McMaster v Compton

[1996] QCA 98

[1996] QCA 098

COURT OF APPEAL

DAVIES JA PINCUS JA HELMAN J

CA No 350 of 1995
GREGORY PAUL McMASTER
v.

KENNETH CARL COMPTON Appellant

BRISBANE
..DATE 15/03/96
150396 T5/RB M/T COA45/96
DAVIES JA: I shall ask Mr Justice Pincus to deliver his reasons
first.
PINCUS JA: The appellant was convicted in the Magistrates Court
at Murgon on 1 August 1995 on a charge of having on
26 February 1995 at Murgon unlawfully assaulted one French and
thereby done him bodily harm. He was fined and ordered to pay
compensation.

The offence, as it was held to be, arose out of a dispute between the appellant and the complainant, the details of which are not of any present consequence. It is enough to say that the complainant apparently became upset when the appellant picked up a rope which was thought to belong to the complainant.

A verbal dispute arose, pushing began, and eventually the
appellant knocked the complainant to the ground by punching him.

In the course of her reasons for conviction, the Magistrate mentioned that there was evidence of pushing by the complainant and she accepted that. She said that the appellant had given evidence of a fight in which both parties were engaged. Her Worship went on to say:

"However, the defendant's whole attitude while giving evidence
was 'that he was not going to let anyone push him around'.
Although I was not convinced that the complainant was a
completely honest witness in that I have [to] accept that
he did push the defendant. I was left with the impression
that the defendant and Charlene Button [who was another

witness] were also not honest or credible with regard to

the events that happened regarding the fight."

150396 T5/RB M/T COA45/96

The argument which is advanced on behalf of the appellant today
takes various points but the central contention, as it seems to
me, is a short one, and it is based upon a passage in the
reasons of the Magistrate as follows:
"There was nothing from the evidence of the defendant or the

Record of Interview which could satisfy me that the [defendant] reasonably and honestly believed that the complainant was consenting to a fight and was apparently mistaken."

Counsel for the appellant contended that there were two issues
which had to be dealt with. One was the question of consent and
the other one was the possibility that the appellant mistakenly
thought that the complainant consented to a fight.
It seems clear that, were it the fact that the complainant
consented to the assault which was undoubtedly committed upon
him, that would be a defence, and equally clear that if the
appellant mistakenly thought that there was consent, that could
also be a defence.

The difficulty to which the appellant's counsel points is that the reasons given by the learned Magistrate suggest that Her Worship had, perhaps temporarily, overlooked that as to both those issues the onus was on the prosecution, and the onus was, of course, one of proof beyond reasonable doubt.

Mr Martin, who has appeared for the respondent, has argued in effect that all that was intended by the passage which I read 150396 T5/RB M/T COA45/96

was that there was not sufficient evidence to raise the issue. It appears to me that this Court should not be too ready to fasten upon perhaps erroneous expressions in the course of a Magistrate's reasons, to detect in them some fundamental error.

It is right that, as Mr Martin implies, the Magistrate must be well aware of where the onus of proof lies in criminal cases and where it lay in respect of those two issues.

Nevertheless, reading the reasons as a whole, there is ground for concern; at two other places, that is places other than that to which counsel for the appellant Mr Smith referred, there are similar loose expressions used. One is the following: "I do not accept that this was a consensual fight between the parties"; and the second is this:

"Is a claim of self-defence or provocation open to the defendant? I am inclined to disbelieve self-defence having already found that the defendant after two pushes turned around and got into (punched) the complainant and also having regard to the age difference and fitness of the parties and the nature of the injuries suffered by the complainant."

One thus has not one but three dubious expressions: the statement that the Magistrate did not accept that there was consent; the statement that there was nothing in the evidence to satisfy her that there was a mistake; the statement that she was inclined to disbelieve that there was a defence consisting in self-defence under section 271 or section 272.

Whereas, if the reference on which Mr Smith particularly relies,
150396 T5/RB M/T COA45/96
to not being satisfied that there was a mistake, stood alone,
there might have been more doubt about it, taking these three
passages together, there is at least ground for thinking that
the Magistrate had temporarily overlooked the important question
of where the onus lay and what was the standard of proof, or
those three matters.

It is difficult to reconcile the statement, "I do not accept that this was a consensual fight" with the legal position, which was that the Crown had to satisfy the Magistrate positively that there was no consent. It is also a little difficult to reconcile the statement, "I am inclined to disbelieve self- defence" with satisfaction beyond reasonable doubt that the defence had not been made out.

The conclusion at which I have arrived, having had the opportunity to consider the matter both before and after the hearing this morning, is that it would not be safe to let the conviction stand. There is at least a foundation, in the reasons given by the Magistrate, for thinking that perhaps the proper standard and onus of proof were not applied. The case was one in which, on the facts, there was some substance in the suggestion that there was a consensual fight. The Magistrate thought there was not such a fight. There was also ground in the evidence for the suggestion that perhaps the appellant was mistaken about that point, although the Magistrate did not think he was. It was important, particularly when there were real issues to be tried, that the onus and standard of proof be kept firmly in mind throughout the Magistrate's consideration of the case. It is not by any means clear to me that that occurred.

150396 T5/RB M/T COA45/96

I therefore favour the view that to let the conviction stand would be unsafe. I would allow the appeal, set aside the conviction and other orders made by the learned Magistrate and I would not order a new trial.

DAVIES JA: I agree.

HELMAN J: I agree.

DAVIES JA: The orders are as indicated by Mr Justice Pincus.

-----