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  • Unreported Judgment

Young v Pollard; ex parte Young


[1977] FC 43


O.S.C. No. 34 of 1977



The Chief Justice

Mr. Justice Matthews

Mr. Justice Kelly


(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.)





Ex parte: William James Young


MR. JUSTICE KELLY: This is an order to review the decision of a stipendiary magistrate on a charge of assault occasioning bodily harm in which he found the charge proved but did not record a conviction against the respondent.

The charge arose out of an altercation which took place at a service station conducted by the respondent. The respondent and his wife were separated and on the morning in question the wife accompanied by a man named Griffiths and his wife came to the service station for the purpose of the respondent's wife availing herself of access to her two children which she had been granted by an order of the Family Court.

Both Griffiths and Mrs. Pollard gave evidence of the events which occurred after their arrival at the service station and the magistrate accepted their evidence that the respondent did commit an assault as charged. The effect of the evidence of Griffiths was that when he and Mrs. Pollard walked into the service station the respondent ordered them off the premises. Griffiths turned to Mrs. Pollard and then received a blow to the left-hand side of the face. He then saw the respondent lash out with his left foot which caught him on the right side of the abdomen and he went down to his knees. As he was rising off the floor, he said that the respondent came towards him with a knife in his right hand, he put his left arm around Griffiths' neck and Griffiths felt a stab above the left eye and felt what appeared to be fingers poked into his eyes. In pushing the respondent's arms over his head Griffiths received a cut about 50 centimetres long inside his left thumb and he said that the knife was dropped on the floor. The respondent continued to throw punches at Griffiths who backed away towards his vehicle in the driveway. After a further struggle the respondent was restrained by a man who had come on the scene and Griffiths drove away. He subsequently saw a doctor and had four stitches inserted in the cut near his left eye. He said his right thumb was swollen, his left thumb was lacerated, he felt pain around the neck, and both his eyes and the top of his head were bruised. Mrs. Pollard saw the initial blow by the respondent but did not observe the whole of what took place as she went to speak to Mrs. Griffiths who was some short distance away. There was also evidence from two independent witnesses who saw what apparently was the latter part of what took place. It appears that the magistrate was not satisfied that a knife was used and this Court would necessarily proceed on that basis.

In not recording a conviction although he found the charge proved the magistrate acted under section 657A of the Criminal Code. This section empowers the Court without recording a conviction to make an order discharging an offender either absolutely or conditionally upon his entering into a recognisance to be of good behaviour and to appear for conviction and sentence when called upon in cases where having regard to the matters set out in the section the Court thinks that it is not expedient to inflict any punishment or any punishment other than a nominal punishment. Among the matters to which the Court is to have regard are the trivial nature of the offence and the extenuating circumstances under which the offence was committed.

The nature of the assault was such that it could not possibly be regarded as being of a trivial nature and there is nothing in the circumstances in which it was committed which could be considered extenuating. This was therefore not a proper case for the application of section 657A and in acting under it the magistrate failed properly to exercise the discretion reposed in him. In my view this Court may therefore intervene. The respondent should be convicted of the offence with which he was charged. I would not consider this to be a case for probation and he should be dealt with under section 19(9) of the Criminal Code.

An application was made to the magistrate under section 685A of the Criminal Code for an order for the payment of compensation to Griffiths. The magistrate dismissed the application stating that he did not think it appropriate as it was a domestic situation. So far as Griffiths was concerned it was not a domestic situation and I would not consider that to be a proper basis on which to refuse to make an order. If the respondent is now convicted, an order could be made under section 685A and in my opinion the proper course would be to remit the matter to the magistrate so that he may give further consideration to this application.

I would therefore consider that the order to review should be made absolute, the orders of the magistrate set aside and in lieu thereof the respondent be convicted of the offence and discharged upon his entering into his own recognisance in the sum of $100 conditioned that he shall appear at the Magistrates Court at Cleveland and receive judgment on this conviction if called upon within six months from today and that he shall in the meantime keep the peace and be of good behaviour. The application under Section 685A of the Criminal Code should be remitted to the magistrate to enter all necessary adjournments and to determine the matter according to law.

THE CHIEF JUSTICE: I agree with the orders proposed by my learned brother and with the reasons which he has delivered.

MR. JUSTICE MATTHEWS: I also agree with the orders proposed and the reasons of my brother Kelly, but I would only add this, that I do not think my brother Kelly intended to say that had there been application of Section 657A it necessarily would follow that an application for compensation under Section 685A could not be heard. I do not think my brother Kelly said anything to be taken to the contrary to the thought that application can be made under the compensation section even where a person is discharged.

MR. JUSTICE KELLY: I might add I considered it unnecessary in the circumstances to deal with the matter which my brother Matthews mentioned.

THE CHIEF JUSTICE: In agreeing with my brother Kelly's reasons, it was my intention to leave that question open.

The order of the court is as follows: the order nisi is made absolute; the order of the stipendiary magistrate that no conviction be recorded is set aside; the respondent is convicted of assault occasioning bodily harm, and the court further orders that he be discharged upon his entering into his own recognisance in the sum of $100 conditioned that he shall appear at the Magistrates Court at Cleveland and receive judgment when called upon within six months from this day and that he shall in the meantime keep the peace and be of good behaviour.

The court orders that the application made to the magistrate for an order for compensation under Section 685A be remitted to the magistrate for further consideration and the court declines to order a certificate in favour of the respondent under the Appeal Fund Costs Act and makes no order as to costs of the appeal.


Editorial Notes

  • Published Case Name:

    William James Young v Peter Paul Pollard

  • Shortened Case Name:

    Young v Pollard; ex parte Young

  • MNC:

    [1977] FC 43

  • Court:


  • Judge(s):

    Wanstall CJ, Matthews J, Kelly J

  • Date:

    21 Oct 1977

Litigation History

No Litigation History

Appeal Status

No Status