R v Duke - [2000] SASC 254

R v DUKE

[2000] SASC 254

Court of Criminal Appeal: Prior, Williams and Martin JJ

1................ PRIOR J........................... I agree with the reasons given by Martin J.

The appeal against conviction should be dismissed, leave to appeal against sentence granted, and the sentence imposed by the trial judge set aside. In lieu of that sentence, the appellant should be imprisoned for eight years and eight months with a non-parole period of four years and four months, the sentence and non-parole period commencing on 23 March 2000.

3................ WILLIAMS J.... I agree with the orders proposed by Martin J for the reasons which he has given.

4................ MARTIN J......... The appellant was charged with murder. He was acquitted by a jury of murder, but convicted of manslaughter. A sentence of six years imprisonment was imposed and a non-parole period of two years fixed. The appellant appeals against that conviction on the basis that the verdict of the jury was unreasonable. The Director of Public Prosecutions seeks leave to appeal against the sentence and non-parole period, primarily on the basis that they are manifestly inadequate.

Conviction

When a complaint is made that the verdict of the jury is unreasonable, this Court is required to ask itself “whether it thinks upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen (1994) 181 CLR 487 at 493. The Court must make its own independent assessment of the evidence. Whatever be the cause, a verdict which is unreasonable, unsafe or unsatisfactory constitutes a miscarriage of justice requiring the verdict to be set aside.

Evidence

The charge arose out of an incident on Wednesday, 5 May, 1999. The appellant was then aged 29 years and the deceased, Scott Averis, 21 years. They were friends and had worked together at the University of South Australia.
The relevant background to the events of 5 May 1999 began on 28 April, 1999. According to the appellant, an unknown person broke into the premises in which the appellant was living and stole a number of items, including a video camera. At that time the appellant was growing a small amount of cannabis in a shed at the rear of the premises. A small amount of cannabis and a light shade from the hydroponic room was stolen. At about 6 pm on the following day, the deceased visited the appellant’s home for a couple of minutes. The appellant gave evidence that during the conversation suspicions were aroused in his mind as to whether the deceased had been involved in the theft. The appellant said that although the theft had not been mentioned, the deceased made a point of saying that he had been at University all week and had been working “flat out all day” during the previous day. On 30 April 1999, the appellant unsuccessfully attempted to find out if the deceased had been working during the day of the theft. He continued…

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 Duke

Details

AGLC: R v Duke [2000] SASC 254
Case: [2000] SASC 254
Decision Date: 4 August 2000

CaseChat Overview and Summary

The appellant, Mr Duke, was charged with murder but acquitted by the jury and convicted of manslaughter. He appealed against his conviction on the basis that the verdict was unreasonable. The Director of Public Prosecutions sought leave to appeal against the sentence imposed. The appeal against conviction was dismissed and leave to appeal against the sentence was granted. The sentence imposed by the trial judge was set aside. The Court of Criminal Appeal imposed a sentence of eight years and eight months imprisonment with a non-parole period of four years and four months. The Court found that the jury's verdict was not unreasonable and that the sentence imposed by the trial judge was manifestly inadequate. The Court noted that the introduction of a lethal weapon into a conflict and the use of the weapon to cause death elevates the crime into the more serious category of manslaughter. The Court emphasized the importance of imposing penalties that properly reflect the seriousness of the crime and the culpability of the offender.

Orders