R v SCOTT - [2014] SASCFC 27

Supreme Court of South Australia
(Court of Criminal Appeal)
R v SCOTT
[2014] SASCFC 27
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Stanley)
10 April 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION
Appeal against conviction.
The appellant was convicted after a trial by jury of one count of aggravated attempted robbery. He was convicted by majority verdict. The aggravating factor was that the offence was committed in company. The appellant was tried jointly with a co-accused.
The appellant appeals, with permission, on the ground that his conviction was occasioned by a miscarriage of justice due to the admission of evidence of impermissible discreditable conduct.
The evidence of discreditable conduct concerned an allegation that the appellant and the co-accused would steal food from a shop.
Whether the impugned evidence was so prejudicial that it was not capable of being cured by any direction to the jury. Whether the direction given by the trial judge was inadequate and a miscarriage of justice occurred. Whether the proviso applies in this case.
Held per Stanley J (Gray and Peek JJ agreeing, dismissing the appeal):
1. The impugned evidence did occasion prejudice to the appellant, however that prejudice was not substantial.
2. The prejudice occasioned to the appellant was cured by the clear and firm direction to the jury that they were to ignore the evidence which was irrelevant to the issues in the trial.
3. The jury would inevitably have arrived at the same verdict if the impugned evidence had not been admitted. There was no miscarriage of justice.
Nudd v The Queen (2006) 162 A Crim R 301; Maric v The Queen (1978) 52 ALJR 631; Crofts v The Queen (1996) 186 CLR 427, discussed.
Webb and Hay v The Queen (1994) 181 CLR 41; R v Weetra (2004) 236 LSJS 328; Queen v Carbone (1976) 14 SASR 280 per Bray CJ at 287, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"miscarriage of justice" and "proviso"

R v SCOTT
[2014] SASCFC 27
Court of Criminal Appeal: Gray, Peek and Stanley JJ

GRAY J. I would dismiss the appeal. I do not wish to add to the reasons of Stanley J.
PEEK J. I would dismiss the appeal. I substantially agree with the reasons of Stanley J.
STANLEY J.
Introduction
This is an appeal against conviction.
The appellant was convicted after a trial by jury of one count of aggravated attempted robbery. He was convicted by majority…

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 SCOTT

Details

AGLC: R v SCOTT [2014] SASCFC 27
Case: [2014] SASCFC 27
Decision Date: 10 April 2014

CaseChat Overview and Summary

This case concerned an appeal by the appellant, R v Scott, against his conviction for attempted aggravated robbery. The dispute arose from the admission of evidence during the trial, which the appellant argued constituted a miscarriage of justice. The appeal was heard by Gray, Peek, and Stanley JJ of the Court of Criminal Appeal.

The central legal issue before the court was whether the admission of certain unsolicited evidence from a witness, Madeline Cotton, and the subsequent direction given by the trial judge to the jury, had occasioned a miscarriage of justice. The impugned evidence suggested that the appellant and his co-accused had engaged in shoplifting to obtain food, which the Crown had initially sought to adduce as evidence of their impecuniosity and thus motive for the attempted robbery. The appellant contended that this evidence was inadmissible and that the trial judge's direction did not adequately cure the prejudice caused.

The court considered the principles governing miscarriages of justice, particularly in the context of improperly admitted evidence and judicial directions. It was noted that a miscarriage of justice occurs if there is a material irregularity that has a significant possibility of affecting the trial's outcome. The court examined whether the jury, properly directed, would have convicted the appellant based on the admissible evidence alone, or if the inadmissible evidence could reasonably be said to have influenced their verdict. The respondent argued that the trial judge's direction, which explicitly instructed the jury to ignore the unsolicited evidence as irrelevant to the charges, was adequate to cure any prejudice. The court found that the direction was sufficient and that the evidence, at its highest, suggested minor shoplifting, which was far removed from the serious charge of attempted aggravated robbery.

Ultimately, the court concluded that, having regard to all the evidence and the directions given by the trial judge, there was no miscarriage of justice. Consequently, the appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

