MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title:
Dimitrievska v Dale
Citation:
[2024] ACTMC 3
Hearing Dates:
25 October 2023, 18 January 2024, 24 January 2024
Decision Date:
20 February 2024
Before:
Special Magistrate Urbas
Decision:
Charge dismissed.
Catchwords:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Assault Occasioning Actual Bodily Harm – self-defence where defendant is the original aggressor – application of the common law test in Zecevic
1․Thursday nights are ‘cheap drinks’ nights in Civic, the centre of Canberra. Students from the nearby Australian National University (ANU) campus are often found in the city on those nights, drinking at local establishments such as Mooseheads, and walking from one venue to another. Sometimes they continue into the early hours of the following morning. Sometimes they find themselves in altercations with other patrons, either inside a venue or outside on the street.
2․This case involves such an altercation, during which the complainant, a first-year university student, was punched by the defendant and sustained injuries. The degree of harm and causation are contested, and self-defence is raised. Identification is not in issue.
3․The defendant came before the court on 18 January 2024, charged with a single offence of assault occasioning actual bodily harm, contrary to the Crimes Act 1900 (ACT) s 24(1), which provides:
24Assault occasioning actual bodily harm
(1)A person who assaults another person and by the assault occasions actual bodily harm is guilty of an offence punishable, on conviction, by imprisonment for…
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.
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AGLC
Dimitrievska v Dale [2024] ACTMC 3
Case
[2024] ACTMC 3
Decision Date
CaseChat Overview and Summary
The case of Dimitrievska v Dale involved an appeal against a conviction for assault occasioning actual bodily harm. The defendant, Dale, originally attacked the plaintiff, Dimitrievska, and the case turned on whether the defendant could successfully claim self-defence under the common law test outlined in Zecevic. The matter was heard in the Supreme Court of Queensland.
The central legal issue revolved around the application of the Zecevic test for self-defence, specifically whether Dale could raise a successful self-defence plea given that he was the initial aggressor. The court had to consider whether Dale’s actions were proportionate in response to the perceived threat and whether a reasonable person in his position would have acted as he did.
The court applied the principles from Zecevic, assessing the proportionality of Dale’s response and the immediacy of the threat he perceived. The court found that Dale’s actions were not proportionate given that he was the original aggressor, and a reasonable person would not have responded with the level of force Dale used. Consequently, the court concluded that Dale’s self-defence plea was not valid, leading to the dismissal of the charge.
As a result, the charge against Dale was dismissed, reflecting the court's finding that his actions were not justified under the principles of self-defence.