R v B - [1997] QCA 486

[1997] QCA 486

COURT OF APPEAL

DAVIES JA
PINCUS JA
de JERSEY J

CA No 369 of 1997

THE QUEEN

BRISBANE

DATE 06/11/97

JUDGMENT

PINCUS JA: The appellant was convicted in the District Court on a single count of having unlawfully assaulted Janelle Elizabeth Gordon. He was at the time of the offence alleged, 18 March 1996, just over 12 years of age; his birth date is 15 February 1984. The Crown case was that the appellant was guilty of assault in that he threatened Ms Gordon with a knife. Three grounds are mentioned in the notice of appeal and of those two have been argued in the outline and only one argued orally. The first ground is that the evidence did not establish an assault because there was "no present ability to effect the accused's purpose", and the second ground is that the evidence was not capable of rebutting the presumption created by s. 29 of the Criminal Code.

As to the first point, the outline refers to the definition of assault in s. 245 of the Code, the relevant part of which is as follows:

"A person ... who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person's consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person's purpose, is said to assault that other person, and the act is called an 'assault'."

The outline of argument particularly emphasises the expression "actually or apparently a present ability to effect the person's purpose" and the essence of the point taken is that, on the evidence, the appellant was too far away from Ms Gordon to stab her. There were three witnesses called on behalf of the prosecution at the trial and none for the defence. Two of the witnesses were Ms Gordon, the alleged victim of the assault, and Mrs Barjasic who gave evidence of having witnessed the assault. Ms Gordon was, at the relevant time, acting as principal of a State School of which the appellant was a recently enrolled student. On the day in question, having got some information, Ms Gordon went looking for the appellant; she found him with a knife in his hand which she said had an 11 centimetre blade. When Ms Gordon came on the scene the appellant was, she said, pointing the knife towards children in the vicinity, but as Ms Gordon approached he pointed it towards her. She came towards him, but not right up to him, and tried to persuade him to give the knife up. She said:

"In fact, as soon as I asked for it, he almost lunged forward. You know that stance you get you lunge forward as if you are going to use it. He was aware of the other children and would just constantly go like that."

The next answer was, "Moving around not…

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 B

Details

AGLC: R v B [1997] QCA 486
Case: [1997] QCA 486
Decision Date: 6 November 1997

CaseChat Overview and Summary

The appeal in the matter of R v B was heard by the Queensland Court of Appeal, with Pincus JA, Davies JA, and de Jersey JCA delivering the judgment. The appellant, who was 12 years old at the time of the offence, was convicted of unlawfully assaulting Janelle Elizabeth Gordon with a knife. The appeal was based on two grounds: firstly, that the evidence did not establish an assault as the appellant lacked a present ability to effect his purpose, and secondly, that the evidence was insufficient to rebut the presumption under s. 29 of the Criminal Code that the appellant was not criminally responsible because he was under 15 years of age.

The court addressed the first ground by examining the definition of assault in s. 245 of the Code, which requires the accused to have a present ability to effect their purpose. The court determined that the appellant's distance from Ms. Gordon did not negate the presence of an assault, as the appellant could have stabbed her within a very short time. The court rejected the notion that a threat with a knife does not constitute an assault unless the threatener is immediately adjacent to the victim.

Regarding the second ground, the court examined the meaning of s. 29(2) of the Criminal Code, which requires proof that the person had the capacity to know that they ought not to do the act. The court held that the onus is on the Crown to prove this capacity, and the evidence must support the conclusion that the appellant had this capacity. The court found that there was sufficient evidence to support the jury's conclusion that the appellant had the capacity to know that threatening a teacher with a knife was wrong.

The court dismissed the appeal, affirming the conviction of the appellant for the unlawful assault on Janelle Elizabeth Gordon.

Orders