Gareth John Higgins v Matthew David Neesham - [2004] ACTSC 96

GARETH JOHN HIGGINS v MATTHEW DAVID NEESHAM
[2004] ACTSC 96 ( 2004) (1 October 2004)

APPEAL FROM MAGISTRATES COURT – appeal against conviction – appeal against sentence

CRIMINAL LAW – common assault – consideration of “accident” – onus and standard of proof – admissibility of tendency evidence

Crimes Act 1900 (ACT) ss 26, 345
Evidence Act 1995 (Cth) s 97
Magistrates Court Act 1930 (ACT) Pt 11, subss 214(2) and (3), s 218
Evidence Regulations, reg 6(2)(a)

Kaporonovski v The Queen (1973) 133 CLR 209
Makin v Attorney-General for New South Wales [1894] AC 57
Griffiths v R (1994) 125 ALR 545

Archbold 2001, Sweet & Maxwell, London

ON APPEAL FROM THE ACT MAGISTRATES COURT

No SCA 40 of 2004

Judge: Spender J
Supreme Court of the ACT
Date: 1 October 2004

IN THE SUPREME COURT OF THE       )
  )          No SCA 40 of 2004
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE ACT MAGISTRATES COURT

BETWEEN:GARETH JOHN HIGGINS
Appellant

AND:MATTHEW DAVID NEESHAM
Respondent

ORDER

Judge:  Spender J
Date:  1 October 2004
Place:  Canberra

THE COURT ORDERS THAT:

The appeal against conviction is allowed.
The conviction on the charge of common assault on 22 October 2003 is set aside.
The proceedings are remitted to the Magistrates Court for further hearing and determination.

This is an appeal by Gareth John Higgins from his conviction on a charge of common assault in the ACT Magistrates Court on 6 July 2004, and against the sentence then imposed which was that he be sentenced to three months imprisonment, suspended upon entering into a recognizance in the sum of $500 to be of good behaviour for a period of twelve months subject to the following conditions:

1.that [the appellant] will during the period of 12 months submit to the supervision of the Director of ACT Corrective Services or his delegate and in particular:
(A)To participate as instructed in psychological counselling and to attend at least twice per month or otherwise as the psychotherapist deems fit or until he or she discharges [the appellant] from further treatment.
(B)To undertake such assessment as the Director or his delegate deems appropriate at the alcohol and drug programme and to participate in such counselling as is deemed appropriate.
2.[The appellant] will during this period abstain from any illicit drug use and to this end will provide a urine sample for analysis as and when directed by the Director or his delegate.

Magistrate Lalor also ordered that the conditions of the recognizance not be published.

The grounds of the appeal against conviction are:

a.The hearing miscarried as a result of the learned Magistrate allowing tendency evidence in circumstances where there was no basis for doing so.
b.That the learned Magistrate took into account an irrelevant matter, namely tendency evidence.
c.That the learned Magistrate made a decision against the evidence and against the weight of the evidence.
d.There was no admissible evidence upon which the learned Magistrate could have been satisfied…

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.

Keep reading for free

Create a free CaseChat account to read Gareth John Higgins v Matthew David Neesham and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] ACTSC 96
Decision Date

CaseChat Overview and Summary

In this case, Gareth John Higgins appeals against his conviction and sentence for a charge of common assault against his father. The appeal against conviction focuses on the Magistrate's handling of tendency evidence, the alleged misdirection regarding the onus and standard of proof on the issue of accident, and the sufficiency of evidence. The appeal against the sentence argues that the punishment imposed was manifestly excessive. The Supreme Court found that the Magistrate failed to properly direct himself on the onus and standard of proof regarding the issue of accident, which led to an improper conviction. The court also found the sentence to be manifestly excessive, and thus set aside the conviction and remitted the proceedings to the Magistrates Court for retrial, leaving the decision on whether to proceed with a retrial to the Director of Public Prosecutions.

Orders