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Davis v Stephens

Davis v Stephens

Case [2019] ACTSC 271 1 October 2019

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Davis v Stephens
Citation:	[2019] ACTSC 271
Hearing Date:	23 September 2019
DecisionDate:	1 October 2019
Before:	Crowe AJ
Decision:	See [86]
Catchwords:	CRIMINAL LAW – APPEAL – Appeal against conviction and sentence – common assault and assault occasioning actual bodily harm – whether the Magistrate erred by failing to properly direct herself on the law of self-defence – whether the Magistrate erred by returning inconsistent verdicts – whether the recording of convictions constitutes a manifestly excessive sentence – appeal dismissed
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 17 Criminal Code 2002 (ACT) s 42 Magistrates Court Act 1930 (ACT) s 208
Cases Cited:	ED v The Queen [2019] ACTCA 10 Fox v Percy [2003] HCA 22; 214 CLR 218 Greenwood v Barlee [2018] ACTSC 46 GW v The Queen [2015] ACTCA 15 Peverill v Crampton [2010] ACTSC 79 Proud v Sladic [2014] ACTCA 26 at [42] R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 Zecivic v DPP (1987) 162 CLR 645
Parties:	Emma Davis (Appellant) Jessie Stephens (Respondent)
Representation:	Counsel B Morrisroe (Appellant) J Hiscox (Respondent)
Solicitors Boxall Legal (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 16 of 2019
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 31 January 2019 Case Title: Stephens v Davis Court File Numbers: CC2018/12461;-CC2018/12463; CC2018/14134

Crowe AJ

This is an appeal against of the findings of guilt against the appellant and also the sentence handed down by Magistrate Boss (the Magistrate) who heard the matter on 30 and 31 January 2019 in the court below. The sentence was handed down on
7 February 2019.

The appellant had been charged with five offences arising out of an altercation with her former partner, Daniel Moloney (the complainant) in the early morning of
7 October 2018. The charges consisted of: one charge of assault causing actual bodily harm (biting of the right forearm); two charges of common assault (punches to the head and squeezing of the testicles); and, two charges in relation to damage to property (the complainant’s motorcycle and Ms Ashley Bockmealan’s phone).

The Magistrate found the appellant guilty of the three assault charges and dismissed the damage to property charges. She convicted the appellant and placed her on a Good Behaviour Order for 12 months.

The appeal is brought pursuant to sub-s 208(1)(b) of the Magistrates Court Act 1930 (ACT). The applicable principles are set out in Peverill v Crampton [2010] ACTSC 79 at [24] per Refshauge J. I accept that it is necessary to have regard to the significant benefit of the Magistrate in having seen and heard the oral evidence in the course of the hearing (Fox v Percy [2003] HCA 22; 214 CLR 218 at [25]). Although, I note that some of the evidence of the complainant and the defendant was given by audio-visual recording.

Hearing in the Court Below

Oral testimony was given…

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 Davis v Stephens

Details

AGLC: Davis v Stephens [2019] ACTSC 271
Case: [2019] ACTSC 271
Decision Date: 1 October 2019

CaseChat Overview and Summary

The appellant, Davis, appealed against his conviction and sentence in the Magistrates Court, where he was found guilty of common assault and assault occasioning actual bodily harm against the respondent, Stephens. The incident occurred during a physical altercation between the two, where Davis alleged self-defence while Stephens claimed it was an unprovoked attack. The primary issues for the court were whether the Magistrate had erred in her direction on the law of self-defence, whether there were inconsistent verdicts, and whether the recording of convictions constituted a manifestly excessive sentence.

The court found that the Magistrate had not erred in her direction on the law of self-defence, as she correctly applied the legal principles and allowed the jury to consider whether Davis's actions were proportionate and reasonable in response to the threat posed by Stephens. Regarding the inconsistent verdicts, the court held that the verdicts were not inconsistent, as they were based on different levels of culpability for the same incident. Finally, the court concluded that the sentence was not manifestly excessive, as the Magistrate had considered the relevant factors and the seriousness of the offences. Accordingly, the appeal was dismissed.

The court's decision to dismiss the appeal was based on the finding that the Magistrate had correctly applied the law and that there were no errors in the verdicts or sentence. The court emphasised the importance of the jury's role in determining the facts of the case and the credibility of the witnesses. The court also noted that the sentence imposed was within the range of penalties available for the offences committed. As such, the appeal was dismissed, and the convictions and sentence were upheld.

Orders

Orders of the court

See [86]

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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Citations

Davis v Stephens [2019] ACTSC 271

Most Recent Citation

Dimitrievska v Dale [2024] ACTMC 3

Cases Citing This Decision

Dimitrievska v Dale [2024] ACTMC 3
Citation 1

…Cattanach v Harrison [2016] ACTSC 60 Clifton v Duong [2018] ACTSC 346 Collins v Willcock [1984] 1 WLR 1172 Davis v Stephens [2019] ACTSC 271 DPP v Jaram [2023] ACTSC 318 Edwards v The Queen (1993) 178 CLR 193 Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 Follett v Mann [2019] ACTSC 141 Liberato v R (1…

See all citing cases →

Cases Cited

ED v The Queen [2019] ACTCA 10
Citation 1 (Para 1)

…here an appellant appeals against a conviction on the ground of reasonableness arising from inconsistent verdicts were again stated in ED v The Queen [2019] ACTCA 10 at [43] per Murrell CJ, Mossop and Bromwich JJ:…
Roos v R [2019] NSWCCA 67
Citation 2 (Para 44)

…mplainant’s credibility: TK v R [2009] NSWCCA 151; 74 NSWLR 299 at [128], [130] (Simpson J, McClellan CJ at CL and Latham J agreeing); Roos v R [2019] NSWCCA 67 (Roos) at [44]–[45]. (f) Even where different verdicts relate to counts arising from the same course of conduct, the verdicts may, as a matter of logic, be…
R v BDH [2019] QCA 47
Citation 3 (Para 108)

…The Queen v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 (Markuleski) at [34]; Walker v R [2019] NSWCCA 4 (Walker) at [108]; The Queen v BDH [2019] QCA 47 (BDH) at [115]–[117]. In other cases, while not disbelieving the complainant, the jury may have proceeded cautiously in relation to the “discharge of a heavy res…
Xiao v R [2019] NSWCCA 4
Citation 4 (Para 34)

…relation to some matters when compared to others: The Queen v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 (Markuleski) at [34]; Walker v R [2019] NSWCCA 4 (Walker) at [108]; The Queen v BDH [2019] QCA 47 (BDH) at [115]–[117]. In other cases, while not disbelieving the complainant, the jury may have proceeded cautio…
Greenwood v Barlee [2018] ACTSC 46
Citation 5 (Para 1)

…to the pressure under which the Magistrates Court operates. Reference is made in the written submissions to what Mossop J said in Greenwood v Barlee [2018] ACTSC 46 at [4].…
Mg v R [2017] NSWCCA 14
Citation 6 (Para 34)

…require some independent corroboration before they are satisfied beyond reasonable doubt of some allegations: MFA at [34]; MG v R [2017] NSWCCA 14 at [84]; Walker at [107] (Hoeben CJ at CL, Rothman and Price JJ agreeing).…
GW v The Queen [2015] ACTCA 15
Citation 7 (Para 1)

…The appellant referred to the Court to a decision of the ACT Court of Appeal in GW v The Queen [2015] ACTCA 15. In that matter the Court (Murrell CJ, Refshauge and Ross JJ) said:…
Youkhanis v The Queen [2014] NSWCCA 220
Citation 8 (Para 87)

…iately in returning that verdict: Still v The Queen [2010] NSWCCA 131 at [60] per Johnson J (Basten JA and Rothman J agreeing), Youkhanis v The Queen [2014] NSWCCA 220 at [87]. If there is an apparently rational explanation for the jury differentiating between charges, that explanation should be preferred to one tha…
Proud v Sladic [2014] ACTCA 26
Citation 9 (Para 1)

…imes (Sentencing) Act 2005 (ACT)) was not sought. Such an order is an “exceptional outcome” once a finding of guilt is made: see Proud v Sladic [2014] ACTCA 26 at [42].…
Peiris v R [2014] NSWCCA 58
Citation 10 (Para 22)

…tent (unreasonable) depends upon the circumstances of the particular case: R v NEK [2001] NSWCCA 392 at [24] per Priestley JA, Peiris v The Queen [2014] NSWCCA 58 per Leeming JA at [22] – [25]. In Peiris at [28], Leeming JA observed that a jury would be entitled to return different verdicts based not only on differ…
Peverill v Crampton [2010] ACTSC 79
Citation 11 (Para 1)

…e appeal is brought pursuant to sub-s 208(1)(b) of the Magistrates Court Act 1930 (ACT). The applicable principles are set out in Peverill v Crampton [2010] ACTSC 79 at [24] per Refshauge J. I accept that it is necessary to have regard to the significant benefit of the Magistrate in having seen and heard the oral…
Still v R [2010] NSWCCA 131
Citation 12 (Para 60)

…verdict of guilty, there is a need for great caution in presuming that a jury has acted inappropriately in returning that verdict: Still v The Queen [2010] NSWCCA 131 at [60] per Johnson J (Basten JA and Rothman J agreeing), Youkhanis v The Queen [2014] NSWCCA 220 at [87]. If there is an apparently rational explana…
R v TK [2009] NSWCCA 151
Citation 13 (Para 128)

…leness inquiry is upon any explanation for the acquittals (not the convictions), other than doubts, about the complainant’s credibility: TK v R [2009] NSWCCA 151; 74 NSWLR 299 at [128], [130] (Simpson J, McClellan CJ at CL and Latham J agreeing); Roos v R [2019] NSWCCA 67 (Roos) at [44]–[45]. (f) Even where differen…
Fox v Percy [2003] HCA 22
Citation 14 (Para 1)

…ary to have regard to the significant benefit of the Magistrate in having seen and heard the oral evidence in the course of the hearing ( Fox v Percy [2003] HCA 22; 214 CLR 218 at [25]). Although, I note that some of the evidence of the complainant and the defendant was given by audio-visual recording.…
R v NEK [2001] NSWCCA 392
Citation 15 (Para 24)

…onableness) by the jury. Whether a conviction is truly inconsistent (unreasonable) depends upon the circumstances of the particular case: R v NEK [2001] NSWCCA 392 at [24] per Priestley JA, Peiris v The Queen [2014] NSWCCA 58 per Leeming JA at [22] – [25]. In Peiris at [28], Leeming JA observed that a jury would be…
R v Markuleski [2001] NSWCCA 290
Citation 16 (Para 1)

…to prove the charge beyond reasonable doubt. On that basis, there was no need for a direction along the lines of that extracted from R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at [188] and [191] in the appellant’s written submissions.…
Vincent Raymond Jones v The Queen [1997] HCA 56
Citation 17

…[58] The appellant relied upon an oft quoted passage in Jones v The Queen (1997) 191 CLR 439. At 453, Gaudron, McHugh and Gummow JJ considered that the jury’s rejection of the complainant’s account on one count diminished her overall credibility and made it difficult to see how it was open to the jury to be convinced…
Jones v The Queen [1997] HCA 12
Citation 18

…[58] The appellant relied upon an oft quoted passage in Jones v The Queen (1997) 191 CLR 439. At 453, Gaudron, McHugh and Gummow JJ considered that the jury’s rejection of the complainant’s account on one count diminished her overall credibility and made it difficult to see how it was open to the jury to be convinced beyon…
Mackenzie v The Queen [1996] HCA 35
Citation 19

…aint of inconsistency will fail if the verdicts can be reconciled, i.e. if there is a logical basis for the different verdicts: MacKenzie v The Queen (1996) 190 CLR 348 (MacKenzie) at 369; MFA at [42]. Expressed slightly differently, an appellant must establish that the different verdicts are “an affront to logic and…
Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26
Citation 20 (Para 1)

…In relation to whether the bite occurred by way of self-defence, her Honour, after referring to the decision in Zecevic v DPP (1987) 162 CLR 645 ( Zecevic ), said:…

Legislation Cited

Crimes (Sentencing) Act 2005 (ACT) 17
2 mentions (from Para 1)
Magistrates Court Act 1930 (ACT) 208
2 mentions (from Para 1)