R v Punch

[1992] QCA 206

COURT OF APPEAL [1992] QCA 206

FITZGERALD P
DAVIES JA

DEMACK J

CA NO 90 of 1992

THE QUEEN

v.

SHANE WILLIAM PUNCH (Appellant)

BRISBANE

.. DATE 1/6/92

JUDGMENT

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JUDGMENT

DAVIES JA: On 19 February 1992 the appellant was found guilty

after trial in the Children's Court of Brisbane of the offence
of assault occasioning bodily harm on 22 November 1991. No
conviction was recorded in respect of the offence or another
offence of which the appellant was found guilty on his own

plea of assault occasioning bodily harm on 26 November 1991.

The appellant was committed to the care and control of the

Director General for six months and ordered to pay a total of

$400 in restitution and allowed time to pay. The appellant

appealed against the verdict of guilty in respect of the first

offence.

Two other persons were involved in a fight with one on top of

the other. On the version of events most favourable to the

appellant, the person who was on top in the altercation was

punching and perhaps head-butting the other person on the

ground. The appellant intervened at the instigation of other

persons, grabbed the person on top in the fight by the hair,

pulled his head back and punched him in the mouth with a

single forceful blow causing injury requiring sutures.

The Magistrate who found the appellant guilty considered and

rejected possible defences under a number of provisions of the
Code: subs 31 (3), the provision of actual unlawful violence,
s 260, preventing a continuous breach of the peace, and s 273,

aiding and self-defence.

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The Magistrate found that the action of the appellant was not

reasonably necessary and that the degree of force employed by

the appellant was not reasonable. The appellant contends that

it is by no means clear that if the proper onus of proof and

standard of proof had been applied, the same conclusion would

have been arrived at. According to the appellant, the

Magistrate gave no indication that he understood that the

prosecution must negative each defence beyond reasonable

doubt, including the issue of reasonableness of the force. It

plain from the reasons given by the Magistrate for his

decision that he was aware that the prosecution brought the

onus of proof and the standard of proof was beyond reasonable

doubt. Indeed, he expressly said so even if he did not repeat

those statements when he discussed the various defences raised

by the appellant. Further, the factual conclusions at which

he arrived were plainly correct on the findings which he made

which were fully supported by the evidence. The appellant's
own evidence that there was no reason why he could not have
simply dragged the top person away and the absence of evidence

to the contrary negatived any possible inference that the

appellant's conduct was reasonable or that the force thereby

used was reasonably necessary.

The appellant's other submission is that, as a 16-year-old

boy, the appellant might have mistakenly but reasonably

believed that a slightly greater force was necessary and a

subsequent objective assessment might reveal that,

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accordingly, the Magistrate should have considered each

defence in the context of s 24 of the Criminal Code. While it

may not always be a complete answer to this submission that

the Magistrate was not asked to have regard to s 24 of the

Code, there is absolutely no evidence which provides any basis

for the application of s 24 in this matter and the submission

sits uneasily with the appellant's evidence that there was no
reason why he could not have simply pulled the person on top

from the other person to end the altercation. There was no

evidence on which it could have been inferred that his belief

in that respect was any different at the time of his action

and his own evidence proves the unreasonableness of any

different belief.

There is no reason shown for the Court to interfere and the

appeal should be dismissed.

The order is appeal dismissed.

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