Todd Dale Richards v Royce John Kerrison
[2013] ACTMC 15
•30 AUGUST 2013
TODD DALE RICHARDS v ROYCE JOHN KERRISON
[2013] ACTMC 15 (30 AUGUST 2013)
CRIMINAL LAW – common assault – ownership of property – claim of right – “claim of right” as defence to a charge of assault
Crimes Act 1900 (ACT) ss 26, 24.
Criminal Code 2002 (ACT) s 38.
Criminal Code Amendment Regulation 2013 (No 1).
R v Fuge [2001] NSWCCA 208.
Barker v R (1983) 153 CLR 338.
Lovev R (1989) 17 NSWLR 608.
Langhamv R (1984) 36 SASR 48.
Salvov R (1980) VR 401.
Walden v Hensler (1987) 163 CLR 561; 75 ALR 173.
Williamsv R (1986) 21 A Crim R 460.
R v Boden (1844) 1 C&K 395.
R v Kastratovic (1985) 19 A Crim R 28.
R v Bedford [2007] SASC 276.
R v Langham (1984) 36 SASR 48.
No. CC 10501 of 2012
CC 10502 of 2012
CC 10503 of 2012
CC 10504 of 2012
CC06217 of 2013
Chief Magistrate Walker
Magistrates Court of the ACT
Date: 30 August 2013
IN THE MAGISTRATES COURT OF THE )
)NO. CC 10501 of 2012
AUSTRALIAN CAPITAL TERRITORY ) CC 10502 of 2012
CC 10503 of 2012
CC 10504 of 2012
CC 06217 of 2013
BETWEEN: TODD DALE RICHARDS
INFORMANT
AND: ROYCE JOHN KERRISION
DEFENDANT
DECISION
Magistrate:Chief Magistrate Walker
Date:30 August 2013
Place:Canberra
The defendant, ROYCE JOHN KERRISON, is charged as follows. All charges related to an incident on 1 December 2012:
12/10501 Assault occasioning actual bodily harm, under s 24 of the Crimes Act 1900 (“the Act”) against Joseph Allais
12/10502 Common assault, under s 26 of the Act against Tara Philip
12/10503 Common assault under s 26 of the Act against Lynette Philip
13/6217 Common assault under s 26 of the Act against Tara Philip
12/10504 Common assault under s 26 of the Act against Joseph Allais
By way of undisputed background, the defendant had formerly been in a relationship with Ms Tara Philip. They had separated some short time before 1 December 2012. It was arranged between Ms Philip and the defendant that he would attend at the formerly shared address on the afternoon of 1 December 2012 to collect items belonging to him, which items had been negotiated and reduced to a written list.
Ms Philip had arranged for her mother, Lynette Philip, and stepfather, Joseph Allais, to be present when her former partner attended. Also by agreement, the defendant’s stepsister, Deanne Kuhn, attended, although she arrived slightly after the defendant.
All agree that the arrangement went to plan as the defendant loaded his belongings from the garage and placed them into his utility vehicle. However, things went awry when he then indicated that he wanted to take the family dog, Tito, which had not been part of the pre-agreed arrangement.
Something of the background to the legal arrangements should be said. Tara Philip was the legal owner of the property in which the pair had formerly lived together. Her name was on the title because at the time the property was purchased the defendant was in receipt of workers compensation payments and not accepted for the purpose of the loan by the lending institution. There is, however, evidence from both Tara Philip and the defendant that there was joint contribution to the expenses of the property including an admission by Tara Philip that the defendant paid the mortgage and some expenses whilst her income paid other expenses and bills. There is no evidence before me as to what adjustment of that equitable arrangement had been made at the time the defendant attended at the property.
There is also an issue in this case as to the ownership of the dog, Tito. Apparently the defendant paid for the dog, although he was considered the family pet. The defendant was also the registered owner of the dog. Ms Tara Philip paid for and took the dog to puppy training classes. The defendant spent a lot of time with the dog and considered him his “best mate”. The dog was either owned by the defendant or jointly owned.
Evidence in relation to the alleged assaults
In respect to charge number 12/10504, the allegation of common assault by the defendant against Mr Joseph Allais, on the particularised basis that the defendant intentionally made physical contact with Mr Allais’ body with a car, I note that the prosecution concedes that the evidence did not come up to proof of the charge as particularised. I therefore will not consider the details of this charge further.
