The Queen v Christopher Alfred Clearihan - [2002] ACTSC 60

THE QUEEN v CHRISTOPHER ALFRED CLEARIHAN [2002]
ACTSC 60 (19 June 2002)

CATCHWORDS

CRIMINAL LAW – assault – trial by judge without jury – elements to be satisfied to convict – finding of not guilty
EVIDENCE - principles to be applied in the assessment of evidence

Supreme Court Act 1933

Vallance v R (1961) 108 CLR 56

No. SCC 185 of 2001

Judge: Higgins J
Supreme Court of the ACT
Date: 19 June 2002

IN THE SUPREME COURT OF THE       )
  )          No. SCC 185 of 2001
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN

against

CHRISTOPHER ALFRED CLEARIHAN

REASONS FOR VERDICT

Judge:  Higgins J
Date:  19 June 2002
Place:  Canberra

THE COURT FINDS THAT:

The accused is not guilty.

On Wednesday 8 May 2002, the accused, Christopher Alfred Clearihan, was arraigned before me, having previously validly elected for trial by judge alone. A plea of not guilty was entered. The accused had previously been arraigned on the same indictment before Gray J.

The single count in the indictment alleged that the accused:

“… on the 21^st day of November 2000 at Canberra in the Australian Capital Territory assaulted Glenn David Thomas.”

Glenn David Thomas is a constable of police. The charge, however, is laid pursuant to s 26 of the Crimes Act 1900. It is an indictable offence, though, the maximum penalty being imprisonment for 2 years, it is capable of summary disposition in the Magistrates Court.

General principles

This being a trial on indictment before a judge alone, I am obliged to proceed in accordance with s 68C of the Supreme Court Act 1933, that is:

“(1)     A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.
(2)       The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.
(3)       In criminal proceedings tried by a judge alone, if a law of the Territory would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.”

General directions

It follows from s 68C that I must not only direct myself and express the principles of law applicable to the matter, I must also make any finding of fact which I consider to be appropriate on the evidence given before me, including any inferences I draw from those facts.

Burden and onus of proof

This is a criminal charge. It follows that the burden of establishing the guilt of the accused lies on the prosecution. The accused bears no onus of proof nor is he obliged to offer any rebuttal of the prosecution case. If, after all the available evidence is given and considered, there remains an…

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 The Queen v Christopher Alfred Clearihan

Details

AGLC: The Queen v Christopher Alfred Clearihan [2002] ACTSC 60
Case: [2002] ACTSC 60
Decision Date

CaseChat Overview and Summary

The case of The Queen v Christopher Alfred Clearihan involves a charge of common assault against the accused, Christopher Alfred Clearihan, who was alleged to have assaulted Constable Glenn David Thomas on 21 November 2000. The trial took place in the Supreme Court of the Australian Capital Territory, where the accused had previously elected for a trial by judge without a jury. The sole issue before the court was whether the prosecution had proved beyond reasonable doubt that the accused intentionally applied force to Constable Thomas. The proceedings began with the Crown presenting evidence from Constable Thomas, who claimed that the accused had grabbed his shirt collar and struck him, causing a small injury. The Crown further presented evidence from other police officers and a medical report to support their case.

The accused, on the other hand, denied any intentional application of force. He claimed that he had reached into the vehicle to take the keys because he believed the car was unregistered and he was being harassed. The accused further presented evidence from an independent witness, Charles Michael Wayne, who corroborated the accused's version of events. The court had to consider the credibility of the various testimonies and determine whether the prosecution had proved the elements of the offence beyond reasonable doubt. The court found inconsistencies in the testimonies of the police officers, which raised doubts about the reliability of the Crown's case. Additionally, the court accepted the evidence of the independent witness, which was consistent with the accused's account. The court concluded that the prosecution had not proved beyond reasonable doubt that the accused had intentionally applied force to Constable Thomas, leading to a verdict of not guilty.

In summary, the court found the accused not guilty of the charge of common assault against Constable Thomas due to the lack of conclusive evidence that the accused intentionally applied force. The inconsistencies in the testimonies and the acceptance of the independent witness's evidence played a crucial role in the court's decision. The court's reasoning demonstrates the importance of the prosecution proving every element of the offence beyond reasonable doubt, especially when faced with conflicting testimonies.

Orders