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Constable S J Miers v Blewett

Constable S J Miers v Blewett

Case [2013] QCA 23 22 February 2013

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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

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 Constable S J Miers v Blewett

Details

AGLC: Constable S J Miers v Blewett [2013] QCA 23
Case: [2013] QCA 23
Decision Date: 22 February 2013

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

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.

Citations

AGLC Citation

Constable S J Miers v Blewett [2013] QCA 23

Most Recent Citation

Singh v QPS [2013] QDC 37

Cases citing this decision · 7 of 7 shown

HFC v Commissioner of Police (Queensland)
[2022] QDC 139 Para 37

…ch render a defendant liable to greater penalty, the sentencing court is precluded from taking those convictions into account for any purpose.” [16][2013] QCA 23; [2014] 1 Qd R 318.…
Owl v Queensland Police Service
[2021] QDC 5 Para 19

…nt was being dealt with summarily, the penalty could not exceed three years.[12] [11]Section 47(5) Justices Act 1886 (Qld); Constable Miers v Blewett [2013] QCA 23. [12]Section 552H(1)(b) Criminal Code 1899.…
Adams v Slattery
[2014] QDC 55 Para 1

…nd the absence of a requisite notice pursuant to s 47 of the Justices Act 1886. [10]But not a point raised or considered before the Magistrate. [11][2013] QCA 23.…
Jocumsen v Olive
[2013] QDC 264 Para 1

…a whole or part of the punishment for that offence. [4]Which were subject to appropriate notification: see Exhibit 4 and Constable SJ Miers v Blewett [2013] QCA 23.…
Crabbe v Queensland Police Service
[2013] QDC 122 Para 1

…the previous conviction is to increase the maximum penalty the defendant would otherwise be liable to as a result of the conviction: Miers v Blewett [2013] QCA 23 at [13]-[15].…
Berner v MacGregor
[2013] QDC 33 Para 1

…had been given (incorrectly), it was accurate and appropriate for the sentences contained in it to be considered by the sentencing court. [1] [2013] QCA 23. [2] [2009] QDC 243.…
Singh v QPS
[2013] QDC 37 Para 1

…Upon my return to Maroochydore last Friday, I read the decision of the Court of Appeal published that day, Miers v Blewett [2013] QCA 23. I took the view that had I been aware of the Court's reasoning, I might have decided the appeal differently, so I caused a copy to be forwarded to both counsel.…

View all 7 citing cases →

Cases cited in this decision · 7 of 7 shown

R v James
[2012] QCA 256 Para 1

…in that case. I am persuaded that authority upon the closely analogous provisions of the Criminal Code requires that the broader view be applied. [4][2012] QCA 256.…
Smith v Ash
[2010] QCA 112

…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 (1981) 147 CLR 383; [1981] HCA 31, followed The Queen v James [2012] QCA 256, cited The Queen v Meaton (1986) 160 CLR 359; [1986] HCA 27, cited Washband v Queensland Poli…
Faulkner v Morris
[2010] QDC 33 Para 1

…missible. Accordingly, in imposing the sentences the Magistrate did not take into account any of the convictions recorded in the criminal history. [2][2010] QDC 33.…
Washband v Queensland Police Service
[2009] QDC 243 Para 1

…ad been given under s 47(5), the prior convictions could not be relied upon by the prosecution or used by the Magistrate in determining penalty. [1][2009] QDC 243.…
R v Meaton
[1986] HCA 27

…81] HCA 31, followed The Queen v James [2012] QCA 256, cited The Queen v Meaton (1986) 160 CLR 359; [1986] HCA 27, cited Washband v Queensland Police Service [2009] QDC 243, overruled COUNSEL: M R Byrne SC for the applicant M A Green for the respondent SOLICITORS: Director of Public Prosecutions (Queensland) for…
Kingswell v The Queen
[1985] HCA 72

…), 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 (1981) 147 CLR 383; [1981] HCA 31, followed The Queen v James [2012] QCA 256, cited The Queen v Meaton (1986) 160 CLR…
R v De Simoni
[1981] HCA 31

…ited Smith v Ash [2011] 2 Qd R 175; [2010] QCA 112, cited The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31, followed The Queen v James [2012] QCA 256, cited The Queen v Meaton (1986) 160 CLR 359; [1986] HCA 27, cited Washband v Queensland Police Service [2009] QDC 243, overruled COUNSEL: M R Byrne SC for…

Legislation cited in this decision · 4

Domestic and Family Violence Protection Act 1989 (Qld)
80(1) 2 mentions (from Para 1)
Justices Act 1886 (Qld)
47(4) 2 mentions (from Para 1)
Crimes Act 1958 (Vic)
1 mention
Penalties and Sentences Act 1992 (Qld)
9(2)(r) 1 mention (from Para 1)

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