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Millar v Queensland Police Service[2025] QCA 14

Millar v Queensland Police Service[2025] QCA 14

SUPREME COURT OF QUEENSLAND

CITATION:

Millar v Queensland Police Service [2025] QCA 14

PARTIES:

MILLAR, Andrew John

(applicant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

CA No 15 of 2022

DC No 4469 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane – [2021] QDC 304 (Dann DCJ)

DELIVERED ON:

25 February 2025

DELIVERED AT:

Brisbane

HEARING DATE:

8 July 2024

JUDGES:

Mullins P, Boddice JA and Crowley J

ORDERS:

  1. Applications for leave to adduce further evidence refused.
  2. Application for leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant was found guilty after trial in the Magistrates Court of common assault – where the applicant appealed to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) – where the District Court judge dismissed the appeal – where the applicant applies for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) from the District Court – whether the applicant has shown that the District Court judge made an error to be corrected

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant applies for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) from the dismissal of the applicant’s appeal to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) – where the decision on the application for leave to appeal was reserved – where the applicant made subsequent submissions to the Court seeking to reopen the hearing to adduce further evidence – where the focus of the further submissions was on disclosure by the prosecution and matters peripheral to the evidence directly relevant to the assault committed by the applicant – whether it was in the interests of justice to grant the applications for leave to adduce further evidence

Justices Act 1886 (Qld), s 222, s 223

Forrest v Commissioner of Police [2017] QCA 132, cited

McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, cited

COUNSEL:

The applicant appeared on his own behalf

M P Le Grand for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    THE COURT:  On 6 December 2019 Mr Millar was convicted after a summary trial before the learned Magistrate where the evidence was adduced over six days on 3, 4, 23 and 24 July and 24 and 25 September 2019 of one charge of common assault that was committed on 20 May 2018 against the complainant for the reasons delivered by the Magistrate on the date of conviction (the Magistrate’s reasons).  Mr Millar appealed to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) (JA) against the conviction.  The hearing of the appeal took place on 26 October 2020.  Judgment was given by the learned District Court judge on 2 December 2021 when the appeal was dismissed: Millar v Queensland Police Service [2021] QDC 304 (the reasons).  Mr Millar applies for leave to appeal from the District Court judgment pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) (Act).  There are nine grounds for the application.  They are:
  1. The decision was against the weight of the evidence.
  2. The District Court judge misrepresented and/or misunderstood the relevance of evidence given under cross-examination of Crown witnesses in assessment of the appeal.
  3. The District Court judge failed to take into account the particular evidence of the complainant’s mother under cross-examination which proved the complainant committed perjury in her evidence under oath.
  4. The District Court judge failed to take into account the particular evidence of the complainant’s mother which proved that Crown witness Mr Darby committed perjury under oath.
  5. The District Court judge gave much weight to irrelevant areas of Crown witness testimony.
  6. The District Court judge made many findings but then failed to particularise or explain how they were arrived at.
  7. The prosecution failed to make proper disclosure to the applicant by withholding material evidence, being photographs provided by the complainant to Officer Palmer on 23 May 2018 and, as a result, the applicant has been denied the ability to cross-examine the complainant, her mother and Mr Darby in respect of the withheld photographs and the cross-examination that did take place had been affected by the withholding of the photographs.
  8. The prosecution failed to make proper disclosure to the applicant by failing to procure a JA statement from Officer Hodgson who spoke to the complainant on 20 May 2018.
  9. The prosecution failed to make disclosure of a second QPRIME report which contained material evidence of other processes during the investigation phase.
  1. [2]
    Mr Millar appeared for himself before the Magistrate, on his District Court appeal and in this Court.

Nature of the appeal to the District Court

  1. [3]
    Section 223 of the JA provides that an appeal under s 222 is by way of rehearing on the evidence given in the proceeding in the Magistrates Court.  The applicant did not pursue the application which he had filed in the District Court for leave to adduce new evidence (at [11] of the reasons).  The nature of the review task undertaken by the District Court judge on such an appeal is settled.  See McDonaldv Queensland Police Service [2018] 2 Qd R 612 at [47].  What is involved in the District Court judge conducting a real review of the evidence and making up the judge’s own mind about the case was set out by Sofronoff P (with whom Gotterson and Morrison JJA agreed) in Forrest v Commissioner of Police [2017] QCA 132 at p 5:

“Consequently, the learned District Court judge had to consider each of the grounds of appeal raised by the applicant and, having regard to the evidence led in the Magistrates Court and paying due regard to the advantage that the learned Magistrate had in seeing the witnesses give evidence, determine for himself the facts of the case and the legal consequences that follow from such findings of fact.”

Nature of the appeal to this Court

  1. [4]
    The principles that apply to appeals to this Court from the judgment of the District Court in its appellate jurisdiction were summarised by Bowskill J (as the Chief Justice then was) (with whom Fraser and Philippides JJA agreed) in McDonald at [39].
  2. [5]
    Mr Millar’s application for leave must be dealt with in accordance with the principles that apply generally to an appeal pursuant to s 118(3) of the Act after an appeal pursuant to s 222 of the JA has been disposed of by the District Court.  The appeal is an appeal in the strict sense to determine whether there was error made by the District Court in the exercise of its appellate jurisdiction that has resulted in a substantial injustice to the applicant.  As noted in McDonald at [39](c) and (d), leave to appeal is not given lightly.  An applicant has already had the benefit of two judicial hearings and leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.  It is arguable that disclosure issues such as those in grounds 7, 8 and 9 may raise considerations that are additional to the principles that generally govern such an application for leave to appeal.

The charge

  1. [6]
    Mr Millar had originally been charged with assault occasioning bodily harm.  The allegation that the complainant suffered bodily harm covered the scratch on the complainant’s right shoulder that was photographed by the investigating officer, Officer Palmer, on 20 May 2018, when the complainant was wearing a pink singlet top.  On 9 May 2019, the prosecution reduced the charge to common assault.  That was the charge to which Mr Millar pleaded not guilty on 21 June 2019.
  2. [7]
    The trial proceeded on amended particulars provided to the Magistrate on 21 June 2019:

“On the morning of 20 May 2018 Andrew MILLAR engaged in an argument with the complainant…

During the argument Andrew John MILLAR:

  1.  Took hold of the complainant by the shoulders; AND
  1.  Pushed her backwards so she was against a brick wall; AND
  1.  Took the complainant by the neck, with his hands, and squeezed.”
  1. [8]
    It was not in dispute that there was an interaction between the complainant and Mr Millar on the morning of 20 May 2018.  The issue was whether during that interaction Mr Millar unlawfully assaulted the complainant.  As the allegation of bodily harm was no longer an element of the offence that was charged, it was not necessary for the prosecution to prove that the complainant suffered bodily harm in the confrontation with Mr Millar.  Mr Millar had the belief, however, that the complainant had a pre-existing scar on her shoulder and that she lied to the police about it being an injury that she suffered in the confrontation with him.  Mr Millar’s evidence at the trial was to the effect that he never touched the complainant.  Mr Millar cross-examined the complainant on his version of events.  Whether the scratch was a pre-existing injury was pursued by Mr Millar at the trial as an issue affecting the complainant’s credibility.

