Kelly (a pseudonym) v Hucker - [2023] ACTSC 36

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Kelly (a pseudonym) v Hucker
Citation:	[2023] ACTSC 36
Hearing Date:	22 February 2023
DecisionDate:	7 March 2023
Before:	Mossop J
Decision:	1. The appeal is dismissed and the convictions are confirmed.
Catchwords:	APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal from findings of guilt – where appeal challenges findings of fact – where appellant found guilty of choking and common assault – whether magistrate failed to consider exculpatory evidence – whether mental element for common assault satisfied – whether any failure of the magistrate to return a verdict of not guilty on one ground should lead to doubt in relation to other grounds – turns on own facts – appeal dismissed
Legislation Cited:	Crimes Act 1900 (ACT), ss 26, 27 Magistrates Court 1930 (ACT), ss 207, 208, 218
Cases Cited:	Fox v Percy [2003] HCA 22; 214 CLR 118 Liberato v The Queen (1985) 159 CLR 507 McFarlane v Van Eyle [2022] ACTCA 68 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
Parties:	Ron Kelly (a pseudonym) (Appellant) Rachel Hucker ( Respondent)
Representation:	Counsel T Game SC and R El-Choufani ( Appellant) K McCann ( Respondent)
Solicitors Hugo Law Group (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 24 of 2022
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Lawton Date of Decision: 30 June 2022 Case Title: Hucker v [Ron Kelly] Court File Numbers: CAN1315/2022 CAN1316/2022 CAN1393/2022

MOSSOP J:

1․This is an appeal from a decision of a magistrate in a criminal case given on 30 June 2022. The appellant was found guilty of one count of choking contrary to s 27 of the Crimes Act 1900 (ACT) (Crimes Act) and two counts of common assault contrary to s 26 of the Crimes Act. In order to conveniently identify the counts in the course of these reasons they, will be referred to as follows:
(a)the choking charge (CC 2022/1393): choking contrary to s 27 of the Crimes Act;
(b)the punching charge (CC 2022/1315): common assault contrary to s 26 of the Crimes Act; and
(c)the slamming charge (CC 2022/1316): common assault contrary to s 26 of the Crimes Act.

2․The alleged victim of the offending was the 15 year old son of the appellant. The proceedings were heard on 27, 29 and 30 June 2022. At the conclusion of the hearing the magistrate gave an ex tempore judgment and found each of the offences to have been proved beyond reasonable doubt.
3․Because identification of the appellant would involve identification of the complainant (his son), the appellant has been referred to by a pseudonym and the names of the witnesses have been anonymised.

The appeal

4․The appeal is brought pursuant to s 208(1)(b) of the Magistrates Court Act 1930 (ACT) (MC Act). Jurisdiction to hear such an appeal is given by s 207 of the MC Act. The orders that may be made are…

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 Kelly (a pseudonym) v Hucker

Details

AGLC: Kelly (a pseudonym) v Hucker [2023] ACTSC 36
Case: [2023] ACTSC 36
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory has dismissed an appeal against a conviction for choking and common assault. The appellant, Ron Kelly (referred to by a pseudonym), was found guilty of choking his son and two counts of common assault. The appeal was dismissed on the grounds that the magistrate did not err in finding the appellant guilty beyond reasonable doubt.

The appeal raised three grounds: whether the magistrate erred in reconciling the evidence of the complainant and BK in relation to the punching charge, whether the magistrate ought to have had a doubt in relation to the slamming charge, and whether there should be a doubt in relation to the choking charge if the conviction for the punching charge was set aside. The court found that there was no error in the magistrate's approach or findings. The magistrate had found both the complainant and BK to be honest witnesses, and their evidence was consistent with the complainant's complaint to his teachers. The magistrate's findings on the slamming charge were also supported by the evidence of the complainant and BK.

The court noted that the appropriate starting point was to determine the choking charge and then the punching charge, as the allegations and evidence were such that it made sense to focus on the choking charge and the slamming charge and determine the punching charge in the context of the findings in relation to the choking charge. The court concluded that none of the grounds of appeal had been made out, and the appeal was dismissed. The convictions were confirmed.

Orders