R v Sumner; R v Fitzgerald

Case [2013] SASCFC 82

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SUMNER;  R v FITZGERALD

[2013] SASCFC 82

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)

16 August 2013

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - OTHER OFFENCES

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE - DIRECTIONS TO JURY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - ALTERNATIVE VERDICTS

EVIDENCE - ADMISSIBILITY AND RELEVANCY - RES GESTAE

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - DNA EVIDENCE

The appellants were convicted after trial by jury in the Supreme Court of one count of murder and one count of aggravated causing serious harm with intent to cause harm.

The Crown case was that each defendant, in company with others, broke into and was present in a house when another or others in the group struck and injured the deceased, Mr Drover, and the second victim, Mr Karpany, in the implementation of a joint enterprise to cause grievous bodily harm and serious harm respectively.  The Crown case against the appellant Sumner depended upon identification evidence by witnesses in the house.  The Crown case against the appellant Fitzgerald depended upon his DNA being found on a didgeridoo which had been moved in the house coupled with evidence that Fitzgerald had never been to the house on any previous occasion.

The appellants appeal against the convictions on the following grounds:

1  the Judge erred in failing to leave to the jury on the second count an alternative of the basic offence as opposed to the aggravated offence;

2  the second count charged an offence not known to law being aggravated causing serious harm with intent to cause serious harm;

3  the Judge erred in failing to direct the jury that participation in joint criminal enterprise required more than the defendants' presence at the house in the circumstances;

4  the Judge erred in admitting evidence of a "000" call made by the owner of the house;

5  the Judge misdirected the jury on the first count concerning the alternative verdict of manslaughter by referring to an appreciable risk of harm;

6  by Fitzgerald:  the Crown failed to exclude a reasonable hypothesis consistent with his innocence, namely the presence of his DNA on the didgeridoo being explained by secondary transfer via Sumner.

Held:  by the Court dismissing the appeal:

1 Per Gray and Sulan JJ: section 23(1) of the Criminal Law Consolidation Act 1935 (SA) creates two separate offences, being the basic offence and the aggravated offence (at [31]-[38]).

Per Blue J (contra): section 23(1) creates a single offence which merely…

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AGLC
R v Sumner; R v Fitzgerald [2013] SASCFC 82
Case
[2013] SASCFC 82
Decision Date

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Gray, Sulan, and Blue JJ, heard appeals from R v Sumner and R v Fitzgerald. The central dispute concerned the interpretation of section 23(1) of the *Criminal Law Consolidation Act 1935* (SA), which defines offences relating to causing serious harm, and the adequacy of jury directions in relation to joint criminal enterprise and aggravating factors. The appellants challenged the trial judge's decision not to leave the basic form of the offence to the jury and the formulation of the charge itself.

The court was required to determine whether section 23(1) of the Act created a single offence with aggravating factors or two distinct offences: a basic offence and an aggravated offence. Further, the court had to consider whether a finding of guilt for a joint criminal enterprise necessarily encompassed the aggravated offence, and if the trial judge's directions on joint enterprise and the *res gestae* of a "000" call were adequate. The admissibility of DNA evidence and the sufficiency of the judge's correction of a misdirection regarding manslaughter were also at issue.

Gray and Sulan JJ held that section 23(1) creates two separate offences, a basic and an aggravated offence. They reasoned that the presence of each defendant in company with those who inflicted the injuries was essential for establishing joint criminal enterprise, and a finding of guilt for the basic offence would necessarily imply guilt of the aggravated offence. Consequently, they concluded the trial judge did not err in not leaving the basic offence to the jury, as the second count, charging the aggravated offence, was a valid offence known to law. Blue J, dissenting on the interpretation of section 23(1), viewed it as a single offence with two forms for penalty purposes, but agreed that a finding of joint enterprise in these circumstances would necessarily connote guilt of the aggravated offence. All judges agreed that the trial judge's directions on joint enterprise were adequate, that the presence of the defendants as part of the group constituted implementation of the joint enterprise, that the "000" call was part of the *res gestae*, that the judge adequately corrected his misdirection on manslaughter, and that the jury was entitled to find the DNA evidence did not support a reasonable hypothesis of innocence.

The appeals were dismissed.

Orders

Orders of the court

Held: by the Court dismissing the appeal:

1 Per Gray and Sulan JJ: section 23(1) of the Criminal Law Consolidation Act 1935 (SA) creates two separate offences, being the basic offence and the aggravated offence (at [31]-[38]).

