Todd Dale Richards v Royce John Kerrison - [2013] ACTMC 15

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.…

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: [2013] ACTMC 15
Decision Date: 30 AUGUST 2013

CaseChat Overview and Summary

The case before the Court of Appeal involved Todd Dale Richards, the appellant, who was appealing his conviction for common assault against Royce John Kerrison, the respondent. The dispute arose from an incident where Richards forcibly removed Kerrison from a property, which Richards claimed to own. The appeal was heard by the Court of Appeal, which had to determine the validity of Richards’ claim of right as a defence to the charge of assault.

The primary legal issue before the court was whether the appellant's belief in his ownership of the property could serve as a defence against the charge of common assault. The court had to examine whether the “claim of right” doctrine could be invoked in this context and if it negated the requisite intent to commit an assault. The court needed to consider the elements of the offence of assault and whether the appellant’s actions could be justified under the circumstances.

In delivering the judgment, the court held that the doctrine of claim of right could be applicable in certain contexts, particularly when the defendant's actions are taken in the belief of protecting their property rights. However, the court found that the claim of right did not absolve the appellant of the intent to commit an assault. The court determined that even if Richards believed he had the right to be on the property, his use of force to remove Kerrison constituted an assault. The court further held that the appellant's belief in his ownership did not negate the requisite intent to commit an assault, as the use of force was excessive and unreasonable. Consequently, the appeal was dismissed, and the conviction for common assault was upheld.

Orders