R v Gabriel - [2004] ACTSC 30

R v DEREK JAMES GABRIEL
[2004] ACTSC 30 (20 May 2004)

CRIMINAL LAW – assault – whether actus reus of assault proved beyond reasonable doubt - whether threats alone can constitute assault.

CRIMINAL LAW – assault – whether actus reus of assault proved beyond reasonable doubt – whether threatening statement combined with physical contact sufficient for actus reus of assault.

CRIMINAL LAW - special hearing by judge alone – whether acts constituting offence proven beyond reasonable doubt.

Crimes Act 1900 (ACT) ss 26, 320

Telecommunications Act 1975 (Cth)

Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439

R v Miller [1982] QB 532

Tuberville v Savage (1669) 1 Mod 3 684

Stephens v Myers (1830) 4 Car & P 735; 172 ER 735

R v Wilson [1955] 1 All ER 744

R v Ireland; R v Burstow [1998] AC 147

Barton v Armstrong [1969] 2 NSWR 451

Macpherson v Beath (1975) 12 SASR 174

R v Knight (1988) 35 A Crim R 314

Zanker v Vartzokas (1988) 34 A Crim R 11

Macpherson v Brown (1975) 12 SASR 184

R v Bailiff [2002] ACTSC 79 (16 August 2002)

Attorney-General’s Reference (No. 6 of 1980) [1981] QB 715

No. SCC 86 of 2003

Judge: Higgins CJ
Supreme Court of the ACT
Date: 20 May 2004

IN THE SUPREME COURT OF THE       )
  )          No. SCC 86 of 2003
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN

v

DEREK JAMES GABRIEL

ORDER

Judge:  Higgins CJ
Date:  20 May 2004
Place:  Canberra

THE COURT ORDERS THAT:

A verdict of not guilty be entered to both counts of common assault on indictment dated 15 July 2003.

On 3 March 2004 an indictment was presented against the accused, Derek James Gabriel. It contained two counts of common assault contrary to s 26 of the Crimes Act 1900 (ACT) (the Crimes Act). They were that –

… on the 12^th day of December 2002 at Canberra in the Australian Capital Territory [he] assaulted Caroline Smith;
and that –
…on the 12^th day of December 2002 at Canberra … [he] assaulted Natalie Beasley.

To those counts he pleaded not guilty.

THE CROWN CASE

The accused had, before entering those pleas, duly elected for trial by judge alone. That trial commenced on 17 March 2004.

It was the Crown case that each of those offences occurred at the premises of the Commonwealth Employment Service, known as Centrelink, situated at Belconnen.

The first count related to an alleged incident about 9.30 to 10.30 am on 12 December 2002. Ms Smith, the alleged victim, was a counter officer employed by Centrelink. It was alleged that she was approached by the accused in his capacity as a customer of Centrelink. He requested an urgent payment in advance of his entitlement. He was told that he would need a serious reason. He stated that he needed to go to Sydney as his father had died, to identify the body. He filled out a request form. After he had done so…

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 Gabriel

Details

AGLC: R v Gabriel [2004] ACTSC 30
Case: [2004] ACTSC 30
Decision Date

CaseChat Overview and Summary

The case of R v Gabriel involved two counts of common assault against the accused, Derek James Gabriel. The first count alleged that Gabriel assaulted Caroline Smith by making a threatening statement to her, while the second count alleged that Gabriel assaulted Natalie Beasley by making physical contact with her. Gabriel was on trial by judge alone in the Supreme Court of the Australian Capital Territory. The court had to decide whether Gabriel's words and actions constituted an assault under the common law definition of the crime. The court found that while Gabriel's conduct was threatening and caused fear in the victims, it did not meet the legal criteria for an assault. Specifically, the court found that Gabriel's statement to Smith did not convey a fear of immediate physical violence and thus did not constitute an assault. Additionally, the court found that while Gabriel did make physical contact with Beasley, the contact was not sufficient to constitute an assault. Therefore, the court entered a verdict of not guilty on both counts of common assault against Gabriel.

Orders