The first in time of the remaining charges, 12/10501, is an allegation of assault occasioning actual bodily harm against Mr Allais. Ms Tara Philip, Ms Lynette Philip, Mr Joseph Allais and the defendant all agree that when the defendant indicated that he was going into the house to retrieve Tito, Mr Allais placed himself in the doorway between the garage and house and indicated that the defendant would not be allowed in. It is also agreed between the witnesses that the defendant tried to push past Mr Allais.
Ms Tara Philip gave evidence that the defendant then placed Mr Allais in a headlock and pulled him to the ground. Mr Allais said that they wrestled at the door; he conceded that he may have taken hold of the defendant and said that the defendant then placed him in a headlock and pulled him to the ground.
10. Ms Lynette Philip gave evidence that the defendant and Mr Allais placed their arms around each other as the defendant failed to push through into the house and that they fell to the ground with Mr Allais on top, the latter hitting his head, and whilst on the ground the defendant held Mr Allais for about 30 seconds.
11. Ms Kuhn simply confirmed that Mr Allais tried to block the doorway when the defendant went to go into the house and that there was a scuffle in which both fell backwards.
12. As to this issue, the defendant said that Mr Allais blocked his path and the defendant tried to push past him. Mr Allais held his ground and then grabbed the defendant. The defendant said that he was hanging onto the door jamb and as he did so Mr Allais grabbed him with both arms around the torso; that when Tara Philip prised the defendant’s fingers from the door jamb they both fell back and because Mr Allais had his arm across the defendants chest, when they fell Mr Allais’ head was below the defendant’s arm.
13. None of the witnesses were particularly clear as to their recollection of this tussle, which is understandable given the confused and fleeting nature of it. However, the defendant’s version of events is corroborated by Tara Philip in so far as she confirmed that she prised the defendant’s finger from the door jamb, making it unlikely that at that stage he had Mr Allais in a headlock. In the circumstances, I can only be confident that Mr Allais sought to physically prevent the defendant from entering the property, and that the defendant physically tried to push past him.
14. As to the next in time allegation, charge 12/10502, an allegation that the defendant pushed Ms Tara Philip on his way to the rear of the property to recover Tito, she stated that he physically contacted her with the back of his arm as he did so. Ms Lynette Philip did not apparently see this incident. Mr Joseph Allais also appears not to have witnessed this incident. However, the defendant himself agrees that he pushed Ms Tara Philip out of the way with one arm in order to get to the back of the property.
15. Charge 12/10503, the allegation of common assault on Ms Lynette Philip, is supported by the evidence of Ms Lynette Philip herself who indicated that the defendant pushed her with the back of his right arm as he passed back on his way out of the house, causing her to fall back on the dining table. She observed that he was not trying to hurt her. This is corroborated by Ms Tara Philip. Mr Allais did not see any contact between the defendant and Ms Lynette Phillips. The defendant did not recall it but accepted that he may have made contact with Ms Lynette Philip in the way complained of.
16. As to the last in time of the now contested allegations, 12/6217, a further allegation of assault on Ms Tara Philip, she complains that the defendant pushed her into the wall on his way back to the garage using the back of his hand and arm across her chest. Ms Lynette Philip corroborates this complaint although her evidence is very confused as to the timing of this incident. Mr Allais also corroborates an incident in which the defendant pushed Ms Tara Philip up against the wall as he was looking to exit the house. The defendant denies this contact stating, somewhat contrary to his own interest, that he pushed Ms Tara Philip’s leg out of the way to allow the dog to exit the house when he was on his way back out himself.
Assessment of the evidence
17. This was clearly an emotionally charged and quite quick incident involving a number of people and a moving scene. In my estimation, all of the witnesses, including the defendant, did their best to recall the incident honestly.
18. Whilst some of the evidence was difficult to follow, I am satisfied of the following facts beyond reasonable doubt.
19. Mr Allais tried to physically prevent the defendant from entering his stepdaughter’s property, his efforts were met by a physical response, there was a scuffle in which both fell over and Mr Allais was injured. Given that Mr Allais had made clear his intention that the defendant should not enter the property and effectively barred the way, in trying to push past, the defendant was the instigator of the physical contact. I am not satisfied that Mr Allais had any lawful authority to prevent the defendant from entering the house. I am not satisfied that the defendant grabbed Mr Allais and either intentionally or recklessly pulled him over.
