Turner v Horan
[2021] TASSC 16
•16 April 2021
[2021] TASSC 16
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Turner v Horan [2021] TASSC 16 |
| PARTIES: | TURNER, Andrew Michael |
| v | |
| HORAN, Melinda | |
| FILE NO: | 2903/2020 |
| DELIVERED ON: | 16 April 2021 |
| DELIVERED AT: | Burnie |
| HEARING DATE: | 14 April 2021 |
| JUDGMENT OF: | Pearce J |
| CATCHWORDS: |
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Appeal against finding of guilt on one count of common assault which was also a breach of a family violence order – Finding of
guilt reasonably open to the magistrate.
Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, applied.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Appellant: K Abercromby Respondent: V Dawkins
Solicitors:
Appellant: Legal Aid Commission of Tasmania Respondent: Director of Public Prosecutions
| Judgment Number: | [2021] TASSC 16 |
| Number of paragraphs: | 20 |
Serial No 16/2021 File No 2903/2020
ANDREW MICHAEL TURNER v MELINDA HORAN
| REASONS FOR JUDGMENT | PEARCE J 16 April 2021 |
1 The applicant, Andrew Turner, was charged on complaint with one count of common assault and one count of breaching a family violence order. The offences were alleged to have been committed on 17 October 2020 against his partner Jody Beasley. Following a hearing conducted before a magistrate, Mr D Fairley, on 12 November 2020 both charges were found proved.
2 The sole ground of this motion to review is that the learned magistrate erred in fact and in law in finding the applicant guilty when "such a finding was not reasonably open on the evidence". On a motion to review on such a ground, the principles to be applied are well established. It is not for me to weigh the evidence and reach my own conclusion. What is to be considered is whether, on the evidence, the magistrate might, as a reasonable person, have come to the conclusion he did: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21; Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454; Cuthbert v Coates [2018] TASSC 7 at [4]-[5]; JJMH v Bonde [2020] TASSC 24.
3 In this motion, the applicant relies on s 182(3) of the Criminal Code. That subsection excludes from an "assault" any "act which is reasonably necessary for the common intercourse of life if done only for the purpose of such intercourse, and which is not disproportionate to the occasion". The substance of the applicant's contention is that it was not open to the magistrate, as a reasonable person, to find that the force applied by the applicant to Ms Beasley was not an act which fell within the terms of s 182(3), and thus was not an assault. In my view there was ample evidence which entitled the magistrate to reach the conclusion he did, and the motion must be dismissed.
4 The hearing before the magistrate was a relatively short one. On 17 October 2020 the applicant and Ms Beasley lived together in East Devonport. They had been together for 13 or 14 years but had only been at this address for a couple of weeks. They were living in a tent in the back yard. The particulars of the charge of common assault were that, on 17 October 2020, the applicant unlawfully assaulted Jody Beasley by grabbing her. A copy of a family violence order made on 9 December 2019 and directed to the applicant was tendered to the magistrate. The order was expressed to remain in force for a period of 12 months from that day. It was a condition of the order that the applicant not assault Ms Beasley. If the assault was proved the breach was also proved.
5 Ms Beasley gave evidence that the applicant had started calling her names the night before, including that she was a "slut" and a "dog". By the morning she had "had enough of it". She decided to leave and stay at a friend's house so she could have some peace. She walked out into the driveway but, she said, the applicant followed her, tried to stop her from leaving and "called her a few names." She said:
"… I think he was just following me out the driveway and just getting in front of me
to that I couldn't, you know, go straight ahead. I'd go around me, he'd just step in front
of me again."
6 Ms Beasley was asked whether the applicant made contact with her at any stage. She answered that "I think he might've had hold of me, just to stop me from going." She wasn't sure what she said at the time, but told the magistrate that "I was probably just saying just let me go, I just wanna go." She remembered some other people came out and asked "for Andrew to take his hands off me or something,
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you know". When cross-examined, Ms Beasley repeated her memory that the applicant had hold of her "at one point." She agreed that the applicant had hugged her, that it was not a forceful hug and that she had said "let me go, I want to leave". When it was suggested to her that "at no stage did he have hold of you" she answered "look, possibly".
7 Tiffany Bowerman and her partner Kyle Mitchell lived next door. Ms Bowerman gave evidence that about 8.30 am on 17 October 2020 the noise of "scuffling" and of a male yelling drew her attention to her driveway outside. She said she looked out of the window and "just seen two people fighting outside". She said that she saw a male and a female "standing there". She was scared by what she saw and heard and woke her partner. She said he "peeked out the blinds to see what was going on", and then dressed. They went outside together. Her partner took a baseball bat. She said that Mr Mitchell "pretty much told him to keep his hands off the girl", although the male claimed that "nothing had happened". They called the police. They also offered the female the opportunity to come inside their home, but she did not do so. She described the male as being "very abrupt and angry" and that the female appeared scared and was crying.
