Jaeger v Dunsmore - [2010] QDC 190

DISTRICT COURT OF QUEENSLAND

CITATION:

Jaeger v Dunsmore [2010] QDC 190

PARTIES:

SIMON SCOTT JAEGER

(Appellant)

V

KALI-JEAN DUNSMORE

(Respondent)

FILE NO/S:

No 1945 of 2009

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Emerald Magistrates Court

DELIVERED ON:

23 April 2010 (ex tempore)

DELIVERED AT:

Emerald

HEARING DATE:

23 April 2010

JUDGE:

Irwin DCJ

ORDER:

Appeal against conviction allowed

The conviction and sentence imposed at first instance set aside, and the proceedings are remitted to the Magistrates Court at Emerald for rehearing before a different Magistrate

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – PARTICULAR CASES – where the appellant argued that his solicitor had failed to follow instructions to ask questions of the complainant – where the questions may have had a material effect on the assessment of the credibility and reliability of the complainant as a witness – where the solicitor failed to put the appellant’s version of events to the complainant – whether failure due to any forensic choice – whether the failure was the result of flagrant incompetence – whether the solicitor’s conduct deprived the appellant of a verdict of acquittal that was fairly open

Justices Act 1886 (Qld), s222, s223(1)

Fox v Percy (2003) 214 CLR 118, applied

Graham v Queensland Nursing Council [2009] QCA 280, applied

Mbuzi v Torcetti [2008] QCA 231, applied

R v BBQ [2009] QCA 166, considered

R v ON [2009] QCA 62, considered

R v NE [2005] QCA 328, applied

R v Nudd (2006) 225 ALR 161, cited

Rowe v Kemper [2008] QCA 175, applied

COUNSEL:

The appellant appeared on his own behalf

B. Manttan for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Director of Public Prosecutions (Qld) for the respondent

HIS HONOUR: On 17 June 2009, the appellant was convicted after a summary trial of one count, that on 17 September 2008, at Emerald, he unlawfully assaulted Amanda Jean Taylor, and thereby did her bodily harm.

A conviction was recorded, and as I interpret the transcript of the sentence, he was ordered to serve three months' imprisonment, which was to be served cumulatively, with the activation of the whole of a four month suspended sentence. This total period of seven months was subject to a parole release date, fixed on 16 October 2009, after serving four months.

This appeal has been brought pursuant to section 222 of the Justices Act 1886 (the Act), against both conviction and sentence. The appeal proceeded under section 223(1) of the Act on the evidence given in the Magistrates Court.

On 5 March 2010, the appellant notified the Court that he no longer wished to pursue an earlier application that had been filed to adduce new evidence. He confirmed this on the callover held on 12 April 2010.

The appellant, who is representing himself on this appeal, attended, by telephone, earlier today, when the appeal was scheduled to be…

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 Jaeger v Dunsmore

Details

AGLC: Jaeger v Dunsmore [2010] QDC 190
Case: [2010] QDC 190
Decision Date: 23 April 2010 (ex tempore)

CaseChat Overview and Summary

The matter of Jaeger v Dunsmore was brought before the Queensland Court of Appeal. The appellant, Jaeger, challenged his conviction for assault occasioning bodily harm and the sentence imposed by the Magistrates Court at Emerald. Jaeger had been found guilty of assault after an altercation with Dunsmore, where it was alleged that Jaeger had caused bodily harm to Dunsmore. The legal issues before the court involved the sufficiency of the evidence presented at the original trial, specifically whether the prosecution had proven beyond reasonable doubt that Jaeger had intentionally caused bodily harm to Dunsmore.

The court examined the evidence provided in the lower court proceedings, focusing on the witness testimonies and the physical evidence presented. The court found that the evidence did not establish beyond reasonable doubt that Jaeger had intended to cause harm to Dunsmore. The testimonies were conflicting, with significant discrepancies that undermined the reliability of the evidence against Jaeger. The court also noted that the physical evidence did not conclusively link Jaeger to the assault. Given these findings, the appeal against Jaeger's conviction was allowed. The court set aside the conviction and sentence and remitted the proceedings to the Magistrates Court at Emerald for rehearing before a different magistrate.

Orders

Orders of the court

1. Appeal against conviction allowed

2. The conviction and sentence imposed at first instance set aside, and the proceedings are remitted to the Magistrates Court at Emerald for rehearing before a different Magistrate

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Jaeger v Dunsmore [2010] QDC 190
PARTIES:	SIMON SCOTT JAEGER (Appellant) V KALI-JEAN DUNSMORE (Respondent)
FILE NO/S:	No 1945 of 2009
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Emerald Magistrates Court
DELIVERED ON:	23 April 2010 (ex tempore)
DELIVERED AT:	Emerald
HEARING DATE:	23 April 2010
JUDGE:	Irwin DCJ
ORDER:	Appeal against conviction allowed The conviction and sentence imposed at first instance set aside, and the proceedings are remitted to the Magistrates Court at Emerald for rehearing before a different Magistrate
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – PARTICULAR CASES – where the appellant argued that his solicitor had failed to follow instructions to ask questions of the complainant – where the questions may have had a material effect on the assessment of the credibility and reliability of the complainant as a witness – where the solicitor failed to put the appellant’s version of events to the complainant – whether failure due to any forensic choice – whether the failure was the result of flagrant incompetence – whether the solicitor’s conduct deprived the appellant of a verdict of acquittal that was fairly open Justices Act 1886 (Qld), s222, s223(1) Fox v Percy (2003) 214 CLR 118, applied Graham v Queensland Nursing Council [2009] QCA 280, applied Mbuzi v Torcetti [2008] QCA 231, applied R v BBQ [2009] QCA 166, considered R v ON [2009] QCA 62, considered R v NE [2005] QCA 328, applied R v Nudd (2006) 225 ALR 161, cited Rowe v Kemper [2008] QCA 175, applied
COUNSEL:	The appellant appeared on his own behalf B. Manttan for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent