R v Fyffe

[1996] QCA 338

COURT OF APPEAL

[1996] QCA 338

FITZGERALD P
DAVIES JA
de JERSEY J

CA No 277 of 1996

THE QUEEN

v.

JASON CHARLES FYFFE  Appellant

BRISBANE

..DATE 27/08/96

JUDGMENT

DAVIES JA:  The appellant was convicted of assault occasioning bodily harm in the Magistrates Court on 22 May last.  He appeals against that conviction.

In his notice of appeal, he sets out two grounds of appeal.  The first is that he wishes to adduce fresh evidence, the second alleges a procedural error.  Neither was particularised but each now appears reasonably clear.

In a letter to the Court of 22 August, the appellant alleges that the case came on for trial at a time when he thought it was listed only for mention and that he was unprepared and unrepresented and had not informed his witness that he had to be present and he seeks to have the case reheard because of that.  However, it appears from the transcript before the Magistrate that he was asked whether he was ready to proceed and he said that he was.

The facts of the case  are that on 8 October 1995, the appellant was in a group of people at the Shooters Bar at Surfers Paradise.  Also in that group was a Mr Shoddell.  According to Mr Shoddell the appellant, without warning or any provocation, struck him in the mouth with his fist whilst Mr Shoddell was holding a glass of beer to his mouth to drink.  Shoddell was knocked to the ground.  The appellant, according to Mr Shoddell, continued to assault him.  Both were subsequently removed from the premises.  The complainant suffered a chipped or broken tooth and a swollen lip.

The appellant gave evidence describing himself as fairly well intoxicated at the time.  He said that he could not recall anything other than being removed by the hotel security staff.  He conceded that he may have struck the complainant but he could not remember.  The complainant's version of events was therefore uncontested and uncontradicted.  No ground of defence was put forward at the trial. 

The second ground of appeal, that is the request to adduce fresh evidence, relates to  the evidence of a Mr Shane Johnson who was apparently also present.  He would say, according to the appellant, if given the opportunity, that there were four or five persons thrown out at the same time, not simply Mr Shoddell and the appellant and that apparently there had been also a fight going on behind the group of which the appellant and Mr Shoddell were part.  That, in my view, adds nothing to a possible defence on the part of the appellant. The facts remain, it seems to me, that the complainant's evidence remains uncontested and uncontradicted. In my view, there is no possible basis for allowing the appeal and it should be dismissed.

THE PRESIDENT:  I agree.

de JERSEY J:  I agree.

THE PRESIDENT:  The appeal is dismissed.

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