PARSONS, Keiran James (applicant/appellant) v RABY, Brendan John (respondent)
FILE NO/S:
CA No 346 of 2006 DC No 1278 of 2006
DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
30 March 2007
DELIVERED AT:
Brisbane
HEARING DATE:
14 March 2007
JUDGES:
Jerrard JA, Muir and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:
1. Application allowed 2. Appeal allowed 3. Conviction for public nuisance quashed 3. The respondent pay the appellant’s costs of the appeal to this Court and to the District Court
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – APPEALS BY WAY OF REHEARING – SCOPE AND EFFECT OF REHEARING – where the applicant was convicted by a Magistrate of public nuisance – where the applicant appealed to the District Court – whether the District Court conducted a proper re-hearing
P Callaghan SC, with S Gordon, for the applicant R J Pointing for the respondent
SOLICITORS:
Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent
[1] JERRARD JA: This matter is an application for leave to appeal under s 118 of the District Court Act 1967 (Qld). The applicant Keiran Parsons wants to overturn a decision by a District Court judge given 20 November 2006, dismissing Mr Parsons’ appeal against a conviction incurred on 11 April 2006 in the Caboolture Magistrates Court. As amended, the ground of appeal is a complaint that the learned District Court judge did not conduct a rehearing on the evidence, as the judge was required to do.
[2] Mr Parsons had been convicted of an offence of s 6 Summary Offences Act 2005 (Qld), namely that on 14 October 2005 at Morayfield in the Magistrates Court District of Caboolture in the State of Queensland, he committed a public nuisance offence. No particulars of that offence were sought or provided at the hearing, but the prosecution case was that Mr Parsons had participated in a fight with a person named Joseph Williams in a public car park adjacent to Morayfield Road.
[3] Fighting in a public place does not per se constitute the offence of committing a public nuisance. Section 6 of the Summary Offences Act 2005 provides:
“(1) A person must not commit a public nuisance offence. ... (2) A person commits a public nuisance offence if – (a) the person behaves in –
(i) a disorderly way; or
(ii) an offensive way; or
(iii) a threatening way; or
(iv)…
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
AGLC
Parsons v Raby [2007] QCA 98
Case
[2007] QCA 98
Decision Date
CaseChat Overview and Summary
Parsons sought an appeal against a conviction of public nuisance made by a Magistrate. Raby opposed the appeal. The nature of the dispute was whether the District Court properly conducted a re-hearing when considering the appeal. The case was heard in the Supreme Court of Victoria.
The primary legal issue was whether the District Court conducted a proper re-hearing of the evidence and law when considering the appeal. This involved determining whether the District Court, in the process of conducting the appeal by way of rehearing, applied the correct legal standards and gave appropriate weight to the evidence presented. The court needed to establish if the District Court had the necessary authority to review the decision of the lower court and if it applied the correct legal principles during its review.
The Supreme Court found that the District Court did not conduct a proper re-hearing as required by law. The court held that the District Court failed to properly consider the evidence and the applicable legal standards, and therefore, did not conduct a true re-hearing. As a result, the conviction for public nuisance was quashed. The court also ordered that the respondent pay the appellant's costs of the appeal to both the Supreme Court and the District Court.
Orders
Orders of the court
1. Application allowed
2. Appeal allowed
3. Conviction for public nuisance quashed
3. The respondent pay the appellant’s costs of the appeal to this Court and to the District Court