R v Sumner; R v Fitzgerald

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.