Grounds 7, 8 and 9

  1. [9]
    As grounds 7, 8 and 9 concern disclosure issues in relation to material that was not made available for the summary trial or the appeal to the District Court, it is convenient to deal with the disclosure issues before turning to the other grounds.
  2. [10]
    As a result of the pursuit by Mr Millar of discrepancies he perceived in the disclosure by the police for the summary trial, further material was disclosed by the prosecution in anticipation of the hearing in this Court.  This included an email from Officer Palmer forwarded by the Director of Public Prosecutions (Queensland) (DPP) to Mr Millar on 23 November 2023 which attached four photographs.  The content of Officer Palmer’s email was as follows:

“I don’t have any further photos except the four in the FBOE; one taken by me and three provided to me by the victim. I have attached these 4 photos.

Officer HODGSON was the Scenes of Crime Officer that added a supplementary report to the occurrence on 20/5/18. This officer was not involved in the trial and has no evidence to offer. The contents of the “Forensic Supplementary” is;

T1802150370. SOC have spoken with [the complainant] who stated that photographs of her injury was taken by attending police and that she was on her way to see a Doctor to have all her injuries documented. There is no value in SOC attendance. No further action.”

  1. [11]
    “FBOE” would appear to be a reference to the full brief of evidence that was put together by the police for the summary trial.  The four photographs comprised one of the scratch on the complainant’s right shoulder when she was wearing a pink singlet top (which was the photograph taken by Officer Palmer) and the three photographs provided by the complainant which were of the scratch on the complainant’s right shoulder when she was wearing a blue and white striped top, the Kia vehicle driven by the applicant on the day of the confrontation parked parallel to the gutter and a photograph of the applicant on the footpath outside the antiques store in the vicinity of which the confrontation took place.
  2. [12]
    As Mr Millar sought further information about a QPRIME occurrence for the incident that had not been previously disclosed to him and the email from the complainant to Officer Palmer that sent the photographs taken by her, that further material and information was provided by the DPP by email on 24 June 2024.  The email from Officer Palmer to the DPP explained that the QPRIME occurrence about which the applicant was inquiring was a “Non-reportable CAD event” which was essentially “a shell occurrence that is generated to link a call for service to QPRIME”.  A copy of the QPRIME occurrence was attached, as was the complainant’s email sent to Officer Palmer on 23 May 2018 with five photographs that were provided by the complainant (and not three photographs as had been previously advised by Officer Palmer).  Officer Palmer confirmed that Scenes of Crime Officer Hodgson did not provide a statement and included a screenshot of the “Forensic Supplementary” report added to the QPRIME occurrence on 20 May 2018 which was in the terms disclosed in Officer Palmer’s email on 23 November 2023.
  3. [13]
    Officer Palmer affirmed an affidavit on 2 July 2024 to explain why he had not previously disclosed to Mr Millar all five photographs.  The two photographs which had not been disclosed (identified by him as photos 2 and 3) were both of the rear angle of the Kia vehicle parked on the street in what appeared to be the same position as in the photograph of the Kia vehicle that was provided to the applicant at the outset.  Photo 2 was taken from a slightly different angle and photo 3 was a closeup.  Officer Palmer explained in his affidavit:

“5. I have looked at the photos I had uploaded to the police database, QPRIME in July 2023 and confirm that I only uploaded three (3) of the five (5) photos provided to me by the victim – Photos 1, 4 and 5 referenced above. I could not locate on the QPRIME report Photos 2 and 3 which were different angles of the silver Kia hatchback. I believe that Photos 1, 4 and 5 were disclosed in the Brief of Evidence for the Magistrates Court Trial.

  1.  I can not recall exactly why I did not upload all five (5) photos to the report nor supply all photos in the brief of evidence for trial. However, having looked at the photos, it is highly likely I deemed them to be of no particular evidentiary value as they do not contain any further evidence or information than Photo 1, which I included in the brief. Photos 2 and 3 are of the same vehicle as in Photo 1 but at different angles and are almost duplicate photos.
  1.  On the 28th of October 2023 I emailed DPP with confirmation that I was only in possession of three photos provided to me by the victim. I can not recall exactly what computer checks I conducted to make that assessment, however as I only uploaded three of the victim’s photos to QPRIME back in 2018 it is likely that I had forgotten about the two (2) photos I had previously identified as ‘duplicates’ or ‘near duplicates’.
  1.  At no point have I intentionally failed to disclose any photos in relation to this matter. The disputed photos are of very similar content to that which I disclosed in the first instance and I believe offer no more evidentiary value to the matter.”
  1. [14]
    At the commencement of the hearing in this Court, Mr Millar raised the discrepancies between Officer Palmer’s affidavit sworn on 2 July 2024 and other material as to how many photographs were taken by Officer Palmer of the complainant’s injuries on 20 May 2018.  When Officer Palmer gave evidence at the summary trial on 4 July 2019, he stated that the complainant “provided me a series of photographs that she’d taken earlier in the morning” and he took a photo on the police iPad of an injury on her shoulder blade.  He also said that the photos provided to him by the complainant were sent by her to his email account.  He then went to the antiques store and conducted a few police checks on the iPad and explained that one of them was of a male and one of them was of a vehicle and, when he checked the registration number of that vehicle, he ascertained it was linked to the applicant and a check of the police photograph of the applicant resembled the male in one of the photos the complainant had provided to him.
  2. [15]
    A further affidavit affirmed by Officer Palmer on 8 July 2024 was filed by the respondent during the hearing of the application in this Court.  That affidavit confirmed that Officer Palmer’s recollection was of taking only one photograph of the scratch on the complainant’s back on 20 May 2018 on his police issued iPad device, referred to as a “QLite”.  He also confirmed that the date on the email with the photo attachments sent to him by the complainant was received by him on 23 May 2018 which was the date of the email and there was no further email correspondence between Officer Palmer and the complainant in relation to or containing photographs.
  3. [16]
    The applicant applied to the Court for leave to cross-examine Officer Palmer because of the discrepancies in the evidence as to the number of photographs he took of the complainant’s injury and also in respect of the photos sent to him by the complainant.  For the reasons given when the Court dealt with the application, the application was refused.  Those reasons were the peripheral relevance of the scratch which was shown on the photograph taken by Officer Palmer and that the two photographs of Mr Millar’s vehicle which had not been made available to him when he cross-examined the complainant were also peripheral to the primary evidence of the interchange of words and actions between the complainant, her mother and the applicant.  It was therefore not in the interests of justice at the hearing of an application under s 118(3) of the Act to permit the cross-examination of Officer Palmer.
  4. [17]
    In fulfillment of the disclosure obligation under s 590AB of the Criminal Code (Qld), the prosecution should have disclosed the email from the complainant dated 23 May 2018 with all five photographs, but ground 7 is incorrect in characterising as “material” evidence the additional two photographs of Mr Millar’s vehicle parked in exactly the same position when the incident occurred though taken by the complainant from slightly different positions than the one photograph taken by her of the vehicle which was disclosed.  The particularised assault had occurred before those photographs were taken.  Asserting in ground 7 that those two photographs denied Mr Millar the ability to cross-examine the complainant, her mother and Mr Darby and affected the cross-examination that did take place is an exaggeration of the effect of the failure to disclose those two photographs.  It is patent from the photographs themselves as to why it was likely that Officer Palmer forgot about the two photographs that were almost duplicates of the photo that the complainant took of Mr Millar’s vehicle when further requests were made of him for disclosure.  There is no substantial injustice to Mr Millar as a result of the prosecution’s failure to disclose these two photographs before the summary trial.
  5. [18]
    As to ground 8, disclosure is concerned with the material of which the prosecution is in possession.  It was not a failure to make proper disclosure by not procuring a statement from Officer Hodgson whose involvement was peripheral.
  6. [19]
    The explanation given by Officer Palmer in relation to the second QPRIME report shows that it was not relevant to the matters in issue and there could not be said to be a failure to make disclosure by the prosecution of something that would tend to help the case of Mr Millar.
  7. [20]
    The applicant does not succeed on any of grounds 7, 8 and 9.

