R v Mallard and White - [1998] QCA 59

IN THE COURT OF APPEAL	[1998] QCA 059
SUPREME COURT OF QUEENSLAND
Brisbane [R. v. Mallard]

C.A. No. 450 of 1997

THE QUEEN

DONALD ROSS MALLARD

(Applicant) Appellant

[R. v. White]

C.A. No. 452 of 1997

THE QUEEN

DARRYL JOHN WHITE

(Applicant) Appellant
Fitzgerald P.
Davies J.A.
Dowsett J.

Judgment delivered 17 April 1998

Judgment of the Court

IN APPEAL C.A. 450 OF 1997:
(1) APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED,
APPEAL ALLOWED, AND SENTENCE SET ASIDE;
(2) ORDERED IN LIEU THAT THE APPELLANT BE PLACED ON PROBATION FOR
1 YEAR, WITH A REQUIREMENT THAT HE REPORT TO AN AUTHORISED
PERSON IN ALICE SPRINGS AND OTHERWISE ON THE USUAL TERMS AND
CONDITIONS; AND
(3) ORDERED THAT NO CONVICTION BE RECORDED.
IN APPEAL C.A. 452 OF 1997:
(1) APPEAL AGAINST CONVICTION ALLOWED, CONVICTION SET ASIDE, AND
VERDICT OF GUILTY OF COMMON ASSAULT SUBSTITUTED;
(2) APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED, AND
SUBJECT TO WHAT FOLLOWS, APPEAL ALLOWED AND SENTENCE SET ASIDE;
(3) PROVIDED THE APPELLANT CONSENTS, ORDERED THAT THE APPELLANT
BE PLACED ON PROBATION FOR 1 YEAR ON THE USUAL TERMS AND
CONDITIONS; AND
(4) ORDERED THAT NO CONVICTION BE RECORDED.

CATCHWORDS:	CRIMINAL LAW - Assault occasioning bodily harm - Whether conviction unsafe where no evidence that harm was done by acts of the accused, as opposed to unidentified person - Whether appropriate conviction was for common assault.
CRIMINAL LAW - Sentence - Whether sentences manifestly excessive in light of lack of prior relevant convictions - Whether no sentence other than a custodial sentence was appropriate in the circumstances - Penalties and Sentences Act 1992, s.9(4).
Counsel:	Mr J. Hunter for the applicant/appellant, Mallard Mr P. Goodwin for the applicant/appellant, White Mr T. Winn for the respondent
Solicitors:	Legal Aid Queensland for the applicant/appellant, Mallard Millican & Associates for the applicant/appellant, White Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	23 March 1998
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 17 April 1998

On 3 December 1997, the appellant White was acquitted of unlawful wounding but convicted of assault occasioning bodily harm. He was sentenced to imprisonment for two months. His brother, the applicant Mallard, was convicted of common assault, and was also sentenced to two months’ imprisonment. Convictions were recorded. White has appealed against his conviction and applied for leave to appeal against his sentence. Mallard has applied for leave to appeal against his sentence.

The incidents which gave rise to the charges of which White and Mallard were convicted occurred on 16 November 1996. At that time, White was aged 24 years and Mallard was aged 20 years. Neither had any relevant prior criminal offences. Each was released on bail almost immediately after he was sentenced.

White and Mallard were part of a group which went to the “City Rowers” tavern and nightclub. Mallard endeavoured to gain entrance to the nightclub without paying the cover charge. When he was unsuccessful, he was abusive towards a female staff member, and…

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 Mallard and White

Details

AGLC: R v Mallard and White [1998] QCA 59
Case: [1998] QCA 59
Decision Date: 17/04/1998

CaseChat Overview and Summary

In the case of R v Mallard and White, the defendants were charged with assault occasioning bodily harm against a third party. The case was heard and determined in a relevant Australian court. The primary dispute centred on the nature of the injuries sustained by the victim and whether these injuries were a result of the actions of the accused or an unidentified individual.

The court was tasked with deciding whether the convictions of the accused were safe and whether there was sufficient evidence to establish that the bodily harm was caused by the actions of the accused, rather than an unidentified person. Additionally, the court had to consider whether the appropriate conviction for the accused was for common assault, given the circumstances.

The court examined the evidence presented and concluded that there was insufficient evidence to establish that the bodily harm was caused by the actions of the accused. The court found that the injuries could have been caused by an unidentified individual, and there was no evidence to directly link the accused to the infliction of the harm. As a result, the court determined that the convictions were unsafe and that the appropriate conviction for the accused was for common assault. The court's reasoning was grounded in the principle that a conviction must be based on evidence that is sufficient and beyond reasonable doubt, and in this case, the evidence did not meet that standard for assault occasioning bodily harm.

The final orders of the court were to quash the convictions for assault occasioning bodily harm and to substitute convictions for common assault for both defendants. This decision was based on the court's finding that the evidence did not support the more serious charge and that the appropriate conviction, given the circumstances, was for the lesser offence of common assault.

Orders