R v Mardon - [2015] SASCFC 135

Supreme Court of South Australia
(Court of Criminal Appeal)
R v MARDON
[2015] SASCFC 135
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Auxilliary Justice David)
17 September 2015
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - PROOF OF INTENT
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
CRIMINAL LAW - EVIDENCE - CREDIBILITY
Appeal against conviction. The appellant was convicted after a trial by Judge alone of three counts of serious criminal trespass in a place of residence and three counts of attempting to create a risk of harm. The offending related to separate occasions during which the appellant entered the victim’s home and contaminated drinks in his refrigerator with a weed killer.
Whether the trial Judge erred in failing to direct himself as to the use of discreditable conduct evidence. Whether the trial Judge erred in making adverse findings of credit against the appellant in circumstances where his evidence was not challenged on certain topics. Whether the trial Judge failed to give adequate reasons. Whether the trial Judge erred in his findings of fact and inferences drawn from evidence.
Appeal dismissed.
Held per Kelly J (Vanstone J, David AJ agreeing) (dismissing the appeal):
1. The proper or improper use of the discreditable conduct evidence was not critical to the issues for determination at trial. It was therefore not necessary for the trial Judge to specifically direct himself as to the permissible and impermissible uses of the discreditable conduct evidence in a way not ordinarily required in a trial by Judge alone.
2. The prosecutor challenged the contention that the appellant did not believe that poisoning the victim’s drinks would cause harm and defence counsel could not but have been aware that the evidence was challenged. No procedural unfairness to the appellant arose as a result of the prosecutor not directly challenging the appellant’s evidence on this point.
3. The complaint that the trial Judge failed to grapple with a central tenet of the defence case is misconceived. The trial Judge dealt with the defence’s submission on this point, and rejected it.
4. It was open to the trial Judge to find that the appellant knew that the weed killer was a toxic chemical capable of harming a person while rejecting other aspects of the appellant’s evidence. There is no basis to suggest that the trial Judge overlooked or failed to understand the import of Professor Drummer’s evidence in assessing the appellant’s credibility.
Criminal Law Consolidation Act 1935 (SA) s 29(3), s 170(1), s 270A; Evidence Act 1929 (SA) s 34P, referred to.
R v McFadden & Ors (1976) 62 Cr App R 187, applied.

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 Mardon

Details

AGLC: R v Mardon [2015] SASCFC 135
Case: [2015] SASCFC 135
Decision Date: 17 September 2015

CaseChat Overview and Summary

The appellant, Mardon, appealed his conviction on four grounds following a trial before a judge without a jury. The dispute concerned charges of serious criminal trespass and attempting to create a risk of harm, stemming from the appellant's admitted contamination of the victim's milk and apple juice with glyphosate. The appellant had been disfellowshipped from their shared Jehovah's Witness congregation, and his motivation for the contamination was to pressure the victim, a member of the elders' committee, to facilitate his reinstatement.

The legal issues before the court included the admissibility and relevance of evidence concerning the appellant's discreditable conduct, the trial judge's findings of credibility, the inferences drawn from the evidence, and the adequacy of the trial judge's reasons. Specifically, the court considered whether the trial judge correctly assessed the appellant's intent and knowledge regarding the potential harm of the contaminated drinks, particularly in light of the appellant's defence that the substance tasted so bad it would not be consumed.

The court affirmed the trial judge's finding that the appellant knew glyphosate was a toxic chemical capable of causing harm, even after rejecting the appellant's evidence about a poisons hotline and his own consumption of the substance. The court found no error in the trial judge's approach to the evidence, including the assessment of the appellant's credibility and the inferences drawn. The trial judge's conclusion that the appellant's evidence was inherently improbable was deemed open to him.

The appeal was dismissed, with the court finding no basis to interfere with the trial judge's verdict.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against his conviction on four grounds. The grounds of appeal relate to directions that the trial Judge gave himself in regards to discreditable conduct evidence, the trial Judge’s findings of credit, inferences drawn from the evidence, and the adequacy of his Honour’s reasons.Background It is necessary to summarise the somewhat unusual circumstances of the offending before dealing with the grounds of appeal. The victim and the appellant were members of the Jehovah’s Witness congregation at Crafers. In 2010 the victim was a member of a committee responsible for excommunicating or ‘disfellowshipping’ the appellant from the congregation. The effect of being disfellowshipped was that the appellant could still attend church meetings but was no longer permitted to socialise with members of the congregation. It was the appellant’s evidence that he was isolated and on three separate occasions he applied to the council of elders of the congregation, of which the victim was a member, to be reinstated. His applications were refused. From April 2011 the victim started to notice that the milk and other drinks in his refrigerator had a toxic taste, or appeared cloudy. After noticing on about half a dozen occasions that his drinks tasted or smelt toxic, the victim became suspicious that they were being contaminated and in May 2011 he purchased CCTV recording equipment for surveillance purposes. The victim’s suspicions were justified when, on 25 October 2011, the victim returned home with his family, and observed the appellant on the recorded footage in his kitchen and at the refrigerator. On 25 February 2015 the appellant pleaded guilty to two counts of theft for the unlawful possession of a key to the victim’s house and personal documents in the victim’s name. The offences to be determined by the trial Judge were three counts of serious criminal trespass in a place of residence and three counts of attempting to create a risk of harm said to have been committed on three separate occasions when the appellant gained entry to the victim’s home and then contaminated his milk or apple juice. The appellant gave evidence at trial and conceded that in 2011 he decided to put glyphosate, a weed killer, in the victim’s drinks. He would use a syringe to inject the chemical into the drink containers in the victim’s refrigerator. The reason he gave for doing so, which was rejected by the trial Judge, was to cause the victim and his family to feel uncomfortable and thereby encourage the victim to step down from the committee of elders to be around his family more. The appellant’s ultimate objective in doing so was to be allowed to rejoin the Crafers Jehovah’s Witness congregation as he believed the victim was causing his requests to rejoin the congregation to be refused. The appellant’s case at trial was that he did not intend to harm anyone, and that he did not think that the glyphosate in the drinks would ever cause harm to the victim or his family as the diluted glyphosate tasted and smelled so bad that no one could drink the contaminated products, and they would simply spit it out.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J (dissent)

For this reason I consider it was open to the trial Judge to find that the appellant knew that glyphosate was a toxic chemical capable of harming someone who consumed it, even after rejecting the appellant’s evidence regarding the poisons hotline and drinking the glyphosate himself. Further, on a plain reading of his reasons, there is no basis to suggest that the trial Judge overlooked or failed to understand the import of Professor Drummer’s evidence. Conclusion The appellant has not pointed to any error in the approach of the trial Judge which warrants the interference of this Court. The conclusion reached by the trial Judge that the appellant’s evidence was inherently improbable and “beggars belief” was open to him. After carrying out my own independent assessment of the evidence, I have no misgivings about the verdict reached by the trial Judge. I would dismiss the appeal. DAVID AJ: I would dismiss the appeal. I agree with the reasons of Kelly J.

Ratio Decidendi

Legal Principle Established

Established by:

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