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The finding in the Magistrates Court that is the subject of challenge

4. The magistrate dismissed the remaining charge that is the subject of this appeal because he considered that it would be unsafe to find that the conduct amounted to assault at law, having regard to factors including that the conduct was fleeting, it was done without an intention to harm, and it was motivated to get the attention of the complainant. This is seen from the following extract of his Honour’s reasons, with the critical parts emphasised: The real difficulty comes to the final assault. As I say, it is the only one captured with any degree of clarity. When I first saw it, I found it confrontational; I found it was an application of force; it was in an area which is vulnerable, a person’s face and neck area, but it was fleeting. Having regard to that particular charge and the looking at of it; and in all the circumstances I need to be careful about it – that it is in time relatively quick to the events which occur on the bed, because it was the [complainant’s] evidence, I think, that she was almost dressed in less than a minute after getting up from the bed, and then some three minutes then by the time she got the cat and then wanted to exit the house. It is all relatively close together. Overall, again, I think in the circumstances the image is clear. It appeared to me to be, in one sense that has been raised by the submissions of the defendant, that I take the interaction as to be ‘Hey, is this what – what has all this been about?’ and that the touching at that point in time is to get attention and focus, trying to get an answer to the question. Do I take that as to be an application of force? Yes. Is it without consent? Is it unlawful? I am not sure – the fleeting moment of that. The one thing that I get from looking at it, it doesn’t appear that the hands are pressed into the face or into the neck, and from that, again, I would think it would be unsafe to form a view that what was done amounts to an assault at law, in that what was actually done was a discourse and exchange between two partners and an attempt to try and understand, but without any intent, it seemed, to harm. There was no doubt confrontation and there was a heightened level of response from the defendant, and certainly none at all from the complainant, but in those circumstances I am not satisfied ultimately that I could find that assault on 7895 proved, and that would be the only one I had had a concern about. Grounds of appeal established

5. The appellant contended that the magistrate’s decision was wrong at law in two ways: (a) with respect to the elements of an offence of common assault contrary to s 26 of the Crimes Act 1900 (ACT); and (b) in finding that the conduct in question did not amount to common assault..

6. In essence, the complaint was that the magistrate failed to apply the law relating to the common assault elements of consent and lawful excuse. I have accepted that each of those errors has been established and will now explain that conclusion.

The court’s power and task

7. The court’s jurisdiction and power was uncontroversial here. The review appeal was brought pursuant to ss 219B(1)(a) and 219D of the Magistrates Court Act 1930 (ACT) (MC Act). Those sections permit a review appeal in respect of an order dismissing an information dealt with under the Crimes Act.

8. The review ground pressed at the hearing of the appeal was that provided by 219D(c), namely that the decision to dismiss the information should not in law have been made.

9. This court has various powers to dismiss, set aside or quash, or amend the decision of the Magistrates Court: s 219F of the MC Act.

The elements of the offence of common assault by battery

10. Common assault by battery is constituted by an intentional or reckless application of force to another person, without their consent and without lawful excuse: R v Tate [2010] ACTSC 144 at [62]-[64]. This force need not be accompanied by an intention to cause harm: Boughey v The Queen [1986] HCA 29; 161 CLR 10.

11. Lawful excuse for the application of force has been recognised in this jurisdiction to include applications of force by consent (such as consent for medical procedures), exercising a lawful power of arrest, self-defence, evicting a trespasser and the lawful chastisement of a child: Cattanach v Harrison [2016] ACTSC 60; 307 FLR 188 at [19].

12. There is a further class of lawful excuse described by the appellant as implied consent to incidental physical contact occurring as part of the exigencies of everyday life, which was described by Goff LJ in Collins v Wilcock [1984] WLR 1172 at 1177 as follows: But, apart from these special instances where the control or constraint is lawful, a broader exception has been created to allow for the exigencies of everyday life. Generally speaking consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is, within reason, slapped: see Tuberville v. Savage (1669) 1 Mod. 3. Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life. We observe that, although in the past it has sometimes been stated that a battery is only committed where the action is “angry revengeful, rude, or insolent” (see Hawkins, Pleas of the Crown, 8th ed. (1824), vol. 1, c. 15, section 2), we think that nowadays it is more realistic, and indeed more accurate, to state the broad underlying principle, subject to the broad exception.

