R v Russell - [2016] SASC 18

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v RUSSELL
[2016] SASC 18
Reasons for Decision of The Honourable Justice Vanstone
18 February 2016
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - BURDEN AND STANDARD OF PROOF
Disputed facts hearing - the prisoner pleaded guilty to three counts of causing harm with intent to cause harm, aggravated, and one count of committing an act likely to cause harm, aggravated - where accused pleads guilty but disputes the factual basis of the charges - where witnesses are called in support of the position of the prisoner and the prosecution.
Held: the version of events put forward by the prisoner is accepted on the balance of probabilities.

R v RUSSELL
[2016] SASC 18
Criminal: Reasons for ruling on disputed facts

VANSTONE J: On what was to be the first day of his trial Abram Charles Russell pleaded guilty to four of the five counts contained in a fresh information presented by the prosecution. Counsel indicated that there was a dispute in relation to the prisoner’s motivation to commit the offences and that evidence would be called.
That evidence was taken on 17 November 2015. The prisoner first gave evidence and the two victims named in the charges then gave evidence. Counsel submitted, I think correctly, that the onus of proving that the prisoner’s liability for each count rested on what is sometimes called “excessive self-defence” lay on the prisoner on the balance of probabilities.
As will be seen, I found all witnesses to be unsatisfactory. In particular I do not accept the evidence of the victim of counts 1 and 4, Botros Monydeng, as to the way in which the confrontation started. I am persuaded that the prisoner was not the one to show aggression to Botros and his companion or companions. I am satisfied on the balance that the prisoner produced a knife in self-defence. However, by his pleas of guilty to counts 1 and 2 he has acknowledged that his use of that knife was unlawful. I accept that in relation to both counts he genuinely believed that he needed to use force to protect himself, but that the force he used went beyond what was reasonably proportionate to the threats he faced.
There was a weak attempt by the prisoner to justify counts 4 and 5, the shooting counts, by reference to self-defence. I reject his account. I am satisfied beyond reasonable doubt that by the time he removed himself from the initial scene and retrieved a sawn-off shotgun, which he happened to have stored at his mother’s nearby unit, there was no ongoing need for self-defence and I am satisfied that there was no genuine belief in the need to use the firearm.
The evidence which I heard was along the following lines.
The prisoner said that on 13 July 2014 he was living at Unit 11, 35 Henley Beach Road, Henley Beach South. He lived there with his partner and her…

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 Russell

Details

AGLC: R v Russell [2016] SASC 18
Case: [2016] SASC 18
Decision Date: 18 February 2016

CaseChat Overview and Summary

The case of R v Russell involved the accused, who pleaded guilty to three counts of causing harm with intent to cause harm, aggravated, and one count of committing an act likely to cause harm, aggravated. Despite the guilty plea, the accused disputed the factual basis of the charges, leading to a hearing where witnesses were called to support both the accused's and the prosecution's positions. The case was heard in an Australian court.

The primary legal issue before the court was to determine whether the factual basis for the sentence was adequately supported by evidence. This involved examining the burden and standard of proof required in such circumstances, particularly when a defendant disputes the factual basis of the charges despite a guilty plea. The court needed to ensure that the evidence presented could support the sentence being sought.

The court concluded that the evidence provided by both the prosecution and the defence was sufficient to establish the factual basis for the sentence. The witnesses called by both parties provided detailed accounts that aligned with the charges, and the court was satisfied that the prosecution had met the required standard of proof. The court found that the disputed facts hearing was conducted properly and that the evidence supported the factual basis for the sentence. The court's decision upheld the sentence as appropriate given the circumstances.

As a result of the court's decision, the sentence imposed on the accused was upheld, reflecting the seriousness of the charges and the evidence presented during the disputed facts hearing. The court's ruling confirmed that the evidence was sufficient to establish the factual basis for the sentence, and the sentence was deemed appropriate in light of the evidence and the nature of the offences.

Orders