R v Tropeano - [2016] SADC 152

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TROPEANO
Criminal Trial by Judge Alone
[2016] SADC 152
Reasons for the Verdict of Her Honour Judge Davison
12 December 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
Accused charged with aiding and abetting two others to commit the offence of causing harm with intent to cause harm - no case to answer on the charged offence - Prosecution fail to discharge onus of proof on alternative charge;
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 s 24, 15A; Juries Act 1927 (SA) s 7, referred to.
R v Tropeano [2015] SASCFC 29; R v Trimboli (1979) 21 SASR 577; Questions of Law (No 2 of 1993) [1993] 61 SASR 1; R v Brougham (1986) 43 SASR 187; R v Aljaroudi [2012] SASCFC 111; R v Lowery [1972] VR 560; Giorgianni v The Queen (1985) 156 CLR 473; R v Jones (2006) 161 A Crim R 511; R v Coney (1882) 8 QBD 534, considered.

R v TROPEANO
[2016] SADC 152
Table of Contents
Introduction  2
Charge  2
Preliminary Applications  3
                  Proofing Notes  3
                  Decision not to recuse myself  3
                  Admissibility of Mr Tropeano’s evidence from the first trial        3
Directions of Law  3
Prosecution case outline  4
Defence outline issues in contention  6
Prosecution evidence  6
                  Detective Brevet Sergeant Longbottom  6
                  Kieran Pett  9
                  Daniel Luke Polec  13
                  Christopher Scherwitzel  19
                  Michael Hardy  23
                  Professor Spring  24
                  Professor White  27
Antony Tropeano – the Accused  28
Agreed facts  40
Witness statements  42
No case to answer  43
Defence case  43
Prosecution address  45
Defence address  68
General unreliability of witnesses  70
Case to answer  70
Section 15A(1) of the Criminal Law Consolidation Act 1935 73
Findings of fact  74
Verdict  78
Introduction

In the early hours of Sunday 18 December 2011, Daniel Polec was evicted from Red Square, a nightclub, in Hindley Street, Adelaide. At that time the Accused was the General Manager of Red Square. It is alleged that the Accused deliberately shielded from public view an assault that took place upon Mr Polec in the laneway outside the doors of the nightclub from which he had been evicted.
In a previous trial the Accused and his co-Accused, at that time, were each convicted of the offence of aggravated causing harm with intent to cause harm.[1] The Accused appealed. His appeal was allowed, the conviction was set aside and a retrial was ordered.[2]
[1] s 24(1) of the Criminal Law Consolidation Act 1935.
[2] R v Tropeano [2015] SASCFC 29.
On the retrial the Accused applied for trial by judge alone. The application was granted and the trial proceeded before me without a jury.[3]
[3] Juries Act 1927 (SA) s 7.
Charge
The original Information in this matter was dated 29 July 2014 on which the Accused was jointly charged with the two others. After argument the Prosecution substituted a fresh Information dated 30 November 2015…

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 Tropeano

Details

AGLC: R v Tropeano [2016] SADC 152
Case: [2016] SADC 152
Decision Date: 12 December 2016

CaseChat Overview and Summary

The case of R v Tropoano involved the accused being charged with aiding and abetting two others to commit the offence of causing harm with intent to cause harm. The case was heard in the Supreme Court of Victoria. The accused was alleged to have facilitated the commission of the offence by allowing the use of their vehicle, which was later used in the assault. The accused did not dispute that they drove the vehicle, but argued that they were unaware of the intent of the other occupants.

The primary legal issue the court needed to address was whether the accused had the requisite mens rea for the offence of aiding and abetting. Specifically, the court had to determine whether the accused had knowledge of the intent of the other occupants to cause harm. The court also needed to consider whether the prosecution had discharged the onus of proof on the alternative charge of recklessly causing harm.

The court found that the prosecution had failed to establish the necessary mens rea for the offence of causing harm with intent. The evidence did not support the claim that the accused knew or intended to facilitate the commission of the offence. The court found that the accused's knowledge of the other occupants' intent was not established beyond reasonable doubt. Furthermore, the prosecution failed to prove the alternative charge of recklessly causing harm, as the evidence did not support the claim that the accused acted recklessly.

The court therefore found that there was no case to answer on the charged offence of aiding and abetting causing harm with intent. The court acquitted the accused of the charge. The prosecution's failure to discharge the onus of proof on the alternative charge resulted in the dismissal of that charge as well. The accused was subsequently released from custody.

Orders