R v Golding and Edwards

[2008] SASC 68

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v GOLDING & EDWARDS

[2008] SASC 68

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice David)

12 March 2008

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - AIDER AND ABETTOR

CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW

Appeals against conviction and sentence - appellants jointly charged with two co-accuseds of causing grievous bodily harm with intent to do grievous bodily harm - during the course of the trial the two co-accuseds pleaded guilty - application was made at trial to discharge the jury after co-accuseds pleaded guilty - application to discharge jury was refused - on the issue of aiding and abetting, the Judge directed the jury that if the appellants were present and ready to give aid to the person actually committing the crime, then that would make the appellants aiders and abetters - appellants acquitted of the offence of causing grievous bodily harm with intent to do grievous bodily harm but were found guilty of the alternative offence of causing grievous bodily harm - whether Judge should have discharged jury after co-accuseds pleaded guilty - whether Judge's direction to jury following the pleas of guilty was adequate - whether evidence of earlier uncharged incidents was admissible and, if admissible, whether it should have been excluded as a matter of discretion - whether the Judge misdirected the jury on the topic of aiding and abetting, and if so, whether the Judge later corrected the misdirection - whether the trial Judge misdirected the jury on the use that it could make of the records of interview of both appellants - whether question from the jury suggested that the jury had formed a view that was inconsistent with the verdicts returned - whether the sentences were manifestly excessive.

Held: appeals against conviction allowed - convictions entered in the District Court set aside - appellants to be retried in respect of the offence of causing grievous bodily harm - Judge did not err in refusing application to discharge jury - Judge did not err in his direction to jury - evidence of the earlier incidents was relevant, probative and admissible - Judge misdirected the jury on the topic of aiding and abetting - Judge should have directed the jury that presence and readiness to give aid were items of evidence to which they could have regard together with other relevant evidence in reaching a conclusion as to whether encouragement in fact had been proved beyond reasonable doubt - to suggest that presence and readiness would amount to encouragement was a serious misdirection - other aspects of the summing up did not relevantly address this misdirection or overcome the risk that it had led to a miscarriage of justice - Judge did not err in directing the jury on the use that it could make of the records of interview of…