Lukatela v Apostoloff - [2009] ACTSC 167

IVAN JOSIP LUKATELA v JOANNA THETA APOSTOLOFF [2009]
ACTSC 167 (17 December 2009)

APPEAL – appeal against Magistrate’s finding of guilt on charge of administering injurious substance with intent to cause pain and discomfort – whether Magistrate erred in rejecting self-defence – whether self-defence was raised on the evidence – whether Magistrate applied the proper test.

CRIMINAL LAW – self-defence – two limbs of test for self-defence – whether accused believed it was necessary to do what he or she did – whether accused had reasonable grounds to believe it was necessary to do what he or she did – accused’s belief that there were reasonable grounds for belief about need to act in self-defence is irrelevant to whether there were reasonable grounds for accused’s belief about need to act.

Crimes Act 1900 (ACT), subs 28(2)
Crimes (Sentencing) Act2005 (ACT), s 17

Lukatela v Apostoloff [2009] ACTSC 11
Osland v The Queen (1998) 197 CLR 316
R v Hendy [2008] VSCA 231
R v Portelli (2004) 10 VR 259
Virov The Queen (1978) 141 CLR 88
Zecevic v DPP (Vict) (1987) 162 CLR 645

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 115 of 2007

Judge: Penfold J
Supreme Court of the ACT

Date: 17 December 2009

IN THE SUPREME COURT OF THE     )
  )          No. SCA 115 of 2007
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:IVAN JOSIP LUKATELA

Appellant/Cross-respondent

AND:JOANNA THETA APOSTOLOFF
Respondent/Cross appellant

ORDER

Judge:  Penfold J
Date:  17 December 2009
Place:  Canberra

THE COURT ORDERS THAT:

The cross-appeal is dismissed.

The parties will be heard on the DPP’s appeal.

Introduction

Joanna Apostoloff was charged with one offence of administering an injurious substance with intent to cause pain and discomfort under subs 28(2) of the Crimes Act 1900 (ACT). On 3 December 2007 she appeared in the Magistrates Court, where the Magistrate found the offence proved, but did not record a conviction. The Director of Public Prosecutions (DPP) has appealed against the Magistrate’s failure to record a conviction. Ms Apostoloff has cross-appealed against the finding of guilt, and that matter is to be resolved before the DPP’s appeal is heard.

Background

The circumstances of the offence

At the time the offence was committed, Ms Apostoloff was a member of the Australian Federal Police (AFP), working in the regional watch-house at the City Police Station in Canberra.

On the night of 12 June 2006 Ms Apostoloff was on duty when the victim, Mr Helmhout, was arrested for breaching a protection order. He was conveyed to the watch-house for processing. In the course of the processing, Mr Helmhout was sprayed with OC foam (capsicum foam) by the officer-in-charge, Sergeant John Birch.

The incident was captured on CCTV; it is Ms Apostoloff’s spraying of Mr Helmhout that constitutes the offence charged.

Court processes

Ms Apostoloff pleaded not guilty to the charge, and on 3 December 2007 a contested hearing…

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 Lukatela v Apostoloff

Details

AGLC: Lukatela v Apostoloff [2009] ACTSC 167
Case: [2009] ACTSC 167
Decision Date: 17 December 2009

CaseChat Overview and Summary

Lukatela v Apostoloff involved an appeal against a finding of guilt for administering an injurious substance with intent to cause pain and discomfort. The case was heard in the Court of Appeal. The primary issue was whether the Magistrate erred in rejecting the claim of self-defence raised by the appellant. The court also had to determine if self-defence was properly raised on the evidence and whether the Magistrate applied the correct legal test.

The appellant argued that the Magistrate did not apply the correct test for self-defence. The court examined whether the accused believed it was necessary to administer the injurious substance and if they had reasonable grounds to believe it was necessary. The appellant's belief about the reasonableness of their grounds for self-defence was deemed irrelevant to whether there were actually reasonable grounds. The court found that the Magistrate did not apply the correct test, leading to a potential miscarriage of justice.

The Court of Appeal concluded that the Magistrate's rejection of self-defence was based on an incorrect application of the legal test. The appeal was allowed, and the matter was remitted to the Magistrates Court for reconsideration of the self-defence claim. The orders included dismissing the cross-appeal and scheduling a hearing on the Director of Public Prosecutions’ appeal.

Orders

Orders of the court

1. The cross-appeal is dismissed.

2. The parties will be heard on the DPP’s appeal.

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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