Stegman v Stadtmiller

[1993] QCA 201

IN THE COURT OF APPEAL	[1993] QCA 201
SUPREME COURT OF QUEENSLAND

C.A. No. 81 of 1993

Brisbane
[Stegman. v. Stadtmiller]

BETWEEN

GEOFFREY ROBERT STEGMAN

v.

GREGORY JOSEPH STADTMILLER

Appellannt

The President
Mr Justice McPherson

Mr Justice Demack

Judgment delivered 03.06.93

JUDGMENT OF THE COURT

APPEAL ALLOWED. CONVICTION QUASHED

CATCHWORDS: CRIMINAL LAW - Assault - Defences - Whether evidence to negative mistaken belief as to consent on appellant's part.

Counsel:	Mr T. Carmody for the appellant Mr M. Byrne for the respondent
Solicitors:	Legal Aid Office for the appellant Director of Prosecutions for the respondent
Hearing Date(s):	31/05/93

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 81 of 1993

Brisbane
Before The President

Mr Justice McPherson

Mr Justice Demack

[Stegman v. Stadtmiller]

BETWEEN

GEOFFREY ROBERT STEGMAN

v.

GREGORY JOSEPH STADTMILLER

Appellannt

JUDGMENT - THE COURT

Judgment delivered 03.06.93
The appellant has appealed against his conviction in the Magistrates Court at Redcliffe on 2nd March 1993 in relation to an offence of aggravated assault of his thirteen year old niece on 18th October 1992.

At a family gathering, the appellant, who has no previous convictions, grabbed his niece around the waist and either "wrestled" or "dragged" her "struggling" and "laughing" down a hallway from the kitchen to a spare bedroom. There, he closed the door and "put her onto the floor and leant over her on all fours". The complainant's evidence was that she became worried "but wasn't sort of letting him know that". The distance between the kitchen and the spare bedroom was described as "not that far". There had been playful exchanges described as "tomfoolery" between the appellant and the complainant earlier in the day. The complainant conceded that she was initially untroubled by the appellant's rough handling and had given the impression of "going along with it" until the door of the spare bedroom was closed. It was at that point that she became worried and stopped laughing and first communicated an absence of consent to the appellant's continued actions by saying "Don't". The appellant immediately desisted.

The Magistrate determined that:
(a) had the incident ended in the hallway he would have
held that the appellant had no case to answer; and
(b) the complainant's initial consent was withdrawn and
the assault became unlawful `from the closing of the door'
as the appellant and the complainant entered the bedroom.
The appellant contended that the assault was not unlawful

because the complainant either actually or apparently consented. The respondent did not dispute that consent to an assault of an aggravated nature was possible and frankly acknowledged that, contrary to the Magistrate's statement, "there would seem to be no evidence to negative a mistaken belief as to consent on the part of the Appellant".

That concession was correctly made and, in the circumstances, the appeal must be allowed and the conviction quashed.