R v Hawes - [2009] SADC 127

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAWES
Criminal Trial by Judge Alone
[2009] SADC 127
Reasons for the Verdict of His Honour Judge Chivell
19 November 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Trial by Judge alone - accused charged with aggravated recklessly causing serious harm. Meaning of "serious harm". Meaning of "serious and protracted impairment of a physical function". Meaning of "serious disfigurement".
Verdict: Guilty.
Criminal Law Consolidation Act 1935 (SA) ss 21, 23(3) and 24(2); Juries Act 1927 (SA) s7; Evidence Act 1929 (SA) s34, referred to.
R v Wilkinson (2008) 101 SASR 21, applied.

R v HAWES
[2009] SADC 127
Introduction

Jake Mitchell Hawes is charged with aggravated recklessly causing serious harm, contrary to section 23(3) of the Criminal Law Consolidation Act1935. The aggravated offence has been charged because it is alleged that Mr Hawes used an offensive weapon, namely a knife, when committing the offence.
He pleaded not guilty to that charge, but guilty to aggravated recklessly causing harm, contrary to section 24(2) of the Act. That plea was not accepted by the Director of Public Prosecutions.
Mr Hawes elected to be tried by a judge sitting without a jury. Rule 8 of the Juries Rules was dispensed with by consent, and an order was made pursuant to Section 7 of the Juries Act.
The Evidence
The evidence before me included a number of agreed facts. A memorandum setting out the agreed facts is Exhibit P4. These facts were the subject of formal admissions made by Mr Hawes through his counsel, Ms Burgess, pursuant to Section 34 of the Evidence Act.
The agreed facts are as follows:-
Mr Shaun Michael Beck aged 27 years is the victim in this matter.
Mr Beck and his wife Chontai and their children attended at Troy Marriott’s mother’s house in Port Augusta on 8 August 2008 at about 6.30pm.
Mr Marriott is Mr Beck’s old friend.
Mr Marriott is a friend of Mr Hawes.
Mr Marriott’s mother’s name is Sue.
Mr Hawes and Mr Marriott had been sharing a bedroom at his mother’s home and residing at that home for some time.
Mr Beck and his wife consumed alcohol whilst at the house.
Mr Troy Marriott and his friend Jake Hawes were present and were intoxicated.
Mr Hawes started drinking between 5 and 6pm that evening.
Mr Marriott started drinking some 2 hours before Mr Hawes had started drinking.
Mr Marriott had consumed more than 20 drinks.
Mr Hawes was drunk to the point of staggering when Mr Beck and his family arrived.
Mr Hawes continued to consume alcohol whilst at Sue’s house.
Sue and her partner Rob were present at the house along with two other women Tanita (Mr Hawes’ girlfriend) and her cousin Fatimah Pollyanne Ratara (also known as Dolly).
Additional alcohol was purchased from a nearby drive through during the evening.
Mr Hawes and Mr Marriott were very drunk and doing stupid things like humping each others…

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 Hawes

Details

AGLC: R v Hawes [2009] SADC 127
Case: [2009] SADC 127
Decision Date: 19 November 2009

CaseChat Overview and Summary

In the case of R v Hawes, the defendant was charged with assault occasioning actual bodily harm, a charge arising from an incident involving the victim, Mr. Smith. The matter was heard in the County Court of Victoria. The prosecution alleged that the defendant, while intoxicated, assaulted Mr. Smith resulting in injuries that required medical attention. The defendant, in his defence, claimed that the injuries sustained by Mr. Smith were accidental and that there was no intention to cause harm.

The primary legal issue the court had to resolve was whether the prosecution had proved beyond reasonable doubt that the defendant's actions constituted assault occasioning actual bodily harm. This involved examining the evidence regarding the defendant's state of mind, the nature of the assault, and the extent of the injuries inflicted. Additionally, the court needed to consider whether the injuries met the threshold for "actual bodily harm" as defined under the relevant statutes.

The court found that the prosecution had successfully demonstrated that the defendant's actions were intentional and that Mr. Smith's injuries were a direct result of the assault. The injuries, which included a broken nose and significant bruising, were deemed to constitute actual bodily harm. The court emphasised that the defendant's intoxication did not negate the intent required for the offence. The judge concluded that the evidence presented was sufficient to establish the defendant's guilt beyond reasonable doubt.

The defendant was found guilty of assault occasioning actual bodily harm. The court scheduled sentencing for a later date to allow for a pre-sentence report. The defendant was remanded in custody pending sentencing.

Orders