LLB106 Case Note Week 2 PDF

Preview

Summary

Download LLB106 Case Note Week 2 PDF

Description

Case Note (Category 1): R v De Silva (2007) QCA 301 Material facts: -

-

-

-

-

-

-

-

-

20th April 2007, Mr De Silva was convicted by a jury of the offence of attempted arson of a dwelling house and of motor vehicles, committed on or about 23 rd December 2004. Sentenced to 16 months imprisonment, with the 12 days between 20 th April 2007 and 2nd of May 2007 declared as time already served, and the learned judge set parole release date 20th December 2007. Mr De Silva has appealed against his conviction but abandoned an application for leave to appeal against his sentence. Mr De Silva was the defacto partner of Christine Piggott, who was the estranged wife of the complainant David Piggott. The Piggott’s had three children from their marriage, and there was some dispute on where the kids should live and with whom. 20th December of 2004, an order had been made that they were to live with Ms Piggott, provided that Mr De Silva did not also live in the same residence. Ms Piggott proved that Mr De Silva was very angry at the terms and it was known that Mr De Silva did not like Mr Piggott. 23rd of December 2004, on Ms Piggott’s evidence, Mr De Silva and a friend, Nick Carter, came to her residence a little after lunch and both mean had been drinking alcohol. Spent most of their time at their barn where a friend Darryl Skjottrup left some jerry cans of petrol. At an unknown time, Ms Piggott saw each of Mr De Silva and Mr Carter carrying a jerry can up from the barn and onto the driveway of the residence and they left together. Ms Piggott thought that the two men were going out drinking, however when Mr De Silva came home he smelt like petrol. Justen Pfeiffer gave evidence that he was a friend of Mr De Silva and gave further information of the events of that night. Mr De Silva and Mr Carter came to Mr Pfeiffer’s house that night and Mr De Silva asked for a lighter and gloves, Mr Pfeiffer asked why he needed those items to which Mr De Silva stated, “Don’t tell anyone but we’re going to burn David’s house down”. Mr Pfeiffer tried to persuade Mr De Silva not to do so and Mr De Silva replied, “No, its all good. He deserves it.” The next day, Mr De Silva went to Mr Pfeiffer’s office where Mr De Silva revealed that he almost got caught. David Piggott gave evidence that on the 23rd of December 2004 that he went to bed around 9:30pm and woke up to the smell of petrol. Thought someone was stealing his car, looked out of the window and saw fluid on the ground.

-

-

He ran out to his carport area which had to vehicles in it and he saw a person crouched down behind one of the vehicles – that person ran to an awaiting care which drove off. He did not recongise the man as Mr De Silva from the behind. Mr Piggott did find fluid on the floor and found the jerry can.

-

Jason Colby gave evidence that when at a barbeque at his residence, Mr Da Silva said that, “He’d been having troubles with David and he went to David’s place at night dressed in black, splashed petrol around his house and his car and tried to light the — light the place up, but was startled by David.”

-

Mr De Silva gave evidence, denying that he had committed the offence, that he had owned or worn a wig, that he had ever seen jerry cans at his previous residence or that he had ever admitted being involved in the offence to anyone. Mr De Silva gave evidence that a Peter Braidotti was bribed to testify against him from Ms Piggot, Mr Colby and Mr Pfeiffer for some unspecified benefits.

-

Issue: -

-

His counsel on appeal, was given leave to amend the groups of the appeal against conviction which became that the verdict of the jury was unsafe and unsatisfactory, in that the learned trial judge had erred in law by directing the jury that there was no issue with respect to the question of whether or not there had been an attempt. The defence council focused their argument on the well settled distinction between an attempt to commit an offence, and mere preparation in doing so. Although the learned trial judge was not asked to give any directions on it, the learned judge ought to have directed the jury as to the difference between mere preparation to commit an offence, and an attempted to commit it.

Decisions: -

-

-

Jerrard JA: Put in context, what the learned judge did was to direct the jury as to the elements of an attempt, correctly, and to the evidence demonstrating an intent. The learned judge’s further comment about there being no suggestion that the offence did not occur seems more a description of the strength of the evidence in support of intent. There was, against Mr De Silva, Mr Colby’s evidence as well, that Mr De Silva had said that: “When he went to light the place up” he was forced to abandon the plan. That admission was relevant to proof of intent, and of an attempt having happened. So too was the fact that Mr De Silva borrowed a lighter and gloves, and declared an intent beforehand. On the totality of the evidence Mr De Silva was not deprived of any possible chance of acquittal by the suggested direction not having been given. It is only when a direction not asked for should have been given, that the possibility of a miscarriage of justice arises.

-

-

-

-

While the jury were not given the opportunity to consider a defence of mere preparation, that was not the defence Mr De Silva relied on. The appellant has not established the necessary matters to succeed, and accordingly I would dismiss the appeal against conviction.

Holmes JA: I have had the advantage of reading the reasons for judgment of Jerrard JA and am in agreement with his conclusions. Whether the act “cannot reasonably be regarded as having any other purpose than the commission of that specific crime” may therefore be more apposite in this State. I hasten to say, however, that I do not think there was anything equivocal in the spreading of petrol about the premises in this case. The jury was instructed as to the elements of attempt; and in the absence of any issue being raised as to whether the spreading of the petrol was an overt act manifesting the intention to commit arson and the beginning of the putting of that intention into execution by means adapted to its fulfilment, there was no reason for the learned trial Judge to direct further. Philippides J: I have had the advantage of reading the reasons for judgment of Jerrard JA. I agree with the reasons of His Honour and with the proposed order.

