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Davis v Commissioner of Police

 

[2016] QCA 246

 

SUPREME COURT OF QUEENSLAND 

 

CITATION:

Davis v Commissioner of Police [2016] QCA 246

PARTIES:

DAVIS, Neville Goodwin
(applicant)
v
COMMISSIONER OF POLICE
(respondent)

FILE NO/S:

CA No 264 of 2015

DC No 108 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Southport – [2015] QDC 253

DELIVERED ON:

30 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2016

JUDGES:

Fraser JA and Dalton and North JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

  1. Grant leave to appeal.
  2. Allow the appeal.
  3. Set aside the orders of the District Court.
  4. Quash the conviction in the Magistrates Court.
  5. Enter a verdict of acquittal on the charge of common assault.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant was convicted by a Magistrate of one count of common assault – where the applicant appealed to the District Court – where the District Court set aside the conviction and remitted the matter to the Magistrates Court for retrial – where the applicant makes an application for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – whether the District Court erred in the exercise of its discretion in remitting the matter to the Magistrates Court

District Court of Queensland Act 1967 (Qld), s 118

Justices Act 1886 (Qld), s 225

Browne v Dunn (1893) 6 R 67 HL, cited

Burke v Corruption and Crime Commission (2012) 289 ALR 150; [2012] WASCA 49, approved

King v The Queen (1986) 161 CLR 423; [1986] HCA 59, cited

R v Wilson [2014] QCA 350, cited

Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175, cited

COUNSEL:

K Mellifont for the applicant

D C Boyle for the respondent

SOLICITORS:

Ashurst for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I have had the advantage of reading in draft the reasons for judgment of Dalton J.
  1. For the reasons given by her Honour, I agree that the trial before the magistrate miscarried because the magistrate made adverse credit findings against the applicant which were not fairly open having regard to the prosecutor’s omission to cross-examine the applicant upon his credit in the relevant respects.
  1. Having regard also to the manifest unreliability of the complainant child’s evidence of the alleged offence, the inconsistency between evidence given by the applicant’s secretary (which was not challenged in cross-examination) and evidence on the same point given by the complainant child’s mother, and the internal inconsistencies in the evidence of the child’s mother, I respectfully agree with Dalton J’s conclusion that there is a reasonable doubt upon the whole of the evidence whether the applicant was guilty of the offence with which he was charged.
  1. In reaching that conclusion I do not find it necessary to express any view about the quality of the applicant’s evidence. Otherwise I record my respectful agreement with the reasons of Dalton J. I also agree with the orders proposed by her Honour.
  1. DALTON J:  This is an application for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld).  The applicant was convicted by a Magistrate of one count of common assault.  He appealed to the District Court pursuant to s 222 of the Justices Act 1886 (Qld).  The District Court Judge set aside the conviction and remitted the matter to the Magistrates Court for retrial.
  2. An appeal to the District Court pursuant to s 222 is by way of “rehearing on the evidence … given in the proceeding before the justices” – s 223(1).  Section 225(1) provides that, “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”.  There was no argument that the District Court Judge did not have the power to make the orders which he made.  That he did is plain from s 225(2) of the Justices Act which provides that if a judge sets aside an order that 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”.
  3. The applicant argued that having a discretionary power to remit the matter for rehearing, the District Court Judge erred in the exercise of that discretion.  Essentially the applicant’s submission was that because the only conclusion the District Court Judge could have reached on the evidence below was that there was a reasonable doubt about guilt, to order a retrial in those circumstances could only have been to allow the Crown to supplement its case, and that was an improper reason for ordering a new trial.  Secondary to this, it was submitted that the discretion to order a new trial ought not to have been exercised because of the time since the alleged offence; the effect a new trial would have on the applicant and because the offence was not sufficiently serious.  In all those circumstances it was argued that the District Court Judge ought to have entered an acquittal.  That being so, it was submitted that this Court should allow the application for leave and substitute an order of acquittal pursuant to s 119(2)(b) of the District Court of Queensland Act.
  4. The respondent did not oppose a grant of leave.  Nor did the respondent contend that the District Court Judge ought to have sent the matter back for a retrial.  The respondent’s submission was that this Court should send the matter back to the District Court Judge so that the District Court Judge could make a determination on the substantive appeal.

