Police v McGuire [2019] NSWLC 10

Local Court New South Wales

Medium Neutral Citation: Police v McGuire [2019] NSWLC 10 Hearing dates: 6 February 2018, 12, 13 November 2018 18 January 2019 (further submissions) Decision date: 18 January 2019 Jurisdiction: Criminal Before: Magistrate Tsavdaridis Decision: The Defendant is found not guilty of two counts of common assault, contrary to s.61 of the Crimes Act 1900 (NSW) (Sequences 1 and 2) Catchwords: CRIMINAL LAW - common assault - defence case - whether Defendant's conduct intentional - whether Defendant's conduct without lawful excuse - self-defence - where Defendant was a carer and disability support worker in a group home - where Defendant's conduct was alleged to be a common assault on two autistic and cognitively impaired residents - where alleged victims were young adult females - whether the Defendant's conduct was a breach of the criminal law or whether he performed his duties poorly or negligently - whether Defendant's actions constituted excessive force - where Defendant physically restrained the alleged victims - Held: lawful excuse established - Held: self-defence established Legislation Cited: Crimes Act 1900 (NSW) ss.61, 418, 419 Evidence Act 1995 (NSW) ss.141(1) and (2), 177 Cases Cited: Attwood v R (1960) 102 CLR 353; [1960] HCA 15 Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7 Colosimo & Ors v Director of Public Prosecutions (NSW) [2006] NSWCA 293 Fleming v R (1998) 197 CLR 250; [1998] HCA 68 Morgan v Colman (1981) 27 SASR 334 R v Conlon (1993) 69 A Crim R 92 R v Katarzynski [2002] NSWSC 613 R v Lawson and Forsythe [1986] VR 515; (1985) 18 A Crim R 360 R v Lister [2009] QCA 368 R v Marshall (unreported, NSWCCA, 17 July 1990) R v Murphy (1985) 4 NSWLR 42 R v Slater (1987) 44 SASR 136 R v Stokes and Difford (1990) 51 A Crim R 25 R v Timbreza [2012] NSWDC 142 Smith v R [2007] NSWCCA 135 Woolmington v DPP [1935] AC 462 Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; (1987) 25 A Crim R 163; [1987] HCA 26 Category: Principal judgment Parties: NSW Police (Prosecution) Thomas Francis McGuire (Defendant) Representation: Solicitors: Ms J Palmer, Snr Sgt (Police Prosecutor) Mr S O'Connell (O'Brien Criminal and Civil Solicitors) (Solicitor for Defendant) File Number(s): 2017/34787