20. On the evidence it seems more likely that Mr Allais in fact grabbed the defendant with both arms around his body and that they both fell over when Ms Tara Philip prised the defendant’s fingers from the door jamb.
21. Based upon the complaint of Ms Tara Philip and the defendant’s concession, I am satisfied that the defendant pushed the former out of his way on the way through the house to collect Tito. That push, whilst not a powerful one, was an unlawful application of force.
22. Based upon the complaint of Ms Lynette Philip, as corroborated by Ms Tara Philip, and not denied by the defendant except in so far as he did not intend to hurt Ms Lynette Philip, I am satisfied that the defendant pushed Ms Lynette Philip physically out of his way as he sought to exit the house. This reckless application of physical force, although relatively minor, amounts to a common assault.
23. Based on the complaint by Ms Tara Philip as corroborated by Mr Allais and Ms Lynette Philip, albeit that the latter was somewhat confused as to the timing, I am satisfied that the defendant pushed Ms Tara Philip in the chest causing her to hit the wall that she was standing near. This unlawful application of force also amounts to a common assault.
Claim of right
24. Having made these findings, however, I am required to consider the issue raised by the defendant as to whether his actions are rendered lawful by the exercise of a claim of right.
25. One of the issues raised is the defendant’s equitable interest in, and right to access, the property. Whilst the legal position in this respect is far from clear on the evidence, I touched upon that in the context of the alleged assault occasioning actual bodily harm on Mr Allais.
26. I conclude that, the defence having raised the issue of the defendant’s legal right of access, the prosecution have not established beyond reasonable doubt that Mr Allais had any legal right to prevent the defendant’s entry to the property. In any event, the offence is not made out due to the factual findings detailed above. The issue of the defendant’s right or otherwise to enter the property is not relevant in respect to the other assaults alleged.
27. The remaining issue in respect to a claim of right is whether the defendant lawfully applied physical force in order to exercise his legal entitlement to recover the dog. There is an issue of the joint ownership of the dog but for the reasons which follow it is not necessary for me to consider that further in this matter.
28. I note that the prosecution has conceded in its submissions that a claim of right can be a defence to a charge of assault. For the reasons which follow, I reject this concession.
29. As a defence to all charges, the defendant seeks to rely on a claim of right to the dog which he was retrieving when the conduct constituting the alleged assaults occurred. The defendant submits that at the time, he believed that Tito was his property and he was entitled to retrieve him, and that he used only the minimum amount of force necessary to do so. As authority that a bona fide claim of right constitutes a defence to assault, the defendant relies on the decision of R v Fuge [2001] NSWCCA 208. This is the most recent Australian authority on the claim of right defence.
30. As outlined in the defendant’s submissions, Wood CJ in Fuge at [24] sets out the key principles established by the authorities including, relevantly:
·a claim of right must be one that involves a belief as to the right to property in the hands of another;
·as long as the claim is genuine it does not matter whether it is well-founded in fact or law;
·the existence of such a claim when genuinely held may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms; the relevant issue being whether the accused had a genuine belief in the legal right to the property rather than a belief in the legal right to employ the means in question to recover it.
31. The third proposition in particular is relied upon by the defendant to support the submission that an honest claim of right is a defence at common law to an assault charge.
32. The prosecution in its submissions concedes at [13] that “in line with the cases cited by Wood CJ in R v Fuge [2001] NSWCCA 208 “a ‘claim of right’ may arise as a defence to a charge of assault”.
33. However, contrary to the defendant’s submission and the concession made by the prosecution, Wood CJ’s decision in Fuge is not authority for the proposition that a claim of right is a defence to assault.
34. Wood CJ at [24] says that a genuinely held claim of right that “may constitute an answer to a crime in which the means used to take the property involved an assault (emphasis added) or the use of arms”. Nowhere in his judgment does His Honour say that a claim of right defence may constitute an answer to an assault charge itself. The question does not arise on the facts of the case. Moreover, none of the authorities cited by Wood CJ in support of his statement at [24] support such a proposition.
35. There is an important distinction between a property offence in which the means used to obtain the property involved force (e.g. armed robbery) and a crime arising purely from the use of force in and of itself (e.g. common assault).
