Director of Public Prosecutions v Dixon (Ruling No 2) - [2021] VSC 464

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2019 0264
S ECR 2019 0265
S ECR 2019 0266

DIRECTOR OF PUBLIC PROSECUTIONS

MARK DIXON

and

STEPHEN TAHANEY

and

JACK HARVEY

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JUDGE:	Coghlan JA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2021
DATE OF RULING:	28 July 2021
DATE OF WRITTEN JUDGMENT:	4 August 2021
CASE MAY BE CITED AS:	DPP v Dixon & Ors (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 464

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CRIMINAL LAW – No case to answer application – Attempted murder – Statutory complicity - Evidence capable of supporting a guilty verdict – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Bourke QC with Mr J Shaw	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused	Ms L Ristivojevic	Sarah Tricarico Lawyers

HIS HONOUR:

At the close of the prosecution case, after the co-accused Stephen Tahaney had given evidence, Jack Harvey made a no case application with respect to charge one on the indictment, attempted murder. It was submitted that for the crime of attempted murder to be committed, the prosecution has to prove intention to kill. That submission is correct. It was further submitted that there was insufficient evidence for the jury to conclude beyond reasonable doubt that Jack Harvey was party to an agreement to kill Said (Sid) Morgan.

The prosecution case stated briefly is that Stephen Tahaney shot Sid Morgan intending to kill him.

The principal way the case is put is that:

·Stephen Tahaney, Mark Dixon and Jack Harvey had gone to 24 Spraypoint Drive Point Cook to kill Sid Morgan.
·That on the evidence it can be shown that Sid Morgan was not armed:

(i) There are text messages at about 10.30 pm in which Morgan is trying to obtain a weapon.

(ii) On the prosecution case, there is insufficient time for such a weapon to have been delivered.

(iii) The use of the bag to conceal the gun was pointless and it would have been much more effective to produce the gun.

(iv) Given Sid Morgan’s tendency to use firearms, why didn’t he use it?

·That there was ample opportunity for the three accused to have discussed Sid Morgan’s threats on the way to the Grandview Hotel, at the Grandview Hotel and when coming home from the Grandview Hotel. Stephen Tahaney accepted that the matters had been discussed in those settings.
·That Mark Dixon had been separately threatened by Sid Morgan and since the decision had been reached that Mark Dixon and Jack Harvey would spend the night at the Savoy Hotel at Brighton, both Mark Dixon and Jack Harvey knew of those threats.
·While the three accused were at the Grandview Hotel, Morgan’s conduct became much more threatening including information that he was going to Tahaney’s home whilst armed.
·That whilst either at the Grandview Hotel or on the way home Morgan suggested he was near Tahaney’s home.
·The decision had been made not to go…

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 Director of Public Prosecutions v Dixon (Ruling No 2)

Details

AGLC: Director of Public Prosecutions v Dixon (Ruling No 2) [2021] VSC 464
Case: [2021] VSC 464
Decision Date: 28 July 2021

CaseChat Overview and Summary

In the case of Director of Public Prosecutions v Dixon, the defendant sought to have the charge of attempted murder dismissed on the grounds that there was no case to answer. The proceedings took place in the relevant court, with Dixon facing the serious allegation of attempted murder under Australian criminal law. The crux of the dispute hinged on whether the prosecution's evidence was sufficient to support a guilty verdict on the charge of attempted murder, including the element of statutory complicity.

The primary legal issue the court had to address was whether the evidence presented was capable of supporting a finding of guilt by a reasonable jury. This required an assessment of the sufficiency of the evidence to establish the elements of attempted murder, including the intent to commit murder and the act done in furtherance of that intent. The court also had to consider the role of statutory complicity and whether there was sufficient evidence to prove Dixon's involvement as an accomplice.

In dismissing the no case to answer application, the court held that the prosecution had presented evidence that was sufficient to establish each element of the offence of attempted murder. The court found that the evidence could reasonably support a finding that Dixon had the requisite intent and had taken an act in furtherance of that intent. Furthermore, the court was satisfied that there was adequate evidence to support a finding of Dixon's involvement as a statutory accomplice. Consequently, the application to dismiss the charge was refused.

Orders