R v Merrett No. Sccrm-97-252 Judgment No. S6474

[1997] SASC 6474

R  v  MERRETT

Court of Criminal Appeal:  Doyle CJ, Lander and Bleby JJ

DOYLE CJ

This is an application for leave to appeal against conviction.

The applicant was convicted upon the verdict of a jury of causing grievous bodily harm with intent, contrary to s21 of the Criminal Law Consolidation Act.

Leave to appeal was refused by Bollen J.

By application dated 27 October 1997, the applicant applied to have determined by the Full Court his application for leave to appeal against conviction.  The application was considered by the Full Court in private pursuant to Rule 15(7) of the Supreme Court Criminal Appeal Rules 1996.

The application was considered by a court comprising me, Lander J and Bleby J, and we are unanimously of the opinion that leave to appeal should be refused.

Leave to appeal is sought on the ground that the failure of the prosecution to call a particular witness has caused a miscarriage of justice.  The relevant witness was a material witness, but the cases make it clear that the prosecution was not under an unqualified obligation to call the witness.  The prosecutor provided reasons that, in the light of the cases, are capable of supporting the decision not to call the witness.  This Court is not in a position to review that decision.  The question for this Court is the impact upon the trial of the failure to call the witness.  While the inability of the defence to cross-examine the witness is identified as a cause of prejudice to the defence, nothing specific is advanced under that score.  Nor does an examination of the transcript indicate any particular prejudice suffered by the defence, having regard to the manner in which the case was conducted.  It should be added that, as things turned out, the defence called the relevant witness and the defence appears to have been able to obtain from her all relevant material on which she could give evidence.

While there is reason to have some concern about the failure of the prosecutor to call the witness, the Court is not in a position to say that the decision was erroneous.  In addition, there is no indication that, in the end, the defence suffered any particular prejudice from the decision.

Accordingly, it appears that the appeal has no reasonable prospect of success.  Nor does the appeal raise any point of principle.  The relevant principles are well established.

It is for those reasons that the Court has refused leave to appeal.