R v Edwards - [2018] SASC 170

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v EDWARDS
Criminal Trial by Judge Alone
[2018] SASC 170
Judgment of The Honourable Justice Vanstone
16 November 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Accused charged with attempted murder and attempted aggravated causing serious harm with intent to cause harm in the alternative. Trial by Judge alone. Where the only issue was whether, when she stabbed the victim, the accused intended to murder her.
Held:
Accused not guilty as charged but guilty of the further alternative of aggravated recklessly causing serious harm.
Criminal Law Consolidation Act 1935 (SA) ss 11, 23(1), 23(3), 270A; Summary Offences Act 1953 (SA) s 74FD; Criminal Law (Forensic Procedures) Act 2007 (SA) s 30, referred to.
R v D,WD (2013) 116 SASR 99, applied.

R v EDWARDS
[2018] SASC 170
Criminal.

VANSTONE J.
The accused is charged with attempted murder and, in the alternative, aggravated causing serious harm with intent to cause serious harm.
She has elected for trial by Judge alone. This was not done by the time of her arraignment, but I was satisfied that there were special reasons why the time requirement was not met and I made an order extending the time within which that election could be made. Having satisfied myself that the accused had appropriate legal advice, I embarked on the hearing of her trial, sitting without a jury.
The charges appear on the information as follows:
First Count
Statement of Offence
Attempted Murder. (Sections 11 and 270A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Cheryle Jenny Edwards on the 21^st day of October 2018 at Port Augusta, attempted to murder Tanya Yanima.
Second Count
Statement of Offence
Aggravated Causing Serious Harm with Intent to Cause Serious Harm. (Section 23(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Cheryle Jenny Edwards on the 21^st day of October 2017 at Port Augusta, caused serious harm to Tanya Yanima, intending to cause her serious harm.
It is further alleged that Cheryle Jenny Edwards used an offensive weapon, namely a knife, to commit the offence.
The accused does not deny voluntarily and deliberately stabbing Ms Yanima (V) about six times. Indeed, I am told she formally offered to plead guilty to an offence against s 23(3) of the Criminal Law Consolidation Act 1935 (SA) (the Act) but that was not accepted. I note that the difference in maximum penalties as between count 2 and the offence to which she offered to plead is 25 years imprisonment as against 19 years imprisonment. The only issue in dispute in the trial is what was the accused’s intention at the time of the infliction of the injuries.
The prosecution case
The evidence presented is of narrow compass. The victim was not called, as police were unable to locate her. One eyewitness was called. Photographs of the scene and of V’s sutured injuries were tendered, together with footage of the accused’s arrest and some parts 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 Edwards

Details

AGLC: R v Edwards [2018] SASC 170
Case: [2018] SASC 170
Decision Date: 16 November 2018

CaseChat Overview and Summary

The matter of R v Edwards came before the Supreme Court of South Australia. The accused was charged with two counts: count 1, murder under section 8 of the Criminal Law Consolidation Act 1935 (SA), and count 2, causing serious harm under section 23 of the same Act. The charges stemmed from an incident in which the accused allegedly stabbed a victim, resulting in serious injuries.

The primary legal issue before the court was whether the accused intended to kill or cause serious harm to the victim, as required for the charges of murder and causing serious harm respectively. The court also considered whether the trial judge, sitting without a jury, could bring in an alternative verdict under section 25 of the Act. The accused had offered to plead guilty to the offence of recklessly causing serious harm under section 23(3) before the trial began.

The court held that it could bring in an alternative verdict of recklessly causing serious harm, relying on the precedent in R v D, WD. The intoxication of the accused and the evidence that she appeared to stop and take stock of her actions during the attack led the court to doubt that she intended to kill or cause serious harm. Consequently, the accused was acquitted of the murder and causing serious harm charges. However, the court found her guilty of recklessly causing serious harm under section 23(3) of the Act, with a circumstance of aggravation.

The court's final orders were that the accused be acquitted of the charges of murder and causing serious harm, but be found guilty of recklessly causing serious harm. The court did not impose a sentence on the lesser offence but left that matter to be determined in a later hearing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

R v D, WD (2013) 116 SASR 99 is authority for the proposition that sections like s 25 of the Act, dealing with alternative verdicts, which are expressed in terms of giving the jury the right to bring in an alternative verdict which has been left to them, applies also to a Judge hearing a trial without a jury. Accordingly, I consider that I am entitled to bring in a verdict of guilty of recklessly causing serious harm to the victim, with a circumstance of aggravation. That is the offence provided by s 23(3) to which the accused offered to plead guilty prior to trial. Conclusion By reason of the intoxication of the accused, together with evidence that during the attack she appeared to stop and take stock of what she was doing – and to desist – I am unable to be satisfied that she intended either to kill the victim or to cause her serious harm. Accordingly the accused will be acquitted of the two charges she faces. However, I am satisfied beyond reasonable doubt of her guilt of an offence against s 23(3) of the Act – recklessly causing serious harm with a circumstance of aggravation – and I find her guilty of that offence.

Ratio Decidendi

Legal Principle Established

The accused did not give or call evidence.Consideration This was certainly a violent episode which was entirely uncalled for. I agree with the submission of Mr Foundas that the accused’s intoxication probably caused her to be less inhibited than usual and exacerbated her feelings of aggression towards the victim. While it is true that she threatened to kill the victim and took up a knife, in my mind there is doubt that she truly intended to kill the victim at the time she inflicted the stab wounds. I was impressed by the evidence of Ms Lindsay to the effect that the screaming of the boys seemed to cause the accused to stop and take stock of what she was doing. At that point she desisted. Then, on examination, two, only, of the wounds were penetrating. That is not to diminish their seriousness, but rather to suggest that the attack might not have been as determined and targeted as alleged. If the countback based on the blood sample later taken is anywhere near accurate, then the accused was indeed grossly intoxicated, not only at the time of the stabbing, but for many hours thereafter. It is not really to the point that she had a high tolerance for alcohol and could function. The two charges on the information require proof of a specific intent, in relation to count 1, to kill, and in relation to count 2, to inflict ‘serious harm’, as defined in the Act. While I am satisfied that the accused acted voluntarily and deliberately in striking out at the victim, I think it a reasonable possibility that she was no more than reckless in the infliction of what was plainly serious harm. R v D, WD (2013) 116 SASR 99 is authority for the proposition that sections like s 25 of the Act, dealing with alternative verdicts, which are expressed in terms of giving the jury the right to bring in an alternative verdict which has been left to them, applies also to a Judge hearing a trial without a jury. Accordingly, I consider that I am entitled to bring in a verdict of guilty of recklessly causing serious harm to the victim, with a circumstance of aggravation. That is the offence provided by s 23(3) to which the accused offered to plead guilty prior to trial. Conclusion By reason of the intoxication of the accused, together with evidence that during the attack she appeared to stop and take stock of what she was doing – and to desist – I am unable to be satisfied that she intended either to kill the victim or to cause her serious harm. Accordingly the accused will be acquitted of the two charges she faces. However, I am satisfied beyond reasonable doubt of her guilt of an offence against s 23(3) of the Act – recklessly causing serious harm with a circumstance of aggravation – and I find her guilty of that offence.