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1. Prior to April 2024 Ms H and Mr McGoogan were in a de facto relationship of six years duration, having moved in together only days after meeting. On two occasions in April 2024 police were called to the couples’ apartment in Kingston to manage difficult domestic interactions. On each occasion a significant amount of alcohol had been consumed by the couple, particularly by Mr McGoogan. In his alcohol fuelled state Mr McGoogan is alleged to have unlawfully physically handled Ms H. The unlawful physical interaction is best described as grabbing or pulling Ms H by the ankles and applying pressure to her body with the weight of his own.

2. Following the second occasion of police involvement, Mr McGoogan was arrested and charged with a number of offences in the nature of two counts of aggravated assault occasioning actual bodily harm and one count of resist arrest. The assault charges related to both occasions and the resist arrest to the second occasion. The matter proceeded to hearing before Magistrate Cook who dismissed the charges other than a statutory alternative charge of common assault arising from the first incident. Mr McGoogan was convicted on the alternative charge and a fine of $500 was imposed. Mr McGoogan appeals his conviction and sentence.

The charges determined at first instance

3. Mr McGoogan was, at first instance, charged with the following:

CAN Aggravated assault occasioning Dismissed – 4 December 4502/2024 actual bodily harm (Family 2024 Violence); s 24(1) of the Crimes Act 1900 (ACT) CAN Aggravated assault occasioning Convicted of Common 4503/2024 actual bodily harm (Family Assault (statutory Violence); s 24(1) of the Crimes Act alternative) – 4 1900 (ACT) December 2024; Sentence of $500 fine imposed – 9 December 2024.

CAN Resist territory public official; s Dismissed – 4 December 4504/2024 361(1) of the Criminal Code 2002 2024 (ACT) Grounds of appeal

4. Mr McGoogan contends: (a) Conviction grounds: (i) The finding was infected by material legal, factual and/or discretionary error; 1. The learned magistrate erred [in finding] that the offence was proved beyond reasonable doubt; and/or 2. The finding was unreasonable. (b) Sentence grounds: (i) The sentence is manifestly excessive; and/or (ii) The learned magistrate erred [in not] exercising the discretion under s 17 of the Crimes (Sentencing) Act 2005 (ACT).

5. As to conviction Mr McGoogan seeks orders that: (a) The appeal be upheld. (b) The finding be set aside. (c) The information be dismissed.

6. As to sentence, Mr McGoogan seeks the following orders: (a) The appeal be upheld. (b) The sentence be set aside. (c) A non-conviction order be made.

The magistrate’s findings

7. One of Mr McGoogan’s primary complaints is the dearth of substantive findings in the magistrate’s decision. Mr McGoogan says in large part the decision, although detailed, is a bare summation of the facts. It is instructive therefore to begin with a review of the magistrate’s decisions on conviction and sentence to identify the findings he made. I have limited my summary to the events of 12 and 13 April 2024 as it is the occasion which is the subject of the appeal.

8. The findings gleaned from his Honour’s decision on conviction are: (a) The parties are in a family relationship within the meaning of the Family Violence Act 2016 (ACT) (Transcript, 4 December 2024 at 8.19). (b) Over the course of the evening Mr McGoogan and Ms H participated (with guests) in the consumption of several bottles of wine and other alcoholic drinks. After the guests left, an argument ensued as Ms H was upset about Mr McGoogan’s alcohol consumption and subsequent intoxication. Following the argument, Mr McGoogan slept in the main bedroom and Ms H slept in the spare bedroom (Transcript, 4 December 2024 at 8.24). (c) Mr McGoogan was heavily intoxicated (Transcript, 4 December 2024 at 16.45) (d) There is no evidence of Ms H being heightened at any stage on 12 or 13 April 2024, although she is clearly heightened when describing the earlier events to police operations in her call on 19 April 2024. On 13 April 2024 she was initially asleep. She was woken by Mr McGoogan spooning her and talking in her ear (Transcript, 4 December 2024 at 17.46 – 18.2 and 18.25). (e) The assault did not commence when Mr McGoogan entered Ms H’s bed in the early hours of the morning. It commenced when he was directed by Ms H to stop and he reacted by removing the doona cover, grabbing her physically and, with her kicking him away, continuing to interact with her physically. This conduct was not lawfully justified (Transcript, 4 December 2024 at 12.14 – 25). (f) Ms H did not want Mr McGoogan to touch her in the way he did. She gave him a clear direction to stop and he did not. To deal with his action in grabbing her legs, Ms H began kicking at Mr McGoogan to get him away from her as she did not want him to do what he was doing (Transcript, 4 December 2024 at 11.46 – 12.4). (g) Mr McGoogan, while under the effects of alcohol, recklessly applied force to Ms H in grabbing her and trying to sit her up in bed against her wishes, and in then grabbing her by the ankles and removing her from the bed a number of times. The interaction was not consented to at any time. His actions were reckless, although any bodily harm inflicted was accidental. The engagement described with Ms H was neither consensual nor a product of an agreement between the two, nor was Mr McGoogan protecting himself when he was kicked at by Ms H. She was simply trying to get him away from her. Self-defence is not made out in the circumstances (Transcript, 4 December 2024 at 18.32 – 19.11). (h) The bruise on Ms H’s right calf occurred when Mr McGoogan had fallen against her and his weight pressed her leg against the bed, wedging it. The event was entirely accidental (Transcript, 4 December 2024 at 13.30 – 35 and 16.35). (i) Ms H remained of the view the contact between the two on 13 April 2024 was unwelcome and without consent as evidenced by her provision of photographic evidence of her bruising to the police, taken some days after the event (Transcript, 4 December 2024 at 13.43). (j) Ms H’s statements in the 000 call and in her interactions with police are clear and unembellished. They reflect an interaction with Mr McGoogan that she neither sought nor wanted to happen and she was adamant in wanting him to stop his application of force to her and his conduct generally (Transcript, 4 December 2024 at 17.32 – 39). (k) As to the initiating action by Mr McGoogan, there was some inconsistency in Ms H’s evidence, namely whether her actions in kicking at him were in response to his grabbing at her in an unwanted way, or alternatively whether she kicked out in response to Mr McGoogan initially trying to comfort her in accordance with the prior agreement between the couple for the management of her in an upset state. The latter version being her evidence under cross examination is difficult to accept as genuine and appears designed to mitigate the effects of Mr McGoogan’s engagement with her. His actions in entering the room while she was asleep were not actions pursuant to the “comforting” agreement, directed to calming her (Transcript, 4 December 2024 at 15.7 – 15, 18.2 – 8 and18.16). (l) Mr McGoogan intended to engage in the conduct complained of (Transcript, 4 December 2024 at 5.14). (m) Self-defence is not established (Transcript, 4 December 2024 at 7.22, 19.6 – 10). (n) After his interaction with Constable Death, Mr McGoogan agreed to leave the apartment in the company of his brother, after signing an undertaking not to breach the peace. He was not observed by the Constable to be angry nor aggressive (Transcript, 4 December 2024 at 17.1). (o) Mr McGoogan is of good character with no recorded history (Transcript 4 December 2024 at 17.22). (p) The charge of common assault is proven (Transcript, 4 December 2024 at 19.10).

