R v Jol - [2016] QChC 15

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v JOL [2016] QChC 15

PARTIES:

THE QUEEN

v

JOL
(defendant)

FILE NO/S:

37/15

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

3 November 2016

DELIVERED AT:

Ipswich

HEARING DATE:

24 and 25 February 2016

JUDGE:

Horneman-Wren SC DCJ

ORDER:

On each of counts 1, 2 and 3 on the indictment the defendant is found not guilty. 1.

The defendant is discharged on each of counts 1, 2 and 3 on the indictment.2.

The sentencing of the defendant on count 4 will be listed on a date to be fixed. 3.

CATCHWORDS:

CRIMINAL LAW- PARTICULAR OFFENCES- OFFENCES AGAINST THE PERSON- ASSAULT-CONSENT- where single count of assault occasioning bodily harm- where complainant confronted defendant- whether the defendant honestly and reasonably believed the complainant consented to a fight - whether the blow was in self-defence or provoked - where complainant’s conduct was aggressive- where even if the complainant was not consenting to a fight, the defendant had an honest and reasonable but mistaken belief that he was consenting- where crown has not negatived defence of self-defence - where not guilty on single count.

CRIMINAL LAW- PARTICULAR OFFENCES- OFFENCES AGAINST THE PERSON ASSAULT- CIRCUMSTANCES OF AGGRIVATION AND AGGRIVATED ASSAULT- where two counts of serious assault of a police officer with aggravating circumstance- whether spitting was deliberate or with reckless indifference to the foreseeable consequences of his act- whether the defendant deliberately yelled so as to project spittle- where not satisfied beyond reasonable doubt that the defendant’s actions were deliberate or with a reckless indifference to the foreseeable consequences of his actions.

COUNSEL:

Ms E Kelso for the Crown

Mr J Crowley for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Bosscher Lawyers for the defendant

The defendant is charged with one count of assault occasioning bodily harm; two counts of serious assault of a police officer with a circumstance of aggravation; and one count of serious assault of a police officer. The defendant pleaded guilty to the serious assault of a police officer (count 4) on the first morning of the trial. These reasons relate to the remaining three counts.

Count one – assault occasioning bodily harm

The complainant, Mr Colin Fewquandie, knew of the defendant. They lived in the same street in Churchhill, Ipswich. He did not, however, know the defendant. The defendant had at times, when he was younger, attended Mr Fewquandie’s home and there played with the Fewquandie children.

In September 2014 Mr Fewquandie’s wife had told him of an incident in which the defendant and another person had been walking in the middle of the street, not for the first time, and she had to swerve around them to get off the road. His wife had told them to get off the road and the defendant’s “mate gave her the finger as she was driving off”.

Mr Fewquandie thought that it was two days later that he saw the defendant and his mate…

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 Jol

Details

AGLC: R v Jol [2016] QChC 15
Case: [2016] QChC 15
Decision Date: 3 November 2016

CaseChat Overview and Summary

The case of R v Jol involved the defendant facing a single count of assault occasioning bodily harm, as well as two counts of serious assault against a police officer with aggravating circumstances. The dispute centred on whether the defendant honestly and reasonably believed that the complainant consented to a physical confrontation, and if the alleged assault was in self-defence or provoked. Additionally, the court had to determine if the defendant's actions, specifically spitting at the police officer, were deliberate or done with reckless indifference to the foreseeable consequences. The matter was heard and determined by the court.

The primary legal issues the court had to decide were whether the defendant had an honest and reasonable but mistaken belief that the complainant consented to a fight, and if this belief was sufficient to negate the assault charge. Furthermore, the court needed to ascertain whether the defendant's actions towards the police officer were deliberate or done with reckless indifference, as required for the aggravated assault charges. The court also had to consider the concept of consent in the context of self-defence and the potential for the defendant's belief to be mistaken yet still reasonable.

The court found that the defendant had an honest and reasonable, albeit mistaken, belief that the complainant consented to a fight. The aggressive conduct of the complainant did not negate the possibility that the defendant genuinely believed that a physical confrontation was consented to. As the prosecution had not disproven the defence of self-defence, the defendant was acquitted of the single count of assault occasioning bodily harm. With respect to the two counts of serious assault against the police officer, the court was not satisfied beyond reasonable doubt that the defendant's actions were deliberate or done with reckless indifference to the foreseeable consequences of his actions. Consequently, the defendant was also found not guilty on counts 2 and 3.

The court found the defendant not guilty on counts 1, 2 and 3 of the indictment. The defendant was discharged on these counts. Sentencing for count 4 of the indictment was to be listed at a later date.

Orders

Orders of the court

On each of counts 1, 2 and 3 on the indictment the defendant is found not guilty. 1.

The defendant is discharged on each of counts 1, 2 and 3 on the indictment.2.

The sentencing of the defendant on count 4 will be listed on a date to be fixed. 3.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v JOL [2016] QChC 15
PARTIES:	THE QUEEN v JOL (defendant)
FILE NO/S:	37/15
DIVISION:	Criminal
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	3 November 2016
DELIVERED AT:	Ipswich
HEARING DATE:	24 and 25 February 2016
JUDGE:	Horneman-Wren SC DCJ
ORDER:	On each of counts 1, 2 and 3 on the indictment the defendant is found not guilty. 1. The defendant is discharged on each of counts 1, 2 and 3 on the indictment.2. The sentencing of the defendant on count 4 will be listed on a date to be fixed. 3.
CATCHWORDS:	CRIMINAL LAW- PARTICULAR OFFENCES- OFFENCES AGAINST THE PERSON- ASSAULT-CONSENT- where single count of assault occasioning bodily harm- where complainant confronted defendant- whether the defendant honestly and reasonably believed the complainant consented to a fight - whether the blow was in self-defence or provoked - where complainant’s conduct was aggressive- where even if the complainant was not consenting to a fight, the defendant had an honest and reasonable but mistaken belief that he was consenting- where crown has not negatived defence of self-defence - where not guilty on single count. CRIMINAL LAW- PARTICULAR OFFENCES- OFFENCES AGAINST THE PERSON ASSAULT- CIRCUMSTANCES OF AGGRIVATION AND AGGRIVATED ASSAULT- where two counts of serious assault of a police officer with aggravating circumstance- whether spitting was deliberate or with reckless indifference to the foreseeable consequences of his act- whether the defendant deliberately yelled so as to project spittle- where not satisfied beyond reasonable doubt that the defendant’s actions were deliberate or with a reckless indifference to the foreseeable consequences of his actions.
COUNSEL:	Ms E Kelso for the Crown Mr J Crowley for the defendant
SOLICITORS:	Office of the Director of Public Prosecutions for the Crown Bosscher Lawyers for the defendant