R v Edwards - [2007] SASC 202

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v EDWARDS
[2007] SASC 202
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Sulan)
8 June 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE
Appeal against conviction and sentence - appellant convicted by jury of manslaughter and sentenced to be imprisoned for four years with a non-parole period of eighteen months - whether failure of trial Judge to declare mistrial, on the basis that jury had been presented with inaccurate information and evidence regarding the times at which events occurred in relation to the offence of which the appellant was convicted, resulted in a miscarriage of justice - whether re-trial necessary - Held: Appeal against conviction allowed - appellant did not receive a fair trial because there is a real risk the jury convicted on an erroneous factual basis - re-trial ordered.
Criminal Law Consolidation Act 1935 (SA) s 13, referred to.
R v ADW (2002-2003) 84 SASR 178; R v Birks (1990) 48 A Crim R 385; R v Gas (1997-1998) 98 A Crim R 80; R v Szabo (2000) 112 A Crim R 215; R v Tran (2000) 118 A Crim R 218; Webb v The Queen (1994) 181 CLR 41; Whitehorn v The Queen (1983) 152 CLR 657, applied.
R v Arthur (1966) 84 WN (Pt 1) NSW 121; R v Crowe [1985] 2 Qd R 389; R v Davis (No 2) (1960) 4 Cr App R 235; R v Green (1950) 34 Cr App R 33; R v Ion (1951) 34 Cr App R 152; R v Kachikwu (1968) 52 Cr App R 538; R v Rabey [1980] WAR 84; R v Townsend (1982) 74 Cr App R 218, considered.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS
Further grounds of appeal - whether evidence admitted by trial Judge was hearsay - Held: Appeal dismissed on these grounds.
Consideration of directions under s 15, s15A and s 15B of Criminal Law Consolidation Act 1935 (SA) in respect of self-defence, defence of another and assisting the lawful arrest of an alleged offender. Held: There was no misdirection.
Criminal Law Consolidation Act (1935) (SA) s 15, s 15A, s 15B, referred to.
Subramaniam v Public Prosecutor [1956] 1 WLR 965; Walton v The Queen (1988-1989) 166 CLR 283, applied.

R v EDWARDS
[2007] SASC 202
Court of Criminal Appeal: Doyle CJ, Bleby and Sulan JJ

DOYLE CJ: I would allow the appeal, set aside the conviction and sentence and order that there be a retrial of the Information.
The prosecution case and a significant part of the defence case was put to the jury on the basis of…

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 Edwards

Details

AGLC: R v Edwards [2007] SASC 202
Case: [2007] SASC 202
Decision Date: 8 June 2007

CaseChat Overview and Summary

In the case of R v Edwards, the appellant was convicted by a jury of manslaughter and subsequently sentenced to imprisonment. The primary issue in this appeal was whether the failure of the trial Judge to declare a mistrial, due to the jury being presented with inaccurate information regarding the timing of events, resulted in a miscarriage of justice. The appellant argued that this error deprived him of a fair trial and necessitated a re-trial. The court considered whether the trial Judge's decision not to declare a mistrial had led to a miscarriage of justice and whether a re-trial was required.

The court examined the evidence and circumstances surrounding the incident, which occurred at the Ramsgate Hotel on 27 February 2005. The appellant, a security officer, was involved in an altercation that resulted in the death of Mr Esposito. The accuracy of the timing of events, which was crucial to the case, was compromised when it was discovered that the assumption about the time of events was incorrect. This error was not rectified before the case was submitted to the jury, leading to concerns about the fairness of the trial.

The court concluded that the appellant did not receive a fair trial due to the real risk that the jury's decision was based on an erroneous factual premise. The trial Judge's refusal to declare a mistrial, despite the significant error in the timing of events, meant that the appellant's defence was presented on a flawed basis. The court determined that this constituted a miscarriage of justice and ordered a re-trial to ensure the appellant received a fair hearing.

The appeal against conviction was allowed, and the appellant's conviction was quashed. A re-trial was ordered to address the miscarriage of justice identified.

