R v Rigney - [2005] SASC 264

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RIGNEY
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Vanstone and The Honourable Justice Anderson)
21 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF LEGAL PRACTITIONERS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - PARTICULARS
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appeal against convictions for murder and wounding with intent - whether prosecutor's failure to call witness led to miscarriage - whether prosecutor should have withdrawn after interviewing and discarding witness - defence left to call witness - whether cross-examination by prosecutor about interview with that witness introduced prosecutor's credibility - prosecutor's address - use of labels such as the "old I can't remember defence" - whether prosecutor disparaged appellant's defence by reference to other cases - discussion of principles guiding counsels' conduct.
Uncertainty on prosecution case as to which offence first occurred - whether prosecutor should have been required to elect as between versions.
Complaint as to directions in summing up - whether trial judge misdirected as to permissible use of "relationship evidence" - whether judge wrongly introduced scope for conviction on basis of joint enterprise - whether directions as to relevance of appellant's and victim's intoxication to lesser verdict of manslaughter adequate - appeal dismissed.
Evidence Act 1929 s28, referred to.
R v Frederick [2004] SASC 304, discussed.
R v Shaw (1991) 57 A Crim R 425; Sheahan & Anor v Northern Australia Land & Agency Co Pty Ltd & Ors (1994) 176 LSJS 257; Whitehorn v The Queen (1983) 152 CLR 657; R v Apostilidis (1984) 154 CLR 563; Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; R v Kneebone (1999) 47 NSWLR 450; R v O'Brien (1996) 66 SASR 396; R v Webb (1996) 186 LSJS 184; Browne v Dunn (1893) 6 R 67; R v Pfennig (1995) 182 CLR 461; O'Leary v The King (1946) 73 CLR 566; R v Wingfield (1994) 176 LSJS 14, considered.

R v RIGNEY
[2005] SASC 264
Court of Criminal Appeal: Bleby, Vanstone and Anderson JJ

BLEBY J: In my opinion the appeal should be dismissed. I agree with the reasons of Vanstone J and have nothing to add.
VANSTONE J: The appellant was convicted by verdicts of a jury of the murder of his de facto wife, Ingrid O’Connor, and of the wounding with intent to do grievous bodily harm of one Adam Aspel (“Aspel”). Both offences occurred on 21 August 2003 at the appellant’s home at Tailem Bend.
The prosecution case was that Ms O’Connor died as a result of a sustained beating with a wooden pole causing multiple injuries, and that the violence was observed…

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 Rigney

Details

AGLC: R v Rigney [2005] SASC 264
Case: [2005] SASC 264
Decision Date: 21 July 2005

CaseChat Overview and Summary

The appeal against the convictions of Rigney for murder and wounding with intent arose from the trial where several issues were presented to the court. The primary contention was whether the failure of the prosecutor to call a specific witness resulted in a miscarriage of justice. Additionally, it was argued that the prosecutor should have recused themselves after interviewing and discarding the witness, leaving the defence to call the same witness. Another issue was whether the cross-examination of this witness by the prosecutor, who had previously interviewed them, introduced questions of the prosecutor's credibility. Finally, concerns were raised about the prosecutor's address to the jury, including the use of pejorative labels and references to other cases, which allegedly disparaged the appellant's defence.

The court examined the principles guiding the conduct of counsel, particularly focusing on the prosecutor's duty to ensure a fair trial. It was noted that the prosecutor's decision not to call the witness, and the subsequent reliance on the defence to do so, could have implications on the fairness of the trial. The court also considered whether the prosecutor's cross-examination of the witness introduced credibility issues that could have prejudiced the appellant. Furthermore, the court evaluated the prosecutor's use of language during their address, assessing whether it amounted to disparaging the appellant's defence or improperly influencing the jury.

The court concluded that the failure of the prosecutor to call the witness did not result in a miscarriage of justice. The court found that the prosecutor's conduct, while not ideal, did not prejudice the appellant to the extent that it would warrant a new trial. The court emphasised the importance of counsel adhering to ethical standards but held that the errors did not reach the threshold of a miscarriage of justice. The appeal was dismissed, and the convictions were upheld.

No further orders were made by the court beyond dismissing the appeal and upholding the convictions. The court's decision underscored the necessity for prosecutors to maintain impartiality and fairness, while also acknowledging that not all departures from ideal conduct result in a retrial.

Orders