R v Kestell - [2013] SASCFC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KESTELL
[2013] SASCFC 55
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Nicholson)
19 June 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - ALTERNATIVE VERDICTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
Appeal against conviction - the defendant was charged on Information with one offence of aggravated causing serious harm with intent to cause serious harm contrary to section 23(1) of the Criminal Law Consolidation Act 1935 (SA) - the defendant pleaded not guilty - trial before a Judge and jury in the District Court - the prosecution alleged that the defendant struck the complainant in the face with a glass causing serious injuries to the complainant's face - the defendant admitted striking the complainant with a glass but claimed that he was unaware that he was holding a glass at the time - the defendant claimed that he was acting in self-defence - the Judge directed the jury that a glass is an offensive weapon for the purposes of circumstances of aggravation - the jury acquitted the defendant of the offence charged - the jury convicted the defendant of alternative charge of aggravated recklessly causing serious harm - whether the Judge erred in failing to direct the jury that to establish circumstances of aggravation it was necessary to determine that the prosecution had proved that the defendant was carrying or controlling the glass knowingly for the purposes of causing personal injury or incapacity - the Director of Public Prosecutions accepted that the Judge had erred in informing the jury that the glass was an offensive weapon - the defendant was arraigned before the Court of Criminal Appeal and pleaded guilty to one offence of recklessly causing serious harm contrary to section 23(3) of the Criminal Law Consolidation Act.
Held per the Court: Appeal against conviction allowed - defendant pleaded guilty to one offence of recklessly causing serious harm contrary to section 23(3) of the Criminal Law Consolidation Act - defendant to be sentenced by the Court of Criminal Appeal.
Criminal Law Consolidation Act 1935 (SA) s 5, s 5AA, s 23 and s 353(1), referred to.

R v KESTELL
[2013] SASCFC 55
Court of Criminal Appeal: Gray, Sulan, Nicholson JJ
THE COURT.

This is an appeal against conviction. The appeal was allowed at the conclusion of the hearing with the Court indicating that reasons would be published later. What follows are the Court’s reasons for allowing the appeal.
The defendant and appellant, Glenn David Kestell, was charged with the offence of aggravated causing serious harm with intent to cause serious harm contrary to section 23(1) 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 Kestell

Details

AGLC: R v Kestell [2013] SASCFC 55
Case: [2013] SASCFC 55
Decision Date: 19 June 2013

CaseChat Overview and Summary

The case of R v Kestell involved an appeal against conviction following a trial in the District Court of South Australia. The defendant, Kestell, was charged with aggravated causing serious harm with intent to cause serious harm under section 23(1) of the Criminal Law Consolidation Act 1935 (SA). The prosecution alleged that Kestell struck the complainant with a glass, causing serious facial injuries. Kestell admitted striking the complainant with a glass but asserted he was unaware he was holding it at the time and claimed self-defence. The trial judge directed the jury that a glass constituted an offensive weapon for the purposes of aggravating the offence. The jury acquitted Kestell of the primary charge but convicted him of the alternative charge of aggravated recklessly causing serious harm.

The central legal issue before the Court of Criminal Appeal concerned whether the trial judge erred in failing to direct the jury that, to establish the circumstances of aggravation, the prosecution must prove the defendant knowingly possessed or controlled the glass with the intention of causing personal injury or incapacity. The Director of Public Prosecutions conceded that the judge had misdirected the jury by stating that a glass was an offensive weapon for the purposes of the charge.

The Court of Criminal Appeal allowed the appeal against conviction. This decision was based on the defendant's subsequent plea of guilty to the lesser offence of recklessly causing serious harm, contrary to section 23(3) of the Criminal Law Consolidation Act. Consequently, the Court found it unnecessary to consider the remaining grounds of appeal, which related to the summing up on specific intent, the presentation of the defence case, and the jury's consideration of all evidence. The Court of Criminal Appeal ordered that the defendant be sentenced by that Court.

Orders

Orders of the court

Held per the Court: Appeal against conviction allowed - defendant pleaded guilty to one offence of recklessly causing serious harm contrary to section 23(3) of the Criminal Law Consolidation Act - defendant to be sentenced by the Court of Criminal Appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having regard to the foregoing, it was unnecessary for the Court to consider the further grounds of appeal. Those grounds included complaints about the summing up on the question of specific intent, a failure to properly put the defence case and a misdirection about the need for the jury to consider the entirety of the evidence in the trial. It should be pointed out that no complaint was raised as to the form of the Information and, in particular, as to whether an offence of aggravated causing serious harm with intent to cause serious harm was an offence known to the law.Conclusion The defendant has been found guilty on his plea to the offence of recklessly causing serious harm contrary to section 23(3) of the Criminal Law Consolidation Act. The defendant will be sentenced by this Court on a date to be fixed.

Ratio Decidendi

Legal Principle Established

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