Case Note (Category 2): R v Dibble; Ex parte Attorney-General (Qld) [2014] QCA 8 Material Facts: -

-

-

-

Mr Dibble was found by police punching Mr Colbran on the 30 th of December 2011, police intervened. Mr Colbran was transported to Roma hospital where he was visited by police, Mr Colbran told the police that he was not sure if he would lodge a formal assault complaint against Mr Dibble. Mr Colbran’s injuries to his face where significant and he was transferred to Princess Alexander Hospital where he underwent two operations. On the 3rd of January 2012, Mr Colbran advise to police that he wanted to lodge a formal complaint against Mr Dibble. On the 10th of January 2012, Mr Colbran gave his statement to police. On the 17th of January 2012, Mr Dibble appeared in the Magistrates Court at Roma where he entered plea of guilty of charge of public nuisance, was fined $400 and there was no conviction was recorded. A year later, police charged the respondent with causing grievous bodily harm pursuant to medical opinion about injuries sustained by the complainant, Mr William Colbran. On 2 March 2013, the police charged Mr Dibble with causing grievous bodily harm, having received a medical opinion about the injuries sustained by the complainant.

Issue: -

-

Two grounds of appeal are stated in the Notice of Appeal, namely: 1. The learned judge erred in finding that for the purposes of s 16 of the Code, the offences of public nuisance and grievous bodily harm with which the respondent was charged were based on the same act. 2. The learned judge erred in finding the prosecution for unlawfully causing grievous bodily harm was an abuse of process. The appeal was brought by Mr Colbran, the complainant.

Decision of the Court: -

-

-

-

Section 16, in saying that a person cannot be twice punished for the same act or omission, must be referring to punishable acts or omissions; and the prohibition applies though the acts or omission would constitute two different offences. It is to these cases that the section is directed. The proper test for s 16 was whether the same wrongful act or omission which had previously resulted in punishment ‘is the central theme, the focal point or … the basic act or omission in the later offence charged’.” For a public nuisance offence such as this, identification of the punishable act or acts which sustained a particular conviction will depend upon the totality of the behaviour which is put before the court as constituting the offending behaviour. It is not to point to propose that other aspects of the offending behaviour (to the exclusion of the landing of the punch) would be sufficient to characterise that other behaviour as disorderly, offensive, threatening or even violent, as might sustain a conviction for a public nuisance offence.

-

-

Here, as noted, the offending behaviour was not particularised in a way which excluded any punch thrown by the respondent that landed on the complainant. The punishable acts for which the respondent was convicted in the Magistrates Court included the punches thrown by him which landed on the complainant and caused the latter harm. It follows that to punish the respondent a second time for those acts would offend s 16. Defence of ‘Double Punishment’ succeeded.

Case Note (Category 2): R v Dookhea (2017) 347 ALR 429 Material Facts: -

Mr Kritsingh Dookhea and his wife owed money to the deceased, Faizal Zazai, when the couple attempted to open a franchise of Mr Zazai’s pizza shop but the shop failed. Mr Dookhea previously worked for Mr Zazai. The couple felt cheated on and where determined to teach Mr Zazai a lesson as they planned to rob him. They invited Mr Zazai over to their residence to collect the takings from a Pizzafellas store managed by Mr Dookhea’s wife which resulted in a brawl. This altercation moved from in the house to the lawn where Mr Dookhea grabbed Mr Zazai from behind his chin or throat region. Mr Zazai collapsed. The couple dragged him into the spare bedroom where Mr Dookhea applied pressure to Mr Zazai’s back while he was faced down on the floor. In Dr Baber’s opinion, Mr Zazai died as a result of neck compression e.g. strangulation. Mr Dookhea was charged with murder.

Issues: -

-

-

The learned trial judge erred in directing the jury that, in order to convict the applicant, they did not have to be satisfied ‘beyond any doubt’ that he had the requisite mens rea, ‘but beyond reasonable doubt’, and that they ‘[did] not have to work out definitively what Mr Dookhea’s state of mind was’ when he inflicted the injuries that caused the deceased’s death. The learned trial judge erred in directing the jury that the applicant’s state of mind could be judged solely at the time he applied pressure to or compressed the deceased’s neck on the front lawn, in circumstances where either: 1. no reasonable jury could exclude the possibility that the deceased’s death was caused by a combination of injuries inflicted on the front lawn and in the spare room; or 2. the evidence was at least capable of giving rise to that reasonable possibility The judge erred in failing to direct the jury that they had to be unanimous as to the act or acts causing death before they could return a verdict of guilty of murder.

Conclusion: -

-

We have concluded that her Honour did fall into error when she spoke of the Crown having to satisfy the jury ‘not beyond any doubt but beyond reasonable doubt’. The standard of proof being fundamental to a fair trial, the failure to take exception could not stand in the way of the ground succeeding. It is not the responsibility for the judge to explained ‘beyond reasonable doubt’. It should be left to the jury to use common sense to determine the meaning of that. Concluded that the appropriate order was that there be a re-trial.

Case Note (Category 3): R v Reid [2007] 1 QD R 64 -

Principle of Law: Jury convicted HIV positive appellant of unlawfully transmitting disease with intent. Inducing someone to have unprotected intercourse with him by falsely representing that he was not HIV positive, while knowing that he was, seems to me to fall within the ambit of … infecting someone with HIV involves causing a detriment to him or her.

Case Note (Category 3): Hope v Brown [1954] 1 All ER 330 -

Butcher sold meat and had false ticket prices which were above the maximum price. Principle of Law: Until the false tickets were affixed to the meat there was merely an intention and preparation to commit the offence of selling at a price above the maximum and not an attempt; the acts of the respondent were not sufficiently connected with the offence to constitute an attempt to commit it; and, therefore, he was not guilty of the offence charged against him....