Moss v Queensland Police Service
[2022] QCA 15
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- Unreported Judgment
- Moss v Queensland Police Service[2022] QCA 15
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Moss v Queensland Police Service[2022] QCA 15
Moss v Queensland Police Service[2022] QCA 15
SUPREME COURT OF QUEENSLAND
CITATION: | Moss v Queensland Police Service [2022] QCA 15 |
PARTIES: | MOSS, Jamey Carl Peter (applicant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | CA No 234 of 2020 DC No 47 of 2019 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Extension of Time s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court at Cairns – [2019] QDC 222 (Morzone QC DCJ) |
DELIVERED ON: | 15 February 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 November 2021 |
JUDGES: | Fraser and McMurdo JJA and Bradley J |
ORDER: | The application for leave to appeal is refused. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – where the applicant was found guilty after summary trial of serious assault of a public officer causing bodily harm – where the applicant was convicted and sentenced to nine months imprisonment – where the applicant appealed his conviction and sentence to the District Court under s 222 of the Justices Act 1886 (Qld) – where the District Court judge dismissed the appeal against conviction and allowed the appeal against sentence – where the applicant was re-sentenced to six months imprisonment suspended after 51 days – where the applicant seeks an extension of time pursuant to s 118 of the District Court Act of Queensland 1967 (Qld) to appeal the District Court judge’s decision to dismiss the applicant’s s 222 appeal against conviction – where the applicant appeals on grounds that, inter alia, his lack of legal representation at the summary trial was unjust and the complainant witness was unreliable and not credible – where an appeal against conviction must be based on an error of law – whether the District Court judge made an error of law in dismissing the applicant’s s 222 appeal against conviction – whether the sentence of the District Court judge was manifestly excessive Criminal Code (Qld), s 340(2AA)(a), s 552A(1), s 552D(1), s 552H(1) District Court of Queensland Act 1967 (Qld), s 118 Justices Act 1886 (Qld), s 222 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited |
COUNSEL: | The applicant appeared on his own behalf S L Dennis for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent |
- [1]FRASER JA: I agree with the reasons for judgment of Bradley J and the order proposed by his Honour.
- [2]McMURDO JA: I agree with Bradley J.
- [3]BRADLEY J: The applicant Jamey Carl Peter Moss seeks an extension of time to apply for leave to appeal a decision of the District Court, under section 118 of the District Court of Queensland Act 1967 (Qld). The District Court decision determined the applicant’s earlier appeal against his conviction and sentence in the Magistrates Court.
The proceeding in the Magistrates Court
- [4]On 11 January 2019, the applicant appeared before Magistrate Braes in the Magistrates Court at Mareeba. He was charged with an offence under section 340(2AA)(a) of the Criminal Code (Qld) (the Code), namely serious assault of a public officer with the aggravating circumstance of causing bodily harm to the public officer. It was alleged that the applicant committed this offence on 24 August 2017 in Kuranda by assaulting an ambulance officer and paramedic, Adrian Craig Church.
- [5]The offence carries a maximum penalty of 14 years imprisonment. The prosecution elected to have the charge heard and decided summarily in the Magistrates Court, pursuant to s 552A(1) of the Code. No issue was raised that the applicant, if convicted, may not be adequately punished on summary conviction because of the nature or seriousness of the offence (or any other relevant consideration).[1] When dealt with summarily, the maximum penalty for the offence is 10 penalty units or three years imprisonment.[2]
- [6]According to the transcript of the trial, the matter had been first mentioned in the Magistrates Court on 13 November 2017. The applicant, through the duty lawyer, had indicated a plea of not guilty. At a mention on 15 October 2018, the summary trial had been set down for 11 January 2019.
- [7]The charge was prosecuted by Senior Constable Mitchell of the Queensland Police Service. The trial commenced on 11 January 2019 at 12.35 pm. The applicant appeared for himself.
- [8]Over the afternoon, the prosecutor called three witnesses: the complainant, Mr Church; an attending police officer, Sergeant Shane Andrew Mattes; and a medical practitioner who saw Mr Church the day after the alleged offence, Dr Hal Hancock.
- [9]Mr Church gave evidence between 12.50 and 1.09 pm. He said he had been a paramedic for about 19 years. He said he was on call on the night of 24 August 2017. There, he received a call from the Ambulance communications centre about 10.30 or 10.45 pm in relation to a male patient with abdominal pain at the former Kuranda Resort. He said he arrived at the resort at about 11.00 pm in an ambulance vehicle. He said the applicant approached the ambulance vehicle. He said he recognised the applicant in court as the person who approached. He said he had not previously provided any treatment as a paramedic to the applicant.
- [10]Mr Church said he opened the side door of the ambulance and the applicant “jumped” into the rear section of car, sat in the treatment chair, put his feet up on the bed and asked Mr Church to treat him, saying he had pain. Mr Church said he then informed the applicant that he would like to take the applicant’s blood pressure and use a pulse oximeter. Mr Church said, “At that point, he’s told me that – aggressively, that he’s in pain and to hurry up, basically.” When pressed to recall what the applicant said, Mr Church told the court:
“I think, “Hurry up, cunt”, or words to that effect. It was his tone, as well. His demeanour changed, pretty much, instantly, as soon as he got into the car. It was – became quite aggressive and threatening.”
