R v Calafati - [2005] VSCA 93

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 187 of 2004

THE QUEEN
	v.
DENNIS ORLANDO CALAFATI

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JUDGES:	BUCHANAN and VINCENT, JJ.A. CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 March 2005
DATE OF JUDGMENT:	28 April 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 93

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Criminal law – Intentionally causing serious injury – Self-defence – Trial judge did not unduly emphasize that the force used by the accused must be proportional to the threat offered to him – Jury told that accused was not required to weight with nicety the force needed to resist the attack – Trial judge adequately related the issues to the evidence – Self-defence labelled a “defence” by trial judge – No injustice as trial judge emphasized burden of proof on Crown.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Brown	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr L.C. Carter	Fitzroy Legal Service

BUCHANAN, J.A.:

After a trial in the County Court the applicant was convicted on a charge of intentionally causing serious injury. The charge arose from an altercation between the applicant and Goran Anicic when they were working as cooks at a Carlton restaurant on a Friday night. The only evidence of the circumstances in which the injury was inflicted was given by the applicant and Anicic.

Anicic said in evidence that he was working in the pizza section of the restaurant with the applicant. There had been previous arguments between the two. Anicic was making pizzas for the restaurant, while the applicant was making pizzas for the takeaway section of the restaurant. Anicic said that they argued about the allocation of work between them. Although Anicic was having difficulty keeping up with the orders for the restaurant, the applicant asked Anicic to help him with the takeaway orders. The applicant laughed at Anicic’s pronunciation of English. Anicic called upon the restaurant manager to settle the dispute. The manager told the applicant and Anicic to go on with their work.

Some ten minutes later Anicic went to the kitchen to collect plates from a bench next to a dishwasher. When he was at the bench he turned to see the applicant holding a knife. Anicic said:

“He tried to hit me in the head and I blocked with my right hand. He is saying he tried once again and I succeed to block with my left. I was actually cornered and I tried to take a step back but I couldn’t because there was no way to. In that moment two chefs, actually two cooks, they came … and they grabbed him from the back and they pull him out.”

Anicic said that he recognised the knife as one used in the pizza section. Anicic sustained cuts to his wrists. He was taken to hospital and his wounds were stitched.

In cross-examination Anicic denied that after the argument with the applicant as to making pizzas he attacked the applicant in a laneway beside the restaurant. He…

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 Calafati

Details

AGLC: R v Calafati [2005] VSCA 93
Case: [2005] VSCA 93
Decision Date: 28 April 2005

CaseChat Overview and Summary

In the case of R v Calafati, the accused was charged with intentionally causing serious injury, and the matter was heard in a court of appeal. The central issue was whether the trial judge had correctly directed the jury on the principles of self-defence, specifically regarding the proportionality of the force used by the accused in response to the threat faced by him. The case also addressed whether the trial judge adequately conveyed to the jury that the accused was not required to meticulously calculate the force needed to resist the attack.

The legal issues before the court revolved around the adequacy of the trial judge's instructions to the jury concerning the proportionality of force in self-defence situations and the overall clarity of the judge's explanation of the burden of proof. The court had to determine if the trial judge had correctly instructed the jury on the principles of self-defence, particularly the necessity for the force used by the accused to be proportional to the threat, and whether the judge had adequately balanced the issues with the evidence presented. Additionally, the court examined whether the trial judge had correctly identified self-defence as a "defence" and properly emphasised the burden of proof on the Crown.

The court found that the trial judge had not unduly emphasised that the force used by the accused must be proportional to the threat, and that the jury was correctly informed that the accused was not required to meticulously weigh the force needed to resist the attack. The court concluded that the trial judge had adequately related the issues to the evidence, and that self-defence had been properly labelled as a "defence" by the trial judge. Furthermore, the court determined that no injustice had occurred as the trial judge had emphasised the burden of proof on the Crown.

The court dismissed the appeal, affirming the conviction of the accused. The court held that the trial judge had provided sufficient and appropriate instructions to the jury on the principles of self-defence, and that the jury had been adequately guided on the burden of proof and the proportionality of force. The appeal was thus unsuccessful, and the conviction of the accused stood.

Orders