R v Richard Mulcahy

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Nield A/J
• Judgment Date: 26 August 2010
• Docket Number: No. SCC 364 of 2008
• Date: 26 August 2010

[2010] ACTSC 98

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Nield A/J

No. SCC 364 of 2008

R

and

Richard Mulcahy

Counsel for the Prosecution: Ms S McMurray

Counsel for the Accused: Mr F J Purnell, SC

Crimes Act 1900 (ACT), S 24

CRIMINAL LAW — trial by judge alone — assault occasioning actual bodily harm — elements of offence proved —self-defence — whether the accused had cause to believe that he had to use force to defend himself — critical element of self-defence not proved — verdict of guilty entered

ORDER

THE COURT ORDERS THAT:

1. A verdict of guilty be entered in respect of the charge on the indictment.

RESERVED JUDGMENT

1 At about 4.50pm on 2 December 2007 an incident involving the complainant, Mr Nicholas Carl Francis Gerhard, and the accused, Mr Richard James Mulcahy, occurred at the green waste area of the Mugga Lane Tip, also known as Corkhill Bros waste recycling facility.

2 The fact of the incident is not in dispute. However, what happened during the incident is in dispute. The Crown alleges that the accused, without justification, punched the complainant's face, thereby causing a laceration to the left side of his upper lip, and knocked him to the ground, thereby causing a laceration to the back of his head. The accused admits that he punched the complainant's face, causing the laceration to the lip, and knocked him to the ground, causing the laceration to the head, but claims that what he did was justified because he acted in self-defence against the actions of the complainant towards him.

3 At about 5.10pm on 2 December 2007 the accused attended at Woden Police Station and reported the incident to Constable Andrew Stuart Lockley. What the accused told Constable Lockley about the incident is contained in Constable Lockley's notebook (Exhibit F1) and recited in his statement (Exhibit F2).

4 At sometime after 5.10pm and before 6.10pm on 2 December 2007 the complainant attended at Woden Police Station with his wife to report the incident to police. He was told to go to hospital for treatment and that someone would speak to him at the hospital.

5 At 6.10pm on 2 December 2007 the complainant attended at the Canberra Hospital seeking treatment for his injuries. Details of the complainant's injuries and the treatment that he received for them are contained in the clinical notes of the Emergency Department of the hospital (Exhibit C).

6 At about 6.35pm on 2 December 2007 Constable Denis James O'Donnell, together with Constable Peter Dearing, attended at the Canberra Hospital to speak to the complainant in relation to the complainant's report of the incident to Woden Police Station. What the complainant told Constable O'Donnell about the incident is contained in Constable O'Donnell's notebook (Exhibit G1) and is recited in his statement (Exhibit G2).

7 On 13 February 2008 a summons was issued out of the ACT Magistrates Court charging the accused with having assaulted the complainant, thereby causing actual bodily harm to him, contrary to s 24 of the Crimes Act 1900 (ACT) and requiring him to appear before the court on 17 March 2008.

8 Accordingly, on 17 March 2008 the accused appeared before the Registrar of the ACT Magistrates Court in answer to the summons and, on being arraigned, he entered a plea of not guilty to the charge and the proceedings were adjourned to a later date.

9 In due course, on 22 September 2008 the accused appeared before a magistrate in the ACT Magistrates Court for a committal hearing in relation to the offence with which he had been charged. It was a paper committal hearing. He did not consent to the Magistrates Court having jurisdiction to hear the charge. He was committed to this Court for trial.

10 On 16 August 2010 the accused appeared before me in this court to stand his trial. It was to be a trial without a jury. He was represented by Mr Purnell of Senior Counsel. Mr Purnell told me that the issue in the trial was whether or not the accused had acted in self-defence.

11 The following witnesses gave evidence in the accused's trial:

• (1) the complainant, Mr Gerhard;

• (2) Mr Robert Gordon Mackey;

• (3) Mr Scott Oliver Mackey;

• (4) Constable Lockley;

• (5) Constable O'Donnell;

• (6) Mr Jonathan Michael Benyei;

• (7) the accused, Mr Mulcahy;

• (8) Mr Robert Morrison;

• (9) Mr Stephen Leslie McGowan;

• (10) Mrs Robyn Gayle Sutton;

• (11) Mr Paul Francis Sutton;

• (12) Mrs Dorothy Barclay;

• (13) Dr Andrew Peter Black;

• (14) Mrs Elizabeth Anne Mulcahy.

12 The following documents were admitted into evidence during the trial:

(A) sketch of the area for disposing of green waste at the Mugga Lane Tip drawn by the complainant;

(B1) and (B2) photographs showing the injury to the complainant's mouth and head taken by police on 2 December 2007;

(C) clinical notes of the Emergency Department of the Canberra Hospital related to the complainant's treatment at the hospital on 2 December 2007;

(D) sketch of the green waste area at Mugga Lane Tip drawn by Mr Robert Mackey;

(E) sketch of the green waste area at Mugga Lane Tip drawn by Mr Scott Mackey;

(F1) and (F2) notes and statement of Constable Lockley;

(G1) and (G2) notes and statement of Constable O'Donnell;

(H) photograph showing the green waste area at Mugga Lane Tip taken by Mr Benyei on 2 December 2007;

(J1) and (J2) photographs showing the injury to the complainant's mouth and head taken by Mr Benyei on 2 December 2007;

• (1) photographs showing bruising to the accused's left upper arm and shoulder taken by Mrs Mulcahy on 4 December 2007;

• (2) notes of Dr Black related to his examination of the accused on 7 December 2007.

13 A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules which govern a criminal trial are these.

14 The Crown bears the onus, burden or obligation, to use three interchangeable words, to prove the guilt of the accused. The Crown has asserted that the accused has committed a criminal offence, therefore the Crown must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence.

15 The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.

16 The accused is presumed by law to be innocent of the offence with which he stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.

17 In addition to the fundamental rules which govern a criminal trial, the following rules have been developed.

18 As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.

19 I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence.

20 I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.

21 I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.

22 I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.

23 The accused gave evidence on oath. He was not required to do so; he could have elected not to give evidence. By giving evidence he became a witness in his trial. His evidence is not any better or any worse than the evidence of other witnesses in his trial simply because he is the accused. His evidence falls to be considered in the same way as the evidence of the other witnesses in his trial falls to be considered. However, by giving evidence he did not assume any burden, onus or obligation to prove anything in his trial.

24 In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt. The essential elements of the charge against the accused are:

As I have said already, the accused admits that he punched the complainant's face, an act which is an assault, and that, as a result of the punch, the complainant suffered lacerations to the upper lip and head, which injuries amounted to actual bodily harm.

• (1) that he assaulted the complaint, and

• (2) that, as a result of that assault, the complainant suffered actual bodily harm.

25 However, as I have also said, the accused claims that what he did was justified because he acted in self-defence to the actions of the complainant towards him. The law recognises the right of a person to act in self-defence against an attack, or the threat of an attack, by another...