R v Houston - [1997] QCA 205

IN THE COURT OF APPEAL	[1997] QCA 205
SUPREME COURT OF QUEENSLAND

C.A. No. 61 of 1997

Brisbane

[R. v. Houston]

THE QUEEN

KENNETH LAURIMER HOUSTON

(Applicant) Appellant
Macrossan CJ
Davies JA
Thomas J

Judgment delivered 15 July 1997

Judgment of the Court

APPEAL DISMISSED AND APPLICATION FOR LEAVE TO APPEAL SENTENCE
REFUSED

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - Assault occasioning bodily harm - Whether Magistrate's decision was unsafe and unsatisfactory - Test to be applied in determining appeal from summary trial - Bailey v. Costin, R v. Free, Criminal Code ss. 673, 668D and 668E

Counsel:	The appellant appeared on his own behalf Mrs L. Clare for the respondent
Solicitors:	The appellant appeared on his own behalf Queensland Director of Public Prosecutions for the respondent
Hearing Date:	16 May 1997
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 15 July 1997

This is an appeal against a conviction of assault occasioning bodily harm. The
ground is that the decision of the stipendiary magistrate was unsafe and unsatisfactory.
The incident occurred on the property of one Mills who was a neighbour of the
complainant (Ross). They and others including one Hunt had been assisting Mills to
perform a burn-off on his property. A permit had been obtained and the fire was under
control. The appellant, who is a fourth officer and secretary of the Buxton Rural Fire
Brigade, went with his wife and son to investigate the fire, having received a telephone
call from a person who indicated some concern about it. Some hostility emerged in the
discussion that ensued, when the conversation turned to the circumstances surrounding
a fire on New Year's Eve on another property some 12 months previously. The
appellant claimed that the fire had jumped the road and Ross called him a liar. The
appellant's evidence was that Ross had described the fire-fighters at the previous fire as

"pissed" and that Ross had called him a "lying bastard". On any version there was

plainly verbal hostility preceding the physical combat that ensued.

The essential point of departure between the appellant on the one hand and Ross and the witness Mills on the other, concerns the initiation of physical contact. The prosecution case is that following the verbal abuse, without prior warning, the appellant head-butted the complainant to the ground. The stipendiary magistrate expressly made the following findings:

"(5) That the defendant, either with or without prior contact with his hands, to the upper body of Ross, subjected him to a sudden head-butt, knocking Ross to the ground, before proceeding to further attack the head and face of Ross, with blows from his fists.
(7) That after Houston was pulled off Ross, the situation calmed, and Houston after being released by Mills, turned, as if to leave.
(8) That with a sudden movement, Houston turned back, again head- butting Ross, and again proceeded to turn upon him.
(9) That Ross again ended up on the ground, and that he hit out with a…

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.

Keep reading for free

Create a free CaseChat account to read R v Houston and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1997] QCA 205
Decision Date: 15/07/1997

CaseChat Overview and Summary

The case of R v Houston is an appeal against a conviction for assault occasioning bodily harm, heard in the Supreme Court of Queensland. The appellant, Kenneth Laurimer Houston, contested the conviction on the ground that the decision of the stipendiary magistrate was unsafe and unsatisfactory. The incident in question occurred during a controlled burn-off on a property, where the appellant and the complainant, Ross, had a heated exchange which culminated in physical violence. The primary legal issue was whether the magistrate's conclusion that the appellant initiated the assault by head-butting Ross was supported by evidence and reasonable.

The court examined the testimonies of the parties involved, as well as the medical evidence of injuries sustained by both the appellant and the complainant. The magistrate found that the appellant head-butted Ross without warning, knocking him to the ground and continuing to assault him. The appellant argued that he acted in self-defence after being punched by Ross and restrained by another witness, Mills. The court noted that the appellant’s version of events was not corroborated by any other witness. The court also addressed the appellant’s concerns about the police investigation and the consistency of witness statements, finding that these issues did not undermine the magistrate’s findings.

In its reasoning, the court applied the legal standards set out in previous cases, such as Bailey v. Costin and R v. Free, which establish that an appeal from a summary conviction can only succeed if the magistrate's decision was unreasonable or unsupported by evidence. The court concluded that the magistrate’s findings were both supported by evidence and reasonable, and therefore the appeal against the conviction should be dismissed. Additionally, the application for leave to appeal against the sentence, which was a fine and a compensation order, was also refused as there were no grounds to interfere with it.

In summary, the appeal against the conviction for assault occasioning bodily harm was dismissed, and the application for leave to appeal against the sentence was also refused. The court upheld the magistrate’s decision, finding it to be both reasonable and supported by the evidence presented.

Orders