- [11]Mr Church gave evidence that he withdrew from the back of the vehicle and opened the front passenger-side door, reached into the front cabin, and used the car radio to press the distress button. Mr Church said the applicant came out of the back section of the vehicle and confronted him, put his arms around Mr Church and gripped him, demanding drugs. Mr Church said he pushed past the applicant and went around the rear of the vehicle to reach the front driver’s door. He said the applicant had moved around the front of the vehicle and confronted Mr Church while standing or leaning in the open driver’s door. Mr Church gave evidence that:
“Around that time, he’s pushed me backwards - - -
… and I’ve – they’ve got a – a large hinge on the side of the – the other side of the vehicles where the door hinge and I’ve hit that, somewhere in my spine, between my shoulder blades, quite hard – or very hard, actually. I had bruising from it.”
- [12]Mr Church then gave evidence that the applicant told him he would call for another ambulance and while the applicant was retrieving a bag with a mobile telephone in it, Mr Church managed to get into the vehicle, reverse up the driveway and drive some distance away to call the ambulance communications centre. He also said he later drove back to the resort where he spoke with the police.
- [13]He was asked about the consequences of the interaction with the applicant. He said he had “some bruising to my back and particularly, a painful back, like, central spine, for a couple of months” after the incident with the applicant. He said he went to see a doctor the next day and received some pain relief. Mr Church said he attributed the pain to “being pushed back onto the car. Onto the hinge. Because the hinge is quite large. It’s like a large cylinder that hangs a large door, so the top of it’s basically a big, round, stainless steel section. It protrudes from the side of the vehicle.” He said he suffered obvious discomfort at the time. He said, “The bruising went down in a week or so, but I actually had residual pain from where – like, on my spine for a couple of months. Yeah. Which was on and off, it wasn’t a continuous thing, but it was definitely irritating.”
- [14]The applicant cross-examined Mr Church between 1.09 pm and 1.39 pm, when the court adjourned, and again between 3.05 pm and 4.08 pm. He put parts of a statement taken by the police to Mr Church. The applicant’s cross-examination focussed on where Mr Church parked the ambulance vehicle, whether Mr Church took particulars from the applicant, where the applicant was standing or leaning at different times, whether Mr Church made telephone calls or used a radio or some other device to call for assistance, and whether the alleged assault had occurred before or after Mr Church sought police assistance. These lines of questioning were directed to the credit of Mr Church, rather than to his evidence about the facts material to the alleged offence. The learned magistrate advised the applicant that he should put his version of events to Mr Church to the extent that it differs from the evidence Mr Church had given to the court. Shortly after the cross-examination resumed, the learned magistrate reminded the applicant:
“The main thing is, if you’ve got a different version of events, if you say he didn’t open the door or you didn’t get in the car or you didn’t threaten him, you didn’t push him, so if you’ve got a different version of events, that’s what you should be concentrating on putting to him.”
- [15]This advice was repeated several times in the course of the balance of the cross-examination. Although the applicant put to Mr Church different versions of many other matters, peripheral to the alleged assault, he did not put a different version of the events constituting the alleged assault.
- [16]As Judge Morzone QC observed, there was no real challenge to Mr Church’s evidence about any of the substantive matters constituting the offence. The applicant put to Mr Church repeatedly and, as the learned magistrate noted, forcefully that the witness was not being truthful in his evidence; going so far as calling Mr Church a liar on several occasions. The learned magistrate allowed the applicant considerable leeway in cross-examination, only challenging him when he persisted for an extended period with a credit topic despite repeated and consistent answers from Mr Church. The applicant spent much of the time in cross-examination making statements to or about Mr Church, rather than asking him questions.
- [17]As Judge Morzone QC observed:
“After considering the transcript of the hearing, it seems to me that the magistrate was remarkably patient, fair and proper in the circumstances. I cannot find any basis or reasonable justification for the [applicant’s] assertions of the magistrate being partial and prejudicial. He was merely trying to keep the [applicant] focused without argumentative repetition, and at one point to help him understand the plain meaning of the witness’s use of the description ‘pillar’ as being referable to a car, rather than some phantom issue conjured up by the [applicant’s] misunderstanding of a pillar of a building.”
- [18]Sergeant Mattes gave evidence in chief from 4.10 pm until 4.43 pm. He said that he received a call from police communications on the night of 24 August 2017 in relation to a request for assistance from the Queensland Ambulance Service and, as a result, he attended the Kuranda Resort at about 11.25 pm. No ambulance vehicle was present at the Resort. Sergeant Mattes then had a conversation with the applicant, who was in a unit at the resort. He activated his body-worn camera to record the conversation. He identified a compact disc recording of the body camera footage of an interview between Sergeant Mattes and the applicant, in the presence of Senior Constable Deborah Brands, on 24 August 2017, lasting about six minutes, (the body camera footage) and a synopsis of the body camera footage he prepared (the synopsis). The body camera footage was played to the court.
