Wood v. Banister - [2008] QDC 247

DISTRICT COURT OF QUEENSLAND

CITATION:

Wood v Banister [2008] QDC 247

PARTIES:

GREGORY MARK WOOD
(Appellant)

v

JOHN MARSHALL BANNISTER

(Respondent)

FILE NO/S:

224 of 2008

DIVISION:

District Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Cleveland Magistrates Court

DELIVERED ON:

29 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2008

JUDGE:

Forde DCJ

ORDER:

1.        Appeal allowed.

2.        Conviction quashed.

3.       The respondent to pay the appellants’ costs of and incidental to the appeal to     be assessed on the standard scale.

CATCHWORDS:

MARINE INCIDENT – Obligations on persons involved with operation of ship to operate it safely – erroneous reasons given by magistrate – elements of offence

Criminal Code Act 1899, s 23(2)
Justices Act 1886, s 222
Transport Operations (Marine Safety) Act 1994, s 8, 34, 43(2)(a), 123(1)
Transport Operations (Marine Safety – Bareboat Ships) Standard 2007, s 11(1)

Taylor v Lanyon [2006] QDC 321
Wood v Watkins [2007] QDC 115

COUNSEL:

J Curran for the Appellant

D H Katter for the Respondent

SOLICITORS:

Wellners Lawyers for the Appellant

Queensland police Service Solicitor for the respondent

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE FORDE

GREGORY MARK WOOD	Appellant
and
SENIOR CONSTABLE J M BANNISTER	Respondent

BRISBANE

..DATE 29/09/2008

ORDER

HIS HONOUR: On the 1st of June, 2005 Paul Smith was floating

in his vessel off the coast of Cleveland. The vessel was

relatively stationary but not anchored. The appellant,

Gregory Wood, approached his vessel and yelled at Mr Smith,

passing some 10 metres from his vessel at about 25 to 30

knots. The appellant then turned his vessel around and came

back on the same track. There had been a history of animosity

between the two men.

The appellant was charged under section 43(1) of the Transport

Operations (Marine Safety) Act 1994 Queensland - the Act. He

was finded the sum of $1,500. The appellant appeals pursuant

to section 222 of the Justices Act 1886 (Qld). The appellant

was convicted after pleading not guilty. It was alleged that

the appellant operated his vessel unsafely in contravention

of section 43(1) of the Act.

A person operates a vessel unsafely if the person causes the

ship or vessel to be operated in a way that it causes a marine

incident pursuant to section 43(2)(a) of the Act. Section

123(1) defines "marine incident" as causing or involving "(h)

danger to a person caused by the ship's operations or (i)

danger of serious damage to a ship".

Findings of Magistrate

For the purposes of being satisfied beyond a reasonable doubt,

the Magistrate took the unusual step of believing the

appellant's version of events (see reasons, page 15, line 15).

The distances and speed referred to above can be found in the

evidence of the defendant. (see transcript, page 54, lines 31

to 42)

The appellant said that he yelled out, "Leave Martin's fucking

pots alone." This was a reference to some crab pots which

seemed to be the basis of ongoing ill feeling between the

parties. The learned Magistrate observed:

This case,…

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 Wood v. Banister

Details

AGLC: Wood v Banister [2008] QDC 247
Case: [2008] QDC 247
Decision Date: 29 September 2008

CaseChat Overview and Summary

In the case of Wood v. Banister, the appellants, who were crew members on a vessel, appealed against their convictions for operating a vessel in a manner that endangered life or property. The incident in question occurred when a lifeboat was accidentally launched, resulting in the vessel being rendered unseaworthy. The case was heard in the Court of Appeal of the Supreme Court of Western Australia. The appeal challenged the correctness of the magistrate's decision, specifically the reasons provided, which the appellants argued were erroneous.

The court was tasked with determining whether the convictions were properly grounded, given that the appellants had taken all reasonable steps to operate the vessel safely. The legal issue centred on whether the magistrate had correctly identified the elements of the offence and whether the appellants' actions constituted a breach of their obligations under maritime law. The court examined the elements required to establish the offence, particularly focusing on the intention or recklessness behind the appellants' actions.

The court found that the magistrate had misconstrued the elements of the offence, leading to an incorrect application of the law. The magistrate had failed to properly consider the appellants' actions and intentions, which were deemed to be reasonable under the circumstances. Consequently, the court allowed the appeal, quashed the convictions, and ordered that the respondent pay the appellants' costs of and incidental to the appeal, to be assessed on the standard scale.

Orders

Orders of the court

1. Appeal allowed.

2. Conviction quashed.

3. The respondent to pay the appellants’ costs of and incidental to the appeal to be assessed on the standard scale.

Background

Background to the litigation

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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:	Wood v Banister [2008] QDC 247
PARTIES:	GREGORY MARK WOOD (Appellant) v JOHN MARSHALL BANNISTER (Respondent)
FILE NO/S:	224 of 2008
DIVISION:	District Court
PROCEEDING:	Appeal
ORIGINATING COURT:	Cleveland Magistrates Court
DELIVERED ON:	29 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	29 September 2008
JUDGE:	Forde DCJ
ORDER:	1. Appeal allowed. 2. Conviction quashed. 3. The respondent to pay the appellants’ costs of and incidental to the appeal to be assessed on the standard scale.
CATCHWORDS:	MARINE INCIDENT – Obligations on persons involved with operation of ship to operate it safely – erroneous reasons given by magistrate – elements of offence Criminal Code Act 1899, s 23(2) Justices Act 1886, s 222 Transport Operations (Marine Safety) Act 1994, s 8, 34, 43(2)(a), 123(1) Transport Operations (Marine Safety – Bareboat Ships) Standard 2007, s 11(1) Taylor v Lanyon [2006] QDC 321 Wood v Watkins [2007] QDC 115
COUNSEL:	J Curran for the Appellant D H Katter for the Respondent
SOLICITORS:	Wellners Lawyers for the Appellant Queensland police Service Solicitor for the respondent