The Case before the Magistrate

  1. It is necessary to consider the evidence before the Magistrate to determine the applicant’s point that the only conclusion available to the District Court Judge was that the Magistrate should have had a reasonable doubt about the guilt of Dr Davis.
  2. Dr Davis was a paediatrician and the complainant child his patient.  The complainant child and his mother attended at the doctor’s rooms for a medical appointment.  The particulars of the common assault were:

“…

  1. The defendant has asked the complainant child, who was getting anxious and agitated, to lay on his stomach, the complainant child complied.  The defendant proceeded to sit on complainant child’s back.  The complainant child started crying and was yelling at defendant to get off.  The defendant started laughing and said: ‘When you stop throwing your tantrum and you calm down then I will get off’.
  1. The complainant mother then stood up and stated: ‘I think this has gone far enough, come on Alexander (complainant child) let’s go’.
  1. The complainant child and mother then left the defendant’s office.”
  1. The complainant child was nine years old.  He did not understand the nature of the oath.  He gave an unsworn statement.  He said he recalled waiting to see the doctor for a long time and that he was naughty in the waiting room during this time.  He denied that he was naughty or interrupting during the consultation with the doctor.  He said that the doctor tied him up about four times.  He denied that he consented to this.  He said the doctor sat on him about 20 times and then corrected himself and said it was actually one time and that he felt heavy with all his weight on him and it really hurt.  His evidence was unclear as to whether or not the doctor sat on him when he was lying on his tummy or when he was lying on his back or, indeed, whether he was tied up at the time the doctor sat on him.  He rejected the idea that the doctor sat over him but not actually on him.  He seemed to accept that the doctor was saying that he would leave him alone when he settled down or calmed down.  He admitted that he told a policewoman previously that the doctor had sat on him “every time I was getting up” rather than once, and said that that version – sat on him “every time I was getting up” – was true and then elaborated, “whenever I tried to stand up, he just was – he just went over – ran over and sat on me …”  Then there was the following exchange:

“I see.  So you were lying there and he’d come over every now and again and sit on you, would he?--- Yeah, pretty much, and then he just will carry me back and sit on me from my mum.

So, what, he sat on you and he went back to his chair?  Is that what happened?--- Yeah.

And then you tried to get up---?--- He---

--- and then he’d run over and sit on you again?--- Yeah.

And then he’d go back to his chair.  You’d try to get up again and he’d run over and sit on you again?--- Yeah.

How many times did all that go on for?--- About 50 times.”