- [19]Sergeant Mattes gave evidence that he spoke with the applicant as the two walked from the applicant’s unit to the police car, parked some distance away and that the applicant accompanied Sergeant Mattes and another police officer, Senior Constable Deborah Brands, in the police car when they drove away from the Resort.
- [20]Sergeant Mattes gave evidence that he spoke with Mr Church on the side of the road, while the applicant and Senior Constable Brands remained in the police car. Following that conversation, Sergeant Mattes returned to the police car. There he informed the applicant that he was under arrest for assault, and that he would be taken to the Mareeba Hospital for treatment.
- [21]Sergeant Mattes said he left the applicant at the hospital with Senior Constable Brands. He later saw the two at the Mareeba Police Station. He told the court:
“Once he returned to the police station, I offered him the opportunity to participate in a record of interview in relation to the matter, which he declined. I then issued him with a notice to appear before Mareeba Magistrates Court in relation to the matter and I also issued him with an identifying particulars notice requiring him to attend the Kuranda Police Station within seven days to have his identifying particulars taken.”
- [22]Sergeant Mattes said he then drove the applicant back to the Kuranda Resort, dropping him off at the carpark.
- [23]Sergeant Mattes said he requested a copy of any radio or telephone recordings in relation to the matter. He said he received two “000” recordings of conversations between the applicant and the Ambulance Service telecommunications operator. A compact disc containing these recordings and an associated certificate about the making of the disc were tendered as evidence in the prosecution case.
- [24]The applicant objected to the tender of the “000” recordings on relevance grounds. His objection was overruled. He raised a further objection - to the effect that Mr Church made another call on the same evening that was not tendered. The learned magistrate informed the applicant that he could tender such further evidence in his own case, if he chose, but did not uphold the objection to the tender of the recordings tendered by the prosecutor. The recordings were played to the court during the evidence in chief of Sergeant Mattes.
- [25]The applicant cross-examined Sergeant Mattes between 4.43 pm and 4.48 pm. In response to the applicant’s questions, Sergeant Mattes told the court that, on the evening of 24 August 2017, in the police car and at the Mareeba hospital, the applicant had asked repeatedly what he had done wrong. He confirmed his evidence that on the evening he was accompanied by Senior Constable Brands. Sergeant Mattes said the recordings of the “000” telephone calls were the only ones provided to him by the Ambulance Service. He said he was the only officer wearing a body camera on that night and Senior Constable Brands was not wearing one.
- [26]Sergeant Mattes agreed that the applicant was very cooperative when he first encountered him at the resort. He said the applicant became quite agitated at the hospital and made threats towards Senior Constable Brands. He said they waited with the applicant at the hospital for at least two hours. The applicant referred to a statement of Senior Constable Brands. The learned magistrate cautioned the applicant that the statement was not in evidence, but the applicant insisted on asking Sergeant Mattes whether he heard the applicant say some things that, he contended, were mentioned by Senior Constable Brands in her statement.
- [27]Dr Hancock have brief evidence in chief between 4.48 pm and 4.52 pm. Referring to his notes, Dr Halcock gave evidence that he attended Mr Church at 12.34 pm on 25 August 2017, the day after the alleged assault. He said, at the time Mr Church complained of headaches and neck pain. Dr Halcock said he took a history and did an examination of Mr Church’s neck. The prosecutor adduced the following evidence from Dr Halcock in examination
“And what was the results of that examination, Doctor? --- So what I found was that he had generalised decreased range of motion within his neck which was painful and he had trapezial tightness on both sides which [indistinct] are part of the neck muscles.
Yes? --- He had normal sensation and feeling in his hands and fingers, but he had pain predominantly around the level of C7 within his neck, with tightness and pain.
Just in layman’s terms, what part of the neck did you – were these injuries noted? --- Predominantly in the muscles of the neck. So trapezius is the large muscles that run from the back of the neck down into the shoulders.
…
And as part of your examination, did you provide – was there any medication or anything given to the patient? --- Yes. So I advised rest, gradual return to activity, stre – sort of passive and active stretching and strengthening exercises and anti-inflammatories, so things such as Ibuprofen.
Doctor, when you made your examination, did you see any bruising at all to the neck or back area? --- Not that I’ve documented, no.
…
…Doctor, in your opinion, would the injuries that you diagnosed, would they be ones that would likely interfere with the health or comfort of a person? --- Yeah.”
- [28]In a short cross-examination, between 4.52 pm and 5.00 pm, the applicant asked few questions of Dr Hancock. Of relevance, he asked:
“… The man’s injury – you said you saw no bruises? --- That’s correct.
You recommended a Burofen, Ibuprofen anti-inflammatory? --- That’s correct.”
- [29]There was no re-examination of any prosecution witness. With the completion of Dr Hancock’s evidence, the prosecution having closed its case against the applicant. The trial did not conclude that day. It was adjourned at 5.07 pm.
