R v DOLFEN

[2011] SASCFC 45

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DOLFEN

[2011] SASCFC 45

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Kelly and The Honourable Justice Peek)

18 May 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

Appeal against conviction – appellant convicted of aggravated causing serious harm with intent to cause serious harm – where victim chased from a street into a park at night and stabbed with a knife – victim previously knew the appellant as a friend and recognised the appellant as his attacker – victim failed to promptly identify his attacker to his mother and police after the stabbing – appellant allegedly confessed to independent third party – whether inconsistency in accounts given by third party and victim in relation to a subsequent meeting or sighting of the accused and the victim – whether conviction unsafe and unsatisfactory having regard to the evidence.

Held: (Kelly J, Doyle CJ and Peek J concurring): Appeal dismissed – although some aspects of the evidence open to criticism, the trial Judge gave detailed instructions in respect of the evidence – no inconsistency demonstrated in accounts given by third party and victim in relation to a subsequent meeting or sighting of the accused and the victim – verdict not unsafe.

M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559, discussed.

R v DOLFEN
[2011] SASCFC 45

Court of Criminal Appeal:   Doyle CJ, Kelly and Peek JJ

1. DOYLE CJ:          I would dismiss the appeal against conviction.  I agree with the reasons of Kelly J.

2. KELLY J:             After a trial by jury in the District Court the appellant was convicted of one count of causing serious harm with intent while in possession of a knife.

3. The charge arose out of an incident in which a 20 year old man was chased into a park and stabbed at Aldinga Beach in the early hours of the morning of 17 December 2007.

4. The prosecution case was based on the evidence of the victim, Travis Laidlaw, who identified the appellant as his attacker, and an associate of the appellant’s to whom the appellant admitted the stabbing.

5. The appellant appeals the conviction.  The sole ground of appeal is that the conviction is unsafe and unsatisfactory and cannot be supported having regard to the evidence at trial.  Two main arguments were advanced in support of the ground of appeal.  The appellant submitted that the credibility and reliability of the victim’s identification of the appellant as the offender was undermined to a significant extent by the failure of the victim to promptly identify the appellant as his attacker after the stabbing.  The appellant also argued that the jury should have entertained a reasonable doubt whether any confession as recounted by the appellant’s associate, Mr Cutts, was ever actually made.  It was said that the inherent unreliability of both the…