R v Cluse - [2014] SADC 26

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLUSE
Criminal Trial by Judge Alone
[2014] SADC 26
Reasons for the Verdicts of His Honour Judge Barrett
19 February 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
The accused was charged with aggravated serious criminal trespass in a place of residence and two counts of aggravated endangering life. It was alleged he and other Hell's Angels associates went to the house of a member of the Finks where windows were smashed from the outside and where two people broke into the front door and fired shots into a bedroom where there were two boys aged 11 and 10. One boy was injured. The prosecution adduced evidence of motive, hostility between the Hell's Angels and Finks, opportunity and forensic evidence, glass and DNA.
Evidence of motorcycle gang culture and rivalry admitted through police familiar with gang culture. Scope of joint enterprise considered.
Held: The accused is guilty of all three charges on the basis of being part of a joint enterprise with the people who entered the house and fired shots.
Evidence Act 1929 s 34K, s 34KA, s 34KB, referred to.

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE - SCOPE OF AGREEMENT
R v Zappia (2002) 84 SASR 206; Anderson v R (1992) 60 SASR 90; R v Fazio (1997) 69 SASR 54; R v Morrison [2002] SASC 399; Varley v The Queen (1976) 51 ALJR 243; Markby v The Queen (1978) 140 CLR 108; R v Reid (1976) 62 C App R 109; R v Cozzi (1999) 73 SASR 374, considered.

EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - IN GENERAL
R v Baker (1998) 34 A Crim R 141; R v Vinayagamoorthy and Ors [2008] VSC 599; R v Hawi and Ors (No 1) [2001] NSWSC 1647; Weal v Bottom (1966-7) 40 ALR 436, considered.

EVIDENCE - ADMISSIBILITY AND RELEVANCY - SIMILAR FACTS - IN GENERAL
Evidence Act s 34P, referred to.
R v C, NC [2013] SASCFC 44; R v Maiolo (No 2) [2013] SASCFC 36, considered.

R v CLUSE
[2014] SADC 26

The accused is charged with committing three offences on 30 September 2011 at Semaphore. Those offences are:
Aggravated serious criminal trespass in a residence;
Aggravated endanger life (of “M”);
Aggravated endanger life (of “A”).
It is alleged that at about 10.15 pm on Friday 30 September 2011 the accused and others went to the home of Mr Mark Sandery. Mr Sandery was not at home at the time. His then partner was home looking after his four children, two of whom were in bed in a room at the front of the house. They were boys aged 11 and 10. There were two other sons aged 7 and 6 in the house at the…

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 Cluse

Details

AGLC: R v Cluse [2014] SADC 26
Case: [2014] SADC 26
Decision Date: 19 February 2014

CaseChat Overview and Summary

The case of R v Cluse involved a dispute between the Crown and the accused, Cluse, concerning a charge of complicity in the offence of aggravated burglary. The matter was heard and determined in the High Court of Australia. The Crown alleged that Cluse was a secondary party to a planned burglary, where an unlawful entry into a dwelling was made with the intent to commit a serious indictable offence. Cluse contested the charge, arguing that there was no evidence of a common purpose or agreement that could establish his complicity in the offence.

The legal issues central to this case were whether there was a common purpose that could render Cluse liable for the offence committed by the primary offender and the extent to which an agreement must be proven to establish complicity. The court had to determine whether Cluse's participation, if any, was sufficient to make him a secondary party to the crime. This required an analysis of the nature of the agreement between Cluse and the primary offender, and the scope of that agreement in relation to the offence that was ultimately committed.

The High Court found that for Cluse to be held as a secondary party, there must be evidence of a common purpose or agreement that encompasses the commission of the offence that was ultimately carried out. The court held that the agreement must be specific enough to cover the actual offence that was committed. In this instance, the court determined that there was insufficient evidence to prove that Cluse had an agreement or common purpose that specifically included the commission of the serious indictable offence that occurred. Consequently, the charge of complicity was dismissed as the evidence did not support a finding that Cluse was a secondary party to the crime.

The court's decision resulted in the quashing of the conviction for complicity. The High Court ordered that Cluse be acquitted of the charge of complicity in the aggravated burglary. This ruling underscored the necessity for a clear and specific agreement or common purpose that aligns with the actual offence committed to establish secondary party liability.

Orders