Butcher v Woods - [1996] QCA 465

IN THE COURT OF APPEAL	[1996] QCA 465
SUPREME COURT OF QUEENSLAND

C.A. No. 336 of 1996

Brisbane

[Butcher v. Woods]

MICHAEL BUTCHER

MARK WILLIAM WOODS

(Applicant) Appellant
Thomas J
Lee J
Fryberg J

Judgment delivered 22 November 1996

Separate reasons for judgment by each member of the Court, Thomas J dissenting in part

Orders:
1.Application granted
2.Appeal allowed

3.Conviction set aside and verdict of acquittal entered

CATCHWORDS:

Criminal law - Test to be applied in determining an appeal from a magistrate's decision -

whether magistrate's decision should be interfered with.

Bailey v. Costin CA 261 of 1993, 18 October 1993
M v. The Queen (1994) 181 CLR, 494-495
R v. Free [1983] 2 Qd R 183

Sections 673, 668D, 668E Criminal Code

Counsel:	Appellant appeared on his own behalf Mr P.J. Callaghan for the Respondent
Solicitors:	Appellant appeared on his own behalf Commonwealth Director of Public Prosecutions for the Respondent
Hearing date:	9 September 1996

REASONS FOR JUDGMENT - THOMAS J

Judgment delivered 22 November 1996

The applicant was convicted by a magistrate of assault occasioning bodily harm. He was sentenced to four months' imprisonment, wholly suspended, with an operational period of three years.

His notice of appeal was filed one day late and he therefore needs the leave of the Court to pursue an appeal against conviction and also an application for leave to appeal against sentence. The delay is adequately explained as being the result of difficulties in obtaining finance for legal costs as a private litigant. In the event the applicant has supplied to the Court copies of a full transcript of proceedings, but has appeared without the benefit of legal representation.

The grounds of appeal are devoid of particularity, and are confined to -

(1)the decision . . was unreasonable, or alternatively cannot be supported having regard to the

evidence, and was in all of the circumstances unsafe and unsatisfactory;

(2)the sentence was manifestly excessive in all the circumstances;
(3)the applicant reserves his right to amend, supplement and/or add further grounds.

The Court was not able to obtain a satisfactory statement of particulars from the applicant, but his written outline of argument raises particular points that may be discussed as particulars of ground 1.

Since preparing these reasons Fryberg J has provided me with a draft of his reasons, and these contain a more comprehensive statement of the evidence given before the magistrate. For convenience however I shall retain my more limited statement of the evidence as the basis of discussion of the points which I understand to have been argued.

The conviction was the result of an incident in the waiting area of the Family Court in Brisbane. The applicant is alleged to have assaulted one Peter Bakens. The applicant was present, apparently as a supporter of Mrs Bakens with whom he was then friendly. Indeed the applicant has since married the then Mrs Bakens. Apparently a dispute existed between Mr and Mrs Bakens in relation to the children of their marriage, 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 Butcher v Woods

Details

AGLC: Butcher v Woods [1996] QCA 465
Case: [1996] QCA 465
Decision Date: 22/11/1996

CaseChat Overview and Summary

In Butcher v. Woods, the Court of Appeal considered an appeal against conviction for assault occasioning bodily harm. The applicant, Mark Woods, had been convicted by a magistrate and sentenced to four months' imprisonment, wholly suspended, with an operational period of three years. Woods appealed the conviction on the grounds that the magistrate's decision was unreasonable, unsafe and unsatisfactory, and that the sentence was manifestly excessive. The court granted leave to appeal despite the late filing of the notice of appeal, as the delay was due to difficulties in obtaining finance for legal costs. The appeal was heard with Woods appearing without legal representation.

The key issue before the court was whether the magistrate's decision was safe and satisfactory, and whether the prosecution had excluded the defence of provocation beyond reasonable doubt. The applicant argued that the magistrate erred in rejecting his evidence and accepting the complainant's evidence without proper consideration of all the evidence, particularly the evidence of the security guard and the two solicitors, which corroborated the applicant's version of events. The applicant claimed that he acted in self-defence after the complainant mouthed the words "You fuck. You're nothing but a paedophile" and approached the group aggressively.

The court found that the magistrate's failure to properly consider and address the critical factors in the case, particularly the evidence of the security guard and the solicitors, led to a miscarriage of justice. The magistrate's rejection of the applicant's evidence without proper consideration of all the evidence, and the failure to give reasons for accepting the complainant's evidence, diminished the respect accorded to the magistrate's findings on issues of credibility. The court concluded that the appeal should be allowed, and the conviction set aside, with a verdict of acquittal entered in its place.

Orders