9. As to sentence: (a) The offence involved a low end application of force, in family violence circumstances. The offending is not at the lowest end of the scale of objective seriousness (Transcript 9 December 2024 at 12.44 – 13.1 and 16.25). (b) The application of force in this case falls at the lower end, but not the lowest end of the scale of objective seriousness (Transcript, 9 December 2024 at 14.33). (c) The effect of alcohol puts the offending in context but affords no reduction in sentencing outcome. It is neither an excuse nor a defence (Transcript, 9 December 2024 at 14.42 and 16.30). (d) There appears to be deep and genuine remorse (Transcript, 9 December 2024 at 15.8). (e) The offending is aggravated as it occurs in the home where Ms H was entitled to feel safe and secure in her bed (Transcript, 9 December 2024 at 15.32). (f) Mr McGoogan’s community standing, and the public interest in the case does not warrant a departure from the ordinary outcome in such matters (Transcript, 9 December 2024 at 16.14). (g) There are no mental or physical impediments influencing the exercise of the court’s discretion as to sentence (Transcript, 9 December 2024 at 16.23).

The appeal as to conviction

10. I have summarised the arguments raised and it is convenient to address them in the order set out below: (a) There was a misunderstanding of Ms H’s evidence as to the order of things. (b) There were incorrect factual findings or findings not supported by the evidence. (c) The law of self-defence was misapplied. (d) The law of recklessness was misapplied.

Was there a misunderstanding of Ms H’s evidence?

11. Central to Mr McGoogan’s complaint is the lack of weight given to the evidence of Ms H in cross examination when compared with her earlier evidence. In addition, he complains about the assumption that any inconsistency between her pre-trial evidence and her evidence at trial is because, as often occurs in family violence circumstances, she changed her evidence.

12. Mr McGoogan highlights the prosecution’s failure to make any application pursuant to s 38 of the Evidence Act 2011 (ACT) in relation to her cross examination evidence regarding the events of 13 April 2024; notwithstanding such an application was made, and allowed, in relation to evidence concerning the events of 19 April 2024. He argues the effect of that failure is to deprive the prosecution of a prospective opportunity to challenge unfavourable answers given by Ms H in the course of her evidence. That opportunity having passed, it remains for the magistrate to deal with and make findings regarding her evidence as a whole, including the resolution of any inconsistencies arising from her evidence necessary to support findings that are made. In this case there were clearly inconsistencies. In her discussions with the police Ms H referred to a number of episodes of escaping from Mr McGoogan and being chased around the living room of the apartment before returning to her bed in the spare room. None of that is mentioned in her evidence at trial.

