Lewis v McCourt

[1996] QCA 456

[1996] QCA 456

COURT OF APPEAL

PINCUS JA DAVIES JA AMBROSE J

CA No 356 of 1996
LEWIS
v.

LESLIE FRANCIS McCOURT Appellant

BRISBANE
..DATE 30/10/96
301096 T15/SJ22 M/T COA267/96
AMBROSE J: This is an appeal by a 61-year-old man who was
convicted of assault occasioning bodily harm in the Magistrates
Court at Ipswich on 22 July 1996. The evidence called to
establish the charge against him was essentially the evidence
from the complainant, the owner of a newspaper agency, and two
of his female staff.

In essence, without going into specific details, it was the evidence of the complainant that the appellant entered his newspaper shop apparently to purchase a paper. He became annoyed when he learned the cost of the newspaper and thereupon directed abusive language to the complainant. Eventually, two employees of the complainant had their attention drawn to the abuse and so on that was being levelled at the complainant and both were present at a time when the appellant applied force to the chest of the complainant causing a wound from an operation that had been sutured in the chest of the complainant to open and this injury not merely produced pain but produced blood and so on.

Now, the evidence as to the application of force by the appellant to the complainant came from the complainant and his two staff. All were cross-examined by the appellant who elected then not to give evidence. He was convicted and a penalty of a $350 fine was imposed and the appellant was also ordered to pay compensation of $300 together with $49.25 costs and the Magistrate ordered that the conviction be recorded.

The appellant appeals on a number of grounds. The first being that the Magistrate ought not to have been satisfied that he was 301096 T15/SJ22 M/T COA267/96

guilty of the offence; secondly, that he - the Magistrate - failed properly to take into account inconsistencies in the prosecution witnesses; and thirdly, that he failed properly to take into account issues of provocation or self defence.

I do not propose to analyse the evidence in any detail or indeed refer to it in particular at all. It seems to me that the evidence was uncontradicted. It clearly established the application of force by the appellant to the complainant, without his consent, and it clearly established the causing of bodily harm and consequent injury and also some pecuniary loss, as the result of time that had to be taken off by the complainant as a result of the injury inflicted on him.

There were minor inconsistencies as one might expect in the evidence of the two girls employed in the shop and the complainant. In my view they were not such as to support the ground of appeal. In my view there was absolutely no evidence of either provocation or self defence and in my view there is no substance in the appeal against conviction.

With respect to the appeal against sentence, in my view, the penalty was a very moderate one and the compensation, to the extent that there was any error involved, was to the advantage of the appellant rather than to his disadvantage. His conduct leading to the assault which was, in my view, on the evidence, unprovoked on the complainant, was bad. He was abusive. There was absolutely no reason given for his abuse of the complainant or indeed for his unprovoked assault. In my view, it could not be said that the penalty imposed or the compensation ordered was 301096 T15/SJ22 M/T COA267/96

excessive.

With respect to the recording of a conviction the appellant was 61 years of age. He had exhibited bad behaviour at the time he assaulted the complainant and, in my view, it is not a case in which it could be said that the Magistrate erred in recording a conviction. Even though there was no recorded convictions involving the appellant prior to the commission of this offence I would dismiss the appeal and refuse leave to appeal against sentence.

PINCUS JA: I agree and I would only add that as to the appeal against sentence it appears to me from what was said at page 34 by Mr McCourt that he felt no shame or remorse for what he had done.

DAVIES JA: I agree.

PINCUS JA: The order will be as indicated by Mr Justice

Ambrose.

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