13. This was endorsed by the High Court in Secretary, Department of Health & Community Services v JWB [1992] HCA 15; 175 CLR 218 at 233: A further exception of this kind is reflected in Collins v Wilcock, where it was said that in respect of physical contact arising from the exigencies of everyday life — jostling in a street, social contact at parties and the like — there is an implied consent “by all who move in society and so expose themselves to the risk of bodily contact”, or that such encounters fall “within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life”.

14. That exception was considered in this jurisdiction in McElholum v Hughes [2015] ACTSC 78. The appellant in that case argued that the opening of a door onto his victim did not constitute assault as it fell within the general exception referred to above. Refshauge J rejected this argument, stating at [185]–[188] (and confirmed on appeal): 185. While these statements do state the law, it must also be accepted that not all contact occurring in the course of “ordinary life” will fall within the exceptions referred to in them. For example, while moving between people to alight from a crowded bus may result in some contact that will not constitute assault, that would not be so if a person were deliberately to have their elbows out to make their way vigorously and robustly to the front of the bus by elbowing people. The latter would ordinarily constitute assault. 186. To determine whether an action constitutes assault requires a focus on the precise terms on what was occurring and whether the actions constitute something more than simply going about one’s daily life. Thus, Robert Goff LJ in Collins v Wilcock at 1178, noted that: persistent touching to gain attention in the face of obvious disregard may transcend the norms of acceptable behaviour and so be outside the exception. We do not say that more than one touch is never permitted; for example, the lost or distressed may surely be permitted a second touch, or possibly even more, on a reluctant or impervious sleeve or shoulder, as may a person who is acting reasonably in the exercise of a duty. 187. His Honour then continued at 1178: In each case, the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct; and the answer to that question will depend upon the facts of the particular case. 188. Carefully opening a door to enter a room is something that constitutes conduct in the ordinary course of life. However, to open a door with vigour and force, knowing that it is being closed by someone on the other side and being indifferent as to whether a person, whom a defendant knows to be standing behind the door, or is aware of that likelihood, could be struck or injured, goes beyond the limits of permissible ordinary conduct. The defence of lawful excuse or implied consent was either misunderstood or misapplied here

15. The prosecution submitted that the magistrate erred in applying the law with respect to the elements of common assault, namely those of consent and lawful excuse. Self-defence did not arise and was not relied upon, and the other defences set out at [11] above were not applicable on the facts of this case. The only available lawful excuse was the implied consent to physical contact occurring from exigences of everyday life. While physical contact to gain the attention of another person is a part of everyday life, whether such conduct falls within the parameters of acceptable standards of conduct depends on the circumstances of the contact.

16. I accept those submissions. In the reasons set out above, the magistrate focused on the fleeting nature of the conduct and the lack of an intention on the part of the respondent to harm the complainant. First, lack of intention to harm is not a lawful excuse. Second, when considering consent, the brief nature of the conduct cannot be viewed in isolation from the conduct itself. For example, a punch in the face may be brief or fleeting but nevertheless a battery. Here, the face and neck areas are vulnerable parts of the body (a point similarly acknowledged by the magistrate). Brief incidental bodily contact between the face and someone else’s hands is not part of ordinary life unless one is somewhere like the beautician or the barber.

17. The respondent argued that the magistrate’s decision reflected a careful and principled application of the law, considering the complexities of the relationship and avoiding the unjust criminalisation of behaviour that, while undesirable, does not rise to the level of criminality. It was submitted that the totality of the circumstances must be considered, and the battery considered contextually. A brief physical act such as placing hands on a person’s face within the context of an intimate relationship does not automatically satisfy the elements of unlawful assault.

18. I accept that the totality of the circumstances must be considered, but viewing the conduct in its context is what takes it outside the realm of lawful contact. What the magistrate described as a “confrontation” and a “heightened level of response from the defendant” was the respondent grabbing the complainant’s face while yelling aggressively at her. The contact itself may have been brief. However, regardless of whether such conduct occurred between romantic partners or strangers, the act in question does not fall within the type of physical contact which might be accepted as conduct to which people impliedly consent as part of everyday life.

19. The respondent placed his hands on either side of the complainant’s chin while he was yelling at her. The magistrate found that the conduct involved an application of force. It is precisely the context that explains why the contact here cannot be viewed as a mere placing of hands on the complainant’s face to which an intimate partner may have impliedly consented.

20. The respondent further submitted that the conduct was not an isolated or unprovoked act of aggression. The conduct occurred during a broader emotionally charged exchange. That may explain how the act came to occur, but self-defence was not propounded and the fact that two people are angry at each other does not turn contact that is without consent into contact for which there may be implied consent.

