R v Barrington [2009] ACTSC 121 (18 September 2009)

Last Updated: 26 October 2009

R v ANN BARRINGTON
[2009] ACTSC 121 (18 September 2009)

CRIMINAL LAW – trial by judge alone – assault occasioning actual bodily harm – common assault – self-defence – what amounts to actual bodily harm – each count not proved to necessary degree of certainty

Supreme Court Act 1933 (ACT), s 68C

Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645
R v Miller [1954] 2 QB 282
Hogan v R [2008] NSWCCA 150
Papadopoulos v R [2007] NSWCCA 274

No. SCC 264 of 2008

Judge: Higgins CJ
Supreme Court of the ACT
Date: 18 September 2009

IN THE SUPREME COURT OF THE )
) No. SCC 264 of 2008
AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

ANN BARRINGTON

ORDER

Judge: Higgins CJ
Date: 18 September 2009
Place: Canberra

THE COURT ORDERS THAT:

1. A verdict of acquittal be entered in respect of each count.

1. On 13 August 2008, the Director of Public Prosecutions presented an indictment against Ms Barrington (the accused) containing two counts alleging that she, at Canberra in the Australian Capital Territory on 31 December 2007

... assaulted Nancy Mills and thereby occasioned to her actual bodily harm ... in the alternative ... assaulted Nancy Mills

2. A committal proceeding took place before Magistrate Lalor on 7 July 2008. Up to that point the charge was common assault. The prosecution added the first count mentioned above at the outset of the hearing. To that point it was indicated by Mr Archer for the accused that he anticipated that the matter would proceed as a summary trial, though no election was then made. At the end of the evidence, Mr Archer indicated that, in the light of the fresh charge, no consent would be given to the exercise of summary jurisdiction. The matter was committed for trial accordingly. This is, and was a matter that should have been determined in the Magistrates Court.
3. On 3 March 2009, the accused entered a plea of not guilty to each count. A hearing date of 19 August 2009 was allocated. The accused had, on 16 December 2008, elected for trial by judge alone.

Trial by Judge alone

4. Section 68C of the Supreme Court Act 1933 (ACT) provides:

(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.
(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

5. Thus in this trial, the prosecution bears the onus of establishing the guilt of the accused in respect of the first count or, failing that, the second count. That onus never shifts to the accused. She bears no onus, evidential or legal, to prove anything. The prosecution must prove each element of the offence, not merely on the preponderance of likelihood, but beyond a reasonable doubt. It must also be presumed that the accused is innocent. That means not only that the presumption must be respected unless and until guilt is so established but also that the evidence must be assessed on the basis that an adverse inference will not be drawn from any of it if an alternative inference is reasonably open.
6. The elements of each of the offences the prosecution relies upon are, in respect of each count, that the accused assaulted the complainant, Ms Mills, and in respect only of the first count if that is to be proved, that that assault occasioned actual bodily harm.
7. Dealing with the first element, although assault may be constituted by a threatened application of force to the person of another, the charge in this case alleges the actual application of force by the accused to the person of the complainant. It is necessary for the prosecution to prove that such force was applied intentionally, that is, not accidentally or inadvertently and without the consent of the victim. Even force applied negligently will not suffice, though recklessness as to whether force is applied would suffice. Further, even if the application of force is intentional, it must appear that it was not applied in the usual or acceptable context of ordinary social interaction. Most significantly for the present case, the prosecution must, if the issue is raised, negative self-defence.
8. Self defence, for present purposes, may be taken to be, as the High Court determined in Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645, whether the accused acted as she did pursuant to a belief, held on reasonable grounds, that it was reasonable and necessary for her to apply that force which she did intentionally apply. It is relevant in that context to consider whether the accused provoked or induced an assault upon her so as to give rise to the occasion relied upon as justifying the application of force and, if so, whether the initial aggression had ceased or had been consented to. That goes to the judgment as to whether the accused can be said to have had a genuine belief that it was necessary for her to act as she did in self-defence. The proportionality of the response will also be relevant to that question.
9. In relation to the first count, the question is whether the injury sustained by the complainant, if a result of an assault upon her by the accused, amounts to actual bodily harm. That term includes any hurt or injury calculated to interfere with the health or comfort of the complainant (see, for example, R v Miller [1954] 2 QB 282, 292 per Lynskey J – that may include a hysterical or nervous condition).
10. In Hogan v R [2008] NSWCCA 150 it was accepted that scratches to the back, marks to the neck and a split lip could amount to actual bodily harm. However, whilst it includes bruising it must more than a transient or trifling injury (see Papadopoulos v R [2007] NSWCCA 274, [53].

