R v Suppiah

[2018] SASCFC 11

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SUPPIAH

[2018] SASCFC 11

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Hinton)

23 February 2018

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - OTHER ACTS OR OMISSIONS RESULTING IN DEATH

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ALTERNATIVE VERDICTS - DIRECTIONS TO JURY

CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - FUNCTIONS OF JUDGE AND JURY - DETERMINATION OF ADMISSIBILITY

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION

Appeal against conviction for murder.

The victim was stabbed in the abdomen with a kitchen knife in the course of an altercation between the appellant and the victim.  The prosecution case was that no other person was involved in the stabbing.  The defence case was that Boby Mahalingam grabbed the appellant’s hand and deliberately or accidentally caused the victim to be stabbed. 

The prosecution called as a witness Jega Selvanayagam, who gave evidence that approximately three weeks after the stabbing he asked the appellant why he killed or murdered the victim and the appellant said that on that morning the victim had called him a ladyboy.  The appellant objected to admission of this evidence and Jega gave evidence on the voir dire.  The Judge admitted the evidence.

The appellant appeals on the grounds that:

1.  the Judge erred in his directions as to the dangerous act element of the alternative offence of manslaughter;

2.  the Judge erred in admitting the evidence of Jega, or in the alternative, failing to exclude the evidence of Jega;

3.  the Judge failed to adequately direct the jury as to Jega’s evidence;

4.  the Judge erred in his directions as to specific intent required to prove murder and the     relevance of intoxication thereto;

5.  the Judge erred in his directions as to the burden of proof;

6.  the Judge failed to adequately present the defence case.

Held:

(1)  Although the Judge erred in directing the jury on the elements of manslaughter that a dangerous act is one exposing the deceased to an appreciable risk of injury rather than an appreciable risk of serious injury, the error was not material to the jury’s finding that the appellant was guilty of murder (at [62]) per Blue J and [155] per Hinton J (Kourakis CJ agreeing)).

(2)  The Judge did not err in admitting the evidence of Jega or in declining to exclude the evidence (at [73] and [88] per Blue J and [187] and [207] per Hinton J (Kourakis CJ agreeing)).

(3)  The Judge’s directions in relation to Jega’s evidence were not inadequate (at [93]) per Blue J and [219] per Hinton J (Kourakis CJ agreeing)).

(4)  The Judge’s directions in relation to intention to kill…