R v Tropeano

[2015] SASCFC 29

Supreme Court of South Australia

(Court of Criminal Appeal)

R v TROPEANO

[2015] SASCFC 29

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Parker and The Honourable Auxiliary Justice Duggan)

27 March 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - PROCEDURE - VERDICT - UNANIMOUS AND MAJORITY VERDICTS

The applicant and two co-accused were presented for trial on an information in the District Court which alleged an offence of aggravated causing harm with intent to cause harm. They were each convicted of that offence by majority verdict. The applicant now brings an application for permission to appeal against his conviction. 

The charge arose out of an incident which took place at the Red Square nightclub on 18 December 2011.  At this time the applicant was the general manager of the nightclub. Both of the applicant’s co-accused were employees of the club. It was alleged that the offence was committed against Mr Polec who was a patron of the club and had gone there with some friends.

At approximately 4.30 am Mr Polec was involved in an incident on the dance floor of the nightclub. As a result he was escorted out of the club by a member of the club staff.

According to the prosecution case, an altercation involving a number of men took place at the time of the eviction. Mr Polec was knocked to the ground. He was restrained while he was on the ground. The two co-accused punched him on a number of occasions while the applicant shielded this incident from view. Two other men unconnected with the club also assaulted Mr Polec. Mr Polec tried to get up but was forced to the ground by several men including the applicant. The prosecution alleged that while Mr Polec was on the ground on this occasion the applicant stomped on him. The police then arrived at the scene. Mr Polec was taken to hospital. His injuries included a fractured jaw, a broken tooth and bruising and swelling to the face.

At trial the applicant denied attacking Mr Polec. He said that his staff restrained Mr Polec so that the police could detain him when they arrived. He said he was protecting Mr Polec from others who might attack him. He said neither he nor his staff assaulted Mr Polec either by stomping on him or in any other way.

The prosecution alleged that the applicant and the co-accused were involved in a joint criminal enterprise to cause harm to Mr Polec.

The applicant seeks permission to appeal on the following 10 grounds:

1.  The Learned Trial Judge failed to adequately direct the jury on the principles of joint enterprise.

2.  The Learned Trial Judge erred in permitting the prosecution witnesses to provide a commentary and/or interpretation of the CCTV footage.

3.…