SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FRAGOMELI
[2008] SASC 96
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice White)
17 April 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING UP
CRIMINAL LAW - EVIDENCE - RES GESTAE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT - ALTERNATIVE VERDICTS - DIRECTION TO JURY
Appeal against conviction - appellant acquitted by jury of murder, but convicted of manslaughter - whether trial judge erred in summing-up as to self-defence - whether correct to leave the manslaughter alternative to the jury - whether statement by deceased correctly admitted during the trial - whether verdict unsafe and unsatisfactory.
Held: Appeal dismissed, directions to the jury on the issue of self-defence were not attended by error - manslaughter was appropriately left to the jury - statement made by deceased was admissible - no substance in complaint that the verdict was unreasonable.
Criminal Law Consolidation Act 1935 (SA), s 15, s 15C, s 353, referred to.
Subramanium v Public Prosecutor [1956] 1 WLR 965; Wilson v The Queen (1992) 174 CLR 313, applied.
R v Bednikov (1997) 193 LSJS 254, distinguished.
Mraz v The Queen (1955) 93 CLR 493, discussed.
Benbolt v The Queen (1993) 60 SASR 7; Gilbert v The Queen (2000) 201 CLR 414; R v Cooke (1985) 39 SASR 225; R v Falconer (1990) 171 CLR 30; R v Matthews (2005) 91 SASR 196; R v Murphy (1988) 52 SASR 186; R v Williamson (No 2) (1996) 67 SASR 428; R v Zikovic (1995) 17 A Crim R 396, considered.
R v FRAGOMELI
[2008] SASC 96Court of Criminal Appeal: Sulan, Vanstone and White JJ
SULAN J: I would dismiss the appeal. I agree with the reasons of Vanstone J.
I have read the reasons of White J. I agree with White J that the submission of counsel for the appellant involves a misreading of the judgment in Wilson v The Queen.[1]
[1] (1992) 174 CLR 313.
The majority in Wilson, in considering the test for whether an act is dangerous, determined that the question is to be answered in terms of whether the act carried with it an appreciable risk of serious injury. If a jury were to conclude objectively that the conduct of the accused carried with it greater than an appreciable risk of serious injury, then the act would, nevertheless, be a dangerous act and the accused would be guilty of manslaughter.
The appellant’s counsel appears to have confused the question of the subjective test for recklessness in murder with the objective test of a dangerous act sufficient for manslaughter by an unlawful and dangerous act. He submitted that if the act was such that it carried a risk of serious injury that was more than merely appreciable, then it was not a dangerous act, as defined in Wilson,
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CaseChat Overview and Summary
The court found that the directions to the jury regarding self-defence were not erroneous. The statement made by the deceased was deemed relevant and admissible as it pertained to the appellant's state of mind rather than proving the deceased's state of mind. The court also held that it was appropriate to leave the manslaughter alternative to the jury, as there was a factual basis for such a verdict, and it was not compelled to follow the precedent set in Mraz v The Queen. The court concluded that the verdict was not unreasonable, and therefore the appeal was dismissed.
The court's decision emphasised the importance of allowing the jury to consider all appropriate verdicts where there is a factual basis, provided it does not compromise the appellant's right to have the case considered on the graver charge. The admissibility of evidence that did not infringe on the hearsay rule was upheld, as it was relevant to the appellant's state of mind. The court's reasoning demonstrated a balanced approach to ensuring the fairness of the trial and the integrity of the verdict, considering both legal principles and the specific circumstances of the case.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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