Dal Cortivo v The Queen

[2010] ACTCA 14

LINCOLN DAL CORTIVO v THE QUEEN
[2010] ACTCA 14 (9 August 2010)

APPEAL – appeal against conviction and sentence – verdict unsafe and unsatisfactory – appeal upheld – conviction and sentence set aside – verdict of acquittal substituted

CRIMINAL LAW – assault occasioning actual bodily harm – self-defence – intoxication – whether directions to jury likely to mislead – belief aspect of self defence – reasonable grounds aspect of self defence – proper test to apply – test in Zecevic v Director of Public Prosecutions(Vict.) (1987) 162 CLR 645 – subject to ss 30-34 of the Criminal Code (ACT) 2002 – assessing existence of reasonable grounds for belief of accused – objective test – perception of those grounds – question of fact – direction to jury concerning interplay of self-defence and intoxication misleading

Criminal Code 2002 (ACT), s 10, s 15, ss 30-34

Zecevic v Director of Public Prosecutions (Vict.) (1987) 162 CLR 645
R v Conlon (1993) 69 A CrimR 92
JA v Goldsmith [2004] ACTSC 79 (2 September 2004)
R v O’Meara [2009] ACTSC 122 (18 September 2009)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 18 - 2009
No. SCC 212 of 2008
No. SCC 239 of 2008

Judges:         Higgins CJ, Gray P and Ryan J
Court of Appeal of the Australian Capital Territory
Date:            9 August 2010

IN THE SUPREME COURT OF THE       )          No. ACTCA 18 - 2009
  )          No. SCC 212 of 2008
AUSTRALIAN CAPITAL TERRITORY    )          No. SCC 239 of 2008
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:LINCOLN DAL CORTIVO

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Higgins CJ, Gray P and Ryan J
Date:  9 August 2010
Place:  Canberra

THE COURT ORDERS THAT:

1. The conviction and sentence by Penfold J on 29 June 2009 be set aside.

1. A verdict of acquittal be entered.

IN THE SUPREME COURT OF THE       )          No. ACTCA 18 - 2009
  )          No. SCC 212 of 2008
AUSTRALIAN CAPITAL TERRITORY    )          No. SCC 239 of 2008
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:LINCOLN DAL CORTIVO

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Gray P and Ryan J
Date:  9 August 2010
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. On 29 June 2009, the appellant was convicted following a jury verdict that he was guilty of assaulting Eugene Haigh and thereby occasioning him actual bodily harm.  He was sentenced to enter into an 18 month good behaviour order and pay $2,000 to a named charity.

1. By notice of appeal dated 24 July 2009 the appellant complained of directions given by the trial judge to the jury:

(a)    ... in relation to the belief aspect of self defence were likely to mislead the jury as to the proper test to apply; and

(b)    ... as to the interplay of…