Kurt Michael Devetak v R [2018] NSWDC 23

Kurt Michael Devetak v R [2018] NSWDC 23

The conviction for assault occasioning actual bodily harm must be set aside as it could not be established beyond reasonable doubt that the relevant injuries were caused by the appellant's punches; the first punch was found to be in lawful self-defence and during the subduing of Mr Tompkins. However, the appellant was guilty of common assault as the second punch was given after Mr Tompkins had been subdued and self-defence and section 231 LEPRA were negatived.

Parties
Appellant: Kurt Michael Devetak; Respondent: Regina
Jurisdiction
Australia
Judgment Date
22 February 2018
Procedural Posture
Criminal / Conviction Appeal
Outcome
Appeal against conviction allowed in part. Conviction for assault occasioning actual bodily harm set aside; common assault proven; sentence to be heard.
Legal Topics
Assault Occasioning Actual Bodily Harm, Common Assault, Self Defence, Police Powers, Reasonableness of Force, Appellate Review
Criminal Law Assault Occasioning Actual Bodily Harm Common Assault Self Defence Police Powers Reasonableness of Force Appellate Review

Case Brief

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Parties

Kurt Michael Devetak

Appellant

Regina

Respondent

Procedural Posture

Criminal / Conviction Appeal

Legal Issues

  1. 1 Whether the appellant's conviction for assault occasioning actual bodily harm should be upheld
  2. 2 Whether the appellant was guilty of common assault
  3. 3 Whether the appellant acted in self-defence and/or within lawful police powers under section 231 of the Law Enforcement (Powers and Responsibilities) Act 2002

Ratio Decidendi

The conviction for assault occasioning actual bodily harm must be set aside as it could not be established beyond reasonable doubt that the relevant injuries were caused by the appellant's punches; the first punch was found to be in lawful self-defence and during the subduing of Mr Tompkins. However, the appellant was guilty of common assault as the second punch was given after Mr Tompkins had been subdued and self-defence and section 231 LEPRA were negatived.

Court Disposition

Appeal against conviction allowed in part. Conviction for assault occasioning actual bodily harm set aside; common assault proven; sentence to be heard.

Orders

  • Appeal against conviction is allowed in part.
  • Conviction for assault occasioning actual bodily harm and penalty imposed set aside.