The evidence adduced at the summary trial

  1. [21]
    The complainant’s evidence in chief included the following.  She and her mother were at the intersection of Small Street and Commercial Road, Newstead when a white Kia Sportage came around and did a U-turn in the intersection between the two streets.  It almost came up onto the gutter and hit the complainant and her mother causing them to jump back.  The car then pulled up in front of the antiques store.  Mr Millar got out of the car and was looking at the complainant and, as she and her mother walked past him, she said “You should be careful next time, as you almost hit us”.
  2. [22]
    Mr Millar started saying they were idiots and was mumbling stuff and he was coming around the side of the car.  The complainant was trying to get away and kicked the side of the car with her foot.  After that, Mr Millar came around and grabbed her.  She froze and tried to get away.  She screamed and her mother screamed.  The complainant got away for a split second and that was when Mr Millar got hold of her neck and shoulders and pushed her backwards towards the wall.  The scratch on her back occurred when she was pushed by the neck and the shoulders up against the brick wall.  She was screaming for help and her mother was screaming at the same time.  The complainant managed to slip away and started running towards the road but it was busy and she could not cross.  She stopped there, and that was when Mr Millar grabbed her by the left arm.  She screamed and he let her go.  He then started walking towards her mother who was screaming for help and screaming “leave her alone”.  That was when the complainant got her phone out and took a photo of the car.  She took a photo of Mr Millar.  He was then coming towards her and a man from the antiques store yelled out “Please leave her alone mate, or I’m going to call the police”.  Mr Millar then went to the complainant’s mother who was crouched down and he was standing over her, yelling in her face and pointing in her face.  The complainant was still screaming.  Mr Millar walked away from the complainant’s mother towards his car to pull out a bike.  That was when the complainant ran over to her mother and grabbed her and they ran across the road to the gym.  The complainant called her partner who met them.  They then went to the antiques store to find out the identity of Mr Millar.  They returned home and the complainant called the police.  When they had walked away from Mr Millar, he was yelling something like “Columbian bitches” and “drugged up Columbian bitches” or “Brazilian bitches” or “drugged up Brazilian bitches”.  The complainant consulted a doctor the next day.
  3. [23]
    The complainant was cross-examined extensively and much of the cross-examination was directed to her credit and irrelevant otherwise to whether the prosecution had proved the elements of the charge beyond reasonable doubt.  The complainant’s evidence in cross-examination included the following.  The complainant denied the propositions put to her that she made up the whole event in respect of being touched physically by Mr Millar and that she was lying.  She confirmed that there were three instances of Mr Millar’s grabbing her and that she took the photo of the car and the photo of Mr Millar after the third instance.  She also confirmed that Mr Millar let go of her after he grabbed her for the third time.  The complainant confirmed that, when she took the photos, Mr Millar noticed her taking the photo of him when he was turning around.  That was when he turned and started coming towards her when the man yelled out “Leave her alone, mate, or I’ll call the police” and that was when Mr Millar went towards her mother.  When the complainant grabbed her mother, they ran up the street a little bit and then crossed the road towards the gym.  When Mr Millar put specifically to the complainant that the scar had already existed and that she lied to the police about the scar being a new scar, the complainant responded that the scratch was “completely true”.  The complainant was not “dragged down the wall”.  The complainant would have scratched her back when she was pushed against the wall by Mr Millar and being choked.  No photograph of the scratch was taken while they were out on the street.  When the complainant, her partner and mother returned to the antiques store, they ascertained from Mr Darby that the name of the man who had delivered the bicycle was “Andrew”, the complainant’s partner was given his phone number and he rang the number.  The complainant was wearing the pink singlet on the day of the incident.  She did not remember what day the photo was taken of the scratch when she was wearing the blue and white top.  After the complainant had made the comment directed at Mr Millar during the incident to the effect that he should be more careful as he almost hit them, Mr Millar came around the driver’s side of the car and moved in front of the car.  The complainant kicked the car before Mr Millar grabbed the complainant for the third time.  The complainant denied the version put to her by Mr Millar that was to the effect that she was yelling and screaming and took a “boxing karate type pose” and was hissing while Mr Millar was at the back of his car, raised her leg, charged the car and booted the car in a very violent motion.  The complainant rejected the proposition that Mr Millar did not touch her at all in the incident.  In re-examination, the complainant clarified that she did not have a scratch on her back before the incident but she did afterwards.
  4. [24]
    Officer Palmer’s evidence in chief included the following.  He was working on 20 May 2018 with his partner Officer McNabb when they were given a job at about 10 am to attend an address about a disturbance that had occurred earlier in that morning.  He spoke to the complainant and her mother and boyfriend.  He took a photo on his police iPad of an injury to the complainant’s shoulder blade.  The complainant sent to his email account photos she had taken earlier that morning.  Officer Palmer organised for the complainant to attend the police station at a later date to provide a formal statement.  The police officers proceeded to the antiques store and spoke with Mr Darby and Mr Thompson.  From the registration of the motor vehicle shown in the photograph taken by the complainant, Officer Palmer identified that the vehicle was linked to Mr Millar.  Officer Palmer was also given a phone number by one of the witnesses at the antiques store for “Andrew” that Officer Palmer ascertained was linked to Mr Millar.  Both witnesses provided formal statements.  Officer Palmer was unsuccessful in his attempt to call Mr Millar to arrange an electronic record of interview.  He called him at least on one occasion.
  5. [25]
    Officer Palmer’s evidence in cross-examination included the following.  Officer Palmer could not recall exactly when he received the photos from the complainant but he thought she sent them on the same day as the incident.  It was flagged in QPRIME that Mr Millar was wanted for questioning in relation to the incident.  Officer Palmer did not get a formal statement from Mr Thompson until 13 December 2018 after Officer Palmer was requested to do so by the police prosecutor.  When Officer Palmer spoke to Mr Thompson on the day of the incident, he told Officer Palmer that he did not see anything.  Officer Palmer was cross-examined on the notes he made in his police notebook on speaking to Mr Thompson and/or Mr Darby and confirmed that he made a note “No CCTV available” which he recalled was advised to him by Mr Thompson.  Officer Palmer accepted that Mr Thompson was spoken to by another police officer on 7 June 2019 when Mr Thompson advised there would have been CCTV footage of the conversations inside the store on 20 May 2018 but that was only kept for four weeks.  Mr Millar emphasised in his questioning of Officer Palmer aspects of police procedure that ultimately have no relevance, including the delay between Officer Palmer’s uploading the notice to appear on QPRIME on 6 August 2018 for service on Mr Millar after the last statement before the notice to appear was obtained on 16  (or 18) June 2018 and the fact that Mr Millar was not given the opportunity for an interview before the notice to appear was issued.  When Officer Palmer took the photo of the scratch on the complainant’s shoulder, it was red and looked like a fresh scratch to him.  He did not see any blood on the complainant’s clothes.  When Officer Palmer was at the store, he had a look at the brick wall and did not notice any blood or skin tissue.
  6. [26]
    The complainant’s mother’s evidence in chief included the following.  She and her daughter were walking along Commercial Road when they approached the intersection with Small Street.  A car was driving along Commercial Road that did a U-turn in front of them and in the process the driver drove partially onto the footpath almost hitting her daughter and her.  The car pulled up in front of the antiques shop.  The car was a small grey or silver car and a man stepped out of it.  The passenger door was open.  As they passed, her daughter said “You really should be careful when you turn.  You nearly hit us”.  The man laughed and said “Oh, you should have been watching where you’re going, you idiot” and then mumbled something else.  The man crowded her daughter and she tried to get away from him.  She ran past him and kicked the side of the car and then he grabbed her.  The complainant’s mother yelled out “Let her go”.  He was still grabbing onto her and she was trying to break free.  Her daughter screamed for help and the mother screamed for help.  The man pushed her daughter up against the brick wall and had his hands on her throat and neck area.  The brick wall was to the left of the antiques shop door from the perspective of the person looking at it.  The complainant pushed the man away somehow to get away from him and she ran towards Commercial Road.  The man chased her out to the road.  The complainant’s mother said “Just leave her alone”.  A man in the antiques shop yelled out “I’m going to call the cops.  I’m going to ring the cops, mate”.  The man “sort of backed off”.  The complainant pulled out her phone and she took photos of the car and the man.  The man then came over to the complainant’s mother and stood over her and started yelling “She’s on drugs.  She’s a Colombian bitch”.  The complainant came over to her and they walked across the road.  There were people standing there who comforted her daughter.  Her daughter called her boyfriend.  The boyfriend came and the complainant’s mother followed both of them to the antiques store.  The car had already gone.  The complainant and her boyfriend went inside the antiques store.  When they came out, they went back to the complainant’s place and the complainant rang the police.  At the commencement of the incident, when she and her daughter had walked past Mr Millar and her daughter told him he should be more careful, he was standing on the footpath near the open passenger door of the car out the front of the antiques shop.  From the moment the man was holding the complainant until she got away was “probably seconds”.  When the man was chasing the complainant towards Commercial Road and the men in the antiques shop yelled out that they were going to call the police, he did not reach the complainant.  The complainant’s mother did not see whether he grabbed the complainant at that point.  When the man was standing over the complainant’s mother, he did not touch her.
