R v Dunn

Case [2006] SASC 58 2 March 2006

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DUNN
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Sulan and The Honourable Justice White)
2 March 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appeal against conviction for murder - Issue of self-defence left to jury - Possible alternative verdict of manslaughter by excessive self-defence, s 15(2) Criminal Law Consolidation Act 1935 (SA) - No oral direction on how jury might reach alternative verdict of manslaughter by excessive self-defence - Elements of manslaughter included in written memorandum but use of document not explained orally - Consideration of use of written directions - Written directions to supplement and not substitute for oral directions - Whether written directions inconsistent with oral directions - Whether jury misdirected that appellant was guilty of murder if there was excessive self-defence - Whether jury adequately directed on manslaughter by excessive self-defence - Consideration of application of proviso that no substantial miscarriage of justice has actually occurred - s 353(1) Criminal Law Consolidation Act 1935 (SA) - Inadequate directions constituting fundamental error to preclude application of proviso - Consideration of role of appellate court in application of proviso - Unnecessary for appellate court to consider whether guilt of murder was proved beyond reasonable doubt in the circumstances - Appeal against conviction allowed - Appeal against sentence not considered - Conviction and sentence set aside - Re-trial ordered.
Criminal Law Consolidation Act 1935 (SA) s 15(1), s 15(2), s 353(1), referred to.
R v Radford (1986) 133 LSJS 110; R v Petroff (1980) 2 A Crim R 101; R v Hughes (1981) 7 A Crim R 51; Mule v The Queen [2005] HCA 49; Weiss v The Queen [2005] HCA 81, applied.
Wilde v The Queen (1987) 164 CLR 365, discussed.
R v Bourke [2003] QCA 113; R v Zikovic (1985) 17 A Crim R 396; King v The Queen (2003) 215 CLR 150; Mraz v The Queen (1955) 93 CLR 493; Conway v The Queen (2002) 209 CLR 203; R v Hildebrandt (1963) 81 WN (Pt 1) (NSW) 143; R v Henderson [1966] VR 41; R v Couper (1985) 18 A Crim R 1; R v Kerr (No 2) [1951] VLR 239; Antoun v The Queen [2006] HCA 2; R v Romano (1984) 36 SASR 283, considered.

R v DUNN
[2006] SASC 58
Court of Criminal Appeal: Bleby, Sulan and White JJ
BLEBY J:
Introduction

The appellant was convicted by a jury of one count of murder. It was alleged that on 3 December 2003 the appellant drugged her de facto partner, Graham Wilks, and then later hit him on the head at least three times. He died as a result of the head injuries on 12 December 2003.
Apart from an argument based on the failure of the trial Judge to leave provocation…

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 Dunn

Details

AGLC: R v Dunn [2006] SASC 58
Case: [2006] SASC 58
Decision Date: 2 March 2006

CaseChat Overview and Summary

In the case of R v Dunn, the appellant was convicted of murder and sentenced to imprisonment. The conviction was appealed on the basis of alleged misdirection by the trial judge in relation to the defence of self-defence, specifically whether the jury was properly directed to consider the alternative verdict of manslaughter by excessive self-defence. The South Australian Court of Criminal Appeal heard the appeal.

The legal issues before the court were whether the trial judge's directions to the jury were adequate and whether any misdirection constituted a fundamental error that precluded the application of the proviso in section 353(1) of the Criminal Law Consolidation Act 1935 (SA), which allows for the setting aside of a conviction if no substantial miscarriage of justice has occurred. The court had to determine if the jury was properly directed on the elements of manslaughter by excessive self-defence, and whether the misdirection was so fundamental that it precluded the application of the proviso.

The court held that the trial judge's written directions included the elements of manslaughter by excessive self-defence, but the use of the document was not explained orally to the jury. The court found that the written directions were intended to supplement and not substitute for oral directions, and that there was an inconsistency between the written and oral directions. The court concluded that the jury was misdirected in that they were not adequately informed that if they found the appellant was guilty of excessive self-defence, they could return a verdict of manslaughter rather than murder. The misdirection constituted a fundamental error, precluding the application of the proviso. The court found that the misdirection was so fundamental that it precluded the application of the proviso, and that the appeal against conviction should be allowed.

The court set aside the conviction and sentence, and ordered a re-trial. The appeal against the sentence was not considered.

Orders