Lever v Ilievski

[2015] ACTSC 103

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Lever v Ilievski

Citation:

[2015] ACTSC 103

Hearing Date(s):

4 March 2015

DecisionDate:

8 May 2015

Before:

Burns J

Decision:

The appeal will be dismissed.

Category:

Principal Judgment

Catchwords:

CRIMINAL LAW – Particular Offences – offences against the person – assault occasioning actual bodily harm.

APPEAL – Appeals From and Control Over Magistrates – whether the finding of guilt was unsafe and unsatisfactory – whether the Magistrate erred in not applying the correct test for self defence – whether the Magistrate misdirected himself as to the use of good character – whether the sentence was manifestly excessive – appeal dismissed.

Legislation Cited:

Crimes Act1900 (ACT) s 24

Criminal Code 2002 (ACT) ss 31, 33

Cases Cited:

Dal Cortivo v The Queen (2010) 204 A Crim R 55

Gibbs v Willis [2013] ACTSC 26
R v Murphy (1985) 63 ALR 53
Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645

Parties:

Cameron Lever (Appellant)

Christopher Ilievski (Respondent)

Representation:

Counsel

Mr P Edmonds (Appellant)

Mr J Walker (Respondent)

Solicitors

Paul Edmonds Solicitor (Appellant)

Director of Public Prosecutions (Respondent)

File Number:

SCA 96 of 2014

Decision under appeal: 

Court/Tribunal:             ACT Magistrates Court

Before:  Special Magistrate Cush

Date of Decision:         17 October 2015

Case Title:  Ilievski v Lever

Court File Number:       CC13/10395

Burns J:

Background

1. On 17 October 2014, the appellant was convicted after a contested hearing in the ACT Magistrates Court of one charge of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act1900 (ACT). Upon conviction, a Good Behaviour Order for a period of 12 months was imposed.

1. By an Amended Notice of Appeal, the appellant appeals from the finding of guilt and the penalty imposed on the following grounds:

(a)the finding of guilt was unsafe and unsatisfactory;

(b)the Magistrate erred in not applying the correct test for self defence;

(c)the Magistrate misdirected himself as to the use of the appellants good      character; and

(d)the sentence was manifestly excessive.

1. At the hearing of the appeal, the appellant abandoned the appeal against sentence, which was clearly unsustainable in any event.

1. For the reasons I will give, the appeal must be dismissed, and the conviction and sentence imposed by the Magistrate confirmed.

The hearing before the Magistrate

1. The charge arose out of an incident which occurred early in the morning of 25 August 2013 at a fast food restaurant in Civic. The appellant and his male companion entered the restaurant as the complainant and his friends, including two females, were leaving. The Magistrate found that the appellant made a derogatory remark or remarks towards the group including the complainant. A verbal altercation then occurred between the complainant and the appellant. The Magistrate was satisfied that the complainant suggested to the appellant that they “go outside”, either orally or by a gesture. There was also some pushing between the complainant and the appellant. The complainant moved away from the appellant, but then returned in response to a…