- [30]The trial resumed on 21 February 2019 at 10.46 am. On that second day, the applicant sought an adjournment. He identified as reasons: a wish to recall and cross-examine the prosecution witnesses he had cross-examined on 11 January 2019; a wish to tender another recording (perhaps disclosed in the brief of evidence by the prosecution); and a wish to obtain a transcript of the first day of the trial to use in the preparation of his closing submissions. The prosecution opposed an adjournment. The learned magistrate refused it, finding the applicant had extensively cross-examined the main prosecution witnesses (Mr Church and Sergeant Mattes) and had had ample notice and a reasonable opportunity to prepare for the second day of the summary trial.
- [31]The applicant gave evidence and was cross-examined by Senior Constable Mitchell. The applicant denied that he was angry at Mr Church at any time before Mr Church called for police assistance. He admitted confronting Mr Church about calling the police. He said he did not lay a finger on Mr Church. He denied pushing Mr Church and denied that Mr Church hit the door hinge of the ambulance vehicle. The applicant admitted he verbally abused Mr Church and also an ambulance telephone operator, whom he called after Mr Church had left the resort. He said he was interviewed and gave a statement to the police against the advice of his legal representation.
- [32]The applicant concluded his case at about 11.50 am. He renewed his application for the trial to be adjourned. It was refused. He requested a short adjournment to finalise his closing submissions. The learned magistrate adjourned the court, resuming at 12.17 pm.
- [33]When the trial resumed, Senior Constable Mitchell addressed first, summarising the evidence of Mr Church, Sergeant Mattes and Dr Hancock, he submitted that their evidence should be accepted.
- [34]The applicant then addressed. He submitted that Mr Church was not a reliable witness and the court should find that Mr Church had lied in his testimony. The applicant referred to parts of the transcript of the first day of the trial, identifying four places where he submitted Mr Church’s evidence had not been truthful. He told the court there had been a conspiracy of at least two public officers to lie about the applicant at the trial. It was not clear whether the applicant was alleging that the other conspirator was Sergeant Mattes or Dr Hancock.
- [35]There were no submissions or address in reply.
- [36]At 1.03 pm, after the addresses were completed, the learned magistrates delivered judgment, finding the applicant guilty of the assault as charged.
- [37]The learned magistrate provided short reasons. In these, he identified the elements of the offence with which the applicant was charged. The learned magistrate explained that, although he had considered all of the evidence, he referred only to some of the evidence. The reasons included the following references and findings:
“I accept the evidence of Mr Church. I accept he is, by definition, a public officer, and I accept that he was performing a function of his office. Mr Moss, as I say, has a blanket denial of any incident, any wrong doing at all. Nevertheless, he does accept in evidence that he became abusive to Mr Church, that he lost his composure. It is un-contradicted, I believe, evidence that [the applicant] was aggressive to the triple 0 operator, and also it is not contradicted that he was aggressive towards Officer Brands at the hospital. So whilst Mr Moss would have us believe, or have me believe, that he did absolutely nothing wrong, and that he was a person in distress simply seeking help, the evidence clearly contradicts that in those ways that I have discussed.
I therefore accept the evidence of Mr Church over that of Mr Moss. I find, therefore, that Mr Moss did assault Mr Church in the manner as described by Mr Church. I find that there was no provocation or self-defence, or other justification or excuse for the assault, and I find that Mr Church did not consent to being assaulted by Mr Moss. I therefore find that the prosecution has established all the elements of the charge.
I find that Mr Moss did assault Mr Church. I find that Mr Church did not consent to the assault. I find that Mr Moss was not provoked to assault Mr Church. I find that the defendant was not acting in self-defence of an unlawful assault upon him, not that either of those issues of provocation or self-defence have been raised here. I therefore find that Mr Moss’ assault on Mr Church was not authorised, justified or excused by law, and I find him guilty as charged.”
- [38]Senior Constable Mitchell then made submissions on sentence. The learned magistrate called on the applicant to make submissions on sentence. The applicant made oral submissions, but these were confined to assertions that he was innocent of the charge and had been wrongly convicted. In the course of these oral submissions, the applicant told the learned magistrate:
“In the past I’ve been treated and given the [indistinct] of – been given section 32, if you know what it means. You may not know what section 32 means. Because I’ve got a mental issue so I’m not – and I’m on medication. I’m not entirely responsible for – I get, like – they give you a vastly reduced sentence. So I got vastly reduced sentences because of my metal condition, which, really, I don’t even want to use as, like – as a – I don’t even want to have to defend myself against my innocence.
