R v Bradley O'Meara

[2009] ACTSC 122

R v BRADLEY O’MEARA
[2009] ACTSC 122 (18 September 2009)

CRIMINAL LAW  - trial by judge alone – assault occasioning actual bodily harm – self defence – accused the original aggressor – whether the accused believed upon reasonable grounds it was necessary in self defence to do what he did – disproportionate use of force – finding of guilt

Supreme Court Act 1933 (ACT), s 68C

Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
R v McKay [1957] VR 560
R v Falla [1964] VR 78
Morgan v Colman (1981) 27 SASR 334

No. SCC 395 of 2008

Judge:             Higgins CJ
Supreme Court of the ACT

Date:              18 September 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 395 of 2008
AUSTRALIAN CAPITAL TERRITORY    )          

THE QUEEN

v

BRADLEY O’MEARA

ORDER

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

THE COURT ORDERS THAT:

1. A verdict of guilty be entered.

1. On 9 June 2009, the accused, Bradley O’Meara pleaded not guilty to a count in an indictment dated 18 November 2008 charging that he –

… on the 20^th day of May 2008 at Canberra … assaulted Annette Maree Haber and thereby occasioned to her actual bodily harm.

1. On 13 May 2009 the accused elected for trial by judge alone.  A trial date of 25 August 2009 was set on 27 July 2009 and the trial proceeded before me accordingly.

1. My role, therefore, in accordance with s 68C of the Supreme Court Act 1933 (ACT), is not only to make rulings as to law and procedure but also to make such findings of fact as a jury would make.

1. The principles of law governing the fact finding role of a jury are equally applicable to a judge trying a case such as this without a jury.

1. First and foremost the onus of proof of the guilt of the accused rests upon the prosecution.  It never shifts to the accused.  Each and every element of the offence must be proved beyond reasonable doubt.  The accused also has the benefit of the presumption of innocence.  That presumption extends to the assessment of evidence in that a favourable inference is to be preferred to an adverse one if the former is open.

1. The elements of this offence are first, that the accused assaulted the complainant, Annette Maree Haber.  In the context of this case, that means that the prosecution must prove that the accused applied force to the complainant without her consent and without any other legal justification.  That force must be proved to have been applied intentionally knowing that there was no such justification.

1. In the present case, the accused has raised an issue whether the force he used was used in self-defence.

1. Self-defence renders an application of force lawful.  The test, as adopted by the High Court in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 asks whether at the time the accused used force against the complainant he believed, on reasonable…