R v Heenan - [2002] QCA 292

[2002] QCA 292

COURT OF APPEAL

McPHERSON JA
MACKENZIE J
HOLMES J

CA No 48 of 2002

THE QUEEN

PAUL JAMES HEENAN

BRISBANE

..DATE 06/08/2002

JUDGMENT

McPHERSON JA: I will ask Justice Mackenzie to give the first judgment.

MACKENZIE J: The appellant was convicted of an offence of assault occasioning bodily harm but acquitted of entering a dwelling house with intent to commit an indictable offence. He appeals against conviction and seeks leave to appeal against a fine of $1,000 imposed upon him.

The events leading directly to the assault which indisputably occurred were that after the appellant's daughter had been dropped off at her home by the complainant who had collected her and his own daughter from school, the appellant's wife suspected that she had been smoking.

When the appellant came home and learnt of this he disciplined the girl who was aged 13 at the time. Although the complainant's evidence suggests that the assault with which we are concerned occurred on the same day initially, all other witnesses said it was not until the evening of the following day when it happened. If there is a discrepancy in the complainant's evidence in that regard, it was not an issue in relation to the question of guilt or otherwise as the trial was conducted.

In any event, according to the appellant's daughter, on the evening following the discovery that she had been smoking, the appellant asked her if the complainant had ever touched her in any way. She said he had not. However, after further conversation with her mother, the girl told the appellant that the complainant had suggested that she might come to his place when there was no-one but him there for a smoke and a chat.

The appellant became enraged and left immediately, went to the complainant's house and assaulted him. The conviction of assault occasioning bodily harm arose from that incident. There was no inconsistency between the verdict of guilty on that ground on the acquittal on the count of entering a dwelling house with intent to commit an indictable offence because the evidence was somewhat vague as to whether the assault commenced outside or inside the dwelling house.

There was a dispute as to whether the complainant actually invited the girl to visit him. The girl maintains that he had. He denied it. Whether the invitation was or was not issued is a side issue in respect to the conviction since it was the fact that the girl said that it had occurred that caused the appellant to react in the way in which he did.

The truth or otherwise of the allegation neither added to nor subtracted from the issues relating to the appeal against conviction except in a way which will be discussed shortly.

The assault was unlawful because no authorisation, justification or excuse under the Criminal Code applied to it in the circumstances in which it occurred. The defence of provocation was not open on the facts and counsel for…

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 R v Heenan

Details

AGLC: R v Heenan [2002] QCA 292
Case: [2002] QCA 292
Decision Date: 06/08/2002

CaseChat Overview and Summary

In the case of R v Heenan, the appellant was convicted of assault occasioning bodily harm but acquitted of entering a dwelling house with intent to commit an indictable offence. The appellant appealed against his conviction and sought leave to appeal against a fine of $1,000 imposed on him. The assault occurred when the appellant, after learning that his daughter had been smoking, went to the complainant's house and assaulted him in response to the appellant's belief that the complainant had made inappropriate advances towards his daughter. The appellant argued that the trial judge was wrong to preclude defence counsel from presenting evidence of the complainant's past criminal convictions in 1999 for indecently dealing with and unlawful carnal knowledge of a girl under 16. The defence sought to introduce this evidence in the hope that the jury would acquit the appellant despite the lack of a legal defence.

The Court of Appeal considered the issue of whether the trial judge was correct in precluding the defence from presenting evidence of the complainant's past convictions. The Court found that the evidence was inadmissible because it did not materially affect the credibility of the complainant as a witness, as per section 20 of the Evidence Act 1977. The Court held that the error in precluding the cross-examination about the complainant's past convictions did not give rise to a miscarriage of justice, as the credibility of the complainant was not vital to the decision of the case. The Court also held that the fine of $1,000 imposed on the appellant was not manifestly excessive. As a result, the appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused.

The Court of Appeal unanimously agreed with the reasons provided by the presiding Judge and Justice Mackenzie and upheld the orders proposed. The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused.

Orders