Herpich v Martin - [1994] QCA 18

IN THE COURT OF APPEAL [1994] QCA 018

SUPREME COURT OF QUEENSLAND

C.A. No. 419 of 1993

Before

The President
Mr Justice Davies
Mr Justice McPherson

[R. v. Martin]

BETWEEN:

T H E Q U E E N

ROBERT FRANCIS MARTIN

Appellant

Fitzgerald P.
Mr Justice Davies
Mr Justice McPherson

Judgment delivered 4/03/94

Joint reasons for judgment of McPherson & Davies JJ.A. Separate concurring reasons of Fitzgerald P.

APPEAL DISMISSED.

CATCHWORDSCRIMINAL LAW - ASSAULT - Bodily harm - In company - Whether magistrate has jurisdiction - Construction of ss.339, 342, 343A Criminal Code (Qld.).

CounselP. Alcorn for the appellant

P. Rutledge for the respondent

Solicitors: Legal Aid Office for the appellant

Director of Prosecutions for the respondent

Hearing Date: 1 March 1994

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 04/03/94

The circumstances and issues in this appeal are set out in the judgment of McPherson J.A.. I agree with his Honour's conclusions and with his reasons. I mention one matter solely for the purpose of emphasis.

There is no express reference in Chapter XXXI of the Code to the precise charge against the appellant, which included as a circumstance of aggravation that at the time of the assault upon the complainant the appellant was in company with other persons.

Nonetheless, such an offence is within section 343A, which is concerned with all offences of assault causing bodily harm, with or without such a circumstance of aggravation. Where, as here, there is a circumstance of aggravation, that bears upon the decision whether or not to proceed summarily which is required by section 342, but if the assault was not accompanied by an attempt to commit a crime and the magistrate is not of opinion "that the charge is a fit subject for prosecution by indictment", a summary proceeding is permissible.

JOINT REASONS FOR JUDGMENT - McPHERSON & DAVIES JJ.A.

Judgment delivered the Fourth day of March 1994

The appellant was charged in the magistrates court with assaulting the complainant and doing him bodily harm. It was also charged as a circumstance of aggravation that at the time of commission of the offence the appellant was in company with other persons. The magistrate convicted the appellant and sentenced him to imprisonment for six months. In the reasons he gave for his decision, the magistrate said that there was

evidence before him that two other persons Freeman and Hedger

- 2 -

had assaulted the complainant "conjointly", and that he (the magistrate) was satisfied that each of those three was in company with the other at the time of the assault on Smith.

At the hearing the appellant's application for leave to

appeal against sentence was dismissed after being withdrawn by
counsel. This is his appeal against conviction.

The ground taken in the notice of appeal is that the conviction was wrong in that the evidence did not support the magistrate's finding that the offence was committed in company.

The assault took place in the exercise yard at Wacol…

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 Herpich v Martin

Details

AGLC: Herpich v Martin [1994] QCA 18
Case: [1994] QCA 18
Decision Date: 4/03/1994

CaseChat Overview and Summary

The case of Herpich v Martin before the Supreme Court of Queensland involves the appellant, Robert Francis Martin, appealing against his conviction for assault causing bodily harm, with the additional circumstance of being in company with others. The court was tasked with determining the jurisdiction of the magistrate in handling the case and whether the evidence supported the magistrate's finding that the offence was committed in company. The appellant argued that the magistrate lacked jurisdiction due to the inclusion of the aggravating circumstance in the charge, and further contended that the evidence did not substantiate the magistrate's finding that the offence was committed in company.

The court examined the relevant sections of the Criminal Code to determine the jurisdiction of the magistrate. It concluded that the addition of an aggravating circumstance did not change the nature of the offence, aligning with previous case law. The court found that the magistrate had jurisdiction to hear the case under section 341, which permits summary conviction for assault, and section 343A, which allows for summary conviction for assault causing bodily harm, subject to section 342. The court further found that the magistrate's decision to proceed summarily was justified, as there was no evidence of an attempt to commit a crime or any reason to believe the charge was fit for prosecution by indictment.

The court dismissed the appeal against conviction, holding that the magistrate was justified in finding that the offence was committed in company and that the sentence did not exceed the maximum permitted for a summary conviction. The appeal was thus dismissed, affirming the conviction and sentence imposed by the magistrate.

Orders