I believe possibly that I may be – I don’t know, but be entitled to some sort of pre-sentence report or something along those lines on the basis that I really have been trying very hard in the community to do the right thing. I’ve pleaded innocent and I’m so innocent and that – I really hope, like – I’m not – I’ve got quite a bad record – I’ve paid for my mistakes and – well, perhaps a pre-sentence report may help the court in deciding whether or not they’re going to give me a very, very heavy sentence or whether or not, perhaps, give me a lenient sentence on the basis I’ve got – that I’ve been treated under section 32 by the Mental Health Act on a number of occasions. It’s a difficult situation to request a pre-sentence report [indistinct] locked up in jail or perhaps parole, in jail or community service or something when you’re innocent. It’s terrible. It’s terrible not – it’s a terrible situation. It’s despicable. I’ll finish up.”
- [39]The learned magistrate raised with the prosecutor whether he should call for a pre-sentence report on the applicant. The prosecutor opposed such a step. The applicant made no further submission on the point. After these submissions were made, the learned magistrate found that the provision of a presentence report would not assist greatly in determining the appropriate sentence.
- [40]The learned magistrate sentenced the applicant to serve nine months’ imprisonment and fixed a parole release date of 20 March 2019, about 27 days from the sentencing date. No order was made for the applicant to pay compensation to Mr Church. The applicant had been on bail for this offence and for two other, unrelated charges. The learned magistrate enlarged the applicant’s bail on the other charges, listed them for 4 March 2019, and provided for a notice to produce to be issued to ensure the applicant was brought to court for an opportunity to see a lawyer on that date.
The appeal to the District Court
- [41]On 19 March 2019, the applicant filed a Notice of Appeal to the District Court under s 222 of the Justices Act 1886 (Qld). This was within the period of one month fixed for instituting such an appeal.
- [42]It appears the applicant was not released on parole on 20 March 2019. He remained in custody until granted bail, pending his appeal, by Judge Fantin on 12 April 2019.
- [43]On 10 May 2019, the applicant filed an Amended Notice of Appeal together with a signed letter addressed to the Court on his grounds of appeal.
- [44]On 8 August 2019, the appeal was heard before Judge Morzone QC in the District Court at Cairns. The hearing commenced at 10.16 am. The applicant represented himself. Mr Hancock appeared for the respondent. His Honour began by asking the applicant to identify the material, including written submissions, the applicant wished the court to consider in the appeal.
- [45]The applicant’s material included a brief summary of the reasons the appeal against the verdict should be allowed prepared by the applicant and submitted with the appeal, written submissions prepared by Ms S Williams of Counsel dated 14 June 2019 to the effect that the sentence imposed was manifestly excessive, and an outline of submissions by the applicant filed on 21 June 2019. His Honour explained to the applicant the mode of the appeal, being a rehearing on the evidence before the learned magistrate. The applicant then made oral submissions on the appeal.
- [46]Mr Hancock relied on written submissions filed 22 July 2019. He also made oral submissions for the respondent. During these, Mr Handcock tendered a presentence custody certificate. It indicated that the learned magistrate had erred in assessing the time the applicant had spent in custody before the sentence was imposed on 21 February 2019. The certificate revealed that the applicant had spent a total of 51 days in custody between 21 February 2019 and 12 April 2019.
- [47]The applicant then made further oral submissions, in response to those of Mr Hancock. In reply, Mr Handcock made two short submissions.
- [48]There was a short adjournment between 11.29 am and 12.21 pm to allow the applicant to send to the respondent a photograph and a video recording he wished to tender as evidence in the appeal. Following the adjournment, the video recording was played to the court, and the photograph examined and tendered. There was another short adjournment between 1.11 pm and 1.14 pm to allow the applicant to gather his thoughts for any final submissions. The applicant closed his case in the appeal and hearing concluded at 1.31 pm. His Honour reserved his decision on the appeal.
- [49]On 8 November 2019, Judge Morzone QC delivered judgment on the applicant’s appeal. His Honour discerned from the applicant’s written and oral submissions that there were three grounds of appeal:
- (a)The complainant was not a credible witness;
- (b)There was insufficient evidence of an assault of or bodily harm to the complainant and so the conviction was unsupported and unreasonable; and
- (c)The learned magistrate had erred in the exercise of the sentencing discretion in relation to the nature and extent of the bodily harm going to the seriousness of the offending, and the appellant’s mental health, and thereby imposed a manifestly excessive sentence.
- (a)
- [50]In the reasons, Judge Morzone QC considered the evidence adduced at the hearing before the learned magistrate and the magistrate’s findings. His Honour identified the legal basis for a challenge to findings of fact the learned magistrate had made based on the credit of witnesses. This was followed by the following conclusions:
“[34] It seems to me that the officer’s testimony had a ring of truth as he perceived matters unfolding form [sic] his unique perspective. Despite the [applicant’s] best efforts at the trial, the officer’s version of events remained mainly unchanged through cross-examination. The officer’s evidence was largely consistent with the medical evidence, which in turn was also consistent and coherent. Whilst the evidence contains minor discrepancies, these are consistent with frailties of human recollection, and none was fatal to the witnesses’ credit.
[35] He asserts that “the whole case is a pack of lies” and “bizarre” and took me to various instances to make his point both in his written and oral submissions, including improper motive of the officer to claim compensation, conspiracy, absence of bruising conceded by the doctor, where the officer says he hit his back, and his departure from the scene. I do not accept that the matters laboriously identified by the [applicant] on appeal show those witnesses to be inconsistent, lying, and exaggeration, and totally unreliable. In contrast, the [applicant’s] version, on the other hand, seemed highly implausible as he maintained the assault never occurred and the complainant had no reason to become concerned at any stage.
[36] I am unable to conclude that the magistrate 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 otherwise glaringly improbable.
[37] For these reasons, on my own review of the evidence, it seems to me that the verdict was reasonable and supported by the evidence, and according to law. I therefore dismiss the appeal against conviction.”
- [51]His Honour then turned to the sentence imposed by the learned magistrate. The principles relating to an appeal against sentence were identified and the applicant’s submissions were considered. His Honour then expressed the following conclusions:
“[48] The appellant referred to his mental health conditions, saying that he had “an anti-social disorder” and “an acute anger management disorder” and that he was medicated with “Valium and stuff”. He asked the court to consider ordering a pre-sentence report to “help the court in deciding … sentence … I’ve been treated under section 32 by the Mental Health Act on a number of occasions.”
[49] These matters were, in my respectful opinion, relevant to sentence, and preparation of a pre-sentence report pursuant to s 344 of the Corrective Services Act 2006 (Qld) was warranted.
[50] For these reasons, in my respectful view, the trial magistrate erred in exercising the sentencing discretion by failing to take into account some material considerations regarding the appellant’s state of mental health at the time of the offending, and at the time of sentence. In the result, the sentence is vitiated by the error.
[51] I therefore allow the appeal against sentence.”
- [52]As these parts of the reasons indicate, Judge Morzone QC dismissed the appeal against conviction and allowed the appeal against the sentence imposed by the learned magistrate. His Honour’s published reasons are 14 pages in length.[3] His Honour also ordered that a pre-sentence report be prepared pursuant to s 344 of the Corrective Services Act 2006 (Qld) in respect of the applicant, including an assessment of his mental health in the form of a psychiatric and/or psychological assessment, for the purposes of re-sentencing the applicant for the assault offence. The applicant did not appear on 8 November 2019 to receive the decision on the appeal. He had given notice of his non-appearance to the court. Judge Morzone QC directed that the matter be listed at a later date for a hearing on sentence.
- [53]On 24 June, 17 September and 4 November 2020, the sentencing hearing was conducted before Judge Morzone QC. The applicant appeared for himself on each occasion, including by telephone. Ms Shaw, a legal officer, appeared as prosecutor on each occasion. Submissions were made on sentence, including submissions on the presentence reports by Dr Jeff Nelson dated 27 April 2020 and by Ms Tamika Burns. Ms Burns’ report is dated 27 April 2019, but it was likely made on 27 April 2020, as it refers to Dr Nelson’s report. Before the 4 November 2020 hearing, the applicant communicated with his Honour’s associate about cross-examining the Dr Nelson and Ms Burns.
- [54]On 30 October 2020, shortly before the hearing on 4 November 2020, the applicant had filed his application for leave to appeal to this Court against the decision of Judge Morzone QC to dismiss his appeal against conviction. On 4 November 2020, the applicant explained this to Judge Morzone QC, and sought an adjournment of the sentencing hearing until this Court had decided the application for leave to appeal his Honour’s 8 November 2019 decision. The prosecution opposed an adjournment. The applicant then sought an adjournment to put his further submissions in writing. His Honour granted an adjournment until 4 December 2020, to allow the applicant to prepare and submit his further written submissions.
- [55]On 4 December 2020, the sentencing hearing resumed, and Judge Morzone QC delivered judgment. His Honour reduced the sentence formerly imposed by the Magistrates Court from nine months to six months’ imprisonment. By this time, the applicant had served seven days on remand in respect of this and other matters and then 51 days in custody as part of the sentence imposed in the Magistrates Court. Judge Morzone QC reached the view that no further time in custody would be appropriate and that the applicant was not an appropriate candidate for parole. Accordingly, his Honour ordered that the term of imprisonment be partly suspended after having served 51 days and fixed an operational period of six months.
Leave to appeal against the failure to set aside the conviction
- [56]In this Court, the applicant seeks leave to appeal from the decision of Judge Morzone QC made on 8 November 2019. The Notice of Application for Leave to Appeal is dated 16 September 2020, more than ten months after his Honour’s decision. It was filed on 30 October 2020, by then more than 11 months after the decision. In recognition of its lateness, it was accompanied by a Notice of Application for an Extension of Time within which to file the Notice of Application for Leave to Appeal. A notice of appeal must be filed within 28 days after the date of the decision appealed from, unless this Court orders otherwise.[4]
- [57]The only explanation for the delay in seeking leave to appeal that the applicant offered was that he “was told to fill in the wrong forms” and “they were sent back and more are required”. No dates were given for these events. No earlier forms were included in the appeal record book.