13. There is also inconsistency in her description of the sequence of events leading up to and comprising the assault on 13 April 2024 as illustrated in the following summaries: (a) my partner just woke me in bed, dragged me by my feet and tried to throw me out of the house for sleeping – he is being super violent right now (000 call on 12 April 2024); (b) he’s bruised my leg because he’s dragged me around the house holding me last night – I decided to sleep in the spare bedroom – he’s pulled the blanket off the bed, he’s grabbed me by my arms and dragged me out of the bed and chased me around [the living area] – I tried to get back into the bed, he’s then done it again – pulled the blanket off, grabbed me by my ankles and dragged me out of bed again. I tried to get back into the bed one more time – he’s chased me [around the living area again] – my hair was pulled out and I was pushed up against the main hallway walls – I made the call to the police (Constable Martinelli BWC 13 April 2024); (c) he comes into my bed at an unknown time, tries to wake me, rips off the blanket and pulls me out of bed, locks me by my arms, pulls me by my ankles, pulls my hair (call to police operations 19 April 2024 describing 13 April events); (d) he came in [to the spare bedroom] he’s spooning me and wakes me up – he gets really upset [at being told to let Ms H sleep] – he pulls the blanket off me, I told him to leave me alone, he grabbed me and pulled me out of the bed by grabbing me on my shoulders – he pulled me out of the bed forcefully – he told me to get out of his house – I said no, stop, I tried to kick him – as he’s grabbing me, I’ve kicked him – he let go and I tried to go back to sleep and pulled the blanket back over me – he came back and pulled the blanket off me again and started dragging me by my ankle and tried to pull me out of the room – as he was grabbing my ankle he fell on my leg and pinned it against the bedframe – I got back into the bed and he pulled me out of bed again by my arm – I tried wedging myself in the doorframe but I fell down and he stepped on my hair – he unintentionally grabbed my hair and shoulder and ripped a bit of hair out – he picked me up by my shoulder and took me [into the living room] and we had a “bit of a run around” (Constable Mulligan BWC 19 April 2024, describing 13 April events); and (e) I remember telling him to shut up and then he didn’t really respond to that and the next moment he got up and he pulled the doona cover off – off me and I sort of tried to pull it back – he then came up to me and he put his arms around and put me – or got me up into a seated position – he held onto one of my arms and tried to escort me into our bedroom – I don’t believe he was letting go so I started to kick at him – I remember he fell over and my leg was wedged between him and the edge of the bed – he got off me and just grabbed my foot again and pulled me out of the bed – I was laying on the ground – he grabbed me by my arms again, tried to prop me up and I remember his foot was on my hair – I felt like some hair was pulled out (Transcript, 12 September 2024 Ms H examination).

14. Mr McGoogan submits the effect of the magistrate’s decision is to disregard the evidence given by Ms H in cross examination on the basis of its inconsistency with her earlier evidence. On the contrary, the magistrate was called upon to deal with her evidence notwithstanding the inconsistency. The cross examiner elected to deal with the apparent inconsistencies in this way, as to the: (a) grabbing of the legs: You have described Michael grabbing you by your feet or ankles on two occasions? --- Yes. On each of those occasions, you were kicking Michael? --- Yes. Yes. And he was grabbing at your feet or ankles to stop you kicking him? --- Yes. Yes. I would say that that’s why he grabbed my ankles to stop me from kicking him. And to be clear that’s on both occasions where you were grabbed by that area? --- Yes. Yes. (Transcript, 12 September 2024 at 117.34 – 44) (b) “comforting agreement”: Now, when he first got into bed with you and sat you up on 13 April, in your mind does that fall within the agreement you have described, for him to hug you and comfort you? --- Yes, I’d say so. He was – I don’t think he was trying to be malicious or – he was just trying to get me up and get me to bed, but I was resisting and I was angry and trying to fight him. (Transcript, 12 September 2024 at 117.46 – 118.3) (c) 000 call: On the 000 call you made on this occasion, you referred to being naked and I just wanted to clarify, you didn’t mean literally naked. Did you mean in your pyjamas or something else? -- - I don’t remember, I’m sorry. I don’t remember if I was naked or not. I may have just been in my underwear. Sure. In the 000 call, you said that you struggled with Michael. Was that a shorthand for describing you had been kicking him? --- Yes. Yes. And when you said on the 000 call that, ‘Michael dragged me out of bed by my arms, my feet, my ankles and my hair’, again that’s shorthand and it’s not the full story? --- I don’t ever remember saying that he pulled me by my hair, but if he did pull me by my hair, I genuinely cannot remember. He never grabbed my hair, so he’s – even – even a struggle, he has pulled me by my ankles, he’s pulled me up on to the bed in a seated position, grabbed my arm, tried to get my to come out of bed, and , yes, if my hair was pulled by – by him at any point it was under his foot. And from your perspective, this whole interaction on 13 April, it was not hostile? --- It was – yes, it was in an effort to get me to go with him and to do what he wanted essentially, but he was not – I don’t think he was hostile, no. (Transcript, 12 September 2024 at 119.6 – 2 [sic]) (d) conflict around alcohol: And him trying to get you to do what he wanted, that was within the context of the agreement that the two of you had about how to deal with conflict around alcohol? --- Yes. Yes, to – yes, I believe he wanted to stop me from potentially self-harming and going into psychosis or whatever it may be that he thought I was angry at the time, and, you know, was going to do something silly and he needed to put me in our normal cuddle spot and get me to calm down because I was very heightened and very angry and kicking at him and he’s, like, ‘All right, I need to put her in a – in a cuddle’, what we call our cuddle spot and just get me to calm down. (Transcript, 12 September 2024 at 119.27 – 35 [sic])

