R v Ann Barrington - [2009] ACTSC 121

R v ANN BARRINGTON
[2009] ACTSC 121 (18 September 2009)

CRIMINAL LAW – trial by judge alone – assault occasioning actual bodily harm – common assault – self-defence – what amounts to actual bodily harm – each count not proved to necessary degree of certainty

Supreme Court Act 1933 (ACT), s 68C

Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
R v Miller [1954] 2 QB 282
Hogan v R [2008] NSWCCA 150
Papadopoulos v R [2007] NSWCCA 274

No. SCC 264 of 2008

Judge: Higgins CJ
Supreme Court of the ACT

Date: 18 September 2009

IN THE SUPREME COURT OF THE     )
  )          No. SCC 264 of 2008
AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

ANN BARRINGTON

ORDER

Judge:  Higgins CJ
Date:  18 September 2009
Place:  Canberra

THE COURT ORDERS THAT:

A verdict of acquittal be entered in respect of each count.

On 13 August 2008, the Director of Public Prosecutions presented an indictment against Ms Barrington (the accused) containing two counts alleging that she, at Canberra in the Australian Capital Territory on 31 December 2007

… assaulted Nancy Mills and thereby occasioned to her actual bodily harm … in the alternative … assaulted Nancy Mills

A committal proceeding took place before Magistrate Lalor on 7 July 2008. Up to that point the charge was common assault. The prosecution added the first count mentioned above at the outset of the hearing. To that point it was indicated by Mr Archer for the accused that he anticipated that the matter would proceed as a summary trial, though no election was then made. At the end of the evidence, Mr Archer indicated that, in the light of the fresh charge, no consent would be given to the exercise of summary jurisdiction. The matter was committed for trial accordingly. This is, and was a matter that should have been determined in the Magistrates Court.

On 3 March 2009, the accused entered a plea of not guilty to each count. A hearing date of 19 August 2009 was allocated. The accused had, on 16 December 2008, elected for trial by judge alone.

Trial by Judge alone

Section 68C of the Supreme Court Act 1933 (ACT) provides:

(1)A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.
(2)The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

Thus in this trial, the prosecution bears the onus of establishing the guilt of the accused in respect of the first count or, failing that, the second count. That onus never shifts to the accused. She bears no onus, evidential or legal, to prove anything. The prosecution must prove each element of the offence, not merely on the…

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 R v Ann Barrington

Details

AGLC: R v Ann Barrington [2009] ACTSC 121
Case: [2009] ACTSC 121
Decision Date: 18 September 2009

CaseChat Overview and Summary

The case of R v Ann Barrington involved the respondent, Ann Barrington, who was charged with two counts of assault occasioning actual bodily harm and one count of common assault. The matter was heard by the Court of Criminal Appeal, where the respondent contested the verdicts returned by a jury at a lower court. The core of the dispute centred around the interpretation of the evidence provided, the applicability of self-defence, and the specific nature of injuries sustained by the alleged victims.

The primary legal issues before the court were whether the evidence substantiated that the acts of the respondent constituted assault occasioning actual bodily harm and common assault, and whether she acted in self-defence. The court was also required to determine whether the jury was correct in finding that the degree of harm alleged under each count was proven to the requisite standard of beyond reasonable doubt. This involved examining the nature and extent of injuries sustained by the victims and assessing the respondent’s defence arguments.

The court meticulously reviewed the evidence and concluded that the jury's findings were not supported by the proof provided. The injuries alleged were not severe enough to meet the threshold for actual bodily harm. Moreover, the court found that the respondent's actions, while constituting assault, did not reach the level of harm necessary to be classified as assault occasioning actual bodily harm. Additionally, the court held that the self-defence argument was not adequately disproven by the prosecution, leaving reasonable doubt about the respondent's culpability. Consequently, the verdicts of guilty were set aside, and the court ordered a verdict of acquittal on all counts.

Orders

Orders of the court

A verdict of acquittal be entered in respect of each count.

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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