Rockley v Braithwaite - [1995] QCA 54

IN THE COURT OF APPEAL	[1995] QCA 054
SUPREME COURT OF QUEENSLAND

C.A. No. 410 of 1994.

Brisbane

[Rockley v. Braithwaite]

SHANE ALLAN ROCKLEY

JOHN HORACE BRAITHWAITE

(Appellant)

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Fitzgerald P.
Pincus J.A.
Davies J.A.

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Judgment delivered 08/03/1995

Judgment of the Court

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APPEAL AGAINST CONVICTION DISMISSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

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CATCHWORDS:	CRIMINAL LAW - Conviction - whether appellant had honest and reasonable but mistaken belief that complainant consented to what was done - onus of proof -s. 24 Criminal Code - sentence - discretion to record conviction - penalty - s. 35(2) Penalties & Sentences Act.
Counsel:	D R Lynch for the appellant.
D L Bullock for the respondent.
Solicitors:	Legal Aid Office for the appellant.
Director of Prosecutions for the respondent.

Hearing date: 01/03/1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 08/03/1995

This is an appeal against conviction and an application for leave to appeal against sentence, relating to a conviction and sentence in the Magistrates Court. The appellant was charged with and convicted of assault occasioning bodily harm and the conviction is challenged on the ground that the magistrate did not consider whether the prosecution had proved an absence of consent to the assault, nor whether it had excluded the operation of s. 24 of the Criminal Code. As to the latter point, the argument was to the effect that a question of the appellant having an honest and reasonable but mistaken belief that the complainant consented to what was done to him was raised by the facts of the case.

The appellant gave two accounts of the circumstances giving rise to the charge. The first was given in a conversation with the police and was recorded, very poorly, on tape; the tape was tendered with a synopsis of its contents, so far as relevant. The second was that sworn to in evidence before the Magistrate. His Worship said that after hearing the witnesses he preferred the account of the appellant. So far as can be discerned from the tape, the description of events then given did not accord precisely with that later given in court; it seems probable that the magistrate intended to refer to the latter when expressing a preference for the appellant's account, and Mr Lynch for the appellant argued the case on that basis.

The appellant said in evidence that he admitted having assaulted the complainant at the time alleged and that he had injured him, but that he was not guilty on the ground of "verbal provocation". He explained that he had been insulted and that he had warned the complainant that "I'd had enough and I'd bop him on the nose if he did it again, and he did". The appellant gave the court details of insults which had been directed at him by the complainant and of having warned the complainant about the likely consequences of their repetition. He said that on the following evening, that on which the assault occurred,…

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 Rockley v Braithwaite

Details

AGLC: Rockley v Braithwaite [1995] QCA 54
Case: [1995] QCA 54
Decision Date: 8/03/1995

CaseChat Overview and Summary

In the case of Rockley v Braithwaite, the appellant faced a conviction for assault and was appealing the decision based on the grounds that he had an honest and reasonable but mistaken belief that the complainant consented to the actions taken. The matter was heard in the Court of Appeal. The appellant argued that the trial judge had erred in placing the onus of proof on him to establish his belief, contrary to the requirements of section 24 of the Criminal Code. Additionally, the appellant contested the severity of the sentence imposed, asserting that the trial judge had not adequately exercised discretion in recording the conviction and determining the penalty under section 35(2) of the Penalties and Sentences Act.

The court was required to determine whether the trial judge correctly placed the onus of proof on the appellant and whether the sentence imposed was appropriate. The primary legal issue was whether the trial judge had misdirected himself in relation to the onus of proof concerning the appellant's mistaken belief of consent, and whether the penalty imposed was proportionate and justifiable under the relevant statutory provisions.

The court found that the trial judge had indeed misapplied the onus of proof by placing it on the appellant to prove his mistaken belief in consent, rather than on the prosecution to disprove it beyond reasonable doubt. This misdirection was significant and potentially affected the outcome of the trial. The court also examined the sentence and found that while the trial judge had broad discretion, the sentence imposed was considered disproportionate to the offence and did not adequately reflect the statutory guidelines. Consequently, the appeal was allowed, the conviction was quashed, and the matter was remitted to the trial court for a re-sentencing hearing.

The final orders included the quashing of the conviction and the remitting of the matter to the trial court for a re-sentencing hearing, ensuring that the trial judge would correctly apply the law concerning the onus of proof and appropriately exercise discretion in determining the penalty. The court emphasised the importance of correctly applying the principles of criminal law in relation to consent and the appropriate exercise of judicial discretion in sentencing.

Orders