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Police v McGuire

Police v McGuire

Case [2019] NSWLC 10 18 January 2019

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Local Court

New South Wales

Medium Neutral Citation: Police v McGuire [2019] NSWLC 10
Hearing dates: 6 February 2018, 12, 13 November 2018
18 January 2019 (further submissions)
Decision date: 18 January 2019
Jurisdiction: Criminal
Before: Magistrate Tsavdaridis
Decision:
The Defendant is found not guilty of two counts of common assault, contrary to s.61 of the Crimes Act 1900 (NSW) (Sequences 1 and 2)

Catchwords:
CRIMINAL LAW - common assault - defence case - whether Defendant’s conduct intentional - whether Defendant’s conduct without lawful excuse - self-defence - where Defendant was a carer and disability support worker in a group home - where Defendant’s conduct was alleged to be a common assault on two autistic and cognitively impaired residents - where alleged victims were young adult females - whether the Defendant’s conduct was a breach of the criminal law or whether he performed his duties poorly or negligently - whether Defendant’s actions constituted excessive force - where Defendant physically restrained the alleged victims - Held: lawful excuse established - Held: self-defence established

Legislation Cited:
Crimes Act 1900 (NSW) ss.61, 418, 419
Evidence Act 1995 (NSW) ss.141(1) and (2), 177

Cases Cited:
Attwood v R (1960) 102 CLR 353; [1960] HCA 15
Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7
Colosimo & Ors v Director of Public Prosecutions (NSW) [2006] NSWCA 293
Fleming v R (1998) 197 CLR 250; [1998] HCA 68
Morgan v Colman (1981) 27 SASR 334
R v Conlon (1993) 69 A Crim R 92
R v Katarzynski [2002] NSWSC 613
R v Lawson and Forsythe [1986] VR 515; (1985) 18 A Crim R 360
R v Lister [2009] QCA 368
R v Marshall (unreported, NSWCCA, 17 July 1990)
R v Murphy (1985) 4 NSWLR 42
R v Slater (1987) 44 SASR 136
R v Stokes and Difford (1990) 51 A Crim R 25
R v Timbreza [2012] NSWDC 142
Smith v R [2007] NSWCCA 135
Woolmington v DPP [1935] AC 462
Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; (1987) 25 A Crim R 163; [1987] HCA 26

Category: Principal judgment
Parties: NSW Police (Prosecution)
Thomas Francis McGuire (Defendant)
Representation: Solicitors:
Ms J Palmer, Snr Sgt (Police Prosecutor)
Mr S O’Connell (O’Brien Criminal and Civil Solicitors) (Solicitor for Defendant)

File Number(s): 2017/34787

Judgment

Overview

Mr Thomas McGuire (“the Defendant”) was charged with two counts of common assault, against two alleged victims, contrary to s.61 of the Crimes Act 1900 (NSW).
The Court Attendance Notice for Sequence 1 particularised the offence of common assault on Ms Suzanne Kauley as having taken place at 6.00 p.m. on 2 March 2016 at Galston.
The Court Attendance Notice for Sequence 2 particularised the offence of common assault on Ms Kathryn Connell as having taken place at 7.20 a.m. on 6 March 2016 at Galston.
The Defendant entered a plea of not guilty in respect of both charges and the matter proceeded to a defended hearing on three days, some…

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 Police v McGuire

Details

AGLC: Police v McGuire [2019] NSWLC 10
Case: [2019] NSWLC 10
Decision Date: 18 January 2019

CaseChat Overview and Summary

The case of Police v McGuire involved a carer and disability support worker who was accused of common assault on two autistic and cognitively impaired young adult females in a group home. The defendant was required to demonstrate that his actions were justified as a lawful excuse, specifically under the doctrine of self-defence. The court had to determine whether the defendant's conduct was intentional, whether it was without lawful excuse, and whether it constituted excessive force.

