FEDERAL COURT OF AUSTRALIA

Sarri v Gresham [1999] FCA 175

ANDREW NICHOLAS SARRI V ROBERT JOHN GRESHAM

AG 97 of 1998

JUDGES:         SPENDER, HIGGINS, WEINBERG JJ

DATE:             24 FEBRUARY 1999

PLACE:           CANBERRA

THE COURT ORDERS THAT:

The appeal be dismissed.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

1                     The facts or the history of this matter need not be recited.

2                     We can understand the concern of Mr Sarri at having on his record a finding that he had assaulted a patron, notwithstanding the fact that the penalty imposed was, of course, disposition under s556A without conviction.  But the difficulty is, that on the evidence before him, the learned Magistrate was entitled to find that there had been no punch thrown by Mr Angelos or indeed any action on his part that could reasonably be so construed.  There being no punch, there was no foundation then for any possible defence to the charge of assault by reason of either self-defence or of s88 of the Liquor Act, even if that section was applicable.  And it seems to us no error, either on the part of the learned Magistrate or on the part of the Chief Justice in hearing an appeal from the learned Magistrate, has been demonstrated.

3                     We would for those reasons dismiss the appeal.

Associate:

Dated:              24 February 1999