R v Currie

[1996] QCA 52

COURT OF APPEAL

[1996] QCA 052

FITZGERALD P
PINCUS JA
HELMAN J

CA No 489 of 1995

THE QUEEN

v.

KEITH WILLIAM CURRIE  Appellant

BRISBANE

..DATE 27/02/96

JUDGMENT

PINCUS JA:  This is an appeal against conviction.  The appellant was convicted after a trial in the Magistrates Court on a count of unlawfully assaulting one Bidgood and causing him bodily harm in the course of a football match.  The Magistrate fined the appellant $100 without recording a conviction.

The case for the prosecution was that the appellant tackled Bidgood at a time when Bidgood had got rid of the ball, some seconds after he had done so; and in the course of the tackle the appellant struck him in the face with an elbow, causing Bidgood quite serious injury.  It was established to the satisfaction of the Magistrate that this did occur, that is, that there was a tackle in the course of which Bidgood was struck by the appellant's elbow and, as I read the reasons, the Magistrate was satisfied that there was a gap in time between Bidgood getting rid of the ball and his being tackled.

One of the difficulties which has been raised by Mrs McGinness on behalf of the appellant is the Magistrate's treatment of the issue, or potential issue, of accident.  It appears from the record that during the course of the addresses, the representative of the appellant below told the Magistrate, in effect, that the only issue is one of identity, that is, who it was who tackled Bidgood.

However, on the facts as found by the Magistrate, that was by no means the only issue.  Reading now from Her Worship's reasons, the learned Magistrate discussed the fact that according to the appellant's account given below, his recollection of the matter was poor or non-existent.  She said:

It may then well be that quite likely Mr Currie has no recollection of the incident if it was not one which resulted in immediate penalty or sending off by the referee then there perhaps may not necessarily have been any reason for him to specifically recall the incident.  It may even be that from his point of view the incident was not even a deliberate one but merely an accident and therefore he simply has not recalled it because nothing has come of it at the time when he would have needed to have or put forward a version of events when events may well have been much clearer and fresher in his mind.

Her Worship returned to the subject in the course of giving reasons for the penalty, a comparatively light penalty in view of the seriousness of the injury which was imposed; perhaps I should read what the Magistrate said in its context.  Her Worship said:

And I suppose as I have endeavoured to point out during the hearing of the matter, I don't - I don't approach this on the basis that it was a deliberate attempt to interfere with another player.  Nobody is really able to give that evidence anyway so that you have therefore to be treated on the basis that it may perhaps have been an accident.  I recognise you have no recollection of it or you say it didn't happen.

Leaving out part of it, Her Worship continued this discussion by concluding, in effect, that the incident "could have at least been explained as part of the rough and tumble of a game of football".

Now, one of the points which is taken on behalf of the appellant is that the onus was upon the prosecution to satisfy the Magistrate positively, if the defence of accident arose on the facts, that that defence did not apply.  It seems clear from the Magistrate's reasons that the defence did arise on the facts and I am inclined to think that Her Worship was by no means satisfied that the defence was inapplicable.
It is true that the reference to accident is not altogether free from ambiguity.  Her Worship might be referring to accident in the sense that the tackle was accidental in that the appellant did not intend to perform a late tackle and did not appreciate that the ball had gone at the time he performed the tackle.  Alternatively, perhaps what was meant was that although the tackle itself was deliberate, and deliberately late, nevertheless the injury was an accident in that he did not intend to strike with the elbow.

Either construction is open, but on whichever view one takes, it was a matter which should have been considered as a defence by the Magistrate and apparently was not; that is, it should have been considered from the point of view of determining whether or not the Crown had excluded the defence beyond reasonable doubt.

To summarise then, the indications in the reasons given by the Magistrate both for finding the appellant guilty and in reasons for sentencing, are that on the facts the Magistrate thought that a question arose as to whether or not the event in question the subject of the complaint was an accident.  She seems to have thought that it very likely was an accident, but at the least, as I suggested during the course of the hearing, it would be unsafe to let the conviction stand when the issue of accident is not satisfactorily dealt with.

It may be that the better view is that we should hold that the defence of accident was raised in the course of the reasons and not excluded and therefore it followed that the appellant should have been acquitted, but I am content to say that at the least the conviction is unsafe and should be set aside.  Mr Byrne QC in the course of discussion did not seem to me seriously, or at least strongly, to resist the suggestion that the conviction was unsafe, but he submitted that if the conviction were set aside there should be a new trial.

The ground upon which he put that was that there was a significant injury and that if there were a new trial and a conviction again, then the injured person, Mr Bidgood, might be able to recover compensation.  However the answer to that simply is that if Mr Bidgood has a good cause of action, there is nothing to stop him pursuing it in civil proceedings.  In view of the outcome of this trial, I would be against ordering a new trial.  I would simply allow the appeal and set the condition and penalty aside.

THE PRESIDENT:  I agree.  I would only add in relation to the last matter mentioned by Mr Justice Pincus that it seems to me that the effect of the reasons of the Magistrate taken overall are that the Crown failed to prove beyond reasonable doubt that the assault with which the appellant was charged did not occur by accident and in those circumstances, in my opinion, the Crown ought not be given a further opportunity to attempt to make that good.  There is no justification for a re-trial in my opinion.

HELMAN J:  I agree.  I agree with the reasons given by Mr Justice Pincus and with the remarks of the President.

THE PRESIDENT:  The order of the Court is appeal allowed, conviction quashed, verdict of acquittal entered.

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