Appeal against a finding that the objective elements of endangering life under s 29(1) of the Criminal Law Consolidation Act 1935 (SA) were established - the trial Judge found that the appellant was mentally incompetent to commit the offence of endangering life but nevertheless found the objective elements established - the appellant sought to tender fresh expert evidence to establish that there was no danger at all to the life of any person - whether it was in the interests of justice to receive the fresh evidence.
Held (Doyle CJ with David and Peek JJ concurring): it was in the interests of justice to receive the fresh evidence - by consent, the particulars were amended to identify an act that could have created a danger to life - appeal allowed to substitute a finding that the objective elements of the offence of attempt to endanger life were established - the appellant was declared liable to a supervision order, committed to detention with a limiting term of three years ten months.
Appeal allowed.
Criminal Law Consolidation Act 1935 (SA) s 29(1), s 269BA, s 269FA(5)(b), s 269FB(2), s 269FB(3), s 269O(1), s 269O(1)(b), s 269O(2), s 269Y(3), s 269Y(4), s 269Y(5)(a), s 269Y(5)(c), referred to.
R v MORGAN [2011] SASCFC 94
Court of Criminal Appeal: Doyle CJ, David and Peek JJ
DOYLE CJ (ex tempore): The appellant was charged on Information with the offence of endangering life, contrary to s 29(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The particulars were that he poured petrol onto the ground at a petrol station and ignited the petrol, knowing that this act was likely to endanger the life of persons nearby, intending to endanger their life or being recklessly indifferent as to whether their life was in danger.
He elected for trial by judge alone in the District Court.
On 20 December 2010 a District Court Judge made a finding under s 269FA(5)(b) that Mr Morgan was mentally incompetent to commit the offence charged.
The Judge then made a finding under s 269FB(2) that the objective elements of the offence were established. The making of that finding was not opposed by counsel for Mr Morgan.
Accordingly, the Judge then made an order under s 269FB(3) that Mr Morgan was liable to supervision under…
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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AGLC
R v Morgan [2011] SASCFC 94
Case
[2011] SASCFC 94
Decision Date
CaseChat Overview and Summary
The appeal concerned a finding by a trial judge that the objective elements of endangering life under section 29(1) of the *Criminal Law Consolidation Act 1935* (SA) had been established, despite the judge also finding the appellant mentally incompetent to commit the offence. The appellant sought to introduce fresh expert evidence on appeal, aiming to demonstrate that no actual danger to any person's life had arisen.
The central legal issues before the Full Court of the Supreme Court of South Australia were whether it was in the interests of justice to admit the fresh evidence, and if so, what the consequences of that admission would be for the conviction. The court was required to consider the impact of the fresh evidence on the established objective elements of the offence.
The court, comprising Doyle CJ, David J, and Peek J, unanimously held that admitting the fresh evidence was in the interests of justice. Following this determination, the particulars of the charge were amended by consent to specify an act capable of creating a danger to life. Consequently, the appeal was allowed, and the original finding was substituted with a finding that the objective elements of the *attempt* to endanger life had been established. The appellant was subsequently made subject to a supervision order and committed to detention for a term of three years and ten months.