R v Wade - [1996] QCA 225

COURT OF APPEAL

[1996] QCA 225

McPHERSON JA
DAVIES JA
DEMACK J

CA No 139 of 1996

THE QUEEN

JASON BARRY WADE

BRISBANE

..DATE 12/06/96

JUDGMENT

DAVIES JA: This is an appeal against conviction and an application for leave to appeal against sentence. The conviction was one of assault occasioning bodily harm and the sentence was one of six months imprisonment suspended after two months for an operational period of two years.

They arose out of events which occurred in and in the vicinity of Casey's Night Club at Bundaberg on the night of 2 June 1995. On that night Mark Karl Span was at the night club with his girlfriend Karen Lee Cooper. Prior to going to the night club he had consumed three or four stubbies of Powers heavy beer and at the night club he consumed a further or five stubbies. That was his own evidence as to his alcohol consumption. There was no contradictory evidence and there was no reason to disbelieve it.

It follows in my view that, prior to the disputed events giving rise to the appellant's conviction, Mr Span was drunk. Possibly at least partly because of this condition he just decided to discuss with the night club owner an unpleasant event which had involved the latter, Mr Span's father and possibly Mr Span. Whether this discussion included Mr Span abusing the night club owner, as the latter said it did, is of no great importance. It is common ground that three or possibly four security officers employed by the night club, commonly called bouncers, then ejected Mr Span from the night club. It is common ground also between the opposing groups of witnesses that Mr Span was thrown, or placed in a position outside the night club, where he was on his knees on the ground.
Mr Span himself was unable to say with any clarity as to what occurred then or even immediately before then. However, there were as I have said two opposing groups of witnesses as to what then occurred. On the one hand there was Mr Span's friend Ms Cooper and a Mr Bannerman a taxi driver who was sitting in his taxi at a rank opposite the night club. On the other, there was the appellant and two other security officers, Mr Horvatic and Mr Blevens. Not surprisingly there are inconsistencies between the evidence of Ms Cooper and Mr Bannerman, as there almost always are when two witnesses attempt to give their honest recollection of the same event.

There was a much closer correlation between the opposing evidence of the appellant, Mr Horvatic and Mr Blevens which led the learned Magistrate to think that they had together concocted a story. However, the learned Magistrate before reaching that point understandably took the view that the most independent and consequently the most reliable evidence of what occurred outside the night club was that of Mr Bannerman who said he saw one of the doormen as he called them…

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 Wade

Details

AGLC: R v Wade [1996] QCA 225
Case: [1996] QCA 225
Decision Date: 12 June 1996

CaseChat Overview and Summary

In the case of R v Wade, the defendant, Jason Barry Wade, appealed against his conviction for assault occasioning bodily harm and applied for leave to appeal against his sentence. The case was heard by the Queensland Court of Appeal, comprising McPherson J, Davies JA, and Demack J. The conviction arose from an incident outside Casey's Night Club in Bundaberg on 2 June 1995, where Wade was involved in an altercation with Mark Karl Span. The dispute centred on whether Wade had assaulted Span by kicking and punching him while he was on the ground, or if Wade had acted in self-defence. Two conflicting versions of events were presented: one from Mark Span and a taxi driver, and another from Wade and two other security officers.

The court had to determine whether the Magistrate's decision was against the evidence and the weight of evidence, and whether the Magistrate properly considered the onus of proof. The appeal against conviction was dismissed as the Magistrate was entitled to accept the evidence of the taxi driver and Mark Span over Wade and the other security officers. The court found that the Magistrate's decision did not involve any error of law or failure to consider the onus of proof. The application for leave to appeal against sentence was also refused, as the sentence imposed was within the range of a sound sentencing discretion.

The Court of Appeal dismissed the appeal against conviction and refused the application for leave to appeal against sentence. The warrant for Wade's imprisonment was ordered to lie in the Registry, and not be executed until a week from the date of the judgment or until further order.

Orders