McDonald v Price - [1994] QCA 428

IN THE COURT OF APPEAL [1994] QCA 428

SUPREME COURT OF QUEENSLAND	C.A. No. 319 of 1994
Brisbane
BeforeFitzgerald P. Davies J.A. Cullinane J.
[McDonald v. Price]

JAMES JOHN MCDONALD

RONALD JOHN PRICE (Appellant)

_______________________________________________________________

Fitzgerald P.
Davies J.A.
Cullinane J.

_______________________________________________________________
Judgment delivered 25/10/94

Joint reasons for judgment of Davies J.A. and Cullinane J.; separate concurring reasons of Fitzgerald P.

_______________________________________________________________

APPEAL DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST

SENTENCE REFUSED.

_______________________________________________________________

CATCHWORDS:

CRIMINAL LAW - CONVICTION - appellant convicted of two offences of common assault - credibility of complainants' evidence - whether open to magistrate to accept Crown witness' account - whether apprehension of bias - whether failure by justice of the peace before whom complaints were laid, and the magistrate, to observe due process - whether convictions unsafe and unsatisfactory

CRIMINAL LAW - CONVICTION - failure of prosecution to call witnesses - whether substantial miscarriage of justice resulted - whether convictions unsafe and unsatisfactory
CRIMINAL LAW - SENTENCE - appellant, 46 years old, frightened, apprehended and assaulted youthful complainants - appellant annoyed by the complainants' trail bike riding - conduct unprovoked - lack of remorse - whether fine imposed and recording of a conviction justified

Counsel:	The appellant in person
Ms L. Clare for the respondent
Solicitors:	Director of Prosecutions for the respondent
Date of Hearing:	27 September 1994

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 25/10/94

The circumstances are set out in the judgment of Davies J.A. and Cullinane J., who have patiently discussed the appellant's

numerous points. It is regrettable that time has been spent

hearing and answering so many futile arguments.

The appellant's grounds included complaints against the

investigating police officer, the justice of the peace before whom the complaint was made, the prosecutor and the magistrate.

I do not find it necessary to discuss the material principles

to conclude that none of these complaints warrants the

intervention of this Court on this occasion.

These matters aside, this was a straight forward case in which

there was an abundance of evidence which the magistrate was

entitled to accept and which, once accepted, amply justified the appellant's convictions. I agree with what has been said by Davies J.A and Cullinane J.

I also agree with their Honours' reasons for concluding that

there is no basis for interfering with the sentence imposed, and

with the orders which they propose.

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND CULLINANE J.

Judgment delivered 25/10/94

The appellant was convicted after a trial in the Magistrates

Court at Gatton on 18 July 1994 of two counts of common assault,

one upon a youth named Morgan, the other upon a youth named Booth, both having occurred on 24 January 1993. He was

sentenced by the imposition of a fine of $350.00 and his conviction was recorded. The appellant appeals against that conviction and seeks leave to appeal against that sentence.

The assaults of which the appellant was convicted consisted of

an attempt to remove a motorbike helmet from Morgan's…

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: [1994] QCA 428
Decision Date: 25/10/1994

CaseChat Overview and Summary

The appellant was convicted of two offences of common assault by the Magistrates' Court of Victoria. The complainants alleged that the appellant assaulted them while they were riding their trail bikes. The appellant challenged the conviction on several grounds, including the credibility of the complainants' evidence, apprehension of bias, failure to observe due process, and the failure of the prosecution to call witnesses. The appellant also argued that the sentence imposed was excessive. The Court of Appeal examined whether the convictions were unsafe and unsatisfactory and whether the sentence was justified.

The court was required to decide whether the magistrate was open to accept the Crown witness' account, whether there was an apprehension of bias, whether the justice of the peace and the magistrate failed to observe due process, whether the failure of the prosecution to call witnesses resulted in a substantial miscarriage of justice, and whether the sentence was excessive. The court also considered whether the convictions were unsafe and unsatisfactory.

The court found that the magistrate was open to accept the complainants' evidence and that there was no apprehension of bias. The court also found that the justice of the peace and the magistrate observed due process. The court found that the failure of the prosecution to call witnesses did not result in a substantial miscarriage of justice. The court found that the appellant's conduct was unprovoked and that he lacked remorse. The court found that the fine imposed and the recording of a conviction were justified.

The court dismissed the appeal against conviction and sentence.

Orders