Police v Robert Peace - [2010] NTMC 25

CITATION: Police v Robert Pearce [2010] NTMC 025

PARTIES: LINDSAY WESTPHAL

v

ROBERT DAVID PEARCE

TITLE OF COURT: Court of Summary Jurisdiction

JURISDICTION: Summary Jurisdiction – Alice Springs

FILE NO(s): 20928928

DELIVERED ON: 1 April 2010

DELIVERED AT: Alice Springs

HEARING DATE(s): 12 and 23 February 2010

JUDGMENT OF: Greg Borchers SM

CATCHWORDS:

REPRESENTATION:

Counsel:
Plaintiff: R Micairan
Defendant: J Munster

Solicitors:
Plaintiff: Summary Prosecutions
Defendant: NTLAC

Judgment category classification: C
Judgment ID number: [2010] NTMC 025
Number of paragraphs: 52

IN THE COURT OF SUMMARY JURISDICTION
AT ALICE SPRINGS IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20928928

BETWEEN:

LINDSAY WESPHAL
Police

AND:

ROBERT DAVID PEARCE
Defendant

REASONS FOR JUDGMENT

(Delivered 1 April 2010)

Mr G BORCHERS SM:
1. The Defendant is charged on Information with unlawfully assaulting his two sons; Michael Jones Pearce born 11 March 1998 and Damien Pearce born 4 January 2001 contrary to s.188 (1) of the Criminal Code. Each assault is said to involve circumstances of aggravation namely that each child suffered harm, each child was under the age of 16 years and the Defendant was an adult and each child was threatened with an offensive weapon namely a stick.
2. It is agreed that both victims are under the age of 16 years and it is also agreed that an incident took place on 23 August 2009 at the family home of the Defendant and victims located at 2 Shady Court, Alice Springs.
3. The evidence of both children was in the form of a video recording of their separate police interview together with a transcript of the interview. The children were then cross-examined. A medical practitioner, Dr Marcel Zimmett was called to give evidence of the injuries suffered by the children. Several police officers also gave evidence and the defendant gave sworn evidence.
Evidence of Damien Peace
4. Damien Peace gave evidence that his father assaulted him in his bedroom. His father entered the room holding a stick. Damien was smacked “really hard”, then hit in the rear with the stick which was also used to strike him on the legs. Only the Defendant and Damien were in the room and he was struck five times by the Defendant. He was also bodily thrown across the room onto his bed twice. On the first occasion his head hit a supporting pole on the bunk bed and on the second his head struck the wall. The Defendant said to him “if you are going to be late again I’ll smash you again”
5. When the Defendant left his bedroom, Damien heard him enter his brother Michael’s bedroom and could hear Michael yelling. He remained in his room until his mother came and told him to come and have his dinner. His father repeated this demand when he didn’t come out of his room.
6. During the time he was assaulted his mother was in the kitchen. He thought that she could see what was happening but was sure she could hear his cries. He…

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 Robert Peace

Details

AGLC: Police v Robert Peace [2010] NTMC 25
Case: [2010] NTMC 25
Decision Date: 1 April 2010

CaseChat Overview and Summary

In the case of Police v Robert Pearce, the defendant was charged with assaulting his two sons, Michael Jones Pearce and Damien Pearce, in contravention of section 188(1) of the Criminal Code. The alleged assaults occurred on 23 August 2009 at the family home in Alice Springs, and involved the use of a stick as an offensive weapon. The legal issues the court had to decide included whether the defendant had indeed assaulted his sons and whether the assaults were accompanied by circumstances of aggravation.

The court found that the evidence provided by the victims, Damien and Michael, was consistent in describing the violent nature of the assaults. Both victims testified that their father used a stick to hit them multiple times, threw them around their rooms, and caused them significant pain and injury. The court also considered the medical evidence provided by Dr Marcel Zimmett, who observed multiple bruises on both victims that were inconsistent with normal childhood activities. Although the defendant argued that the assaults were justified as a form of discipline, the court found that the force used was excessive and not reasonable, thus constituting unnecessary force under the Criminal Code.

The court ultimately concluded that the assault on Damien could not be proven beyond reasonable doubt due to inconsistencies in his testimony and the absence of corroborative evidence from the mother, who was a material witness. However, the assault on Michael was proven beyond reasonable doubt based on his testimony, the medical evidence, and the admissions made by the defendant in his record of interview. The court dismissed Count 2 relating to Damien but found Count 1 relating to Michael proven.

Orders