- [58]The application foreshadows an appeal against the decision of Judge Morzone QC to dismiss the applicant’s s 222 appeal against his conviction for the offence of serious assault. The ground stated in the notice is:
“the judgment is a blatant perversion of justice, all the evidence shows I am innocent, this is a case of a junkie ambulance driver with a 1 inch by 2 inch black rectangle tattooed on his main line and long hair gaining compensation by [deceit] at my cost and detriment”.
- [59]At the hearing of the application for leave to appeal, the applicant identified the following as his proposed grounds of appeal against the decision of Judge Morzone QC not to set aside his conviction:
- (a)The applicant believed he was entitled to legal representation at the summary trial. If he was unable to afford legal representation, he submitted that the State was required to appoint a lawyer to represent him. His application for legal aid had been refused. By “a junior lawyer”.
- (b)Mr Church as a witness was unreliable because he contradicted his prior statements on three or four occasions during cross-examination.
- (c)The applicant was not allowed to call evidence of audio and video recordings and of prior statements by prosecution witnesses.
- (d)The police did not investigate the alleged offence, but merely “wrote out a ticket” for the offence.
- (e)The evidence of injury to Mr Church, provided by Dr Hancock did not prove serious assault as charged.
- (f)The learned magistrate had declined to order a pre-sentence report.
- (a)
Consideration of the proposed grounds of appeal against the order dismissing the appeal against conviction
- [60]It is convenient to consider in turn each of the applicant’s grounds identified at the hearing.
Entitlement to legal representation
- [61]The applicant was not legally represented at the summary trial. He made confusing statements about his ability to obtain representation.
- [62]He told the learned magistrate that he agreed to be interviewed by Sergeant Mattes on the evening of the alleged offence despite advice from his legal representative not to do so.
- [63]At 5.00 pm on the first day of the summary trial, the prosecution closed its case. The learned magistrate asked the applicant whether he intended to call evidence and discussion ensued about a date on which the summary trial could resume. In explaining to the learned magistrate that he intended to call evidence, the applicant said:
“if it comes to it, I’ll be getting a QC. I’ll be bringing a – I’ll be having a QC sort this out. I’ve got a QC sorts it out – things out for me for free. My barrister appeared for me for free 10 times when I was younger and I got a QC available. And it may be – it depends on what the result is, but if it comes to it, I’m going to go straight to my QC. And I’ve got family QCs as well who know how to sort things out very simply. … I thought this would be so simple and I can handle it, but I’m obviously not the person for this job.
So I’ll be appealing – if I get found guilty. I’ll be appealing, taking [indistinct] court and using a solicitor, but, yeah, sure, I’d like to appear in evidence and be cross-examined.”
- [64]When the hearing resumed about six weeks later, again the applicant appeared on his own behalf. He informed the court that he had sought advice from a lawyer at the Cairns Community Legal Centre, who had given him “a little bit of advice” on how he should proceed.
- [65]At the hearing of the present application, the applicant told this Court:
“I’d like to say I’m prepared to go to the High Court over the whole matter. I’ve got friends of the QC who instead of bothering them with their [indistinct] QCs and their hundred barristers and their 400 solicitors I thought, “I’ll handle it myself.” I’ve got another – another solicitor appeared 10 times for free for me. I’ve got the ability to – to – to 5 finance some – some – some serious, like, I’m – I’m not – I’m not going to let these people [indistinct] I’m going to hurt their – I’m going to hurt their – hurt their reputations.”
- [66]The applicant says he applied for legal aid and it was refused. He told this Court that, “About 10 levels of legal assistance said I didn’t even have a chance in court and I wasn’t entitled to legal assistance.” Whether a refusal of legal aid led to an unfair trial depends upon the nature of the trial.
- [67]The learned magistrate’s decision and the decision of Judge Morzone QC on the appeal against conviction were not based on any contested point of law. The initial conviction turned on a question of the credit of Mr Church and of the applicant, which the learned magistrate resolved against the applicant by preferring and accepting Mr Church’s recollection of the relevant events. A small number of objections were raised by the applicant in the summary trial. None succeeded. Had the applicant been legally represented at the trial, it seems unlikely any of these objections would have been made.
- [68]The decision of Judge Morzone QC – proposed to be the subject of an appeal in this Court – turned on a conventional application of settled law, whether his Honour could be satisfied that, acting rationally, the learned magistrate ought to have entertained a reasonable doubt “by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence”.[5]
- [69]The discrepancies identified by the applicant related to peripheral aspects of Mr Church’s evidence, for example whether Mr Church used his mobile telephone or a radio to call for police assistance. Some were the result of a difference of understanding between the applicant and Mr Church as to the timing of the alleged offence (whether it occurred before or after Mr Church called for police assistance) and as to the place where it occurred (near a pillar that was part of the Kuranda Resort building of near the pillar of the ambulance vehicle). As to the evidence of the alleged offence, Mr Church’s description of what he said occurred was contrary to the applicant’s general denial that he assaulted Mr Church at all, save for raising his voice and swearing to and disparaging Mr Church. The learned magistrate had to determine whether the prosecution had proved the elements of the charged offence of serious assault, and the aggravating circumstance of occasioning bodily harm, beyond reasonable doubt.
