Upton v Cowling [2002] FCAFC 134

Upton v Cowling [2002] FCAFC 134

The appeal was dismissed because the Magistrate correctly directed herself on the elements of assault and the prosecution's onus of proof, the finding that the appellant deliberately applied force was open on the evidence, the trespass or obstruction defence was not raised or suggested by the evidence and therefore did not have to be addressed, and the proposed additional evidence was not fresh.

Jurisdiction
Australia
Judgment Date
16 May 2002
Procedural Posture
Criminal Appeal / Appeal to the Federal Court of Australia From the Supreme Court of the Australian Capital Territory
Outcome
Appeal dismissed.
Legal Topics
['assault' 'onus of Proof' 'elements of Offence' 'defences Not Raised on the Evidence' 'fresh Evidence on Appeal' 'summary Proceedings']
['criminal Law' 'evidence'] ['assault' 'onus of Proof' 'elements of Offence' 'defences Not Raised on the Evidence' 'fresh Evidence on Appeal' 'summary Proceedings']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal to the Federal Court of Australia From the Supreme Court of the Australian Capital Territory

Legal Issues

  1. 1 ['Whether the Magistrate correctly applied the onus of proof to the elements of assault.' "Whether the Magistrate or Miles CJ was required to consider a defence based on the complainant being a trespasser obstructing the appellant's entry to his office when that defence was not raised or suggested by the evidence." 'Whether further evidence should be admitted on appeal when it related to matters in issue before the Magistrate and was not shown to have been unavailable.' "Whether the finding that the appellant's contact with Ms Read was deliberate was open on the evidence."]

Ratio Decidendi

The appeal was dismissed because the Magistrate correctly directed herself on the elements of assault and the prosecution's onus of proof, the finding that the appellant deliberately applied force was open on the evidence, the trespass or obstruction defence was not raised or suggested by the evidence and therefore did not have to be addressed, and the proposed additional evidence was not fresh.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' "The appellant pay the respondent's costs of and incidental to the appeal, to be taxed if not agreed."]