Marshall v Queensland Police Service - [2015] QDC 261

DISTRICT COURT OF QUEENSLAND

CITATION:

Marshall v Queensland Police Service [2015] QDC 261

PARTIES:

STEPHEN LLOYD MARSHALL
(Appellant)

And

QUEENSLAND POLICE SERVICE
(Respondent)

FILE NO/S:

4394/14

PROCEEDING:

222 Appeal

DELIVERED ON:

28 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

16 October 2015

JUDGE:

Bowskill QC DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION - Where easement exists on the appellant’s land, for the benefit of the complainant’s land – Where complainant lawfully entitled to enter the land to exercise the easement, but appellant had given notice that complainant’s right to use the easement was disputed – Where appellant convicted of assault occasioning bodily harm - Where appellant assaulted complainant in the course of attempting to stop the complainant from entering the easement – Where s 279 of the Criminal Code provides that it is lawful for the person in possession of the land subject of the easement to “use such force as is reasonably necessary for the purpose of making the person so entering desist from the entry” - Whether the Magistrate erred in finding that the assault was unlawful, on the basis that the appellant used more force than was reasonably necessary.

Criminal Code (Qld) s 279

COUNSEL:

A S McDougall for the Appellant

J Marxson (Solicitor) for the Respondent

SOLICITORS:

Lawler Magill for the Appellant

Office of the Director of Public Prosecutions for the Respondent

Introduction

The appellant appeals, under s 222 of the Justices Act 1886, against his conviction in the Magistrates Court, on 17 October 2014, of the offence of assault occasioning bodily harm.
The trial was heard over two days, on 28 and 29 April 2014. On 17 October 2014, the Magistrate delivered her verdict, finding the defendant guilty, with an indication that reasons would be published subsequently. The appellant was sentenced, on 17 October 2014, to a good behaviour bond for a period of 6 months on recognisance of $1,000. No conviction was recorded. In the sentencing remarks, her Honour noted:
“The circumstances of this offence was that there had been a history of dispute between neighbours. It wasn’t in (sic) a gratuitous act. On both sides there was apparent frustration and considerable disagreement. In relation to the matter my reasons are to be published. I do accept that this was a matter involving an easement and some force could be used, however in the circumstances of this case I consider the force to be excessive.”
Her Honour’s reasons were published on 1 April 2015 (Reasons).
The assault occurred during an altercation between the appellant and the complainant, Ms Coulson, which arose in the context of a dispute between them about the complainant’s access to an easement across a small portion of the appellant’s property.
At trial, there was no dispute that the appellant had assaulted the complainant. The issues in dispute before the Magistrate were (1) whether, by the assault, the appellant did bodily harm to the complainant; and (2)…

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.

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Details

Case: [2015] QDC 261
Decision Date: 28 October 2015

CaseChat Overview and Summary

The appellant, Marshall, was convicted in the Magistrates Court of Queensland of assault occasioning bodily harm. The complainant, a neighbour, had a legal easement over Marshall’s property, allowing access to a shared driveway. Marshall had given notice that he disputed the easement, yet the complainant continued to use it. During an attempt by Marshall to prevent the complainant from exercising the easement, an altercation ensued, leading to the complainant sustaining injuries. Marshall was convicted under s 279 of the Criminal Code, which permits the use of reasonable force to prevent unlawful entry. Marshall appealed against the conviction, arguing that the force he used was reasonable under the circumstances.

The central legal issue was whether the magistrate erred in concluding that the appellant used excessive force, rendering the assault unlawful. Marshall contended that the force he used was justified as it was reasonably necessary to prevent the complainant from entering the disputed easement. The court had to determine if the magistrate properly assessed the reasonableness of the force used by Marshall in the context of the legal dispute over the easement and the provisions of s 279 of the Criminal Code.

The court found that the magistrate did not err in their assessment of the reasonableness of the force used by Marshall. The court held that while Marshall had a legal right to dispute the easement, he did not have the right to use excessive force to enforce that dispute. The force used by Marshall in preventing the complainant from entering the easement was deemed to exceed what was reasonably necessary. The court found that the magistrate correctly concluded that Marshall’s actions were unlawful as they involved more force than necessary. Therefore, the appeal was dismissed, affirming the conviction of the appellant.

The court did not make any further orders beyond dismissing the appeal and affirming the conviction.

Orders

Orders of the court

The appeal is dismissed.

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:	Marshall v Queensland Police Service [2015] QDC 261
PARTIES:	STEPHEN LLOYD MARSHALL (Appellant) And QUEENSLAND POLICE SERVICE (Respondent)
FILE NO/S:	4394/14
PROCEEDING:	222 Appeal
DELIVERED ON:	28 October 2015
DELIVERED AT:	Brisbane
HEARING DATE:	16 October 2015
JUDGE:	Bowskill QC DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION - Where easement exists on the appellant’s land, for the benefit of the complainant’s land – Where complainant lawfully entitled to enter the land to exercise the easement, but appellant had given notice that complainant’s right to use the easement was disputed – Where appellant convicted of assault occasioning bodily harm - Where appellant assaulted complainant in the course of attempting to stop the complainant from entering the easement – Where s 279 of the Criminal Code provides that it is lawful for the person in possession of the land subject of the easement to “use such force as is reasonably necessary for the purpose of making the person so entering desist from the entry” - Whether the Magistrate erred in finding that the assault was unlawful, on the basis that the appellant used more force than was reasonably necessary. Criminal Code (Qld) s 279
COUNSEL:	A S McDougall for the Appellant J Marxson (Solicitor) for the Respondent
SOLICITORS:	Lawler Magill for the Appellant Office of the Director of Public Prosecutions for the Respondent