  1. Later he said that the doctor, “just grabbed me, threw me on the floor and sat on me.”  And then moments later retracted this and said that, “there was no throwing me”.  It is clear from the transcript that the complainant had difficulty concentrating on the questions and behaving for the short time he was giving evidence in Court.
  2. The complainant’s mother gave evidence.  She said that she and her son waited in the waiting room for about an hour before the consultation with Dr Davis.  She said that during the consultation the complainant child was “being really loud” and that at the beginning of the consultation Dr Davis was normal, friendly and bubbly towards them.  She said she told Dr Davis that the complainant child’s behaviour (at home and school) had escalated and that there were issues with self-harm.  She said that Dr Davis began to get cranky with the complainant child because he was noisy and asked him to settle down; the child increased the noise.  The child’s mother asked Dr Davis whether he thought the child had Asperger’s Syndrome and the doctor explained to her that he did not.  Then he said to the child’s mother that he would prove the child did not have Asperger’s Syndrome; took a piece of rope out of a drawer in the room; called the child over and asked him to lie on the floor and then tied his arms and legs behind his back.  The child was giggling and thought it was a game.  The child escaped from the rope tie and according to the child’s mother Dr Davis began to be cranky.  She said Dr Davis tied the child up again, this time passing the rope around his neck, and laughed saying, “let’s see him get out of this one”.  The mother’s evidence was that the complainant child was starting to get very agitated at this point and that she also was not feeling “at all comfortable”.  She said she took three photos at this point.  I interpolate that the three photographs were in evidence.  In two of them Dr Davis is still in the process of tying the child up and the rope is not around his neck, nor does it appear from the photograph how it could have been around the child’s neck.  The last photograph appears to have been taken after Dr Davis finished tying the child up, and again the rope is not around the child’s neck, and it does not appear that it could have been around the child’s neck.
  3. The mother said that after her child escaped from being tied up for the second time he was very agitated and Dr Davis told him to lie on his stomach.  He had to repeat this instruction three or four times because the child was not following instructions, but eventually he did lie down and then the doctor said, “this is always a good way that you can fix it if he’s throwing a tantrum, and he proceeded to go and sit on his lower spine”.  According to the mother’s evidence, the child then began screaming, “Get off.  You’re heavy”, and the doctor replied that he would not get off until “you stop throwing this tantrum”.  The mother said that the child began kicking his legs and continued to say that he was being hurt, and Dr Davis continued to sit on him while laughing.  She said that she was getting more agitated and when her child became “really upset” she said that, “I think that we’ve had enough, and I think it’s time to go”.
  4. She thought that Dr Davis sat on her son for a good 30 or 40 seconds and that he continued to laugh, even after she said it was time to go.  However, he got up off the child and followed the mother and child out of the consultation room.  She said she paid the bill and that her son asked to go to the toilet, at which point Dr Davis said, “I’ll flush his head down the toilet”, in a joking way.  She gave evidence that Dr Davis rang her home phone twice that night and then once the following morning and left a message with her mother that he wanted to see her back at the surgery.  Later she swore that she spoke to Dr Davis on each of these occasions.
  5. In cross-examination the child’s mother admitted that her son had significant behavioural problems and she had become increasingly concerned at the time of the consultation because he was playing with knives and she had received reports from his school that he was particularly hard to manage.  She said that she was “at my total wits’ end I did not know what to do.”  She accepted that the appointment in question was not a routine appointment but one made on an urgent basis.  She accepted that the complainant was behaving badly in the waiting room and that she had tried to stop his behaviour without success.  She accepted that in the consultation the complainant child was trying to distract her attention from her consultation with Dr Davis, and that that situation worsened through the consultation when Dr Davis tried to speak to the complainant child.  The complainant’s mother accepted that at a point about half an hour into the consultation the doctor said to her son, “Look if you don’t sit down, I’ll tie you up” and that her son reacted favourably to that, thinking it was a good game.
  6. When taxed with the fact that the photographs did not show the rope around the child’s neck, she contradicted her evidence-in-chief and said that it went around his neck on the first occasion – AB 542.  She admitted that she had never told the police about the rope going around the child’s neck and could not explain why not.
  7. After the complainant child escaped from being tied the second time his mother agreed that he continued to be disruptive and began asking his mother to leave the consultation.  She denied that he punched her while making these demands.  It was then that Dr Davis asked the child to lie on the floor again but the mother denied that this was in train of the doctor demonstrating to her how to restrain the child until he calmed down.  The complainant child’s mother denied that Dr Davis sat or knelt over the child but asserted that the doctor sat on him.  She agreed that the doctor said words to the effect that when the child stopped the tantrum “I’ll move away”.  She maintained that the child was screaming in pain and that he did not calm down at any time.  She continued to maintain that it was her intervention that brought the incident to an end – she brought the consultation to a close.
  8. The complainant child’s mother agreed that she was in the process of issuing proceedings against Dr Davis claiming damages on behalf of the complainant child and in her own right for psychiatric harm.  She conceded that the child may have attended an appointment with those solicitors with her and “played on his iPad while I was talking”.
  9. The prosecution called an expert witness who was a paediatrician.  This witness said that he had known the defendant for a period of some 30 years and at one stage worked closely with him.  This witness said that he could not think of any circumstance in which it would be appropriate to tie a child up.  He did accept that the squatting technique was an appropriate method to use if a child was “totally out of control” – AB 472.  As I read his evidence it is unclear as to whether or not he thought it was appropriate to demonstrate such a technique in a consultation at a time when the child was not totally out of control.  He also gave evidence that if he was treating a child whose mother had made an urgent appointment in circumstances where the child was out of control it was appropriate to telephone her “in a week or so” to ask how things were going – AB 473.  The expert witness thought there was no circumstance where it was appropriate to sit on a child.