8 Mr Mitchell told the magistrate that, after he was woken by his partner, he "heard an argument out the front". He said that he looked out the window and saw a male and a female arguing, and "her trying to get away and him trying to stop her". When asked to explain how the male was trying to stop her, Mr Mitchell said that he saw the female sitting on the fence and the male had his arms around her. When asked what made him think that the female was trying to get away, he answered that it was her saying "let me go". He said that the female asked him to take her to Devonport and that she was crying and quite upset. The male appeared upset and angry. After a minute or two he and Ms Bowerman went back inside and the male and the female left. In cross-examination it was put to him that what he saw was a hug gesture. He answered that he did not really remember. When asked whether he knew where the applicant's hands were he answered "they were around her but I'm not sure where." He agreed that he heard the applicant say something like "please don't go."
9 Constable Natasha Daniels was called to the address at around 8.30 am. She attended with another officer and activated her body worn camera. The sound and images recorded on the camera were played to the magistrate. They do not add greatly to the force of the prosecution case, although Ms Beasley can be heard to complain that she had been abused and assaulted. The applicant participated in an interview in which he gave his account of events. In substance, he claimed that he did not grab Ms Beasley, only hugged her to provide comfort and affection because he was worried about her mental health. He told the police that he and Ms Beasley had been arguing. He agreed that he had called her names like a bitch or a dog but that he did so because he did not know how to deal with the way in which she behaved. He said that when she left and walked down the driveway he went out to talk to her
but she did not want to come back in. He said "I just put my arms around her … and begged her not to
leave." Later, he said "At first I gave her a cuddle." He said that she asked him to "let her go" and that he did. He suggested to the police that there was no reason for the man who came out to the balcony with the baseball bat to become involved, and that Ms Beasley was not angry until the police arrived.
10 After hearing the evidence, the magistrate retired to consider his decision. He gave it the same day. He recited the evidence and correctly directed himself about the law of assault. The Police Offences Act 1935, s 35(1), provides that a person shall not unlawfully assault another person. The principles of criminal responsibility which apply to the crime of assault in the Code, ss 182 and 184, apply: Acts Interpretation Act 1931, s 36. Thus, to find the charge proved, it was necessary for the magistrate to be satisfied that the applicant, by voluntary and intentional act, intentionally applied force to the person of Ms Beasley, and that the application of force was unlawful. It is clear from the terms of his Honour's reasons that he was conscious of the terms of the Code, s 182(3). He made findings in the following terms:
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"The defendant's explanation provided to police conflicts directly with the evidence of Ms Beasley and the two independent witnesses Mr Mitchell and Ms Bowerman. Mr Turner's version of events simply does not ring true. He admits to verbally abusing his partner on the one hand but then says he was attempting to comfort her on the other. I do not accept Mr Turner gave police a truthful account of the events of the 17th of October last.
While Ms Beasley was not a particularly convincing witness, Ms Bowerman and Mr Mitchell were. I am satisfied beyond reasonable doubt that they both observed Mr Turner have hold of the complainant in an effort to prevent her from leaving. As this is conduct that goes beyond that which is reasonable necessary for the common intercourse of life the charge has been made out."
11 As was explained in Boughey v The Queen (1986) 161 CLR 10, the effect of s 182(3) is "to exclude from an 'assault', for the purposes of the Code, commonplace, intentional but non-hostile acts such as patting another on the shoulder to attract attention or pushing between others to alight from a crowded bus. Such acts are, if committed inoffensively, regarded by the common law as ordinary incidents of social intercourse which do not, without more, constitute battery."
12 There could be no dispute that the applicant applied some force to Ms Beasley. It was not contended on this motion that the force was justified or excused by any fact beyond the operation of s 182(3). The applicant contends that it was not open to the learned magistrate, as a reasonable person, to be satisfied beyond reasonable doubt that the force applied by the applicant to Ms Beasley went beyond such force.
13 I first address the applicant's complaint that the evidence justified a finding only that the applicant "hugged" rather than "grabbed" Ms Beasley. The complaint particularised the assault as having been committed by "grabbing". Reliance is placed on the Macquarie Dictionary definition of "grab" as meaning "to seize suddenly and eagerly; snatch". The applicant submits that there is no evidence to support a finding that such an act occurred. The argument that there is a variation between the terms of the complaint and the evidence should be rejected. The word "grab" can have a range of meanings and, in this context, would include to grasp or have hold of. A person who restrains another, even for a short time, by the act of putting their arms around that other person can be said to "grab" them. In any event, it would be contrary to the merit and justice of the case for the motion to succeed merely because of a mis-description or variance with the evidence of such a trivial nature. To adopt the words and reasoning of Brett J in Irons v Moore [2019] TASSC 22, the particulars of the complaint did not misinform the applicant of the nature of the allegation against him. The incident in question was clearly identified and addressed by the evidence. As Brett J also pointed out, the provisions of the Justices Act 1959, s 31(4), apply to the effect that, absent a claim of prejudice, objection shall not be taken to a summons in respect of a variance between it and the evidence in support of the complaint.
