Whiteside v Hall - [2013] QDC 136

DISTRICT COURT OF QUEENSLAND

CITATION:

Whiteside v Hall [2013] QDC 136

PARTIES:

LEWIS WHITESIDE
(First Appellant)
v
SERGEANT G HALL
(Respondent)

and

SALLY MARIE SUMMERSGILL
(Second Appellant)
v
SERGEANT G HALL
(Respondent)

and

STEPHAN JARRETT
(Third Appellant)
v
SERGEANT G HALL
(Respondent)

FILE NO/S:

58 of 2012

59 of 2012

60 of 2012

DIVISION:

Appellate

PROCEEDING:

Appeals s 222 Justices Act 1886

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

21 June 2013

DELIVERED AT:

Cairns

HEARING DATE:

13 September 2012

JUDGE:

Harrison DCJ

ORDER:

That the appeal by the first appellant against conviction and sentence is dismissed.1.

That the appeal by the second appellant against conviction is dismissed but the appeal by her against sentence is upheld. The original sentence is set aside and she is fined the sum of $250.00 to be referred to the State Penalties Enforcement Register and no conviction is recorded.2.

That the appeal by the third appellant against conviction is upheld and both of the convictions against him for obstruction of police in the performance of their duties are set aside.3.

CATCHWORDS:

APPEAL – APPEAL BY WAY OF REHEARING – APPEAL AGAINST CONVICTION – Justice Act 1986 (Qld) s 222 – where appellants convicted of offences of obstruct police and serious assault – whether police acting in execution of their duty or in performance of their duties – where first appellant claims defences of extraordinary emergency, self defence and provocation – whether late amendment of charges prejudiced first appellant – whether third appellant’s actions sustained charges of obstructing police
APPEAL AGAINST SENTENCE – whether sentences imposed were manifestly excessive

LEGISLATION:

Criminal Code ss 25, 269, 271, 340
Justices Act 1886 ss 48, 49, 222
Penalties and Sentences Act 1992 s 12
Police Powers and Responsibilities Act 2000 ss 36, 790(1)
Summary Offences Act 2005 s 6

CASES:

Coleman v Power (2004) 78 ALJR 166
Couchy v Birchley [2005] QDC 334
Mbuzi v Torcetti [2008] QCA 231
Paulger v Hall [2002] QCA 353
R v Conway [2005] QCA 194
R v George (unreported decision of Court of Appeal on 2 November 1999)
R v Kazakoff CA236 of 1998
R v Mathieson [2005] QCA 313
R v Williams CA385 of 1997
R v Wotton (unreported decision of Court of Appeal on 9 September 1999)
Rowe v Kemper (2008) QCA 175

COUNSEL:

P Feeney for the Appellants

RW English for the Respondent

SOLICITORS:

The Law Office for the Appellants

Office of the Director of Public Prosecutions for the Respondent

On the 29^th February 2012 the three appellants, following a conjoint trial in the Magistrates Court at Cairns on the 20^th February 2012 and the 21^st February 2012, were found guilty of the following offences:

First Appellant

1. Public Nuisance Sentenced to one month imprisonment

2. Obstruct Police (Const Ejneberg) Sentenced to one month imprisonment

3. Serious Assault (Sgt Harrold) Sentenced to two months imprisonment

4. Obstruct Police (Const Ejneberg) Sentenced to one month imprisonment

All terms of imprisonment were to be served…

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 Whiteside v Hall

Details

AGLC: Whiteside v Hall [2013] QDC 136
Case: [2013] QDC 136
Decision Date: 21 June 2013

CaseChat Overview and Summary

The appeal against conviction and sentence in the matter of Whiteside v Hall was heard by the Queensland Court of Appeal. The first appellant was convicted of obstructing police and serious assault, while the second and third appellants were convicted of obstructing police. The appellants contested the validity of the convictions and the sentences imposed, arguing that the police were not acting in the execution of their duties, that the first appellant had valid defences of extraordinary emergency, self-defence, and provocation, and that the late amendment of charges prejudiced the first appellant. Additionally, the third appellant argued that his actions did not sustain the charges of obstructing police. The appellants also contended that the sentences imposed were manifestly excessive.

