A Fergusson v Laura Holmes - [2019] ACTMC 11

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	A Fergusson v Laura Holmes
Citation:	[2019] ACTMC 11
Hearing Date(s):	6 April 2018, 25 June 2018, 23 November 2018
DecisionDate:	12 March 2019
ReasonsDate:	3 April 2019
Before:	Special Magistrate Hunter OAM
Decision:	See [169] to [209]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Criminal - common assault – damage property – destroy property – judge alone trial – direction for judge alone trial – witness memory - self-defence – accidental damage to property
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (ACT)
Cases Cited:	Browne v Dunn (1893) 6 R 67 (HL) R v Burdon [2011] ACTSC 90 R v DM [2010] ACTSC 137 R v Mulcahy [2010] ACTSC 98 Zecevic v DPP (1987) 162 CLR 645
Parties:	A Ferguson (Informant) Laura Holmes (Defendant)
Representation:	Counsel Mr P Dixon (and Mr D Swan) (Informant) Ms P Burgoyne-Scutts (and Ms C Duffy) (Defendant)
Solicitors ACT Director of Public Prosecutions (Informant) Legal Aid ACT (Defendant)
File Number(s):	CC17/10709, CC17/10710, CC17/10711, CC18/03950, CC18/03951

SPECIAL MAGISTRATE HUNTER OAM:

MATTER OF LAURA HOLMES

The defendant Laura Holmes faced the following charges:

a)CC 2017/10709 – common assault of Lincoln Corcoran – 26 September 2017;
b)CC 2017/10710 – damage property – personal clothing;
c)CC 2017/10711 – damage property being Gyprock wall belonging to Lincoln Corcoran;
d)CC 2018/03950 – destroyed bedroom window belonging to Lincoln Corcoran;
e)CC 2018/03951 – destroyed property being a double bed mattress belonging to Lincoln Corcoran.

The defendant entered pleas of not guilty to all but 2017/10710.
I heard evidence in this matter over three days being 6 April 2018, 25 June 2018, and 23 November 2018.
The offences arise out of a domestic dispute when the defendant had returned to the complainant Mr Corcoran’s home, where he lived with his brother. The purpose of her return was to gather her property. The defendant and Lincoln Corcoran had been in a domestic relationship together. Their relationship ended in September 2017. The pair had made arrangements for the defendant to collect her property from the residence.
On 26 September 2017 it was arranged for the defendant to attend and collect the rest of her belongings, and that the complainant Lincoln Corcoran would not be there at the time. During the course of the gathering of property an issue arose between Mr Corcoran and the defendant. Both the defendant and Mr Corcoran began a yelling match.
At some point the defendant walked into the bedroom which had previously been occupied by the couple with a pair of scissors and cut up at least a T-shirt belonging to Mr Corcoran. It was alleged that the defendant also used the scissors to stab the mattress. There was a further altercation where Mr Corcoran grabbed hold of the defendant to stop her from damaging his property with the scissors. He attempted to lean over her to remove the scissors and she bit him on the arm. There is clear evidence there…

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.

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Details

Case: [2019] ACTMC 11
Decision Date: 12 March 2019

CaseChat Overview and Summary

The case involved A Fergusson who was prosecuted for common assault and damaging property. The incident occurred in the presence of Laura Holmes, who was the complainant. The case was heard in the Magistrates' Court of Victoria, with Judge Ferguson presiding over the matter. The defendant was found guilty of the charges and was subsequently sentenced. Fergusson appealed against the conviction and sentence, claiming that the trial judge made several errors in the trial process.

The primary legal issues in this case were whether the trial judge correctly exercised his discretion to conduct a judge alone trial, whether the trial judge erred in his directions to the jury regarding witness memory, and whether the trial judge correctly instructed the jury on the principles of self-defence and accidental damage to property. The defence argued that the trial judge should have conducted a jury trial, as the defendant was not afforded the opportunity to challenge the witness's memory, and the trial judge did not adequately instruct the jury on the principles of self-defence and accidental damage to property.

The court found that the trial judge correctly exercised his discretion to conduct a judge alone trial, as the nature of the charges and the evidence presented warranted such a trial. The court also found that the trial judge did not err in his directions to the jury regarding witness memory, as the witness had provided a clear and detailed account of the incident. Regarding the principles of self-defence and accidental damage to property, the court found that the trial judge correctly instructed the jury on these principles, and the jury was able to consider the defences presented by the defendant.

The court dismissed the appeal and affirmed the conviction and sentence of the defendant. The court found that the trial judge had correctly exercised his discretion to conduct a judge alone trial and had not erred in his directions to the jury. The court also found that the jury had been adequately instructed on the principles of self-defence and accidental damage to property, and had considered the defences presented by the defendant. The appeal was therefore dismissed, and the conviction and sentence of the defendant were affirmed.

Orders

Orders of the court

See [169] to [209]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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