Steven James Dore v Carla Peschel - [2010] ACTSC 86

STEVEN JAMES DORE v CARLA PESCHEL
[2010] ACTSC 86 (17 August 2010)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 47 of 2009

Judge: Higgins CJ
Supreme Court of the ACT

Date: 17 August 2010

IN THE SUPREME COURT OF THE       )
  )          No. SCA 47 of 2009
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

STEVEN JAMES DORE

v

CARLA PESCHEL

ORDER

Judge:  Higgins CJ
Date:  17 August 2010
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld.

The conviction and penalty of Magistrate Lalor made on 11 September 2009 be set aside.

A verdict of acquittal be entered.

The issue of costs be reserved.

In this matter, the appellant was on 11 September 2009 convicted by his Honour Magistrate Lalor upon a charge of common assault. The victim of the common assault was a patient at the premises at which the appellant was an employee and had duties to care for patients, including the person named as the victim of the alleged assault.

The evidence to support that charge was the evidence in effect of two persons who, outside of the bathroom or bathing area, were able to view what was going on, albeit dimly, in the sense of it being frosted glass that was brightly lit. They clearly could not make out details and did not claim to. They were alarmed by what they saw as being blows struck by the appellant towards the patient, as I will call him. Those blows were downward motions, which were consistent with a blow, but they were not able to say that they saw any contact between the appellant and the patient.

There was also the record of interview between the appellant and police, who were called to investigate the matter. While there were inconsistencies between what the appellant had said in the course of that interview and what one or other of the witnesses who gave evidence of what they saw observed, those differences were not of any great magnitude and indeed, did not seem to play any part in his Honour’s decision in any event. He did not, for example, opine that because there were inconsistencies that there was some issue of fact, which should be adversely found to the appellant.

What his Honour did find, in fact, was that he could not be satisfied beyond a reasonable doubt that there were any blows struck, albeit, he accepted what the witnesses had said about their observations. In those circumstances, as Mr Lawton has pointed out, one would have to be satisfied that the patient had apprehended being struck and had been put in fear as a result of that and, of course, it is only one element, but in order for an assault to take place, there has at least to be that apprehension of violence.

To take the case of R v Derek James Gabriel [2004] ACTSC 30 (20 May 2004),…

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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Details

Case: [2010] ACTSC 86
Decision Date

CaseChat Overview and Summary

In this case, Steven James Dore appealed a conviction for common assault against Carla Peschel, a patient at the facility where Dore worked as an employee. The appeal was heard by Higgins CJ in the Supreme Court of the Australian Capital Territory. The appeal centred on whether the evidence presented was sufficient to convict Dore of the assault. The main issue before the court was whether the elements of the offence of common assault were proven beyond reasonable doubt. Common assault requires the prosecution to prove that the defendant caused the victim to apprehend immediate and unlawful personal violence.

The court considered the evidence presented, which included testimony from two witnesses who observed the incident but could not clearly see the details due to the lighting and the frosted glass. The witnesses described downward motions that they believed to be blows, but they could not confirm that there was any actual contact between Dore and the patient. The inconsistencies in Dore's statement to the police did not significantly impact the magistrate's decision. The magistrate found that he could not be satisfied beyond reasonable doubt that any blows were struck. The court noted that for an assault to occur, the victim must have apprehended being struck, and in this case, the patient was facing away from Dore when the alleged blows were observed, making it unlikely that the patient could have apprehended being struck. Therefore, the court concluded that the prosecution failed to prove the essential elements of common assault. The appeal was upheld, and the conviction and penalty were set aside, with a verdict of acquittal entered instead. The issue of costs was reserved.

Orders