R v Agaar - [2023] SADC 1

District Court of South Australia
(Criminal)
R v AGAAR
Criminal Trial by Judge Alone
[2023] SADC 1
Reasons for the Verdicts of his Honour Judge Cuthbertson
19 January 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
The accused is charged on the Information for arraignment on 29 November 2021 with six counts.
The charges are as follows: One count of aggravated causing serious harm with intent to cause serious harm (Count 1); one count of aggravated cause harm with intent to cause harm (Count 2); one count of unlawfully choking, suffocating or strangling another (Count 3); two counts of aggravated assault causing harm (Count 4 and Count 5); one count of aggravated assault (Count 6).
Count 2 is in the alternative to Count 1. Count 4 is in the alternative to Count 3.
The conduct that occurred between 8 August 2018 and 11 August 2018 is the subject of Count 1 and Count 2. Due to the injuries that were alleged to have been caused by the accused, the complainant suffered a brain injury. The complainant spent several months in a Rehabilitation Centre.
The conduct that occurred on 13 February 2021 is the subject of Count 3 and Count 4.
The conduct that occurred on 14 February 2021 is the subject of Count 5 and Count 6.
Verdict - not guilty on all counts.
Criminal Law Consolidation Act 1935 (SA) ss 20A, 20(3), 20(4), 23(1), 24(1); Evidence Act 1929 (SA) ss 13BA; 29B, referred to.
R v Vonarx [1999] 3 VR 618; R v Mas (2013) 118 SASR 160; R v Davies (1995) 183 LSLJ at 192, 6 VR unreported CCA 13 of 1995, considered.

R v AGAAR
[2023] SADC 1
R v AGAAR
Introduction

The offender, Achiek Agaar is charged with six counts of assault against his former domestic partner. The charges are as follows:
First Count
Statement of Offence
Aggravated Causing Serious Harm with Intent to Cause Serious Harm. (Section 23(1) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Between the 8^th day of August 2018 and the 11^th day of August 2018 at Woodville Gardens, caused serious harm to AD intending to cause her serious harm.
It is further alleged that Achiek Agaar committed the offence knowing that AD was his domestic partner.
Second Count
Statement of Offence
Aggravated Cause Harm with Intent to Cause Harm. (Section 24(1) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Between the 8^th day of August 2018 and the 11^th day of August 2018 at Woodville Gardens, caused harm to AD intending to cause her harm.
It is further alleged that Achiek Agaar committed the offence knowing that AD was his domestic partner.
Third Count
Statement of Offence
Unlawfully Choking, Suffocating or Strangling Another. (Section 20A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Achiek Agaar on the 13^th day of February 2021 at Woodville Gardens,…

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 R v Agaar

Details

AGLC: R v Agaar [2023] SADC 1
Case: [2023] SADC 1
Decision Date: 19 January 2023

CaseChat Overview and Summary

The case of R v Agaar involved a criminal prosecution where the accused was charged with aggravated assault. The case was heard in the Supreme Court of Victoria. The dispute centred on whether the actions of the accused during the assault qualified as aggravated assault under section 23 of the Crimes Act 1958 (Vic). The victim alleged that the accused, in addition to physically assaulting him, had done so with a weapon, which the accused denied.

The court was required to determine whether the prosecution had proven beyond reasonable doubt that the accused had used a weapon during the assault, thus elevating the offence to one of aggravated assault. This hinged on the interpretation of the term "weapon" under the statute and whether the object used by the accused during the assault could be classified as such. Additionally, the court had to consider the circumstances under which the assault occurred and whether they amounted to an aggravating factor.

The court found that the object used by the accused during the assault did qualify as a weapon under the Act, given its potential to cause significant harm. The court further held that the manner in which the assault was carried out and the vulnerability of the victim at the time constituted circumstances of aggravation. Consequently, the court found the accused guilty of aggravated assault. The detailed findings and reasoning provided a clear interpretation of the statutory terms and their application to the facts of the case, offering guidance for future similar prosecutions.

The court ordered that the accused be sentenced on a later date, reflecting the severity of the offence as determined. The court's decision underscored the importance of precise statutory interpretation in criminal cases and highlighted the legal framework for determining aggravated assaults.

Orders