R v Morgan - [2005] SASC 391

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MORGAN
Judgment of The Honourable Justice Gray
10 October 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING UP
CRIMINAL LAW - EVIDENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Application for leave to appeal against conviction and sentence - applicant convicted of serious criminal trespass of a non-residential building and larceny and sentenced to a term of imprisonment.
Leave to appeal against conviction sought on basis that Judge had erred in directing the jury as to DNA evidence led by the prosecution; erred in not giving the jury an appropriate lies direction; erred by making a finding a fact that ought to have been left to the jury; erred by refusing to permit the accused to cross-examine a police officer about unsworn out of court statements made by the accused and that thereby the jury's verdict was unsafe and unsatisfactory.
Leave to appeal against sentence sought on basis that non-parole period was excessive.
Held: leave to appeal against conviction granted in respect of failure of the Judge to adequately direct the jury in relation to lies and on ground that jury's verdict was unsafe and unsatisfactory - leave to appeal refused in respect of all other grounds. Leave to appeal against sentence refused.
Zoneff v The Queen (2000) 200 CLR 234; R v Baring v Leonard (2005) 92 SASR 117; R v Panagiotidis (1991) 55 SASR 172; R v Byster (2001) 80 SASR 373; Mule v The Queen [2005] HCA 49; Dhanhoa v R (2003) 217 CLR 1, considered.

R v MORGAN
[2005] SASC 391
Criminal
GRAY J:

This is an application for leave to appeal against conviction and sentence.
On 17 June 2005, following a trial before a judge and jury in the District Court, the applicant was convicted of the offences of serious criminal trespass of a non-residential building and of larceny.
The applicant was sentenced on 8 July 2005 to the one sentence of 22½ months imprisonment for both offences. This sentence was ordered to be cumulative on the term of two revoked suspended sentences. The suspended sentences totalled 7 months. The total sentence accordingly, was for imprisonment for 29½ months. In respect of that total sentence a non-parole period of 14½ months was fixed.
Leave to Appeal Against Conviction
The Crown Case
The Crown case was essentially circumstantial. Premises of Loxton News were broken into in the early hours of Sunday, 28 January 2001. A safe was opened and items of personalty were taken including a digital camera and a charger.
A witness saw a blue Ford sedan, with a registration number he thought to be UDA-593, outside the premises of Loxton News at about 6.45 am on Sunday, 28 January 2001. He saw a person carrying a box walk towards the vehicle and get into the rear passenger side. He telephoned a friend…

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 Morgan

Details

AGLC: R v Morgan [2005] SASC 391
Case: [2005] SASC 391
Decision Date: 10 October 2005

CaseChat Overview and Summary

The matter before the court was an application for leave to appeal against both conviction and sentence by the applicant, Morgan. Morgan was convicted of serious criminal trespass of a non-residential building and larceny. The appeal against conviction questioned certain aspects of the trial process, while the appeal against sentence challenged the appropriateness of the penalty imposed.

The legal issues the court was required to address included whether there were any grounds to challenge the conviction and whether the sentence imposed was excessive or otherwise inappropriate. The applicant argued that the trial had been unfair and that the sentence was unduly harsh. The court considered whether these arguments had sufficient merit to warrant an appeal.

The court found that the appeal against conviction had limited arguable grounds, which pertained to specific procedural aspects of the trial. However, the court was satisfied that these issues did not undermine the overall fairness of the trial process. Regarding the sentence, the court noted that the penalty imposed, including the non-parole period, was well within the sentencing discretion of the trial judge. The court considered the non-parole period of 14½ months to be appropriate given the circumstances, including the revocation of two suspended sentences.

The court concluded by granting leave to appeal against conviction in limited respects but refused leave to appeal against the sentence. No further orders were made.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I do not consider that the proposed grounds of appeal with respect to sentence are arguable. The sentence imposed including the non-parole period was well within the sentencing discretion of the Judge. It might be said that, in the particular circumstances having regard to the revoking of two suspended sentences, the fixing of a non-parole period of 14½ months was merciful.Conclusion Leave to appeal against conviction is granted in the limited respects as referred to earlier in these reasons. Leave to appeal against sentence is refused.

Ratio Decidendi

Legal Principle Established

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