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  • Unreported Judgment

Hickman v Queensland Police Service

 

[2019] QDC 221

DISTRICT COURT OF QUEENSLAND

CITATION:

Hickman v Queensland Police Service [2019] QDC 221

PARTIES:

ROBERT PAUL HICKMAN

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

APPEAL NO: 136 of 2019

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

6 November 2019

DELIVERED AT:

Cairns

HEARING DATE:

30 October 2019

JUDGE:

Morzone QC DCJ

ORDER:

  1. Appeal allowed.
  2. The conviction, sentence and orders of the Magistrates Court in Cairns on 3 July 2019 are set aside, and substituted with the following verdicts and orders:
    1. Verdict for Charge 1 of Assault - “Not Guilty”;
    2. Verdict for Charge 2 of Assault - “Not Guilty; and
    3. The appellant is discharged in respect of both charges.

CATCHWORDS:

CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - conviction – assault – mode of hearing of appeal – error of law – witness credit – whether conviction unreasonable and unsupported – whether sentence manifestly excessive.

Legislation

Justices Act 1886 (Qld) s 222, s 223(1) & 227Penalties and Sentences Act 1992 (Qld) s 16, s 19 (1) (a).

Cases

Allesch v Maunz (2000) 203 CLR 17.

Chidiac v R (1991) 171 CLR 432. 

Devries v Australian National Railways Commission (1993) 177 CLR 472; 479.

Dwyer v Calco Timbers (2008) 234 CLR 124.

Forrest v Commissioner of Police [2017] QCA 132, 5.

Fox v Percy (2003) 214 CLR 118.

Knight v R (1992) 175 CLR 495.

McDonald v Queensland Police Service [2017] QCA 255.

Morris v R (1987) 163 CLR 454

Teelow v Commissioner of Police [2009] QCA 84.

Warren v Coombes (1979) 142 CLR 531.

White v Commissioner of Police [2014] QCA 121.

Whitehorn v R (1983) 152 CLR 657, 687.

SOLICITORS:

Mellick & Smith for the appellant

The Office of Director of Public Prosecutions for the Respondent

  1. [1]
    On 3 July 2019, the appellant was convicted after a summary trial in the Magistrates Court held in Cairns, of two charges of common assault arising out of a minor neighbourhood dispute, and was sentenced to a three month good behaviour bond with a recognisance of $300.00 for each charge.
  1. [2]
    The appellant now appeals his conviction.
  1. [3]
    Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered.

Background

  1. [4]
    The summary trial provided on 3 July 2019.
  1. [5]
    After opening the case, the prosecution witnesses comprised of Constable Gibson; James Harold Blue (father of female complainant); Jasmine Heather Skye Blue (female complainant); and Lowane Tufuga (male complainant).
  1. [6]
    During the hearing the following Exhibits were tendered:
  1. Exhibit 1 – Written Particulars;
  1. Exhibit 2  - CD of footage from female complainant’s Mobile phone; and
  1. Exhibit 3 – CD of footage from Danielle Crowther’s Mobile phone.
  1. [7]
    The learned magistrate apparently accepted the allegation that in the late afternoon of 07 January 2019 the appellant was using a garden hose, he assaulted each of them by spraying water at them over the common boundary fence.  His Honour rejected the defence of intention-motive pursuant to s 23 of the Criminal Code (which is not pressed on appeal).
  1. [8]
    Accordingly, the learned magistrate found the appellant Guilty in respect of each charge of Common Assault and sentenced the appellant as follows:
  1. Convicted the appellant;
  1. Did Not Record Convictions against the appellant; and
  1. Placed the appellant on a Good Behaviour for 3 months with a Recognisance of $300.00 pursuant to Section 31 of the Penalties and Sentences Act 1999 (Qld) in respect of each Charge.

Grounds of Appeal

  1. [9]
    The appellant appeals against the conviction in reliance on the ground the findings of Guilty in relation to each charge were unreasonable, or cannot be supported having regard to the evidence, and the sentence imposed was manifestly excessive.

Mode of Appeal

  1. [10]
    The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).  Section 222(1) relevantly provides:

“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”

  1. [11]
    Pursuant to s 223 of the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. Section 223 provides:

“(1)  An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.

