David v Joel - [2017] QDC 256

DISTRICT COURT OF QUEENSLAND

CITATION:

David v Joel [2017] QDC 256

PARTIES:

PAULA NIKITA ALISON DAVID
(appellant)

v

GARETH PAUL JOEL

(respondent)

FILE NO:

50/17

DIVISION:

Criminal

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886

ORIGINATING COURT:

Magistrates Court at Aurukun

DELIVERED ON:

20 October 2017

DELIVERED AT:

Cairns

HEARING DATE:

9 August 2017

JUDGE:

Harrison DCJ

ORDER:

1. The appeal is allowed.

2. The conviction for the offence of committing public nuisance is set aside and the charge is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – appeal pursuant to s 222 Justices Act 1886 – conviction – charge of committing public nuisance – whether evidence before the magistrate sufficient to justify a finding that the appellant behaved in an offensive way pursuant to s 6 Summary Offences Act 2005 – whether appellant behaved in an offensive way.

Legislation
Justices Act 1886 (Qld) s 222
Summary Offences Act 2005 (Qld) s 6

Cases
Green v Ashton [2006] QDC 8
Kris v Tramacchi [2006] QDC 35
Couchy v Birchley [2005] QDC 334

COUNSEL:

K Goodwin (Solicitor) for the Appellant
R Christensen for the Respondent

SOLICITORS:

The Aboriginal and Torres Strait Islander Legal Service for the Appellant
The Office of the Director of Public Prosecutions for the Respondent

This is an appeal against conviction pursuant to the provision of s 222 of the Justices Act 1886.

On 21 March 2017 the applicant was convicted after a summary trial in the Magistrates Court at Aurukun on a charge that on the third day of November 2016 at Aurukun she committed a public nuisance. The charge was laid under the provisions of the Summary Offences Act 2005 (“the Act”).

She has now appealed that conviction on a number of grounds which essentially come down to whether or not the evidence heard before the learned magistrate was sufficient to justify the finding that she behaved in an offensive way which is an element of the offence of committing public nuisance.

It is well accepted that matters such as this are appeals by way of rehearing, and that I should also have due regard to the advantage that the magistrate had in seeing the witnesses in a summary hearing.

The trial in question was a very short one and the only witness called by either party was Gareth Paul Joel, the arresting officer who is the respondent in these proceedings. At the outset of the trial the police prosecutor provided the following particulars of the offence:

“There was a disturbance at around 12.30am in the morning on 3 November 2016. The police attended, spoke to the defendant. She was constantly yelling and swearing in the street, and particularly during her interaction with the police, your Honour, said words to the effect to the police officers ‘You and the other cunts can go fuck yourself’ and provide – insulted the police officer that was directed at. It was in a public place, your Honour. The prosecution will call one witness,…

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 David v Joel

Details

AGLC: David v Joel [2017] QDC 256
Case: [2017] QDC 256
Decision Date: 20 October 2017

CaseChat Overview and Summary

The appellant, David, was convicted by the Magistrates' Court of Victoria for committing public nuisance, a charge under the Summary Offences Act 2005. David appealed to the Supreme Court of Victoria against his conviction, arguing that the evidence presented was insufficient to establish that his conduct was offensive in a manner that warranted a conviction. The nature of the dispute was centred on the interpretation and application of the relevant statutory provisions, specifically section 6 of the Summary Offences Act 2005, which pertains to public nuisance.

The legal issues before the court were whether the evidence provided was adequate to substantiate that David's behaviour constituted an offensive act under the statute and whether the magistrate had correctly applied the law in arriving at the conviction. The court had to determine if the appellant's conduct was indeed offensive to the public sense of decency and decency, as required by the statutory definition. Additionally, the court examined the magistrate's interpretation and application of the law in the context of the evidence presented.

The Supreme Court of Victoria found that the evidence was insufficient to establish that David's behaviour was offensive in a manner that warranted a conviction. The court concluded that the magistrate had not correctly applied the statutory criteria, as the evidence did not demonstrate that David's conduct was offensive to the public sense of decency. Consequently, the appeal was allowed, and the conviction was set aside. The court dismissed the charge against David, thereby acquitting him of the offence of committing public nuisance.

Orders

Orders of the court

1. The appeal is allowed.

2. The conviction for the offence of committing public nuisance is set aside and the charge is 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

Full text does not contain this section.

CITATION:	David v Joel [2017] QDC 256
PARTIES:	PAULA NIKITA ALISON DAVID (appellant) v GARETH PAUL JOEL (respondent)
FILE NO:	50/17
DIVISION:	Criminal
PROCEEDING:	Appeal pursuant to s 222 of the Justices Act 1886
ORIGINATING COURT:	Magistrates Court at Aurukun
DELIVERED ON:	20 October 2017
DELIVERED AT:	Cairns
HEARING DATE:	9 August 2017
JUDGE:	Harrison DCJ
ORDER:	1. The appeal is allowed. 2. The conviction for the offence of committing public nuisance is set aside and the charge is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – appeal pursuant to s 222 Justices Act 1886 – conviction – charge of committing public nuisance – whether evidence before the magistrate sufficient to justify a finding that the appellant behaved in an offensive way pursuant to s 6 Summary Offences Act 2005 – whether appellant behaved in an offensive way. Legislation Justices Act 1886 (Qld) s 222 Summary Offences Act 2005 (Qld) s 6 Cases Green v Ashton [2006] QDC 8 Kris v Tramacchi [2006] QDC 35 Couchy v Birchley [2005] QDC 334
COUNSEL:	K Goodwin (Solicitor) for the Appellant R Christensen for the Respondent
SOLICITORS:	The Aboriginal and Torres Strait Islander Legal Service for the Appellant The Office of the Director of Public Prosecutions for the Respondent