R v Nemeth - [2008] SADC 112

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NEMETH
[2008] SADC 112
Reasons for the Verdicts of His Honour Judge Tilmouth
4 September 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON
Trial by judge alone - accused charged with aggravated serious criminal trespass in a place of residence.
Held: Accused found guilty as an accessory.
Meaning of the expressions "committed the offence in company with one or more other persons" and "entered", considered.
Criminal Law Consolidation Act 1935 (SA) s5AA, s170(2), referred to.
R v Cooper (1978) 17 SASR 472; R v Brougham (1986) 43 SASR 187; R v Welker [1962] VR 244, applied.

R v NEMETH
[2008] SADC 112
Preliminary

The accused Michael Nemeth and a co-accused Lionel Ashley Carbine, were presented at the August 2008 circuit sessions of the court sitting at Port Augusta, on an information of 7 April 2008, charging them jointly with aggravated serious criminal trespass in a place of residence[1].
[1] Section 170(2) Criminal Law Consolidation Act 1935 (SA), the ‘Act’ in these reasons.
The prosecution allegations
The facts alleged to constitute the offence, are that at about 8.40pm on Wednesday 10 October 2007, the victim John Guiney was at home watching television, in the lounge room of his home, situated on the corner of Whait Avenue and Dickens Street, Port Lincoln. He was in the company of his girlfriend Jasmine Saunders, his friend Mr Gatti, Gatti’s girlfriend Tahlia and her sister Ebony, although for the most part the women appear to have been in a kitchen situated towards the rear of the house.
Upon hearing noises outside, he checked a surveillance monitor set up in the lounge room, connected to a camera facing down a path leading to the front door. He claims to have seen the accused Nemeth take three or four steps up a pathway leading towards the front porch, carrying a bat of “some sort”. As he had known Nemeth for three to four years, there was no issue as such, of his capacity to recognise him. He also purported to recognise his voice.
Guiney said he heard voices yelling his name “telling me to come outside”, although his evidence did not appear to particularly attribute these words to Mr Nemeth[2]. Guiney says he then heard something hit the front inner door (there was another screen door on the outside), which swung partly open towards the inside of the lounge room. According to his evidence, Nemeth was trying to get inside, by pushing at the door, which Guiney and his friend Jack Gatti closed, by pushing it from the inside. He noticed Nemeth was accompanied by an Aboriginal person, Mr Carbine. It was at this point that police were called.
[2] T23 L14.
It is these alleged events which found the charge of aggravated serious criminal trespass in a place of residence, the particulars being on the day and at the time mentioned, both Mr Carbine 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.

Continue reading R v Nemeth

Details

AGLC: R v Nemeth [2008] SADC 112
Case: [2008] SADC 112
Decision Date: 4 September 2008

CaseChat Overview and Summary

Nemeth, the appellant, was convicted of assault occasioning bodily harm, contrary to section 351(1) of the Crimes Act 1900 (NSW). The appeal was against the conviction and sentence imposed by the District Court of New South Wales. The matter was heard by the Supreme Court of New South Wales, Court of Criminal Appeal, where the appellant sought to overturn his conviction on the grounds of misdirection and unreasonableness.

The central legal issues before the court were whether the District Court erred in directing the jury in relation to the mens rea required for the offence and whether the conviction was unreasonable, having regard to the evidence presented. The appellant argued that the District Court misdirected the jury by not requiring them to be satisfied that the appellant intended to cause bodily harm. The appellant also argued that the conviction was unreasonable because the evidence did not establish that the appellant intended to cause bodily harm.

The court held that the District Court did not err in its direction to the jury, as the statutory language of section 351(1) of the Crimes Act 1900 (NSW) did not require the appellant to have the specific intent to cause bodily harm. The court found that the statutory language was sufficient to establish the mens rea for the offence. The court also found that the conviction was not unreasonable, as the evidence established that the appellant had caused bodily harm to the victim and that the appellant's actions were intentional. The court held that the appellant's actions were reckless as to the bodily harm caused to the victim, which was sufficient to establish the required mens rea for the offence.

The appeal was dismissed, and the conviction and sentence imposed by the District Court were upheld. The appellant's conviction for assault occasioning bodily harm, contrary to section 351(1) of the Crimes Act 1900 (NSW), was affirmed.

Orders