Per Blue J (contra): section 23(1) creates a single offence which merely has two forms for the purpose of the maximum penalty (at [128]-[140]).

2 The presence of each defendant in company with the person or persons who struck Mr Karpany was essential to make out joint criminal enterprise. A finding of guilt of the basic offence necessarily connoted guilt of the aggravated offence the subject of the second count (at [45]-[49] per Gray and Sulan JJ, [141]-[142] per Blue J).

3 In those circumstances, the Judge did not err in not leaving the basic offence to the jury (at [46] per Gray and Sulan JJ, [143]-[144] per Blue J).

4 The second count charged an offence known to law under section 23(1) (at[30]-[31] per Gray and Sulan JJ, [145]-[146] per Blue J).

5 The Judge did not err in his direction to the jury on what constitutes joint enterprise (at [49] per Gray and Sulan JJ, Blue J agreeing).

6 Presence of the defendants at the house as part of the group undertaking the home invasion was sufficient in the circumstances to constitute implementation of a joint criminal enterprise to inflict grievous bodily harm and serious bodily harm on the victims (at [59]-[62] per Gray and Sulan JJ, Blue J agreeing).

7 The "000" call was made during the attack while the attackers were still in the house and formed part of the res gestae (at [69]-[70] per Gray and Sulan JJ, Blue J agreeing).

8 The Judge adequately corrected his earlier misdirection concerning the alternative verdict of manslaughter by re-directing the jury that an appreciable risk of serious harm or injury was required (at [71]-[76] per Gray and Sulan JJ, Blue J agreeing).

9 It was open to the jury to be persuaded beyond reasonable doubt that secondary transfer of Fitzgerald's DNA did not comprise a reasonable hypothesis consistent with his innocence available on the evidence (at [106]-[113] per Gray and Sulan JJ, per Blue J agreeing).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The occupants of the house observed the group entering. There was evidence from which the jury could conclude that the members of the groups that entered from the rear and the front door were intent upon assaulting Mr Drover and Mr Karpany and causing those persons grievous bodily harm. Once the jury was satisfied beyond reasonable doubt that Fitzgerald was part of the group, it was open to the jury to conclude that Fitzgerald was present at the relevant time, that he participated in the attacks on Mr Drover and Mr Karpany, and that he had the requisite intent in each case.Conclusion We would dismiss the appeals of both Sumner and Fitzgerald.BLUE J: I agree that the appeals should be dismissed. Subject to one matter, I agree with the reasons for judgment of Gray and Sulan JJ.Basic and aggravated forms of offence The trial Judge directed the jury that there were four elements of the offence the subject of count 2 being causing serious harm with intent to cause serious harm. He directed the jury that, to establish those elements, it was essential for the Crown to prove beyond reasonable doubt that the offence was committed in implementation of a joint enterprise to cause serious harm. He directed the jury that the Crown alleged that there were present one or both of two aggravating factors, namely use of an offensive weapon and the offence being committed in company with one or more other persons. He directed the jury that, before they could find the charge proved, they had to find beyond reasonable doubt that one or both of those aggravating factors were present. When the jury’s verdict was ultimately taken, the jury was asked whether they found each defendant guilty or not guilty of aggravated causing harm with intent to cause serious harm. They were then asked to identify the aggravating factor or factors found established. They identified the offence as having been committed in company. On appeal, the defendants complain of the Judge’s directions concerning aggravation and the manner in which the offence was left to the jury. The first complaint is that the offence in its basic form was not left to the jury when it ought to have been.[24] The second complaint is that the information incorrectly stated the offence in the second count to be “aggravated causing serious harm with intent to cause serious harm” etc when there is no such offence in section 23 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”).[25][24] Sumner Grounds 2 and 3. Fitzgerald Grounds 3 and 4.[25] Sumner Ground 4. Fitzgerald Ground 5. A second limb of this Ground, and Sumner Ground 1 and Fitzgerald Ground 2 were not advance at the hearing of the appeal. The position taken by the defendants on appeal is diametrically opposite to the position they took at trial. In the course of his summing up, the Judge foreshadowed in the jury’s absence that he proposed not to leave the offence in its basic form to the jury because a finding of joint enterprise (essential for guilt of the offence in its unaggravated form) would necessarily connote that the offence was committed in company. Counsel for the defendants explicitly agreed to that course.

Ratio Decidendi

Legal Principle Established

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