The evidence

11. The prosecution called the complainant as a witness. She deposed that she had been a neighbour of the accused for the last 15 years. They lived respectively at number 5 and number 7 Strahan Row, Yarralumla. The premises shared a party wall. There had been a dispute, years before, about the actual boundary between the two properties, though that did not involve the complainant.
12. The event, as the complainant recounted it, occurred about 11.15 am on 31 December 2007. The complainant had been mowing her front nature strip. She paused to speak to Mr Jeremy Logan, resident at 3 Strahan Row, at a point on the footpath between his property and that of the accused.
13. They had a brief conversation and the accused emerged from her front door in a ‘rather purposeful and speedy manner’ and said to them “You’re colluding against me”.
14. The complainant and Mr Logan then parted, Mr Logan returning to his property and the complainant walking towards her lawnmower. As she did so, she heard the latch of the accused’s gate being activated. She heard and felt something fall at her feet. A branch of a tree had been thrown in her direction. She was a bit startled and turned and picked the branch up.
15. She saw the accused coming towards her. The latter, she said looked “kind of angry”. As she picked the branch up, the complainant said, “This is the branch from your tree and I tossed it away from both of us over her hedge”. Then, she said, the accused lunged at her and “like a bear would claw somebody, began hitting me with both arms, both hands”.
16. She was hit on the face and chin and sustained some scratches which stung. She said to the accused, “Stop it, get away from me”. The accused continued to hit her and the complainant sustained a further scratch, lifting a flap of skin from her palm and other scratches and a forceful hit to her other arm.
17. The accused then adopted a “karate stance” with teeth clenched and “a big grin”. The complainant said, “You’re a very dangerous woman”. The accused changed her expression, turned and went back to and through her gate “which was still open”. At that point, she observed Mr Rickman Lilienthal, a friend of the accused, come to the accused’s front door. The accused called out to him, “Rick, Rick, Nancy’s assaulted me; call the police”. She heard Mr Lilienthal say, “Do you really want me to call the police?” The complainant was then, she said, “... stuck in my stance of standing” and said “Call the police. Please call the police”.
18. Mr Logan then appeared and the complainant went to his house and called the police. Police attended about 12.15 pm or thereabouts. Photographs were taken.
19. The photographs as tendered disclose scratch marks to the complainant clearly constituting abrasions, five in number, to the facial and chin area. There was a slight scratch to the left wrist area and, noted later, a bruise to the right forearm. There was a scratch lifting a flap of skin to the palm of the left hand.
20. In cross-examination, the complainant agreed that there had been litigation between herself and the accused in 2005 over some flashing to the roof on and over the party wall. She also complained of a continuing course of verbally abusive or insulting language emanating from the accused. She had not earlier mentioned that, she said, because in the Magistrates Court, Mr Archer’s questions had been “quite fast”. Nevertheless, she did agree that she had said to the accused, who had a disabled daughter, “It would be karmic if your daughter lost her other eye”. That, she agreed, was “not a very nice thing to say”.
21. She denied that, on the day of the incident, whilst mowing her mature strip she had picked up twigs or small branches that had fallen there and she insisted that the stick she referred to had, she believed, been thrown at her. She had seen it, she said, in front of the accused’s property as she walked back to her lawnmower. She agreed that she had not pointed out to the police officers where it was and did not expressly state it had been thrown “at her”.
22. She threw it over the accused’s front hedge. Her stated reason for doing so was “... because it’s her stick from her branch – a branch of her tree. And my front lawn doesn’t have a hedge”. The relevance of that was, she said, that it put the stick out of the reach of the accused. She had said as she had done so “this is a branch from your tree” but there were, she said, no raised voices from herself or from the accused, though she may have raised her voice when she said, “Stop it. Get away from me. You’re a dangerous woman”. She denied anything was said to her about throwing debris onto the accused’s nature strip. She had told police that she had “yelled” those words. She also agreed that, contrary to her earlier evidence, she had acknowledged, in the committal proceedings, that she had expressed the “hope” that the accused’s daughter would lose her other eye. There had, also, it seems, been an application or complaint to the Mental Health Tribunal by the complainant concerning the accused. The Crisis Assessment Team declined to act on that complaint. They recorded that the complainant became “terse” when they did so. She had also complained that the accused was taping her telephone calls.
23. She denied Mr Archer’s suggestion that she approached the accused following the latter protesting about twigs and branches being moved onto her nature strip by the complainant and “chested” her, pulling at her hair and striking at her as she struck back.
24. Mr Lilienthal gave evidence that on New Year’s Eve 2007 he had been visiting the accused. He had been reading a journal. The accused was moving around preparing food. On one occasion when she moved out of the kitchen she remarked that Mr Logan and the complainant were standing at her front gate and looking in. She then left the house. He then read two or three sentences and heard some “very loud shouting, a female voice, low-pitched”. He did not recognise the voice. It was “a ranting, guttural continuous sound”, aggressive and angry. He could not make out what was said. He then walked to the front door, opened it and looked out. He saw the accused at a bench halfway between her door and the gate. She said to him, “She assaulted me” and he replied, “Well, call the police then”. He saw Mr Logan standing at the gate. The latter told Mr Lilienthal that he had not seen anything.
25. Mr Lilienthal asked the accused what had happened.

