Adam Tweddle v William Robert Collett
[2013] ACTSC 226
•22 October 2013
ADAM TWEDDLE v WILLIAM ROBERT COLLETT
[2013] ACTSC 226 (22 October 2013)
CRIMINAL LAW – appeal from Magistrates Court – appeal against conviction – self defence – whether Magistrate erred in directing himself as to the evidence of the appellant – whether the magistrate treated the appellant as a special class of witness – where Magistrate treated evidence with caution due to time elapsing and reflection raising risk of concoction – whether Magistrate erred in finding response unreasonable in the circumstances – where no medical or other evidence entitling finding on extent of force used based on complainant’s injuries
CRIMINAL LAW – appeal from Magistrates Court – self defence – whether appellant not guilty of the offence by virtue of self defence – where events occurred quickly – where complainant unsatisfactory witness – where nothing to enable rejection of appellant’s evidence
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 11 of 2013
Judge: Burns J
Supreme Court of the ACT
Date: 22 October 2013
IN THE SUPREME COURT OF THE )
) No. SCA 11 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
ADAM TWEDDLE
Appellantv
WILLIAM ROBERT COLLETT
Respondent
ORDER
Judge: Burns J
Date: 22 October 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal is allowed.
The conviction and penalty imposed by the Magistrate are set aside and a verdict of not guilty is substituted.
The respondent is to pay the appellant’s costs of the appeal and also of the proceedings in the Magistrates Court, such costs to be either agreed by the parties or assessed
It is clear to me that the learned Magistrate who found the appellant guilty of the offence of assault occasioning actual bodily harm made at least two errors in concluding that the appellant was guilty of that offence.
The first is that he directed himself as to the way in which he should approach the evidence of the appellant, in such a way as to effectively treat the appellant as a particular class of witness who required closer scrutiny:
The [appellant’s] evidence was given in calmer and more coherent fashion. The effect of his evidence was to repeat the version of events that he gave in his record of interview. However, it was clear that he had had the opportunity to reflect on his claim of self-defence. He said that he had had a lot more time to think about the events.
As a consequence, I treat with some caution his more clearly articulated rationale for self defence given in oral evidence and in particular his statements about his state of mind when he struck [the complainant]. There is obviously a significant risk that having reflected for a substantial period of time since the events in question and during a period where he was subject to a criminal charge involving an issue of self defence, that his stated state of mind does not accurately reflect his actual state of mind at the time.
In my opinion, that was not a correct approach to take to the evidence given by the appellant on the question of self defence.
Secondly, in determining that the Crown had negatived the second leg of the self defence test, the reasonableness of the response in the circumstances, his Honour took into account a conclusion which he reached about the amount of force that the appellant had applied in the physical interaction between him and the complainant which resulted in the injury to the complainant, based upon the nature of the injury sustained by the complainant.
There was simply no evidence before his Honour to entitle him to make any finding about the extent of force used by the appellant in the circumstances of the confrontation between him and the complainant, based upon the injury that was sustained by the complainant.
In fact, the only medical practitioner who was called by the prosecution in the case before the Magistrate indicated that he had no experience in determining the amount of force which would be required in order to occasion such an injury.
In my opinion, the Magistrate fell into error with respect to both of those aspects of his summing up and determination of the issue of guilt. Having determined that the Magistrate fell into error, it is now for me, based upon my reading of the evidence, to determine the appropriate outcome.
In my opinion, the prosecution has not negatived self defence with respect to those actions that were said to constitute the offence of occasioning actual bodily harm. It is clear that these events occurred very quickly. It is also clear that the complainant, with respect, was a most unsatisfactory witness. The evidence given by the appellant before the Magistrate clearly raised the proposition he was acting in self defence.
There is nothing, as far as I can determine, in the evidence which would enable me to reject the evidence which was given by the appellant.
In my opinion, the appeal should be allowed. The conviction and penalty imposed by the Magistrate should be set aside and a verdict of not guilty should be substituted.
I will order that the respondent pay the appellant’s costs of the appeal and also of the proceedings in the Magistrates Court, such costs to be either agreed by the parties or assessed.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 15 November 2013
Counsel for the Appellant: Mr J Lawton
Solicitor for the Applicant: Ben Aulich & Associates
Counsel for the Respondent: Ms S McMurray
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of Hearing: 22 October 2013
Date of Judgment: 22 October 2013
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