R v Dunn

Case [2012] SASCFC 40

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DUNN

[2012] SASCFC 40

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Stanley)

18 April 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - DEFENCE OF ANOTHER

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - DIRECTIONS TO JURY

Appeal against conviction - following trial in the District Court, defendant found guilty by jury verdict of recklessly causing serious harm contrary to section 23(3) of the Criminal Law Consolidation Act 1935 (SA) - at trial the primary issue in dispute was whether the defendant's actions were unlawful - defence of another was raised - whether the Judge in error in summing up in relation to the onus of proof - whether the Judge in error in oral and written directions as to the second limb of self defence; namely, whether the defendant's conduct was in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that he genuinely believed to exist.

Held: appeal dismissed - an impugned passage said to relate to the onus of proof in the summing up was not a misdirection, the jury would have understood that the Judge was making an observation about how they might approach their task - the substance of the statutory requirements relating to acting in the defence of another were adequately explained to the jury - in this case it is difficult, if not impossible, to distinguish between the defendant's belief as to the threat his partner faced and his belief as to the circumstances - in the event it was necessary, proviso would be applied.

Criminal Law Consolidation Act 1935 (SA) s 15, s 15B, s 23(3) and s 353(1); Criminal Law Consolidation (Self-Defence) Amendment Act 1991 (SA); Criminal Law (Self-Defence) Amendment Act 1997 (SA), referred to.
Zecevic v DPP (Vic) (1987) 162 CLR 645; R v Spartels [1953] VLR 194; R v Redman [1978] VR 178; R v Gillman (1994) 62 SASR 460; Police v Lloyd (1998) 72 SASR 271; R v Edwards [2009] SASC 233; R v Burns (2009) 103 SASR 514; R v Roberts (2011) 111 SASR 100; Fingleton v The Queen (2005) 227 CLR 166; McBride v The Queen (1966) 115 CLR 44, considered.

R v DUNN
[2012] SASCFC 40

Court of Criminal Appeal         Gray, Anderson and Stanley JJ

GRAY J:

  1. This is an appeal against conviction. 

  2. The defendant and appellant, Antony Dunn, was charged on information with the offence of recklessly causing serious harm contrary to section 23(3) of the Criminal Law Consolidation Act 1935 (SA). Particulars of the offence were that the defendant,…

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R v Dunn [2012] SASCFC 40
Case
[2012] SASCFC 40
Decision Date

CaseChat Overview and Summary

The appellant, Antony Dunn, appealed his conviction in the District Court of South Australia for recklessly causing serious harm, contrary to section 23(3) of the Criminal Law Consolidation Act 1935 (SA). The central dispute at trial concerned the lawfulness of the appellant's actions, with the defence of another being raised. The appeal argued that the trial judge erred in summing up the jury instructions regarding the onus of proof and in providing oral and written directions on the second limb of self-defence, specifically whether the appellant's conduct was reasonably proportionate to the threat he genuinely believed his partner faced.

The Full Court of South Australia was required to determine whether the trial judge's summing up contained misdirections concerning the onus of proof and the elements of the defence of another. Specifically, the court had to assess if the jury was adequately instructed on the requirement that the appellant's actions, in the circumstances as he genuinely believed them to be, must have been reasonably proportionate to the perceived threat.

The court dismissed the appeal, finding that the impugned passage regarding the onus of proof was not a misdirection and that the jury would have understood it as an observation on how to approach their task. The substance of the statutory requirements for acting in the defence of another was adequately explained. The court noted that in this case, it was difficult to distinguish between the appellant's belief about the threat to his partner and his belief about the circumstances. Even if there had been any inadequacy in the directions, the court held that it would not have resulted in a miscarriage of justice, and therefore, the proviso under section 353(1) of the Criminal Law Consolidation Act 1935 (SA) would have been applied.

