Dal Cortivo v The Queen

Case [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…

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Dal Cortivo v The Queen [2010] ACTCA 14
Case
[2010] ACTCA 14
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for assault occasioning actual bodily harm and the subsequent sentence imposed. The appellant, Dal Cortivo, appealed against both the conviction and the sentence to the Court of Appeal of the Supreme Court of the Australian Capital Territory. The central contention was that the verdict reached by the jury was unsafe and unsatisfactory.

The Court of Appeal was required to determine whether the directions given by the trial judge to the jury regarding the defence of self-defence, particularly in the context of the appellant's intoxication, were misleading. Specifically, the court had to consider the proper test to apply when assessing the "belief" and "reasonable grounds" aspects of self-defence, as informed by the principles in *Zecevic v Director of Public Prosecutions (Vict.)* and the relevant provisions of the *Criminal Code (ACT) 2002*. The court also had to consider whether the jury was correctly instructed on how to assess the existence of reasonable grounds for the accused's belief, applying an objective test to the perception of those grounds.

The Court of Appeal found that the directions given to the jury concerning the interplay between self-defence and intoxication were indeed misleading. The court applied the principles established in *Zecevic*, which require an objective assessment of whether the grounds for the belief were reasonable, considering the circumstances as the accused perceived them. The court concluded that the jury had not been properly instructed on this crucial aspect, leading to a verdict that was unsafe and unsatisfactory. Consequently, the conviction and sentence were set aside, and a verdict of acquittal was substituted.

Orders

Orders of the court

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

2. A verdict of acquittal be entered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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