  7. [27]
    The cross-examination of the complainant’s mother included the following.  She denied that she was lying when she said that Mr Millar had contact with the complainant.  When her daughter spoke to the man, the complainant’s mother saw the man on the footpath near the open front passenger door but she could not say where he was standing on the footpath.  He did not have his back to the car behind him.  He was doing something but the complainant’s mother did not know what he was doing.  When the man was holding the complainant, the complainant’s mother was watching him but looked away to see if anyone was going to come and help them.  She therefore did not see whether the man let her daughter go.  The complainant was still when she was up against the brick wall because the man had pushed her and had her in a hold.  The complainant’s mother could not say how her daughter got away from the man.  She just saw that her daughter had got away from him.  The complainant’s mother rejected the proposition put to her by Mr Millar that her whole interpretation of everything was a lie.  The complainant’s mother saw the man’s hands around her daughter’s throat and neck.  When her daughter ran to Commercial Road, she stopped somewhere on the bitumen behind the car.  Her daughter took the photos before the man yelled out from the antiques shop “I’m going to call the cops”.  It all happened around the same time, when the man yelled out, Mr Millar started walking away, the complainant started snapping the camera, and Mr Millar started walking over to the complainant’s mother.  Mr Millar stood over her.  The complainant’s mother sent one email to Officer Palmer for the preparation of her statement.  She signed her statement in the regional centre where she resided.
  8. [28]
    The evidence in chief of Mr Darby who was a sales assistant at the antiques store included the following.  When he had finished opening up the shop at about 9.30 am on 20 May 2018, a silver SUV pulled up quickly, the driver door opened and Mr Millar got out and stormed back to the corner where there were two ladies walking up the street.  He said “Didn’t you see me?” and he also said “What are you? Are you stupid? Are you on drugs?”.  The two ladies were yelling at Mr Millar.  He heard the younger girl say “You almost ran me over; why did you do that?”.  Mr Millar got to within a metre of them and was standing over the younger girl, as the mother stood back a little bit.  He was abusing her and she said something back to him which Mr Darby did not hear.  Mr Millar then put his arms up against her chest or across her shoulders to the chest and pushed her back against the wall.  He used his right arm to pin her against the wall.  He then lifted his left arm and was menacing the complainant.  That was when Mr Darby yelled out “Leave her alone.  Don’t touch her.  Get away from her”.  The mother then came up to him and grabbed the arm and pulled him away and the girl slipped away from him.  The mother was abusing Mr Millar.  The complainant ran out towards the road and got her phone out and started taking pictures of Mr Millar and the car.  Mr Millar started laughing and saying “What, are you on drugs again? You’re Colombian?”.  The girl and her mother stormed off up the road and Mr Millar came into the antiques shop and started talking to Mr Thompson.  When the girl took the photo of the car licence plate and her mother was abusing Mr Millar, the girl kicked the left hand back door of the car.  Mr Millar left the store within five minutes.  About half an hour later the girl and her boyfriend came into the store demanding who the man was.  The phone in the store rang and Mr Darby answered it.  It was Mr Millar who said not to tell them anything and not to give them his name.  Mr Darby hung up on him.  Within seconds, he phoned back and Mr Thompson spoke to him.  Mr Millar rang back and asked to speak to the people in the store and Mr Thompson handed the phone to the boyfriend.  They were abusing each other down the phone.  Half an hour later the police showed up and took evidence from them.  The whole incident went for about 10 minutes the assault probably took five minutes.  Mr Darby had seen Mr Millar drive his car down the street and he must have done a U-turn at that intersection as that was when Mr Darby heard the girl saying “You almost ran me over”.  Mr Darby was watching the incident from the first floor balcony of the shop (which was about a metre and a-half above the road level) and there was nothing obstructing his view.  When Mr Millar had his arm up to the girl, he had his back to Mr Darby, so that he could not see what Mr Millar’s hand was doing.  When Mr Millar got out of his car, the girls were probably 10 metres away from the car.  He headed straight towards them.  It was when he got to within two metres of them that Mr Darby yelled out to Mr Millar “Keep away from them.  Don’t touch them.  Leave them alone”.  Mr Millar was a good foot or so taller than the girl.  The girl was about a foot from the wall, when Mr Millar put his arm up to her and pressed her against the wall.  He then raised his other arm.  She started screaming “Leave me alone.  Get away from me”.  The mother was also telling Mr Millar to leave her daughter alone.  When he lifted his arm and looked like he was going to punch her or choke her, the mother grabbed the back of his arm and pulled him away and that was when the girl got away and ran around the tree onto the road, took her phone out and took the photos of the licence plate and him.  While Mr Millar was walking down towards the mother, the girl was yelling out “Keep away from her” and she came back around and kicked his back door.  Mr Millar stopped and started laughing at them.  By then Mr Thompson had the roller door to the antiques store open and Mr Millar walked in and started talking to him and the women took off up the street.
  9. [29]
    Mr Darby’s evidence in cross-examination included the following.  Mr Darby did not like the way Mr Millar dealt with his employer Mr Thompson and, prior to this incident, Mr Darby did not want Mr Millar to deal with his boss.  Mr Darby denied the proposition put to him that he was making up his evidence that he saw physical contact between Mr Millar and the complainant.  What he saw was Mr Millar pinning the complainant against the wall.  He did not see Mr Millar put his hands around the complainant’s neck and start choking her.  The complainant was underneath the bay window to the left of the roller door and Mr Darby was standing inside the balcony of the bay window to the right of the roller door.  He was leaning out looking straight down at a 90 degree angle and could see Mr Millar who was roughly 12 metres away.  Mr Darby denied he was lying about watching the complainant’s mother pull Mr Millar’s left arm off her daughter and pull him off her daughter.  The complainant was pinned against the wall for about a minute and a-half or two minutes roughly before the mother pulled Mr Millar away.  The complainant kicked the door of Mr Millar’s car as she went past like kicking a soccer ball.  Mr Darby clarified that, prior to Mr Millar pinning the complainant to the wall, Mr Darby called out “Stay away from her.  Don’t you touch her.  Get away from her” and then after she was pinned against the wall, he said “Leave her alone”.  When the complainant came into the store, she did not mention any scratch on her back.
  10. [30]
    Dr Stanley who was the general medical practitioner consulted by the complainant on 21 May 2018 gave evidence which included the following.  The complainant was distressed and upset and was complaining of a sore neck.  Dr Stanley examined her and noted some muscle spasm present in her neck.  Her neck was sore and tender on extreme flexion and extreme extension.  There was normal movement when he turned her head sideways to the right and the left.  There was no obvious bruising but her neck was sore to touch.  It was either a soft tissue injury or muscle injury.  During his examination, Dr Stanley observed the faint scratch over the complainant’s shoulder blade.  He did not have any conversation with the complainant about the scratch.  Dr Stanley accepted in cross-examination that there were other means by which the neck injuries could have occurred.
  11. [31]