36. Chief Justice Wood in Fuge cites seven authorities in support of the proposition at [24] that a claim of right may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms:
i.Love v R (1989) 17 NSWLR 608 at 615-616
ii.Salvo v R (1980) VR 401
iii.Langham v R (1984) 36 SASR 48 at 58
iv.R v Kastratovic (1985) 19 A Crim R 28 at 66
v.Barker v R (1983) 153 CLR 338
vi.Williams v R (1986) 21 A Crim R 460
vii.R v Boden (1844) 1 C&K 395
In none of these cases does the defendant seek to rely on a claim of right to negate an assault charge or any other offence based on force alone (i.e. without a property element). Without exception they involve charges where an essential element is interfering with proprietary rights. This distinction is critical when it comes to the availability of the claim of right defence at common law.
37. This is because the basis of the defence, where it is available, is the negation of an essential element of the offence, being the mens rea, or intention to (usually dishonestly) interfere with, or deprive someone of, their property. A claim of right cannot negate an offence against a person such as an assault charge because an honest belief of legal entitlement to property does not go to any element of the charge.
38. A claim of right is not technically a ‘defence’ but an absence of an essential element of an offence. As Wood CJ states in Fuge at [22-23], the existence of a claim of right is relevant to the commission of certain offences as it results in the “absence of the mens rea which is an essential element of the offence”.
Wood CJ cites Walden v Hensler (1987) 163 CLR 561; 75 ALR 173 in which Dawson J discusses the scope of claim of right as a defence at common law. At [180] Dawson J states
The availability of a defence of honest claim of right is not limited at common law to offences by which the offender obtains possession of property. The defence is available when the offence relates to the damaging or destroying of property, and contains a mental element which would be negated by the existence of an honest claim of right.
At [180-181] of Walden, Dawson J reviews a number of English authorities and notes that:
In all of these cases, a claim of right was admitted to negate a mental element in the offence charged. At common law, the defence is applicable to any offence the mental element of which is negated by the existence of an honest claim of right to do the prohibited act or make the prohibited omission.
39. In respect to offences against the person such as assault, mens rea is not negated by a genuine belief in a legal entitlement to property. Mens rea is only negated where the offence charged involves some element of infringing on the property rights of another, or intending or attempting to do so.
40. This includes the offence of trespass. As Brennan and Deane JJ in Barker v R (1983) 153 CLR 338 at page 23 line 20 explain in respect to s 76(1) of the Crimes Act 1958 (Vic) (which prohibits entry into a building as a trespasser with intent to steal):
As the gist of the offence created by s 76(1) is a trespassory entry, it is an offence with respect to the property entered, and mens rea is excluded by an honest claim of right to enter.
41. In the decision of R v Bedford [2007] SASC 276 Duggan, Gray and Vanstone JJ of the Criminal Court of Appeal of South Australia applied Walden and the earlier South Australian authority of R v Langham (1984) 36 SASR 48 in applying a claim of right defence to a charge of attempted robbery. The Court concluded that a belief in a claim of right is concerned with the entitlement to property but that the measures used (eg violence) may constitute another offence.
42. I note that s 38 of the Criminal Code 2002 (ACT) has replaced the common law on claim of right as a defence to criminal charges. Whilst not yet applied to this offence (I note a default commencement date 1 July 2017 Criminal Code Amendment Regulation 2013 (No 1)), s 38 purports to reflect the common law position. The Explanatory Statement says in relation to s 38(3) that the section “precludes claim of right in relation to the use of force. Thus in an armed robbery where a defendant had a claim of right in relation to the goods taken, the defendant could still be convicted of the armed assault”.
43. Whilst that provision does not apply to the offence here under consideration, it appears to me to properly reflect the common law. It would be poor public policy indeed in this day and age to carte blanche lawfully excuse the use of violence to recover property.
Conclusion
44. Based upon the above findings of fact and consideration of legal principle, I therefore find the following:
Charge 12/10501, assault occasioning actual bodily harm against Joseph Allais is dismissed.
Charge 12/10502, common assault against Tara Philip is proved.
Charge 12/10503, common assault against Lynette Philip is proved.
Charge 13/6217, common assault against Tara Philip is proved.
Charge 12/10504, common assault against Joseph Allais is dismissed.
I certify that the preceding 44 paragraphs are a true copy of the Reasons for Decision of
Chief Magistrate L A WALKERSharon Kemaken
Associate
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