Aiden Barlow v Joel Wiseman

[2014] ACTSC 166

AIDEN BARLOW v JOEL WISEMAN
[2014] ACTSC 166 (14 May 2014)

APPEAL - IN GENERAL – Appeal against conviction – Assault occasioning actual bodily harm – Appeal dismissed

Evidence Act 2011 (ACT), s 165(1)(c)
Magistrates Court Act 1930 (ACT), Pt 3.10

Cole v The Queen [2010] NSWCCA 227
Hanel v Shoemark [2010] ACTSC 67
M v the Queen (1994) 181 CLR 487

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 110 of 2013

Judge:              Refshauge J
Supreme Court of the ACT

Date:               14 May 2014

IN THE SUPREME COURT OF THE       )
  )          No. SCA 110 OF 2013
AUSTRALIAN CAPITAL TERRITORY    )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:AIDEN BARLOW

Applicant

AND:JOEL WISEMAN

Respondent

ORDER

Judge:  Refshauge J
Date:  6 May 2014
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. On 4 December 2013, the Magistrates Court convicted Aiden Barlow of an offence of assault occasioning actual bodily harm and dismissed an alternative count of common assault.  The events that gave rise to the charge against Mr Barlow arose on the evening of 17 August 2013, when he and his partner went out to dinner and then into Civic.  Both of them were well affected by alcohol.  It appears that, in Civic, there was a meeting between Mr Barlow’s partner and a former boyfriend of hers, and she hugged him. 

1. That appears to have led to animosity between Mr Barlow and his partner and that continued when they ultimately arrived home.  It led to an altercation in the bedroom.  Mr Barlow’s partner then left the house and tried to find some assistance, and ultimately knocked on the door of a gentleman who took her in and called the police.  As a result of the police being called, Mr Barlow was charged as indicated.  On 16 December 2013, he appealed against the conviction.  There is no appeal against the sentence imposed on him, which was a sentence of two months’ imprisonment, fully suspended, with a good behaviour order for fifteen months. 

1. I have jurisdiction under Pt 3.10 of the Magistrates Court Act 1930 (ACT) to deal with appeals against convictions, and I set out in Hanel v Shoemark [2010] ACTSC 67 the approach that should be taken to such appeals. I apply them in this matter. In particular, it is important to recognise that the magistrate hearing the matter had the advantage of seeing and hearing the witnesses and, particularly where credibility is involved, that advantage can be quite significant.

1. In this case, after the police were called, a statement was taken from Mr Barlow’s partner and observations were made by the police officers of her demeanour at the time.  She was clearly very upset and sobbing.  When she arrived at the home of the neighbour, who took her in, she was seeking help and she did not initiate the suggestion that the police should be called. 

1. When it came to the hearing, she…