    Mr Thompson’s evidence in chief included the following.  On 20 May 2018, he was the owner of the antiques store in Commercial Road.  On that morning, he heard screaming outside and Mr Darby calling to Mr Millar to “stop it” and he went outside to see what was going on.  He saw Mr Millar pushing the girl against the brick wall.  He was at the foot of the ramp to the shop that was outside the shop when he made that observation.  He could not recall how Mr Millar was pushing the girl other than it was a threatening gesture.  Mr Millar “was in her body space”.  He could not remember seeing Mr Millar touch the girl.  Mr Darby was saying “Andrew, let her go” and Mr Thompson said “Andrew, stop that”.  The older woman was on the edge of the path a few metres away and screaming things.  The older woman did not come into the store.  The younger one came in initially by herself and returned later with her boyfriend.  Mr Millar phoned the store, when the girl and her boyfriend were there.  Mr Millar was asking whether the girl was there.  The boyfriend asked Mr Thompson to put Mr Millar on.  The police attended.  There was no CCTV footage outside the shop.  There was CCTV footage inside the shop.
  12. [32]
    Mr Thompson’s evidence in cross-examination included the following.  Mr Thompson had no memory that Mr Millar had taken a bike into the store that morning before the “kerfuffle” started.  Mr Thompson was not aware of the girl and her mother until he heard the screaming.  Mr Thompson disagreed with the proposition put to him that he and Mr Millar watched the complainant “begin screaming her head off”.  Mr Thompson stated “I can’t say I watched it, because I cannot remember that”.  Mr Thompson had not particularly wanted to give a statement to the police, as he did not like getting involved.  It was possible that Mr Thompson responded to a comment made to him by Mr Millar at the time about the screaming by the girl by saying “I’ve never heard anything like it”.  Mr Thompson conceded it was possible that Mr Millar said to him “Lucky she’s a girl.  I didn’t touch her”.  Mr Thompson did not see Mr Millar’s hands around the complainant’s neck at any time.  The girl was against the wall.  Mr Millar was “really angry”.  Mr Thompson saw Mr Millar threatening the girl but not touching her.  Mr Thompson was watching the girl against the wall for 20 or 30 seconds.  He saw her leave and join her mother.  Mr Thompson thought that the girl came into the store and asked why they had not rendered more assistance.  Mr Thompson was about six to seven metres closer to the incident than Mr Darby.  Mr Thompson first heard the female screaming when he was inside the store at the top of the ramp area which is near the service counter.  The screaming continued until Mr Thompson got outside the store and saw the complainant against the wall with Mr Millar very close to her.  Mr Millar was exercising physical control over the girl and let her go.  Mr Thompson did not remember where the girl went after Mr Millar released her.
  13. [33]
    The complainant’s boyfriend’s evidence included the following.  He had stayed home on 20 May 2018 while the complainant and her mother went for a walk.  He got a call from the complainant just after 9.00 am and, as a result of what she told him, he went straight away to meet them at the gym on the corner of Commercial Road and Wyandra Street.  It took him two to three minutes to get there.  They went to the antiques store.  He spoke to Mr Millar on the telephone.  Mr Millar was saying over and over “You Colombian prick” and “You’re on camera”.  When Mr Millar said “You bearded Colombian prick” and the boyfriend had a beard at the time, the boyfriend went outside the store to see if he could spot Mr Millar.  After they left the antiques store, he observed a fresh scratch on the complainant’s shoulder blade that was about 10 to 15 centimetres long.  He noted it to the police when they attended and “they took a couple of photos of it”.  He had not seen that scratch prior to that day.
  14. [34]
    The boyfriend’s cross-examination included the following.  He did not know how many photos the police took of the scratch.  When the boyfriend met up with the complainant at the gym, she did not mention to him at that time that she had been choked by Mr Millar.  The complainant had not said whilst they were in the antiques store that she had a scratch on her back.  Shortly after they returned home, one of them called the police.  The complainant told him that Mr Millar had put his hands around her throat and pushed her up against a brick wall.  When the police attended at the residence, the boyfriend and the police saw the scratch on the complainant’s back.  The complainant did not have the scratch on her at all before 20 May 2018.  When the complainant’s boyfriend met her at the gym he did not notice any red marks around her neck.
  15. [35]
    Officer Palmer was recalled and his further cross-examination included the following.  The complainant’s mother sent Officer Palmer an email dated 24 May 2018 which set out her statement about the incident.  Officer Palmer prepared the complainant’s mother’s formal statement from the email.  When he needed clarification of points that were not addressed in the email, he called her by phone.  He spoke to her on the phone several times.  He uploaded the draft statement to QPRIME.  Officer Palmer then requested the complainant’s mother to attend the police station in the city where she resided to sign her statement.  Officer Palmer did not have any independent recollection of the clarifications that he sought from the complainant’s mother in respect of the statement she set out in her email.  The draft statement prepared by Officer Palmer was signed by the complainant’s mother without any amendments on 22 October 2018.  Officer Palmer denied the proposition put to him that he “buried” the complainant’s mother’s email to him as an act of bad faith or malfeasance.  He did not know how many phone calls he had with the complainant’s mother.
  16. [36]
    The complainant’s mother was also recalled and her further cross-examination included the following.  In the statement set out in her email, she had stated that after her daughter got away from the man and he chased her towards the traffic on Commercial Road, her daughter “then stopped beside another car parked behind his car”.  She now could not remember why she would have said that.  When she went to the police station to sort out the paperwork, she did not put 100 per cent effort into checking whether it was correct, as she assumed that her formal statement would have gone straight from her email statement that she prepared.  She was “pretty sure” there were two cars, because her daughter was in between two cars running out onto the busy road, but she stopped behind Mr Millar’s car to take the photos.  There was something that obstructed her daughter’s view of the road.
  17. [37]
    Mr Millar gave evidence at the trial.  His version of the events which he gave in evidence in chief included the following.  Shortly after 9.00 am on 20 May 2018, he was driving to the antique store and did a U-turn in Commercial Road.  The two women were about to cross Commercial Road (and not Small Street) and they appeared to be oblivious to his vehicle.  He finished his U-turn and his vehicle was now facing the other direction about a foot from the gutter and that caused the women to stop quickly.  He then drove about 15 metres to his ultimate destination.  In one motion, he jumped out of the car, popped the boot, slid the bike out and popped it up to the top of the ramp.  He popped back to the car to retrieve his mobile phone.  He was heading back to the store with his phone and keys when the complainant, using expletives, said something to him that included “You should be careful”.  Mr Millar half laughed.  The complainant then snarled at him, almost hissed and formed a karate or some sort of boxing pose and ran at the car.  She turned side on and booted the side of the car.  He marched towards her very quickly and told her to get away from the car, using expletives.  He was “shooing her away from the car”, when the complainant started screaming.  Mr Thompson and he were looking at each other.  The complainant was dancing around, “jerking here, jerking there” and the mother was completely confused.  He yelled at the mother that she should take care of her daughter.  The complainant never got onto the road, she was running all around the footpath.  She called him an idiot and Mr Millar boomed his voice at her and that was the first time he saw Mr Darby appear at the window when he yelled out to Mr Millar to get away from her or he would call the police.  The complainant ran over to the rear of his car and pulled out the phone and took photos.  She has then gone directly across Commercial Road with her mother following and Mr Millar yelled out, because they looked Colombian, and he was enraged.  He estimated the whole incident from the complainant saying something to Mr Millar until she crossed the road at a maximum of 45 seconds.  Mr Millar then went up the ramp and said to Mr Thompson “Can you just believe what happened?  She’s lucky she’s a bloody girl, I couldn’t touch her” and Mr Thompson responded “Yeah, I know”.  Mr Millar then said “did you notice the screaming” and Mr Thompson responded “yeah, unbelievable”.  He remained at the shop for between five and 10 minutes before he drove away.  He then did a U-turn and parked in a side street that had a public pay phone and rang the store.  When the complainant was running around the footpath, she did not bounce into the wall.
  18. [38]
    Mr Millar’s cross-examination included the following.  Mr Thompson was down near the front of the store, when the complainant took up the boxing pose before she said something to Mr Millar.  Mr Thompson was only three or four metres away from Mr Millar when the complainant did the boxing pose.  Mr Millar denied that he had pinned the complainant against the wall.  At the time of his interaction with the complainant, he was “wild” because of what she did to the car.  He defused the situation after the complainant attacked his car with violence.  His getting her away from the car was “an explosive, rapid reaction” and she just “bounced everywhere” and, at that point in time, probably was very close to the wall.  There was no other option for her to be other than close to the wall because of the width of the footpath.  Mr Millar never saw her body contact the wall.  If Mr Millar’s arm was raised, it was in the motion of shooing them away.  He denied that he put his hands around the complainant’s throat/neck area and squeezed.