  10. The defendant gave evidence.  He was a paediatrician who specialised in behavioural conditions.  He gave the history of his having seen a presentation on the complainant child at a conference and making enquiries of the complainant child’s mother when she attended him with her elder daughter, and the care of the complainant child moving from a former paediatrician to Dr Davis.  He explained his conclusions and treatment of the child in the five consultations which preceded the subject consultation.  He gave a history of improvement under his drug regime, and then declining behaviour subsequently.
  11. Dr Davis said that on the day of the consultation the complainant child and his mother had to wait about half an hour in the waiting room and he was aware of hearing both the complainant child, and his mother admonishing him, for about half an hour before their consultation began.  He described the complainant child as being very restless and hyperactive at the time of the consultation and as not heeding instructions to contain his behaviour.  The complainant child’s behaviour disrupted the consultation with his mother, who was trying to discuss whether or not her child had Asperger’s Syndrome.
  12. After about 20 or 25 minutes Dr Davis said that he spoke to the complainant child saying, “sit down; if you don’t sit down I’ll tie you up.”  He said the complainant child opened his eyes wide and asked to be tied up.  Dr Davis said he was surprised at this as he had suggested the tying up as something the child would find unpleasant.  He said he asked the mother what she thought and she agreed.  Dr Davis said that the rope was in a locked drawer under his examination couch.  When asked why it was there he avoided the question saying, “The rope was in a drawer which mainly contains hardware items for various running repairs around the – the room.” – AB 597.  He said he asked the child to sit in a chair; tied his wrists to the arms of the chair, and then tied his ankles to the legs of the chair.  He said he did this, “to give him something to occupy himself, as a puzzle, to distract him so that I could speak with his mother for a worthwhile period of time.” – AB 598.
  13. On Dr Davis’s account the child freed himself from the rope within a minute and said, “that was too easy” and asked to be tied up again.  Dr Davis said he asked the child whether he was sure and he said, “yes, do it again, make it harder.”  He said again he sought permission from the mother, in fact twice, to check that she was, “all right with what he wanted me to do.” – AB 598.  He said the mother agreed and asked if she could take photographs so that she could copy this at home, but he said that he did not want her to be doing this at home – AB 598.  He said that this time he asked the child to lie on his tummy on the floor and tied his wrists and ankles behind his back.  He said that the child was co-operative and consenting.  He said that the child freed himself after two or three minutes and that he was pleased that he had freed himself and asked the doctor to tie him again.  The doctor refused.  He said that he said, “no we’re not doing it again, this isn’t lasting long enough, it’s not buying enough time” [for him to consult with the mother] – AB 600.
  14. Dr Davis said the consultation then reverted to the complainant child being noisy and disruptive and that about 10 minutes after that the complainant child began urging his mother to go, including him punching her on the arm in an attempt to control her.  He said that then he enquired of the mother what she did when this behaviour occurred at home and she asked what she could do.  Dr Davis said that he then asked the mother, “What controls do you have when he is out of control with behaviour, putting himself and others at risk?”  Again he said that the mother questioned him as to what she could do and he replied, “well you may have to restrain him.”  He says the mother then asked how to do that and he replied that she could do it by hugging and holding the child tightly, but that there was another way.  He then asked the complainant child to come and lie on the floor on his tummy, and that he then said, “what you do is you squat over him.  I probably used the word you sit on him, quite possibly.  But I said you would squat over him so that he can’t get up.” – AB 603.  Dr Davis continued that, “you calmly speak to him and say when you’ve stopped whatever it is that you’re doing at home that’s a problem, hitting your sister, running through the house with knives, being silly … you then let him up.”
  15. Dr Davis said, “So I would have said that to [the mother] as [the complainant] lay on the floor, and I squatted above [him].” – AB 604.  He described this as, “With one foot either side of his waist, or slightly below his waist, I lowered my buttocks above his buttocks so that he could not rise from the floor.”  Dr Davis said that the child was protesting that he wanted to get up, and that he said to the child, “I’ll get off you when you stop hitting your mother and you calm down and do as you’re told.”  Dr Davis said that the child then tried to “raise his buttocks and bump me off”, which caused Dr Davis to lose his balance so that his knees and toes were on the floor either side of the child.  Dr Davis said the child was swinging his feet from the knees and repeatedly said, “get off me you’re hurting me.”  He said that he replied to the child, “I’m not hurting you.  I’m not on – not touching you …” – AB 605.  He said that the child calmed down over a period of 20 or 30 seconds and that he said to the child, “you’ve calmed down.  Good.  I’m getting off.” – AB 606.  The doctor said that then the child went to his mother, became clingy and she said that, “we’ve had enough – or it’s time to go” and they left.  The doctor denied he sat on the child’s back and said that it would have been medically dangerous to have done so – AB 606.
  16. In cross-examination the doctor said he had never tied up a patient before and accepted that it was inappropriate to have tied up the complainant child.  Further, he said that he had never squatted over a child the way he squatted over the complainant child, before or after the subject consultation.  He then justified using the technique on that occasion because the child, “was significantly disruptive and violent in the consultation room” – AB 619.
  17. The letter which Dr Davis sent to the complainant’s GP was Exhibit 13 below.  The letter does make reference to the extended period of boredom and misbehaviour in the waiting room.  The last paragraph of the letter is consistent with what Dr Davis said his thinking was during the consultation, but the letter makes absolutely no mention of either tying the complainant child up, or squatting over him.  The paragraph reads:

Whilst here today, [name’s] behaviour was certainly provocative.  There was some degree of reactivity from [mother’s name].  She is clearly on a very thin edge in regards to her ability to cope.  [Name] seems to direct his behaviour towards boisterous response.  It is almost as if there is some degree of emotional deprivation where any degree of response is better than nothing.  I am concerned about this and feel that a psychological assessment may be more prudent … I plan to review progress in early December.”

  1. The defence called the defendant doctor’s secretary as a witness.  She said she heard the complainant child and his mother laughing through the consultation and she said that she was fairly certain she heard the complainant child call out “do it again” a few times.  She had no recollection of the doctor saying that he would flush the child’s head down the toilet and she thought she would have heard those words had they been said, given her proximity.  There was no cross-examination of her.

The rule in Browne v Dunn

  1. Counsel for the defendant put a fairly detailed version of events to the complainant’s mother in cross-examination.  The defendant then gave evidence and, as will be seen from the recounting of the evidence above, there were significant differences between his evidence-in-chief as to the consultation, and the evidence of the complainant’s mother as to the consultation.  These included whether or not the reason for Dr Davis tying the child up was to demonstrate that he did not have Asperger’s Syndrome; whether or not the child demonstrably enjoyed being tied up and asked to be tied up a third time; whether or not Dr Davis sought permission from the mother to tie the child up and whether she gave that permission; whether or not the child was first tied in a chair; whether a rope was put around the child’s neck; whether or not Dr Davis sat on the child in demonstrating how to restrain him; whether or not the child punched his mother before this demonstration or in some other way exhibited violence in the consultation; whether or not the child was showing signs of being hurt during the restraint demonstration; whether or not the child calmed down during the restraint demonstration, or whether he became increasingly agitated and the consultation was cut short by the mother.
  2. Thus by the time the prosecutor came to cross-examine Dr Davis it was clear that the main task which would confront the Magistrate was making credit findings as between the complainant’s mother on the one hand and Dr Davis on the other.  The crossexamination of Dr Davis was remarkably brief.  The prosecutor made no attempt to put the Crown case to him at a factual level.  For example, it was not put to him that he had indeed specified that the tying up would reveal whether or not the child had Asperger’s Syndrome, or that the child did not calm down after being held in the restraint demonstration but grew more agitated.  In my view there was no necessity to put factual matters like this to Dr Davis, for by the time he gave his evidence-in-chief the prosecution case was complete and all the factual matters which the Crown relied upon were apparent either from the particulars of the case or from the evidence which the prosecution led and Dr Davis had, in a detailed way, traversed all that territory in evidence-in-chief.  I do not think that the rule in Browne v Dunn necessitated the prosecutor covering this factual ground again.
  3. However, the prosecutor did not challenge Dr Davis’ credit at any time during the crossexamination.  He did not, for example, say that Dr Davis’ version of events involving the child’s eyes widening with excitement at the prospect of being tied up was a reconstruction or was false.  He did not challenge Dr Davis’ evidence that he sought the permission of the complainant’s mother three times (once initially and then twice before the second episode) as being overly elaborate and reconstructed in his (Dr Davis’) own interest.  He did not challenge Dr Davis saying that the child had become violent by the end of the consultation.  He did not question how it was that Dr Davis had a rope in his consulting rooms or challenge the somewhat oblique explanation that it was there in a drawer full of handyman tools, so that Dr Davis could repair his rooms from time to time.  He did not question how it was that when, for the first time in 30 years of practice, Dr Davis had tied a child up and demonstrated a physical restraint upon a child, those extraordinary events did not make their way into his report to the general practitioner.  In short, he did not challenge Dr Davis on the basis that he had not been honest in his evidence in circumstances where, even on a reading of the transcript, there were obvious grounds for doing so.  The prosecutor then made submissions to the Magistrate that Dr Davis was dishonest in his evidence, and the Magistrate made findings that Dr Davis’ evidence was not “worthy of credit” and that his evidence had been reconstructed, “to suit his own purposes”.
  4. I will add that a subsidiary argument was that Dr Davis’ secretary was not cross-examined at all and that therefore the Magistrate was obliged to accept her evidence.  I am not sure that this necessarily follows.[1]  In any case, I think this point is relatively minor in comparison with the difficulties posed by the failure of the prosecutor to cross-examine Dr Davis as to credit.
  5. In my view the submission he made as to Dr Davis’ honesty was not open to the prosecutor, and the findings as to Dr Davis’ credit were not open to the Magistrate, not because of the quality of Dr Davis’ evidence, but because he was not given an opportunity in cross-examination to respond to allegations of reconstruction and dishonesty.  I think the case of Burke v Corruption and Crime Commission[2] is very useful here both on its facts, and for the statements of law in the judgment of Buss JA.  At [180] Buss JA says this:

“The rule in Browne v Dunn comprises two limbs. The first limb is that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross-examiner who intends to invite the court to disbelieve an opposing witness must put to the witness in cross-examination the grounds upon which the evidence is to be disbelieved. The second limb is that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross-examiner must put to an opposing witness in cross-examination the nature of the case upon which it is intended to rely in contradiction of the witness's evidence, especially where that case relies upon inferences to be drawn from other evidence …”

  1. It is what Buss JA refers to as the first limb which is relevant to this case.  The original statement of the rule by Lord Herschell in Browne v Dunn was as follows:

Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”[3]

  1. At [182] and [183] of Burke Buss JA goes on to discuss the central purpose of the rule in Browne v Dunn, which is fairness.  That means that its application is not automatic in any given case.  In particular Buss JA remarks, “The first limb does not apply where the witness is clearly on notice of the other party’s or cross-examiner’s intention to invite the court to disbelieve the witness and the witness is also clearly on notice as to the grounds upon which it will be contended that his or her evidence should be disbelieved.”
  2. Here I think that cross-examination of Dr Davis was too brief, and too oblique to the credit issues in the case, to be fair in terms of the above rule.  In those circumstances I think that the trial before the Magistrate miscarried because he did not advert to this point and made credit findings against Dr Davis when they were not fairly open to him having regard to the conduct of the trial.
  3. The question for this Court then was whether the District Court Judge ought to have remitted the case for retrial.  The District Court Judge’s reasons for remitting the case for retrial were that he did not feel in any position to resolve the credit issues which arose on the evidence.  I have some sympathy with his thinking in that regard.  The evidence of the child complainant was, so far as the transcript reveals, grossly unreliable.  The mother’s evidence was given in an interrupting and argumentative fashion and was selfcontradictory on many significant points of fact.  On the other hand, Dr Davis’ evidence was also argumentative at times, and certainly reads as at least inauthentic and reconstructed in many parts.  However, I think that the reasons which the District Court Judge gave for not wishing to determine the credit issues in the case did not pay sufficient regard to the fact that in determining the case on appeal he was very limited in the credit findings he could make against Dr Davis, because of the prosecutor’s non-compliance with the rule in Browne v Dunn.  Had the District Court Judge realised just how circumscribed the credit findings open to him were, I think he had no alternative but to determine the case by entering a verdict of acquittal.  Unless credit findings similar to that which the Magistrate made against Dr Davis could properly be made, there must have been a reasonable doubt as to guilt.
  4. In these circumstances, my view is that the discretion of the District Court Judge as to whether to remit the matter to the Magistrate or not did miscarry.  On the evidence and the conduct of the case before the Magistrate a verdict of an acquittal ought to have been entered.  To order a new trial was to allow the Crown to “supplement a case which has proved to be defective”,[4] a course which was not warranted.  The applicant asked this Court to order a verdict of acquittal.  I think there is ample power for the Court to do that pursuant to s 119(2)(b) of the District Court of Queensland Act.  It was done, for example, in Rowe v Kemper.[5]
  5. For the above reasons I would grant leave to appeal; allow the appeal; set aside the orders of the District Court; quash the conviction in the Magistrates Court, and enter a verdict of acquittal on the charge of common assault.
  6. NORTH J:  I have read the reasons for judgment of both Dalton J and Fraser JA.  I agree with the observations of Fraser JA and subject to those with the reasons of and orders proposed by Dalton J.

Footnotes

[1] See R v Wilson [2014] QCA 350, [33] and see also Burke (below) [184].

[2] [2012] WASCA 49.

[3] Browne v Dunn (1893) 6 R 67 HL, cited in Burke at [178].

[4] King v The Queen (1986) 161 CLR 423, 433.

[5] [2009] 1 Qd R 247, [83].

Close

Editorial Notes

  • Published Case Name:

    Davis v Commissioner of Police

  • Shortened Case Name:

    Davis v Commissioner of Police

  • MNC:

    [2016] QCA 246

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Dalton J, North J

  • Date:

    30 Sep 2016

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2015] QDC 253 09 Oct 2015 -
Appeal Determined (QCA) [2016] QCA 246 30 Sep 2016 -

Appeal Status

{solid} Appeal Determined (QCA)