A judge who convicted a Canberra man of punching another in the face at the Mugga Lane tip failed to consider the possibility the defendant acted out of fear for his safety, a court has heard.
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A full bench of the ACT Court of Appeal heard that then-acting justice John Nield had made a legal error when he found Richard Mulcahy, 55, guilty of assault occasioning actual bodily harm.
Mulcahy, not to be confused with the former MLA of the same name, punched another man in the chin during a dispute over queue-jumping at the rubbish tip in December 2007. The victim, Nicholas Gerhard, was knocked to the ground and struck his head on a rock, suffering cuts to his face and the back of his head.
Mulcahy was found guilty after a Supreme Court trial last year in which the victim was described as the ''Mahatma Gandhi of the tip''.
He is appealing against his conviction.
Yesterday his barrister John Purnell SC told the court Justice Nield had failed to adequately address the possibility his client punched Mr Gerhard because he believed the other man was about to assault him.
He said evidence produced at the trial supported Mulcahy's statement that Mr Gerhard twice grabbed him roughly on the shoulder, leaving him with bruises and a fear for his safety.
But in his judgment after the trial, Justice Nield had rejected the defence evidence and found Mulcahy and his wife gave inconsistent testimony and different versions of events.
Mr Purnell drew on evidence from an osteopath who saw the bruises when he treated Mulcahy for a sore shoulder two days after the offence and from a doctor who also examined the man.
He said the marks on Mulcahy fitted a physical altercation between the two men on the day, which could have legitimately left his client in fear of being assaulted, resulting in the punch.
But the judges suggested that the evidence about the bruises was inconsistent and Justice Nield had not committed an error when he set the evidence aside.
Mr Purnell briefly came under fire from the bench when he suggested Justice Nield came to the conclusion Mulcahy was guilty and then tried to find evidence to support his conclusion.
Justice Bruce Lander rejected the submission as inappropriate and offensive. The court has reserved its decision.