Powell v Winzar - [2002] NTSC 7

Powell v Winzar [2002] NTSC 7
PARTIES:GARY OWEN FRANCIS POWELL
v

KEVIN DAVID WINZAR

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA 67 of 2001 (20020134)
DELIVERED:  16 January 2002
HEARING DATES:  28 November 2001 and 10 January 2002
JUDGMENT OF:  RILEY J
REPRESENTATION:
Counsel:
Appellant:Mr J Stirk
Respondent:  Dr N Rogers and Ms G. McMaster
Solicitors:
Appellant:Povey Stirk
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  ril0124
Number of pages:  16

ril0124
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Powell v Winzar [2002] NTSC 7

No. JA67 of 2001 (20020134)

IN THE MATTER OF the Justices Act
AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Alice Springs

BETWEEN:
GARY OWEN FRANCIS POWELL

Appellant
AND:
KEVIN DAVID WINZAR

Respondent

CORAM: RILEY J
REASONS FOR JUDGMENT
(Delivered 2 January 2002)

On 18 May 2001, following a trial before the Court of Summary Jurisdiction, the appellant was found guilty of having unlawfully assaulted Kenny Hayes on 2 December 2000. On 15 June 2001 he was sentenced to imprisonment for a period of 6 months with that sentence to be suspended after a period of 2 months.
The appellant appeals against his conviction and also against sentence. In relation to the conviction the grounds argued differed from those identified in the notice of appeal and in the further particulars provided by the appellant. The Crown raised no objection to the change in approach. The submission of the appellant was that her Worship failed to provide adequate reasons for her decision and that the conviction was unsafe and unsatisfactory. In relation to the sentence it was submitted that this was manifestly excessive.
At the hearing there were competing versions of events provided to the court. The evidence of Kenny Hayes, Carol Melba Strathern and Robert Ainsworth Chadwick was that they had been together at Ms Strathern’s residence at 40 Cawood Court Alice Springs on 2 December 2000. During the morning they had been drinking beer and listening to music. At some point in the afternoon they were interrupted by the arrival of the appellant. He was affected by alcohol and was in an aggressive mood. As he arrived the appellant slammed the gate and knocked over a rubbish bin. He entered the flat and soon after accused Mr Hayes of having stolen some money from him. He then assaulted Mr Hayes. The assault included grabbing Mr Hayes by the shirt, throwing him onto the lounge and then onto the floor, ripping his necklace off and kicking him or stomping upon him with his feet. Initially it was submitted by Mr Stirk, who appeared on behalf of the appellant, that there were contradictions between the versions of events provided by these three witnesses. However in the course of his submissions Mr Stirk accepted, correctly in my view, that there…

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.

Continue reading Powell v Winzar

Details

AGLC: Powell v Winzar [2002] NTSC 7
Case: [2002] NTSC 7
Decision Date: 16 January 2002

CaseChat Overview and Summary

Gary Owen Francis Powell, the appellant, was found guilty of assaulting Kenny Hayes on 2 December 2000, and was sentenced to imprisonment for six months, with the sentence suspended after two months. Powell appealed both his conviction and the sentence, arguing that the conviction was unsafe and unsatisfactory, and that the sentence was manifestly excessive. The case involved conflicting accounts of events, with the prosecution witnesses describing an assault in the afternoon, while Powell and his witnesses claimed the incident occurred in the morning.

The court needed to determine whether the trial judge provided adequate reasons for her decision, and whether the sentence was appropriate. The central issue was the credibility of the witnesses and whether the trial judge properly assessed the evidence. The court also needed to consider whether the failure to call a particular witness resulted in a miscarriage of justice.

The trial judge accepted the version of events provided by the prosecution witnesses, finding that Powell arrived drunk and upset, accused Hayes of stealing money, and then assaulted him. The judge noted that the prosecution witnesses' accounts were largely consistent, and that there were no compelling reasons to doubt their reliability. However, the judge did not adequately address the evidence of the defence witnesses, which cast doubt on the prosecution's account. The court found that the failure to provide reasons for rejecting the defence evidence was an error of law, and that the appeal must be allowed. The conviction was set aside, and a retrial was ordered. The court also found that the failure to call the neighbour, JC, as a witness did not result in a miscarriage of justice, as there was no indication of what his evidence might have been, and it could not be concluded that the appellant was deprived of evidence that would have assisted his defence.

Orders