15. There is a certain artificiality in poring over the detail of described physical interactions between two inebriated people when due allowance is made for the likely unreliability of their accounts and the inevitable impacts of alcohol on their fine motor skills and coordination. Even so, the magistrate attempted to resolve the inconsistencies in the evidence of Ms H. He did so in finding Ms H did not want Mr McGoogan to touch her in the manner he was, and in finding she gave a clear direction to him to stop, which he ignored. The magistrate found she dealt with Mr McGoogan’s actions in grabbing her legs by kicking at him to get him away (Transcript, 4 December 2024 at 11.46 – 12.40). To the extent that Ms H’s description in cross examination of what occurred to her was inconsistent with her earlier descriptions, the version given in cross examination was rejected (Transcript, 4 December 2024 at 15.7 – 15). The magistrate explained his preference for the evidence comprised in the phone calls and the police interactions on the basis they were calm, consistent and delivered with clarity (Transcript, 4 December 2024 at 17.32). He rejected the suggestion Mr McGoogan’s conduct was explained as actions directed to calming Ms H (Transcript, 4 December 2024 at 18.24). The magistrate concluded at transcript, 4 December 2024 at 18.31 – 46: I'm satisfied that the defendant, while under the effects of alcohol, recklessly applied force to the complainant in grabbing her and trying to set up her in bed contrary to her express desire and not to do that. Nonetheless, he grabbed her by the ankles and removed her from the bed on a number of times and that he himself fell and pressed against her leg causing an injury which I form the view was accidental. I'm satisfied that the interaction by the defendant was not consented to at any time. That the application of force, as I say, was reckless and that charge, as a consequence, 4503 - sorry, I am satisfied that the elements of the offence of a bodily harm, however, are not established in relation to the evidence of the complainant. In that while the assault aspect of the section 24 charge and the elements of that offence, I am satisfied of the assault. I am not satisfied bodily harm can be attributed in a way which would either be intentional or reckless. [sic]

16. Contrary to the submissions of Mr McGoogan, the magistrate did not disregard Ms H’s evidence given in cross examination. He weighed it against her earlier evidence and determined a preference for the earlier evidence for the reasons summarised above.

17. This element of the appeal is not made out.

Were there incorrect factual findings or findings not supported by the evidence?

18. Mr McGoogan approached this issue in slightly different ways in his written and oral submissions. In written submissions, the flaw was identified as addressing the conduct of Mr McGoogan “compendiously” as one interaction, rather than focusing only on the conduct complained of by the prosecution. I understand compendiously to be used in the sense of “in summary form”. In short, Mr McGoogan contends the summary way in which the evidence was analysed by the magistrate led him to overlook nuances in Ms H’s evidence and to gloss over discrepancies in the different versions she gave of the relevant events. By way of example of the compendious approach, Mr McGoogan identifies the magistrate’s description of the conduct as “grabbing of her physically with her kicking him away, he continues to interact with her physically”. The difficulty with the criticism made is it involves a selective identification and analysis of particular passages within the magistrate’s reasons when what is called for is a fair analysis of those reasons as a whole. I adopt the words of Taylor J in Devenport v Garnon [2024] ACTSC 198 at [87]: Whether delivered immediately at the end of a hearing or with some time for further consideration, the reasons of the Magistrate must be read fairly, as a whole and not painstakingly picked over with an eye overly sensitive to error. Whether ex tempore reasons or reasons after further reflection, the pressures of the Magistrates Court remain: Poidevin v Coutts [2024] ACTSC 91 at [100].

19. In oral submissions Mr McGoogan identified other examples of a lack of clarity including: (a) whether the kicking out by Ms H was in response to her legs being grabbed or the reason her legs were grabbed; (b) how Ms H came to be lying on the ground; (c) the lack of regard to the agreement about sleeping together after big drinking nights; and (d) the uncertainty as to which part or parts of Mr H’s body were initially touched by Mr McGoogan.

20. There can be no doubt, given the variation in the precise sequence of events exposed on the different occasions when Ms H tells her story, there is some lack of clarity in her evidence. But it was not incumbent upon the magistrate to resolve every inconsistency and to determine with precision the sequence of every event and interaction identified at some point in the evidence. Rather it was the task of the magistrate to determine whether he could be satisfied beyond reasonable doubt of the elements required to prove the offences with which Mr McGoogan was charged. He dismissed all of the charges save for the alternative of common assault in respect of the events on 13 April 2024. In that regard he needed only to be satisfied beyond reasonable doubt of the following elements: (a) the accused applied force to another person; (b) the accused intended to apply or was reckless about applying force to another person; (c) the conduct was without the consent of the other person; and (d) the application of force was without lawful excuse.

