R v RICHARD MULCAHY [2010] ACTSC 98 (26 August 2010)
RESERVED JUDGMENT
CRIMINAL LAW – trial by judge alone – assault occasioning actual bodily harm – elements of offence proved - self-defence – whether the accused had cause to believe that he had to use force to defend himself – critical element of self-defence not proved – verdict of guilty entered
Judge: Nield A/J Supreme Court of the ACT Date: 26 August 2010
IN THE SUPREME COURT OF THE) ) No. SCC 364 of 2008 AUSTRALIAN CAPITAL TERRITORY )
R
v
RICHARD MULCAHY
ORDER
Judge: Nield A/J Date: 26 August 2010 Place: Canberra
THE COURT ORDERS THAT:
A verdict of guilty be entered in respect of the charge on the indictment.
At about 4.50pm on 2 December 2007 an incident involving the complainant, Mr Nicholas Carl Francis Gerhard, and the accused, Mr Richard James Mulcahy, occurred at the green waste area of the Mugga Lane Tip, also known as Corkhill Bros waste recycling facility.
The fact of the incident is not in dispute. However, what happened during the incident is in dispute. The Crown alleges that the accused, without justification, punched the complainant’s face, thereby causing a laceration to the left side of his upper lip, and knocked him to the ground, thereby causing a laceration to the back of his head. The accused admits that he punched the complainant’s face, causing the laceration to the lip, and knocked him to the ground, causing the laceration to the head, but claims that what he did was justified because he acted in self-defence against the actions of the complainant towards him.
At about 5.10pm on 2 December 2007 the accused attended at Woden Police Station and reported the incident to Constable Andrew Stuart Lockley. What the accused told Constable Lockley about the incident is contained in Constable Lockley’s notebook (Exhibit F1) and recited in his statement (Exhibit F2).
At sometime after 5.10pm and before 6.10pm on 2 December 2007 the complainant attended at Woden Police Station with his wife to report the incident to police. He was told to go to hospital for treatment and that someone would speak to him at the hospital.
At 6.10pm on 2 December 2007 the complainant attended at the Canberra Hospital seeking treatment for his injuries. Details of the complainant’s injuries and the treatment that he received for them are contained in the clinical notes of the Emergency Department of the hospital (Exhibit C).
At about 6.35pm on 2 December 2007 Constable Denis James O’Donnell, together with Constable Peter Dearing, attended at the Canberra Hospital to speak to the complainant in relation to the complainant’s report of the incident to Woden Police Station. What the complainant told Constable O’Donnell about the incident is contained in Constable O’Donnell’s notebook (Exhibit G1) and is recited in his statement (Exhibit G2).
On 13 February 2008 a summons was issued out of the ACT Magistrates Court charging…
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.
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AGLC
R v Mulcahy [2010] ACTSC 98
Case
[2010] ACTSC 98
Decision Date
CaseChat Overview and Summary
In the Supreme Court of the Australian Capital Territory, the court presided over by Acting Justice Nield delivered a reserved judgment in the case of R v Richard James Mulcahy. The accused was charged with assault occasioning actual bodily harm under Section 24 of the Crimes Act 1900 (ACT), arising from an altercation at the Mugga Lane Tip. The key issue for the court was whether the accused acted in self-defence, as claimed, or whether the assault was unprovoked and unjustified. The court examined the testimonies of the accused, the complainant, and several witnesses, alongside physical evidence and medical records. The court found inconsistencies in the accused's accounts and accepted the complainant's version of events, which indicated that the accused's actions were unprovoked and unjustified. The court concluded that the accused had not provided a reasonable belief of needing to defend himself, thus failing to establish a self-defence claim. Consequently, the court found the accused guilty of the charge. The final order was that a verdict of guilty be entered for the charge of assault occasioning actual bodily harm.