Shaw v Dunham

[2014] QDC 44

DISTRICT COURT OF QUEENSLAND

CITATION:

Shaw v Dunham [2014] QDC 44

PARTIES:

WILLIAM THOMAS SHAW
(Appellant)

v

MICHAEL ROSS DUNHAM
(Respondent)

FILE NO:

Gladstone D13/13

DIVISION:

Criminal

PROCEEDING:

Appellate

ORIGINATING COURT:

Gladstone

DELIVERED ON:

10 March 2014

DELIVERED AT:

Rockhampton

HEARING DATE:

25 February 2014

JUDGE:

Smith DCJ

ORDER:

1.   Appeal allowed.

2.   The conviction is set aside and the Appellant is found not guilty.

CATCHWORDS:

CRIMINAL LAW – DEFENCES – provocation – defence of prevention of repetition of insult

Criminal Code 1899 (Q) ss 268,269,270,271

Justices Act 1886 (Q) ss 158, 158A, 222, 223, 232

Doney v R (1990) 171 CLR 207

Fox v Percy (2003) 214 CLR 118

R v Major [2013] QCA 114

Stevenson v Yasso  [2006] 2 Qd. R. 150

Stingel v R (1990) 171 CLR 312

COUNSEL:

Mr R. Byrnes counsel for the Appellant

Ms. C. Hurley counsel for the Respondent

SOLICITORS:

VAJ Byrne Lawyers for the Appellant

Office of the Director of Public Prosecutions for the Respondent

Introduction

1. This is an appeal pursuant to s 222 of the Justices Act 1886 (Q) (“JA”).  An appeal under this section is by way of re-hearing on the evidence given before the learned Magistrate.[1]  The court is required to conduct a real review of the trial and the learned Magistrate’s reasons.  In doing so the court should give due deference and attach a good deal of weight to the views of the learned Magistrate, but it remains for the appellate court to draw its own conclusions on the evidence.[2] 

   [1]s 223(1) Justices Act 1886 (Q).

   [2]Stevenson v Yasso [2006] 2 Qd R 150 at 162 at [36]

The charge

1. On 1 October 2013 the Appellant was convicted of common assault on Shaun David Tull which offence was alleged to have occurred on 27 December 2012. The court did not record a conviction and ordered pursuant to s 19(1)(d) of the Penalties and Sentences Act 1992 (Q) that he be released upon entering into a recognisance in the sum of $600 to be of good behaviour for a period 12 months.

1. Originally he was charged with assault occasioning bodily harm but the learned Magistrate amended the charge to one of common assault.

Grounds of appeal

1. The grounds of appeal are as follows:

1.            The learned Magistrate erred in finding there was a lack of evidence to support the defence of prevention of repetition of insult.

2.            The learned Magistrate failed to have regard to all the evidence raised with respect to the defence of provocation.

3.            The learned Magistrate erred in fact and in law in finding that the defence of provocation had been negatived having regard to all of the evidence.

4.            The learned Magistrate erred in misdirecting himself with respect to the defence of provocation in finding that the circumstances would set a dangerous precedent.

5.            The learned Magistrate erred in misdirecting himself on the question of self defence.

6.            The learned Magistrate otherwise erred in fact and in law in…