NS v Gribble
[2021] ACTSC 108
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | NS v Gribble |
Citation: | [2021] ACTSC 108 |
Hearing Date: | 1 June 2021 |
DecisionDate: | 1 June 2021 |
Before: | Elkaim J |
Decision: | See [12] |
Catchwords: | CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Appeal against conviction – common assault – physical exchange between police officer and appellant – error established – appeal allowed – conviction set aside |
Legislation Cited: | Criminal Code 2002 (ACT) |
Parties: | NS (Appellant) S Gribble (Respondent) |
Representation: | Counsel G Meikle (Appellant) D Swan (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 8 of 2021 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 16 February 2021 Case Title: NS v Gribble Court File Number: CH 836 of 2020; 837 of 2020; 838 of 2020 |
ELKAIM J:
On 16 February 2021 the appellant was convicted of common assault by Magistrate Cook. The conviction was a result of an incident at school on 22 October 2020.
Police officers attended the school in answer to a request for their assistance. When they arrived, there were a group of school children who they wished to talk to.
The appellant was one of that group. Before she could be spoken to, she set off from the group, apparently to talk on her mobile telephone to someone from whom she was seeking some advice. A police officer followed her and a physical exchange occurred between the police officer and the appellant.
Importantly, the Magistrate found that the police officer’s initial physical contact with the appellant was, in effect, unlawful.
The learned Magistrate’s characterisation of that exchange is what is in issue in this appeal. As mentioned, the Magistrate took the view that the police officer in her actions had not acted lawfully. However his Honour then went on to examine what the appellant did to the police officer and took the view that her actions were entirely disproportionate to what the police officer had done to the appellant. In other words, he compared the reaction to the action.
There has been some debate before me about whether that was the correct test. The difficulty however is that the learned Magistrate has, in my view, either misinterpreted or misdescribed the actions of the police officer. In his decision, (Transcript page 48) he says that on the police officer’s evidence:
She places her hand upon your either shoulder, on her evidence, and from Senior Constable Adams’ perspective as a corroborator, about your torso or the upper arm.
The word “either” is a little confusing but it may be that he is referring to one shoulder or the other or perhaps there is a typographic error. It does not really matter.
On the next page of the transcript there is, for current purposes, what is probably the most important paragraph in the judgment where the learned Magistrate says:
Here you strike out at Constable Solley as a response to her application of touching your shoulder. In relation to those matters, as was identified in the case of R v Zecevic that even if you were acting out in self defence as might arise from the interaction between you and the Constable who had not had any lawful reason for the initial placing of her hands upon you, that reaction by you in response to that in those circumstances is excessive force, and as I say, done at a location and an area to have immediate effect, being at the head, a vulnerable part of a person’s body.
The Magistrate has clearly proceeded on the basis that the Constable touched the appellant’s shoulder. I have had the benefit of viewing the video footage taken by Constable Adams. The interaction on the video is very brief, but it shows clearly that the Constable did not only “touch” the shoulder of the appellant. She did a great deal more. The immediate effect of that is that his Honour’s comparison of the relative actions of the two participants must fall away. Error has therefore been displayed on the part of the learned Magistrate.
The question then arises as to what to do about this error. On one approach it could be sent back to the Magistrate’s Court for a re-hearing. Having regard to the nature of the offence, that would seem to me to be in itself disproportionate. The other alternative is to set aside the conviction which I think is the appropriate way to proceed.
This approach is also consistent with the Crown pointing out that the Magistrate had dealt with the matter under the Criminal Code2002 (ACT) when it was the Common Law that was actually applicable.
Accordingly, I make the following orders:
(i)The appeal is allowed.
(ii)The conviction (CC2020/836) is set aside.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim Associate: Date: 2 June 2021 |
Amendments
2 June 2021Paragraph [5]:
Insert “As mentioned” at the beginning of the second sentence.
Paragraph [11]:
Replace “that” with “had”.
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