  1. (2)
    However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
  1. (3)
    If the court gives leave under subsection (2), the appeal is—
  1. (a)
    by way of rehearing on the original evidence; and
  1. (b)
    on the new evidence adduced.”
  1. [12]
    For an appeal by way of rehearing “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error,”[1] and thereby resulting in a manifestly excessive sentence.
  1. [13]
    The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.[2] 
  1. [14]
    Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.[3]

Appellate Powers

  1. [15]
    In the disposal of the appeal, this court has the same powers as the Court of Appeal on an appeal.[4]  Further, s 225 Justices Act 1886 (Qld) provides that:

“(1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.

  1. (2)
    If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.
  1. (3)
    For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.
  1. (4)
    An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.”

Appeal against Conviction

  1. [16]
    A verdict may be disturbed, if the appellant shows that the trial magistrate acting reasonably ought to have had a sufficient doubt to entitle the appellant to an acquittal.[5]  This necessitates my independent examination of the evidence, including credit of witnesses subject to what I said above,[6] to make my own assessment of both the sufficiency and quality of the evidence.[7]
  1. [17]
    The prosecution had the onus to prove the offence of Common Assault contrary to s 335 of the Criminal Code, by proving beard beyond reasonable doubt the essential facts of the offence in respect of each complainant:
  1. Did the defendant assaulted the complainant?
  1. Was assault was unlawful?
  1. [18]
    Section 245 of the Criminal Code defines assault as follows:

“245 Definition of assault

  1. (1)
    A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.
  1. [19]
    (2)  In this section - applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.”The appellant conceded that if the court accepted the complainant’s evidence, of an assault, then such an assault would be unlawful, that is, not justified, authorised or excused by law.

Evidence

  1. [20]
    The witness Jasmin Heather Skye Blue gave evidence as follows:
  1. She resides with her parents and boyfriend (the male complainant).  She knows the Defendant as the neighbour.
  1. She was taking clothes off the clothesline when her dog growled at the appellant who was in the yard.  The appellant threw an object at the fence.  She says the appellant said certain words and she started crying and walked inside to grab the male complainant;
  1. She testified as follows:[8]

And then what happened? – So Victor came out and started talking to him, and I pulled my phone out.  Rob decided to spray me with the hose and decided to spray Victor with the hose.

And when you say spray with a hose, what do you mean?  Just tell the court what happened exactly? – So he sprayed me directly with the hose and got me wet and got Victor wet as well.

Where do you say he got you wet? – Head to my abdomen.

And where do you say Victor got wet? – From the head to his legs.  He sprayed him for a lot longer than he did with me.

  1. She says that when she pulled out her phone the appellant was watering the back lawn.  She says that she was on the right side of the male complainant and about half a metre behind him.
  1. The appellant relies upon this part of her cross-examination:[9]

And the spray of water which you talk about from the hose, was it at both of you? – Yes, and he was smiling as well while he was doing it.

Do you have a very clear recollection of that? – Yes.

It’s something that is instilled in your mind? – Yes.

You provided a statement to the police in relation to these events; is that correct? – Yes

Do you recall when that was? – Like, as in when I went to the police station?

Do you recall the date that you provided the statement to the police? – No.

I suggest to you it was on the 14th of February this year, do you agree with that? – Yes.

Yes? – Yes.

And you understood that when you provided your statement to the police, that you had to be very accurate? - Yes.

And remember everything that you could about these events? – Yes.

And did you do that? – Can you repeat the last bit.

Did you do that when you provided your statement? Were you accurate? – Yes.

Where in your statement does it make reference to Mr Hickman smiling? – I didn’t put that in the statement.

No, you didn’t.  You’ve just come up with it today because that’s what your boyfriend says: is that right? – No.

And that’s what he told you? – No. No, it was all on video.

When did you remember the smiling? – I remember the smiling.

When did you remember it to give evidence today about it? – Just then.

Just miraculously came to you: is that right? – No.

Why was it not in your statement? – Because I didn’t put it in my statement.

It’s not in your statement because it didn’t occur; is that right? – Well, it also has it on the video as well.

You’ve had discussion with your boyfriend in relation to these events after they’ve occurred; you’ve spoken about it many times – Well, we live together, so yes.

And he’s told you his version of events, hasn’t he? – Well, I was there most of the time.

Did you understand my question? – can you repeat your question.

You’ve discussed these events with your boyfriend after the 7th of January, haven’t you? – Yes.

You’ve told him what you saw? – Yes.