She said she had gone out because she’d observed Ms Mills throwing a birch twig or small stick from Ms Mills’ – the nature strip outside Ms Mills’ place onto Ms – the nature strip outside Ms Barrington’s place and that she went out to ask her to stop doing that, that Ms Mills had gone and gone to that stick where it was lying. She picked it up and hurled it over Ms Barrington’s front hedge into her courtyard and that Ms Mills had brushed up against Ms Barrington, pushed her whole body against Ms Barrington, was shouting, screaming, that she – that she had spit from Ms Mills coming onto her cheeks and face, that Ms Mills grabbed her hair, that she felt very threatened. There was a very short struggle until Ms Barrington could get away.

26. The demeanour of the accused, he considered, was consistent with suffering shock. There was a small round mark on her left cheek with a small abrasion. He accompanied the accused to the police station. After about five hours she was charged and released.
27. Constable Jevtovic had attended the scene of the incident, apparently in response to the complainant’s complaint rather than that of the accused. However, he and Constable Ford conducted a taped interview with the accused. A statement of Constable Ford was tendered by consent. Constable Jevtovic could not recall seeing any injury to the accused’s face but did recall it being mentioned. He had not, surprisingly, sought the record of the conversation which the accused had with police operations concerning this matter. It was recalled by him that the accused had complained of being assaulted but did not want to lay charges.
28. He did not recall the complainant saying that she had been struck or nearly struck by a stick thrown by the accused. If he had been so told, he agreed, he would have attempted to find and seize the stick. It appeared that Constable Ford had noticed the mark on the accused’s face. Notwithstanding that, no photograph of the accused’s face was taken. If there had been an identification photograph taken, the prosecutor advised that none was available. This was a serious lapse in proper police procedure.
29. The record of interview with the accused lasted nearly one hour. The accused seemed to be giving full answers to the questions she was asked. I have to remind myself that she was not obliged to answer questions. She was entitled to offer no answer to the allegations put to her and no adverse inference could be drawn from that refusal to offer an answer.
30. It is not necessary to recite the accused’s answers in the record of interview. Suffice to say they gave an account consistent with that reported by Mr Lilienthal. The accused did not claim to be solely defending herself in grappling with the complainant, rather she said that she responded in a like manner to the attack upon her by the complainant.
31. The accused gave sworn evidence. It was consistent with her previous statements, albeit those were unsworn and not subject to cross-examination.
32. In cross-examination, she denied the version of events given by the complainant where it was inconsistent with her account of it. She did say that she felt threatened by the complainant and that she “lashed out” to defend herself. It was not put to her that she had told police that she retaliated but the two descriptions are not necessarily inconsistent.
33. Mr Hickey conceded that to prefer the complainant’s version of events to the extent that I could be satisfied beyond reasonable doubt of it was ‘difficult’ but contended that the version given by the accused was sufficiently improbable to enable that judgment to be made. He called in aid that the complainant had obvious signs of injury whereas the accused had only one slight sign of injury.
34. Mr Archer, for the accused, contended, in effect, that the prosecution had not produced evidence which would satisfy me beyond reasonable doubt that the account of the incident the accused gave was false.
35. In my view each of the witnesses, the complainant, the accused and Mr Lilienthal seemed credible. Mr Lilienthal’s account of what he heard might, to an extent, favour the accused’s version. However, it is not obviously inconsistent with the complainant’s account assuming her account of not yelling is qualified as I think it must be.
36. In the result, particularly taking account of the accused’s prior good character, I simply cannot be satisfied that her account of being physically attacked by the complainant is false to the necessary degree of certainty. The onus is on the Crown to negative self-defence or a consensual affray beyond reasonable doubt. It is, of course, possible that the accused did retaliate rather than simply repel an attack. However, even in that context that I cannot be certain that the complainant was still grappling and struggling with the accused so as to indicate a willingness to engage in mutually hostile confrontation.
37. In either event, the central allegation in each count is not proved to the necessary degree of certainty. I would add that I am not persuaded that the injuries suffered by the complainant, even had the allegation of assault been made out, were sufficient to amount to actual bodily harm. However, it is unnecessary to rule upon that issue.
38. There must be a verdict of acquittal in respect of each count. I find the accused not guilty accordingly.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 18 September 2009

Counsel for the Crown: Mr T Hickey
Solicitor for the Crown: Director of Public Prosecutions for the ACT
Counsel for the Defendant: Mr K Archer
Solicitor for the Defendant: Michael J Ryan & Associates
Date of hearing: 19 and 20 August 2009
Date of judgment: 18 September 2009