Kerrison v Richards
[2013] ACTSC 262
•2 December 2013
| 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 entitlement as enabling him to go onto the property and move freely about upon it. The second way in which the claim of right is said to arise is that the appellant believed that he had an entitlement to the dog, Tito. He believed that he had that entitlement as a matter of law by virtue of having purchased the dog and registered it in his name.
I am prepared to accept, for the purposes of argument, that the appellant believed that he was an equitable owner of the property and that he had a legal entitlement to the dog, Tito. The question is whether those entitlements gave rise to a relevant “claim of right.”
It is necessary to examine the elements an offence of common assault. Critical to such an offence is the unlawful application of force. The question then arises as to what is “unlawful.” Typical examples of the lawful application of force are applications of force where there is actual or implied consent; for example, during a medical procedure where there has been actual consent, or in a crowd where there is implied consent to being accidentally bumped.
Where a “claim of right” is raised as a “defence” in criminal proceedings, the “defence” can only apply where the “claim of right” attaches to a relevant element of the offence. In this case, the appellant has not made a “claim of right” in relation to an entitlement to push Ms Tara Phillips and her mother. The assertion is that he had an entitlement to remove the dog, Tito, and that he had an entitlement to move about on the property, but not that he had an entitlement to push people.
If the appellant had been charged with stealing the dog, then he may have been in a position to raise a “defence” of “claim of right” and succeed upon it, because his state of mind would have gone to the element of removing property without the consent of the owner. If he had been charged with trespass, then he could have raised a “defence” of “claim of right” in relation to his belief that he had an equitable entitlement to the property and to be upon the property. But the facts in this case do not raise any relevant “claim of right”, so far as an entitlement to use force is concerned.
For these reasons, I find that the “defence” is not established. Upon the facts, the prosecution has proved each of the offences beyond reasonable doubt.
The convictions and orders of the Magistrates Court are confirmed.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Chief Justice Murrell.
Associate:
Date: 23 December 2013
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