R v McCarthy

[1992] QCA 203

COURT OF APPEAL [1992] QCA 203

FITZGERALD P
DAVIES JA

DEMACK J

CA NO 64 of 1992

THE QUEEN

v.

GARY CHARLES McCARTHY	(Appellant)
BRISBANE
.. DATE 1/6/92 JUDGMENT

1

THE PRESIDENT: The appellant has appealed against his

conviction in the Magistrates Court at Innisfail on 4 February

1992 for an offence of assault occasioning bodily harm on 15

November 1991. The ground of appeal which has been argued is

that the verdict was unsafe and unsatisfactory.

The charge arose out of an altercation in the public bar at a

hotel in Innisfail. A number of witnesses were called

including the complainant, the complainant's wife, a friend of

the complainant who was present at the time, the appellant,

and a friend with whom the appellant had been drinking in the

hotel for a considerable period. There was undoubtedly

evidence upon which the Magistrate could make the findings
which he did which supported his conclusion that the appellant
was guilty of the offence with which he was charged. While

that does not of itself mean that the verdict of the

Magistrate was not unsafe or unsatisfactory, the analysis of

the evidence made in the submissions for the appellant does

not justify a conclusion that a reasonable Magistrate ought to

have had a reasonable doubt and therefore acquitted the

appellant. Not surprisingly, there are inconsistencies in the
various versions of the events which occurred, including

inconsistencies between the evidence of the complainant and

the witnesses who supported him. Further, there were

inconsistencies between the evidence of the complainant's wife

and the evidence of his friend. Additionally, in some

respects, each of the complainant, his wife and friend had

2

internal inconsistencies in his or her evidence.

The major point stressed for the appellant was that the evidence of the complainant' s friend, whom the Magistrate found corroborated the complainant on an important point, did

not really do so, at least not reliably. Criticisms of the
evidence of the complainant's friend as unclear, equivocal and

involving inconsistencies and on the basis that it emerged for

the first time in cross-examination were all available to be

made. On the other hand, as was pointed out by the
respondent, the cross-examination of the witness did not seek

to challenge what he said on the point. It was open for the

Magistrate to conclude as he did that the witness supported

the complainant on the material issue. The quality of the

evidence against the appellant was not such that the

Magistrate could not assess the credibility, reliability and

substantive effect of the evidence of the various witnesses,
accept the evidence which he did or make the findings which

led to the appellant's conviction. That being so and there

being no other reason to doubt the conclusions at which the

Magistrate arrived, there is no basis upon which this Court

should interfere.

Accordingly, the appeal should be dismissed.

DAVIES JA: I agree.

DEMACK J: I agree.

3

THE PRESIDENT: The appeal is dismissed.

-----
4