The Magistrate’s reasons

  1. [39]
    The Magistrate summarised the evidence of each of the witnesses.  He considered that the complainant’s evidence in chief and the statement that she gave the police were not inconsistent.  It was noted that Mr Millar did not put to the complainant his version that, when she kicked his car, he yelled at her to get away from the car.  The Magistrate noted that Mr Darby’s timeframes were very long and unlikely in terms of how long the incident took and how long the girl was pinned against the wall.  It was also noted that Mr Darby’s evidence differed from the complainant and her mother as to the timing of the kick to the car and the mother’s grabbing Mr Millar’s arm to get him away from the complainant.  The Magistrate concluded, however, that all the inconsistencies in Mr Darby’s evidence compared to other witnesses did not make the whole of his evidence unreliable and neither did “the undercurrent of dislike” that the witness felt for Mr Millar because of the way Mr Millar treated his employer.  The Magistrate noted that Mr Thompson had agreed that he was a reluctant witness.  The Magistrate also noted that Mr Thompson’s evidence conflicted with that of other witnesses to the extent that he could not say whether Mr Millar was touching the complainant or not, but he did say the complainant was up against the wall with Mr Millar facing her in her space.
  2. [40]
    The Magistrate observed in relation to the prosecution witnesses:

“There were inconsistencies between the four versions of events by the Prosecution eyewitnesses. They include when the car was kicked, the mother grabbing the defendant by the arm, the number of times the complainant was grabbed, the manner in which she was held around the throat, neck and shoulders, what was yelled and by whom. What was consistent throughout all four witnesses’ evidence is that the defendant had the complainant pinned against a brick wall near the left of the entrance to the antique store. The complainant, her mother and Darby have the defendant in contact with the complainant, and although Thompson cannot say the defendant was touching the complainant, he had physical control over her. All witnesses are consistent as to where this took place. All of the eyewitnesses are consistent that they tell the defendant to stop what he is doing to the complainant. All witnesses confirmed the defendant was angry.”

  1. [41]
    The Magistrate then summarised Mr Millar’s evidence.  The Magistrate noted that Mr Millar had cross-examined the complainant concerning a motive for her to lie which was to cover herself for her act of violence towards Mr Millar’s vehicle.  The factual findings made by the Magistrate in respect of how the incident unfolded, however, largely reflected the evidence of the complainant.  The Magistrate found that at some point on that morning the complainant got a scratch to her shoulder but how that scratch occurred was unclear.  The Magistrate noted that the witnesses said the scratch was not there before the incident and it was there after the incident but there was no allegation of bodily harm to be proved by the police.  The Magistrate noted that Mr Millar’s conduct after the incident was bizarre.  He made no mention to Mr Darby or Mr Thompson of the damage to his car and was more concerned about the police getting involved.  The Magistrate did not accept that Mr Millar took the bike into the store first and returned to his car to get his phone.  The Magistrate rejected Mr Millar’s evidence where it conflicted with the prosecution witnesses and found the weight of the evidence was that Mr Millar had the complainant pinned to a wall with his hands on her shoulder and briefly put his hands on her neck.  He accepted the complainant’s evidence and noted the medical evidence was consistent with her version of events and her version was corroborated by the other witnesses.  The Magistrate rejected Mr Millar’s evidence that he never touched the complainant and found beyond reasonable doubt that Mr Millar assaulted the complainant.
  2. [42]
    The Magistrate noted that the prosecution had to exclude the defence of provocation beyond reasonable doubt, as that defence was raised on the prosecution case.  The Magistrate found that the wrongful act or insult by the complainant was the kick to Mr Millar’s car and that the kick was before the assault.  The Magistrate accepted that a person kicking a motor vehicle for which one has responsibility would cause an ordinary person to become angry and to react immediately but that Mr Millar’s reaction to grab the complainant’s neck and push her by the shoulders up against the wall and pin her there was disproportionate to the insult offered by the complainant.  The Magistrate noted the complainant, her mother and the two witnesses from the store had the complainant up against the wall and all but Mr Thompson had Mr Millar touching her.  Although there were some inconsistencies in their evidence as to how he was touching the complainant and applying force, that was usual for eyewitnesses.  The Magistrate rejected Mr Millar’s version of events and described it as “highly improbable in many respects” and “marked by reconstruction and invention”.  The Magistrate found Mr Millar guilty of the offence of common assault beyond reasonable doubt.

