Murray v Grieve

[2014] QDC 18

DISTRICT COURT OF QUEENSLAND

CITATION:

Murray v Grieve [2014] QDC 18

PARTIES:

PATRICK ADAM MURRAY
(appellant)

v

DARREN KEVIN GRIEVE
(complainant/respondent)

FILE NO/S:

3586/2012

DIVISION:

Appellate

PROCEEDING:

Section 222 appeal

ORIGINATING COURT:

Magistrates Court at Gympie

DELIVERED ON:

13 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2013

JUDGE:

Horneman-Wren SC DCJ

ORDER:

1.   The appeal is allowed.

2.   The conviction is set aside.

3.   The charge is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – appeal under s 222 of the Justices Act 1886 is by way of rehearing on the evidence given before the learned Magistrate – appeal against conviction for assault – evidence of an independent witness was not followed by the learned Magistrate – whether there was evidence of consent to the assault, defence of the dwelling, self defence or provocation

Criminal Code Act 1899 (Qld) s 160(2), s 267, s 271, s 272
Justices Act 1886 (Qld) s 222, s 223(1)

Fox v Percy (2003) 214 CLR 118
Lergesner v Carrol [1991] 1 Qd R 206
Moffa v The Queen (1977) 138 CLR 601
R v Cuskelly [2009] QCA 375
Stevenson v Yasso [2006] 2 Qd R 150

Stingel v The Queen (1990) 171 CLR 312

COUNSEL:

D R Lynch for the appellant

D Finch for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions for the respondent

1. On 22 August 2012 the appellant was convicted in the Gympie Magistrates Court on one count of having unlawfully assaulted Luigi Mario Sergi.  He was sentenced to one month imprisonment.  The sentence was wholly suspended for an operational period of six months.

1. He appeals against both his conviction and his sentence.  The finding of guilt upon which he was convicted is said to be contrary to the evidence and should be set aside as unreasonable.  It is further, or alternatively, said that it cannot be supported, having regard to all the evidence.  The sentence is said to be excessive in all the circumstances.

1. The appeal against conviction raises as grounds that the prosecution did not exclude the defences of consent, self-defence, defence of a dwelling or of another, and provocation.

The Nature of the Appeal

1. An appeal under s 222 of the Justices Act 1886 (Qld) is by way of rehearing on the evidence given before the learned Magistrate.[1]  The court is required to conduct a real review of the trial and the learned Magistrate’s reasons.[2]  In doing so, this court should give due deference to and attach a good deal of weight to the views of the learned Magistrate,[3] but it remains for this court to draw its own conclusions on the evidence.

   [1]Justices Act 1886 (Qld) s 223(1). The Court may give leave to adduce new evidence if satisfied that there are special grounds for doing so (s 223(2)) but no application to adduce new evidence was made in this case.

   [2]Fox v…