McElholum v Hughes

Case [2015] ACTSC 78


HUMAN RIGHTS ACT

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

McElholum v Hughes

Citation:

[2015] ACTSC 78

Hearing Date(s):

26 June 2014

DecisionDate:

24 April 2015

Before:

Refshauge J

Decision:

1.    The appeal against conviction is dismissed.

2.    The appeal against sentence is dismissed.

Category:

Principal Judgment

Catchwords:

APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – Jurisdiction – Appeal against conviction – Assault – Injury not a necessary element of the offence – Recklessness – Application of the relevant principles and precedents

APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – Appeal against sentence – Seeking a non-conviction order – Seriousness of the offence – Alleged entrapment – Prior convictions – Good character – Stress and hardship

APPEAL – Conduct of the appeal – Failure to adequately particularise the grounds of appeal – Submission of irrelevant considerations – Additional material must be justified –  Failure to prove submissions in evidence – Appellants cannot use the appeal to conduct a different case not put before the sentencing court

Legislation Cited:

Crimes Act 1900 (ACT), s 26
Crimes (Sentencing) Act 2005 (ACT), ss 17, 33(1)q) and (r)
Evidence Act 2011 (ACT), ss 32, 43, 60, 65

Human Rights Act 2004 (ACT), s 2
Magistrates Court Act 1930 (ACT), Pt 3.10, Division 3.10.2

Court Procedures Rules2006 (ACT), rr 2903, 4053
Family Law Rules 2004 (Cth), r 15.06

Criminal Code 2002 (ACT), ss 8, 20

J D Heydon, Cross on Evidence (LexisNexis Butterworths, 1996, looseleaf, service 170)
Lord MacMillan, “The Ethics of Advocacy” in Law and Other Things (Cambridge University Press, 1937) pp 191-2
Professor Julius Stone, “The Ratio of the Ratio Decidendi” (1959) 22(6) Modern Law Review, 597

Cases Cited:

Baker v Thorpe (1985) 62 ACTR 1
British Thomson-Houston Co Ltd v British Insulated and Helsby Cables Ltd [1924] 2 Ch 160
Browne v Dunn (1893) 6 R 67
Butera v Director of Public Prosecutions (DPP) (Vic) (1987) 164 CLR 180
Campbell v Fortey (1987) 85 FLR 462
Collins v Wilcock (1984) 1 WLR 1172
Commissioner of Police v Caldwell [1982] AC 341
Connelly v Allan (2011) 212 A Crim R 320
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Cotter v Corvisy [2008] ACTSC 64
Devries v Australian National Railways Commission (1993) 177 CLR 472
DPB v Western Australia [2014] WASCA 17
DPP v JWH (Unreported, New South Wales Supreme Court, Hulme J, 17 October 1997)
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Elias v The Queen (2013) 298 ALR 637
Ezekiel-Hart v Law Society of the Australian Capital Territory [2012] ACTSC 135
Faulkner v Talbot (1982) 74 Cr App R 1
Fox v Percy (2003) 214 CLR 118
Goundar v Goddard (2010) 240 FLR 176
Grimshaw v Mann [2013] ACTSC 189
Harrex v Fraser [2011] ACTSC 172
Higgs v The Queen [1999] FCA 1562
Isherwood v Tasmania [2010] TASCCA 11
Kelly v Johnston [2012] ACTSC 178
Likiardopoulos v The Queen (2012) 291 ALR 1
Lukatela v Birch (2008) 164 ACTR…

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McElholum v Hughes [2015] ACTSC 78
Case
[2015] ACTSC 78
Decision Date

CaseChat Overview and Summary

McElholum and Hughes appealed against their convictions and sentences for assault. The Magistrates Court had convicted them of assaulting a police officer during a protest, with McElholum also being convicted of assault occasioning actual bodily harm. The appeal raised questions about the court's jurisdiction to hear the appeal, the legal sufficiency of the evidence to support the convictions, and the appropriateness of the sentences imposed. The court needed to determine whether the injury was a necessary element of the assault offence, the applicability of recklessness in this context, and how to apply relevant legal principles and precedents.

The court found that the Magistrates Court had jurisdiction to hear the appeal, and the evidence was sufficient to support the convictions. Regarding the nature of the assault offence, the court held that injury was not a necessary element, and recklessness was an appropriate standard. The court also examined the sentences, considering the seriousness of the offence, the appellants' prior convictions, their good character, and the stress and hardship they would face. The court found that the appeal did not adequately particularise the grounds, included irrelevant considerations, and failed to justify additional material. Furthermore, the appellants could not use the appeal to conduct a different case not presented before the sentencing court.

Consequently, the court dismissed both the appeal against conviction and the appeal against sentence. The court ordered that the appeal against conviction be dismissed, and the appeal against sentence be dismissed.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The appeal against sentence is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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