Appeal to the District Court

  1. [43]
    Mr Millar’s grounds of appeal to the District Court were:
  1. The decision was against the weight of evidence.
  2. The Magistrate made findings of fact contrary to the established evidence.
  3. The Magistrate took into account immaterial considerations.
  1. [44]
    The specific aspects of the Magistrate’s findings and the conduct of the summary trial that were the subject of Mr Millar’s arguments before the District Court judge were summarised by the District Court judge in 14 subparagraphs at [26] of the reasons.  The District Court judge then grouped the related arguments and dealt with each group of arguments in turn.  In rejecting each of these arguments, the District Court judge effectively disposed of each ground of appeal.  The District Court judge’s ultimate conclusion (at [126]) was that the Magistrate did not err.
  2. [45]
    The District Court judge rejected (at [30]-[31] of the reasons) the applicant’s arguments that the complainant’s allegations were a fabrication to hide her criminal act of kicking his car.  The District Court judge noted (at [30]) that the complainant had reported to Officer Palmer that she kicked the applicant’s car when she reported the assault and that was recorded in Officer Palmer’s notebook.  The applicant argued that the complainant made up the allegation that there was a third grab of her by the applicant and her mother’s evidence that it did not occur demonstrated the complainant’s “perjury”.  The District Court judge noted Mr Thompson’s evidence did not support a third grab.  The District Court judge accepted (at [35]) that the witness accounts were inconsistent as to whether the applicant grabbed the complainant a third time, but noted there was no relevant inconsistency that the applicant pushed the complainant up against the brick wall and held her captive there.  The District Court judge observed (at [35]):

“The complainant’s mother and Mr Darby were located in different positions as they witnessed the incident. It is not surprising they gave differing accounts of some details of the incident.”

  1. [46]
    The District Court judge concluded (at [38] of the reasons) that the discrepancies about whether there was a third grab of the complainant by the applicant did not undermine the witnesses’ evidence of the assault which occurred when the applicant had the complainant up against the brick wall.
  2. [47]
    The District Court judge addressed (at [40]-[49] of the reasons) the applicant’s assertion that the complainant fabricated that she suffered the scratch on her right shoulder during the incident.  As the District Court judge explained (at [47]), the support of the eyewitnesses as to how the incident occurred and the evidence of the complainant’s boyfriend that the scratch was not there before the incident was compelling against the applicant’s submission that the complainant made up the allegation that she suffered the scratch in the incident.  The District Court judge concluded (at [48]) that there was nothing about the evidence of the scratch which undermined the complainant’s evidence of the assault.
  3. [48]
    The applicant sought to challenge the credit of Officer Palmer in connection with the downgrading of the charge to common assault.  The District Court judge found (at [53] of the reasons) that nothing was raised by the applicant in that regard that had any relevance to the determination by the Magistrate that the applicant committed the assault as particularised by the prosecution.
  4. [49]
    The applicant repeated the arguments that were before the Magistrate based on the animus of Mr Darby towards the applicant and the inconsistencies between Mr Darby’s evidence and the evidence of other witnesses.  The District Court judge observed (at [56] of the reasons) that these were matters of which the Magistrate was aware and it was apparent from the Magistrate’s reasons that the Magistrate made an assessment of the credibility of Mr Darby taking these matters into account.
  5. [50]
    The applicant also repeated the submissions he had made before the Magistrate in relation to Mr Thompson’s evidence.  As the District Court judge observed (at [62] of the reasons), the Magistrate’s reasons demonstrated that he fully understood Mr Thompson’s evidence and the discrepancies between his evidence and that of other witnesses and made the findings, having seen the witnesses and listened to their evidence.
  6. [51]
    The applicant argued that Dr Stanley’s evidence did not support the prosecution case, because Dr Stanley conceded that the injuries to the complainant’s neck could have been caused by other means.  The District Court judge found (at [69] of the reasons) that the Magistrate’s conclusion that the medical evidence was consistent with the complainant’s version of events was manifestly open on the evidence and rejected the applicant’s argument.
  7. [52]
    The District Court judge rejected (at [75] and [83] of the reasons) the applicant’s arguments about the defects in the police investigation, namely the failure to get the CCTV footage from inside the antique store and the failure to give the applicant an electronic record of interview before the notice to appear was served.  The effect of the reasons was that those arguments were irrelevant for the purpose of the District Court judge’s rehearing of the evidence before the Magistrate.
  8. [53]
    In respect of the applicant’s argument that the Magistrate’s decision was against the weight of the evidence, the District Court judge noted (at [87] of the reasons) the findings made by the Magistrate and recorded (at [88]) that, on the perusal of the transcript, “those findings were plainly open to the learned Magistrate, who had the benefit of observing the appellant give his evidence”.  There was also an argument advanced by the applicant before the District Court judge that the Magistrate had “a mindset” against him.  That was disposed of by the District Court judge (at [90]) who concluded from the review of the record that the Magistrate dealt with the applicant fairly and appropriately throughout the trial, despite the applicant frequently interrupting him and failing to follow directions and instructions given by the Magistrate.  The District Court judge also concluded (at [90]) that the Magistrate was right to reject the applicant’s evidence which “was illogical”.
  9. [54]
    The applicant argued that the Magistrate had misrepresented the evidence when he stated that the evidence of all four witnesses was that the applicant had the complainant pinned against a brick wall.  The District Court judge summarised (at [93] of the reasons) the evidence of the complainant, the complainant’s mother, Mr Darby and Mr Thompson as to their observations as to what happened between the applicant and the complainant when the complainant was against the brick wall.  The District Court judge summarised (at [60]) Mr Thompson’s evidence of his observations and referred (at [61]) to the Magistrate’s summary of Mr Thompson’s evidence, including that Mr Thompson could not say the applicant was touching the complainant but had physical control over her.  The District Court judge considered (at [95]) that the word “pinned” was apt to describe the evidence of the complainant, her mother and Mr Darby and noted (at [96]) that the Magistrate’s reasons expressly recorded the lack of touching observed by Mr Thompson.  The District Court judge concluded (at [96]) there was no misrepresentation of the evidence in the Magistrate’s findings.
  10. [55]
    The District Court judge then disposed of each of the appeal grounds.  In relation to the first appeal ground that the decision was against the weight of the evidence, the District Court judge noted (at [99] of the reasons) that the applicant took issue with the finding that the complainant sustained the scratch to her right shoulder blade during the assault.  Consistent with the District Court judge’s rejection (at [47]-[48]) of the applicant’s argument to that effect, the District Court judge found (at [100]) that the Magistrate did not err on that ground.
  11. [56]
    The District Court judge disposed of the second appeal ground (at [103]-[110] of the reasons) which largely repeated the evidence canvassed earlier in the reasons and concluded that the Magistrate’s finding as to the applicant pinning the complainant to the wall with his hand on her shoulder and briefly putting his hands on her neck was supported by the evidence.
  12. [57]
    The third appeal ground that asserted the Magistrate took into account immaterial considerations was focused on the finding by the Magistrate that the applicant’s post-offence conduct was “bizarre”.  All witnesses gave evidence of the post-offence conduct of the applicant and the complainant.  The District Court judge observed (at [123] of the reasons) that the conduct occurred “very proximately” in terms of time to the incident and was part of the narrative of the events.  The District Court judge accepted (at [124]) that the applicant’s post-offence conduct was one of many matters which the Magistrate weighed in coming to a decision to convict the applicant but it was not a matter to which significant reference had been made by the Magistrate.  The District Court judge concluded (at [124]) that it was proper for the Magistrate to do so.

