R v Hearn

[1995] QCA 558

IN THE COURT OF APPEAL	[1995] QCA 558
SUPREME COURT OF QUEENSLAND	C.A. No. 417 of 1995
Brisbane
Before	Fitzgerald P. Davies J.A. Thomas J.
[R. v. Hearn]

T H E Q U E E N

v.

KEVIN JOHN HEARN Appellant

FITZGERALD P.

DAVIES J.A. THOMAS J.

Orders made 06/12/1995

Judgment delivered 13/12/1995

REASONS FOR JUDGMENT - THE COURT

Appeal allowed. Conviction set aside. A verdict of acquittal is to be entered.

CATCHWORDS:	CRIMINAL LAW - conviction - assault occasioning bodily harm - altercation between father and son - credibility of evidence
Counsel:	Ms D. Richards for the Appellant M. Byrne Q.C. for the Crown
Solicitors:	Legal Aid office for the Appellant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	6 December 1995
REASONS FOR JUDGMENT - THE COURT

Orders made 06/12/1995
Judgment delivered 13/12/1995

The appellant was convicted of assault occasioning bodily harm in the Magistrates Court at Cunnamulla on 3 October 1995 and was sentenced to imprisonment for six months. He appealed to this Court, and the matter came on for hearing on 6 December 1995, by which time he had served a little more than two months imprisonment. The Court allowed the appellant’s appeal and quashed his conviction. It was not disputed by the prosecution that, in the circumstances, there was no sufficient purpose in a re-trial and, accordingly, a verdict of acquittal was entered. At that time, no reasons were given for the Court’s decision, but it was indicated that would be done in due course.

The charge against the appellant arose out of an altercation with his father on the night of 19 May 1995 at the home which they shared with the appellant’s mother. Both the appellant and his father had been drinking, and the appellant’s mother was absent at the time, according to the appellant because she had left to go “to his aunty’s place” after arguing with his father. There were no witnesses to the altercation, and the trial was essentially a contest of credibility between the appellant and his father. Both gave evidence, and neither version was more or less likely to be true than the other. On the evidence of the appellant’s father, he was struck by the appellant without provocation or warning while sitting at the dining room table. According to the appellant, he was sitting at the table when his father struck him without provocation or warning. The appellant then pushed his father away, and he stumbled back and struck his head on the wall. The appellant said that they then “had a couple more beers”.

The magistrate believed the appellant’s father and disbelieved the appellant, as he was entitled to do, but the reasons which he gave for doing so were plainly incorrect. In the first place, he considered that the appellant’s counsel had failed to put certain matters to the appellant’s father in cross-examination as required by the rule stated in Browne v. Dunne (1984) 6 The Reports 67 (H.L.), and that failure influenced his rejection of the appellant’s evidence. Before this Court, it was conceded for the prosecution that the magistrate had misunderstood and misapplied the rule in Browne v. Dunne.

Secondly, the magistrate used his disbelief of the appellant’s evidence to found a conclusion that the appellant had lied and then used that lie as an indication of the appellant’s guilt. The prosecution did not seek to support that process of reasoning in this Court.

In summary, therefore, the magistrate misdirected himself with respect to his determination of the contest of credibility between the appellant and his father, which was the central issue in the case. In the circumstances, his decision to disbelieve the appellant and believe his father‘s evidence as the basis for convicting the appellant could not be sustained.