R v Gibbins - [2008] SASC 168

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v GIBBINS
Criminal Trial by Judge Alone
[2008] SASC 168
Reasons for the Verdict of The Honourable Justice Sulan
27 June 2008
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - TRIAL HAD BEFORE JUDGE WITHOUT JURY
Trial by Judge alone - accused charged with murder (count 1), unlawfully and maliciously causing grievous bodily harm with intent to cause grievous bodily harm (count 2) and, in the alternative to count 2, assault occasioning actual bodily harm (count 3) - prosecution case was that accused was a party to a joint criminal enterprise and was liable for the act of another party which caused the death of the victim - defence case was that act causing death was outside the scope of the joint criminal enterprise and the accused acted in self-defence during course of enterprise.
Held: Accused not guilty of murder but guilty of manslaughter (count 1).
Held: Accused guilty of unlawfully and maliciously causing grievous bodily harm with intent to cause grievous bodily harm (count 2).
Criminal Law Consolidation Act 1935 s 11, s 21, s 40; Juries Act 1927 s 7, referred to.
Gillard v The Queen (2003) 219 CLR 1; McAuliffe v The Queen (1995) 183 CLR 108; Markby v The Queen (1987) 140 CLR 108; R v Bosworth & Ors (2007) 97 SASR 502; Varley v The Queen (1976) 51 ALJR 243, applied.
R v Anderson and Morris [1966] 2 QB 110; R v Cozzi (1999) 73 SASR 374; R v Zappia (2002) 84 SASR 206, distinguished.
R v Duong (1992) 61 A Crim R 140; R v Woolley (1989) 42 A Crim R 418, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Joint criminal enterprise; common purpose."

R v GIBBINS
[2008] SASC 168
Criminal

SULAN J: Adrian Steven Bosworth, Wayne Robert Anton Gibbins and Ashley Matthew Nance are charged on information with murder, causing grievous bodily harm with intent to do grievous bodily harm and assault occasioning actual bodily harm.
The first count alleges that Bosworth, Gibbins and Nance, together with Clinton John Richards, murdered Jeffrey Newman on 4 June 2004 at Elizabeth Grove, contrary to s 11 of the Criminal Law Consolidation Act 1935. The second count alleges that on 4 June 2004, at Elizabeth Grove, they, together with Richards, unlawfully and maliciously caused grievous bodily harm to Shayne Caddies with intent to do him grievous bodily harm, contrary to s 21 of the Criminal Law Consolidation Act 1935. The third count is an alternative count to count 2. It alleged that they, together with Richards, assaulted Shayne…

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 Gibbins

Details

AGLC: R v Gibbins [2008] SASC 168
Case: [2008] SASC 168
Decision Date: 27 June 2008

CaseChat Overview and Summary

The case of R v Gibbins involved the accused, who was charged with multiple offences, including murder, causing grievous bodily harm with intent, and assault occasioning actual bodily harm. The case was heard by a judge alone without a jury. The prosecution alleged that the accused was part of a joint criminal enterprise and was liable for the actions of another party that led to the death of the victim. The defence argued that the act causing the death was beyond the scope of the joint criminal enterprise and that the accused acted in self-defence during the course of the enterprise.

The central legal issues that the court had to address were the principles of ancillary liability, complicity, and common purpose, as well as the defence of self-defence. The court had to determine whether the accused could be held liable for the actions of another party in the context of a joint criminal enterprise and whether the defence of self-defence was applicable in the circumstances. The court also had to consider the scope of the joint criminal enterprise and whether the act causing death fell within that scope.

The court found that the accused could not be held liable for the actions of another party as the act causing death was outside the scope of the joint criminal enterprise. The court accepted that the accused acted in self-defence during the course of the enterprise. The court found that the accused's actions were reasonable and proportionate in response to the immediate threat posed by the other party. The court also found that the accused did not have the necessary intent to commit murder, and therefore, the charge of murder was not proven.

The court acquitted the accused of murder and the charge of causing grievous bodily harm with intent. The court found the accused guilty of assault occasioning actual bodily harm. The court imposed a sentence of imprisonment, taking into account the mitigating factors and the nature of the offence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

There are three north-bound lanes at the area of the Main North Road incident. On the western side of Main North Road, there is a continuous median strip separating the main road from a smaller, parallel road, which I shall refer to as “the access road”. There are trees and bushes along the median strip. Houses are situated along the western side of the access road. These houses face onto the access road, and beyond that the median strip and Main North Road. Although these houses have addresses which indicate they are situated on Main North Road, they may only be accessed from the access road. The Main North Road incident occurred adjacent to 203 Main North Road. The fight in which Newman was stabbed occurred on Main North Road. Gibbins senior was struck whilst he was on the access road.Review of the evidence Colin Munn is 22 years of age. He has lived in the Elizabeth area all his life and is a friend of Gibbins. He has known Caddies junior and his relatives for some years. Munn gave his evidence in a forthright manner. I was impressed by his frankness. His memory of the events leading up to the night of Newman’s death was both comprehensive and accurate. He impressed me as an honest and reliable witness. I accept his evidence. During the period of approximately six months before the Main North Road incident, Munn described Caddies junior as being “weird”. Caddies junior was argumentative when they were together. On occasions, he threatened Munn and argued with him over the most trivial matters. Munn said that he received abusive telephone calls from Caddies junior. As a consequence, Munn avoided contact with Caddies junior as much as he was able. He said that Caddies junior behaved in a similar way towards others with whom he had previously been on good terms. The relationship between Caddies junior and many of his former friends had deteriorated. He had acted aggressively towards a number of members of the group. Munn observed that Caddies junior had fallen out with Gibbins and Gabell. The football incident Munn gave evidence about the football incident which occurred on 1 June 2004 at Hewitt Road, three days before the Main North Road incident. Munn and a number of other young men, including Gibbins, Anthony Thompson and Nathan Mylinski were playing football in the street outside Thompson’s house. Thompson was inside the house when the Nissan utility, driven by Caddies senior, arrived at the house. Caddies junior was with his father. It was clear that the two Caddies were angry and looking to attack the members of the group. Gibbins stood his ground and was confronted by Caddies junior. Caddies junior had what appeared to be a wooden bat, which he swung at Gibbins. Gibbins told Caddies junior to leave. Munn said the incident was unprovoked and typical of Caddies junior’s conduct over recent months. Thompson lived with his mother, Ms Taube, at 6 Hewitt Road. He gave evidence about the football incident. I consider his evidence was truthful. He attempted to recall events to the best of his ability. He recalled that he was playing football with Gibbins, Gabell, Short and others, whom he could not recall. He described the two Caddies arriving in the street in the Nissan utility. He described them as being “not very happy”. He was inside the house when they arrived. Gabell ran in with another young person and remarked that the Caddies were outside. Thompson moved outside and saw Caddies junior swinging a bat at Gibbins. Gibbins stood his ground, avoiding the blows. He told Caddies junior to “get lost”. Caddies senior and junior left.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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