J (dissent) BLEBY J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J,

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