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 101Court of Criminal Appeal:…
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- R v Fuller & Zazzaro [2012] SASCFC 101
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- [2012] SASCFC 101
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CaseChat Overview and Summary
The central legal issues before the court were whether the trial judge's conduct amounted to a miscarriage of justice, and whether the verdicts returned were unreasonable or insupportable having regard to the evidence presented. This included consideration of the judge's powers to allow the prosecution to reopen its case and call further evidence in rebuttal.
The court rejected the grounds of appeal, finding that no miscarriage of justice had occurred. The reasoning applied by the court, and the specific legal principles governing the conduct of trial judges and the admissibility of evidence in rebuttal, led to the conclusion that the appeals against conviction should be dismissed.
Orders
Orders of the court
dismiss the appeals against conviction
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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