R v Fuller & Zazzaro

[2012] SASCFC 101

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v FULLER; R v ZAZZARO

[2012] SASCFC 101

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nyland, The Honourable Justice Anderson and The Honourable Justice David)

22 August 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE

CRIMINAL LAW - PROCEDURE - WITNESSES - POWERS OF JUDGE - LEAVE TO REOPEN CASE AND CALL WITNESSES - PROSECUTION EVIDENCE IN REBUTTAL - OTHER CASES

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

Appeals against conviction – appellants convicted by jury verdict of two counts of possessing a firearm without a licence contrary to section 11(1) of the Firearms Act 1977 (SA) – count one related to a home-made pen gun and count two related to an imitation revolver – whether the trial Judge erred in directing the jury with respect to section 15(5) of the Firearms Act 1977 (SA) – whether the trial Judge misdirected the jury as to the state of knowledge required for the pen gun – whether the trial Judge failed to properly put the defence case to the jury – whether the trial Judge intervened excessively during the trial – whether the trial Judge erred in permitting the prosecution to re-open its case – whether the verdicts in relation to count one were unsafe and unsatisfactory.

Held: appeals dismissed – the trial Judge was correct in his charge to the jury regarding the operation of s 5(15) of the Firearms Act 1977 (SA) – the trial Judge misdirected the jury as to the state of knowledge required for the pen gun but the misdirection was an error that was to the advantage of the appellants – the trial Judge properly put the defence case to the jury – the trial Judge’s questioning was neither excessively lengthy or unfair and falls far short of constituting excessive interference or involvement which could amount to a departure from the due and ordinary process of a fair trial – the trial Judge did not err in permitting to prosecution to re-open its case to illicit evidence in rebuttal – there was no miscarriage of justice – the verdicts were not unsafe and unsatisfactory.

Firearms Act 1977 (SA) s 11(1), s 5(14), s 5(15), s 5(15), s 36A; Criminal Law Consolidation 1935 (SA) s 15C(2), s 15(5); Firearms (Firearms Prohibition Orders) Amendment Act 2008 (SA), referred to.
R v Carr-Briant [1943] 1 KB 607; He Kaw Teh v R (1985) 157 CLR 523; R v Mohammadi (2011) 112 SASR 17; Killick v The Queen (1981) 147 CLR 565; R v Chin (1985) 157 CLR 671, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"establish"

R v FULLER; R v ZAZZARO
[2012] SASCFC 101

Court of Criminal Appeal:…