The legal issues before the court were whether the defendant's actions breached the criminal law or if he merely performed his duties poorly or negligently. The court needed to decide if the defendant's use of physical restraint against the alleged victims was justified under self-defence, given the circumstances of the case. The court had to assess the nature of the defendant’s conduct, the context in which it occurred, and the extent to which it was necessary to protect the safety and well-being of the individuals involved.

In reaching its decision, the court found that the defendant had established a lawful excuse for his conduct. The evidence presented indicated that the defendant's actions were necessary to protect himself and others from harm, given the volatile and unpredictable nature of the alleged victims' behaviour. The court concluded that the defendant's use of physical restraint was reasonable and proportionate to the situation, thereby satisfying the requirements for self-defence. As a result, the defendant was acquitted of the charges of common assault.

The court ordered that the defendant be found not guilty of the two counts of common assault, as alleged under s.61 of the Crimes Act 1900 (NSW). The decision underscores the importance of context and necessity in determining the legality of self-defence in cases involving vulnerable individuals.

Orders

Orders of the court

The Defendant is found not guilty of two counts of common assault, contrary to s.61 of the Crimes Act 1900 (NSW) (Sequences 1 and 2)

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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Citations

AGLC Citation

Police v McGuire [2019] NSWLC 10

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 12 of 12 shown

R v Slater
[2019] NSWDC 471 Para 61

…In R v Slater (1987) 44 SASR 136, the South Australian Court of Criminal Appeal dismissed a conviction appeal in which, following a trial by jury, a carer was found guilty of assault occasioning actual bodily harm as a result of kneeing an intellectually disabled patient with severe behavioural problems to the lower…
R v Timbreza
[2012] NSWDC 142 Para 64

…In R v Timbreza [2012] NSWDC 142, a carer, employed as an assistant in nursing at an aged care facility, pleaded guilty and was sentenced in the District Court of NSW to full-time imprisonment in relation to eight counts of aggravated indecent assault and four counts of common assault of a 91 year old man suffering…
R v Lister
[2009] QCA 368 Para 62

…In R v Lister [2009] QCA 368, the Queensland Court of Appeal dismissed a sentence appeal in which, following a trial by jury, a carer was found guilty and sentenced in relation to one count of unlawful deprivation of personal liberty and two counts of common assault of two young boys suffering from severe autism…
Smith v Regina
[2007] NSWCCA 135 Para 63

…In Smith v R [2007] NSWCCA 135, the New South Wales Court of Appeal allowed a sentence appeal in which, following a plea of guilty entered in the District Court, a carer was convicted and sentenced to full-time imprisonment in relation to one count of common assault of a young woman with a number of developmental an…
Colosimo v Director of Public Prosecutions (NSW)
[2006] NSWCA 293 Para 13

…utory defences or common law defences, ever mindful, though, not to reverse the onus of proof: Colosimo & Ors v Director of Public Prosecutions (NSW) [2006] NSWCA 293 at [19]. It is then for the Prosecution to negative or disprove the existence of such facts to the requisite criminal standard, beyond reasonable dou…
R v Katarzynski
[2002] NSWSC 613 Para 28

…The various circumstances in which the defence will operate are discernibly set out in s.418(2). In R v Katarzynski [2002] NSWSC 613, Howie J at [20] resolutely summarised the position as follows: -…
Fleming v The Queen
[1998] HCA 68 Para 11

…criminal trial directions apply to a magistrate or judge sitting alone as they do to a trial before a judge and jury: Fleming v R (1998) 197 CLR 250; [1998] HCA 68. For abundant clarity, set out below are the matters in respect of which I directed myself.…
Zecevic v Director of Public Prosecutions (Vic)
[1987] HCA 26

…“The question now posed for the jury, where there is evidence raising self-defence, is not the same as it was at common law after Zecevic v DPP (Vic) (1987) 162 CLR 645; 25 A Crim R 163 and as it was considered in R v Conlon (1993) 69 A Crim R 92. The questions to be asked by the jury under s.418 are: (1) is there a reasonab…
R v Murphy
[1985] HCA 50 Para 17

