Dewson v Macdonald
[2013] ACTSC 112
•7 June 2013
MICHAEL DEWSON V FRASER JAMES MACDONALD
[2013] ACTSC 112 (7 June 2013)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 22 of 2013
Judge: Nield AJ
Supreme Court of the ACT
Date: 7 June 2013
IN THE SUPREME COURT OF THE )
) No. SCA 22 of 2013
AUSTRALIAN CAPITAL TERRITORY )
Michael Dewson
Applicant
v
Fraser James MacDonald
Respondent
ORDER
Judge: Nield AJ
Date: 7 June 2013
Place: Canberra
THE COURT ORDERS THAT:
The application for leave to appeal is refused.
I have an application by Mr Michael Dewson for leave to appeal from his conviction for having assaulted Mr Matthew Dove on 21 October 2011 at the home of Mr Dove where he lived with his parents and at least one brother.
The Crown alleged that, on 21 October 2011, Mr Dewson went to the home of Mr Paul Dove, who is Mr Matthew Dove’s brother, to remonstrate with Mr Paul Dove following a telephone conversation that Mr Paul Dove had had with Mr Dewson’s daughter, Ms Chantelle Dewson, in which conversation Mr Paul Dove berated Ms Chantelle Dewson.
As it transpired, Mr Dewson left his home, telling his other daughter, Ms Tegan Dewson, what he intended to do. Ms Tegan Dewson told her mother, Ms Rachel Dewson, and sister, Ms Chantelle Dewson, what her father intended to do. This prompted Ms Chantelle Dewson to leave her parents’ home in her car to drive to Mr Paul Dove’s home. Also, as it transpired, Ms Chantelle Dewson arrived at Mr Paul Dove’s home before the arrival of her father and, subsequently, the arrival of her mother and younger sister. Ms Chantelle Dewson was able to make it into the home or, at least, to the front door of the home of Mr Paul Dove before the arrival of Mr Dewson at the home.
Mr Dewson knocked on the home’s front door and the door was opened by Mr Matthew Dove. At this time Ms Chantelle Dewson, Mr Paul Dove, Mr Frank Dove, the father of the children, and their mother, Ms Lynn Dove, were in the home but away from the front door, albeit not far away from the front door. On the front door being opened by Mr Matthew Dove, Mr Dewson struck him once to his face. It is that punch that the Crown alleged constitutes the offence of assault allegedly committed by Mr Dewson upon Mr Matthew Dove. Within a second or two, there was a telephone call placed by Ms Lynn Dove to the 000 operator and that conversation was recorded. This recording does not confirm what Mr Dewson thinks that it confirms. Also within seconds, Mr Paul Dove had taken a rifle from the walk-in wardrobe attached to his parents’ bedroom and was at the front door.
So, at the front door there was Mr Dewson outside the door, Mr Matthew Dove at the door punched once by Mr Dewson, Ms Chantelle Dewson behind Mr Matthew Dove, Mr Paul Dove holding the rifle behind Ms Chantelle Dewson, Ms Lynn Dove close by talking on the telephone and Mr Frank Dove somewhere behind them all.
As I have said, police charged Mr Michael Dewson with having assaulted Mr Matthew Dove. Subsequently, police charged Mr Paul Dove with having possession of the rifle in circumstances likely to cause fear. I do not know whether Mr Frank Dove was charged with having been in possession of an unlicensed firearm.
In due course, Mr Dewson appeared before Chief Magistrate Walker. He pleaded not guilty to the charge of assault. He raised as an issue self defence, claiming that Mr Matthew Dove had had the rifle in his hand when he opened the door. Chief Magistrate Walker heard evidence from a number of people, including Ms Chantelle Dewson, who confirmed the Crown’s case, and Mr Dewson, who denied the Crown’s case, as was to be expected.
The Crown’s case was that Mr Matthew Dove was unarmed and that, when unarmed and not having provoked Mr Dewson, he was punched by Mr Dewson. The Crown’s case was a simple case of common assault. Mr Dewson’s case was a simple case of self defence that, when the door was opened, Mr Matthew Dove was holding the rifle and, in fear of his life, he punched Mr Matthew Dove. The cases could not have been more diametrically opposed.
Having heard all of the evidence, including the evidence of Ms Chantelle Dewson, which, as I have said, confirmed the Crown’s case, Chief Magistrate Walker found the offence to be proved and, in due course, she convicted Mr Dewson of the offence and, I assume, imposed a penalty.
In due course, the charge against Mr Paul Dove came on for hearing before Magistrate Boss. Mr Paul Dove pleaded guilty to the charge of having been in possession of the rifle in circumstances likely to cause fear. Magistrate Boss heard evidence. It was by way of submissions by the Crown Prosecutor and submissions by Mr Paul Dove’s legal representative. In the course of the Crown Prosecutor telling Magistrate Boss the circumstances upon which the Crown case rested, the Crown Prosecutor told her that Mr Michael Dewson, who would have been a Crown witness, alleged that Mr Matthew Dove was holding the weapon in his hand when he opened the door. Magistrate Boss, having heard the submissions, dealt with Mr Paul Dove.
Now, Mr Dewson says that there is an inconsistency between what was said during his hearing and what was put to Magistrate Boss during Mr Paul Dove’s hearing. Frankly, there is not any inconsistency. Indeed, it is clear that Magistrate Boss was told during the hearing of the charge against Mr Paul Dove that Mr Dewson had a different story to the story of Mr Paul Dove. That does not create an inconsistency. Indeed, that confirms the very case that Mr Dewson put before Chief Magistrate Walker.
It was a case where Chief Magistrate Walker, having heard the evidence, accepted the evidence presented by Mr Mathew Dove, that he did not have the rifle, and by Ms Chantelle Dewson, that Mr Paul Dove had the rifle and that he was standing behind her when she was standing between Mr Matthew Dove and Mr Paul Dove.
Mr Dewson, I regret to say, does not understand what has happened. It is simply a case where the charge against him was proved beyond reasonable doubt, notwithstanding his evidence, and the case against a different person, in which his evidence was said to be inconsistent with the Crown’s case, was heard by another magistrate, who acted upon the guilty plea of that other person. In these circumstances, Mr Dewson cannot possibly have a basis for a grievance.
I refuse him leave to appeal against his conviction.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.
Associate:
Date: 12 June 2013
Counsel for the applicant: Self represented
Solicitor for the applicant: Self represented
Counsel for the respondent: Mr K Lee
Solicitor for the respondent: Office of the Department of Public Prosecutions
Date of hearing: 7 June 2013
Date of judgment: 7 June 2013
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