Michael Francis Buggy v Mathew Blow

MICHAEL FRANCIS BUGGY V MATHEW BLOW
[2013] ACTSC 113 (7 June 2013)

R v Mulcahy [2010] ACTSC 98
R v Liberato (1985) 159 CLR 507

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 68 of 2012

Judge:             Nield AJ
Supreme Court of the ACT

Date:              7 June 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 68 of 2012
AUSTRALIAN CAPITAL TERRITORY           )          

Michael Francis Buggy

Appellant

v

Mathew Blow

Respondent

ORDER

Judge:  Nield AJ
Date:  7 June 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. The conviction and sentence are confirmed.

1. The appellant has until 31/01/2014 to pay the fine.

1. I have an appeal by Mr Michael Francis Buggy against a conviction for assault upon Mr Kevin Mitchell on 16 July 2011.  The incident which gave rise to the charge against the appellant occurred at about 11:40 am on 16 July 2011 on a footpath adjacent to Callam Street between Hindmarsh Drive and Wilbow Street in Phillip.  Mr Mitchell was walking along the footpath in a generally southerly direction.  The appellant was riding a pushbike along the footpath in a generally northerly direction.  As it transpired, there was a collision between the pushbike being ridden by the appellant and Mr Mitchell.

1. The circumstances of the collision between the two of them led to what later occurred between them and, when I say “later”, I mean within seconds.  That there was a collision is not in dispute, although how the collision occurred is in dispute.  The appellant blamed Mr Mitchell for the collision for having dropped his shoulder into the appellant as the appellant was riding his pushbike past Mr Mitchell.  Mr Mitchell denied having dropped his shoulder into the appellant as the appellant was riding his pushbike past him.  Perhaps it is unnecessary to decide whether or not Mr Mitchell dropped his shoulder into the appellant as the appellant was riding his pushbike past Mr Mitchell because it is not that collision which is the assault, rather it is the aftermath of what happened.

1. The aftermath of what happened is that the appellant, wrongly, attacked Mr Mitchell.  He did so when Mr Mitchell was lying on the ground.  He placed his knee on the chest or stomach of Mr Mitchell, holding him onto the ground.  He then grabbed the hood of his jacket, at least this is the appellant’s version, and told the appellant not to do anything, not to follow him, otherwise he would assault him. 

1. It is this incident which gave rise to the charge against the appellant.  As to this incident, the aftermath of the collision, the appellant claimed that he acted in self defence because he believed that Mr Mitchell would arise from the ground and attack him and so, in that belief, he, as it were, got in first.

1. Part of what occurred between the appellant and Mr Mitchell was witnessed by the driver of an excavator, Mr Luke Epplestun.  Mr…