Orders

Orders of the court

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Background

Background to the litigation

The defendant and appellant, Antony Dunn, was charged on information with the offence of recklessly causing serious harm contrary to section 23(3) of the Criminal Law Consolidation Act 1935 (SA). Particulars of the offence were that the defendant, between 1 and 4 August 2009 at Glenelg, unlawfully caused serious harm to Jothi Kumara Gedara, being reckless as to whether such harm was caused. On 10 November 2011, following a trial in the District Court, the defendant was convicted by unanimous jury verdict of the offence as charged. Background The incident the subject of the charge took place at the Grand Hotel at Glenelg. It was the prosecution case at trial that the defendant punched Mr Gedara twice. Mr Gedara was a security guard at the Hotel and was attempting to prevent the defendant’s partner, Coralee Crystal Louise Tamarapa, continuing an altercation with the defendant, but was first attacked by Ms Tamarapa and then punched by the defendant. The prosecution case with respect to the plea of defence of another was that Mr Gedara did no more than stop Ms Tamarapa and that he simply redirected her elsewhere. It was the prosecution case that Mr Gedara’s physical contact with Ms Tamarapa was limited to him stopping her with his arm and open palm, and that the defendant could not possibly have had a genuine belief that he needed to defend Ms Tamarapa from Mr Gedara. Further, it was the prosecution case that there was no reasonable proportion between what the defendant claimed to have seen and the punches administered to Mr Gedara’s face. The prosecution called two witnesses – Mr Gedara and Wayne Edwin Gooding, a security supervisor at the hotel who knew the defendant socially as a patron of the hotel. The Judge in the course of his summing up summarised the substance of Mr Gedara’s evidence in the following terms:He said that some time before the incident he noticed a group of males whom he knew. As part of the PR of his job, he decided to introduce himself to the accused whom he had not seen before. He said that he went up to the group, shook hands with the accused and spent about 30 seconds with him. He said that just after midnight he came through the top section of the bar, down some steps onto the floor level heading to section four to speak to a colleague.…As he did so he noticed the accused walk past him with a smile. He then noticed an angry woman pursuing him. He said that he had to protect the girl because, he said, on his experience with her being angry and going after the male she might get damaged or, as he put it, there is a story going to start.He said he put out his right hand to stop her and then directed with his left that she go elsewhere. She started attacking him, not really punching him but trying to grab his face or scratch him.Upon that happening, he received one punch to the right side of his face and then a harder one to his left. He was punched with the accused’s right fist on which he saw shining, which were probably rings, he said.He fell backwards. He noticed that the accused’s friends were holding him because he appeared angry and aggressive. The accused screamed at Mr Gedara saying ‘I’ll kill you’. Mr Gedara denied that he had ever put his hand on Ms Tamarapa’s shoulders and turned her around. He denied that the accused’s punch came over her right shoulder, it came from the side. That is the only evidence of Mr Gedara to which I make reference, but you have heard other references to evidence by counsel and you have heard the evidence yourself.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J (dissent)
I have reached the conclusion earlier in these reasons that there was no misdirection either as to the burden of proof or as to that part of the Judge’s summing up that addressed the defence of another. If contrary to my reasons there was some inadequacy in the directions of the trial Judge, I consider that any such misdirection would not have given rise to a risk of a miscarriage of justice and if necessary to do so I would apply the proviso in accordance with the terms of section 353(1) of the Criminal Law Consolidation Act.[17] My review of the evidence in the trial demonstrates that there was clear and cogent evidence to support the verdict of the jury. Further, in the course of the summing up the Judge repeatedly reminded the jury that the prosecution bore the onus of proof beyond reasonable doubt in regard to each element of the offence, including the element that the defendant acted unlawfully. Further, the Judge explicitly referred on several occasions to the prosecution carrying the onus of proving beyond reasonable doubt that the defendant had not acted in the defence of his partner. As discussed above, when dealing with the elements of defence of another, the Judge, although not always using the precise language of section 15, conveyed to the jury the import and substance of the section on repeated occasions. [17] Section 353(1) of the Criminal Law Consolidation Act 1935 (SA) provides: The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. Conclusion I would dismiss the appeal. I would dismiss the appeal for the reasons given by Gray J. I also agree that in the alternative the proviso would apply. STANLEY J: I have had the advantage of reading the reasons of Gray J. I would dismiss the appeal. I agree with the reasons given by Gray J. I have nothing further to add.

Ratio Decidendi

Legal Principle Established

Established by:

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