Grant v Carey - [2023] ACTSC 105

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Grant v Carey
Citation:	[2023] ACTSC 105
Hearing Date:	8 February 2023
DecisionDate:	8 February 2023
Reasons Date:	8 May 2023
Before:	Loukas-Karlsson J
Decision:	See [37]
Catchwords:	APPEAL – APPEAL FROM MAGISTRATES COURT – appeal from finding of guilt on charge of choking – whether Magistrate applied incorrect legal test – where respondent concedes error – error made out – appropriate disposition of appeal – matter remitted to Magistrates Court
Legislation Cited:	Magistrates Court Act 1930 (ACT) pt 3.10, ss 128, 214 Crimes Act 1900 (ACT) s 28
Cases Cited:	Ji v Stone [2023] ACTSC 54 Lukatela v Birch [2008] ACTSC 99; 223 FLR 1 McFarlane v Van Eyle [2022] ACTCA 68
Parties:	Ross James Grant (Appellant) Julian Carey (Respondent)
Representation:	Counsel A McKenna (Appellant) S Janackovic (Respondent)
Solicitors Hugo Law Group (Appellant) ACT Director of Public Prosecutions
File Number:	SCA 28 of 2022
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 29 June 2022 Case Title: Carey v Grant Court File Number: CC2020/4557

LOUKAS-KARLSSON J

Introduction

On 8 February 2022 I made the following orders:

(a)Appeal upheld.
(b)The order made by Magistrate Cook on 29 June 2022 in relation to CC2020/4557 is set aside.
(c)Matter remitted to Magistrate Cook for further hearing and decision according to law.

Reasons were reserved and reasons now follow.

Appeal

This is an appeal pursuant to part 3.10 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act).

The appellant appeals from the finding of guilt on the charge of choking on the ground that the learned sentencing Magistrate erred in finding the appellant guilty by finding that recklessness on the part of the appellant made out the offence of intentionally and unlawfully choking, suffocating or strangling in contravention of s 28(2)(a) of the Crimes Act 1900 (ACT).

The appellant seeks that the conviction be set aside in relation to the charge of choking.

I note at the outset that the respondent conceded that an error of law has been established. The respondent, who I will refer to as the prosecution for the sake of clarity, advanced two alternative dispositions available to the Court:

(a)That the appeal should be dismissed and the finding of guilt remain in place notwithstanding the conceded error.
(b)If the primary position is rejected, the matter should be remitted to the Magistrates Court for determination according to law.

I will deal first with the asserted error, conceded by the prosecution, before outlining my reasons concerning the appropriate disposition of the appeal.

Nature of Appeal

An appeal under s 214 of the Magistrates Court Act is an appeal by way of rehearing which requires an appellant to show legal, factual or discretionary error on the part of the Magistrate: McFarlane v Van Eyle [2022] ACTCA 68 at [20], Lukatela v Birch [2008] ACTSC 99; 223 FLR 1 at [18]. See also Ji v Stone [2023] ACTSC 54 at [143]-[156].

Section 218…

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 Grant v Carey

Details

AGLC: Grant v Carey [2023] ACTSC 105
Case: [2023] ACTSC 105
Decision Date

CaseChat Overview and Summary

In the case of Grant v Carey, the appellant contested the conviction and sentence for assault occasioning actual bodily harm. The dispute centred on the application of the appropriate legal test by the Magistrate, who found the appellant guilty based on the evidence of the complainant, who alleged that the appellant had choked her. The appellant argued that the Magistrate had misapplied the legal test of recklessness instead of intention in his assessment of the choking incident. The appeal was heard in the appellate court, which was tasked with determining whether the Magistrate's decision was legally sound.

The central legal issue was whether the Magistrate correctly identified the appropriate legal test for the charge of assault occasioning actual bodily harm in relation to the choking incident. The appellant contended that the correct test was one of intention, not recklessness, and that the Magistrate's reliance on the complainant's evidence in finding the appellant reckless was an error. The appellate court needed to assess the Magistrate's application of the law and the factual findings that underpinned the decision.

The appellate court found that the Magistrate's acceptance of the complainant's evidence and rejection of the appellant's version of events was clear. However, the court also noted that the Magistrate did not explicitly state the factual findings that supported the finding of recklessness during the hearing or sentencing. The appellate court concluded that it was not possible to discern the precise facts as found by the Magistrate, making it difficult to apply the correct legal test. Consequently, the court determined that the appeal should be allowed, and the conviction and sentence were quashed.

The appellate court ordered the quashing of the conviction and sentence, and the matter was remitted to the Magistrates Court for a rehearing in accordance with the correct legal principles.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Further, the appellant referred to the following comments:I’m satisfied the defendant had hung onto the bag in circumstances where [the complainant] was laying on the bed holding onto the bag and he was applying force to recover it.And on his own evidence that he wasn’t sure where his left forearm was moving conceding that it was close to her neck or throat of the complainant. That he was reckless in such circumstances, knowing the risk or the possibility that he may, in fact, apply force directly to the complainant’s neck or throat area and certainly the upper chest area. That he was in a heightened state and that he was in pursuit to recover the bag and he pushed on regardless against the foreseeable circumstances.I’m satisfied the complainant was consistent in her account under extensive cross-examination about the order of what had occurred. I accept there is limited evidence as to the injury on the neck or throat that is raised by the defendant and supported by the lack of medical evidence to support the same and the photographic evidence equally.However, I am satisfied the force was not great but I am satisfied beyond a reasonable doubt it occurred having regard to the evidence provided by the complainant, both the father and the mother as I say, police the next day and her friend, Ms Clancy. Also, of course, I reject the defendant’s version of events and I accept that of the complainant on that particular aspect. I do so because I found the defendant to be selective, inconsistent and unreliable on important pieces of evidence that I’ve earlier referred where his version of events in relation to the charge is different from that of the complainant. I reject his versions on the specific elements of the offence being established where they are contrary to the evidence of the complainant. (emphasis added) The substance of the Magistrate’s decision tends to suggest that the Magistrate had, in fact, accepted the complainant’s evidence concerning the choke, as can be gleaned from the above extract. The Magistrate stated that he accepted the complainant’s evidence and that he rejected the appellant’s evidence. In my view the Magistrate’s acceptance of the complainant’s version of events is consistent with his finding of guilt with respect to the punches to the complainant’s face which were occurring simultaneously with the choking and which were denied by the appellant. The Magistrate made a finding of guilt with respect to the charge of assault occasioning actual bodily harm. The appellant submitted that his Honour accepted the appellant’s evidence and placed obvious reliance on it in coming to the erroneous finding of recklessness. This submission in my view is not necessarily consistent with the magistrate’s acceptance of the complainant’s evidence as set out above. Importantly for the issue of that I must resolve, the Magistrate did not outline the findings of fact which underpinned the “reckless choke” during the hearing or during the sentencing. The Magistrate’s fact finding is clouded by his Honour’s erroneous decision concerning the availability of recklessness as the relevant legal test. Discerning the relevant facts as found by the Magistrate for the application of the correct legal test of intention becomes somewhat amorphous in the circumstances of this case. In my view, attempts at divining the facts as found by the Magistrate for the purpose of applying the correct legal test on appeal amount to guesswork and speculation.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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