21. His Honour’s satisfaction in that regard is evident at transcript, 4 December 2024 at 18.31 – 19.11: The complainant's evidence is clearly directed to the defendant to stop touching her, to stop doing what he was doing to her. He chose not to and engaged in the actions alleged by the complainant. I'm satisfied that the defendant, while under the effects of alcohol, recklessly applied force to the complainant in grabbing her and trying to set up her in bed contrary to her express desire and not to do that. Nonetheless, he grabbed her by the ankles and removed her from the bed on a number of times and that he himself fell and pressed against her leg causing an injury which I form the view was accidental. I'm satisfied that the interaction by the defendant was not consented to at any time. That the application of force, as I say, was reckless and that charge, as a consequence, 4503 - sorry, I am satisfied that the elements of the offence of a bodily harm, however, are not established in relation to the evidence of the complainant. In that while the assault aspect of the section 24 charge and the elements of that offence, I am satisfied of the assault. I am not satisfied bodily harm can be attributed in a way which would either be intentional or reckless. I am not satisfied, as I indicated, the falling was entirely accidental no doubt having effect and having regard to the intoxication and the defendant's own physical movements. I'm satisfied charge 4053 of the statutory alternative for a common assault though is proved. I reject, as I say, the issue of self-defence as claimed by the defendant. I'm satisfied the prosecution has established sufficient evidence that his engagement with the complainant was neither consensual nor a product of an agreement nor was he protecting himself in circumstances where he was kicked at by the defendant who was simply responding to try and get him away from her. And as I say, that charge is proved in the alternative as a common assault. ([sic])

22. When viewed as a whole, and for the reasons I have described above, I am not satisfied the appellant has identified error in the magistrate’s approach to his analysis of the evidence of Ms H.

Was the law of self-defence misapplied?

23. There are two strands to Mr McGoogan’s argument. First, the magistrate failed to address self-defence in the context of intoxication and secondly, he was in error in concluding self-defence could not apply where Mr McGoogan initiated contact. It was accepted by the parties that the Criminal Code 2002 (ACT) did not apply to the consideration of self-defence in this instance and self-defence at common law was to be addressed.

24. Dealing first with the initiation of contact. Mr McGoogan says the magistrate found self-defence “could not arise when the appellant initiated physical contact with Ms [H]”. He argues this is a misapplication of the concept of “original aggression”.

25. The relevant portion of the magistrate’s decision commences at transcript, 4 December 2024 at 12.6: Self-defence can't arise in those circumstances. It is the entire context of the defendant approaching the complainant while in bed and pulling her up and while the submission ran by the defendant was that he maybe just simply cuddling her and having an intimate interaction, it is what flows after that even if I was to set that action to one side. The evidence in this regard, if accepted, would be critical to a finding of fact that the defendant's conduct was not lawful or consented to by the complainant. Specifically, having regard to the fact that it is the defendant initiating the physical contact by entering the complainant's bed in the early hours of the morning.

26. The magistrate begins the passage by referring to “those circumstances”. That is clearly a reference to the circumstances he had just described, namely, his finding that Ms H did not want Mr McGoogan to touch her in the manner he was doing; she had given him a clear direction to stop and he did not stop. To deal with his actions in grabbing her legs she started kicking at him to get him away from her.

27. Mr McGoogan says, other than the passage from his decision set out above, the magistrate did not otherwise directly address self-defence except in the final paragraph of his reasons where he rejected the submission the appellant acted in self-defence. He contends the magistrate’s reasoning is a misapplication of the self-defence principles as explained in Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; 162 CLR 645 at 663, where the court held the question to be answered was: …Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence… (citations omitted by this court)

28. It is a relevant matter that when Mr McGoogan entered the spare bedroom to engage with Ms H, he did so in circumstances where she had been asleep in that room for a space of no more than a few hours following an extended drinking session, resulting in she and Mr McGoogan being significantly intoxicated. Accepting some uncertainty as to the precise nature and sequence of events comprising the engagement which followed, the magistrate found Mr McGoogan had disturbed Ms H’s sleep, had then attempted by physical means to rouse her, had caused her to sit up in bed and attempted to remove her from the bed. Her response in kicking out at him, whether it occurred before or after he initially grasped her ankles, was an action in the course of the single engagement I have described. There is no suggestion of any retreat or disengagement by Mr McGoogan. There is no basis upon which to conclude Mr McGoogan held a reasonable belief it was necessary to grab Ms H by the ankles and pull her as a means of self-defence. There was nothing preventing him from simply stepping back or walking away from the engagement, she having resisted his attempts to remove her from the bed. In the circumstances as found by the magistrate I am not satisfied his reasoning process was in any way at odds with the approach adopted in Zecevic.

29. The second argument concerns self-defence in the context of intoxication. Mr McGoogan contends the magistrate failed to have due regard to his state of intoxication in considering self-defence. He submits that if intoxication had been taken into account in a way consistent with the principles discussed in Rawsthorne v Wilson [2018] ACTSC 342; 342 FLR 134 his Honour would have found the prosecution could not disprove either of the limbs of the self-defence test beyond reasonable doubt.

