R v Jenner - [2000] SASC 98

R v JENNER AND MASTERS
[2000] SASC 98

Court of Criminal Appeal: Doyle CJ, Bleby and Martin JJ

DOYLE CJ This is an appeal by two men who were jointly charged and tried for offences arising out of, or related to, the same incident. Mr Jenner has appealed against both his conviction and sentence. Mr Masters has appealed only against his sentence.

Facts

In the early hours of the morning on 28 September 1998 Mr Jenner and two other men went to the home of Mr and Mrs Williams with the intention of stealing cannabis plants they had been told were being cultivated by the Williams’ son. One of the other men was named Marshall. He has played no part in these proceedings. Mr Jenner would not identify the third man saying that he was afraid of him. The third man has been referred to simply as “Mr X”.
The three men drove together from Mr Jenner’s home to the Williams’ house. Before they left Mr Jenner’s house, Mr X insisted on taking a crossbow which had been hanging on the wall of Mr Jenner’s lounge room. It was Mr Jenner’s case that he did not think the crossbow was loaded at any time during the events that followed as he had no arrows that could be fired from it. Mr Jenner gave evidence that he told Mr X there was no need for the crossbow and that it would be useless as there were no arrows. He said Mr X persisted and in the end Mr Jenner gave in thinking that it would not be able to be fired.
The cannabis was being cultivated in a storeroom on the lower level of the Williams’ house. The noise the men made while trying to open the security door to that storeroom woke Mr and Mrs Williams. Mr Williams armed himself with a pickaxe handle and chased the three men from the scene. As the men were running from the scene, Mr X fired the crossbow at Mr Williams. The arrow fired from the crossbow penetrated Mr Williams’ shoulder causing him very serious injuries from which he nearly bled to death.
It was the prosecution case that Mr Masters was one of the three men who went to the Williams’ house that night and indeed was the person who fired the crossbow. In other words, it was the Crown case that Mr Masters was Mr X. Mr Masters did not give evidence. His case that that there was insufficient evidence to prove his involvement. Mr Jenner and Mr Masters were both charged with attempted burglary and attempted murder, the latter charge being reduced before trial to wounding with intent to cause grievous bodily harm. For convenience I will refer to this as wounding with intent. Mr Masters was also charged with the offence of attempting to dissuade a witness. I will deal with the facts relating to this charge later.
Mr Jenner pleaded guilty to the charge of attempted burglary. He…

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 Jenner

Details

AGLC: R v Jenner [2000] SASC 98
Case: [2000] SASC 98
Decision Date: 12 April 2000

CaseChat Overview and Summary

In R v Jenner, the South Australian Court of Criminal Appeal considered appeals by two men, Jenner and Masters, against their convictions and sentences. The men had been jointly charged and tried for offences related to an attempted burglary at the Williams’ house. Jenner and Masters were accompanied by a third man, Mr X, who fired a crossbow at Mr Williams, causing him serious injuries. Masters did not give evidence and was acquitted of attempted burglary and wounding with intent, but was found guilty of attempting to dissuade a witness. Jenner pleaded guilty to attempted burglary and was found guilty of wounding with intent.

Jenner appealed against his conviction on several grounds, including the trial Judge’s direction to the jury on the topic of joint enterprise and the manner in which the jury could or should approach the evidence given by Jenner in his defence. The Court found that the Judge’s direction adequately brought home to the jury the issue that they had to decide, and that the Judge was not obliged to direct the jury that the evidence of an accused must be treated in the same way as the evidence of other witnesses. The Court also found that there was no need for the Judge to give a specific direction in relation to the possibility of an accidental discharge of the crossbow or the possibility that Mr X fired the crossbow without intending to cause grievous bodily harm. The Court rejected all grounds of appeal and dismissed Jenner’s appeal against conviction.

Jenner also appealed against his sentence, arguing that the sentencing Judge should have taken into account the time he had already spent in custody. The Court found that there was no evidence to prove that Jenner had the means to pay the fines, or in some other way had the ability to avoid serving the term of imprisonment referable to the fines. The Court dismissed Jenner’s appeal against sentence.

Masters appealed against his sentence, arguing that the sentencing Judge fell into error when taking into account the time he had already spent in custody in relation to these charges. The Court found that an error had occurred in the sentencing process and that Masters’ sentence should be re-assessed. The Court found that the seriousness of the offence warranted the sentence that the Judge imposed, but that it was necessary to make allowance for the fact that Masters had served 10 months in custody. The Court allowed Masters’ appeal against sentence and substituted a sentence of imprisonment for one year and two months, to be served at the expiration of the balance of the sentence of imprisonment for one year, two months and 16 days. The Court fixed a non-parole period of 12 months, to commence on 21 October 1999, being the day upon which Masters was originally sentenced.

Orders