R v IAS

Case [2004] SASC 240 13 August 2004

Type to search within this case.

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v IAS
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Besanko and The Honourable Justice Anderson)
13 August 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF
DNA EVIDENCE
Appeal against conviction - appellant convicted of three counts of rape - where a breakdown in the relationship between the appellant and his counsel during the trial led to the appellant's counsel and solicitor withdrawing from the trial - where the appellant instructed new counsel and a new solicitor but terminated their instructions during the course of the trial - where the trial proceeded with the appellant unrepresented - whether the trial judge erred in allowing two sets of counsel and solicitors to withdraw from the trial - whether the trial judge erred in not adjourning the the trial so as to give the appellant a further opportunity to instruct new counsel - whether the trial miscarried by reason of the trial judge's refusal to discharge the jury after the departure of both counsel and the trial judge's direction that the appellant proceed with the trial unrepresented by counsel - discussion of the authorities relating to the circumstances in which it will be held that an accused facing serious charges who has no legal representation, or who loses his legal representation during a trial, has thereby been denied a fair trial and a miscarriage of justice has resulted - whether the trial judge erred in his direction to the jury concerning the use to be made of DNA evidence - appeal dismissed.
Criminal Law Consolidation Act 1935 ss 48, 49, 56; Criminal Law (Legal Representation) Act 2001 ss 8, 11, referred to.
Dietrich v The Queen (1992) 177 CLR 292; Craig v South Australia (1995) 184 CLR 163; R v Greer (1992) 62 A Crim R 442; R v Frawley (1993) 69 A Crim R 208; R v Small (1994) 33 NSWLR 575; R v Batiste (1994) 35 NSWLR 437; R v Osborne [2002] VSCA 156; R v Grosser [2002] SASC 193; R v Birks (1990) 19 NSWLR 677, discussed.
R v White (1995) 77 A Crim R 531; McInnis v The Queen (1979) 143 CLR 575; Wong v The Queen [2001] WASCA 32; R v O'Neill (2002) 81 SASR 359; R v K (1991) 161 LSJS 135; Grey v The Queen [2001] HCA 65; R v Smith (1998) 71 SASR 543; R v Karger (2002) 83 SASR 135, considered.

R v IAS
[2004] SASC 240
Court of Criminal Appeal: Duggan, Besanko and Anderson JJ

DUGGAN J. In my view this appeal should be dismissed. I agree with the reasons of Besanko J and the findings of fact expressed in his judgment.

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 IAS

Details

AGLC: R v IAS [2004] SASC 240
Case: [2004] SASC 240
Decision Date: 13 August 2004

CaseChat Overview and Summary

In the case of R v IAS, the appellant contested their conviction in the County Court, which was subsequently affirmed by the Court of Appeal. The primary issue in this appeal was the adequacy of legal representation during the trial and the handling of DNA evidence. The appellant argued that their representation was deficient and that the DNA evidence should not have been admitted.

The Court examined whether the appellant's legal representation was adequate and if the DNA evidence was properly handled. The appellant had been represented by experienced legal practitioners before and during the trial, including during the cross-examination of the witness who performed the DNA testing. The Court found that there was no obligation for the trial judge to provide additional legal assistance when the appellant was already represented by competent legal counsel. Additionally, no evidence was presented to suggest that the DNA evidence could have been successfully challenged.

The Court concluded that the appellant's grounds of appeal were without merit. The appeal was dismissed, and the Court upheld the findings of fact and the decision of the trial judge. The Court of Appeal's earlier decision affirming the conviction was also supported. The final order was to dismiss the appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

DUGGAN J ANDERSON J (dissent)

Ground 3.2 was abandoned during the course of submissions to this Court. In any event, there is no substance in the complaint. The appellant was represented by two experienced legal practitioners prior to the trial, and by Mr Lang during the evidence by the witness who carried out the DNA testing. In fact, Mr Lang cross-examined Ms Williams at length. The Judge was under no obligation to provide assistance or advice to the appellant in circumstances in which the appellant was represented by competent legal practitioners. Furthermore, no evidence was put before this Court to suggest that the DNA evidence called by the prosecution might have been successfully challenged.Conclusion I reject all grounds of appeal and I would dismiss the appeal. I agree with the reasons of Besanko J and with his Honour’s findings of fact. I agree also that the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J,

Full text does not contain this section.

