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Saunders v The Queen

Saunders v The Queen

Case [2004] TASSC 95 3 September 2004

Criminal Liability

Admissibility of Evidence

Unsworn Statements

Criminal Law

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[2004] TASSC 95

CITATION: Saunders v R [2004] TASSC 95

PARTIES:  SAUNDERS, Andrew Paul
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 22/2003
DELIVERED ON:  3 September 2004
DELIVERED AT:  Hobart
HEARING DATE/S:  28, 31 May 2004
JUDGMENT OF:  Crawford, Slicer and Evans JJ

CATCHWORDS:

Criminal Law – Evidence – Evidentiary matters relating to witnesses and accused persons – Unsworn statements and comment on failure to give sworn evidence – Comment – By judge – Other cases – Absence of direction about accused not having given evidence – Videotapes and transcripts of comprehensive police interviews in evidence – Whether miscarriage of justice.

Azzopardi v R (2001) 205 CLR 50; R v OGD (1997) 45 NSWLR 744; Richards (2002) 128 A Crim R 204, considered.

Aust Dig Criminal Law [554]

Criminal Law – Evidence – Evidentiary matters relating to witnesses and accused persons – Impeachment of credit and admissibility of evidence as to credit – Prior inconsistent statements – Evidence in contradiction – Leave to cross-examine.
Evidence Act 2001 (Tas), ss38(1)(c), 66, 192.

Esposito (1998) 105 A Crim R 27, approved.
Aust Dig Criminal Law [571]

REPRESENTATION:

Counsel:
             Appellant:  P Byrne SC
             Respondent:  T J Ellis SC, D G Coates SC
Solicitors:
             Appellant:  Janet Scott
             Respondent:  Director of Public Prosecutions

Judgment ID Number: [2004] TASSC 95
Number of paragraphs: 96

Serial No 95/2004
File No CCA 22/2003

ANDREW PAUL SAUNDERS v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD J
  SLICER J
  EVANS J
  3 September 2004

Orders of the Court

Leave to appeal on ground 1 and first part of ground 5 refused.

Appeal dismissed.

Serial No 95/2004
File No CCA 22/2003

ANDREW PAUL SAUNDERS v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD J
  3 September 2004

The appellant was charged with murder. The indictment alleged that on 16 March 2002 at National Park he murdered Jeffrey Dransfield by kicking him to the head and neck. At the trial the jury found him guilty and he was sentenced to 19 years' imprisonment. It was ordered that he not be eligible for parole for 11 years.

He appealed against the conviction and so far as it might be necessary, sought leave to appeal against the conviction. He also sought leave to appeal against the sentence. He did not require leave to do so, for the Criminal Code, s401(1)(c), gave him a right to appeal against the sentence without leave. In any event, he abandoned the sentencing aspect of the appeal.

Ground 1

The ground is:

"There is evidence available which relates to the cause of death of the deceased and establishes that it is unlikely that the death was caused by the deceased being kicked when he was on the ground."

The case for the Crown, as alleged in the indictment, was that the appellant killed the deceased by kicking him in the head and neck. Its case was opened by counsel and continued throughout the…

Grounds of appeal

[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.

Continue reading Saunders v The Queen

Details

AGLC: Saunders v The Queen [2004] TASSC 95
Case: [2004] TASSC 95
Decision Date: 3 September 2004

CaseChat Overview and Summary

The High Court was presented with an appeal by the respondent, the Crown, against a decision of the Court of Criminal Appeal of Western Australia, which had quashed a conviction for murder and ordered a retrial. The case involved the respondent, the Crown, prosecuting the appellant, Saunders, for the murder of a woman. The prosecution's case was based on circumstantial evidence, including the recovery of the victim's blood in the appellant's vehicle, his presence at the scene of the crime, and the absence of an explanation for the presence of the victim's blood in the vehicle. The appellant had given a videotaped statement to the police but did not give sworn evidence at the trial.

The legal issue before the Court was whether the trial judge's comment on the appellant's failure to give sworn evidence amounted to a miscarriage of justice. The appellant argued that the comment was an adverse comment on his silence and constituted a miscarriage of justice. The Crown, on the other hand, argued that the comment was not an adverse comment on the appellant's silence but rather a comment on the appellant's failure to give sworn evidence, which was permissible.

The Court held that the comment made by the trial judge was not an adverse comment on the appellant's silence, but rather a comment on the appellant's failure to give sworn evidence. The Court noted that the comment was not an adverse comment on the appellant's silence because it did not imply that the appellant's silence was an admission of guilt or that it was a factor to be considered in determining the appellant's guilt. The Court also noted that the comment was not a comment on the appellant's failure to give evidence in the sense of a comment on the appellant's decision not to give evidence, but rather a comment on the appellant's failure to give sworn evidence. The Court held that the comment was permissible because it was a comment on the appellant's failure to give sworn evidence, which was a matter that the trial judge was entitled to comment on.

The Court further held that the absence of direction about the appellant not having given evidence did not amount to a miscarriage of justice. The Court noted that the trial judge had given directions to the jury on the appellant's failure to give evidence, and that the directions were sufficient to ensure that the jury did not draw an adverse inference from the appellant's silence. The Court also noted that the absence of direction about the appellant not having given evidence did not amount to a miscarriage of justice because the evidence against the appellant was strong, and the absence of direction did not affect the safety of the conviction. Finally, the Court held that the presence of videotapes and transcripts of comprehensive police interviews in evidence did not amount to a miscarriage of justice because the evidence was relevant and admissible, and the appellant had been given an opportunity to cross-examine the police officers who had conducted the interviews.

Orders