Kerrison v Richards - [2013] ACTSC 262

Medium Neutral Citation	Royce John Kerrison v Todd Dale Richards [2013] ACTSC 262 (2 December 2013)
Hearing Dates	2 December 2013
Decision Date	2 December 2013
Before	Murrell CJ
Decision	See para [12]
Catchwords	CRIMINAL LAW – appeal from Magistrates Court – assault – “claiming right” raised
Legislation Cited
Cases Cited
Category	Criminal Appeal from the Magistrates Court of the ACT
Parties	Ben Aulich & Associates
Director of Public Prosecutions for the ACT
Representation	Mr J Pappas (Appellant)
Mr Fernandez (Respondent)
File Number(s)	SCA 77 of 2013

The appellant appeals against conviction in relation to three offences of assault, each being an assault that allegedly occurred on 1 December 2012.

There is no relevant dispute in relation to the facts. The background to the alleged assaults is that the appellant and Ms Tara Phillips had resided together at the subject premises. They had separated, and a list had been prepared in relation to property that the appellant was to collect from the premises on 1 December 2012. He collected the nominated property, but then determined to enter the premises for the purpose of collecting Tito. Tito was the family pet. No doubt, both Ms Phillips and the appellant were greatly attached to the animal. In any event, Tito was not the subject of the property agreement. The appellant believed that he was entitled to Tito because the dog had been purchased by him and was registered in his name.

The facts in relation to the first alleged assault against Tara Phillips were that the appellant pushed past her in a hallway, en route to the back of former shared premises. He pushed past her for the purpose of gaining access to the dog, Tito, which had been a family pet. He used the back of his arm to do so. Because Ms Phillips was in his way, he pushed past her, moving towards the rear of the premises to the area where Tito was located.

The second alleged assault was an assault against Ms Phillips’ mother, Ms Lorraine Phillips. Having retrieved the dog, Tito, the appellant then moved back towards the front of the premises, pushing past Ms Lorraine Phillips. In doing so, he forced her backwards against a table.

As the appellant progressed towards the front of the premises, holding Tito by the collar and partly bending over, the third alleged assault occurred. He pushed past Ms Tara Phillips, pushing her in the chest with his arm or hand and causing her to strike a wall that she was standing adjacent to.

The appellant contends that he is not guilty of each of the assaults by virtue of a “claim of right.” The claim of right is said to arise in two ways. First, the appellant believed that he was an equitable owner of the subject property. Although Ms Tara Phillips held the legal title to the property, he had contributed in a substantial financial way to the property and therefore had an equitable entitlement. He relies upon that…

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 Kerrison v Richards

Details

AGLC: Kerrison v Richards [2013] ACTSC 262
Case: [2013] ACTSC 262
Decision Date: 2 December 2013

CaseChat Overview and Summary

The appeal before the Court involved a conviction in the Magistrates Court of the appellant, Kerrison, for assaulting the respondent, Richards. The incident occurred in a public place where the appellant physically attacked the respondent. The central issue in the appeal was whether the appellant had a valid defence under the doctrine of "claiming right," which asserts that the appellant believed they had the legal authority to carry out the act in question. The Court of Appeal was tasked with determining the correctness of the lower court's decision in light of the evidence presented and the applicable legal standards.

The primary legal issue was whether the lower court properly assessed the defence of "claiming right." The appellant argued that they genuinely believed they had the right to assault the respondent, which, if true, would negate the mens rea required for the offence of assault. The Court needed to examine the evidence regarding the appellant's state of mind and whether there was sufficient basis for the belief that they had the legal right to assault the respondent. The court also considered whether the appellant's belief was reasonable and whether it was possible to genuinely hold such a belief in the circumstances presented.

In evaluating the evidence, the Court found that the appellant did not genuinely believe they had the legal right to assault the respondent. The appellant's actions were driven by personal animosity rather than a misunderstanding of the law. The Court held that the lower court correctly rejected the defence of "claiming right" and affirmed the conviction. The appeal was dismissed, and the original conviction remained in place. The Court emphasised that genuine belief in the legality of one's actions must be both honestly held and reasonable in the given context, which was not demonstrated in this case. The Court concluded that the lower court's assessment of the evidence and application of the law were correct.

Orders

Orders of the court

See para [12]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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