- [70]As Judge Morzone QC observed in the reasons, the learned magistrate preferred the evidence of Mr Church over that of the applicant. He did so after observing each as a witness and assessing their respective credit. The learned magistrate also accepted Dr Hancock’s opinion about the relevant injuries observed by him when he examined Mr Church.
- [71]Judge Morzone QC applied the well-established legal principles relating to a challenge to a finding of fact that is based on a witness’s credit. His Honour was unable to conclude that the learned magistrate had failed to use or had palpably misused his advantage in observing the witnesses give their evidence. Nor did his Honour find that the learned magistrate acted on evidence which was inconsistent with facts incontrovertibly established by evidence or otherwise glaringly improbable. His Honour concluded that the verdict was reasonable, supported by the evidence, and according to law.
- [72]Given the time that had passed between the night of the alleged offence (24 August 2017) and the dates of the summary trial (11 January 2019 and 21 February 2019) discrepancies of the kind the applicant put to Mr Church would not be material to an assessment of the credit of the witness as to the material allegations of what occurred that evening.
- [73]The applicant has not identified any error of law on the part of Judge Morzone QC and none is apparent from a review of the record of the proceedings below.
Police investigation of the alleged offence
- [74]The evidence of Sergeant Mattes, given at the summary trial, was that he and Senior Constable Brands interviewed the applicant and Mr Church before informing the applicant that they were charging him with assault of Mr Church and well before they issued him with a notice to appear. This was the extent of investigation at that time. Subsequent steps appear to have been the taking of a statement from Dr Hancock and the collection of audio and video recordings made on the evening of the alleged offence.
Evidence of audio and video recordings and prior statements by prosecution witnesses
- [75]The applicant had objected to the admission of the recordings tendered by Senior Constable Mitchell. The objection was dismissed. The ruling on admissibility was not in error. It appears the prosecution disclosed witness statements and additional recordings to the applicant in the brief supplied in advance of the summary trial. At the beginning of the second day of the summary trial, the applicant told the learned magistrate he would like to be able to present or have the prosecution present “police CCTV footage of when they arrived, when they interviewed me, and what I said … and when they interviewed the ambulance officer”. Senior Constable Mitchell informed the court that the recordings had been disclosed in the brief of evidence. The prosecutor said he had not tendered them, considering them to be inadmissible as out of court statements. The learned magistrate noted that the applicant had cross-examined the prosecution witnesses based on statements and recordings not in evidence, and that the applicant might seek to tender such evidence in his case.
- [76]Although he cross-examined Mr Church and Sergeant Mattes, the applicant did not tender any prior statement by either or by Senior Constable Brands at the summary trial. It does not appear that the applicant called for or sought to tender any statement or other recording in his case.
- [77]The applicant cross-examined Mr Church and Sergeant Mattes about the possible existence of other audio and video recordings, not disclosed in the brief. Their evidence was to the effect that no other recordings were in existence.
Sufficiency of Dr Hancock’s evidence of injury
- [78]Dr Hancock’s evidence at the summary trial was sufficient to make out the relevant element of serious assault – an injury likely to interfere with the complainant’s health or comfort.
Magistrate’s decision not to direct a presentence report
- [79]The learned magistrate’s decision not to direct the preparation of a presentence report was made after the applicant was convicted of the offence. It was one of the reasons Judge Morzone QC set aside the sentence imposed on 21 February 2019, upholding the applicant’s appeal in that respect.
Conclusion on the proposed grounds of appeal against the order dismissing the appeal against conviction
- [80]In respect of each and all of these topics, there is nothing in the materials submitted by the applicant which identifies any error on the part of Judge Morzone QC in the decision. It follows that an appeal against his Honour’s dismissal of the s 222 appeal against conviction has no prospect of success. The circumstances do not merit granting leave to pursue such an appeal, nor granting an extension of time to do so.
Leave to appeal against the sentence imposed by Judge Morzone QC
- [81]It appears that the applicant also seeks leave to appeal Judge Morzone QC’s sentence.
- [82]The effect of the sentence was to reduce the time the applicant was required to spend in custody to the period he had already served. It further reduced the total sentence from nine months to six months. His Honour suspended the balance of the sentence with effect from the applicant’s release on 13 April 2019. It set an operational period of six months for the suspended balance of the sentence. That operational period has expired.
- [83]His Honour’s sentence is plainly at the lower end of sentences for offences of this kind. His Honour was persuaded by pre-sentencing reports that further time in custody was not appropriate, nor was the supervision that parole would entail. It is not necessary to deal with that matter on this occasion. It is sufficient to note that the leniency of his Honour’s sentence is such that an appeal against it has no prospect of success.
- [84]In the circumstances there is no utility to granting an extension of time for the bringing of an application or to giving leave to bring an appeal against the sentence imposed.
Final disposition
- [85]For the reasons set out above, the application for leave to appeal the decision of Judge Morzone QC should be refused.