R v TANNER

[2006] SASC 320

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TANNER

[2006] SASC 320

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice David)

18 October 2006

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

Appeal against conviction - appellant was charged with aggravated serious criminal trespass in a non-residential building, theft and using a motor vehicle without consent, contrary to ss 169(2), 134 and 86A of the Criminal Law Consolidation Act 1935 (SA) respectively - appellant was charged with two other accused with whom he was said to have participated in a joint criminal enterprise - appellant was tried alone - appellant and co-accused were said to have stolen a truck which they used in the course of the theft - appellant's case was that he was asleep in the truck at the time of the offending as a consequence of drug and alcohol consumption and was not aware of the offending of the other two accused - no questions put to the appellant in cross-examination in relation to his state of sobriety or tiredness at the time of his arrest or during police questioning shortly after the offences occurred - prosecution sought to call evidence in rebuttal and trial Judge allowed prosecution to re-open case - held, although prosecution could not have anticipated issues which arose in appellant's testimony, the correct course for the prosecution to take would be to cross-examine the appellant, seeking an adjournment if necessary, and then applying to call further evidence if necessary - whether trial Judge erred in permitting the prosecution to call rebuttal evidence and, if so, whether miscarriage of justice arose - held, although trial Judge did not follow the proper course, this did not cause a miscarriage of justice in the circumstances of the case - whether Judge erred in refusing to order a mistrial - held, trial Judge was correct in refusing to order mistrial - whether Judge erred in failing to withdraw from the jury those issues on which the appellant had not been cross-examined - held, failure to cross-examine was not a reason to withdraw rebuttal evidence about appellant's sobriety from the jury - whether suggestion put by prosecutor to jury that was not part of prosecution case caused miscarriage of justice - held, matter was not important in summing up and defence case was fairly left to jury - whether trial Judge erred in directions to jury about failure of prosecution to cross-examine appellant - held, direction was based on flawed procedure, but no miscarriage of justice resulted - appeal dismissed.

Criminal Law Consolidation Act (1935) SA, referred to.
Wilde v The Queen (1987) 164 CLR 365, applied.
R v Chinn (1985) 157 CLR 671; Killick v The Queen (1981) 147 CLR 565; R v Soma (2003) 196…