R v Scott

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.