Upton v Cowling - [2001] ACTSC 116

HAROLD SCOTT UPTON v MERVYN LAURENCE COWLING
[2001] ACTSC 116 (30 November 2001)

CATCHWORDS

APPEAL – appeal from finding of offence proved in Magistrates Court – appellant discharged without conviction upon entering into recognizance – appeal on grounds that finding was against weight of evidence and finding was unsafe and unsatisfactory – whether grounds available in appeal from Magistrates Court.

APPEAL – appeal from Magistrate – nature of issues raised in prosecution for assault – accident - whether Magistrate recognised onus of proof on prosecution to negative defence of accident – justification - whether prosecution required to negative justification where justification not relied on by person charged.

APPEAL – appeal from Magistrates Court – advantage of Magistrate in seeing and hearing witnesses.

Crimes Act1900, s 556A(1)
Magistrates Court Act 1930, s 208
Supreme Court Act 1933, s 20

Hocking v Bell (1945) 71 CLR 430
Massey v The Queen [2001] FCA 1558
Kelly v Apps (2000) 98 FCR 101
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306; (1999) 160 ALR 588
Plenty v Dillon (1988) 50 SASR 407
Semayne’s case (1604) 5 Co Rep 91a; 77 ER 194

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 25 of 2001

Judge: Miles CJ
Supreme Court of the ACT
Date: 30 November 2001

IN THE SUPREME COURT OF THE )
) No. SCA 25 of 2001
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:HAROLD SCOTT UPTON
Appellant

AND:MERVYN LAURENCE COWLING
Respondent

ORDER

Judge:  Miles CJ
Date:  30 November 2001
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.
The appellant pay the respondent’s costs of the appeal.

On 6 March 2001 a Magistrate, sitting in the ACT Magistrates Court, found a charge of assault against the appellant proved but, without proceeding to conviction, ordered pursuant to s 556A(1) of the Crimes Act1900 that the appellant be discharged upon giving security by his own recognizance in the sum of $5,000 that he would be of good behaviour for a period of six months, and further that the appellant pay court costs and criminal injuries levy in the sum of $100. This is an appeal against those orders pursuant to s 208(1)(d)(i) of the Magistrates Court Act 1930 (the Magistrates Court Act).

I was not told whether the appellant entered into the recognizance. If he had, the recognizance would have expired before the hearing of the appeal.

The notice of appeal filed on 27 March 2001 contains 20 grounds of appeal and the hearing of the appeal involved lengthy submissions in support of those grounds.

The case provides refutation, if any be needed, that the courts are about dispute resolution. They are not. They are required, in accordance with the judicial oath, to do justice to all according to law. The appellant’s case is that he is entitled to have the adverse finding of an offence proved against him overruled, regardless 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.

Continue reading Upton v Cowling

Details

AGLC: Upton v Cowling [2001] ACTSC 116
Case: [2001] ACTSC 116
Decision Date: 30 November 2001

CaseChat Overview and Summary

Upton, the appellant, appealed against a finding of an offence proven in the Magistrates Court, where he was discharged without conviction after entering into a recognizance. The grounds for appeal were that the finding was against the weight of the evidence and was unsafe and unsatisfactory. The respondent, Cowling, opposed the appeal. The central issue was whether the grounds for appeal were available in this context and if so, whether they were substantiated.

The court considered the nature of the issues raised in the prosecution for assault, particularly the defence of accident. It examined whether the Magistrate correctly recognised the onus of proof on the prosecution to negate the defence of accident. Additionally, it assessed whether the prosecution needed to negate the justification where the accused did not rely on the justification. The court also reflected on the advantage of the Magistrate in seeing and hearing the witnesses, which could impact the weight given to their testimony.

The court found that the grounds for appeal were not substantiated. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal. The reasoning hinged on the balance of probabilities and the evaluation of the evidence presented in court, with the court upholding the decision of the Magistrates Court.

Orders

Orders of the court

The appeal be dismissed.

The appellant pay the respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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