Hodgens v Williams

[2005] QDC 257

DISTRICT COURT OF QUEENSLAND

CITATION:

Hodgens v Williams [2005] QDC 257

PARTIES:

ROCK ANTHONY HODGENS

Appellant

v.

ANDREW ROSS WILLIAMS

Respondent

FILE NO/S:

Appeal No D3402/2004

DIVISION:

Appellate

PROCEEDING:

Appeal under s.222 of Justices Act 2005

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

31 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

15 August 2005

JUDGE:

Robin QC DCJ

ORDER:

Appeal allowed; findings of guilty replaced by ‘not guilty’

CATCHWORDS:

Appeal from Magistrate to District Court under Justices Act 1886 s.222 against findings that appellant had committed common assault on two complainants – assaults trivial, Magistrate recorded no conviction, imposed no penalty – complainants were a retired and a serving police officer authorised by the leader of a church congregation to exclude the appellant from worship unless the appellant agreed to meet him to discuss “issues” – assaults occurred when appellant tried to push his way in – Magistrate stated defences of provocation were “not properly raised”, because the complainants were acting lawfully under s.277(1) of the Criminal Code – by s.268(3) a “lawful act” is not provocation for an assault – concern whether Magistrate had correctly applied the criminal standard of proof to require the prosecution to prove beyond reasonable doubt that the appellant wrongfully remained on the premises, to trigger s277(1).

COUNSEL:

Ms Cuthbert for appellant

Mr Hungerford-Symes for respondent

SOLICITORS:

Irish Bentley Lawyers for appellant

Director of Public Prosecutions (Qld)

REASONS FOR JUDGMENT

1. This is an appeal under s. 222 of the Justices Act 1886, against a Magistrate’s finding the appellant guilty of two charges of common assault on 21 July 2004, at the conclusion of a disjointed trial which extended over a year or so. The offences charged occurred at premises of the Church of Jesus Christ of the Latter Day Saints at 370 Underwood Road, Eight Mile Plains, at about 2.20 p.m. on Sunday, 29 June 2003. A service was underway at which Bishop Holzworth, who was the priest, pastor or minister of the Eight Mile Plains ward of the Church (and not, it seems, vested with any wider authority) was officiating.

1. The appellant, said to be aged in his early or mid 20s, accompanied by his mother arrived late for the service.  He was refused entry by Mr Dobinson, a retired police officer and First Councillor to the Bishop in his ward, and by Mr Ives (a police officer by occupation), who is a member of the Rochedale ward of the Church and a Councillor to its State President, Mr O’Rielly.  The two of them had been assigned by the Bishop to confront the appellant if and when he turned up at the Church.  In the course of the encounter that took place:

(a)         There was contact between the appellant’s body and    Dobinson’s, of which the Magistrate said at pages 10-11 of   his reasons. “The defendant said on this point that he moved                    to go around Dobinson. He accepted in cross-examination   that is was he and not Dobinson that took the first step and I…