Dunkerton v Queensland Police Service - [2018] QDC 71

DISTRICT COURT OF QUEENSLAND

CITATION:

Dunkerton v Queensland Police Service [2018] QDC 71

PARTIES:

Dunkerton, Ross Winston

(Appellant)

v

Queensland Police Service

(Respondent)

FILE NO:

172 of 2017

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

26 April 2018

DELIVERED AT:

Cairns

HEARING DATE:

12 December 2017

JUDGE:

Fantin DCJ

ORDER:

1.   Appeal allowed.

2.   The conviction is set aside and the matter is returned to the Magistrates Court for retrial.

3.   No order as to costs.

CATCHWORDS:

CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 – where appellant convicted after summary trial of common assault – where prosecution failed to disclose victim impact statement until after conviction – whether the non-disclosure could have made a difference to the verdict

Legislation
Justices Act 1886 (Qld) ss 222, s 223, 224
Criminal Code 1899 (Qld) ss 24, 590AB, 590AH

Cases

Allesch v Maunz (2000) 203 CLR 172
Dwyer v Calco Timbers (2008) 234 CLR 124
Forrest v Commissioner of Police [2017] QCA 132
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
McDonald v Queensland Police Service [2017] 45 QLR
R v BBU [2009] QCA 385
R v Cornwell [2009] QCA 294
R v Cox [2010] QCA 262
R v Grimley [2017] QCA 291
R v HAU [2009] QCA 165
R v Spizzirri [2001] 2 Qd R 686
Teelow v Commissioner of Police [2009] 2 Qd R 489
Warren v Coombes (1979) 142 CLR 531

COUNSEL:

P Feeney for the Appellant

S Baso, police prosecutor, for the Respondent

SOLICITORS:

Wettenhall Silva Osborne Butler Solicitors for the Appellant

Queensland Police Service for the Respondent

On 12 December 2017 I made orders allowing this appeal, setting aside the conviction and returning the matter to the Magistrates Court for retrial. These are my reasons for that decision.

On 4 September 2017, following a summary trial before a Magistrate, the appellant was convicted of one count of common assault and sentenced to a 12 month good behaviour bond and recognizance of $400, with no conviction recorded.

He appealed against his conviction pursuant to s 222 of the Justices Act 1886.

Circumstances of the offence

The appellant is a 72 year old man with no prior criminal history who had known the complainant, a neighbour, for about 8 years. They had socialised with their respective spouses on a number of occasions. On 6 October 2016 he went to her house to speak to her husband about some electrical work. The complainant opened the door and she told the appellant that her husband was not at home. The appellant then took a step inside the house and they continued to converse. During the conversation, the appellant grabbed or squeezed her on the bottom on the outside of her pants for a short time on one side, and then on the other. (There is some dispute about this. The appellant says he touched her only once and it was a pinch to one side of her…

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: [2018] QDC 71
Decision Date: 26 April 2018

CaseChat Overview and Summary

Dunkerton was convicted of common assault after a summary trial in the Magistrates Court. The victim did not give a victim impact statement until after the conviction. The appellant appealed to the Court of Appeal against the conviction on the basis that the non-disclosure of the victim impact statement until after the conviction was unfair and could have made a difference to the verdict. The Court of Appeal had to decide whether the non-disclosure of the victim impact statement was unfair and whether it could have made a difference to the verdict.

The Court of Appeal held that the non-disclosure of the victim impact statement was unfair because it was not disclosed until after the conviction, which was a breach of the appellant’s right to a fair trial. The Court of Appeal held that the non-disclosure of the victim impact statement could have made a difference to the verdict because the statement could have had an impact on the magistrate’s assessment of the credibility of the victim and the seriousness of the offence. The Court of Appeal held that the appellant’s conviction should be set aside and the matter should be returned to the Magistrates Court for retrial.

The Court of Appeal allowed the appeal, set aside the conviction, and returned the matter to the Magistrates Court for retrial. The Court of Appeal made no order as to costs.

Orders

Orders of the court

1. Appeal allowed.

2. The conviction is set aside and the matter is returned to the Magistrates Court for retrial.

3. No order as to costs.

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:	Dunkerton v Queensland Police Service [2018] QDC 71
PARTIES:	Dunkerton, Ross Winston (Appellant) v Queensland Police Service (Respondent)
FILE NO:	172 of 2017
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Cairns
DELIVERED ON:	26 April 2018
DELIVERED AT:	Cairns
HEARING DATE:	12 December 2017
JUDGE:	Fantin DCJ
ORDER:	1. Appeal allowed. 2. The conviction is set aside and the matter is returned to the Magistrates Court for retrial. 3. No order as to costs.
CATCHWORDS:	CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 – where appellant convicted after summary trial of common assault – where prosecution failed to disclose victim impact statement until after conviction – whether the non-disclosure could have made a difference to the verdict Legislation Justices Act 1886 (Qld) ss 222, s 223, 224 Criminal Code 1899 (Qld) ss 24, 590AB, 590AH Cases Allesch v Maunz (2000) 203 CLR 172 Dwyer v Calco Timbers (2008) 234 CLR 124 Forrest v Commissioner of Police [2017] QCA 132 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 McDonald v Queensland Police Service [2017] 45 QLR R v BBU [2009] QCA 385 R v Cornwell [2009] QCA 294 R v Cox [2010] QCA 262 R v Grimley [2017] QCA 291 R v HAU [2009] QCA 165 R v Spizzirri [2001] 2 Qd R 686 Teelow v Commissioner of Police [2009] 2 Qd R 489 Warren v Coombes (1979) 142 CLR 531
COUNSEL:	P Feeney for the Appellant S Baso, police prosecutor, for the Respondent
SOLICITORS:	Wettenhall Silva Osborne Butler Solicitors for the Appellant Queensland Police Service for the Respondent