Appeal of Andrew Phillip Schofield [2006] NSWDC 74

Appeal of Andrew Phillip Schofield [2006] NSWDC 74

The appellant assaulted Sebastian Whitbread because the prosecution proved beyond reasonable doubt that he intentionally committed an act causing apprehension of immediate and unlawful violence, and the defence did not establish that the use of force was a reasonable removal, self defence, or a lawful arrest. The appellant was not guilty of assaulting Christian Whitbread because Christian approached him after the assault on Sebastian, gesticulating in the appellant's personal space, giving the appellant reason to fear an assault, and the appellant's response was in self defence.

Jurisdiction
Australia
Judgment Date
17 July 2006
Procedural Posture
Criminal Law Conviction Appeal From Local Court / District Court Appeal by Way of Rehearing De Novo From Local Court Convictions for Common Assault
Outcome
Appeal allowed in part; finding of guilt confirmed for assault of Sebastian Whitbread but conviction quashed and appellant discharged without conviction; conviction for assault of Christian Whitbread quashed.
Legal Topics
['common Assault' 'self Defence' "citizen's Arrest" "transit Officers' Powers" 'removal From Railway Property' 'section 10 Discharge']
['criminal Law' 'criminal Procedure' 'sentencing'] ['common Assault' 'self Defence' "citizen's Arrest" "transit Officers' Powers" 'removal From Railway Property' 'section 10 Discharge']

Case Brief

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Procedural Posture

Criminal Law Conviction Appeal From Local Court / District Court Appeal by Way of Rehearing De Novo From Local Court Convictions for Common Assault

Legal Issues

  1. 1 ['Whether the appellant assaulted Sebastian Whitbread and Christian Whitbread by intentionally or recklessly committing acts causing apprehension of immediate and unlawful violence.' "Whether the appellant's use of force was lawful as self defence under s418 of the Crimes Act 1900." "Whether the appellant's actions were a lawful removal from railway property under regulation 58 of the Rail Safety (General) Regulation 2003." 'Whether the appellant had a lawful power of arrest under s352(1)(a) of the Crimes Act 1900 or at common law.' 'Whether, after a finding of guilt for assaulting Sebastian Whitbread, the appellant should be discharged without conviction under s10 of the Crimes (Sentencing Procedure) Act.']

Ratio Decidendi

The appellant assaulted Sebastian Whitbread because the prosecution proved beyond reasonable doubt that he intentionally committed an act causing apprehension of immediate and unlawful violence, and the defence did not establish that the use of force was a reasonable removal, self defence, or a lawful arrest. The appellant was not guilty of assaulting Christian Whitbread because Christian approached him after the assault on Sebastian, gesticulating in the appellant's personal space, giving the appellant reason to fear an assault, and the appellant's response was in self defence.

Court Disposition

Appeal allowed in part; finding of guilt confirmed for assault of Sebastian Whitbread but conviction quashed and appellant discharged without conviction; conviction for assault of Christian Whitbread quashed.

Orders

  • ['The conviction recorded by the learned Magistrate in respect of Christian Whitbread is quashed.' 'The finding of guilt recorded by the learned Magistrate in the matter of Sebastian Whitbread is confirmed, however, the conviction is quashed.' 'Pursuant to s10 of the Crimes (Sentencing Procedure) Act I discharge the...