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DALL v Police

DALL v Police

Case [2008] SASC 85 4 April 2008

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SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DALL v POLICE
[2008] SASC 85
Judgment of The Honourable Justice Debelle
4 April 2008
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SETTING ASIDE AND AMENDMENT - CONVICTIONS
Appellant convicted of indecent assault – whether assault was intentional or accidental – whether prosecution case established that there was not a reasonable possibility that the touching was accidental – appeal allowed – conviction set aside.
Magistrates Court Act 1991 s 42; Justices Act 1921 s 177, referred to.
Bridge v The Queen (1964) 118 CLR 600; Coghlan v Cumberland [1898] 1 Ch 704; Cutter v The Queen (1997) 71 ALR 638; Knight v The Queen (1992) 175 CLR 495; Kural v The Queen (1987) 162 CLR 502; Laurie v Nixon (1991) 162 LSJS 16; Plomp v The Queen (1963) 110 CLR 234; Taylor v Hayes (1990) 53 SASR 282, applied.
Azzopardi v The Queen (2001) 205 CLR 50; Barca v The Queen (1975) 133 CLR 82; Parker v The Queen (1963) 111 CLR 610; Police v Cadd (1997) 69 SASR 150; Police v Dorizzi (2002) 84 SASR 416; Saad v The Queen (1987) 61 ALJR 243; T v Medical Board of SA (1992) 58 SASR 382; Weissensteiner v The Queen (1993) 178 CLR 217, considered.

DALL v POLICE
[2008] SASC 85
Magistrates Appeal

DEBELLE J. This is an appeal from a conviction for an indecent assault.
The prosecution case was that the appellant had indecently assaulted the victim by touching her right breast. At about 11:00 pm on 18 March 2006 the victim and her husband were walking in an easterly direction on the southern footpath of Rundle Street, Adelaide. The prosecution case was that the appellant and two male companions were approaching the victim and her husband from the opposite direction. It was alleged that as the appellant walked past the victim, he put his hand on her right breast. It is common ground that at this time Rundle Street was crowded with people. The victim’s evidence was that “It was just a sea of people”.
The victim’s evidence was that she was walking along Rundle Street with her husband. Her husband was on her left side close to the kerb. The appellant walked past the victim on her right side. She said that, as the appellant walked past, she felt the appellant’s hand on her breast. It was the palm of his hand. His hand remained on her breast for a short time. She described the time in these terms:
I can say it felt like forever but it would have been just moments. What are we looking at? One and maybe a couple of seconds.
She described it as quite a forceful touching. She said that the appellant had grabbed her breast. She did not see the appellant’s hand. She first became aware of it when she felt it on…

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 DALL v Police

Details

AGLC: DALL v Police [2008] SASC 85
Case: [2008] SASC 85
Decision Date: 4 April 2008

CaseChat Overview and Summary

The appellant, Dall, was convicted of indecent assault. The conviction was set aside by the Court of Appeal, which found that the prosecution had not established beyond reasonable doubt that the assault was intentional. The dispute arose from an incident where Dall was alleged to have touched the breast of a woman without her consent. The case was heard in the Magistrates’ Court of Victoria, and Dall appealed to the Court of Appeal.

The central legal issue in the appeal was whether the prosecution had proved that Dall's actions were intentional and not accidental. The Court of Appeal had to consider whether the evidence presented by the prosecution was sufficient to exclude the possibility that the assault was accidental. This required an examination of the nature of the touching, the context in which it occurred, and the subjective intentions of Dall at the time of the incident.

In assessing the appeal, the Court of Appeal held that the prosecution had failed to eliminate the reasonable possibility that the touching was accidental. The evidence did not sufficiently demonstrate that Dall's actions were intentional and aimed at achieving a sexual gratification. The Court found that the prosecution had not proved the necessary mens rea to establish the offence of indecent assault. As a result, the conviction was set aside, and the appeal was allowed.

No further orders were made by the Court of Appeal beyond the setting aside of the conviction.

Orders