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), which I think Mr Lawton was referring to, and as I recall it that was a case where the alleged offender had struck a blow, but one that was not seen by the person who was to be the victim of it and which made no contact. As that striking of the blow could not have put the victim in fear, plainly there could not be an assault, even though one might have been intended.
In this case, the same issue arises in that it appears from the evidence given by the two witnesses that the patient was facing away from the appellant at the time when they observed these blows being struck. That has a number of implications.
The first and most obvious is that it could not be said in those circumstances, certainly not with any certainty, that the patient would have apprehended being struck. The second point is that the prosecution case as put to the learned magistrate, quite reasonably one would have thought, was that the patient had been struck and indeed, there was evidence called of bruising, which was intended, as I understood it, to support that hypothesis.
It is true that the evidence, when given, was insufficient to support that hypothesis because of the age of the bruises. It could not be said with any certainty that that bruising arose during the course of this particular event. No doubt for that reason too, the prosecution decided to proceed only on a case of common assault and not on a case of occasioning actual bodily harm. Nevertheless, the case that the prosecution put was on the basis that there had been blows struck to the patient, which resulted in the patient’s sounds of distress and that was a case which his Honour expressly found not to be made out.
In those circumstances and even allowing for the alternative case that was adopted by his Honour rather than the prosecutor, one cannot see how that alternative case could be made out either, for the reason that Mr Lawton has alluded to. In those circumstances, there can only be one result and that is that the appeal must be upheld. The conviction and penalty are set aside and a verdict of acquittal entered instead.
I reserve the question of costs. If you can come to an agreement upon it, that is fine. If you do not, it would be a case where ordinarily you would expect an order for costs in the Magistrates Court and in this court.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 7 September 2010
Counsel for the appellant: Mr J Sabharwal
Solicitor for the appellant: Rachel Bird & Co
Counsel for the respondent: Mr J Lawton
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 17 August 2010
Date of judgment: 17 August 2010
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