At trial evidence was led on the financial position of the appellant and the co-accused at the time of the attempted robbery for the purpose of proving they were in desperate need of money. This was one of the strands in the Crown’s circumstantial case. The impugned evidence The impugned evidence was adduced from Madeline Cotton who gave evidence of the appellant and the co-accused staying at her home in late August 2012. The Crown sought to adduce evidence from her on the topic of the impecuniosity of the appellant and the co-accused. This was relevant to motive. In the course of addressing that topic, Ms Cotton, referring to the appellant and the co-accused, gave the following evidence:Q.Would they go out separately or together or a bit of each.A.They always went out together.Q.Did they say things or either of them say anything on the topic of whether they had any money or not.A.No, they said that they needed to stay at my house until they got their tax so that they could register the car. Q.Did they say anything about how much funds they had available to them.A.No, not exactly, but it was made clear they didn’t have much.Q.How was it made clear they didn’t have much.A.When dinner was required they’d go up the shop and take what it was that they needed. The appellant’s counsel at trial made an application to discharge the jury. The learned trial judge declined to do so. Instead, during the summing up, with the agreement of the appellant’s trial counsel, the learned trial judge gave directions to the jury in response to this evidence.The trial judge’s direction to the jury The trial judge gave the following direction to the jury:I want to say something about what I might describe as prejudgment or irrelevant considerations. Shortly I will come to the legal ingredients of the offence charged and then to some other legal principles which relate to the evidence you will be considering in your deliberations. Before that, however, it is important that I say something about evidence that you will not be considering during your deliberations.Two prosecution witnesses gave two pieces of quite unsolicited evidence. Ms Cotton, whom the accused had stayed with for a few days, implied that the accused did not pay for food that they had brought to the house. Ms Cotton cannot have known that the accused did not pay for the food but she implied they did not pay for it. That’s the first piece of evidence.The second piece of evidence came from Mr Smith, the vendor of the BMW. He said one of the accused asked if he could get some cannabis.Several things need to be said about those two pieces of evidence. The first is that this case is about whether you can be satisfied beyond reasonable doubt that each individual accused attempted an aggravated robbery at Elizabeth. The case is not about whether the accused paid for their dinner a week later or whether one or other of them wanted some cannabis. Those two pieces of evidence are irrelevant to the issues in the trial.Second, the evidence that is related to the issues in the trial is the circumstantial evidence which bears on whether one or both of the accused committed the crime. That circumstantial evidence has nothing to do with the character or morality of either accused. The court is not concerned with their character or morality. You would not reason from any evidence that a person has a particular sort of character or propensity. The court is concerned to enable you to consider the evidence led by the prosecution implicating the accused in the commission of this crime. The court is concerned to enable you to determine whether in the case of each accused that evidence satisfies you beyond reasonable doubt of his guilt or does not so satisfy you. I direct you as a matter of law to ignore those two pieces of unsolicited evidence.The parties’ submissions

Decision

Reasons for decision

GRAY J (dissent) PEEK J (dissent) STANLEY J (dissent)

For these reasons I am satisfied that there was no miscarriage of justice. This conclusion avoids any need to consider the proviso. Conclusion I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by:

The respondent submits that, in all the circumstances, no miscarriage of justice was occasioned by the receipt of the impugned evidence given the trial judge’s direction to the jury. It submits that the impugned evidence was not of such a nature that it occasioned any irremediable prejudice to the appellant. At its highest, the evidence suggested that both the appellant and the co-accused may have engaged in shoplifting. The allegation was far removed from the serious allegation for which they were being tried. The Crown case relied on the accumulation of a number of circumstances which implicated the appellant and the co-accused as the two men responsible for the attempted aggravated robbery. The existence of a financial motive was but one of the circumstances. In any event, the direction given by the trial judge was adequate to the circumstances and cured any prejudice. The appellant’s counsel at trial did not complain of the terms of the direction or seek any further redirection. Consideration The appellant complains that a miscarriage of justice was occasioned by the reception of inadmissible evidence and that the prejudice occasioned to him was not cured by the direction given. Whether there was a miscarriage of justice is to be determined in light of all the evidence given in the case and having regard to the directions given by the judge.[1][1] Webb and Hay v The Queen (1994) 181 CLR 41 per Toohey J at 89 – 90. In Nudd v The Queen[2] Gummow and Hayne JJ said:[3]“Miscarriage of justice”, as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial.… [It] requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial. [2] [2006] HCA 9, (2006) 162 A Crim R 301.[3] [2006] HCA 9 at [24], (2006) 162 A Crim R 301 at 312. In Maric v The Queen[4] Gibbs ACJ (as he then was) said:[5]The test to be applied in determining whether the wrongful admission of evidence has caused a miscarriage of justice has been stated in a variety of ways. Stirland v Director of Public Prosecutions, [1944] AC 315 at 321, is authority for the proposition that there will have been no substantial miscarriage of justice “where a reasonable jury, after being properly directed, would on the evidence properly admissible, without doubt convict.” In Archbold’s Pleading Evidence and Practice in Criminal Cases … the principle is stated as follows: “Where it is established that evidence has been wrongfully admitted, the court will quash the conviction unless it holds that the evidence so admitted cannot reasonably be said to have affected the minds of the jury in arriving at their verdict, and that they would or must inevitably have arrived at the same verdict if the evidence had not been admitted. In considering this question, the nature of the evidence so admitted and the direction with regard to it in the summing up are the most material matters.” At basis the question is whether the Court of Criminal Appeal can be satisfied that the irregularity has not affected the verdict and that the jury would certainly have returned the same verdict if the errors had not occurred – see Driscoll v The Queen (1977) 51 ALJR 731 at 743.[4] (1978) 52 ALJR 631.[5] (1978) 52 ALJR 631 at 635.