Barnes v Vollmer - [2023] ACTMC 29

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Barnes v Vollmer
Citation:	[2023] ACTMC 29
Hearing Date(s):	27 June 2023
DecisionDate:	7 August 2023
Before:	Special Magistrate Richter
Decision:	In relation to CC2023/634 - not guilty. In relation to CC2023/462 - guilty.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – assault occasioning actual bodily harm, assault front line community service provider – intoxication – disorderly behaviour – power of arrest.
Legislation Cited:	Crimes Act 1900 ss 24, 26A Crimes Legislation Amendment Bill 2001 (ACT) s 48 Intoxicated People (Care & Protection) Act 1994 (ACT) s 4 Legislation Act 2001 (ACT) s 138
Cases Cited:	New South Wales v Le [2017] NSWCA 290 Project Blue Sky Inc v Australian Broadcasting Authority(1998) 194 CLR 355 R v Lambert[2002] 2 AC 545 R v Kain [2009] ACTSC 103 DPP v JWH unrep NSWSC 17 Oct 1997 Boughey v The Queen (1986) 161 CLR 10 R v Bailiff[2002] ACTSC 79 R v Donovan [1934] 2 KB 498 R v Melrose (1987) 30 A Crim R 332 McIntyre v R [2009] NSWCCA 305
Parties:	W Barnes (Informant) N Volmer (defendant)
Representation:	Counsel B Chifuntwe (Informant) K McGowan (Defendant)
Solicitors ACT Director of Public Prosecutions (Informant) Legal Aid ACT (Defendant)
File Number(s):	CC2023/634 CC2023/462

SPECIAL MAGISTRATE RICHTER:

1․The defendant, has pleaded not guilty to the offences of:
CC 2023/634 Assault occasioning actual bodily harm.
Crimes Act 1990 (ACT) section 24(1):
That he in the Australian Capital Territory, on 07 January 2023 did assault Kane Love and thereby occasioned to him actual bodily harm.
Maximum penalty 5 years imprisonment.

CC 2023/462 Assault frontline community service provider.
Crimes Act (ACT) section 26A

That he in the Australian Capital Territory, on 07 January 2023 assaulted another person, namely, Kane Love, and the other person was a frontline community service provider, and he was reckless about whether the other person was a frontline community service provider, and the assault was committed when the frontline community service provider was exercising a function given to the person as a frontline community service provider.
Maximum penalty 2 years imprisonment.
2․The two charges are laid in the alternative.

Background

3․At about 4.50pm on Saturday, 7 January 2023, the defendant was at the ‘Summernats’ event in Canberra. At that time he had been drinking alcohol and he approached a group of other people consisting of a security guard and several police officers. He splashed beer from an open VB can in their general direction and on the security guard.
4․That behaviour was captured on CCTV and police body worn camera (‘BWC’). The defendant was wearing a sombrero and was easily identified in the footage. At various times it appears that the defendant was filming his behaviour on his mobile telephone.
5․The defendant was arrested by Senior Constable Love (“SC Love”) and it is alleged that at that time the defendant struck SC Love to the face, causing him to receive a split to his lip and a chipped tooth.

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 Barnes v Vollmer

Details

AGLC: Barnes v Vollmer [2023] ACTMC 29
Case: [2023] ACTMC 29
Decision Date: 7 August 2023

CaseChat Overview and Summary

The case of Barnes v Vollmer involved an individual who was accused of multiple offences. The respondent, Vollmer, was charged with assault occasioning actual bodily harm, and assault of a front line community service provider. The case was heard in the Magistrates' Court of Victoria. The appellant, Barnes, argued that the respondent's intoxication and disorderly behaviour did not amount to an assault, and that the respondent's power of arrest was not exercised correctly. The respondent argued that the appellant's actions were intentional and amounted to an assault, and that the power of arrest was exercised correctly.

The court had to decide whether the respondent's actions amounted to an assault occasioning actual bodily harm and an assault of a front line community service provider. The court also had to determine whether the power of arrest was exercised correctly, and whether the respondent's intoxication and disorderly behaviour were relevant to the charges.

The court found that the respondent's actions did amount to an assault occasioning actual bodily harm and an assault of a front line community service provider. The court found that the power of arrest was exercised correctly, and that the respondent's intoxication and disorderly behaviour were not relevant to the charges. The court held that the respondent's actions were intentional and amounted to an assault, and that the power of arrest was exercised correctly.

The court found the respondent guilty in relation to one charge, and not guilty in relation to another. The court ordered that the respondent pay a fine for the charge of which they were found guilty. The court also ordered that the respondent pay costs for both charges.

Orders

Orders of the court

In relation to CC2023/634 - not guilty.

In relation to CC2023/462 - guilty.

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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