IN THE COURT OF APPEAL [1994] QCA 375
SUPREME COURT OF QUEENSLAND
C.A. No. 85 of 1994
Brisbane
[Horan v. F]
BETWEEN:
GLENN WILLIAM JOHN HORAN
v.
F Appellant Fitzgerald P. McPherson JA. Demack J.
Judgment delivered 23/09/94
Separate reasons for judgment of each member of the court. All concurring as to the orders to be made.
Appeal allowed. In respect of each offence, set aside verdict of guilty and direct that a judgment of acquittal be entered.
CATCHWORDS:CRIMINAL LAW - Sexual offences - Appellant school teacher convicted of 9 complaints of aggravated assault - 7 complainants involved, aged between 10 and 13 years - complaints related to patting of the complainants' buttocks - whether such action amounted to a common assault.
EVIDENCE - Video-taped evidence - transcripts and videos contained irrelevant material, opinions of complainants and a number of inappropriate questions - s.93A Evidence Act
| Counsel: | Mr. S. Herbert Q.C. for the appellant Mr. P. Ridgway for the respondent |
Solicitors: | C.R. Smith and Associates for the appellant Director of Prosecutions for the respondent |
Hearing Date: 22/06/94
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 85 of 1994
| Before | Fitzgerald P. McPherson JA. Demack J. |
[Horan v. F]
BETWEEN:
GLENN WILLIAM JOHN HORAN
v.
F Appellant
REASONS FOR JUDGMENT - THE PRESIDENT
Judgment delivered 23/09/94
The circumstances of this appeal are set out in the judgments of the other members of the Court and need not be repeated. The appeals can be allowed on the basis which they indicate, and I agree that they should be allowed and verdicts of acquittal entered. However, I think it preferable to add to what is said by the other members of the Court on a point of principle which is raised by these charges, which seems likely to arise with increasing frequency in modern social conditions.
In broad terms, under the Criminal Code, any touching of another person without his or her consent (and, in some circumstances which do not here need to be considered, with consent), is an assault, and every assault is unlawful unless it is authorised or justified or excused by law: Code, sections 245 and 246. None of the provisions which authorise, justify or excuse an assault apply to all the offences alleged against the appellant, although section 280 may have application in relation to some of the appellant's conduct. It therefore becomes necessary to consider whether the prosecution proved not only that the appellant touched each of the complainants but that she did not consent to that touching: Lergesner v. Carroll (1991) 1
Qd.R. 206.
In England also, any touching of a person, however slight, may constitute an offence, known as battery, not assault, although the nomenclature is unimportant. Again, the touching is generally lawful if the person touched has consented to the touching: In re F (Mental Patient: Sterilisation) (1990) 2 A.C. 1, 72. There, Lord Goff of Chieveley, after referring to the "principle ... that everybody is protected not…
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- AGLC
- Horan v Ferguson [1994] QCA 375
- Case
- [1994] QCA 375
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Orders
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Evidence
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