R v Scott

Case [2012] SASCFC 137

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SCOTT

[2012] SASCFC 137

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice White)

20 December 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION

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

Application for permission to appeal against conviction – applicant found guilty by jury of attempted murder – applicant’s primary defence at trial was that he was not the assailant, or in the alternative, if he was the assailant, he did not intend to kill the victim.

Whether the Judge addressed the jury adequately in relation to the applicant’s alternative defence – whether the directions on intention should have referred to the evidence which raised as a possibility that the shots might have only been intended to harm or frighten – whether there has been a miscarriage of justice – if there has, whether the proviso should be applied.

Per Kourakis CJ:  the Judge did not refer to the applicant’s alternative defence when he directed the jury on the mental element of intention to kill – the Judge’s failure to apply his directions on the element of intention to the evidence is a material departure from accepted practice – this error has caused a miscarriage of justice – the prosecution has not discharged its onus for the purposes of the proviso.

Per White J:

(1) The Judge directed the jury appropriately that it had to be satisfied that the appellant had the intention to kill, and that any lesser intention would be insufficient.

(2) The jury is likely to have understood the Judge's directions in relation to the drawing of inferences in relation to the appellant's intention as indicating that they were entitled to infer the culprit's intention from the manner in which he shot at the victim.

(3) The Judge did not direct the jury adequately on the element of intention in relation to the evidence.  This omission was exacerbated by the Judge's statements that identity was the "real issue" in the trial.

Held: permission to appeal granted – appeal allowed – conviction for attempted murder set aside – matter remitted for retrial.

Per Vanstone J (dissenting):  The trial Judge's instructions could not have deflected the jury from its proper task so as to cause a miscarriage of justice.

Gassy v The Queen (2008) 236 CLR 293; Cesan v The Queen (2008) 236 CLR 358; Nudd v R (2006) 162 A Crim R 301; Festa v The Queen (2001) 208 CLR 593; Weiss v The Queen (2005) 224 CLR 300; Libke v The Queen (2007) 230 CLR 559; Knight v The Queen (1992) 175 CLR 495, discussed.
R v Storey (1978) 140 CLR 364; Driscoll v The Queen (1977)…

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AGLC
R v EDJ [2012] SASCFC 137
Case
[2012] SASCFC 137
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CaseChat Overview and Summary

This matter concerned an application for permission to appeal against a conviction for attempted murder. The applicant had been found guilty by a jury, with his primary defence at trial being that he was not the assailant, or alternatively, that if he was the assailant, he did not possess the intention to kill the victim. The Court of Criminal Appeal of South Australia was required to determine whether the trial judge had adequately addressed the jury in relation to the applicant's alternative defence, specifically whether the directions on intention should have referred to the evidence suggesting the shots might have been intended only to harm or frighten. The Court also considered whether a miscarriage of justice had occurred and, if so, whether the proviso should be applied.

The Court, constituted by Kourakis CJ, Vanstone and White JJ, found that the trial judge had failed to refer to the applicant's alternative defence when directing the jury on the mental element of intention to kill. Kourakis CJ held that this failure to apply the directions on intention to the specific evidence presented was a material departure from accepted practice, which had caused a miscarriage of justice. The Chief Justice concluded that the prosecution had not discharged its onus for the purposes of the proviso, which allows an appeal to be dismissed despite an error if the court is satisfied that no substantial miscarriage of justice has actually occurred.

Consequently, the Court granted permission to appeal, allowed the appeal, set aside the conviction for attempted murder, and remitted the matter for retrial. Vanstone J, in her concurring reasons, noted that the application had been referred to the Full Court by a single judge and agreed that the adequacy of the jury directions was the central issue.

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

My conclusion, that the evidence does not exclude as a reasonable possibility that the applicant shot recklessly but not with an intention to kill, would, generally, require a verdict of not guilty to be substituted if the applicant had appealed on the ground that the verdict was unreasonable. The present authoritative statements of principle on the proper approach to the unreasonable verdict ground, and the application of the proviso, do not expressly deal with the possibility that reasonable people might differ on whether the evidence proves the commission of the offence beyond reasonable doubt. I would hold that an appellate court which, in a case such as this, was satisfied beyond reasonable doubt that an intention to kill was proved should nonetheless not deny an applicant the opportunity to have a properly directed jury determine the question. As the High Court observed in Weiss,[22] the satisfaction of the Court that the offence was proved beyond reasonable doubt is a necessary, but not sufficient, condition for the application of the proviso. The reasoning of Kirby and Callinan JJ in Libke[23] and of French CJ in Cesan[24] in the passages cited above seem to me to support the proposition that the proviso need not be applied if the court accepts that a reasonable and properly directed jury might acquit even if the court would convict. So too does the reasoning of Gummow and Hayne JJ in Gassy[25] in declining to apply the proviso because evidence permitted, but did not compel, the drawing of an inculpatory inference.[22] (2005) 224 CLR 300.[23] (2007) 230 CLR 559.[24] (2008) 83 ALJR 43.[25] (2008) 236 CLR 293.Conclusion I would make the following orders:1.Grant permission to appeal.2.Allow the appeal.3.Set aside the conviction for attempted murder.4.Remit the matter for retrial. VANSTONE J: The applicant’s application for permission to appeal against his conviction by verdict of a jury for attempted murder was referred to this Court by a judge sitting alone. The application challenges the adequacy of directions given to the jury.Background The case against the applicant was that in the early hours of 16 April 2011 he went to the home of one Paul Wood carrying with him a .22 calibre firearm. He knocked at the door and the victim, who was temporarily staying with Paul Wood, came to the front door. The victim heard the applicant say two or three times, “Open the door bro”. The porch light was on. The victim recognised the applicant, who was standing near the front door and who was illuminated by the outside light. Paul Wood gave evidence that, from a position nearby, he heard and he recognised the voice as being the applicant’s. There was evidence that, from the applicant’s position on the porch, the view into the hallway through the security door was extremely limited. On seeing the applicant at the front porch, the victim tried to slam the solid front door, but the applicant fired the weapon twice, one round, or part of one round, hitting the victim in the head. The other round hit the screen door at about chest height. The prosecution case was that it was likely that the applicant thought he was shooting Paul Wood.

Ratio Decidendi

Legal Principle Established

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