McElholum v Hughes

[2016] ACTCA 37

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

McElholum v Hughes

Citation:

[2016] ACTCA 37

Hearing Date:

11 August 2016

DecisionDate:

29 September 2016

Before:

Burns, Elkaim and Ross JJ

Decision:

1.    The appeal is dismissed.

Catchwords:

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – appeal from single judge of the Supreme Court – appeal against conviction and sentence  

Legislation Cited:

Court Procedures Rules 2006 (ACT), r 5606

Crimes Act1900 (ACT), s 26
Crimes (Sentencing) Act2005 (ACT), s 17

Family Law Act 1975 (Cth), s 121

Cases Cited:

August v Commissioner of Taxation [2013] FCAFC 85; 94 ATR 376

Betts v The Queen [2016] HCA 25; 90 ALJR 758
Boughey v The Queen [1986] HCA 29; 161 CLR 10
CDJ v VAJ [1998] HCA 76; 197 CLR 172
Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439
Filippou v The Queen [2015] HCA 29; 256 CLR 47
Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265
McElholum v Hughes [2015] ACTSC 78
Ngatamariki v R [2016] NSWCCA 155
Nguyen v The Queen [2016] HCA 17; 90 ALJR 595
R v Freeman-Quay(No 1) [2015] ACTSC 262
R v Gabriel [2004] ACTSC 30 (20 May 2004); 182 FLR 102

SKA v The Queen [2011] HCA 13; 243 CLR 400

Parties:

Daniel McElholum (Appellant)

Callum Hughes (Respondent)

Representation:

Counsel

Self-Represented (Appellant)

Mr J White SC (Respondent)

Solicitors

Self-Represented (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 23 of 2015

Decision under appeal: 

Court:  ACT Supreme Court

Before:                  Refshauge J

Date of decision:    24 April 2015

Case Title:             McElholum v Hughes

Citation: [2015] ACTSC 78

The Court:

Introduction

1. This is an appeal from an appeal. The original decision was made in the ACT Magistrates Court where the appellant faced a charge of assault contrary to s 26 of the Crimes Act 1900 (ACT).

1. Section 26 states:

“A person who assaults another person is guilty of an offence punishable, on conviction, by imprisonment for 2 years.”

1. The appellant defended the charge.

1. The matter was heard by Special Magistrate Lunney (the “magistrate”) on 30 August and 25 October 2013. The decision was given on 12 February 2014. The appellant was convicted.

1. The appellant was sentenced on 7 April 2014. He was fined $100 and ordered to pay costs of $69, a criminal injuries compensation levy of $50 and a victim’s service levy of $10.

1. The appellant appealed from the decision of the magistrate. The appeal was against both conviction and sentence.

1. The appeal was heard by Refshauge J on 26 June 2014. His Honour delivered his decision on 24 April 2015. The appeal was dismissed.

1. This appeal is from the decision of Refshauge J.

Fresh evidence

1. The Further Amended Notice of Appeal dated 2 March 2016 states that “the appellant will seek to put further evidence before the court”. This issue was dealt with at the commencement of the hearing.

10. The admission…