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Del Vecchio v Couchy


[2002] QCA 9








CA No 245 of 2001







DATE 04/02/2002  




THE CHIEF JUSTICE:  On 7 December 2000 the applicant was convicted in the Magistrates Court of having used insulting words in a public place contrary to section 7, subsection (1) paragraph (d) of the Vagrants, Gaming and Other Offences Act 1931.


At about 4.00 a.m. on 21 September in Dickson Street, New Farm, the applicant, in an intoxicated and disoriented state, was approached by the complainant police officer who asked for her name and address.  After initially ignoring the request the applicant said to the complainant police officer the words, "you fucking cunt" or to similar effect.


Having heard evidence and submissions, the Magistrate convicted the applicant and expressed comprehensive reasons for his conclusions.  He sentenced her to three weeks' imprisonment, substantially, it seems, in view of her lengthy record and continued similar offending despite previous non-custodial penalties.


The applicant appealed to the District Court.  Having served seven days of the three week term the applicant was, prior to the hearing of the appeal, released on a recognisance.  The learned District Court Judge dismissed the appeal against conviction, but allowed the appeal against sentence, reducing the sentence to the time actually served, while indicating that he would have been inclined himself to order a community-based order, had he been in the position of the Magistrate.


The learned Judge likewise expressed comprehensive reasons for dismissing the appeal against conviction.  The applicant now seeks leave to appeal, both in respect of conviction and sentence.


As to conviction, both the Magistrate and the District Court Judge applied the correct test, that is, what is objectively considered to be insulting in accordance with contemporary community expectations.  The submission for the applicant was essentially, as I comprehend it, that what the applicant said should have been viewed as no more than uncouth, drunken ranting.  But I believe that even allowing for modern licence, the community would generally still regard the use of the words "you fucking cunt" to a female police officer going about her duty, albeit by a drunken person in the early morning, as insulting.


In this case, it fell to the Magistrate to reach a view on contemporary community expectations, and to that exercise he may be taken to have brought to bear a wide experience of life, including substantial regular contact with many members of the community.


The test to be applied in these cases is clearly established and it was apparently applied.  No sufficient reason has been advanced to warrant, by a grant of leave, this Court's facilitating a second appeal, and what would amount to a third hearing.


As to sentence, the maximum available penalty was six months' imprisonment.  The applicant's past history justified more than a token penalty and there is no sufficient doubt as to the appropriateness of the course taken by the learned District Court Judge to warrant a grant of leave in respect of penalty alone.


The application should, in my view, be dismissed.


McPHERSON JA:  I agree.


DOUGLAS J:  I agree.


THE CHIEF JUSTICE:  The application is dismissed.


Editorial Notes

  • Published Case Name:

    Del Vecchio v Couchy

  • Shortened Case Name:

    Del Vecchio v Couchy

  • MNC:

    [2002] QCA 9

  • Court:


  • Judge(s):

    de Jersey CJ, McPherson JA, Douglas J

  • Date:

    04 Feb 2002

Litigation History

Event Citation or File Date Notes
Primary Judgment - 07 Dec 2000 Conviction of an offence under the Vagrants, Gaming and Other Offences Act 1931.
Primary Judgment - 01 Jan 2001 Appeal against Magistrates Court decision; appeal against conviction dismissed; appeal against sentence allowed.
Appeal Determined (QCA) [2002] QCA 9 04 Feb 2002 Application for leave to appeal against District Court appeal decision on conviction and sentence; application refused: de Jersey CJ, McPherson JA, Douglas J.
Special Leave Refused [2004] HCATrans 520 03 Dec 2004 Special leave refused: Gummow, Callinan and Heydon JJ.

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)