30. As Mr McGoogan identifies, the first step in the process is determining whether the accused person had an honest belief they were acting in self-defence. As the court observed in Rawsthorne at [97], the evidential burden will be satisfied where the accused person presents or points to evidence suggesting “a reasonable possibility that there were reasonable grounds for his belief”. The onus was described by Refshauge J in Lancaster v Hyde [2016] ACTSC 50 at [88]-[90]: There must, however, be some evidence that raises the issue of self-defence. That is to say, the defendant bears an evidentiary onus: R v Youssef (1990) 50 A Crim R 1 at 3. In R v Bonnick (1978) 66 Cr App R 266 at 269, Stephenson LJ, Milmo and Peter Pain JJ in the UK Court of Appeal explained: When is evidence sufficient to raise an issue, for example, self-defence, fit to be left to a jury? The question is one for the trial judge to answer by applying common sense to the evidence in the particular case. We do not think it right to go further in this case than to state our view that self-defence should be left to the jury when there is evidence sufficiently strong to raise a prima facie case of self-defence if it is accepted. To invite the jury to consider self-defence upon evidence which does not reach this standard would be to invite speculation. This approach was adopted in this Court by Gray J in R v Rao [2008] ACTSC 17 at [90]. His Honour there went further, at [93], and accepted what was said in R v Youssef at 3, finding: that there must be evidence from which it would be inferred that there is a reasonable possibility that the act of the accused was of such a nature [i.e. inter alia, done in self-defence]. His Honour further accepted in R v Rao at [94] that, if the evidence reaches this level, it may not be necessary for an accused or a defendant to give evidence. While, in many cases, it may be at least desirable, if not necessary, for a defendant to give evidence of his or her belief and the basis for it, that is clearly not necessary if other evidence properly raises the issue including, perhaps especially, the evidence adduced by the prosecution or adduced by cross-examination of witnesses called by the prosecution.

31. In Edmunds v The King [2025] VSCA 31, the court observed at [162]: The common law has therefore always required something more than a speculative, unrealistic, or fanciful possibility.

32. Mr McGoogan contends his evidentiary onus is satisfied on the basis of Ms H’s evidence. The question then is which version of her evidence, noting the inconsistencies to which I have referred. On the version of her evidence accepted by the magistrate and forming the basis for his findings Mr McGoogan’s evidential burden is not met. The version underpinning the magistrate’s findings was in essence that she was subject to an unwanted application of force against her, contrary to her express wishes. Ms H speculated as to why Mr McGoogan was acting in the way he did, but the views she expressed raise no more than a speculative possibility.

33. Unlike the situation in each of the authorities relied on, Mr McGoogan did not give evidence and did not participate in any interview process that may have shed light upon his state of mind. There is simply no witness evidence that would support a reasonable possibility Mr McGoogan believed he needed to act as he did in self-defence. I accept as the court observed in Dal Cortivo v The Queen [2010] ACTCA 14; 204 A Crim R 55 at 62, the obligation upon the accused person is to point to facts supporting a reasonable hypothesis he was acting in self-defence. That evidentiary burden cannot be satisfied where there is no witness evidence, be that from an accused or someone else, as to Mr McGoogan’s state of mind, and the facts found by the magistrate are insufficient to support a reasonable hypothesis of self-defence. That is so, even allowing for Mr McGoogan’s significant intoxication.

34. As a consequence, I see no error in the magistrate’s approach. If I am wrong about the evidential burden I would not have been satisfied, for the same reasons, there was reasonable doubt as to whether in the circumstances, viewed objectively, there were reasonable grounds for a belief he was acting in self-defence. Viewed objectively, I have also considered significant the absence of evidence to the effect Ms H was doing anything other than kicking out. There is no evidence to support a finding she was kicking at a part or parts of the body of Mr McGoogan in a way that posed some threat to his safety, or that he had reason to believe she was about to pose such a threat. I am mindful in reaching my view that the objective assessment must be undertaken without regard to the accused person’s intoxication. Was the law of recklessness misapplied?

35. Mr McGoogan says the magistrate’s ultimate finding was of a reckless assault rather than an intentional one. In those circumstances the magistrate was required to consider the impact of intoxication on recklessness. That is so because a finding of the offence proved with recklessness, as opposed to a deliberate application of force, meant that intoxication remained relevant when considering the mens rea. Mr McGoogan says the magistrate failed to take into account intoxication when he came to consider the issue of recklessness. He contends, in the context of a finding of recklessness, the prosecution was required to remove any reasonable doubt raised as a consequence of his intoxication in deciding whether he had formed the state of mind required for the offence charged. Mr McGoogan relies on the observations of Hunt J in Youssef v R (1990) 50 A Crim R 1 at 2. At 2 his Honour observed, citing The Queen v O'Connor [1980] HCA 17; 146 CLR 64: The Crown must also remove any reasonable doubt raised by the accused's intoxication in determining whether the accused had formed the state of mind required for the offence charged… (citations omitted by this court)