The court considered whether the police were acting in the execution of their duty or in the performance of their duties. The court held that the police were acting in the performance of their duties, and therefore, the convictions for obstructing police were valid. The court also examined the defences raised by the first appellant, finding that none of the defences were established. The court held that the late amendment of charges did not prejudice the first appellant, and the third appellant’s actions did sustain the charges of obstructing police. Finally, the court found that the sentences imposed were not manifestly excessive, except for the second appellant, whose sentence was reduced to a fine of $250.

The appeal by the first appellant against conviction and sentence was dismissed, while the appeal by the second appellant against conviction was dismissed, but the appeal against sentence was upheld. The original sentence was set aside, and the second appellant was fined $250, to be referred to the State Penalties Enforcement Register, and no conviction was recorded. The appeal by the third appellant against conviction was upheld, and both convictions for obstruction of police in the performance of their duties were set aside.

Orders

Orders of the court

That the appeal by the first appellant against conviction and sentence is dismissed.1.

That the appeal by the second appellant against conviction is dismissed but the appeal by her against sentence is upheld. The original sentence is set aside and she is fined the sum of $250.00 to be referred to the State Penalties Enforcement Register and no conviction is recorded.2.

That the appeal by the third appellant against conviction is upheld and both of the convictions against him for obstruction of police in the performance of their duties are set aside.3.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Whiteside v Hall [2013] QDC 136
PARTIES:	LEWIS WHITESIDE (First Appellant) v SERGEANT G HALL (Respondent) and SALLY MARIE SUMMERSGILL (Second Appellant) v SERGEANT G HALL (Respondent) and STEPHAN JARRETT (Third Appellant) v SERGEANT G HALL (Respondent)
FILE NO/S:	58 of 2012 59 of 2012 60 of 2012
DIVISION:	Appellate
PROCEEDING:	Appeals s 222 Justices Act 1886
ORIGINATING COURT:	Magistrates Court, Cairns
DELIVERED ON:	21 June 2013
DELIVERED AT:	Cairns
HEARING DATE:	13 September 2012
JUDGE:	Harrison DCJ
ORDER:	That the appeal by the first appellant against conviction and sentence is dismissed.1. That the appeal by the second appellant against conviction is dismissed but the appeal by her against sentence is upheld. The original sentence is set aside and she is fined the sum of $250.00 to be referred to the State Penalties Enforcement Register and no conviction is recorded.2. That the appeal by the third appellant against conviction is upheld and both of the convictions against him for obstruction of police in the performance of their duties are set aside.3.
CATCHWORDS:	APPEAL – APPEAL BY WAY OF REHEARING – APPEAL AGAINST CONVICTION – Justice Act 1986 (Qld) s 222 – where appellants convicted of offences of obstruct police and serious assault – whether police acting in execution of their duty or in performance of their duties – where first appellant claims defences of extraordinary emergency, self defence and provocation – whether late amendment of charges prejudiced first appellant – whether third appellant’s actions sustained charges of obstructing police APPEAL AGAINST SENTENCE – whether sentences imposed were manifestly excessive
LEGISLATION:	Criminal Code ss 25, 269, 271, 340 Justices Act 1886 ss 48, 49, 222 Penalties and Sentences Act 1992 s 12 Police Powers and Responsibilities Act 2000 ss 36, 790(1) Summary Offences Act 2005 s 6
CASES:	Coleman v Power (2004) 78 ALJR 166 Couchy v Birchley [2005] QDC 334 Mbuzi v Torcetti [2008] QCA 231 Paulger v Hall [2002] QCA 353 R v Conway [2005] QCA 194 R v George (unreported decision of Court of Appeal on 2 November 1999) R v Kazakoff CA236 of 1998 R v Mathieson [2005] QCA 313 R v Williams CA385 of 1997 R v Wotton (unreported decision of Court of Appeal on 9 September 1999) Rowe v Kemper (2008) QCA 175
COUNSEL:	P Feeney for the Appellants RW English for the Respondent
SOLICITORS:	The Law Office for the Appellants Office of the Director of Public Prosecutions for the Respondent

1.	Public Nuisance	Sentenced to one month imprisonment
2.	Obstruct Police (Const Ejneberg)	Sentenced to one month imprisonment
3.	Serious Assault (Sgt Harrold)	Sentenced to two months imprisonment
4.	Obstruct Police (Const Ejneberg)	Sentenced to one month imprisonment
All terms of imprisonment were to be served…