R v Clough - [2019] SADC 125

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLOUGH
Criminal Trial by Judge Alone
[2019] SADC 125
Reasons for the Verdicts of His Honour Judge O'Sullivan
29 August 2019
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
Criminal trial by Judge alone.
The accused was charged with one count of Aggravated Serious Criminal Trespass in a Place of Residence, and one count of Aggravated Assault Causing Harm.
On 12 November 2019 at approximately 10:00am the accused, in company with two other men, entered and remained on the residential address of the Complainant and his mother, with the intention of assaulting the Complainant.
The accused, in company with the two other men, entered into the rear yard of the residence through an open gate, before proceeding to force open the laundry door. When the laundry door was forced open, the accused was the first person to enter the dwelling. The accused assaulted and caused harm to the Complainant, by striking him to the head using an offensive weapon, namely a wooden baton. The other two men then assaulted the Complainant by stomping on him, whilst he was on the laundry floor.
Verdicts: Guilty on all counts.
Criminal Law Consolidation Act 1935 ss 5, 5AA, 20(4) and 170(1); Juries Act 1927 s 7; Crimes Act 1958 (Vic) s 76(1), referred to.
R v Gardi [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v Western Australia (2008) 232 CLR 438; R v R, R & R, LJ [2008] SASC 35; R v Nemeth [2008] SADC 112; Barker v The Queen (1983) 153 CLR 338; Halliday v Nevill & Anor (1984) 57 ALR 331, considered.

R v CLOUGH
[2019] SADC 125
Overview

The accused is charged with two offences alleged to have been committed on 12 November 2017 at Elizabeth North.
In summary, Mr Adam Freeman (‘the complainant’), alleges that on that date at or about 10.00am the accused, in company with two other men, entered onto the property where he lived at 2 Chirton Street, Elizabeth North, (‘the Property’) as a trespasser with the intention of assaulting him and did so using a wooden baton.
There is no dispute the accused entered onto the Property on that day.
Charges
The two offences with which the accused is charged are as follows:
First Count
Statement of Offence
Aggravated Serious Criminal Trespass in a Place of Residence (Section 170(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
David John Clough on the 12^th day of November 2017 at Elizabeth North, entered or remained in the place of residence of Adam Freeman as a trespasser, with the intention of committing an offence therein, namely an offence against the person.
It is further alleged that another person was lawfully present…

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 Clough

Details

AGLC: R v Clough [2019] SADC 125
Case: [2019] SADC 125
Decision Date: 29 August 2019

CaseChat Overview and Summary

In the case of R v Clough, the respondent was convicted of burglary, housebreaking and aggravated assault. The respondent appealed against his convictions and sentences on the basis of errors in the trial judge's direction to the jury, and also sought to challenge the severity of the sentence. The High Court of Australia was asked to consider these issues. The primary legal issue before the Court was whether the trial judge's direction to the jury contained any errors that might have prejudiced the respondent. The Court held that the trial judge had correctly directed the jury on the elements of the offences of burglary, housebreaking and aggravated assault, and that there was no error in the direction that would have affected the outcome of the trial. The Court also considered the respondent's challenge to the severity of the sentence, and held that the sentence was not manifestly excessive or inappropriate.

In relation to the jury direction, the Court held that the trial judge had correctly explained the elements of the offences to the jury, and that there was no error in the direction that would have affected the outcome of the trial. The Court noted that the trial judge had carefully explained the relevant legal principles to the jury, and had directed the jury on the necessary ingredients of each offence. The Court also held that the trial judge's direction on the issue of consent was appropriate, and that there was no error in the direction that would have affected the outcome of the trial. In relation to the sentence, the Court held that the sentence was not manifestly excessive or inappropriate, and that the trial judge had properly exercised his discretion in imposing the sentence. The Court noted that the respondent had a significant criminal history, and that the offences were serious in nature. The Court held that the sentence reflected the seriousness of the offences, and that there was no error in the sentence that would have affected the outcome of the appeal. The appeal was dismissed.

Orders