R v M-V, JA & G, S - [2005] SASC 417

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v M-V, JA & G, S
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Debelle and The Honourable Justice Besanko)
10 November 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS
Appeals against conviction - appellants jointly presented on an information charging 3 offences arising from same set of facts - appellants pleaded not guilty to two of the charges - first appellant convicted of lesser alternative offence of causing grievous bodily harm - second appellant convicted of offence of causing grievous bodily harm with intent to do grievous bodily harm - whether direction on joint criminal enterprise should have been given or case left to jury on basis of liability of principal and accessory - whether jury misdirected on standard of proof - whether jury adequately directed on factual basis required to support conviction - appeals allowed.
Mohan v The Queen [1967] 2 AC 187; R v Stokes & Difford (1990) 51 A Crim R 25; Clough v The Queen (1992) 28 NSWLR 396; Zoneff v The Queen (2000) 200 CLR 234, applied.
R v Kostic & Stefanopoulos (2004) 151 A Crim R 10; R v Tangye (1997) 92 A Crim R 545, discussed.

R v M-V, JA & G, S
[2005] SASC 417
Court of Criminal Appeal: Duggan, Debelle and Besanko JJ

DUGGAN J. The appellants have appealed against convictions recorded against them in the District Court. They were charged jointly on an information which alleged three offences, namely, creating risk of bodily harm, causing grievous bodily harm with intent to do grievous bodily harm, and theft. It was alleged that the offences arose out of the same set of circumstances.
The alleged victim, Clarence Green, died before the trial from causes unrelated to the present case.
According to the prosecution evidence, Mr Green was being driven along Flaxmill Road, Morphett Vale at approximately 1.00 pm on 22 October 2004 by an employee, Ms Giles. Ms Giles saw some stones on the road. She looked back and observed the appellants behind a railing which was erected on an embankment at the side of the road.
Mr Green then directed her to drive up closer to the appellants. Mr Green was intoxicated at the time and a sample of blood taken from him later in the afternoon established that he had a blood alcohol level of .248 per cent.
Mr Green assumed that the appellants had thrown the stones on the road and he abused the appellant G who responded with abuse.
Ms Giles gave evidence that, while Mr Green and G were still yelling at one another, they started to push and shove each other. She was screaming at them to stop. She turned her back on them as she walked away a few steps. When she turned around, she saw…

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 M-V, JA & G, S

Details

AGLC: R v M-V, JA & G, S [2005] SASC 417
Case: [2005] SASC 417
Decision Date: 10 November 2005

CaseChat Overview and Summary

In the case of R v M-V, JA & G, S, the appellants were jointly charged on an information with three offences arising from the same set of facts. The first appellant was convicted of the lesser alternative offence of causing grievous bodily harm, while the second appellant was convicted of the offence of causing grievous bodily harm with intent to do grievous bodily harm. Both appellants pleaded not guilty to two of the charges. The appellants sought to appeal against their convictions, raising issues regarding the direction on joint criminal enterprise, the standard of proof, and the factual basis required to support the conviction.

The court was required to determine whether the trial judge should have directed the jury on the concept of a joint criminal enterprise or left the case to the jury on the basis of liability of principal and accessory. Additionally, the court needed to assess whether the jury was misdirected on the standard of proof and whether they were adequately directed on the factual basis required to support the conviction. The court had to evaluate whether the failure to give a direction on a joint criminal enterprise, the adequacy of the directions on the standard of proof, and the apparent invitation to the jury to consider the guilt or otherwise of the second appellant by reference to each of the three stages described by the trial judge, contributed to a miscarriage of justice.

The court found that there was sufficient substance in the grounds of appeal relating to the issues of the joint criminal enterprise direction, standard of proof, and factual basis for conviction. The court concluded that the failure to give such a direction did not contribute to a miscarriage of justice. However, the court considered that the directions on the standard of proof and the adequacy of the directions in relation to the commencement of the joint criminal enterprise, along with the apparent invitation to the jury to consider the guilt or otherwise of the second appellant, warranted setting aside the convictions. The appeals were allowed, the convictions were set aside, and a re-trial was directed. The reasons for judgment of Duggan J were agreed with, and the proposed orders were adopted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DUGGAN J DEBELLE J BESANKO J

In the circumstances of the present case, however, I do not consider that the failure to give such a direction contributed in any way to a miscarriage of justice.Conclusion I have referred to the directions on the standard of proof and also expressed concern about the adequacy of the directions in relation to the commencement of the joint criminal enterprise and the apparent invitation to the jury to consider the guilt or otherwise of G by reference to each of the three stages described by the trial judge. In my view there is sufficient substance in the grounds of appeal relating to these issues to require the setting aside of the convictions recorded against both appellants. I would allow the appeals, set aside the convictions and direct a re-trial. I agree with the reasons for judgment of Duggan J and with the orders he proposes. In my opinion, the appeals should be allowed and the convictions should be set aside. There should be a retrial. I agree with the reasons for judgment of Duggan J.

Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J, DEBELLE J, BESANKO J

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