The Queen v Maurice Herbert Vagg - [2005] ACTSC 134

the accused not guilty of the charge that on the 22^nd day of April 2004 at Canberra in the Australian Capital Territory he intentionally and unlawfully used against Pierre Abiwahab an offensive weapon, namely a block splitter, likely to endanger human life or cause grievous bodily harm.

the accused guilty of the charge that on the 22^nd day of April 2004 at Canberra he assaulted Pierre Abiwahab.

The accused Maurice Herbert Vagg has today pleaded not guilty in respect of two counts on an indictment of 17 November 2005. The first count is an allegation that Mr Vagg did on 22 April 2004 at Canberra in the Australian Capital Territory intentionally and unlawfully use against Pierre Abiwahab an offensive weapon, namely a block splitter, likely to endanger human life or cause grievous bodily harm. The second count on the indictment, which was said to be in the alternative, is that on the same day and at the same place he assaulted Pierre Abiwahab.

The facts giving rise to these two charges may be briefly summed up. I am satisfied beyond reasonable doubt, and I am satisfied from the evidence before me from Constables Horricks, Newsham and Perry and Mr Abiwahab that at about 5:30 pm on 22 April Mr Abiwahab had been going about his duties as the manager of the Dash Coffee Shop in Garema Place in Civic. He noticed two male persons who were drinking in that area and he was aware that they had been abusing some of his clients and bystanders who were using the nearby automatic teller machine.

Mr Abiwahab also observed that the two males had been drinking rum and cola and that they had been using cups that belonged to the coffee shop. Mr Abiwahab says that he asked them to leave and to return the coffee shops cups. He says that one of the males quietly left the area, and the other male engaged in some abusive language and, Mr Abiwahab said, threatened to shoot him. That male person then left the area.

Mr Abiwahab says that some time later, about half an hour perhaps, he noticed the abusive male returning to the area. He was concerned and he says he got out his…

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 Maurice Herbert Vagg

Details

AGLC: The Queen v Maurice Herbert Vagg [2005] ACTSC 134
Case: [2005] ACTSC 134
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of The Queen v Maurice Herbert Vagg revolved around two allegations against Mr Vagg: the use of an offensive weapon and common assault. The accused elected for a trial by judge alone, and the court had to determine the principles of law and findings of fact upon which the judgment would be based. The primary legal issue was whether Mr Vagg had intentionally and unlawfully used an offensive weapon that was likely to cause grievous bodily harm, and whether he had assaulted Pierre Abiwahab by threatening him with the block splitter.

The court began by reviewing the evidence presented by the prosecution and defence, focusing on the circumstances leading to the alleged incidents. Mr Abiwahab, the manager of a coffee shop, had asked Mr Vagg and his companion to leave after they had been causing a disturbance and using the shop's cups. Upon Mr Vagg's return, Mr Abiwahab attempted to contact the police, which led to the confrontation. The court considered whether the block splitter was wielded in a manner that would likely cause grievous bodily harm, and whether Mr Abiwahab had a real apprehension that he might be struck.

Justice Connolly concluded that the prosecution had not proven beyond reasonable doubt that the block splitter was used in a way that would endanger human life or cause grievous bodily harm, and thus acquitted Mr Vagg on the first charge. However, the court found that Mr Vagg had indeed committed common assault by threatening Mr Abiwahab with the block splitter, as there was evidence that Mr Abiwahab had a real apprehension that he might be struck. The court emphasised that the act of raising and moving the block splitter towards Mr Abiwahab constituted an assault under the law, even if the force applied was not substantial.

The final orders of the court were that Mr Vagg was not guilty of using an offensive weapon likely to cause grievous bodily harm, but was guilty of the common assault charge. This decision highlights the importance of the specific elements of the offence of assault being met, even in cases where the threat of force is involved, rather than actual physical contact.

Orders