R v Franze [2008] ACTSC 106 (17 September 2008)

Last Updated: 24 October 2008

R v DANIEL JOHN FRANZE

[2008] ACTSC 106 (17 September 2008)

EX TEMPORE JUDGMENT

No. SCC 419 of 2007

Judge: Higgins CJ

Supreme Court of the ACT

Date: 17 September 2008

IN THE SUPREME COURT OF THE )

) No. SCC 419 of 2007

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

DANIEL JOHN FRANZE

ORDER

Judge: Higgins CJ

Date: 17 September 2008

Place: Canberra

THE COURT ORDERS THAT:

1. A verdict of acquittal be entered.

1. This is a trial by judge alone. It follows that I must perform the functions not only of the trial judge but also of the jury, and in approaching that role there are a number of matters which I need to direct myself to bear in mind. The first, and most obvious, is that the prosecution bears the onus of proving the case against the accused and of proving that case to the criminal standard, which is beyond a reasonable doubt. That which the Crown must establish beyond a reasonable doubt, to make it a prima facie case, is, of course, that there was an assault on Emma-Lee Allan and it thereby occasioned her actual bodily harm.

2. I leave aside the latter aspect for the moment because no medical evidence has been adduced which would indicate that the bruise to the eye can be classified as actual bodily harm as opposed to bodily harm, in the sense of it being an injury inflicted upon the body. I say that because there is an indication that the eye swelled, and it would be possible for a jury to conclude that that was actual bodily harm, but in the circumstances pertaining here it may not be important.

3. The reason for that is that one of the matters which the Crown has to exclude, should it be fairly raised on the evidence, is self-defence, and that is in the context that an accused person not only bears no onus of proof, but also is entitled to the presumption of innocence. The main evidence against the accused is the video, and because the complainant herself offers very little in the way of evidence about that because she herself, as she conceded and would seem to be confirmed by the video, was very drunk, has no real recollection of what occurred, and certainly no recollection of what was going through her mind, or what other people did, apart from the fact that she knows that she was hit.

4. As I said, that does create a difficulty. It is possible to infer from the video that the accused, seeing her approach, struck a blow which may or may not have been as a result of a belief on his part that he needed to so act in self-defence, whether in defence of himself personally or in defence of his property, which is equally permissible. However, there is more to it than that; there is the background which has been given about it. Part of that background is the animosity that the complainant herself concedes existed between her and the accused due to the fact that he had told his friend, Mr Peisley, that she, the complainant, had, while he was in jail, cheated on him.

5. Whether she did so or whether she did not does not matter, the question is she certainly resented the fact, and conceded she did, that he was told that. She was angry towards him. That may or may not have been important on another occasion, but on this occasion she was angry at almost everyone. She was certainly angry at the young men in the Commodore. She simply would not desist from abusing them and beating up their car. She had to be dragged away from that by Ms Francis, obviously reluctantly, and it is a fair inference that she then turned her anger towards the accused and advanced upon him. He had by then got into his vehicle, but it is apparent from the video that upon seeing her approaching or sensing her approaching, whichever it was, he feared that before he could get away there would be some damage done to something, be it the car or him. In any event, it is clearly open on the evidence to assume that.

6. He got out of the vehicle and as she rushed towards him, and clearly she did, breaking away from Ms Francis as she did so, it is apparent that she was shaping up in a way that would be consistent, on anybody's view of it, that she was going to do him an injury should she be able to contact him. Whether she was acting rationally at the time, of course, is not the point, she may not have been, but that is not the issue. The issue is whether he might have feared that. In my view, on the DVD as displayed, that would not be an unreasonable assumption on the part of the accused.

7. He was therefore entitled to repel her advance towards him. He is obliged to consider the use of reasonable force for that purpose, not unreasonable force. It would not be appropriate for him to have brought out a baseball bat, for example, and beaten her with it. It would not have been appropriate, certainly, for him to have pulled out some other form of weapon and used it. But to use his fist to repel her, even though it meant, in the circumstances, landing a blow upon her face, certainly had the desired effect, if that was his intention. One cannot say, from what is been displayed here, that that was unreasonable.

8. Then to that, of course, one adds the evidence which has been given of Mr Peisley, who makes it quite clear from his perspective that the complainant was attacking Mr Franze. He said she was going crazy and he did recall a previous incident where she had not only attacked him physically, but also produced a knife. There is no suggestion Ms Allan had a knife with her, but, on the other hand, the accused might not have wanted her to get too close. He did say that it appeared to be a serious attack to him.

9. Then there is the evidence which has been tendered by way of evidence given in the Magistrates Court of Ms Francis who would support that hypothesis. She said, to quote one part of her evidence, "She flew at him", meaning the accused, "like she wanted to kill him", and, "She was attacking anyone she could that night." As I say, the video footage is certainly not inconsistent with that view.

10. In those circumstances, it seems to me it is impossible to come to any view other than that the prosecution could not displace the hypothesis that Mr Franze was acting in self-defence when he struck the blow that he did and, accordingly, that being the case, there must be a verdict of acquittal, which I enter as a result.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 17 September 2008

Counsel for the Crown: Mr M Clarke

Solicitor for the Crown: Director of Public Prosecutions for the ACT

Counsel for the defendant: Mr S Gill

Solicitor for the defendant: Kamy Saeedi Lawyers

Date of hearing: 17 September 2008

Date of judgment: 17 September 2008