Constable S J Miers v Blewett

Case [2013] QCA 23


SUPREME COURT OF QUEENSLAND

CITATION:

Constable S J Miers v Blewett [2013] QCA 23

PARTIES:

MIERS, CONSTABLE S J
(applicant)
v
BLEWETT, Christopher Lee
aka BLEWITT, Christopher Lee
(respondent)

FILE NO/S:

CA No 82 of 2012
DC No 373 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

22 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2012

JUDGES:

Holmes and Fraser JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Leave to appeal granted.

2.   Appeal dismissed.

3.   The applicant shall pay the respondent’s costs of and incidental to the appeal, including the application for leave to appeal, to be assessed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where respondent convicted in the Magistrates Court of two offences under s 80(1) of the Domestic and Family Violence Protection Act 1989 (Qld) – where respondent had previously been convicted of two offences against s 80(1) of the Domestic and Family Violence Protection Act 1989 (Qld) – where prosecution sought to tender the whole of the respondent’s criminal history – where prosecution did not seek to rely on the criminal history to raise the maximum sentence, but to increase the penalty that could be imposed on the respondent – where no notice was served by the prosecution under s 47(5) of the Justices Act 1886 (Qld) in relation to the prosecution’s reliance on the respondent’s previous convictions – where Magistrate rejected the tendering of the whole of the respondent’s criminal history – where on appeal in the District Court the judge upheld the Magistrate’s decision – where none of the respondent’s criminal history was taken into account in determining the sentence – whether the lack of notice under s 47(5) of the Justices Act 1886 (Qld) had the effect of preventing the court from taking the two previous convictions against s 80(1) of the Domestic and Family Violence Protection Act 1989 (Qld) into account – whether evidence of the two previous convictions for offences against s 80(1) of the Domestic and Family Violence Protection Act should be admissible – whether other prior non-domestic violence offence convictions of the respondent should have been taken into account in determining the sentence – whether District Court Judge erred in affirming the Magistrate’s ruling that the respondent’s criminal history was inadmissible

Criminal Code 1899 (Qld), s 1, s 564(2)
Domestic and Family Violence Protection Act
1989 (Qld), s 80(1)
Justices Act 1886 (Qld), s 47(4), s 47(5)
Penalties and Sentences Act 1992 (Qld), s 9(2)(r), s 9(4)(g), s 11

Faulkner v Morris [2010] QDC 33, cited
Kingswell v The Queen (1985) 159 CLR 264; [1985] HCA 72, cited
Smith v Ash [2011] 2 Qd R 175; [2010] QCA 112, cited
The Queen v De Simoni

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Constable S J Miers v Blewett [2013] QCA 23
Case
[2013] QCA 23
Decision Date

CaseChat Overview and Summary

In the case of Constable S J Miers v Blewett, the respondent was convicted in the Magistrates Court of two offences under section 80(1) of the Domestic and Family Violence Protection Act 1989 (Qld). The respondent had previously been convicted of two offences against section 80(1) of the same Act. The prosecution sought to tender the whole of the respondent’s criminal history. However, the Magistrate rejected the tendering of the respondent’s criminal history as the prosecution had not served notice under section 47(5) of the Justices Act 1886 (Qld). The respondent appealed to the District Court, which upheld the Magistrate’s decision. The respondent argued that the lack of notice under section 47(5) of the Justices Act 1886 (Qld) had the effect of preventing the court from taking the two previous convictions into account. The respondent also argued that evidence of the two previous convictions for offences against section 80(1) of the Domestic and Family Violence Protection Act should be admissible and that other prior non-domestic violence offence convictions of the respondent should have been taken into account in determining the sentence.

The court considered whether the lack of notice under section 47(5) of the Justices Act 1886 (Qld) had the effect of preventing the court from taking the two previous convictions into account. The court found that the prosecution was not required to give notice of the previous convictions under section 47(5) of the Justices Act 1886 (Qld) as the previous convictions were not being relied upon to raise the maximum sentence. The court also found that the District Court Judge did not err in affirming the Magistrate’s ruling that the respondent’s criminal history was inadmissible. The court held that the District Court Judge had correctly found that the previous convictions were not admissible as the prosecution had not given notice under section 47(5) of the Justices Act 1886 (Qld). The court further held that the previous convictions should not have been taken into account in determining the sentence as they were not admissible.

The appeal was dismissed, and the applicant was ordered to pay the respondent’s costs of and incidental to the appeal, including the application for leave to appeal, to be assessed. The court found that the District Court Judge had correctly applied the law and that the appeal had no reasonable prospect of success. The court held that the District Court Judge had correctly found that the previous convictions were not admissible as the prosecution had not given notice under section 47(5) of the Justices Act 1886 (Qld). The court further held that the previous convictions should not have been taken into account in determining the sentence as they were not admissible. The court found that the appeal had no reasonable prospect of success and dismissed the appeal.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal dismissed.

3. The applicant shall pay the respondent’s costs of and incidental to the appeal, including the application for leave to appeal, to be assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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