And he’s told you what he saw? – Yes.

So the spraying with the hose, you say, was – hit both of you at the same time? – Hit me first and then Victor.

I suggest to you, Ms Blue, that you were never sprayed with water at any stage? – Well, I was.

You held your mobile phone upwards – Yeah.

At head height? – About that, yes.

In front of you? – Yeah.

With your arm extended? – No.

So immediately in front of your face? – It was about there just under my chin.

All right.  Your boyfriend told you that Mr Hickman was smiling, wasn’t he? – No.

He never said that to you at all? – No.

  1. [21]
    Lowane Victor Tufuga gave evidence as follows:
  1. He testified that:

I’m going to take you to the 7th January this year.  If you could tell the court what happened that evening? – I was in the room.  I was in my room and I heard a little bit of noise in the back – my backyard.  My girlfriend came running to the room and said Rob had thrown something at my dog.  I came out to confront him, then he then sprayed me in the face, on my body and got my girlfriend behind me, and yeah, happened that afternoon.

When you say he sprayed you in the face can you just elaborate on that? – When I asked him – I asked him, “Did you throw something at my dog?” and he just lifted his hose and sprayed.

So where was he watering at the time, or where was the hose being used? – On the grass.  On the grass.

And what occurred as a result of being sprayed, as in, what happened to you? – Just got very hot and angry and agitated.

Was there any effect physically of being sprayed with the water? – Yeah, I got wet, and yeah. Not something you do to a angry person.

  1. He gave different versions about the precursor events when the female complainant alerted him to the dog incident.
  1. He confirms that he went next door to see the appellant because of the object which the appellant had thrown at the boundary fence.[10]  He first complained to police on 24 February 2019.[11]
  1. [22]
    The female complainant’s father, James Harold Blue, also gave evidence as follows:
  1. He lives with his wife, and both complainants.
  1. He had just had a shower when he heard yelling and carrying on.  He raced outside and saw a fight going in the back yard.  He saw his daughter “… was wet but I didn’t actually see the hosing, but I saw it on the video camera.  Yeah, that was about it”.  He was referring to the phone footage taken by the female complaint;
  1. He provided a statement to the police, about two and a half weeks after the events occurred, on 20 January 2019, and accepted that he needed to be completely accurate and record all his memory.  He testified that the police statement saying: “yes ... well correct as it can be, yeah”.
  1. In cross-examination he testified:[12]

Where in your statement, Mr Blue, does it make reference to making any observations of your daughter being wet? --- She was in the yard ---

Where in your statement does it say that? The answer is it doesn’t; is that right? --- Well, I ---

Does – is there any reference in your statement to your daughter being wet? --- Probably not.  I didn’t think about it at the time.

And you’ve only said that because that’s what your daughter has told you at a later stage; is that right? – No, she was in the house next door, she was in the fence yard there.  I could see her at that time.  Like I don’t remember exactly the details that were – that happened.

And you don’t know if she was wet or not? – Well, I saw – I looked at her and I saw Victor was on the ground.  I don’t know about Victor, whether he was wet or not, but I saw my daughter was.

And where is that referred to in your statement?---I didn’t know that I had to put that down.

What’s that? – I didn’t know that – well, I don’t know that – what you just said, so ---

What do you mean by that? – I’m just giving my – I saw it myself.  But I said to the police when I said that my wife actually was down there ---

Don’t say what your wife said.  I’m asking you why it is not in your statement? – Well, I don’t know. I just – the thing here, but I just remember all the stuff, like the fighting on the ground and all that sort of stuff, so all I did was go to the fence and try and stop the fighting and that, so ---

When did your daughter first tell you about being sprayed with water? --- She had the phone in her hand.  I saw that straight afterwards. She’d been hosed.

And is that why you’re saying she was wet? --- Yeah.  Well, she was wet.

But you understood the importance of that.  Why was it not in your statement? --- I must have just – I probably didn’t think about it at the time. I don’t know.

But that’s the whole basis of your statement? – This is all six months ago too.

So you’re not sure if she was wet or not? – I saw she was wet. I saw it.

When did you first – did you – have you had a discussion in the last few days with any police officers about whether the complainant – whether your daughter was wet or not? --- No, I didn’t. No.

This morning? – I just – no, this morning I haven’t either, but I said to the policeman this morning that maybe my wife should’ve been here because she was down there at the time.  She was out hanging the washing and stuff when the fight started. That was because of the hose [indistinct] hose.

Did you have a meeting with a police officer this morning and have your evidence discussed? – No, I didn’t. I just spoke to him in the loft – in the lift at the time.

SGT RENNIE:  Just for clarification, your Honour, perhaps he should clarify that I’m a police officer.

MR MELLICK: Yes, I’m aware of that.

SGT RENNIE: I think the witness is confused, your Honour.

BENCH:  Right. Well, that can be clarified if need be.

MR MELLICK:  Did you have a meeting in the last few days, perhaps today, with a police officer where your evidence was discussed? – No, but only with the policeman I spoke to outside.  Like, I mentioned about my wife maybe should’ve been the one there because when I thought ---

Which police officer> --- It was Tom – Tomas Gibson.

All right.  Did you have a discussion this morning with the prosecutor? --- No, I told the prosecutor whatever happened at the time.

Well, so did you have a discussion with the prosecutor? --- Well, who’s the prosecutor?

This lady here? --- Yeah. Right. Well –

The prosecutor to my right? – Well, I mentioned that to her as well, so – but – when I was in that – the interview room.

Mention what? – About whether I should’ve had my wife to be there all the time or – because she actually was right there watching, seeing the hosing going on, so ---

Well, you didn’t see any hosing, did you? – Not – only on the video camera I saw it.

All right.  And did you mention, when you had a discussion with the prosecutor outside of court in one of the conference rooms earlier this morning --- ? --- Yeah.

--- that you saw that your daughter was wet? – Well, she was.

That’s not what I asked you? --- But it wasn’t on the statement at the beginning.

That’s not what I asked you.  Do you want me to repeat the question? --- Well, we’re just picking at bloody – whatever it is you’re getting at.

Did you say to the prosecutor in a conference this morning that you observed your daughter wet? – Yes, I did.

You’ve had discussions with both complainants, that is, your daughter and your daughter’s boyfriend, since these events, haven’t you? --- Well, I live with them.

Do you wish me to repeat the question? – Repeat the question.

Have you had discussion about these events with your daughter and her Boyfriend since they occurred?  You’ve discussed the matter, haven’t you? – Yes, I have.  I just – we knew what it was like.  I don’t know – I can’t remember exactly what was on the police statement.

Right. And they told you that they were sprayed with water by the compl – by Mr Hickman; is that right? – Well, he sprayed both of them, yeah, both Victor and my daughter.

That’s what they told you? – Yeah, they did.  They were both standing there together and my daughter had her camera going on him at the time.

And you never said that in your statement to the police; is that right? – Well, what happened was that the state – we went back to the police after that first court hearing that we had here when it first happened, and they didn’t charge them with the hose incident, although the police were at the scene, the hose with – the hosing with the hose was a criminal – was an offence, so – and that’s what he did, but we had to go back to the police station and have that brought up that he would be charged because my daughter had nothing to do with the fight or anything else that happened. So that’s all I know. The police went ahead then and prosecuted him later on when he should’ve been prosecuted for the offence of hosing the two of them, Victor and my daughter.  My daughter is absolutely innocent, standing there, copped a hosing as well as Victor.  So that’s what happened at the time.

Which you never saw? --- No, I never saw that part, no.

And you made no reference in your statement to the police about two weeks later that you saw nothing about – sorry.  You made no reference to either of the complainants being wet; do you accept that? – No, I told the –

No.  Do you accept it was not in your statement? – On this first statement, yeah.

Yes – No.

Yes. I have nothing further.

BENCH:  Right, Thank you.

WITNESS:  I’m not sure.  I think that might be on the statement.

BENCH: Hold on. No, stop. Is there any re-examination at all, Sergeant?

  1. [23]
    I have also viewed the video exhibits.
  1. [24]
    The female complainant recorded the incident subject of the charges at the boundary fence. The appellant purposely directs the hose nozzle and spray towards the complainants, he motions up, left to right, and then holds the nozzle still for a short time towards the male complainant. At that point the male complainant suddenly struts from and along the fence line, picked up a long handled shovel, entered the appellant’s land and confronted him with the shovel before an altercation ensued between the men. All the while the female complainant pleads with the male complainant to stop. There are no visible water droplets on the mobile phone camera lens throughout the recording, and there are no images showing the front clothing of the complainants.
  1. [25]
    The learned magistrate’s fact finding substantially depended on the witnesses’ credit after regarding the video footage as unequivocal, and drawing other relevant inferences. His Honour said:[13]

The video shows that Víctor Tifugu then went into the defendant’s yard and approached him.  At the time, he was wearing shorts and a singlet.  And whilst approaching the app, Tifugu can be heard saying the words to the effect of, “Don’t throw something at my dog again”.  There is no comment by Tifugu in the video about having been sprayed with water.  Now, the video, itself, the two recordings, there are no obvious signs of water on Tifugu.  There are no water marks on the video taken from the mobile phone of the complainant, Blue.  And the evidence was that Jasmine Blue was recording the incident when the defendant sprayed both herself and Tifugu on her mobile phone when she was allegedly sprayed with water from the handheld hose.

But however, in my view, neither of those matters are conclusive one way or another.  There are a number of plausible explanations for the absence of water marks on the video footage, that is she may have moved the phone away in time or the water spray might simply not landed on the mobile phone lens.  Now, the absence of any obvious signs of water on the Tifugu is also, in my view, not a decisive factor by any means.

The allegations are that he was sprayed with water from a hose for a very short time.  It would not be unreasonable to expect that under those circumstances, there would not be any visible signs of water on his body a short time later.  And, as well, due to the colour and design pattern of the singlet that he was wearing at the time, I am unable to determine from the video recording if the singlet was wet or dry.  And as said before, when Tifugu went into the defendant’s yard to confront him, he was saying words to the effect of, “Don’t you throw something at my dog again”. There was no mention of having just been sprayed with water.  Likewise, in my view, that is not a decisive factor, having regard to the fact that the incident started reasonably with the allegation of a brick being thrown at the fence at the complainant’s dog.

So in my view, the video recordings, exhibit 2 and 3, do not assist the Court to any great extent as to the crucial issue as to any water actually landed on either of the two complainants.  Of course, the video clearly indicates that the defendant sprayed water in the direction of Victor Tifugu.  So, in my opinion, the outcome of this matter depends entirely on my assessment of the credit of the two complainants.  Now, the evidence of Victor Tifugu was that he was woken by his partner, Jasmine, Blue, who told him that the defendant had thrown a brick at their fence.  He then went over the adjoining fence of the two properties to confront the defendant and he said words to the effect of, “Did you just throw something at my dog?”.  He said the defendant then sprayed him with water from the handheld hose and the water landed on his face and body area.

The evidence of Jasmine Blue was that she was in the yard of her property when she observed the defendant throw a brick at her adjoining fence.  She then went and told her partner, Victor, who then went to confront the defendant.  She said Victor Tifugu was standing at the fence and she was standing one half a meter behind him, and the defendant sprayed her with water from a hose he was holding and then also sprayed water on Victor Tifugu.  She said she was wet from head to abdomen and that Victor was wet from head to his legs.

Now, in my view, based on the demeanour of both Victor Tifugu and Jasmine Blue while giving evidence and under cross-examination is that they both gave fair and honest evidence.  Now, I do not consider that there was anything in their demeanour to suggest that either one was being untruthful or deliberately attempting to mislead the Court.  I form the view that it would be safe to rely upon their evidence unless there was compelling evidence to the contrary, and, in my view, there is no such evidence to the contrary.

Now, their evidence is supported to a certain degree by the video footage in exhibit 2, that is that the defendant clearly was shown to be spraying water in the direction of Victor Tifugu.  And the evidence of Jasmine Blue as to being wet was supported by the evidence of her father, James Blue. The end result is that I am satisfied beyond reasonable doubt that the evidence of both complainants was an accurate account of the offence that occurred at the relevant time and place.”

Challenge to fact finding based on witnesses’ credit

  1. [26]
    In Devries v Australian National Railways Commission, Brennan, Gaudron and McHugh JJ said:[14]

“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact.  If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”

  1. [27]
    Similarly, in Fox v Percy,[15] Gleeson CJ, Gummow J and Kirby J referred with approval to earlier cases,[16] as to the correct approach of an appellate court where findings of fact based on credibility are challenged, this way:

“[28] the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.” (References omitted)

  1. [28]
    This is not an exhaustive formula. The court went onto recognised that an appellate court might interfere even though the facts fall short of being “incontrovertible”, where, for example, the decision is “glaringly improbable” or contrary to “compelling inferences”. Gleeson CJ, Gummow J and Kirby J said:

“[29] In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case.   In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.  In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. 

[30] It is true, … that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court.  However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.”  (references omitted)

Challenge of fact based on inference

  1. [29]
    The trial magistrate’s findings of fact based on inference ought be taken as correct unless and until the contrary is demonstrated.
  1. [30]
    In Warren v Coombes,[17] the majority of the High Court reiterated the rule that:

“In general on an appeal by way of rehearing from a judge sitting without a jury an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

Discussion

  1. [31]
    The appellant relies on the video evidence and inconsistencies to discredit the complainants, and other evidentiary anomalies in the testimony.
  1. [32]
    The appellant asserts that the videos showed that neither of the complainants remonstrated or said anything being wet by the hose, nor any reaction by each of the complainants, nor any movement of the phone camera lens, nor water in any footage of water contacting them, or wet clothing. He argues that the absence of the complainants’ remonstration to the hose spray by some words, movement or any combination of such behaviour was tellingly inconsistent with normal human experience.
  1. [33]
    I do not accept that the male complainant’s imperfect recall about how the female complainant alerted him as to what had occurred outside is fatal, or otherwise infects his evidence about the critical events constituting the offending. Similarly, the female complainant’s late recall of the appellant smiling at or about the time of the spraying does not mandate condemnation.
  1. [34]
    However, the video evidence shows the perspective form the female complainant behind and to the left of the male complainant. As the complainants approach the fence line, the appellant continued to spray his lawn for a short period, then lifts the nozzle up and towards the complainants, then moves it form his left to right, and then holds the nozzle still for a short time generally towards the male complainant. The video evidence does not show any water hitting or wetting either complainant to the extent they describe or at all. There is no visible spray on the mobile phone camera lens throughout the recording, and there are no images showing the front clothing of the complainants.
  1. [35]
    Although the circumstances depicted in the footage did not draw any reaction from the female complainant, did draw a reaction from the male complainant.
  1. [36]
    The male complainant was apparently in a high emotional “angry” state about the appellant’s treatment of the dog. Things did heat up after the water was sprayed in the complainant’s direction. Something triggered the male complainant to become “very hot and angry and agitated and suddenly move from the fence to pick up a long-handled shovel and confront the appellant.  This seemed to be coincidental the appellant directing the hose water at him.  It seems to me that this behaviour is consistent with a reaction to the appellant’s conduct while remaining incensed concern about treatment of the dog.  However, it is also consistent with the male complainant merely reacting to the appellant’s demeanour and inflammatory movement (without any water contact). 
  1. [37]
    However, it seems to me that the footage of the spray trajectory and the absence of any spray on the lens, enables the court to draw a sharp distinction with the complainants’ accounts of the nature and extent of being wet. The footage contradicts the female complainant’s assertion that the appellant so directly sprayed the hose to wet her from "head to my abdomen”, the male complainant from “From the head to his legs”.  The footage also contradicts the male complainant’s recall that the appellant “sprayed me in the face, on my body and got my girlfriend behind me and he just lifted his hose and sprayedIn my view the complainants’ accounts are demonstrably grossly exaggerated when compared to the video footage, and available inferences. 
  1. [38]
    The complainants are not much assisted by Mr Blue. His evidence is limited to his observations after arriving in the later stages of the altercation between the men well after the hosing incident. He said that the female complainant “was wet but I didn’t actually see the hosing, but I saw it on the video camera.  Yeah, that was about it”.  He surmised that: “she had the phone in her hand.  I saw that straight afterwards.  She’d been hosed.”  In this regard the appellant points to the absence in his police statement of any remark about the female complainant’s wet cloths.  It is an unusual observation in the context of a very volatile confrontation between the appellant and the shovel welding male complainant.  The observations are also strikingly similar to the exaggerated account the female complainant.  In my view, Mr Blue intolerably conflated what he saw in person, with the video footage, with his subsequent discussions with the complainants and also his wife who “should’ve been here because she was down there at the time.  She was out hanging the washing and stuff when the fight started. That was because of the hose [indistinct] hose.” 
  1. [39]
    On my review of the whole of the evidence the complainants’ accounts of the assault was inconsistent with facts incontrovertibly established by the video evidence, or was glaringly improbable having regard to that footage and contrary to compelling inferences in the case. my respectful opinion the learned magistrate failed use his advantage of assessing the witnesses’ credit and available inferences to be “satisfied beyond reasonable doubt that the evidence of both complainants was an accurate account of the offence that occurred at the relevant time and place”. Further, they were unassisted by Mr Blue’s evidence, which contains discrepancies, displays inadequacies, and seems so tainted as to strip it of any probative force.
  1. [40]
    It seems to me that his Honour segmented compelling and contradictory aspects of the evidence as “not decisive factors” rather than approaching the case on the whole of the evidence.  In doing so, His Honour mistook the facts by failing to take into account the material considerations exposed by the other evidence.
  1. [41]
    In these circumstances, in my respectful view, the verdict is unreasonable or unsupported, and resulted in a miscarriage of justice.  Therefore, I am bound to allow the appeal against the conviction and discharge the appellant.