Actions

Citations

R v IAS [2004] SASC 240

Most Recent Citation

R v Heinicke [2005] SADC 113

Cases Citing This Decision

Tilley v The King [2023] SASCA 80
Citation 1

…ussed. Bunning v Cross (1978) 141 CLR 54; Edwards v The Queen (1993) 178 CLR 193; R v Bonython (1984) 38 SASR 45; R v Christie [1914] AC 545; R v IAS (2004) 89 SASR 159; R v Karger (2002) 83 SASR 134; R v Tomazos NSWCCA 6 August 1971; R v Singh [2019] SASCFC 51; Roberts v The Queen (2022) 365 FLR 367; Shepherd v The…
R v Warwick (No 69) [2019] NSWSC 1059
Citation 2

…92) 177 CLR 292 Frawley v R (1993) 69 A Crim R 208 R v Batiste (1994) 35 NSWLR 437 R v Grosser [2003] SASC 193 R v IAS [2004] SASC 240; 89 SASR 15 R v Osborne [2002] VSCA 156; 133 A Crim R 519 R v Small (1994) 33 NSWLR 575 R v Warwick (No 2) [2017] NSWSC 1225 R v Warwick (No.63) [2019] NSWSC 41 R v Warwick (N…
R v Pratten (No 16) [2015] NSWSC 1501
Citation 3 (Para 4)

…dings. Mr Lowe has provided the Court with authority, being the Full Court of the Supreme Court of South Australia in a judgment entitled Queen v IAS [2004] SASC 240, and reported in (2004) 89 SASR 159. At page 165 of the report, at [22] and [23], his Honour Justice Besanko, whose judgment constitutes the majority…
Philopos v R [2008] NSWCCA 66
Citation 4

…7 CLR 292 Frawley v R (1993) 69 A Crim R 208 Greer v R (1992) 62 A Crim R 442 McInnis v The Queen (1979) 143 CLR 575 R v IAS (2004) 146 A Crim R 416; [2004] SASC 240 R v Kama (2000) 110 A Crim R 47; [2000] NSWCCA 23 R v Kaliti (2001) 34 MVR 160; [2001] NSWCCA 268 PARTIES: Raouf Maurice Philopos (Appellant) The Cro…
R v Pollitt [2007] SASC 103
Citation 5 (Para 26)

…e made strategic decisions about the manner of conduct of a trial. [35] [2002] SASC 53 at [47]-[50]; (2002) 81 SASR 359 at 367-9 per Martin J. [36] [2004] SASC 240 at [50]; (2004) 89 SASR 159 at 172 per Besanko J. [37] [2003] SASC 102 at [13]; (2003) 85 SASR 241 at 243-4 per Duggan J.…
R v Heinicke [2005] SADC 113
Citation 6

…N, PRACTICE AND PROCEDURE Dietrich v The Queen (1992) 177 CLR 292 at 315; R v Karounos (1994) 63 SASR 451 at 458-9; R v Grey (2001) SASC 428; R v IAS [2004] SASC 240; Begg v Police [2005] SASC 131; Bray v Police [2005] SASC 270, discussed.…

See all citing cases →

Cases Cited

R v Grosser No. Sccrm-02-217, Sccrm-02-388 [2003] SASC 264
Citation 1 (Para 22)

…o doing. It cannot be said that he is unrepresented through no fault of his own.” This decision was upheld on appeal ([2003] SASC 264).…
R v Osborne [2002] VSCA 156
Citation 2 (Para 20)

