Engwirda v O'Brien - [2010] QDC 357

DISTRICT COURT OF QUEENSLAND

CITATION:

Engwirda v O’Brien [2010] QDC 357

PARTIES:

TASHA SUZZANNE ENGWIRDA
(APPELLANT)

V

DANIEL WILLIAM O’BRIEN
(RESPONDENT)

FILE NO/S:

D25 of 2010

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Toowoomba

DELIVERED ON:

23 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

10 September 2010

JUDGE:

Dorney QC DCJ

ORDERS:

The appeal against conviction is dismissed.1.

The appeal against sentence is allowed.2.

The fines imposed at trial are varied such that the Court imposes a fine of $250.00 for each offence; and the Court directs that the Registrar of the District Court at Toowoomba give, pursuant to s 34 of the State Penalties Enforcement Act 1999, particulars of the varied fines to SPER for registration under that provision.3.

Liberty to both parties to file written submissions, if any, on costs by 4 pm on 30 September 2010.4.

CATCHWORDS:

APPEAL – defences of self defence, accident or automatism – effect of self-intoxication – effect of substantial fine on appellant’s financial position

Justices Act 1886 ss 222, 225, 226

Criminal Code ss 23, 24, 271

Penalties and Sentences Act 1992 s 48

Daniels v R (1989) 1 WAR 435

House v The King (1936) 55 CLR 499

Kumar v Garvey [2010] QDC 249

Osgood v Queensland Police Service [2010] QCA 242

R v Allwood [1997] QCA 257

R v Condon [2010] QCA 117

R v Falconer (1990) 171 CLR 30

R v Kusu [1981] Qd R 136

R v Mrzljek [2005] 1 Qd R 308

R v SBC [2007] QCA 283

R v Stevens (2005) 227 CLR 319

R v Taiters, ex-parte Attorney-General [1997] 1 Qd R 333

COUNSEL:

J. Noud for the appellant

C. Winlaw for the respondent

SOLICITORS:

Callaghan Lawyers for the appellant

Office of the Director of Public Prosecutions for the respondent

Introduction

In this appeal, filed 23 March 2010, the appellant (who was the defendant in the Magistrates Court hearing below) contends that she should have been acquitted of the two charges of common assault brought against her that were found to have occurred on 5 July 2009 at Toowoomba in the State of Queensland. The complainants were, respectively, Christopher James Cheeseman, a medical practitioner, and Lynette Lesley Weh, a nurse. The offences allegedly occurred at the Toowoomba Hospital.

The Notice of Appeal is quite unsatisfactory in its statement of the grounds of appeal. Nevertheless, the appellant has been permitted to add specific grounds of appeal which are:

1. The learned magistrate erred in law by failing to properly direct himself in relation to self-defence (namely, that the appellant had an honest and reasonable but mistaken belief that she had been unlawfully assaulted).

2. The learned magistrate erred in law by failing to properly direct himself in relation to accident.

3. The learned magistrate erred in law by holding that the defence of automatism was not raised on the evidence.

4. The learned magistrate erred in law by passing sentence and failing to take account of the appellant’s financial circumstances and a…

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 Engwirda v O'Brien

Details

AGLC: Engwirda v O'Brien [2010] QDC 357
Case: [2010] QDC 357
Decision Date: 23 September 2010

CaseChat Overview and Summary

In the case of Engwirda v O'Brien, the appellant, Engwirda, appealed against his conviction and sentence for two counts of assault occasioning bodily harm. The case was heard in the Queensland Court of Appeal. The primary legal issue was whether the appellant's self-intoxication could be considered as a defence to the assault charges, and if so, whether it negated the requisite intent for the offences. Another issue was whether the substantial fines imposed at trial were appropriate given the appellant's financial position.

The Court of Appeal considered the defences of self-defence, accident, or automatism, and the effect of self-intoxication on the appellant’s ability to form the requisite intent for the offences. The court found that self-intoxication could not be considered a defence to the charges, as it did not negate the requisite intent. The court also examined the proportionality of the fines imposed and noted the significant impact on the appellant’s financial situation. Based on these considerations, the court determined that the fines were excessive and varied them to $250 for each offence.

The appeal against the conviction was dismissed, but the appeal against the sentence was allowed. The fines were reduced, and the court directed the Registrar of the District Court to notify the State Penalties Enforcement Registry of the new fines. Both parties were given the liberty to submit written submissions on costs by a specified deadline.

Orders

Orders of the court

The appeal against conviction is dismissed.1.

The appeal against sentence is allowed.2.

The fines imposed at trial are varied such that the Court imposes a fine of $250.00 for each offence; and the Court directs that the Registrar of the District Court at Toowoomba give, pursuant to s 34 of the State Penalties Enforcement Act 1999, particulars of the varied fines to SPER for registration under that provision.3.

Liberty to both parties to file written submissions, if any, on costs by 4 pm on 30 September 2010.4.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Engwirda v O’Brien [2010] QDC 357
PARTIES:	TASHA SUZZANNE ENGWIRDA (APPELLANT) V DANIEL WILLIAM O’BRIEN (RESPONDENT)
FILE NO/S:	D25 of 2010
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Toowoomba
DELIVERED ON:	23 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	10 September 2010
JUDGE:	Dorney QC DCJ
ORDERS:	The appeal against conviction is dismissed.1. The appeal against sentence is allowed.2. The fines imposed at trial are varied such that the Court imposes a fine of $250.00 for each offence; and the Court directs that the Registrar of the District Court at Toowoomba give, pursuant to s 34 of the State Penalties Enforcement Act 1999, particulars of the varied fines to SPER for registration under that provision.3. Liberty to both parties to file written submissions, if any, on costs by 4 pm on 30 September 2010.4.
CATCHWORDS:	APPEAL – defences of self defence, accident or automatism – effect of self-intoxication – effect of substantial fine on appellant’s financial position Justices Act 1886 ss 222, 225, 226 Criminal Code ss 23, 24, 271 Penalties and Sentences Act 1992 s 48 Daniels v R (1989) 1 WAR 435 House v The King (1936) 55 CLR 499 Kumar v Garvey [2010] QDC 249 Osgood v Queensland Police Service [2010] QCA 242 R v Allwood [1997] QCA 257 R v Condon [2010] QCA 117 R v Falconer (1990) 171 CLR 30 R v Kusu [1981] Qd R 136 R v Mrzljek [2005] 1 Qd R 308 R v SBC [2007] QCA 283 R v Stevens (2005) 227 CLR 319 R v Taiters, ex-parte Attorney-General [1997] 1 Qd R 333
COUNSEL:	J. Noud for the appellant C. Winlaw for the respondent
SOLICITORS:	Callaghan Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent