Cornelius Stevens v Emily McCallum - [2005] ACTSC 73

CORNELIUS STEVENS v EMILY MCCALLUM
[2005] ACTSC 73 (10 August 2005)

APPEAL – appeal from the Magistrates Court – appeal against conviction and sentence – whether the Magistrate’s decision was unsafe and unsatisfactory – whether sufficient evidence existed for the Court to be satisfied beyond a reasonable doubt that the offence occurred – whether tender of transcript by the defence constituted an incompetence giving rise to a miscarriage of justice – whether prosecution could have adduced the contents of the transcript as a prior inconsistent statement – De Simoni principle – whether the Magistrate wrongly identified factors as aggravating rather than mitigating – whether any mitigating factors existed

Crimes Act 1900 (ACT)
Evidence Act 1995 (Cth), ss 38, 43

Kempe v Bailey [2003] ACTSC 13
The Queen v De Simoni (1981) 147 CLR 383
Kingswell v The Queen (1985) 159 CLR 264
Weininger v The Queen (2003) 212 CLR 629
Cameron v The Queen [2002] HCA 6
Veen v The Queen (No 2) (1988) 164 CLR 465

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 31 of 2005

Judge: Tamberlin J
Supreme Court of the Australian Capital Territory
Date: 10 August 2005

IN THE SUPREME COURT OF THE       )
  )          No. SCA 31 of 2005
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:CORNELIUS STEVENS
Appellant

AND:EMILY McCALLUM
Respondent

ORDER

Judge:  Tamberlin J
Date:  10 August 2005
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

IN THE SUPREME COURT OF THE       )
  )          No. SCA 31 OF 2005
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:CORNELIUS STEVENS
Appellant

AND:EMILY McCALLUM
Respondent

Judge:  Tamberlin J
Date:  10 August 2005
Place:  Canberra

REASONS FOR JUDGMENT

TAMBERLIN J:

This is an appeal from the Magistrates Court against the conviction and sentencing of Cornelius Stevens, the appellant, for common assault.

In her Worship’s sentencing remarks, Magistrate Doogan recorded that she had taken into account the submissions made on behalf of the appellant together with the comments in the pre-sentencing report and the relevant provisions of the Crimes Act 1900 (ACT). Her Worship concluded that the appellant should be sentenced to twelve months imprisonment for the offence of common assault, three months imprisonment for the breach of the protection order and six months imprisonment for the breach of recognisance in respect of the offence of common assault. The latter two sentences were to run concurrently and the sentence for common assault was to be cumulative upon those sentences, with a total head sentence of eighteen months imprisonment. Her Worship ordered the appellant be released after serving a nine months non-parole period. Her Worship directed that the non-parole period and the sentence were to commence on 8 April 2005, being the date when the appellant was first placed in custody on these offences, and that the non-parole period was to end on 7 January 2006 and the head sentence on…

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.

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Details

Case: [2005] ACTSC 73
Decision Date

CaseChat Overview and Summary

In Cornelius Stevens v Emily McCallum, the appellant, Cornelius Stevens, appealed against his conviction and sentence imposed by the Magistrates Court for common assault, breach of a protection order, and breach of recognisance. The appeal was dismissed by Tamberlin J in the Supreme Court of the Australian Capital Territory. The central issues in the appeal were whether the Magistrate's decision was unsafe and unsatisfactory, whether there was sufficient evidence for the court to be satisfied beyond a reasonable doubt that the offence occurred, and whether the Magistrate correctly identified aggravating and mitigating factors in the sentencing process.

The court found that the evidence, particularly the transcript of the complainant's statement to the police, provided sufficient support for the conclusion that an assault had occurred. The court rejected the argument that the tendering of the transcript by the defence's counsel constituted incompetence, noting that the prosecution could likely have used the transcript as a prior inconsistent statement. Regarding the sentencing, the court held that the Magistrate did not breach the principles set out in De Simoni, did not wrongly identify certain factors as aggravating rather than mitigating, and did not err by sentencing for a breach of recognisance without full facts of the previous offence before her. The appeal was dismissed, and the original conviction and sentence were upheld.

Orders