Balchin v Bowman - [2010] NTMC 3

CITATION: Balchin v Bowman [2010] NTMC 003

PARTIES: VIVIEN BALCHIN

MARQUICE SMITH BOWMAN

TITLE OF COURT: Court of Summary Jurisdiction

JURISDICTION: Darwin

FILE NO(s): 20929896

DELIVERED ON: 18 January 2010

DELIVERED AT: Darwin

HEARING DATE(s): 23, 24 November 2009 & 15 January 2010

JUDGMENT OF: Ms Melanie Little SM

CATCHWORDS:

REPRESENTATION:

Counsel:
Prosecution: Ms Nobbs
Defendant: Mr Lee

Solicitors:
Prosecution: Summary Prosecutions
Defendant: Mr Cook, Royal Australian Navy

Judgment category classification: C
Judgment ID number: [2010] NTMC 003
Number of paragraphs: 52

IN THE COURT OF SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20929896
[2010] NTMC 003

BETWEEN:

VIVIENE LYNETTE BALCHIN
Plaintiff

AND:

MARQUICE SMITH BOWMAN
Defendant

REASONS FOR DECISION

(Delivered 18 January 2010)

Ms Melanie Little SM:
1. The defendant is charged with two counts. Count 1 is that on 5 September 2009 at Darwin he did unlawfully assault Joshua Streeter, a Police Officer in the execution of his duty and there was a circumstance of aggravation, namely that Joshua Streeter did suffer harm, contrary to s 189A(2)(a) of the Criminal Code (NT). Count 2 is that on the same date and at the same place he did resist a member of the Police force in the execution of his duty, contrary to s 158 of the Police Administration Act.
2. The Court was told that the charges arose in the context of a melee on Mitchell Street in Darwin city at approximately 4.00am on 5 September 2009. The Concise Oxford Dictionary definition of melee is a ‘mixed fight or skirmish’. After hearing evidence in the case, I think the word melee has a tendency to trivialise what was occurring on the night in question. The word riot is defined in the Concise Oxford Dictionary as ‘disorder, tumult, disturbance of the peace, outbreak of lawlessness on the part of a crowd’ and that probably more accurately describes what, on everyone’s version of events, was occurring that night. Whatever word is used, Mitchell Street, the road and footpath area outside of Discovery Nightclub and up to Mott Court was the scene of a very critical incident on the night in question. Estimates of numbers varied but at one point in the melee or riot it is said that up to 300 people were involved. Those people were male and they were charged with alcohol. What had started in Discovery Nightclub erupted when the patrons were outside.
3. Prior to evidence being taken, the Court was advised that the particulars with respect to count 2 were that having struck Officer Streeter, the defendant fled and was pursued by four Police Officers, including Officer Streeter. The defendant is said to have resisted by struggling, thrashing his arms and legs around and kicking the police. The Court was told that identification was not contested and the fact the defendant struck someone was not in issue. Notwithstanding those statements, the evidence must establish those matters beyond reasonable doubt.
4. The defendant pleaded not guilty and a hearing was conducted.…

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 Balchin v Bowman

Details

AGLC: Balchin v Bowman [2010] NTMC 3
Case: [2010] NTMC 3
Decision Date: 18 January 2010

CaseChat Overview and Summary

The case of Balchin v Bowman was heard in the Court of Summary Jurisdiction in Darwin. The defendant, Marquise Smith Bowman, a United States Marine, was charged with two counts: assaulting a police officer in the execution of his duty, and resisting a police officer in the execution of his duty. The charges stemmed from a large-scale altercation involving numerous individuals on Mitchell Street in Darwin. The court had to decide whether the defendant's actions were justified as defensive conduct under the Criminal Code, and whether he resisted arrest by the police.

The court found that the defendant had assaulted the police officer, but this was justified as defensive conduct because the defendant believed the conduct was necessary to defend himself and the conduct was a reasonable response in the circumstances as he perceived them. The court accepted the defendant's evidence that he did not know the person he struck was a police officer due to the effects of capsicum spray in his eyes. Consequently, the court found the defendant not guilty of assaulting a police officer.

Regarding the charge of resisting a police officer, the court found that the prosecution had not proven beyond reasonable doubt that the defendant resisted arrest. The court accepted the defendant's evidence that he was being sprayed with capsicum spray and moved his hands to protect his eyes and face during his apprehension. The court found no sound reasons to reject the defendant's evidence, and thus the defendant was found not guilty of resisting a police officer.

Orders