Biddle v Dimmock - [1992] QCA 265

IN THE COURT OF APPEAL [1992] QCA 265

SUPREME COURT OF QUEENSLAND	Appeal No. 136 of 1992
BETWEEN:

WESLEY RAYMOND BIDDLE

PHILLIP DESMOND DIMMOCK

Appellant

JUDGMENT OF THE COURT

Delivered the 21st day of August, 1992

This is an appeal against a summary conviction of assault occasioning bodily harm. The incident in question arose out of a physical confrontation between two young men who shared a flat.

There was no doubt that the complainant suffered bodily

harm. He was left with a bruise (slightly swollen) to the right

eye, other bruising to the face and "a bit of blood" on his nose. The persons involved gave very different accounts of the incident and in the end the Magistrate preferred the account of

the appellant. This involved acceptance of the appellant's

account where it was inconsistent with that of the complainant, and in particular, of the events leading up to the appellant punching the complainant in the face. The Stipendiary

Magistrate concluded that the complainant first displayed

aggression and committed a minor assault upon the appellant, and that the appellant was justified in retaliating "to defend himself", but considered that the retaliation was "rather savage

and went beyond the bounds of being reasonable in all the circumstances". On that basis he held that the defence of self- defence failed.

In order to deal with the points raised in argument it is necessary to state the facts in a little more detail. During the preceding evening the two men had argued and the appellant

had asked the complainant to leave the premises in the near

future. On the morning in question at about 7.40 a.m. the

argument was renewed in the kitchen. They went to the decking near the front steps. The complainant was agitated and repeatedly adopted a physically threatening pose of standing a few inches away from the appellant, puffing out his chest "in

baboon fashion", looking down at the appellant and trying to

push him back with his chest. The complainant is about six foot

two inches high and a stone and a half heavier than the

appellant who is about six feet tall. The appellant pushed him away a few times, but the complainant lunged and caught the appellant a grazing blow to his left ear. He says that the complainant threw two slight blows, one of which glanced off his left ear and the other of which landed in the middle of his

chest.

Thereupon, according to the appellant "in the next five or six seconds, I probably swung five or six punches at him most of which landed in his face". Elsewhere he said that he probably struck the complainant four direct punches to the face, one glancing blow to the head, and that his last punch was

controlled so that it stopped about two inches from the complainant's face, being delivered as a warning gesture. When asked why he stopped he said "it became evident to me that he was becoming defensive" and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Biddle v Dimmock

Details

AGLC: Biddle v Dimmock [1992] QCA 265
Case: [1992] QCA 265
Decision Date: 21/08/1992

CaseChat Overview and Summary

Wesley Raymond Biddle, the appellant, appealed against a summary conviction of assault occasioning bodily harm. The incident involved a physical confrontation between the appellant and Phillip Desmond Dimmock, the respondent, who shared a flat. The Court of Appeal was tasked with reviewing the Magistrate's decision. The key legal issues revolved around whether the appellant's response to the alleged assault was justified self-defence and, if so, whether the force used was reasonable. The Court of Appeal considered whether the Magistrate's findings were supported by the evidence and whether the appellant's response could be viewed as a single incident or if it should be subdivided into separate acts.

The Court of Appeal examined the Magistrate's findings and the evidence presented. The appellant argued that the Magistrate's finding that the respondent did not resist after the initial punch was unsupported and unreasonable. However, the Court found that the evidence supported the Magistrate's findings. The Court also addressed the argument that the appellant's response should be viewed as a single incident rather than multiple separate acts. The Court concluded that it was appropriate to view the appellant's response as a single incident, given the circumstances and the evidence presented.

The Court of Appeal then considered the reasonableness of the Magistrate's decision that the appellant's retaliation was excessive. The Court acknowledged that the determination of whether the force used was reasonable is fact-specific and involves assessing the community standard. The Court held that the Magistrate's finding that the force used was excessive was supported by the evidence and should not be disturbed. Therefore, the appeal was dismissed.

MINUTE OF ORDER: Appeal dismissed.

Orders