21. Thus, I accept that the magistrate made a legal error with regard to whether there was lawful excuse by implied consent as reflected in the authorities above.

Should the residual discretion be exercised?

22. Although error has been established, the court retains “broad and complementary discretions” under s 219F(1) and (5) of the MC Act to dismiss the appeal: Harlovich v Sebbens [2023] ACTSCFC 3; 20 ACTLR 237 at [84]. The basis and application of the residual discretion was discussed in Harlovich at [2]-[5], with fairness and justice, both to the individual offender and with respect to the administration of justice more generally, guiding the exercise of the discretionary power. Those sections provide “separate, overlapping, discretions to dismiss” a prosecution appeal: Styche v Bourke [2025] ACTCA 5; 393 FLR 303 at [56].

23. As set out in Harlovich at [2] and [4], reasons for which an appellate court may decline to allow a prosecution appeal notwithstanding that error has been established include, but are not limited to, where: (a) the prosecution contributed to the error at first instance; (b) allowing a prosecution appeal would undermine an offender’s rehabilitation progress; (c) the offender has been released, or such release is imminent; (d) there has been a delay in the commencement, hearing or determination of the prosecution appeal; and (e) the prosecution’s selective invocation of appellate jurisdiction could cause disparity between co-offenders.

24. In this jurisdiction, the discretion not to intervene has also been exercised where the prosecution would have an opportunity to present its case again and to supplement the evidence in circumstances where the unsatisfactory state of the evidence was attributable to choices made by the prosecution: Moroney v Wojcicka [2003] ACTCA 15; 143 A Crim R 1. Another example of where the discretion may be exercised, postulated in Waring v Laws [2020] ACTSC 33 at [22], is where no miscarriage of justice is established because the outcome (of dismissal of the charge) would be inevitable.

25. As the appellant submitted, the fundamental principle underlying the exercise of the residual discretion is the prevention of unfairness or injustice arising from the appeal: Harlovich at [82]; R v Holder [1983] 3 NSWLR 245; 13 A Crim R 375 at 255.

26. The onus is on the prosecution to satisfy the court that the discretion should not be exercised in favour of the respondent: CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 at [66], cited in Harlovich at [5].

27. Here, I accept the appellant’s submissions that the legal error was a significant error that was neither minor nor technical in nature. It impacted upon the critical finding as to whether an element of the charge was established. The prosecution did not contribute to the error in the reasoning process. There was no delay in bringing the review appeal.

28. Relevantly here, while a trivial error may give rise to the discretion being exercised, that differs from an offence where the conduct involved is at the trivial end. Circumstances such as the offence involving minimal objective seriousness or the disproportionate use of further judicial and community resources do not warrant the exercise of the discretion to decline to intervene. That may be seen from Moroney at [110], where the Court of Appeal indicated that expediency considerations would not ordinarily be regarded as warranting departure from the usual course of ordering a fresh hearing.

29. What may really have been at the heart of the magistrate’s comment that he considered it “unsafe to form a view that what was done amounts to an assault at law” was the low objective seriousness of the conduct in question, coupled with a potentially disproportionate outcome, given the offence was one falling within the category of family violence. Even a finding of guilt without a conviction in those circumstances may be a career ending outcome for a person.

30. If that was really what was underlying the magistrate’s comments as to fleeting conduct, I too have some disquiet about whether it is truly in the interests of justice for all parties and the broader community to remit this matter for further hearing in isolation from the other charges which were dismissed. The use of judicial resources is precious. While I say nothing about the merit of the charge and its initial prosecution, once the respondent has been acquitted of the other more serious conduct, the remittal of this charge to be prosecuted again by itself may achieve little more than academic purposes. However, such considerations are properly within the purview of the prosecutorial discretion, rather than the judicial residual discretion under s 219F of the MC Act. I am not persuaded there is a sufficient reason to withhold relief, and the future progress of the charge remains a matter entirely for the prosecution.

Costs

31. On an appeal pursuant to s 219B(1)(a) of the MC Act, the court must order that the costs of and incidental to the appeal are payable by the appellant. Such an order will be made.

Orders

32. Accordingly, the orders of the Court are: (1) The appeal is allowed. (2) The decision of the Magistrates Court on 5 August 2024 in respect of CAN 7895/2024 is set aside. (3) The matter is remitted to the Magistrates Court for further determination according to law. (4) Pursuant to s 219F(8) of the Magistrates Court Act, the appellant is to pay the costs of and incidental to the appeal.

I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: