Hoggett v Lowis - [2004] QDC 508

DISTRICT COURT OF QUEENSLAND

CITATION:

Hoggett v Lowis [2004] QDC 508

PARTIES:

MICHAEL AARON HOGGETT
Appellant
v
CONSTABLE M LOWIS
Respondent

FILE NO/S:

D1089 of 2004

DIVISION:

Appeal

PROCEEDING:

Appeal under s 222 of the Justices Act 1886

ORIGINATING COURT:

Magistrates Court, Sandgate

DELIVERED ON:

15 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2004

JUDGE:

Judge Robin QC

ORDER:

Appeal allowed

CATCHWORDS:

Criminal Code
Domestic and Family Violence Protection Act 1989
Justices Act 1886

Appeal to District Court under s 222 of the Justices Act against conviction by a magistrate of assault occasioning bodily harm and breach of domestic violence order – police brought in by appellant (not complainant) – complainant loath to confirm her statement to police, made determined efforts to get charges dropped, insisted in witness box she had provoked appellant – magistrate should have entertained reasonable doubt on assault charge – on the other, mistake as to whether domestic violence order continued in effect at date ascribed to the offence not excluded beyond reasonable doubt

COUNSEL:

Self Represented for the Appellant
Ms McCormack for Respondent

SOLICITORS:

Appellant Self-represented
DPP Queensland for the Respondent

Before the Court is Mr Hoggett’s appeal against his conviction by the Magistrate at Sandgate on 25 February 2004 of two offences charged as having happened on 9 September 2003 at Yeronga, the more serious being assault occasioning bodily harm to his de facto partner Kylie Maree Hardgrave, the other that “he being a respondent under the provisions of the Domestic and Family Violence Protection Act 1989 contravened a protection order made under the said Act on 29 April 2003 in the Magistrates Court at Sandgate and the said Michael Aaron Hoggett was served with a copy of the said order.”

Mr Hoggett argued his appeal in person, with some assistance from his father, as had been provided before the magistrate. On that occasion, the magistrate had refused Mr Hoggett Senior a right of audience.

I reserved a decision upon the appeal; throughout the hearing, I felt considerable misgivings regarding the soundness of the decisions of the magistrate, which were made in unusual circumstances, of a “complainant” whose evidence was vital being uncooperative with the prosecution. It must be unusual for criminal charges to succeed in such circumstances, but they can do so, as in R v D [2000] QCA 203 - on appeal from a trial in Maroochydore on indictment 207 of 1999, commencing 2 November 1999. (D made admissions in a recorded interview with police.) I thought it necessary to consider all of the evidence (including exhibits) and the magistrate’s full and careful reasons.

Mr Hoggett’s short relationship with the complainant has been tempestuous. The domestic violence order obtained against him for her protection was taken out by police, according to her, she not having asked for them to do it (transcript p 7); it was mirrored by an order taken out against her for Mr Hoggett’s protection. It appears that the two resided together at the complainant’s residence in…

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 Hoggett v Lowis

Details

AGLC: Hoggett v Lowis [2004] QDC 508
Case: [2004] QDC 508
Decision Date: 15 October 2004

CaseChat Overview and Summary

The case of Hoggett v Lowis involved an appeal to the District Court from a conviction in the Magistrates' Court of the appellant for assault occasioning actual bodily harm and breach of a domestic violence order. The police were initially called by the appellant, not the complainant, and the complainant was reluctant to support her statement to the police, making efforts to have the charges dropped and insisting in court that she had instigated the incident. The appellant argued that the magistrate should have entertained reasonable doubt regarding the assault charge, while the respondent contended that the mistake about whether the domestic violence order was in effect at the time of the offence did not exclude the reasonable doubt.

The court had to determine whether the magistrate should have entertained reasonable doubt regarding the assault charge and whether the mistake about the domestic violence order's applicability excluded reasonable doubt. The appeal hinged on the credibility of the complainant and the interpretation of the domestic violence order's validity. The court examined the evidence presented and the magistrate's handling of the reasonable doubt standard.

The court found that the magistrate should have entertained reasonable doubt as to the assault charge due to the complainant's inconsistent statements and lack of corroboration. However, the court held that the mistake about the domestic violence order's validity did not exclude reasonable doubt as the complainant's evidence was still sufficient to convict. Consequently, the appeal was allowed, and the conviction was quashed.

Orders

Orders of the court

Appeal allowed

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:	Hoggett v Lowis [2004] QDC 508
PARTIES:	MICHAEL AARON HOGGETT Appellant v CONSTABLE M LOWIS Respondent
FILE NO/S:	D1089 of 2004
DIVISION:	Appeal
PROCEEDING:	Appeal under s 222 of the Justices Act 1886
ORIGINATING COURT:	Magistrates Court, Sandgate
DELIVERED ON:	15 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	4 October 2004
JUDGE:	Judge Robin QC
ORDER:	Appeal allowed
CATCHWORDS:	Criminal Code Domestic and Family Violence Protection Act 1989 Justices Act 1886 Appeal to District Court under s 222 of the Justices Act against conviction by a magistrate of assault occasioning bodily harm and breach of domestic violence order – police brought in by appellant (not complainant) – complainant loath to confirm her statement to police, made determined efforts to get charges dropped, insisted in witness box she had provoked appellant – magistrate should have entertained reasonable doubt on assault charge – on the other, mistake as to whether domestic violence order continued in effect at date ascribed to the offence not excluded beyond reasonable doubt
COUNSEL:	Self Represented for the Appellant Ms McCormack for Respondent
SOLICITORS:	Appellant Self-represented DPP Queensland for the Respondent