Gibbons v Perkins - [2021] ACTSC 254

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Gibbons v Perkins
Citation:	[2021] ACTSC 254
Hearing Date:	28 September 2021
DecisionDate:	28 September 2021
Before:	Mossop J
Decision:	See [63]
Catchwords:	CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal from conviction – offences of common assault, damage property and insulting behaviour – whether finding of guilt was unreasonable or could not be supported by the evidence –open to magistrate to apply own common sense – reasons of magistrate were sufficient – appeal dismissed
Legislation Cited:	Crimes Act 1900 (ACT), ss 26, 116(3), 392 Magistrates Court Act 1930 (ACT), s 218 Supreme Court Act 1933 (ACT), s 37O(2)(a)(i)
Cases Cited:	Acuthan v Coates (1986) 6 NSWLR 472 Finau v The Queen [2021] ACTCA 17 Fox v Percy [2003] HCA 22; 214 CLR 118 Smith (a pseudonym) v The Queen [2021] ACTCA 16; 16 ACTLR 91 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Parties:	Deon Gibbons ( Appellant) Matthew Perkins ( Respondent)
Representation:	Counsel J Moffett ( Appellant) K McCann ( Respondent)
Solicitors Marjason & Marjason Solicitors ( Appellant) ACT Director of Public Prosecutions ( Respondent)
File Number:	SCA 17 of 2021
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Special Magistrate Campbell Date of Decision: 20 April 2021 Case Title: Perkins v Gibbons Court File Numbers: CC2020/3900; CC2020/5906; CC2020/12156

MOSSOP J:

Introduction

This is an appeal from a decision of a special magistrate (the magistrate) finding three charges proved against the appellant. Those charges were:

(a)common assault, contrary to s 26 of the Crimes Act1900 (ACT) (CC2020/3900);
(b)behaving in an insulting manner in a public place, contrary to s 392 of the Crimes Act (CC2020/5906); and
(c)minor property damage, contrary to s 116(3) of the Crimes Act (CC2020/12156).

The prosecution case

The prosecution case was that on 13 December 2019, the complainant was driving her red Suzuki Swift westward on Drake-Brockman Drive in Higgins in the ACT when she noticed a white Suzuki Swift driving very close behind her. She believed the vehicle to be tailgating her.

The white vehicle passed her as she was waiting at the right turning lane at the intersection of Macnaughton Street and the complainant put up a rude finger at the driver of the vehicle. At that point, the driver of that vehicle also turned right, pulled over and got out of his vehicle on Macnaughton Street.

The driver, subsequently identified as the appellant, approached the complainant’s vehicle, reached through the open driver’s window and placed his right hand around her face, causing her pain and leaving blemishes on the left-hand side of her face. The appellant then pushed the complainant’s head back into the headrest aggressively. That was alleged to constitute a common assault (CC2020/3900). This conduct knocked the complainant’s prescription sunglasses off. The appellant then grabbed the sunglasses and threw them on the road, breaking them. That was alleged to constitute the damage property charge (CC2020/12156). The defendant then…

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 Gibbons v Perkins

Details

AGLC: Gibbons v Perkins [2021] ACTSC 254
Case: [2021] ACTSC 254
Decision Date

CaseChat Overview and Summary

Gibbons v Perkins [2021] ACTSC 254 involved an appeal against a decision of a special magistrate finding three charges proved against the appellant, Deon Gibbons. The charges were common assault, behaving in an insulting manner in a public place, and minor property damage. The prosecution case was that the appellant had assaulted the complainant, a female public servant, after she made an impolite gesture to him while he was driving behind her. The complainant alleged that the appellant reached into her car, grabbed her face, and pushed her head back into the headrest. She further alleged that the appellant threw her prescription sunglasses to the ground, breaking them, and verbally insulted her. Gibbons denied the allegations, claiming that he had never seen the complainant before and that she was following him. The magistrate found the complainant to be a compelling witness and found her to be a credible and reliable witness. The magistrate rejected the appellant’s evidence as implausible and found him guilty on all charges. The appellant appealed against the conviction, arguing that the findings of guilt were unreasonable or could not be supported by the evidence, that the magistrate erred in wholly rejecting his evidence, that the magistrate failed to provide adequate reasons for rejecting his evidence, and that the magistrate erred in finding guilt based on her “common sense” that his version of events was not plausible. The court dismissed the appeal, holding that the magistrate was entitled to reject the appellant’s version of events as implausible and that her reasons were sufficient. The court found that the magistrate properly assessed the evidence and was entitled to conclude that the complainant’s version of events was credible and reliable, while the appellant’s version was implausible. The court also held that the magistrate was entitled to apply her own common sense and life experience in assessing the probabilities of particular human behaviour and that her reasons appropriately addressed the circumstances of the case. The appeal was dismissed, and the conviction was upheld.

Orders