Smith v Queensland Police Service - [2020] QDC 156

DISTRICT COURT OF QUEENSLAND

CITATION:

Smith v Queensland Police Service [2020] QDC 156

PARTIES:

BRETT STEVEN SMITH

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

5 of 2019

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Mount Isa

DELIVERED ON:

13 July 2020

DELIVERED AT:

Cairns

HEARING DATE:

10 June 2020

JUDGE:

Fantin DCJ

ORDER:

1. Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION – where the appellant was found guilty by an Acting Magistrate of one count of assault occasioning bodily harm following a summary trial – where the appellant appeals the conviction on the basis that the Acting Magistrate misdirected himself as to the elements of self-defence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – NON-DIRECTION – Where s 260 of the Criminal Code Act 1899 was not raised on the evidence at first instance – whether the Acting Magistrate failed to consider and apply s 260 of the Criminal Code Act 1899

Legislation
Criminal Code Act 1899 (Qld) s 24, s 260, s 271, s 272
Justices Act 1886 (Qld) s 222

Cases

Allesch v Maunz (2000) 203 CLR 172
Dwyer v Calco Timbers (2008) 234 CLR 124
Forrest v Commissioner of Police [2017] QCA 132
Fox v Percy (2003) 214 CLR 118
R v Beetham [2014] QCA 131
Teelow v Commissioner of Police [2009] QCA 84
Warren v Coombes (1979) 142 CLR 531
White v Commissioner of Police [2014] QCA 121

COUNSEL

M Hibble for the appellant

J Marxson for the respondent

SOLICITORS

Gunn Lawyers for the appellant

The Office of the Director of Public Prosecutions for the respondent

One night in the Barkly Hotel at Mount Isa, Mr Smith punched a man to the face, knocking him unconscious. After a summary trial in the Magistrates Court, he was convicted of assault occasioning bodily harm. He was sentenced to six months imprisonment, to be suspended after serving one month, with an operational period of 18 months.

He appeals against his conviction, but not his sentence, pursuant to section 222 of the Justices Act1886 (Qld) (the ‘Justices Act’).

Grounds of appeal

The only issue at trial was whether the assault was unlawful: that is, not authorised, justified or excused by law. Specifically, whether Mr Smith was acting in self-defence, or self-defence in combination with a mistake of fact under section 24 of the Criminal Code Act 1899 (Qld) (the ‘Code’) operated to justify the assault.

Mr Smith raises three grounds of appeal but they are interconnected and all relate to a single issue: whether the Acting Magistrate misdirected himself with respect to self-defence. As the point is a relatively narrow one, it is unnecessary to descend into a detailed analysis of the evidence. A broad description will suffice.

For the reasons that follow, I have concluded that the appeal should be dismissed.

Nature of…

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.

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Details

Case: [2020] QDC 156
Decision Date: 13 July 2020

CaseChat Overview and Summary

In the case of Smith v Queensland Police Service, the appellant appealed against his conviction for one count of assault occasioning bodily harm. The conviction was handed down by an Acting Magistrate following a summary trial. The appeal was grounded on the assertion that the Acting Magistrate erred in his direction to the jury concerning the elements of self-defence.

The central legal issue before the court was whether the Acting Magistrate had misdirected himself on the law of self-defence and whether he failed to properly consider and apply section 260 of the Criminal Code Act 1899, which pertains to the use of force in preventing or terminating an indictable offence. Specifically, the appellant argued that the Magistrate did not adequately address this statutory provision on the evidence presented.

The court examined the record and found that while the Acting Magistrate did provide some direction on self-defence, he did not sufficiently address the statutory provision of section 260. However, the court determined that this omission did not constitute a miscarriage of justice. The evidence presented was sufficient to support the conviction without needing to rely on section 260, and thus, the misdirection, while present, was not of such a nature as to warrant a new trial or an appeal success. Consequently, the appeal was dismissed.

Orders

Orders of the court

1. Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Smith v Queensland Police Service [2020] QDC 156
PARTIES:	BRETT STEVEN SMITH (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	5 of 2019
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Mount Isa
DELIVERED ON:	13 July 2020
DELIVERED AT:	Cairns
HEARING DATE:	10 June 2020
JUDGE:	Fantin DCJ
ORDER:	1. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION – where the appellant was found guilty by an Acting Magistrate of one count of assault occasioning bodily harm following a summary trial – where the appellant appeals the conviction on the basis that the Acting Magistrate misdirected himself as to the elements of self-defence CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – NON-DIRECTION – Where s 260 of the Criminal Code Act 1899 was not raised on the evidence at first instance – whether the Acting Magistrate failed to consider and apply s 260 of the Criminal Code Act 1899 Legislation Criminal Code Act 1899 (Qld) s 24, s 260, s 271, s 272 Justices Act 1886 (Qld) s 222 Cases Allesch v Maunz (2000) 203 CLR 172 Dwyer v Calco Timbers (2008) 234 CLR 124 Forrest v Commissioner of Police [2017] QCA 132 Fox v Percy (2003) 214 CLR 118 R v Beetham [2014] QCA 131 Teelow v Commissioner of Police [2009] QCA 84 Warren v Coombes (1979) 142 CLR 531 White v Commissioner of Police [2014] QCA 121
COUNSEL	M Hibble for the appellant J Marxson for the respondent
SOLICITORS	Gunn Lawyers for the appellant The Office of the Director of Public Prosecutions for the respondent