R v Roberts

[2011] SASCFC 117

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ROBERTS

[2011] SASCFC 117

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice Peek)

26 October 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION

Appellant appeals against conviction on one count of aggravated causing serious harm with intent to cause serious harm - conviction arose out of an altercation which occurred at the appellant's home - victim was struck on the arm by a sword wielded by the appellant causing serious injury to the victim's hand and arm - appellant argued he was acting in self-defence - whether trial Judge was in error in not giving a direction to the jury in terms of s 15C of the Criminal Law Consolidation Act 1935 (SA) - whether the evidence led by the prosecution that the appellant had chosen to exercise his right to silence should have been before the jury - whether the trial Judge's directions with regard to the subjective elements of the offence were adequate.

Held: Appeal allowed - conviction set aside and matter remitted to the District Court for retrial - a direction in accordance with s 15C of the Criminal Law Consolidation Act 1935 (SA) should have been given - the failure to do so was an error of law - the jury should have been directed that the accused was under no obligation to speak to the police and that no adverse inference could be drawn from the exercise of his right not to answer questions - the directions given to the jury in relation to the subjective elements of the offence were not inadequate and misleading - the jury could have been in no doubt that the appellant's intention was in issue.

Criminal Law Consolidation Act 1935 (SA) s 15, s 15A, s 15B, s 15C, s 21, s 23, s 168(1); Acts Interpretation Act 1915 (SA) s 19(2)(b); Criminal Law (Self-Defence) Amendment Act 2003 (SA) s 4(1), referred to.
R v Martin (2007) 99 SASR 213; Pemble v The Queen (1971) 124 CLR 107; Braysich v The Queen (2011) 85 ALJR 593; R v Heness [2009] SASC 243, discussed.
Fingleton v The Queen (2005) 227 CLR 166; Petty v The Queen (2001) 205 CLR 50; Azzopardi v The Queen (2001) 205 CLR 50; Police v Lloyd (1998) 72 SASR 271; R v Edwards [2009] SASC 223; Gipp v The Queen (1998) 194 CLR 106; Murray v The Queen (2002) 211 CLR 193; CTM v The Queen (2008) 236 CLR 440; Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; R v Howe (1958) 100 CLR 448; Palmer v The Queen [1971] AC 814; Viro v The Queen (1978) 141 CLR 88; Beckford v The Queen (1987) 85 CAR 378;