R v Grosser - [1999] SASC 302

R v GROSSER
[1999] SASC 302

COURT OF CRIMINAL APPEAL: Doyle CJ, Duggan and Wicks JJ

DOYLE CJ. In my opinion the appeal should be allowed, the convictions should be set aside and a new trial should be ordered. I agree with the reasons given by Duggan J for so concluding.
DUGGAN J.

Introduction

The appellant was presented for trial in the Supreme Court on an information charging him with the attempted murder of Derrick Anthony McManus, a police officer. The second count, which was an alternative to the first, alleged that the appellant wounded Constable McManus with intent to do him grievous bodily harm. There were a further five counts which alleged that the appellant endangered the lives of various police officers.

According to the prosecution case, the offences took place on 3rd May 1994 in the course of a siege by police officers of a farmhouse which the appellant was leasing at Nuriootpa. The police officers went to the house on the afternoon of 3rd May 1994 in order to execute a warrant for the appellant’s arrest following his failure to attend the Adelaide Magistrates Court to answer fraud charges. In view of information in the possession of the police which will be referred to later in these reasons, Star Force officers took part in the attempt to execute the warrant for the appellant’s arrest.
The officers approached the farmhouse. The appellant, his partner Lorraine Bailey and their children were in the farmhouse with him at the time. Some of the police officers approached a door situated on the northern side of the house. Constable McManus went to the north-western corner of the premises. According to the prosecution case, police officers knocked on a side door of the house and called out to the appellant. They said they were police officers and that they wanted to speak to him. Constable McManus then walked around the corner to the rear of the premises and, with his shoulder against the wall, moved towards a glass sliding door. He said he was holding a pistol at his side and a device, similar to a jemmy, in his other hand. There was a gap in the curtains in the vicinity of the handle of the sliding door. The prosecution alleged that as Constable McManus reached towards the door the appellant opened fire from inside the house. He fired a volley of shots from a semi-automatic rifle and Constable McManus was hit by at least six bullets. He suffered serious injuries to his abdomen, legs and left arm.
There was a question at trial as to who fired first, although the appellant agreed in cross-examination that he was the first to fire. Constable McManus returned fire and staggered to an area on the southern side of the house where he lay waiting for assistance. The appellant then fired shots through various doors and windows on the northern side of the house. Police reinforcements arrived and the house was surrounded. Eventually the appellant climbed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Grosser

Details

AGLC: R v Grosser [1999] SASC 302
Case: [1999] SASC 302
Decision Date: 23 July 1999

CaseChat Overview and Summary

The appellant, Grosser, appealed against his convictions for attempted murder and endangering the lives of police officers. The appeal raised issues concerning the adequacy of the trial judge’s directions to the jury on the topic of self-defence, the relevance of psychiatric evidence in relation to self-defence, the admission of evidence of the appellant’s previous conduct and the use of alleged lies told by the appellant as independent evidence of guilt. The Court found that the trial judge’s directions on self-defence were adequate, the jury was properly directed as to the relevance of the psychiatric evidence and the evidence of the appellant’s previous conduct was properly admitted. However, the Court found that the trial judge erred in directing the jury that the appellant’s alleged lies could be used as independent evidence of guilt. The Court found that the appellant’s alleged lies did not satisfy the requirements for lies to be used as independent evidence of guilt and that the trial judge failed to properly direct the jury on the limited circumstances in which lies could be used as positive evidence of guilt. The Court found that the misdirection caused a miscarriage of justice and ordered a new trial.

Orders