R v Deane-Johns - [2011] SASCFC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DEANE-JOHNS
[2011] SASCFC 55
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Peek)
17 June 2011
CRIMINAL LAW - PROCEDURE - JURIES - DISCHARGE AND EXCUSING FROM ATTENDANCE - INDIVIDUAL JURORS
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
Appellant convicted of four counts of threatening life and one count of possessing a prescribed firearm - sentenced to six years' imprisonment with a non-parole period of four years' imprisonment.
Appeal against conviction - whether trial Judge should have discharged the jury, or individual juror who had met witness during antenatal course - whether trial Judge erred in providing the jury with a written memorandum - whether trial Judge erred in directing the jury that they should not consider the credibility of the STAR Force officers.
Appeal against conviction dismissed.
Appeal against sentence - sentence not manifestly excessive - trial Judge failed to take into account two months that the appellant had already served in custody - head sentence and non-parole period reduced by two months - head sentence reduced to five years and ten months' imprisonment with a non-parole period of three years and ten months.
Criminal Law Consolidation Act 1935 (SA) s 19(1); Firearms Act 1977 (SA) s 11(1), referred to.
Webb and Hay v The Queen (1993-1994) 181 CLR 41, applied.
R v Tulisi [2008] SASC 306; R v Muir [2009] SASC 94; R v Radford (1986) 133 LSJS 110, considered.

R v DEANE-JOHNS
[2011] SASCFC 55
Court of Criminal Appeal: Sulan, Vanstone and Peek JJ

SULAN J: The appellant, Mark Temple Deane-Johns, was charged with four counts of threatening life, contrary to section 19(1) of the Criminal Law Consolidation Act 1935 (SA), and one count of possession of a prescribed firearm, contrary to section 11(1) of the Firearms Act 1977 (SA).
The appellant was found guilty by majority verdicts of four counts of threatening life, and a unanimous guilty verdict was returned in respect of possessing a prescribed firearm. He was sentenced to six years’ imprisonment with a non-parole period of four years’ imprisonment.
The appellant appeals both the convictions and the sentence.
Background
On 5 October 2005, the appellant’s wife made an emergency call to the police reporting that her husband had a shotgun in his vehicle and was behaving erratically in their home. At 5.21 pm the police attended the home. They observed a car in the driveway. The police treated the matter as ‘high risk’ and arrangements were made for the STAR Force to attend.
The STAR force members arrived at 6.37 pm. They established that the appellant was in the house. The appellant was requested to surrender. He refused and police negotiators then attended at 7.45 pm. Negotiations were not successful. It was 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 Deane-Johns

Details

AGLC: R v Deane-johns [2011] SASCFC 55
Case: [2011] SASCFC 55
Decision Date: 17 June 2011

CaseChat Overview and Summary

The appellant, R v Deane-Johns, appealed against his conviction for four counts of threatening life and one count of possessing a prescribed firearm, as well as his sentence of six years' imprisonment with a non-parole period of four years. The appeal was heard by Justice Sulan, Justice Vanstone, and Justice Peek.

The central legal issues before the Court of Appeal were whether the trial judge erred by failing to discharge the jury or an individual juror after it was revealed that the juror had a prior, albeit superficial, acquaintance with a key prosecution witness, Sergeant Devey. Additionally, the court considered whether the trial judge had erred in providing the jury with a written memorandum and in directing them not to consider the credibility of the STAR Force officers.

The court reasoned that the juror's acquaintance with Sergeant Devey was of a very superficial nature, having met him and his wife briefly approximately four years prior during an antenatal course. The juror herself indicated she did not believe it to be a problem. The trial judge had made inquiries into the extent of the relationship and was satisfied that it did not compromise the juror's impartiality. The Court of Appeal agreed with this assessment, finding no error in the judge's decision not to discharge the jury or the individual juror. The court also found no error in the provision of the written memorandum or the direction regarding the credibility of the STAR Force officers, as these directions were considered appropriate in the context of the trial.

The appeal against conviction was dismissed. However, the appeal against sentence was allowed, with the head sentence reduced to five years and ten months' imprisonment, and the non-parole period reduced to three years and ten months, to date from 6 October 2010.

Orders

Orders of the court

I would allow the appeal against sentence and reduce the head sentence to fives years and ten months’ imprisonment, with a non-parole period of three years and ten months, to date from 6 October 2010

Background

Background to the litigation

The appellant appeals both the convictions and the sentence.Background On 5 October 2005, the appellant’s wife made an emergency call to the police reporting that her husband had a shotgun in his vehicle and was behaving erratically in their home. At 5.21 pm the police attended the home. They observed a car in the driveway. The police treated the matter as ‘high risk’ and arrangements were made for the STAR Force to attend. The STAR force members arrived at 6.37 pm. They established that the appellant was in the house. The appellant was requested to surrender. He refused and police negotiators then attended at 7.45 pm. Negotiations were not successful. It was the prosecution case that the appellant exited the front door of his home at 7.55 pm and walked quickly towards his car in the driveway, at which point he opened the rear door and retrieved a sawn-off shotgun from the car. The shotgun was pointed at four STAR Force officers who then shot ten rounds of ammunition at the appellant. Although the appellant was not hit by a bullet, he was injured from fragments of shrapnel which appear to have come from a knife that the appellant was holding and which had been hit by a bullet. It was the defence case that the appellant had not approached his car, and that he had been shot at after leaving his house, while holding only a knife and not a shotgun. The appellant alleged that Sergeant Devey, a member of the STAR Force, had found the shotgun in the appellant’s car after the appellant had been wounded, and had placed it by the appellant to “cover up” a mistake that had been made by STAR Force officers in prematurely shooting at the appellant when he was not armed with a gun.Appeal against convictionGround 1 – The application to discharge the jury The appellant contends that the trial Judge should have discharged the jury, or an individual juror, after it became known that the juror knew the witness, Sergeant Devey. Sergeant Devey, a STAR Force officer, was the subject of count 3. His evidence commenced on the afternoon of 20 September 2010, and continued on 21 September 2010. On the morning of 21 September 2010, the trial Judge received a note from a juror indicating that she had met the witness and his wife approximately four years ago during an antenatal course, which the juror was conducting as a midwife. The note read:Dear Sir, I have realised I have met Cameron Devey. Approximately four years ago, I was doing an antenatal course with his wife. I don’t think this is a problem, but thought I should let you know. The trial Judge first indicated that there did not seem to be a problem. He adjourned, however, to allow defence counsel to speak to their client. Counsel for the appellant made an application to discharge the jury. The judge enquired as to the juror’s knowledge of and relationship with the witness. The juror described their meeting some years ago as lasting approximately 20 minutes. She thought she might know the witness in a “very superficial kind of way”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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