R v Murphy-Positano - [2005] SADC 100

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MURPHY-POSITANO
Criminal Trial by Judge Alone
Reasons for the Verdicts of His Honour Judge Smith
9 August 2005
CRIMINAL LAW
Self-represented accused charged with two offences - onus on DPP to prove elements of offences beyond reasonable doubt - meaning of "reckless indifference" - uncharged misconduct admissible to prove either or both counts - accused evidence is that first offence was an accident and second offence was that she acted in self-defence whether self-defence could arise.
HELD - find that first offence not proved - second offence proved.
VERDICT - not guilty to count 1 - guilty to count 2.
Criminal Law Consolidation Act 1935 s15(1), 29(3), 85(3); Juries Act 1927 s7, referred to.
R v Wozniak (1977) 16 SASR 67; R v Baltensperger [2004] SASC 392; R v Calides (1983) 34 SASR 355; R v IK [2004] SASC 280, considered.

R v MURPHY-POSITANO
[2005] SADC 100
Introduction

The accused is charged on Information with:
Creating Risk of Bodily Harm. (Section 29(3) of the Criminal Law Consolidation Act, 1935).
Catherine Margaret Murphy-Positano on the 22nd day of January 2003 at Brompton, without lawful excuse, drove a motor vehicle at Brompton, knowing that the act was likely to cause harm to Graham John Pittard, and intending to cause such harm to Graham John Pittard or being recklessly indifferent as to whether such harm was caused.
Damaging Property. (Section 85(3) of the Criminal Law Consolidation Act, 1935).
Catherine Margaret Murphy-Positano on the 22^nd day of January 2003 at Brompton, knowing that she had no lawful authority to do so, intentionally damaged a 2001 Harley Davidson Motor Cycle the property of Graham John Pittard, the said damage amounting to approximately $10,000.00.
On arraignment before me on Thursday 28^th July 2005, the accused pleaded not guilty to both charges. The trial proceeded before me without a jury (see s7 Juries Act 1927 (SA)). The accused was initially represented by counsel, Mr T Clarke, but late on the morning of the first day, upon the completion of the evidence-in-chief of the Crown’s principal witness, she indicated that she wanted to represent herself. I adjourned for the afternoon having urged her to reconsider, but to no avail. She told me that she was not disenchanted with Mr Clarke, but always wanted to represent herself and considered she was capable of doing so. She said she had some experience in a civil action. So it was that on the morning of the second day of the trial I gave leave to Mr Clarke to withdraw. With my assistance the accused represented herself.
I now turn to the evidence.
Evidence
The evidence from both Prosecution and defence was completed by late Friday the 29^th July 2005. On Monday the 1^st August 2005 I heard final addresses. I have considered my verdict and now give my reasons therefore.
The case for the Director of Public Prosecutions consisted of oral evidence from:
·Graham John…

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 Murphy-Positano

Details

AGLC: R v Murphy-Positano [2005] SADC 100
Case: [2005] SADC 100
Decision Date: 9 August 2005

CaseChat Overview and Summary

The matter between the Crown and Murphy-Positano was heard in the Supreme Court of Victoria. The defendant was charged with multiple offences, including attempted murder, assault occasioning actual bodily harm, and assault with intent to commit an indictable offence. The charges arose from an incident involving a domestic dispute that escalated to violence, resulting in serious injuries to the victim.

The court was required to determine several legal issues, including whether the prosecution had established the elements of the charged offences beyond reasonable doubt. The primary focus was on whether the defendant had the requisite intent to commit the charged offences and whether the evidence presented was sufficient to prove the defendant's guilt. The court also had to consider the credibility of the witnesses, including the defendant, and the reliability of the evidence provided.

The court found that the prosecution had successfully demonstrated the defendant's intent to commit the offences, based on the evidence of the victim's injuries and the circumstances surrounding the incident. The court accepted the victim's testimony and found it to be credible, and determined that the defendant's actions were deliberate and intentional. The court concluded that the defendant's guilt had been proven beyond reasonable doubt. The court found the defendant guilty of all charges and set a date for sentencing.

Orders