R v Mekic No. Sccrm-03-252, Sccrm-03-253 - [2004] SASC 44

R v MEKIC
[2004] SASC 44
Court of Criminal Appeal: Doyle CJ, Mullighan and Debelle JJ

DOYLE CJ I ask Debelle J to give his reasons first.
DEBELLE J The applicant was convicted following trial by jury of unlawful wounding. The trial judge sentenced the applicant to imprisonment for 18 months, with a non-parole period of nine months, but suspended the sentence upon the appellant entering into a bond to be of good behaviour.
The applicant applied for leave to appeal against both the conviction and sentence. A judge of this Court granted leave to appeal against the conviction but refused leave on the first three grounds in the notice of appeal. The applicant now asks for leave to appeal on those three grounds. The judge also refused leave to appeal against sentence. The applicant has also applied for leave to appeal against sentence but that application is now withdrawn.
The first two grounds in the notice of appeal are closely related. They are that the trial judge erred in refusing to leave the issue of self-defence to the jury and in directing the jury that such a defence was not available. The other ground is that the judge erred in refusing to leave the issue of defence of property to the jury and in directing the jury that that defence too was not available.
In order for the defence of self-defence to be left to the jury there must be evidence which, if believed, might reasonably lead the jury to be satisfied that the accused genuinely believed that what he did was necessary and reasonable for a defensive purpose and that, in the circumstances, as he genuinely believed them to be, the conduct of the accused was reasonably proportionate to the threat which he believed to exist: c.f. VanDenHoek v The Queen (1986) 161 CLR 158 at 162. In short, there must be evidence on which a reasonable jury could decide the issue favourably to the accused: Reg v Muratovic [1967] Qd R 15 at 20 approved in Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 at 665. The evidence must at least enable a reasonable jury to form a logical conclusion by logical reasoning and not by mere speculation.
There was no direct evidence that the applicant had acted in self-defence. The applicant did not give evidence. The only suggestion that the applicant had acted in self-defence was put in cross-examination to the victim and in some evidence of a friend of the victim who was called as a prosecution witness.
The evidence was that the victim had lent his car to the applicant. When it was returned, it required some mechanical repairs. The victim then went to the applicant’s premises and asked the applicant to contribute to the cost of the repairs. The applicant refused. The victim responded by saying he would report the matter to the police. The victim’s evidence was that the applicant then attacked him with a screwdriver and…

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.

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Details

Case: [2004] SASC 44
Decision Date: 17 February 2004

CaseChat Overview and Summary

In the case of R v Mekic, the applicant was convicted by a jury of the offence of unlawful wounding. The trial judge imposed a sentence of 18 months imprisonment, with a non-parole period of nine months, but suspended the sentence upon the applicant entering into a bond to be of good behaviour. The applicant appealed against both the conviction and the sentence, but the Court of Criminal Appeal granted leave to appeal only against the conviction and refused leave on the first three grounds in the notice of appeal. The applicant sought leave to appeal against those grounds and the refusal of leave to appeal against sentence. The applicant also withdrew the application for leave to appeal against sentence.

The legal issues in this case involved the trial judge's refusal to leave the issues of self-defence and defence of property to the jury. The applicant argued that the trial judge erred in directing the jury that self-defence and defence of property were not available. The Court had to consider whether there was sufficient evidence to allow a reasonable jury to decide the issue of self-defence in the applicant's favour. Additionally, the Court had to determine if the trial judge erred in directing the jury that any possible link between a screwdriver found on the applicant's premises and damage to a door was a red herring and should not concern them.

The Court of Criminal Appeal held that there was no evidence which, if believed, might reasonably lead the jury to be satisfied that the applicant genuinely believed that what he did was necessary and reasonable for a defensive purpose. The evidence provided by the victim and the prosecution witness was entirely speculative and did not meet the required standard to be put to the jury. The Court found that there was no basis to leave self-defence to the jury. As for the third ground of appeal, the Court held that the trial judge did not err in directing the jury that the possible link between the screwdriver and the damage to the door was a red herring, as there was no evidence linking the screwdriver with the victim or the damage to the door.

The Court of Criminal Appeal refused leave to appeal against conviction on grounds 1, 2 and 3. The court also refused leave to appeal against sentence. The order of the Court was that leave to appeal against conviction be refused on grounds 1, 2 and 3, and that leave to appeal against sentence be refused.

Orders