The Queen v Dowling

[2021] QCA 129

[2021] QCA 129

COURT OF APPEAL

FRASER JA
McMURDO JA
NORTH J

CA No 284 of 2020
DC No 66 of 2019

THE QUEEN

v

DOWLING, Numaka  Appellant/Applicant

TOWNSVILLE

THURSDAY, 10 JUNE 2021

JUDGMENT

THE COURT:  This is the judgment of the Court following a trial in the District Court at Rockhampton on 18 November 2020.  The appellant was convicted of assault occasioning bodily harm whilst armed.  At the time of verdict, the jury returned a special verdict finding that the complainant assaulted the defendant, that the defendant did not provoke the assault, but that the defendant’s use of force was not reasonably necessary.  The appellant was sentenced on 20 November 2020 to imprisonment for 15 months with parole release being fixed after serving six months.

On 18 December 2020 the appellant was granted bail pending appeal, he having spent one month in custody. At the trial it was uncontroversial that self-defence under s 271 of the Criminal Code was raised.  The jury was directed accordingly and also given directions asking for a special verdict.  The appellant appeals on the basis that a miscarriage of justice occurred because of the failure of the learned trial judge to direct the jury on provocation under s 269 of the Code and the defence of prevention of repetition of insult under s 270.  He also seeks leave to appeal against sentence.

As the respondent accepts, both defences mentioned were fairly raised on the whole of the evidence, and the primary judge ought to have left them to the jury.  Consequently, as the respondent also accepts, ground 1 of the amended notice of appeal has been made out and the conviction should be quashed.

In light of the jury’s special verdict and the time the appellant served before being granted bail, the respondent does not intend to further prosecute the matter and has indicated that, in the event of an order being made quashing the conviction, the respondent will enter a nolle prosequi at the next convenient date before the District Court.  In the circumstances, the orders of the Court are:

1. The appeal against conviction be allowed.

2. The conviction be quashed.

3. There be no retrial.