Harrigan v Reeves

[2008] QDC 157

DISTRICT COURT OF QUEENSLAND

CITATION:	Harrigan v Reeves [2008] QDC 157
PARTIES:	Stuart Harrigan (Appellant) V Linda Ann Reeves (Respondent)
FILE NO/S:	2430/07
DIVISION:	Appellant jurisdiction
PROCEEDING:	Appeal
ORIGINATING  COURT:	Magistrates Court, Brisbane
DELIVERED ON:	25 February 2008
DELIVERED AT:	District Court Brisbane
HEARING DATE:	22nd August 2007
JUDGE:	Forde DCJ
ORDER:	1. Appeal is allowed
2. Respondent to pay the appellant costs to be assessed or agreed.
CATCHWORDS:	Appeal- Credibility of witnesses-wrongful exercise of discretion – lack of credible evidence.
House v The King [1936] 55 CLR 499.
COUNSEL:	A, Kimmins (For Appellant) Z, Rutherford ( For Respondent)
SOLICITORS:	Ryan and Bosscher Lawyers (for appellant ) Crown Solicitor (for Respondent)

25022008 T(2)08-09/JB M/T BRIS25 (Forde DCJ)

DISTRICT COURT	1
APPELLATE JURISDICTION JUDGE FORDE
No 2430 of 2007

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STUART HARRIGAN	Appellant
and
LINDA ANN REEVES	Respondent
BRISBANE ..DATE 25/02/2008	20
ORDER
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40
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2 ORDER 60

25022008 T(2)08-09/JB M/T BRIS25 (Forde DCJ)

HIS HONOUR: This is an appeal against the decision of the	1
Magistrate at Brisbane on the 22nd of August 2007. The appellant was charged with common assault. The particulars are set out at page 2 of the transcript which are as follows:

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"The particulars in respect of the matter are that the
offender has grabbed the complainant around the back of
his neck with his left hand, punched the complainant in
the stomach with his right hand clenched, grabbed around
the back of the neck with his left hand, punched the
complainant in the stomach with his right hand with a
clenched fist. The defendant has then grabbed the front
of the complainant's shirt with both hands, pushed him up

against the wall and on to a desk."

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The prosecution case was that the shirt was damaged in the process and there was a subsequent photograph of that. There was also a red mark on the side of the neck which is difficult to discern from the photograph but which Constable Reeves said

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was there at the time.

What is problematical in this case is the approach of the learned Magistrate which technically was open to him in the sense that to the extent the complainant's evidence was

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confirmed, he was prepared to act upon it, and in particular
at page 4 of his reasons he found that the complainant grossly
exaggerated, but there was a darkening consistent with redness
on the side of the neck observed by the constable and the

photographs showed that there was a button ripped off. The

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complainant said he was grabbed forcefully around the neck
with both hands, pushed backwards and, of course, he said he
was punched as well and it seems that there was some evidence
from Mrs Kirby who was employed at the office of the appellant
25022008 T(2)08-09/JB M/T BRIS25 (Forde DCJ) 3 ORDER 60

at the time that she saw the appellant poking the complainant	1
in the chest but the fracas had started before she was able to visually see it.
The poking that has occurred may well be consistent with the

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redness on the neck. It was a very minor redness as described
by the police officer and certainly difficult to discern from

the photographs taken that day.

If there is an inference open to be drawn, assuming there is

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that redness on the side of the neck proved, it may be
consistent with poking as it would with being grabbed around
the neck, given the nature of the redness described. In that
event, if that inference was drawn, it ought to be one drawn

which favours the appellant here consistent with evidence

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given there are two competing inferences and absent any other evidence that he was punched and otherwise dealt with as described on the desk and upsetting computers and chairs.
objective evidence because the approach by the learned

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The Magistrate in fact found that he could not say the computer monitor was knocked over as the complainant alleged when he was flung over towards the computer monitor towards the end of the assault. He could not say beyond a reasonable

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doubt that the chair went down the stairs. Mrs Kirby did not
observe those things. There is a serious credibility issue in
this instance.
25022008 T(2)08-09/JB M/T BRIS25 (Forde DCJ) 4 ORDER 60

The other objective factor is the missing button. That was	1
not observed by Mrs Kirby. Given the credibility of the appellant being under serious challenge, it may be just as open that it occurred after the event and on the way to the police station as being an inference open for the jury if they

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were involved given the Magistrate sits as both Judge and
jury. The jury would be directed if they were not satisfied
about some aspects of the case they were entitled to take that

into account as the learned Magistrate ought to have.

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In those circumstances there has been a wrong exercise of the discretion in terms of the decision in House v. The King ]1936] 55 CLR 499 at 504. The Magistrate, in my view, has mistaken the facts and did not take into account all of the issues in deciding credibility.

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When one looks carefully at the evidence, in reality there is no credible evidence to proceed upon in this case which would allow a Court to convict on this offence and for those reasons

the appeal is allowed.

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...

HIS HONOUR: It is further ordered that the respondent do pay the appellant's costs to be assessed or agreed.

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5 ORDER 60