Caddies v Birchell - [2017] QDC 274

DISTRICT COURT OF QUEENSLAND

CITATION:

Caddies v Birchell [2017] QDC 274

PARTIES:

ALAN DAVID CADDIES

(appellant)

v

BENJAMIN EDWARD MALCOM BIRCHELL

(respondent)

FILE NO/S:

MAG77279/15; D192/2016

DIVISION:

PROCEEDING:

Criminal Appeal

ORIGINATING COURT:

Magistrates Court at Townsville

DELIVERED ON:

15 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2017

JUDGE:

McGill SC DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – Appeal against conviction – whether finding on credibility inconsistent with objective facts – whether appellant guilty on appellant’s own evidence.

CRIMINAL LAW – Provocation – whether an omission can amount to provocation – whether conduct capable of provoking – whether appellant provoked.

CRIMINAL LAW – Self defence – whether assault unlawful – whether force reasonably necessary to make effectual defence – whether open to appellant to withdraw.

Criminal Code ss 267, 269, 271, 277.

Allesch v Maunz (2000) 203 CLR 172 - cited.
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 – cited.
Commissioner of Police v Al Shakarji [2013] QCA 319 – cited.
Fox v Percy (2003) 214 CLR 118 – cited.
McDonald v Queensland Police Service [2017] QCA 255 – applied.
R v Cuskelly [2009] QCA 375 – cited.
Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 – cited.
Rowe v Kemper [2009] 1 Qd R 247 – cited.
Shambayati v Commissioner of Police [2013] QCA 57 – applied.
Walker v Davlyn Homes Pty Ltd [2003] QCA 565 – applied.
White v Commissioner of Police [2014] QCA 121 – applied.

COUNSEL:

DW Honchin for the appellant

SL Jerome for the respondent

SOLICITORS:

Stevenson & McNamara Lawyers for the appellant

Office of the Director of Public Prosecutions for the respondent

After a trial in the Magistrates Court at Townsville on 3 June 2016, the appellant was convicted of one count of assault occasioning bodily harm, committed on 12 December 2014. The appeal was only against conviction, as I was told that the appellant has not yet been sentenced for the offence. A number of matters were raised in the course of the argument for the appellant.

The appeal is brought under the Justices Act 1886, s 222. The appeal is by way of rehearing on the record, since neither side sought to lead further evidence: s 223. On an appeal by way of rehearing, it is necessary for me to consider the evidence and make up my own mind, particularly in relation to matters involving the drawing of inferences to primary facts, having due regard to the advantages that the magistrate had in seeing and hearing the witnesses, and in being conscious of the atmosphere of the trial generally.[1] In the proceedings before me, the onus is on the appellant to show that there was some error in the decision under appeal.[2]
[1]Fox v Percy (2003) 214 CLR 118 at [22] – [25]; Rowe v Kemper [2009] 1 Qd R 247 at [3] – [5]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7]; Robinson Helicopter Company…

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 Caddies v Birchell

Details

AGLC: Caddies v Birchell [2017] QDC 274
Case: [2017] QDC 274
Decision Date: 15 November 2017

CaseChat Overview and Summary

Caddies and Birchell were involved in a dispute that was brought before the court. Caddies was convicted of assault occasioning actual bodily harm and wounding. The nature of the dispute was whether the appellant's actions were provoked and whether self-defence was a valid defence. The court was required to decide whether the appellant's actions were provoked, whether the force used was reasonably necessary for self-defence, and whether the appellant was guilty on their own evidence.

The court held that the appellant's actions were not provoked and that the force used was not reasonably necessary for self-defence. The court found that the appellant's evidence was inconsistent with objective facts and that the appellant was guilty on their own evidence. The court held that an omission could amount to provocation, but that the conduct in this case was not capable of provoking the appellant. The court also held that the appellant was not lawfully assaulted and that it was open to the appellant to withdraw.

The appeal was dismissed. The court held that the findings on credibility were consistent with the objective facts and that the appellant was guilty as charged. The court found that the appellant's evidence was not credible and that the conviction should be upheld. The court also held that the appellant's actions were not provoked and that the force used was not reasonably necessary for self-defence. The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

Appeal dismissed.

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

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CITATION:	Caddies v Birchell [2017] QDC 274
PARTIES:	ALAN DAVID CADDIES (appellant) v BENJAMIN EDWARD MALCOM BIRCHELL (respondent)
FILE NO/S:	MAG77279/15; D192/2016
DIVISION:
PROCEEDING:	Criminal Appeal
ORIGINATING COURT:	Magistrates Court at Townsville
DELIVERED ON:	15 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	9 June 2017
JUDGE:	McGill SC DCJ
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – Appeal against conviction – whether finding on credibility inconsistent with objective facts – whether appellant guilty on appellant’s own evidence. CRIMINAL LAW – Provocation – whether an omission can amount to provocation – whether conduct capable of provoking – whether appellant provoked. CRIMINAL LAW – Self defence – whether assault unlawful – whether force reasonably necessary to make effectual defence – whether open to appellant to withdraw. Criminal Code ss 267, 269, 271, 277. Allesch v Maunz (2000) 203 CLR 172 - cited. Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 – cited. Commissioner of Police v Al Shakarji [2013] QCA 319 – cited. Fox v Percy (2003) 214 CLR 118 – cited. McDonald v Queensland Police Service [2017] QCA 255 – applied. R v Cuskelly [2009] QCA 375 – cited. Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 – cited. Rowe v Kemper [2009] 1 Qd R 247 – cited. Shambayati v Commissioner of Police [2013] QCA 57 – applied. Walker v Davlyn Homes Pty Ltd [2003] QCA 565 – applied. White v Commissioner of Police [2014] QCA 121 – applied.
COUNSEL:	DW Honchin for the appellant SL Jerome for the respondent
SOLICITORS:	Stevenson & McNamara Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent