(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kourakis)
21 December 2009
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - WHAT IS - DISTINCTION BETWEEN QUESTION OF LAW AND QUESTION OF FACT
Application for permission to appeal against convictions for illegal use of a motor vehicle and aggravated robbery - applicant refused permission to appeal by single Judge - application renewed before Court of Criminal Appeal - whether verdicts unsafe and unsatisfactory and against the weight of the evidence - whether trial Judge erred in rejecting the admission of a letter into evidence - whether discretion not to permit letter into evidence involves question of law alone or question of mixed law and fact - whether permission to appeal required.
Held: (Gray & Sulan JJ) permission to appeal refused - verdict not unsafe or unsatisfactory - evidence supported verdicts - decision not to admit letter into evidence in exercise of Judge's discretion - Judge correct in refusing counsel permission to tender the letter - decision of trial Judge to refuse tender of letter not a question of law alone - discretionary decision involved questions of mixed fact and law - applicant required permission to appeal.
(Kourakis J in dissent) permission to appeal on first ground refused - verdict not unsafe or unsatisfactory - whether Judge erred in refusing counsel permission to tender the letter does "involve a question of law alone" - appeal as of right - permission not required - although raising question of law alone, this ground without substance - proviso applied in any event.
[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.
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Details
AGLC
R v Vaughan (No 2) [2009] SASC 395
Case
[2009] SASC 395
Decision Date
CaseChat Overview and Summary
The applicant in this case, Vaughan, sought permission to appeal his convictions for illegal use of a motor vehicle and aggravated robbery. The initial application for leave to appeal was denied by a single judge. Vaughan then renewed the application before the Court of Criminal Appeal, arguing that the verdicts were unsafe and unsatisfactory and against the weight of the evidence. Additionally, Vaughan contended that the trial judge had erred in rejecting the admission of a letter into evidence. The central legal issues before the Court were whether the verdicts were indeed unsafe or unsatisfactory, whether the trial judge had erred in rejecting the letter, and if the decision to exclude the letter was a question of law alone or a question of mixed law and fact, which would determine whether permission to appeal was required.
The Court of Criminal Appeal, comprising Gray and Sulan JJ, held that the verdicts were not unsafe or unsatisfactory and were supported by the evidence. The decision to exclude the letter was a discretionary judgment by the trial judge, which involved questions of mixed fact and law. Consequently, the Court concluded that the trial judge was correct in refusing permission to tender the letter. The majority held that the decision to exclude the letter was not a question of law alone but involved a mixed question of fact and law, thereby requiring permission to appeal. The Court dismissed Vaughan’s appeal on the ground that the verdicts were not unsafe or unsatisfactory, and on the ground that the exclusion of the letter involved a question of mixed fact and law.
Kourakis J dissented, arguing that the question of whether the trial judge erred in refusing permission to tender the letter did involve a question of law alone. Although this ground was without substance, the Court of Criminal Appeal could entertain the appeal as of right. However, the majority view prevailed, and the application for leave to appeal was ultimately refused.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Gibbs CJ in this respect observed:[14][14] Williams v The Queen (1986) 161 CLR 278 at 286-287.Since the learned trial judge exercised his discretion on a wrong principle, the Court of Criminal Appeal would have been entitled to review the exercise of that discretion if an appeal had lain to that Court. And since the members of the Court of Criminal Appeal in Tasmania are in a much better position than are the members of this Court to know whether local conditions in Tasmania are such as to require the rejection of confessional evidence for the purpose of discouraging unlawful conduct by the police, I would be disposed to defer to their decision upon such a question. However, the applicant had been acquitted, and under s 401(2)(b) of the Criminal Code leave could be granted to the Attorney-General to appeal only "on a question of law alone". The learned members of the Court of Criminal Appeal considered that there was at least one question of law alone which arose in the present case, namely, whether the learned trial judge, in ruling that the records of interview should be excluded, misdirected himself as to the proper application of s 34A(1) of the Justices Act. However, that question did not stand alone -- ultimately the question was whether the confessions were rightly rejected, and that depended on the making of a discretionary judgment which depended in part on the facts of the case. In Reg v Jenkins[15], Crisp J correctly pointed out that a "question of law alone" does not include a question of mixed fact and law and went on to say that "there would seem to be great difficulties in the way of entertaining an appeal by the Crown against the exercise of a judicial discretion where the question involved is not so much the existence of a discretion but the question of its exercise in relation to the facts of a particular case".Wilson and Dawson JJ agreed with his observations:[16]Provision for an appeal against a verdict of acquittal is exceptional. Under s 401(2)(b) of the Criminal Code it lies by leave upon "a question of law alone". The grounds of appeal to the Court of Criminal Appeal raised a question of mixed fact and law which did not fall within the section. We agree with the view expressed upon this aspect of the matter by the Chief Justice.Mason and Brennan JJ expressed the following opinion:[17]An appeal lies on "a question of law alone". An appeal does not lie on a ground which involves a mixed question of fact and law: that is a ground available to a person convicted of an offence (s 401(1)(b)(ii)) but not to the Attorney-General. An appeal on the ground of the wrongful rejection of evidence by a trial judge in the exercise of a discretion is not an appeal on a question of law alone. The manner in which a discretion is exercised depends upon the judge's appreciation of all the facts of the case, so that an error of law which leads the judge wrongly to hold that he has a discretion is not the only factor which contributes to his decision to reject the evidence: cf Reg v Gillis[18]; Reg v Lachapelle[19]. In the present case, evidence of the interviews with the applicant after 2.15 pm on 17 May 1984 was rejected not only because the learned trial judge thought that there was a breach of statutory duty by the police officers concerned in the questioning of the applicant but also because "it would be unfair to the accused to admit such evidence having regard to the circumstances in which it was procured". Even if his Honour was in error in his construction of s 34A(1) of the Justices Act, that error was not the only factor contributing to the decision which the Attorney-General attacked on the appeal. The decision to reject the evidence of the interviews depended also on his Honour's appreciation of the facts of the case. The rejection of the evidence was not attributable to "a question of law alone".[Emphasis added][15] R v Jenkins [1970] Tas. SR 13 at p 15.[16] Williams v The Queen (1986) 161 CLR 278 at 314.[17] Williams v The Queen (1986) 161 CLR 278 at 301-302.[18] Reg v Gillis (1966) 2 CCC 219 at p 222.[19] Reg v Lachapelle (1972) 8 CCC (2d) 120 at p 123.
Decision
Reasons for decision
If, contrary to my opinion, the cross-examination should have been permitted, it is my view that it could not possibly have affected the jury’s assessment of the truth and reliability of Vonderwall’s evidence about the offence itself. The involvement of the applicant in that offending is strongly corroborated by other evidence. I would therefore have applied the proviso.Conclusion I would refuse leave on Ground 1. The appellant is entitled to an appeal on Ground 2 as of right, but I would dismiss his appeal on that ground.