R v POLLITT (No 2) - [2009] SASC 154

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v POLLITT (No 2)
[2009] SASC 154
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice White)
4 June 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES
Application to “re-open” appeal – applicant originally charged with attempted abduction and indecent behaviour arising out of the same set of circumstances – convictions recorded on both counts after trial by jury – on appeal conviction on second count affirmed – appeal on first count allowed, conviction set aside and retrial ordered – applicant acquitted on re-trial – claim that fresh evidence relevant to complainant’s credibility which was not available at first trial was led at second trial.
HELD: application dismissed – orders on the appeal were perfected and the court has no power to entertain a second appeal.
Criminal Law Consolidation Act 1935 (SA) s 352, s 353; Supreme Court Act 1935 (SA) s 27; Criminal Appeals Act 1924 (SA) s 5; Criminal Appeal Act of 1912 (NSW); Crimes Act 1900 (NSW), referred to.
Eastman v The Queen (2008) 166 FCR 579; Grierson v The King (1938) 60 CLR 431; R v Brain (1999) 74 SASR 92; R v Edwards (No 2) [1931] SASR 376; R v Keogh (unreported, 22 December 1995, s5397.1); R v Keogh (2007) 175 A Crim R 153, applied.
Pantorno v The Queen (1989) 166 CLR 466; Postiglione v The Queen (1997) 189 CLR 295; R v Pantorno [1988] VR 195, considered.

R v POLLITT (No 2)
[2009] SASC 154
Court of Criminal Appeal: Duggan, Gray and White JJ

DUGGAN J: On 15 September 2006 the applicant was convicted by a District Court jury of attempted abduction with intent to have sexual intercourse (“the first count”) and indecent behaviour (“the second count”). It was alleged that the offences took place in the course of an incident at Greenock on 29 June 2005. He appealed to this Court against conviction on both counts.
The appeal against the conviction on the second count was dismissed. The appeal against conviction on the first count was allowed, the conviction set aside and, by majority, the Court ordered a retrial on this count. The majority was of the view that the trial judge erred in failing to direct the jury adequately in relation to the element of intention to have intercourse. The dissenting judge was of the view that there was insufficient evidence for a jury to conclude that the applicant had an intention to take the complainant away by force, or to have sexual intercourse with her. In his view, a verdict of acquittal on the first count was the appropriate order.
The retrial on the first count took place before a judge of the District Court sitting without a jury. The applicant was acquitted. The applicant now applies to this Court to “re-open” the appeal.
The grounds put forward…

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 POLLITT (No 2)

Details

AGLC: R v POLLITT (No 2) [2009] SASC 154
Case: [2009] SASC 154
Decision Date: 4 June 2009

CaseChat Overview and Summary

The applicant, Pollitt, applied to the court to reopen an appeal related to his original charges of attempted abduction and indecent behaviour. The charges arose from the same set of circumstances and were tried by jury, resulting in convictions on both counts. Pollitt's appeal was partially successful; the conviction on the second count was affirmed, but the appeal on the first count was allowed, setting aside the conviction and ordering a retrial. Pollitt was acquitted during the retrial, with fresh evidence concerning the credibility of the complainant, which was not available during the first trial.

The central legal issue before the court was whether it had the jurisdiction to entertain a second appeal after the original appeal had been successfully concluded with a retrial ordered and subsequent acquittal. The court needed to determine if there were any exceptional circumstances that would justify reopening the appeal process, considering the new evidence and the outcome of the retrial.

In delivering its judgment, the court held that the original orders on the appeal had been perfected, and there was no legal basis for the court to entertain a second appeal. The court emphasised the importance of finality in legal proceedings and noted that the appeal process had already been completed with definitive outcomes. Consequently, the application to reopen the appeal was dismissed, and the court reiterated its lack of power to entertain a second appeal in these circumstances.

Orders