14 There were some aspects of the applicant's account which were consistent with prosecution witnesses. He admitted applying force to Ms Beasley by putting his arms around her. However, as the magistrate correctly found, there were significant differences between his account and the prosecution evidence. The applicant correctly contends that, contrary to the magistrate's finding, Ms Bowerman did not give express evidence of observing the applicant to have hold of Ms Beasley. I think it was open to the magistrate to infer that is what she saw because she gave evidence of being with Mr Mitchell when he told the applicant to "take his hands off the girl." However there is no ground challenging that finding and, in light of all the evidence, it is not a matter which should affect the result of the motion. The applicant does not submit to the contrary. In other important respects, Ms Bowerman's evidence was in direct conflict with the evidence of the applicant, as was the evidence of Mr Mitchell. Both gave evidence of an argument outside their home. Ms Bowerman heard yelling from a male sufficient to scare her. She said that the applicant was abrupt and angry and that Ms Beasley appeared scared and was crying. What Mr Mitchell heard and saw was enough to make him think it necessary to arm himself
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with a baseball bat. He described the applicant having his arms around Ms Beasley while she was sitting on the fence, and trying to stop her because she was saying "let me go." He also said that Ms Beasley was crying and the applicant was upset and angry. The applicant said nothing of argument between him and Ms Beasley of the sort which Ms Bowerman and Mr Mitchell described, and claimed that Ms Beasley did not become angry until the police arrived.
15 The magistrate had the advantage of seeing and hearing the witnesses. He was entitled to reject the applicant's evidence, as he did. On the basis of the prosecution evidence it was plainly open to the magistrate, as a reasonable person, to conclude that the applicant applied force to Ms Beasley which went well beyond what was reasonably necessary for the common intercourse of life. The overwhelming force of the evidence given by Ms Beasley and by Mr Mitchell, viewed with the evidence of Ms Bowerman, was that the applicant applied force to Ms Beasley in an attempt to prevent her from leaving. There was ample evidence that Ms Beasley was distressed and that she asked him to let her go. On that basis, the magistrate's conclusion that the applicant's acts were not an ordinary incident of social intercourse was plainly correct. At the very least it was a finding which, as a reasonable person, was open to him. The partial concession made by Ms Beasley in cross-examination that it was possible that the applicant did not have hold of her does not mean that, when all the evidence is taken into account, the magistrate's finding was not open to him.
16 The applicant contends that the magistrate could only have been satisfied that he hugged Ms Beasley without hostile intent. However, it was not necessary for the prosecution to prove that the applicant applied force with hostility or hostile intent. The operation of s 182(3) was considered in Boughey v The Queen (above). At 24, Mason, Wilson and Deane JJ stated:
"The effect of this provision is to exclude from an 'assault', for the purposes of the Code, commonplace, intentional but non-hostile acts such as patting another on the shoulder to attract attention or pushing between others to alight from a crowded bus. Such acts are, if committed inoffensively, regarded by the common law as ordinary incidents of social intercourse which do not, without more, constitute battery."
17 In a passage also referred to by the applicant, their Honours continued at 25:
"Where the existence of hostility or hostile intent may be of decisive importance is in a case which would otherwise be of the kind which s 182(3) excludes from 'assault' for the purposes of the Code in that hostility or hostile intent may convert what would otherwise be unobjectionable as an ordinary incident of social intercourse into battery at common law or an assault for the purposes of the Code. Apart from such cases, however, the absence of such hostility or hostile intent towards the person to whom force is applied neither precludes the intentional application of force to the person of another from constituting battery at common law or assault under the Code nor, of itself, constitutes a justification or excuse for it."
18 As I have already explained, the magistrate was entitled to conclude that the force applied by the applicant was not an ordinary incident of social intercourse for reasons including that he applied force to Ms Beasley to prevent her from leaving.
19 Although it is not determinative of the motion, the finding that the applicant assaulted Ms Beasley was open even on the applicant's own account. Although the words used by the applicant in his police interview are a little difficult to hear and understand, I am satisfied that the effect of what he said was that he did not immediately let Ms Beasley go because he did not want her to leave, and did so only when she said "you're hurting me". In my opinion, his admission that he applied force for that reason, even if from concern or affection, justified a finding that the force did not fall within the operation of s 182(3).
20 The motion is dismissed.
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