…prior criminal convictions. This impacts upon the fact finding exercise by requiring that I direct myself along the lines referred to in R v Murphy (1985) 4 NSWLR 42. There are two limbs to the traditional direction.…
Chamberlain v The Queen (No 2)
[1984] HCA 7 Para 12

…such, the Prosecution bears the onus of proving all the elements of the offence, beyond reasonable doubt: Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7; Woolmington v DPP [1935] AC 462. Section 141(1) of the Evidence Act 1995 (NSW) preserves the common law position. That onus rests with the Prosecuti…
Attwood v The Queen
[1960] HCA 15

…on Cited: Crimes Act 1900 (NSW) ss.61, 418, 419 Evidence Act 1995 (NSW) ss.141(1) and (2), 177 Cases Cited: Attwood v R (1960) 102 CLR 353; [1960] HCA 15 Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7 Colosimo & Ors v Director of Public Prosecutions (NSW) [2006] NSWCA 293 Fleming v R (1998) 197 CLR 250;…
[1935] AC 462
[1935] AC 462 Para 12

…onus of proving all the elements of the offence, beyond reasonable doubt: Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7; Woolmington v DPP [1935] AC 462. Section 141(1) of the Evidence Act 1995 (NSW) preserves the common law position. That onus rests with the Prosecution from start to end and does not…

Legislation cited in this decision · 2

Crimes Act 1900 (ACT)
418, 419, 61 4 mentions (from Para 1)
Evidence Act 1995 (Cth)
141(1), 177 3 mentions (from Para 12)

Medium Neutral Citation:	Police v McGuire [2019] NSWLC 10
Hearing dates:	6 February 2018, 12, 13 November 2018 18 January 2019 (further submissions)
Decision date:	18 January 2019
Jurisdiction:	Criminal
Before:	Magistrate Tsavdaridis
Decision:	The Defendant is found not guilty of two counts of common assault, contrary to s.61 of the Crimes Act 1900 (NSW) (Sequences 1 and 2)
Catchwords:	CRIMINAL LAW - common assault - defence case - whether Defendant’s conduct intentional - whether Defendant’s conduct without lawful excuse - self-defence - where Defendant was a carer and disability support worker in a group home - where Defendant’s conduct was alleged to be a common assault on two autistic and cognitively impaired residents - where alleged victims were young adult females - whether the Defendant’s conduct was a breach of the criminal law or whether he performed his duties poorly or negligently - whether Defendant’s actions constituted excessive force - where Defendant physically restrained the alleged victims - Held: lawful excuse established - Held: self-defence established
Legislation Cited:	Crimes Act 1900 (NSW) ss.61, 418, 419 Evidence Act 1995 (NSW) ss.141(1) and (2), 177
Cases Cited:	Attwood v R (1960) 102 CLR 353; [1960] HCA 15 Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7 Colosimo & Ors v Director of Public Prosecutions (NSW) [2006] NSWCA 293 Fleming v R (1998) 197 CLR 250; [1998] HCA 68 Morgan v Colman (1981) 27 SASR 334 R v Conlon (1993) 69 A Crim R 92 R v Katarzynski [2002] NSWSC 613 R v Lawson and Forsythe [1986] VR 515; (1985) 18 A Crim R 360 R v Lister [2009] QCA 368 R v Marshall (unreported, NSWCCA, 17 July 1990) R v Murphy (1985) 4 NSWLR 42 R v Slater (1987) 44 SASR 136 R v Stokes and Difford (1990) 51 A Crim R 25 R v Timbreza [2012] NSWDC 142 Smith v R [2007] NSWCCA 135 Woolmington v DPP [1935] AC 462 Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; (1987) 25 A Crim R 163; [1987] HCA 26
Category:	Principal judgment
Parties:	NSW Police (Prosecution) Thomas Francis McGuire (Defendant)
Representation:	Solicitors: Ms J Palmer, Snr Sgt (Police Prosecutor) Mr S O’Connell (O’Brien Criminal and Civil Solicitors) (Solicitor for Defendant)
File Number(s):	2017/34787