R v Johnstone

[2003] QCA 559

SUPREME COURT OF QUEENSLAND

CITATION:

R v Johnstone [2003] QCA 559

PARTIES:

R
v
JOHNSTONE, Adam Christopher

(appellant)

FILE NO/S:

CA No 315 of 2003
DC No 30 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Bowen

DELIVERED EX TEMPORE ON:

11 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

11 December 2003

JUDGES:

Williams JA and Chesterman and McMurdo JJ

Separate reasons for judgment of each member of the Court, each concurring as to the order made  

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTIONS AND NON-DIRECTION – whether the trial judge had properly directed the jury in summing-up – whether the trial judge had put a defence of provocation to the jury – where the defence could not be excluded unless the jury was satisfied of the complainant’s evidence

Criminal Code 1899 (Qld), s 270

COUNSEL:

The appellant appeared on his own behalf
B G Campbell for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McMURDO J:  The appellant was tried in the District Court on one count of assault occasioning bodily harm and one count of going armed in public in a manner so as to cause fear.  He was found guilty on both counts and sentenced to nine months imprisonment suspended after four months with an operational period of two years.

He originally appealed again his conviction on both counts before his case was then limited to the conviction on the assault account, which he challenged on the grounds that the Trial Judge should have led to the jury a defence based on section 270 of the Criminal Code. Then when his appeal came on for hearing on 6 November last his counsel withdrew and the hearing was adjourned. Since then he has been without legal representation and he has included the other count within this appeal, but his principal ground remains that under section 270.

The relevant events occurred at a caravan park at Airlie Beach in November 2001.  The complainant was the manager of the Caravan Park.  The appellant had recently befriended a young woman who lived at the park and had, on the day in question, erected his tent next to her caravan.  The complainant was concerned for safety reasons of the location of the appellant's tent and approached the appellant and his friend directing the appellant to remove it. 

An argument ensued which resulted in an assault of the complainant by the appellant.  On the prosecution case the assault involved the appellant's head butting the complainant.  The appellant gave evidence that he pushed her but that there was no head-butting.  It was common ground that in the conversation immediately preceding whatever was the assault, the complainant said to the young woman words to the effect that she should not "bring home every stray dog that she found", being an…