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Horan v Ferguson

Horan v Ferguson

Case [1994] QCA 375 23 September 1994

Consent

Assault

Honest and Reasonable Mistake

Criminal Law

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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…

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 Horan v Ferguson

Details

AGLC: Horan v Ferguson [1994] QCA 375
Case: [1994] QCA 375
Decision Date: 23/09/1994

CaseChat Overview and Summary

The appeal in Horan v Ferguson was heard by the Supreme Court of Queensland Court of Appeal. The appellant, a school teacher, was convicted by a Stipendiary Magistrate of nine charges of common assault on young girls. The appellant appealed against the findings of guilt. The Court of Appeal allowed the appeal and set aside the verdicts of guilty, directing that a judgment of acquittal be entered in respect of each offence. The Court of Appeal found that the magistrate had failed to consider whether the appellant's conduct was authorised, justified or excused by law. Specifically, the Court found that the magistrate had not considered whether the appellant's conduct was of a kind that fell within the teacher-pupil relationship and thus implicitly consented to, or whether the appellant had an honest and reasonable belief that the complainants consented to the touching. The Court held that the magistrate's failure to consider these issues resulted in a miscarriage of justice and the appeal should be allowed.

Orders