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District Court 9 September 2020

Ribarovski v R

[2020] NSWDC 599

Assault & violence
CRIMINAL LAW

Citation: Ribarovski v R [2020] NSWDC 599
Court: District Court of NSW
Date: 9 September 2020
Judge: Neilson DCJ

Background

The appellant was charged with common assault under s 61 of the Crimes Act 1900 following an incident at the couple's Pyrmont apartment in the early hours of 26 January 2019. The appellant and the complainant were husband and wife at the time, though their relationship had been deteriorating. The alleged assault arose from a physical scuffle over a mobile phone.

The phone was registered in the appellant's name and he paid for it. His case was that he reached for the phone to take it back from the complainant, and that he was entitled to do so as its owner.

The Local Court found the offence proved beyond reasonable doubt, declined to record a conviction, and imposed a Conditional Release Order for two years under s 10 of the Crimes (Sentencing Procedure) Act 1999. An apprehended violence order (AVO) was also made for two years. The appellant appealed both the finding of guilt and the AVO to the District Court.

  • Whether the prosecution had negatived a claim of right raised by the appellant, namely that he genuinely and honestly believed he was legally entitled to take the phone from the complainant.
  • Whether the Local Court erred by failing to address the claim of right at all in its reasons.
  • Whether the finding of guilt, the Conditional Release Order, and the AVO should be set aside.

Decision

Neilson DCJ accepted that the appellant had a genuine claim of right over the mobile phone. The phone was in his name and he paid for it. The belief underlying the claim did not need to be reasonable to be operative in law, but the District Court noted that here the belief was in fact reasonable, grounded in the basic legal principle that the person who pays for property owns it.

The District Court found the claim had been raised almost immediately during the incident, with no time for reflection or fabrication, which reinforced its genuineness. That prompt assertion distinguished it from a "colourable pretence" constructed after the fact. Where a claim of right is genuinely held, it can provide a defence even where the means of recovering the property involves an assault.

Once the appellant raised the claim of right on the evidence, the burden shifted to the prosecution to disprove it beyond reasonable doubt. The prosecution did not do so, and the learned magistrate did not address the issue at all in her reasons, despite it having been squarely raised and tested in cross-examination during the Local Court proceedings. That omission was fatal to the finding of guilt.

Accordingly, the District Court set aside the finding of guilt, the Conditional Release Order, and the AVO.

Orders Made

  • The finding of guilt entered by the Local Court was set aside.
  • The Conditional Release Order imposed on 19 July 2019 was set aside.
  • The apprehended violence order made on 19 July 2019 was set aside.

Key Takeaways

  • A claim of right, if genuinely held, can answer a charge of common assault where the defendant uses force to recover property they honestly believe they are legally entitled to possess.
  • The belief underpinning a claim of right does not need to be objectively reasonable, but it must be more than a colourable pretence. A belief grounded in recognisable legal principle, such as ownership arising from payment, will ordinarily satisfy that threshold.
  • Once a claim of right is raised on the evidence, the prosecution bears the burden of disproving it beyond reasonable doubt. Failure to discharge that burden is fatal to the charge.
  • Where a legally recognised defence is squarely raised on the evidence and tested in cross-examination, a sentencing court must address it in its reasons. The District Court found the Local Court's complete silence on the issue constituted reversible error.
  • Under s 10(5) of the Crimes (Sentencing Procedure) Act 1999, a person subject to a Conditional Release Order without conviction retains the same right of appeal against the finding of guilt as a person who has been formally convicted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61 (common assault)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 (non-conviction orders), s 10(5) (right of appeal)

Cases:
- R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310