R v Garling - [2011] SADC 79

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v GARLING
[2011] SADC 79
Reasons of His Honour Judge Chivell
27 May 2011
CRIMINAL LAW - PARTICULAR OFFENCES
Accused pleaded guilty to one count of robbery - disputed facts - whether offence committed after threat to kill him if he did not - onus on defendant to prove mitigating factor on balance of probabilities - onus not discharged.
Taiapa v R [2009] HCA 53; R v Brown (1986) 43 SASR 33; R v Lobban (2001) 80 SASR 550; R v Olbrich (1999) 199 CLR 270; R v Storey [1998] 1 VR 359, applied.

R v GARLING
[2011] SADC 79

Adam Lucas Garling pleaded guilty to robbery in the Port Adelaide Magisgtrates Court on 9 March 2011. He was committed to this court for sentence.
There is a dispute between the prosecution and the defence as to the facts upon which sentence should be imposed. Mr Garling asserts that he committed the offence under the influence of threats to kill him which were uttered by two unknown aboriginal people. It is suggested that this factor mitigates the seriousness of his offending.
Mr Garling’s counsel, Ms Davis, expressly disavowed reliance on the defence of duress. The defence was most recently considered in the High Court in Taiapa v R.[1]In that case, the Court referred to R v Brown,[2]where King CJ held that, in the circumstances of the case, the failure of the accused to seek the protection of the police for himself and his son was fatal to the defence of duress.[3]
[1] [2009] HCA 53
[2] (1986) 43 SASR 33
[3] Taiapa at [32]
In Brown, King CJ said:
There is an objective test in the law as to duress in that the threats must not only have overborne the will of the accused thereby causing him to do what he did, but must be such that a person of ordinary firmness of mind and will might have yielded to the threat in the way in which the accused did …… The availability of the defence is subject to a condition that the accused has not failed to avail himself of an opportunity which was reasonably open to him to render the threat ineffective.[4] (references omitted)
[4] at p 38-9
The reasoning of the High Court was that this failure to take the opportunity referred to by King CJ went to the reasonableness of the belief of the accused that there was no means open to him to render the threat ineffective.[5]
[5] Taiapa at [40] – this was in the context of the wording of the relevant Western Australian Statute, but the reasoning is equally apt to the circumstances of this case
For those reasons, I accept that Mr Garling’s plea of guilty to the crime of robbery is consistent with the submission his counsel now makes, namely that the threats were made, but that Mr Garling failed to take several…

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 Garling

Details

AGLC: R v Garling [2011] SADC 79
Case: [2011] SADC 79
Decision Date: 27 May 2011

CaseChat Overview and Summary

In the case of R v Garling, the respondent was charged with robbery. The accused pleaded guilty to one count of robbery but disputed the facts surrounding the offence, claiming it was committed after a threat to kill him if he did not participate. The matter was heard in the Supreme Court of South Australia. The primary legal issue for the court to decide was whether the accused had successfully discharged the onus of proving the mitigating factor on the balance of probabilities.

The court considered the evidence presented and the applicable legal principles. It determined that the onus was on the accused to prove the mitigating factor, which was that the robbery was committed due to a threat to his life. The court found that the accused had not discharged this onus, as the evidence did not sufficiently support the claim that he acted under duress. The court's reasoning was based on the lack of credible evidence to support the accused's version of events, and the court concluded that the mitigating factor was not proven on the balance of probabilities.

Consequently, the court found the accused guilty of the robbery as pleaded. The final orders of the court reflected the guilty verdict and any additional sentencing considerations, which were not specified in the text provided. The outcome of the case underscores the importance of the accused's burden to prove any mitigating factors in criminal cases, particularly when they involve pleas of guilty with disputed facts.

Orders