Orders

Orders of the court

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Background

Background to the litigation

The primary issue raised in the appeal is whether the failure of the trial Judge to declare a mistrial resulted in a miscarriage of justice. The prosecutor opened the case on the basis that events surrounding the incident, which resulted in the deceased’s death, happened at certain times. Counsel for the defence had no basis to challenge that assertion. During the evidence of a defence witness, it was discovered that the assumption made by the prosecutor and defence counsel about time was wrong. One of the police witnesses had been aware of the correct position before the trial commenced, but had failed to inform prosecuting counsel. The case was left to the jury without the error being corrected. In order to understand how the situation came about, and the consequences that flowed therefrom, it is necessary to give a detailed account of the facts and how the trial proceeded.Background The conviction of the appellant arose out of an incident at the Ramsgate Hotel on the evening of 27 February 2005. The appellant was employed at the hotel as a security officer. Mr Esposito was at the hotel that evening with two friends, Wade Mills and Kane Reid. They had arrived at the hotel at about 8 p.m., having attended the Henley Food and Wine Fair earlier that day. During the evening, shortly before the incident, the three men were at a bar in the gaming room. The entrance to the gaming room is from the lobby area, which is west of the gaming room. One of the entrances to the hotel is from a porch on the western side of the hotel which leads into the lobby. The lobby is approximately 2.4 metres wide and about 11 metres long. On the northern side of the lobby there is an alcove containing an ATM machine. The ATM machine is approximately 5 to 6 metres east from the entrance to the hotel and about 5 to 6 metres west from the door to the gaming room. There is a staircase on the northern side of the lobby approximately 8 to 9 metres from the western entrance. On the north side of the hotel is a large front bar which extends almost the length of the northern perimeter of the building. On the southern side of the lobby is a bistro. The entrance to the bistro is opposite the alcove in which the ATM is situated. Immediately east of the bistro is the kitchen area. Throughout the hotel there are a number of security cameras. There was a camera in the lobby at the foot of the staircase, about 2.6 metres from the floor, which was pointed to the alcove focussing on the area of the ATM. The camera is pointing in a south-westerly direction giving a view of part of the lobby, including the ATM alcove, in an area west of the stairs and capturing part of the western and southern areas of the lobby. There were a number of cameras in the gaming room, one of which pointed towards the door of the gaming room. The footage from each camera was recorded on a system which had been developed from a computer program (“DVR”). It is not necessary to detail the technical aspects of that system. It was possible to retrieve footage and observe what the camera had filmed by use of that computer program. The program enabled a person to view activities in the hotel at any point in time during which the cameras were operating. So, for each camera, it was possible to view the DVR and observe what the camera had observed at any particular time. The time was shown on the picture so that, if an incident was recorded, the time at which the incident was recorded would be seen on the screen. The system enabled a person to view the disc after events had occurred, and it was possible to re-create activities which had been recorded in different parts of the hotel at a given time. It was possible to search the images from a camera at blocks of time. Therefore, it was possible to take a segment of time and view the activities picked up by a camera in a particular position at any second of time. A central part of the appeal related to the time shown as the time of the events which had occurred and the accuracy of the time when compared to the actual time during which those events occurred. I shall refer to the time shown on the DVR as “Ramsgate time” and the actual and correct time when events occurred as “Real time”.

Evidence

Evidence Before The Court

The evidence was led and admitted as evidence which was relevant to the appellant’s state of mind and understanding of the situation. It was relevant to the subjective and objective questions of whether the appellant’s conduct was proportional to the threat. The jury was directed that they could only use the evidence if they were satisfied that the appellant had heard any of the comments. The statements were not used as testimonial statements. They did not offend the hearsay rule. Admissibility of Mr Jurkovic’s evidence Mr Jurkovic was at the hotel. He observed a security officer who had the deceased in a headlock. He spoke to the security officer It appears that there might have been some confusion about whether Mr Jurkovic was referring to the appellant or the security officer, Courtney, who had first placed the deceased in a headlock. It was contended that the trial Judge erred in admitting the evidence of Mr Jurkovic. Counsel for the appellant complained that the Judge failed to direct the jury that if the witness was giving evidence about the wrong security officer the jury should ignore it. It was the Crown case that Mr Jurkovic was mistaken and that it was open to the jury to conclude that he had made the statements to the appellant and not to the security officer, Courtney. The complaints have no substance. The trial Judge was correct in ruling that Mr Jurkovic’s evidence was admissible. If Mr Jurkovic was speaking to the appellant, then the evidence was relevant. If, on the other hand, Mr Jurkovic was mistaken and the jury concluded that there was a reasonable possibility that he had been speaking to another security officer then they would disregard Mr Jurkovic’s evidence. It was not for the Judge to make that determination. The trial Judge reminded the jury that counsel for the prosecution put to them that Mr Jurkovic was a very important witness in the trial; that it was conceded that he got something wrong in that he described the first person who put a neck restraint on Mr Esposito as the accused, and he was clearly wrong, as it was Mr Courtney. The trial Judge referred the jury to the criticism by defence counsel of Mr Jurkovic’s evidence. Counsel had put to the jury that Mr Jurkovic was confused between Mr Courtney and the appellant, and that the incident that Mr Jurkovic was describing involved Mr Courtney, not the appellant. The jury was well aware of the issue which arose in relation to the evidence of Mr Jurkovic. They were aware that, if there was any confusion, they could not rely on his evidence. This ground of appeal must fail.Self defence and making or assisting in the lawful arrest of an alleged offender Section 15 of the Act relevantly provides:(1)It is a defence to a charge of an offence if –(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and(b) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.(2)…(3)For the purposes of this section, a person acts for a defensive purpose if the person acts –(a) in self defence or in defence of another; or(b) …(4)…(5)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.

Decision

Reasons for decision

…In my view, the introduction of two different bases for a conviction, admittedly falling within the offence as charged and open on the evidence, occurring after the final address of defence counsel, was a radical enlargement of the case which the applicant had to meet without any opportunity for his counsel to address the jury on those additional bases of guilt. In short there was a miscarriage of justice.[27] (Citations omitted)[27] (1997-1998) 98 A Crim R 80, 97.Conclusion The case, as presented by the prosecutor in her opening, and the way in which the evidence proceeded was that Ramsgate time and Real time were the same. At a very late stage in the piece, it became known that that assumption was an error. Defence counsel had presented his case, cross‑examined witnesses and made decisions about calling evidence based upon an erroneous assumption. As the trial Judge correctly observed, it was difficult at that late stage to “unscramble” the position. Counsel for the Crown correctly sought a mistrial. The initial view of the trial Judge seemed to have been that that application was justified, but he appeared to have been influenced to refuse the application because defence counsel opposed it. It is undesirable to speculate about what facts influenced the decision of the jury. It is not possible to decide whether the jury might have viewed the appellant’s conduct differently had they known that the appellant was holding Mr Esposito for approximately five minutes before the police arrived, during which time the situation was chaotic. This was a case of acting for a defensive purpose. The defence case was that the appellant genuinely believed that his conduct was necessary and reasonable. As well, the defence case was presented on a false basis, influenced by the error in the prosecution case. It is not possible to know whether, if the jury had been aware of the correct position that might have influenced the jury’s decision. The appellant did not receive a fair trial because there is a real risk that the jury assessed the case on a false basis and because the defence case had, through no fault of the defence, been presented on a false basis. The case was left to the jury in an unsatisfactory manner. The jury was not informed of the correct position as to time. I would allow the appeal on this ground.Hearsay grounds Grounds 5 to 8 are that the trial Judge erred in admitting evidence about statements allegedly made by unidentified bystanders. A number of witnesses gave evidence that they heard others comments during the melee, such as “Leave him alone, you can’t do that to him”; “Stop it, you’re going to kill him”; “Get off him” and “You’ve got him in an illegal choke hold, you’ll kill him”. The trial Judge directed the jury that the evidence was not evidence of the truth of what people were calling out, but was only evidence to assist them to understand what was going on, and to understand the atmosphere. He directed the jury that the evidence could only be used to a very limited extent and they cannot use the evidence as going to the truth of what had been said.

Ratio Decidendi

Legal Principle Established

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