36. In O’Connor, Barwick CJ stated (the majority in Barwick CJ, Stephen, Murphy and Aickin JJ agreed on outcome but developed individual reasoning), as to evidence of intoxication, at [17]-[18]: The state of drunkenness or intoxication can vary very greatly in degree. A person may be intoxicated in the sense that his personality is changed, his will is warped, his disposition altered, or his self-control weakened, so that whilst intoxicated to this degree he does act voluntarily and intentionally which in a sober state he would or might not have done. His intoxication to this degree, though conducive to and perhaps explanatory of his actions, has not destroyed his will or precluded the formation of any relevant intent. Indeed intoxication to this degree might well explain how an accused, otherwise of good character, came to commit an offence with which he is charged. Intoxication to the stated degree might have rendered an accused less aware of what he was doing, or of its quality, significance or consequence. But, if voluntary, his acts remain his: and he intends to perform them…

37. The precise findings of the magistrate on this topic are difficult to discern. At transcript, 4 December 2024 at 5.14 he accepts “the defendant intended to engage in the conduct on the night here of 13 April 2024”. He then immediately proceeds to address the concept of recklessness referring to the Criminal Code as setting out the circumstances in which recklessness operates. The relevant provision in the Criminal Code appears at s 20: 20 Recklessness (1) A person is reckless in relation to a result if— (a) the person is aware of a substantial risk that the result will happen; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk. (2) A person is reckless in relation to a circumstance if— (a) the person is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is a question of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element

38. Nothing more is then said by the magistrate on the topic of recklessness until transcript, 4 December 2024 at 18.31 when the magistrate says: I'm satisfied that the defendant, while under the effects of alcohol, recklessly applied force to the complainant in grabbing her and trying to set up her in bed contrary to her express desire and not to do that.

39. And at transcript, 4 December 2024 at 18.39: I'm satisfied that the interaction by the defendant was not consented to at any time. That the application of force, as I say, was reckless…

40. Having commenced with a statement of satisfaction as to intent to make the application of force that is a necessary element of the offence, his Honour appears to have fallen back on evidence of recklessness to establish that element. In those circumstances I accept, as Mr McGoogan contends, it was necessary for the magistrate to be satisfied of the absence of any reasonable possibility Mr McGoogan’s intoxication prevented him from forming the state of mind required for the offence. The magistrate clearly accepted Mr McGoogan was heavily intoxicated from his consumption of alcohol (Transcript, 4 December 2024 at 16.45). It would have been preferable for his Honour to expressly address whether there was, as a consequence of intoxication, any reasonable doubt about whether Mr McGoogan had formed the necessary state of mind for the offence. That much is implicit from his opening observation, at transcript, 4 December 2024 at 5.15, to the effect Mr McGoogan intended to engage in the conduct found on the night of 13 April 2024. Although not clearly expressed, I am satisfied the conclusion was open to him. Applying the reasoning of Barwick CJ in O’Connor the evidence did not afford reasonable doubt that the level of intoxication was sufficient to render his actions involuntary or unintended because: (a) Mr McGoogan was functioning and communicating throughout the episode, albeit at times in nonsensical terms; (b) his application of force was not a single episode but a repeated one; (c) upon police arriving at the premises shortly after the relevant events, he was able to communicate with them reasonably, including providing his agreement to the signing of an undertaking to keep the peace; and (d) he was able to move in the premises unassisted and to leave the premises unassisted in compliance with the request of the attending police.

41. His intoxication was thus perhaps explanatory of his actions, but was not such as to destroy his will or preclude the formation of relevant intent. As a consequence, this ground of appeal is not made out and the appeal as to conviction is not made out.

The appeal as to sentence

42. I adopt the helpful summation of relevant principles on a sentence appeal set out by McWilliam J in Hua v Qiao [2024] ACTSC 121 at [45]: … (a) A conviction is the ordinary consequence of a finding of guilt: Balthazaar v The Queen [2012] ACTCA 26 at [53]. The purpose in recording a conviction has been described as being “a formal and solemn act” to mark the disapproval of the offender’s wrongdoing by the court and society: see R v AB [2022] NSWCCA 3 at [39]. (b) The imposition of a non-conviction order is an “exceptional outcome”. However, the demonstration of exceptional circumstances is not a pre-condition to the making of such an order: Proud v Sladic [2014] ACTCA 26; 67 MVR 485 (Proud) at [42], [46]; Vuolo v Fall [2023] ACTCA 33 (Vuolo) at [37]. (c) Cogent or compelling circumstances are required before a court may be persuaded to deviate from the ordinary consequence of criminal offending: Vuolo at [39]. (d) The discretion to impose a non-conviction order is not a “first offenders” provision. The lack of prior convictions will not of itself provide a sufficient basis to justify a non-conviction order: Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495 (Bennett) at [49]; DPP v Chen [2023] ACTSC 154 at [61] (Chen). (e) There is no requirement that an offence be “trivial” before a non-conviction order can be imposed. There is no rule that certain kinds of offences, by their very nature, are excluded from a non-conviction order being made: Chen at [66]-[67].

43. Mr McGoogan identifies three bases for his appeal on sentence which may be summarised as: (a) The sentencing proceeded on the basis of the wrong facts in that the magistrate found the assault to have commenced from the moment Mr McGoogan entered the bedroom. (b) Intoxication was treated as an aggravating factor but in this case, there was no evidence to show Mr McGoogan had foreknowledge of how he was likely to behave when affected by alcohol. (c) The magistrate erred in the exercise of his discretion as to sentence. In this regard Mr McGoogan relies particularly on the extra-curial punishment he has suffered as a consequence of extensive media publicity of the case.

