Ducaj v The Queen - [2019] SASCFC 152

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
DUCAJ v THE QUEEN
[2019] SASCFC 152
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly, The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Nicholson)
17 December 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
This is an appeal against conviction. The appellant was found guilty of the charge of aggravated creating a likelihood of harm contrary to s 29(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
Two police officers attended an address based on information that there might be cannabis growing on the premises. No answer was received when the officers knocked on the door. The appellant, from the rear of the premises, informed the officers that he was a cleaner and he would go inside to obtain identification. One of the officers, Constable Walker, positioned himself near some locked gates located in the middle of the driveway. The other officer, Constable Leahy, remained at the rear of the premises. She observed the appellant emerging from a hole on the roof. The appellant then entered a van parked on the premises. The trial judge found that the accused drove the van into, and over, the gate, and only narrowly missed colliding with Constable Walker as he took evasive action. Her Honour also found that the appellant committed the offence knowing the officer was acting in the course of his duties, thereby proving the aggravating feature of the offence.
There are two grounds of appeal. They are that the trial judge misdirected herself as to the elements of the offence of aggravated creating a likelihood of harm in that she held that proof of reckless indifference for the purpose of s 29(3)(b) only required the prosecution to establish that the applicant was aware of a substantial risk of harm and decided to engage in the relevant conduct nevertheless; and that the trial judge erred in holding that on the facts as found the offence was proved.
Held per Stanley J (Kourakis CJ, Kelly, Peek, and Nicholson JJ agreeing), dismissing the appeal on ground 1:
1. There has been no error demonstrated in the trial judge’s finding that a contravention of s 29(3) of the Criminal Law Consolidation Act 1935 (SA) was proved.
Held per Kourakis CJ (Kelly, Peek and Nicholson JJ agreeing), dismissing the appeal on ground 2:
1. The judge erred in law in directing herself that the element of reckless indifference involved engaging in conduct knowing that it exposed another to a substantial risk of harm. However, this failure cannot have affected the result because the judge correctly directed herself on the element of knowledge of the likelihood of harm in paragraph [15] of her Honour’s reasons.
Held per Stanley J, dismissing the appeal on ground 2:
1. The case of R v Shah [2018] SASCFC 90

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.

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Details

AGLC: Ducaj v The Queen [2019] SASCFC 152
Case: [2019] SASCFC 152
Decision Date: 17 December 2019

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kourakis CJ, Kelly, Peek, Stanley, and Nicholson JJ, heard an appeal against conviction. The appellant had been found guilty of aggravated creating a likelihood of harm contrary to s 29(3) of the *Criminal Law Consolidation Act 1935* (SA).

The appeal raised two grounds: first, that the trial judge misdirected herself on the elements of the offence, specifically regarding the requirement of reckless indifference under s 29(3)(b), by holding that proof of this element only required the prosecution to establish the appellant's awareness of a substantial risk of harm and a decision to proceed with the conduct regardless; and second, that the trial judge erred in concluding that the offence was proven on the facts as found.

The Full Court dismissed the appeal. The majority found that the trial judge's implicit finding that the driving was objectively likely to cause harm, despite her Honour's more limited finding of a "real or substantial risk of harm," was sufficient. In the absence of evidence of any lawful excuse or adequate justification for the appellant's driving, the element of recklessness was necessarily made out on that finding.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

That finding is also, implicitly, a finding that the driving was, objectively, likely to cause harm, notwithstanding her Honour’s more limited, and insufficient, finding, expressed in paragraph [56], that the driving created ‘a real or substantial risk of harm’.[40] There being no evidence of any good reason or adequate justification for the appellant to drive in the way he did, the element of recklessness is necessarily made out on that finding.[40] [2018] SADC 146 at [56].Conclusion I would dismiss the appeal. KELLY J: I would dismiss the appeal. I generally agree with the reasons of the Chief Justice concerning appeal ground 2 and with the reasons of Stanley J concerning appeal ground 1. PEEK J: I would dismiss the appeal. I generally agree with the reasons of the Chief Justice concerning appeal ground 2 and with the reasons of Stanley J concerning appeal ground 1.STANLEY J:Introduction This is an appeal against conviction. The appellant was found guilty of the charge of aggravated creating a likelihood of harm contrary to s 29(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). There are two grounds of appeal. They are that the trial judge misdirected herself as to the elements of the offence of aggravated creating a likelihood of harm in that she held that proof of reckless indifference for the purpose of s 29(3)(b) only required the prosecution to establish that the applicant was aware of a substantial risk of harm and decided to engage in the relevant conduct nevertheless;[41] and that the trial judge erred in holding that on the facts as found the offence was proved.[42][41] Ground 2.[42] Ground 1. Section 29 of the CLCA provides:29—Acts endangering life or creating risk of serious harm(1) Where a person, without lawful excuse, does an act or makes an omission—(a)knowing that the act or omission is likely to endanger the life of another; and(b)intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered,that person is guilty of an offence.Maximum penalty: (a) for a basic offence—imprisonment for 15 years;(b) for an aggravated offence—imprisonment for 18 years.(2) Where a person, without lawful excuse, does an act or makes an omission—(a)knowing that the act or omission is likely to cause serious harm to another; and(b)intending to cause such harm or being recklessly indifferent as to whether such harm is caused,that person is guilty of an offence.Maximum penalty: (a) for a basic offence—imprisonment for 10 years;(b) for an aggravated offence—imprisonment for 12 years.(3) Where a person, without lawful excuse, does an act or makes an omission—(a)knowing that the act or omission is likely to cause harm to another; and(b)intending to cause such harm or being recklessly indifferent as to whether such harm is caused,the person is guilty of an offence.Maximum penalty: (a) for a basic offence—imprisonment for 5 years;(b) for an aggravated offence—imprisonment for 7 years.(4) If a court convicting a person of an offence against this section is satisfied that the act or omission constituting the offence was done or made by the convicted person in the course of the convicted person's use of a motor vehicle, the court must order that the person be disqualified from holding or obtaining a driver's licence for 5 years or such longer period as the court orders.(5) Where a convicted person is disqualified from holding or obtaining a driver's licence—(a)the disqualification operates to cancel any driver's licence held by the convicted person as at the commencement of the period of disqualification; and(b)the disqualification may not be reduced or mitigated in any way or be substituted by any other penalty or sentence.Circumstances of the offending

Ratio Decidendi

Legal Principle Established

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