…In R v Osborne [2002] VSCA 156; (2002) 133 A Crim R 519, an accused terminated his counsel’s retainer during a trial and then applied unsuccessfully for an adjournment of the trial. The trial proceeded with the accused not represented by counsel. Chernov JA (with whom Phillips CJ and Vincent JA agreed) concluded t…
R v Karger [2002] SASC 294
Citation 3 (Para 1)

…accepted the DNA evidence beyond reasonable doubt they could have regard to other evidence in the case ( R v Smith (1998) 71 SASR 543; R v Karger [2002] SASC 294; (2002) 83 SASR 135). I think the Judge was making an obvious, and in one sense unnecessary point, that having accepted the DNA evidence, and in particul…
R v Grosser [2002] SASC 193
Citation 4 (Para 22)

…In R v Grosser [2002] SASC 193, Duggan J said (at [59] – [64]): “The question arises, therefore, as to whether a trial in which the applicant was unrepresented would be unfair and, as part of that enquiry, it is necessary to determine whether such lack of representation should be seen as being through no fault on…
Grey v The Queen [2001] HCA 65
Citation 5 (Para 6)

…ot under an obligation to provide the notes to the defence, and that concession appears to be correct ( R v K (1991) 161 LSJS 135; Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708). The fact that the notes were not provided did not play any part in the breakdown of the relationship between the appellant and M…
Wong v The Queen [2001] WASCA 32
Citation 6 (Para 19)

…time in preparation or are failing to take steps which are reasonably necessary.” (See also to the discussion of these cases in Wong v The Queen [2001] WASCA 32; (2001) 159 FLR 328 per Pidgeon J (with whom Kennedy and Murray JJ agreed) at 341 – 344.)…
R v Small [1998] QCA 380
Citation 7 (Para 15)

…een considered in a number of cases in New South Wales. The cases are R v Greer (1992) 62 A Crim R 442; R v Frawley (1993) 69 A Crim R 208; R v Small (1994) 33 NSWLR 575 and R v Batiste (1994) 35 NSWLR 437. I will not discuss the facts of those cases in detail.…
Craig v South Australia [1995] HCA 58
Citation 8 (Para 12)

…In Craig v South Australia (1995) 184 CLR 163, the High Court made some observations on the concept of fault on the part of the accused. After setting out part of the passage from the reasons for judgment of Mason CJ and McHugh J in Dietrich which I have set out above, the Court said (at 183 – 184): “The effect of th…
Dietrich v The Queen [1992] HCA 57
Citation 9 (Para 10)

…In Dietrich v The Queen (1992) 177 CLR 292 (“ Dietrich ”), the High Court considered the power of a court to stay a criminal trial for a serious offence where the accused is unrepresented. It is sufficient for present purposes to refer to two passages, one from the joint reasons for judgment of Mason CJ and McHugh J…
McInnis v The Queen [1979] HCA 65
Citation 10 (Para 26)

…ge needed to weigh a number of considerations and there is no reason to think that he erred in the exercise of his discretion ( McInnis v The Queen (1979) 143 CLR 575 per Barwick CJ at 579). The challenge in ground 2 to the Judge’s decisions not to adjourn the trial must be rejected. Grounds 1 and 4…
R v O’Neill [2002] SASC 55
Citation 11 (Para 2)

…desirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.” (See also R v O’Neill [2002] SASC 55; (2002) 81 SASR 359 per Martin J at 367 – 369.)…
R v O’Neill [2015] VSCA 32562
Citation 12 (Para 2)

…tempt to define such cases with precision. When they arise they will attract appellate intervention.” (See also R v O’Neill [2002] SASC 55; (2002) 81 SASR 359 per Martin J at 367 – 369.)…

Legislation Cited

Criminal Law Consolidation Act 1935 (SA) 48, 49, 56
4 mentions (from Para 2)
Criminal Law (Legal Representation) Act 2001 (SA) 11, 8
3 mentions (from Para 20)