44. The respondent highlights the extemporaneous nature of the sentencing reasons, noting within those reasons his Honour did not accept much of the explanation for the offending provided by Mr McGoogan. The respondent notes the magistrate considered the necessary and mandatory factors including the provision of an explanation as to why he elected not to exercise his discretion to make a non-conviction order. In support of her submissions, the respondent relies upon the observations of Baker J in Armstrong v Saddler [2024] ACTSC 263 at [55]-[59]. At [55] her Honour observed: The offending occurred in a family violence context, in the victim’s home: s 34B of the Crimes (Sentencing) Act. The community, through Parliament, has made clear that family violence is unacceptable in any form, and that family violence is to be prevented, inter alia, by promoting the accountability of perpetrators of family violence: Preamble to the Family Violence Act 2016 (ACT). Of course, this is not to say that a s 17 non-conviction order will never be appropriate in offending relating to family violence. There is no class of offending which is excluded from the purview of s 17. It is axiomatic that individualised justice requires that consideration be given to the particular offending and to the particular offender: R v Elson [2020] ACTSC 264 at [80]–[81] and Chen at [66]–[67]. However, when considering the weight to be given to the purposes of punishment in s 7 of the Crimes (Sentencing) Act, it is necessary for the Court to take into account the seriousness with which the legislature views this form of offending.

45. And further, Wanstall v R [2024] NSWCCA 167 where his Honour Sweeney J, (with whom Stern JA and Cavanagh J agreed), stated at [36]-[39]: The applicant relied on extensive media publicity as one aspect of extra-curial punishment, and the second that he would never work in his chosen profession of teaching children again. The media reports were before the sentencing judge and this Court. It appears from that material that the media showed interest and published articles whenever the applicant attended court in relation to the charge. Included in the reports were photographs of the applicant. In Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21, the judges of the High Court expressed differing views about whether adverse publicity and public humiliation could mitigate a person's sentence. It appears that in this State, different opinions have been expressed, depending on the accuracy or sensationalism of the media reports, the extent of the adverse effect on the offender's reputation, the public interest in the offence being reported and the psychological or physical effect on the offender: R v Allpass (1993) 72 A Crim R 561; Kenny; R v Obeid (No 12); R v Wran [2016] NSWSC 1015; R v Wilhelm [2010] NSWSC 378. The media reports of the applicant’s proceedings were not inaccurate or sensational. While it may be accepted that they caused damage to his reputation, it was no more than arose from the nature of his offending. There was no evidence of any significant psychological or physical effect on the applicant, from the media reporting. I would not regard the media reporting in this case as extra-curial punishment.

46. The first point may be dealt with in brief. Mr McGoogan’s argument does not fairly reflect the magistrate’s reasons as a whole. His Honour specifically found the assault to have commenced when Mr McGoogan was directed by Ms H to stop and he reacted by removing the doona cover, grabbing her physically and, with her kicking him away, continuing to interact with her physically. It is that conduct which he found was not lawfully justified. An assessment of the reasons of the magistrate as a whole is not supportive of Mr McGoogan’s first argument on sentence.

47. The second argument appears to flow from a misunderstanding of the magistrate’s reasons. The reference to intoxication by alcohol as an aggravating factor appears at transcript, 9 December 2024 at 11.18 – 40 of the sentencing reasons. However, the reference to drunkenness as “if anything, an aggravating factor” is a reference drawn from the decision of R v Fletcher-Jones (1994) 75 A Crim R 381. After discussing that authority, the magistrate goes on to indicate that the story in this case is “slightly different”. The reasons do not provide a basis for Mr McGoogan’s contention that alcohol was determined in his case to be an aggravating factor for sentencing purposes.

48. As to the third argument, having determined the offending was at the low end of objective seriousness, the application of a suitable sentence involved an exercise of discretion by the magistrate; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 per Kiefel CJ, Bell and Keanne JJ at [49] and further Elias v R; Issa v R [2013] HCA 31; 248 CLR 483 per French CJ, Hayne, Kiefel, Bell and Keane JJ at [27]. As his Honour’s reasons make clear, in the exercise of his discretion, he had regard to all of the evidence that was placed before him, including the evidence of the extra-curial suffering for Mr McGoogan as a consequence of the media attention the proceedings attracted. The magistrate set out his reasons for determining that a non-conviction order was inappropriate in the circumstances. No basis has been identified for appellate interference with the magistrate’s decision in that regard.

49. As a consequence, the appeal against sentence is not made out.

50. On 11 September 2024 and 14 November 2024, the magistrate made orders suppressing the publication of the evidence or recordings of the victim as presented at the hearing as well as the victim’s name generally and within court documents, evidence and transcripts. Those suppression orders will remain in effect until further order of the court. Orders

51. For the reasons set out above I make the following order: (1) The appeal against conviction and sentence is dismissed. (2) The orders suppressing the publication of the victim’s name as well as the evidence and recordings given by the victim will continue.

I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: 26 June 2026