R v Fragomeli

Case [2008] SASC 96

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 96

Court of Criminal Appeal:       Sulan, Vanstone and White JJ

  1. SULAN J: I would dismiss the appeal.  I agree with the reasons of Vanstone J.

  2. 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]

  3. 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. 

  4. 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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R v Fragomeli [2008] SASC 96
Case
[2008] SASC 96
Decision Date

CaseChat Overview and Summary

In the case of R v Fragomeli, the appellant was acquitted by a jury of the charge of murder but found guilty of manslaughter. The appeal centred on the trial judge's summing-up regarding self-defence, the appropriateness of leaving the manslaughter alternative to the jury, the admissibility of a statement made by the deceased, and whether the verdict was unsafe and unsatisfactory. The appeal court was tasked with determining whether the trial judge had erred in the directions provided to the jury on self-defence, whether the manslaughter alternative should have been presented to the jury, whether the statement made by the deceased was correctly admitted, and whether the verdict was unreasonable.

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Accordingly, I am satisfied that this ground of appeal is not made out.Relating the Directions Sufficiently to the Evidence I agree with the reasons of Vanstone J on this ground and do not wish to add to them.Admissibility of the Deceased’s Statements The appellant submits that the witness McGinniss should not have been allowed to give evidence of an incident occurring towards the end of the fracas. The victim was being encouraged to get into the car driven by Senniss. He was close to an open back door of the car, but facing towards the appellant who was close to him. McGinniss said that when the victim was told to get into the car he responded, “I’m not turning my back on this guy because he’s going to stab me”. The judge rejected an application that this evidence be excluded on the basis that it was irrelevant and hearsay. The appellant repeated on appeal the submissions which had been put to the judge. In my opinion, the judge’s decision to allow the evidence to be adduced was correct. The evidence was relevant to the assessment of the appellant’s belief as to what was necessary for his own defence. It was open to the jury to conclude that if the appellant heard the statement he would have realised that a retreat by him, allowing the victim the space to enter the car without risk of harm, would probably be sufficient to diffuse the situation. This was a use which did not infringe the hearsay rule. That is to say, the evidence could be led not for the purpose of proving the victim’s state of mind, but rather as proof of matters relevant to the appellant’s state of mind. Whether or not the victim genuinely held the belief that he would be stabbed by the appellant if he turned his back, and whether or not his stated fear was the real reason for his not getting into the car, proof of the words which he spoke could be used by the jury in their assessment of the appellant’s state of mind in the way I have outlined. I agree with the reasons of Vanstone J about the lack of direction to the jury about the uses to which the evidence could be put. In the view which I take of the appeal, it is not necessary to address this ground further.Unsafe and Unsatisfactory Verdict I do not wish to add to the reasons of Vanstone J in relation to this ground.Conclusion For the reasons given above I would dismiss the appeal.

Decision

Reasons for decision

Even further, at some point the preparatory conduct becomes so remote from the charged conduct as to amount to a different transaction and therefore not a true alternative. (See Benboltv The Queen (1993) 60 SASR 7; R v Matthews (2005) 91 SASR 196.) For all these reasons the first ground is not made out.Decision to leave manslaughter Notwithstanding the nature of the first ground of appeal, the second ground complains of the decision of the judge to leave to the jury the alternative verdict of manslaughter at all. Counsel’s complaint upon the appeal was consistent with his position taken during the trial, that is, that no alternative verdict should be left. Counsel argued that there was no proper factual basis upon which a verdict of manslaughter could be returned and in those circumstances to leave the alternative implicitly invited the jury to compromise on that verdict where it would otherwise have wholly acquitted the appellant. He relied on Mraz v The Queen (1955) 93 CLR 493. There the trial judge was found to have erroneously left the alternative of manslaughter, in circumstances where the murder charge was based on the felony murder rule and where the case was fought as one of murder or nothing. The Court of Criminal Appeal (NSW) applied the proviso and allowed the conviction to stand. However, in the High Court the majority quashed the conviction, holding (at 506) that the appellant “was entitled to have the case put to the jury as one of murder or nothing and to have the various issues of fact considered in relation to the graver charge.” It was said (at 507) that the “strong tendency to shrink” from a verdict carrying with it the death sentence amounted to one of the “realities of the matter” and that in the absence of the manslaughter alternative the jury’s decision might have been to acquit. In Gilbert v The Queen (2000) 201 CLR 414, 421 Gleeson CJ and Gummow J, forming part of the majority, spoke of one of the contemporary realities of jury deliberations being that a consideration for the relatives of a victim might introduce pressure upon a jury to convict of manslaughter, rather than to acquit, if given the opportunity. This, then, was the principle underpinning counsel’s complaint. For the reasons which follow I have concluded that the judge correctly left the manslaughter alternative. Therefore the issue of application of the proviso does not arise. In Wilson v The Queen (1992) 174 CLR 313 the High Court restated the elements of manslaughter by unlawful and dangerous act. The requirements are that the act causing death (willed and not accidental) must be both unlawful and dangerous in the sense that it carries with it an appreciable risk of serious injury: Wilson at 328-333. The test is an objective one. Counsel’s argument against manslaughter being left on this basis was that there was really no room for a conclusion in such terms. It was said that if the jury found that the injuries were deliberately inflicted, then, having regard to the fact that the knife used was a lethal weapon and was used against the victim three times, the jury would inevitably conclude that there was at least an intention to cause grievous bodily harm. If that were so, then given the jury’s rejection of self-defence, the verdict would necessarily be one of murder.

Ratio Decidendi

Legal Principle Established

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