Appeal against Sentence

  1. [42]
    Although having regard to my conclusion it is not necessary to deal with sentence, I will make some remarks.
  1. [43]
    The circumstances found by the learned magistrate could properly be described as trivial neighbourhood dispute falling at the very low end of the range of offending of this type. The circumstances were brief with no significant adverse consequences to the complainants. The appellant through his lawyer limited the contest in the proceeding to focus on the nature and extent of the alleged assault. Although the appellant was somewhat antagonistic with his gesturing with the hose, the nature and extent of the evidence of any spray contacting the complainants fell well short of their accounts.
  1. [44]
    The appellant was a 54 year old man, with no prior criminal history and in full-time employment. He suffered extra-curial punishment in the aftermath when an altercation ensued with the male complainant who entered the appellant’s yard welding the long-handled shovel. I see no utility in any conditional order for good behaviour or any length of time.
  1. [45]
    In all of these unusual circumstances, this was an appropriate case for the court to order that the appellant be released absolutely without condition open pursuant to s 19(1)(a) Penalties and Sentences Act 1992 (Qld), and by virtue of s 16, no conviction would be recorded.

Order

  1. [46]
    For these reasons, I allow the appeal, set aside the orders made by the Magistrates Court and substitute the verdict of ‘not guilty’ for each charge and discharge appellant.

Judge D P Morzone QC

Footnotes

[1] Allesch v Maunz (2000) 203 CLR 172, [22] – [23] followed in Teelow v Commissioner of Police [2009] QCA 84, [4]; White v Commissioner of Police [2014] QCA 121, [8], McDonald v Queensland Police Service [2017] QCA 255, [47]; contrast Forrest v Commissioner of Police [2017] QCA 132, 5.

[2] Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255, [47].

[3] White v Commissioner of Police [2014] QCA 12, [5]-[8]; Forrest v Commissioner of Police [2017] QCA 132, 5 & 6; McDonald v Queensland Police Service [2017] QCA 255, [47].

[4] District Court of Queensland Act 1976 (Qld), s.113.

[5] Whitehorn v R (1983) 152 CLR 657, 687.

[6] Chidiac v R (1991) 171 CLR 432, 443-4 per Mason CJ, 452-3 per Dawson J, 459 per Gaudron J; Knight v R (1992) 175 CLR 495, 503 per Mason CJ, Dawson and Toohey JJ.

[7] Morris v R (1987) 163 CLR 454, 463-4, 466 per Mason CJ, 473 per Deane, Toohey and Gaudron JJ, 477-9 per Dawson J.

[8] T.1-17/1.

[9] T.1-18/36.

[10] T1-24/28-29

[11] T.1-24/35 – 43

[12] T.1-11/19 – T.1-14/16

[13] Decision T.3/13 – T.4/28

[14] Devries v Australian National Railways Commission  (1993) 177 CLR 472; 479.

[15] Fox v Percy (2003) 214 CLR 118, [26]-[30].

[16] For example, Devries v Australian National Railways Commission (1993) 177 CLR 472, 479.

[17] Warren v Coombes (1979) 142 CLR 531, 551 affirmed in Fox v Percy (2003) 214 CLR 118, 127 [25] per Gleeson CJ, Gummow J and Kirby J.

Close

Editorial Notes

  • Published Case Name:

    Hickman v Queensland Police Service

  • Shortened Case Name:

    Hickman v Queensland Police Service

  • MNC:

    [2019] QDC 221

  • Court:

    QDC

  • Judge(s):

    Morzone QC DCJ

  • Date:

    06 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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