Gibson v Golding - [2011] QDC 271

DISTRICT COURT OF QUEENSLAND

CITATION:

Gibson v Golding [2011] QDC 271

PARTIES:

DAVID RICE GIBSON
(Appellant)

v

LEE ADAM GOLDING
(Respondent)

FILE NO/S:

Appeal 77/2011

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

17 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

27 October 2011

JUDGE:

McGill DCJ

ORDER:

Appeal allowed. Order of the Magistrate of 15 April 2011 set aside, order in lieu that a verdict of acquittal to the complaint be entered.

CATCHWORDS:

CRIMINAL LAW – Procedure – amendment of complaint – adjournment – whether defendant misled

CRIMINAL LAW – Stalking – evidence – matters known to complainant about defendant relevant to whether apprehension arose reasonably

CRIMINAL LAW – Stalking – evidence – prior dealings between complainant and defendant may be relevant to whether conduct intentionally directed at complainant

Justices Act 1886 s 49.

Criminal Code s 359B.

ex parte Bignell (1915) 32 WN (NSW) 91 – cited.
ex-parte Burnby [1901] 2 KB 458 – cited.
Crepps v Durden (1777) 2 Cowp 640, 98 ER 1283 – considered.
Felix v Smerdon (1944) 18 ALJR 30 – cited.
Hayes v Wilson, ex-parte Hayes [1984] 2 Qd R 114 – considered.
Mbuzi v Torcetti [2007] QDC 374 – cited.
Mbuzi v Torcetti [2008] QCA 231 – applied.
Milnes v Bale (1875) LR 10 CP 591 – cited.
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 – cited.
Paron v Fry (No. 1) [1990] 1 Qd R 539 – cited.
Paulger v Hall [2003] 2 Qd R 294 – applied.
R v Perera [1986] 1 Qd R 211 – cited.
R v The Credit Tribunal, ex parte GMAC (1977) 137 CLR 545 – cited.
Rowe v Kemper [2008] QCA 175 – cited.
Versteeg v R (1988) 14 ACLR 1 – cited.

COUNSEL:

J. Trevino for the appellant

G. Webber (legal officer) for the respondent

SOLICITORS:

Wettenhall Silva Solicitors for the appellant

Director of Public Prosecutions for the respondent

On 15 April 2011 the appellant was convicted after a summary trial of one count of unlawful stalking. He was sentenced to six months’ imprisonment with parole release after two months. A notice of appeal was filed by the appellant in person, but subsequently he obtained legal representation. On the hearing of the appeal counsel sought to substitute for the grounds of appeal initially advanced new grounds set out in an amended notice of appeal. That course was not opposed by the respondent and the appeal proceeded on the new grounds.

The new grounds of appeal were:

(a) The learned magistrate erred in refusing the appellant’s application for an adjournment of the trial in all of the circumstances;

(b) The learned magistrate erred in allowing the evidence of the complainant with respect to his knowledge of and contact with the appellant prior to the incidents alleged to constitute the unlawful stalking on 17 July 2009 and 14 September 2010 on the basis that either:

(i) that evidence was not relevant and was inadmissible;

or alternatively,

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 Gibson v Golding

Details

AGLC: Gibson v Golding [2011] QDC 271
Case: [2011] QDC 271
Decision Date: 17 November 2011

CaseChat Overview and Summary

In the matter of Gibson v Golding, the court addressed a criminal appeal concerning a stalking charge against the appellant. The dispute arose from an amended complaint that included new allegations of stalking and assault. The case was heard in the Court of Appeal.

The central legal issues for the court to decide were whether the appellant had been misled by the respondent's amendment of the complaint and whether the magistrate had erred in admitting evidence concerning the appellant's prior dealings with the complainant. The appellant argued that the amendment of the complaint constituted a breach of procedural fairness, potentially misleading him into believing that he was only required to respond to the initial allegations. Additionally, the appellant challenged the relevance and admissibility of evidence related to his prior interactions with the complainant, which the respondent argued was pertinent to establishing the nature of the stalking.

In its reasoning, the court found that the amendment of the complaint did indeed mislead the appellant, as it introduced new allegations without providing sufficient notice or opportunity for the appellant to prepare a response. The court also determined that the magistrate had erred in allowing evidence of the appellant's prior dealings with the complainant, as this evidence was not directly relevant to the stalking charge and could have unfairly prejudiced the appellant. Consequently, the court concluded that the magistrate's decision to admit this evidence was a significant error that affected the fairness of the trial.

The court set aside the order of the magistrate and ordered that a verdict of acquittal be entered in lieu.

Orders

Orders of the court

Appeal allowed. Order of the Magistrate of 15 April 2011 set aside, order in lieu that a verdict of acquittal to the complaint be entered.

Background

Background to the litigation

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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:	Gibson v Golding [2011] QDC 271
PARTIES:	DAVID RICE GIBSON (Appellant) v LEE ADAM GOLDING (Respondent)
FILE NO/S:	Appeal 77/2011
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Cairns
DELIVERED ON:	17 November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	27 October 2011
JUDGE:	McGill DCJ
ORDER:	Appeal allowed. Order of the Magistrate of 15 April 2011 set aside, order in lieu that a verdict of acquittal to the complaint be entered.
CATCHWORDS:	CRIMINAL LAW – Procedure – amendment of complaint – adjournment – whether defendant misled CRIMINAL LAW – Stalking – evidence – matters known to complainant about defendant relevant to whether apprehension arose reasonably CRIMINAL LAW – Stalking – evidence – prior dealings between complainant and defendant may be relevant to whether conduct intentionally directed at complainant Justices Act 1886 s 49. Criminal Code s 359B. ex parte Bignell (1915) 32 WN (NSW) 91 – cited. ex-parte Burnby [1901] 2 KB 458 – cited. Crepps v Durden (1777) 2 Cowp 640, 98 ER 1283 – considered. Felix v Smerdon (1944) 18 ALJR 30 – cited. Hayes v Wilson, ex-parte Hayes [1984] 2 Qd R 114 – considered. Mbuzi v Torcetti [2007] QDC 374 – cited. Mbuzi v Torcetti [2008] QCA 231 – applied. Milnes v Bale (1875) LR 10 CP 591 – cited. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 – cited. Paron v Fry (No. 1) [1990] 1 Qd R 539 – cited. Paulger v Hall [2003] 2 Qd R 294 – applied. R v Perera [1986] 1 Qd R 211 – cited. R v The Credit Tribunal, ex parte GMAC (1977) 137 CLR 545 – cited. Rowe v Kemper [2008] QCA 175 – cited. Versteeg v R (1988) 14 ACLR 1 – cited.
COUNSEL:	J. Trevino for the appellant G. Webber (legal officer) for the respondent
SOLICITORS:	Wettenhall Silva Solicitors for the appellant Director of Public Prosecutions for the respondent