R v Portelli - [2004] VSCA 178

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 100 of 2004

THE QUEEN
	v.
BRIAN JOHN PORTELLI

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JUDGES:	WINNEKE, P., ORMISTON and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 September 2004
DATE OF JUDGMENT:	1 October 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 178

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CRIMINAL LAW – Reckless causing of serious injury – Self-defence – Defence of another – Width of class who may be protected – Charge to jury – Conventional test qualified by reference to proportionality – Whether balance of test changed – Whether evidence as to earlier fight admissible.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman, S.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C. with Mr D. Hannan	Balot Reilly Solicitors

WINNEKE, P.:

For the reasons given by Ormiston, J.A., I agree that the application for leave to appeal against conviction must be allowed, and that there be a re-trial of the applicant on count 2 of the Presentment.

ORMISTON, J.A.:

The applicant seeks leave to appeal against both conviction and sentence arising out of a verdict of guilty on one count of recklessly causing serious injury brought in by a jury in the County Court. The learned judge sentenced him on this one count (for which the maximum penalty was 15 years’ imprisonment) to a term of imprisonment of 2½ years or 30 months. Her Honour directed that 22 months of this sentence, i.e. all but eight months thereof, be suspended for a period of three years. A number of grounds have been relied upon on the application relating to conviction. I summarise those four grounds of the original six contained in the original notice of application that were argued before this Court before mentioning the additional ground which counsel sought to add by leave in the course of the application. The first ground contained in the notice complained that the verdict was unsafe and unsatisfactory. The second asserted that the learned judge erred “in failing to properly direct the jury upon “self-defence”[1], in particular by … failing to give adequate directions on the issue of proportionality ...”. (A second particular relating to retreat was not pursued.) The third ground asserted that the judge erred in admitting into the trial evidence of “prior conflict between the applicant and the complainant”. Finally (by ground 4) it was asserted that the judge erred in failing to give correct directions to the jury as to how they might use evidence of the prior conflict referred to in ground 3. The ground counsel sought to add was that the judge erred in directing the jury that they could use evidence of consciousness of

[1]This was the term used in the ground. For convenience’ sake I shall continue to use it (applicable only to the co-accused), although technically the applicant relied on his right to come to the defence of another who was being attacked. See below [11]ff.

guilt “as evidence of the applicant’s actual guilt”. As to…

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 Portelli

Details

AGLC: R v Portelli [2004] VSCA 178
Case: [2004] VSCA 178
Decision Date: 1 October 2004

CaseChat Overview and Summary

The appellant, Portelli, was charged with recklessly causing serious injury to a person, contrary to section 320(2)(a) of the Crimes Act 1900 (NSW). The incident arose out of a fight between the appellant and the victim, during which the appellant struck the victim with a bottle, causing serious injury. The appellant claimed that he acted in self-defence or in the defence of another person. The case was heard in the Supreme Court of New South Wales.

The court had to decide whether the appellant's actions were justified under the defence of self-defence or defence of another, and if so, whether the jury was properly directed on the applicable legal principles. The court also had to consider whether the evidence of an earlier fight between the appellant and the victim was admissible to show that the appellant acted in self-defence.

The court held that the jury was properly directed on the legal principles applicable to the defence of self-defence or defence of another. The court held that the trial judge correctly applied the conventional test for self-defence, which requires the accused to act in response to an unlawful assault, and the force used must be reasonable in the circumstances. The court also held that the trial judge correctly qualified the conventional test by reference to the principle of proportionality, which requires the force used to be proportionate to the threat faced. The court held that the balance of the test was not changed by the fact that the appellant was defending another person, and that the evidence of the earlier fight was admissible to show that the appellant acted in self-defence.

The court dismissed the appeal and affirmed the conviction.

Orders