Upton v Cowling

[2002] FCAFC 134

FEDERAL COURT OF AUSTRALIA

Upton v Cowling [2002] FCAFC 134

CRIMINAL LAW – onus of proof – proof of elements of the offence - whether correctly applied – defences – where defence not suggested on the evidence before the tribunal – whether tribunal obliged to address defences not raised or suggested during trial

EVIDENCE – fresh evidence – discretion of appeal court to allow the admission of evidence reasonably available prior to trial at first instance – where evidence clearly related to matters before tribunal at first instance

Crimes Act 1900 (ACT) s 556A(1)

HAROLD SCOTT UPTON v MERVYN LAURENCE COWLING

A 74 OF 2001

SPENDER, O’LOUGHLIN & DOWSETT JJ
16 MAY 2002
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 74 OF 2001

ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	HAROLD SCOTT UPTON APPELLANT
AND:	MERVYN LAURENCE COWLING RESPONDENT
JUDGES:	SPENDER, O’LOUGHLIN & DOWSETT JJ
DATE OF ORDER:	16 MAY 2002
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of and incidental to the appeal, to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 74 OF 2001

ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	HAROLD SCOTT UPTON APPELLANT
AND:	MERVYN LAURENCE COWLING RESPONDENT

JUDGES:	SPENDER, O’LOUGHLIN & DOWSETT JJ
DATE:	16 MAY 2002
PLACE:	CANBERRA

REASONS FOR JUDGMENT

SPENDER J:

1. I agree with the reasons of Dowsett J.

   O’LOUGHLIN J:

2. I also agree.

   DOWSETT J:

3. On 6 March 2001, a Magistrate sitting in the ACT Magistrates Court found that a charge of assault against the appellant was proven but, without proceeding to conviction, ordered, pursuant to s 556A(1) of the Crimes Act 1900 (ACT) that the appellant be discharged upon giving security in his own recognisance in the sum of $5000 that he would be of good behaviour for a period of six months and that he pay court costs and a criminal injuries levy in the sum of $100. From that decision, he appealed to the Supreme Court of the Australian Capital Territory where the appeal was heard by Miles CJ. His Honour dismissed the appeal, and the appellant now appeals to this Court from that decision. The relevant evidence appears in pars [8] – [14] of the reasons given by Miles CJ in dismissing the appeal as follows:

   “[8]The following is a summary of the evidence before the Magistrate.  However, it must be emphasised that, despite the brevity of the events in question, they were the subject of much detailed evidence which in turn has been the subject of much dissection and analysis.  Not surprisingly, the evidence of the various witnesses can be shown to contain discrepancies, omissions and conflicts.

   [9]The appellant was in the business of storing and selling fireworks at a shop in…