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Local Court 18 January 2019

Police v McGuire

[2019] NSWLC 10

Assault & violence
CRIMINAL LAW COMMON ASSAULT DEFENCE CASE WHETHER DEFENDANT’S CONDUCT INTENTIONAL SELF DEFENCE

Citation: Police v McGuire [2019] NSWLC 10
Court: Local Court of New South Wales
Date: 18 January 2019
Judge(s): Magistrate Tsavdaridis

Background

The defendant was a carer and disability support worker employed at a government-operated group home in Galston, NSW. He was responsible for the day-to-day care of four young adults with profound intellectual disabilities. The two alleged victims were female residents, one aged 24 with severe autism, severe developmental delay and epilepsy, and the other aged 42 with cri du chat syndrome (a chromosomal disorder affecting cognitive and physical development). Both presented with challenging behaviours including aggression, hyperactivity and repetitive movements.

The prosecution alleged two separate incidents of common assault, contrary to section 61 of the Crimes Act 1900 (NSW). In the first incident, the defendant was alleged to have grabbed the back of one resident's hands, pushed her into a seating room, and pressed down on her shoulders to seat her. In the second, he was alleged to have dragged the other resident backwards approximately seven metres from a laundry to her bedroom while restraining her with his arms around her waist, hands locked behind her neck.

It was not disputed that the defendant applied physical force to both residents. The central dispute was whether that force was excessive and unlawful, or whether it was justified by lawful excuse or self-defence.

  • Whether the defendant's physical intervention was intentional within the meaning of common assault under section 61 of the Crimes Act 1900 (NSW)
  • Whether the prosecution proved beyond reasonable doubt that the defendant acted without lawful excuse
  • Whether the defence of self-defence under sections 418 and 419 of the Crimes Act 1900 (NSW) was established, including whether the defendant subjectively believed his conduct was necessary and whether that conduct was objectively reasonable and proportionate
  • Whether the defendant's conduct constituted a breach of the criminal law, or was instead a matter of poor or negligent performance of his caring duties

Decision

Magistrate Tsavdaridis, sitting as both the tribunal of fact and law, directed himself in accordance with standard criminal trial directions, including those relating to onus of proof, the need to consider evidence as a whole, and the relevance of the defendant's good character. The prosecution bore the onus of proving all elements of the offence beyond reasonable doubt, including that the conduct was without lawful excuse. The defence carried only an evidentiary onus to raise lawful excuse or self-defence on the balance of probabilities, after which the prosecution was required to negative those defences beyond reasonable doubt.

On the question of lawful excuse, the Magistrate found the prosecution had not discharged its burden. The defendant's physical interventions were assessed in the context of rapidly escalating and dangerous behaviour by the residents, and his responses were found to be justified in the circumstances. The Magistrate found the defendant to be a credible and reliable witness, whose account was substantially corroborated by colleagues. Some imperfections in the defendant's evidence were noted, but these were attributed to the passage of time between the incidents and his testimony.

Alternatively, on self-defence, the Magistrate was satisfied on the evidence that there was a reasonable possibility the defendant subjectively believed his conduct was necessary to defend himself, another person, or property, and that his conduct was objectively a reasonable and proportionate response to the circumstances as he perceived them. The prosecution failed to disprove self-defence beyond reasonable doubt.

The Magistrate acquitted the defendant on both counts, emphasising that the question was not whether the defendant performed his duties negligently or poorly, but whether his conduct crossed the threshold of criminal liability.

Orders Made

  • The defendant was found not guilty on both counts of common assault.
  • A verdict of acquittal was entered on both charges.

Key Takeaways

  • A disability support worker who applies physical force to a resident with profound intellectual disabilities is not automatically criminally liable; the prosecution must prove beyond reasonable doubt that the force was intentional and without lawful excuse.
  • Where a defendant raises lawful excuse or self-defence to a common assault charge, the evidentiary burden on the defendant is on the balance of probabilities, but the prosecution must then disprove those defences to the criminal standard of beyond reasonable doubt.
  • Sufficient evidence of escalating, aggressive behaviour by the alleged victims supported a finding that the defendant's physical restraint was justified, distinguishing criminally excessive force from conduct that may, at most, amount to a failure of professional duty.
  • Under sections 418 and 419 of the Crimes Act 1900 (NSW), self-defence is assessed by reference to both the defendant's subjective belief about the necessity of the conduct and an objective evaluation of whether the response was reasonable and proportionate in the circumstances as perceived.
  • Good character evidence is relevant in two distinct ways in criminal proceedings: it supports an inference that the defendant was not inclined to commit the offence (the propensity limb), and it bears on the credibility of the defendant's account (the credibility limb), as confirmed by reference to R v Murphy (1985) 4 NSWLR 42 and Attwood v R (1960) 102 CLR 353.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 418, 419
- Evidence Act 1995 (NSW), ss 141(1) and (2), 177

Cases
- Attwood v R (1960) 102 CLR 353; [1960] HCA 15
- Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7
- Colosimo & Ors v Director of Public Prosecutions (NSW) [2006] NSWCA 293
- Fleming v R (1998) 197 CLR 250; [1998] HCA 68
- Morgan v Colman (1981) 27 SASR 334
- R v Conlon (1993) 69 A Crim R 92
- R v Katarzynski [2002] NSWSC 613
- R v Lawson and Forsythe [1986] VR 515; (1985) 18 A Crim R 360
- R v Lister [2009] QCA 368
- R v Marshall (unreported, NSWCCA, 17 July 1990)
- R v Murphy (1985) 4 NSWLR 42
- R v Slater (1987) 44 SASR 136
- R v Stokes and Difford (1990) 51 A Crim R 25
- R v Timbreza [2012] NSWDC 142
- Smith v R [2007] NSWCCA 135
- Woolmington v DPP [1935] AC 462
- Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; [1987] HCA 26