Bock v Sheppard - [2022] QDC 172

DISTRICT COURT OF QUEENSLAND

CITATION:

Bock v Sheppard [2022] QDC 172

PARTIES:

KEVIN DARREN BOCK

(appellant)

v

M.J SHEPPARD

(respondent)

FILE NO/S:

2390 of 2021

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Maryborough Magistrates Court

DELIVERED ON:

2 June 2022 (ex-tempore)

DELIVERED AT:

Brisbane District Court

HEARING DATE:

2 June 2022

JUDGE:

Dearden DCJ

ORDER:

Appeal granted;(1)

Set aside the conviction for common assault;(2)

Remit the matter to the Maryborough Magistrates Court for retrial; and(3)

No order as to costs.(4)

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where appellant was found guilty of common assault – where the appellant appeals conviction – whether the appellant was denied procedural fairness

LEGISLATION

Justices Act 1886 (Qld) ss 222, 223

CASES

McDonald v Queensland Police Service [2017] QCA 255

Forrest v The Commissioner of Police [2017] QCA 132

R v HAU [2009] QCA 165

R v Spizzirri [2001] 2 Qd R 686

Rose v Commissioner of Police [2018] QDC 226

Waset Sali v SPC Limited [1993] ALR 625

COUNSEL:

J Torcetti (solicitor) for the appellant

S Poplawski (solicitor) for the respondent

SOLICITORS:

Murray Torcetti Lawyers for the appellant

Office of the Director of Public Prosecution for the respondent

Introduction

The appellant, Kevin Darren Bock, appeals against his conviction, after trial, of one charge of common assault in the Maryborough Magistrates Court on 13 August 2021. The appellant was found guilty and fined $600 with no conviction recorded.

Grounds of Appeal

The appellant filed a notice of appeal on 13 September 2021 with the following ground: –

(1) The Defendant was denied procedural fairness.

The Law/Appeals

The appeal proceeds pursuant to the Justices Act 1886 (Qld) (‘JA’) s 222, and is a rehearing.[1]
[1]Justices Act 1886 (Qld) s 223.

In McDonald v Queensland Police Service [2017] QCA 255 [47] Bowskill J (as she then was) stated:

“It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.” [Citations omitted].[2]

[2]McDonald v Queensland Police Service [2017] QCA 255 [47]

In Forrest v The Commissioner of Police [2017] QCA 132, Sofronoff P stated [p2]:

“... an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case.”[3]

[3]Forrest v The Commissioner of Police [2017] QCA 132, 2.

Background

The appellant usefully summarises the background to this matter as follows:

(1) On the 21st of December 2021, the appellant, Kevin Bock, was issued a notice to appear in the Maryborough Magistrates…

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 Bock v Sheppard

Details

AGLC: Bock v Sheppard [2022] QDC 172
Case: [2022] QDC 172
Decision Date: 2 June 2022

CaseChat Overview and Summary

The appellant, Bock, was found guilty of common assault by the Maryborough Magistrates Court. Bock appealed the conviction on the ground that he was denied procedural fairness in the original trial. The appeal was heard in the Queensland Magistrates Court, which has appellate jurisdiction over the Magistrates Court.

The central legal issue was whether the appellant was denied procedural fairness during the trial. This issue arose from the trial magistrate’s refusal to allow the appellant to call a witness in his defence, despite the witness being available and willing to testify. The appellant argued that this refusal denied him a fair opportunity to present his case.

The Magistrates Court held that the refusal to allow the witness to testify was a breach of procedural fairness. The court found that the trial magistrate had no basis to exclude the witness, and the exclusion prevented the appellant from adequately defending himself. As a result, the court concluded that the appellant's right to a fair trial was compromised, and the conviction was set aside. The matter was remitted to the Maryborough Magistrates Court for retrial.

The appeal was granted, and the conviction for common assault was set aside. The matter was remitted to the Maryborough Magistrates Court for retrial. There was no order as to costs.

Orders

Orders of the court

Appeal granted;(1)

Set aside the conviction for common assault;(2)

Remit the matter to the Maryborough Magistrates Court for retrial; and(3)

No order as to costs.(4)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bock v Sheppard [2022] QDC 172
PARTIES:	KEVIN DARREN BOCK (appellant) v M.J SHEPPARD (respondent)
FILE NO/S:	2390 of 2021
DIVISION:	Appellate
PROCEEDING:	Appeal pursuant to s 222 of the Justices Act 1886 (Qld)
ORIGINATING COURT:	Maryborough Magistrates Court
DELIVERED ON:	2 June 2022 (ex-tempore)
DELIVERED AT:	Brisbane District Court
HEARING DATE:	2 June 2022
JUDGE:	Dearden DCJ
ORDER:	Appeal granted;(1) Set aside the conviction for common assault;(2) Remit the matter to the Maryborough Magistrates Court for retrial; and(3) No order as to costs.(4)
CATCHWORDS:	MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where appellant was found guilty of common assault – where the appellant appeals conviction – whether the appellant was denied procedural fairness
LEGISLATION	Justices Act 1886 (Qld) ss 222, 223
CASES	McDonald v Queensland Police Service [2017] QCA 255 Forrest v The Commissioner of Police [2017] QCA 132 R v HAU [2009] QCA 165 R v Spizzirri [2001] 2 Qd R 686 Rose v Commissioner of Police [2018] QDC 226 Waset Sali v SPC Limited [1993] ALR 625
COUNSEL:	J Torcetti (solicitor) for the appellant S Poplawski (solicitor) for the respondent
SOLICITORS:	Murray Torcetti Lawyers for the appellant Office of the Director of Public Prosecution for the respondent