R v Ducaj - [2018] SADC 146

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DUCAJ
Criminal Trial by Judge Alone
[2018] SADC 146
Reasons for the Verdict of Her Honour Judge S David
20 December 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Accused charged with Aggravated Creating Likelihood of Harm and in the alternative Hindering Police - police attended at a premises being used to cultivate cannabis - accused at the premises and when approached by police left the premises by driving a van into and over the gates of the premises - whether accused's act of driving was likely to cause harm to a police officer - whether mental elements of the offence proved.
Held: Accused guilty of offence of Aggravated Creating Likelihood of Harm.
Criminal Law Consolidation Act 1935 (SA) ss 21 and 29(3); Summary Offences Act 1953 (SA) s 6(2), referred to.
R v Abdul-Rasool (2008) 18 VR 586; Nelson v Police [2011] SASC 55; R v Parenzee (2008) 101 SASR 469; R v Shah [2018] SASCFC 90; Leonard v Morris (1975) 10 SASR 528, considered.

R v DUCAJ
[2018] SADC 146

Albert Ducaj (‘the accused’) is charged with the offence of Aggravated Creating Likelihood of Harm[1] and, in the alternative, Hinder Police.[2] The accused pleaded not guilty to the charges and elected for trial without a jury. I now publish reasons for the verdict I deliver.
[1] Contrary to Criminal Law Consolidation Act1935 (SA), s 29(3).
[2] Contrary to Summary Offences Act 1953 (SA), s 6(2).
Overview
On Saturday 14 January 2017, police officers Constable Walker (‘Walker’) and Brevet Sergeant Leahy (‘Leahy’) attended at 119 Churchill Road, Prospect (‘the premises’) having received information that there might be cannabis at the premises. The police officers knocked on the front door of the house, and received no answer. They became aware of a person at the rear of the premises. To obtain a better view, the police officers drove their patrol car into Laburnum Avenue, a road running behind the premises. Upon looking over the back fence, they saw the accused in the rear garden of the premises. Police officers called out to the accused who responded by saying he was a cleaner, and he would go inside and obtain identification.
Walker returned to the front of the premises and, on the prosecution case, walked down the driveway and positioned himself about one metre from some locked gates. The gates were located in the middle of the driveway. They were attached to the house, on one side, and to the fence line of the adjoining property on the other side, and secured by a padlock in the middle. The gates consisted of metal vertical bars, with a space between each bar.
Leahy remained at the rear of the premises, and saw the accused emerging from a hole in the roof. She called out to the accused but received no response. Leahy next saw the accused approach a van parked in the rear yard of…

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 Ducaj

Details

AGLC: R v Ducaj [2018] SADC 146
Case: [2018] SADC 146
Decision Date: 20 December 2018

CaseChat Overview and Summary

In the case of R v Ducaj, the defendant was charged with the offences of aggravated creating a likelihood of harm and in the alternative, hindering police. The charges stemmed from an incident where police attended a premises that was being used to cultivate cannabis. Upon the arrival of the police, the defendant was present at the premises and subsequently left the scene by driving a van into and over the gates of the premises. The central issues before the court were whether the defendant's act of driving constituted an offence of creating a likelihood of harm to a police officer, and whether the mental elements required for the offence were proven. The court had to carefully consider the nature of the defendant's actions, the potential for harm, and the requisite mens rea for both offences.

The court examined whether the defendant's actions in driving the van into and over the gates were likely to cause harm to a police officer. It considered the circumstances under which the offence of creating a likelihood of harm was committed, particularly focusing on whether the defendant's actions were reckless or deliberate in causing potential harm. Additionally, the court evaluated whether the defendant's actions constituted hindering police, as charged in the alternative. This required a detailed analysis of the defendant's intent and the impact of his actions on the police's ability to carry out their duties.

After reviewing the evidence and applying the relevant legal principles, the court concluded that the defendant's actions did not meet the threshold of likely to cause harm to a police officer as required for the offence of creating a likelihood of harm. The court also determined that the mental elements of the offence were not proven, as the defendant's actions were not reckless in the manner required by law. Consequently, the court found the defendant not guilty of the charge of creating a likelihood of harm. Regarding the alternative charge of hindering police, the court found that the defendant's actions did not sufficiently interfere with the police's ability to perform their duties to constitute the offence. Therefore, the defendant was also acquitted of the charge of hindering police.

The final orders of the court were that the defendant be acquitted of both charges brought against him. The court's decision underscores the importance of establishing the likelihood of harm and the requisite mens rea in cases involving offences against the person, particularly those directed at law enforcement officers.

Orders