Lane v Nowitzki (No 2) - [2010] QDC 427

[2010] QDC 427

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN

No 965 of 2009

VIRGINIA CAROLINE LANE	Appellant
and
TROY RANDALL NOWITZKI	Respondent

BRISBANE

..DATE 07/10/2010

JUDGMENT

CATCHWORDS

Justices Act 1886, s 4, s 52, s 222, s 225
Penalties and Sentences Act 1992, s 147

Court previously allowed appeal against conviction for common assault, declining to enter an acquittal or order a retrial - Queensland Police Service asked that matter be relisted, taking the view (which the court disagreed with) that a retrial was possible only if ordered - at invitation of QPS, acquittal entered

HIS HONOUR: On the 12th of August 2010, an order was made allowing Virginia Caroline Lane's appeal against her conviction by a Magistrate of an offence of common assault alleged to have occurred in the security area at the entrance to the Family Court in Brisbane on the 19th of June 2007.

The sealed final order of the court of that date records the Magistrates Court orders of the 10th of March 2009 and the District Court's orders as "Appeal allowed. Set aside conviction and other orders."

On the 12th of August 2010 there was consideration of what ought to occur further, if anything. Ordinarily, in circumstances such as this, an appeal court would send the matter for retrial upon setting aside a conviction, for good reason, perhaps with an intimation that the prosecuting authorities should consider whether the further pursuit of a charge is warranted in all the circumstances, or alternatively, order an acquittal.

My view was and remains that s 225 of the Justices Act gives the District Court Judge a discretion as to making or not making any of the orders referred to in the section. The situation was reached where the Magistrate's orders were set aside so that sub-s (2) applied. As warrant for exercising the discretion inherent in use of "may" by declining to make any order sending the matter back to the Magistrates Court, I would rely on an analogy which I think exists with s 147 of the Penalties and Sentences Act 1992. My approach and that of other first instance Judges, I don't suggest all, is that if the position was reached of it being considered that serving the whole of the balance of a suspended sentence would be unjust, the court had the option of making one of the alternative orders indicated in the section or no order at all.

I haven't been able to locate any example of the Court of Appeal endorsing that approach, but would respectfully rely on Fryberg J's view in R v Holley; Ex parte Attorney-General [1997] 2 Qd R 407 at 431 that it's open to the court to make no order. It was inconsistent with that of Lee J at page 418 and following, which was to the effect that the court ought to make a choice from alternatives stated in the legislation. Although in some places, such as the sentencing manual, I've seen it indicated that de Jersey…

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 Lane v Nowitzki (No 2)

Details

AGLC: Lane v Nowitzki (No 2) [2010] QDC 427
Case: [2010] QDC 427
Decision Date: 07/10/2010

CaseChat Overview and Summary

The case of Lane v Nowitzki (No 2) involved an appeal against a conviction for common assault by Virginia Caroline Lane. The appeal was heard in the District Court of Queensland. The appellant's conviction was set aside, and the matter was left open for further prosecution. The Queensland Police Service (QPS) requested the court to relist the matter, believing that a retrial was possible only if ordered. The court reconsidered the matter at the invitation of the QPS and decided to enter an acquittal for the appellant.

The legal issues before the court were whether the court could revisit its earlier decision and, if so, what order should be made. The court had to consider its discretion under the Justices Act 1886 and the implications of its earlier decision on the administration of justice. The court also had to determine whether there was a basis for rejecting the appellant's evidence and whether an acquittal was appropriate given the uncertainty of the facts.

The court held that it had the inherent jurisdiction to revisit its earlier decision and make a final order to bring closure to the matter. The court noted that while it was open to the prosecution to proceed further against the appellant, it did not wish to encourage further prosecution of what it considered a minor matter. The court also considered the potential impact of the ongoing prosecution on other, more serious charges involving the appellant. After reviewing all the evidence, the court decided that the appropriate course of action was to enter an acquittal for the appellant. The court found that there was no basis for rejecting the appellant's evidence, and the evidence was essentially the complainant's word against the appellant's. The court concluded that in the exceptional circumstances, an acquittal was the most appropriate outcome.

Orders