R v Ellis - [1998] SASC 6597

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

DOYLE CJ, COX AND OLSSON JJ

CATCHWORDS:

Criminal law - evidence - evidentiary matters relating to witnesses and accused persons - appeal against conviction of the appellant by majority verdict of a jury of crime of endangering life - evidence led at trial of a series of police interviews with the appellant - lies were told by appellant and recounted in later interview - prosecution reliance upon lies to prove intent to endanger life - appellant failed to give evidence. - Directions to jury - whether direction relating to lies told by the appellant was adequate and appropriate - whether direction relating to failure of the accused to give evidence at trial unduly emphasised the significance of that failure and suggested that this failure strengthened the Crown case - whether it was an error to direct the jury that there was no evidence to support the defence scanarios advanced in the police records of interview - whether direction relating to an explanation consistent with innocence given in police record of interview was adequate. - Appeal allowed - direction relating to lies neither adequate in light of authorities, nor appropriate to the evidence. Edwards v The Queen (1993) 178 CLR 193; The Queen v ST (1977) 92 A Crim R 390, applied. Weissensteiner v The Queen (1993) 178 CLR 217, distinguished.

HEARING:

ADELAIDE, 20 February 1998 (hearing) 20 March 1998 (decision)

#DATE 20:3:1998

Appearances:

Appellant:

Counsel: Mr C Kourakis QC

Solicitors: Stanley & Partners

Respondent:

Counsel: Mr S Mcewen

Solicitors: DPP (SA)

ORDER: appeal allowed.

DOYLE CJ

In my opinion this appeal should be allowed, the appellant's conviction should be set aside, and a retrial should be ordered.

I agree with the substance of what Olsson J has said in his reasons. I wish to add some brief remarks on two matters only. There is no need for me to repeat the facts, which are comprehensively set out in the reasons of Olsson J. The grounds of appeal are also set out there.

Direction relating to lies

In my opinion the general direction given about lies was adequate, as a matter of law. But the later treatment of the particular lies in question was inadequate. Divorced as it was from the general direction, there was a risk that the jury might not recall the cautionary aspects of the general direction about lies. The failure to remind the jury of the possible explanations for the lies, explanations that were not consistent with guilt, is a particular cause for concern. In my opinion, in this case, there was a need to emphasise the need to give careful consideration to the other possible explanations for the lies, and to emphasise the need to be cautious in drawing an adverse inference from the lies in question. I say that because, in my opinion, the relevant lies were either "intractably neutral" (cf R v Power & Power
(1996) 87 A Crim R 407 at 409)…

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 Ellis

Details

AGLC: R v Ellis [1998] SASC 6597
Case: [1998] SASC 6597
Decision Date: 20 March 1998

CaseChat Overview and Summary

This appeal concerns the conviction of the appellant, by majority verdict of a jury, for the crime of endangering life. The appellant had fired shots into a house, one of which penetrated a window, narrowly missing a person inside. The prosecution case was that the appellant had fired the shots with the intent to endanger life, or had been recklessly indifferent to the risk of doing so. The evidence against the appellant was largely circumstantial. The jury heard evidence of a series of police interviews with the appellant, in which he told a number of lies. The prosecution argued that these lies were indicative of guilt. The appellant did not give evidence. The trial judge gave a summing up to the jury, in which he addressed the issue of the lies told by the appellant and the failure of the appellant to give evidence. The appellant appealed against his conviction, arguing that the summing up contained several errors. The appeal was allowed by the Court of Criminal Appeal, on the basis that the summing up contained an inadequate direction regarding the lies told by the appellant, and unduly emphasised the significance of the appellant's failure to give evidence. The conviction was quashed and a retrial ordered. The court held that the direction regarding the lies told by the appellant was inadequate because it did not identify the specific lies that were capable of supporting an inference of guilt, and did not explain that such lies could be explained in ways that were not consistent with guilt. The court also held that the summing up unduly emphasised the significance of the appellant's failure to give evidence, by occupying a significant portion of the summing up and suggesting that the failure strengthened the prosecution case. The court held that these errors gave rise to a real risk of a miscarriage of justice.

Orders