Rykiert v Maddock - [2003] QDC 529

DISTRICT COURT OF QUEENSLAND

CITATION:

Rykiert v Maddock [2003] QDC 529

PARTIES:

HENRY VICTOR RYKIERT
Appellant
v
SENIOR CONSTABLE JACK MADDOCK
Respondent

FILE NO:

D1099 of 2003

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

5 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2003

JUDGE:

Skoien SJDC

ORDER:

The appeal is allowed. The conviction and penalty are set aside.

CATCHWORDS:

COUNSEL:

Mr J Wilkin for Appellant

Mr J Godbolt for Respondent

SOLICITORS:

James White, Lawyers for the Appellant

Director of Public Prosecutions for the Respondent

On 14 January 2003 the appellant was convicted by the Inala Magistrates Court following a summary trial of one offence of assault occasioning bodily harm on 17 May 2000. The appellant was sentenced to six months imprisonment, wholly suspended for an operational period of two years. In addition the appellant was ordered to pay within six months a total of $1220 compensation to the complainant. Periods of imprisonment totalling twenty-five days were ordered to be served in default of payment. A conviction was recorded.

The appellant appealed by notice dated 13 February 2003 against the conviction on the following grounds:-

(1) That the learned magistrate erred when she misdirected herself as to “fresh complaint”;

(2) That the learned Magistrate erred when making a factual determination on the relevance of the evidence of Neville Shipley;

(3) That the learned magistrate erred when she found the injuries of the complainant supported the complainant’s version of events.

The Facts

The complainant gave evidence that he and the appellant owned neighbouring businesses at Moorooka and there was a continuing dispute between them about a tree on the complainant’s footpath. He told the court that in the morning of 17 May 2000 he witnessed the appellant destroying the tree and went to speak to him about it. The appellant was standing on the footpath talking to Neville and Gary Shipley, men who worked at a nearby business. The complainant approached him and confronted him about the tree from a distance of about 25 feet. He said the appellant adopted a fighting stance and told the complainant he would fight him. He said the appellant then came towards him and assaulted him. The assault consisted first of three punches (two to the face and one to the stomach) after which the complainant fell to his knees. The appellant then kicked him in the ribs. The complainant fell to the ground and was kicked in the tailbone and the face and, it seems, twice more. The kicks were heavy, the appellant wearing rubber work boots. The appellant verbally abused him during the assault. He said the appellant then pulled him up by the shirt and told him to leave. The complainant said he made his way to his car, drove to his other business premises and sought medical attention.

Dr Robert Cardwell gave evidence that he examined the complainant at the Princess Alexandra Hospital on 17 May 2000. The complainant exhibited tenderness on the left side of his rib cage…

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 Rykiert v Maddock

Details

AGLC: Rykiert v Maddock [2003] QDC 529
Case: [2003] QDC 529
Decision Date: 05 December 2003

CaseChat Overview and Summary

Henry Victor Rykiert appealed against his conviction by the Inala Magistrates Court of one offence of assault occasioning bodily harm on 17 May 2000. The appellant was sentenced to six months imprisonment, wholly suspended for an operational period of two years. In addition, the appellant was ordered to pay within six months a total of $1220 compensation to the complainant. Periods of imprisonment totalling twenty-five days were ordered to be served in default of payment. The appellant appealed against the conviction on three grounds. Firstly, that the learned magistrate erred when she misdirected herself as to "fresh complaint". Secondly, that the learned magistrate erred when making a factual determination on the relevance of the evidence of Neville Shipley. Thirdly, that the learned magistrate erred when she found the injuries of the complainant supported the complainant's version of events.

The appeal court found that the third ground had no substance. The evidence of physical damage did not corroborate all of the punches and kicks of which the complainant gave evidence. However, there were possible explanations for that, consistent with the complainant having told the truth. Some of the blows may not have been as heavy as he described them; any consequent tenderness, swelling or discoloration may not have developed by the time the doctor saw the complainant. The medical evidence was corroborative of at least two punches or kicks, one to the chest, one to the head and Her Worship could correctly act upon that consistency.

The appeal court found that the first ground had substance. The appeal court found that the learned magistrate made an improper use of evidence of the complaint as corroborative of the complainant both as to the fact of the assault and, more cogently, of the identity of the assailant. That was a critical error which could not be allowed to stand and must lead to the appeal being allowed.

The appeal court found that the second ground had substance. The appeal court found that the learned magistrate failed to use or palpably misused the advantage of seeing and hearing the witnesses. When a clear conflict relating to the evidence of a witness on a material point was revealed, the tribunal must face the conflict and resolve it. The learned magistrate simply did not come to terms with the conflict, other than the very gentle hint that she might not find Shipley to be honest. But if that were the case she should have said why.

The appeal was allowed. The conviction and penalty were set aside.

Orders