Grounds 1 and 5

  1. [58]
    The issue on the application for leave to appeal to this Court is whether the District Court judge’s conclusion that the applicant was properly convicted by the Magistrate was against the weight of the evidence before the Magistrate.  It is apparent from the reasons that the District Court judge reviewed the transcript of the hearing before the Magistrate and the exhibits in great detail but at the same time giving proper allowance for the advantage the Magistrate had in assessing the credibility of witnesses when observing the witnesses give evidence.  The assault, as particularised, took place over a short time of around (or even less than) one minute or so.  On the complainant’s evidence, that assault was the second grabbing of the complainant by Mr Millar that involved his grabbing her by her shoulders and pushing her against the brick wall and squeezing her neck with his hands.
  2. [59]
    There were five versions in total of what happened from each of the participants, namely the complainant and the applicant, and from each of the complainant’s mother, Mr Darby and Mr Thompson where each was standing in a different spot from the others and, in the cases of the mother and Mr Thompson, did not necessarily observe the entire incident.  The complainant was in the best position to say what happened to her, if her evidence was credible.  The applicant’s version that he did not touch the complainant at all or pin her against the wall was rejected by the Magistrate as not credible.  The complainant’s mother saw the applicant push her daughter up against the brick wall and that his hands were on her throat and neck area.  She was adamant in her cross-examination that she saw his hands around her daughter’s throat and neck, even though there were other aspects of her evidence that were inconsistent with other witness’ evidence.  This included that her evidence did not disclose a third grab of her daughter by Mr Millar.  Mr Darby heard the exchange of words between the two women and the applicant.  Although Mr Darby’s evidence was inconsistent with other witnesses in some respects (including that he said it was the complainant’s mother who pulled Mr Millar away when he pressed her daughter against the brick wall and that the complainant kicked Mr Millar’s car after the incident at the wall), he did see Mr Millar put his arms up against the complainant’s chest or across her shoulders to the chest and push her back against the wall, using his right arm to pin her against the wall and lifting his left arm.  Mr Darby conceded in cross-examination that when Mr Millar had his arm up to the girl, his back was to Mr Darby, so he could not see what Mr Millar’s hand was doing.  It was at that stage that Mr Darby yelled out to the applicant to leave the complainant alone.  Mr Thompson did not start observing the incident until he heard screaming outside and Mr Darby calling to Mr Millar to stop it and Mr Thompson then went outside to see what was going on.  That was when he saw Mr Millar pushing the complainant against the brick wall.  Even though Mr Thompson did not see Mr Millar’s hands around the complainant’s neck at any time, he did see Mr Millar very close to the complainant, exercising physical control over her.  There was no support in the evidence given by Mr Darby and Mr Thompson for the applicant’s version that he had taken the bicycle from his car into the antique store and spoken to Mr Thompson before the incident.  The applicant’s assertion that the complainant hissed at him and formed a karate or other sort of boxing pose and ran at his car, turning side on to kick it, also did not find any support in the description of the kick by the complainant’s mother or Mr Darby
  3. [60]
    Not all witnesses need to be consistent in the evidence of the acts constituting an offence, before a finding can be made beyond reasonable doubt that an offence has been committed.  The Magistrate had to be satisfied beyond reasonable doubt on the evidence that he accepted that the charge was proved beyond reasonable doubt.  As the analysis undertaken by the District Court judge shows, it was open to the Magistrate to find the complainant to be a credible witness and that her version of the incident was supported in critical aspects by some of the evidence of her mother, Mr Darby or Mr Thompson, notwithstanding the discrepancies in some aspects of the evidence given by each of those witnesses.  It was not surprising that there were discrepancies, as the incident was unexpected and the events transpired quickly.  There was no error made by the District Court judge in concluding on the evidence before the Magistrate that Mr Millar was properly convicted of the assault of the complainant, as particularised by the prosecution.
  4. [61]
    The applicant does not succeed on grounds 1 and 5.

Ground 2

  1. [62]
    In general terms, the applicant’s submissions on the aspects of the evidence in respect of which he asserts the District Court judge misrepresented or misunderstood its relevance relates to a specific answer given by a witness on which he focuses, without considering other parts of the evidence of the same witness or evidence from other witnesses on the same topic or the purpose for which the District Court judge was referring to the evidence.  Two examples will illustrate.
  2. [63]
    The first example concerns the complainant’s evidence about the timing of the scratch.  In evidence in chief, the complainant when referring to the second grab of her by Mr Millar stated:

“I got away for a second but then he grabbed me again, and that’s when I was pushed by the neck and the shoulders up against the brick wall, and that’s when the scratch on my back occurred.”

It was apparent from all the complainant’s evidence on this topic that she had, in fact, deduced that was when the scratch occurred.  In her cross-examination she repeated that she got the scratch from the wall and explained:

“… while I was being choked, I was obviously being pushed against the wall, so it would’ve scratched my back as shown in the picture.”

When Mr Millar cross-examined the complainant on his theories as to why the scratch would not have been caused by the brick wall, the complainant responded:

“I don’t know how the scratch happened in the instant. I don’t know if it was from the left to the right, or the top to the bottom, I’m not sure.”

The District Court judge recited (at [20](l) of the reasons) the Magistrate’s finding that how the scratch occurred was unclear that ended with his noting there was no allegation of bodily harm to be proved by the police.  Mr Millar asserts that the District Court judge’s recitation of the findings “is established as false” given the evidence of the complainant in chief that the scratch occurred when she was pushed by the neck and shoulders up against the brick wall.  A fair reading of all the complainant’s evidence leads to the conclusion outlined earlier in this paragraph that the complainant deduced when the scratch occurred.  The Magistrate did not dwell on the mechanism of how the scratch occurred on the brick wall, as the prosecution did not have to prove bodily harm.  The District Court judge merely recorded (accurately) the Magistrate’s observations on this aspect of the evidence.

  1. [64]
    The second example is where Mr Millar relies on the evidence of the complainant’s boyfriend given in chief that the police who attended at his home observed the scratch and “took a couple of photos of it” as contradicting Officer Palmer’s evidence that he took only one photo of the shoulder of the complainant when she was wearing the pink singlet.  Mr Millar disregards the further evidence given by the boyfriend during cross-examination that he did not know exactly how many photos they took.
  2. [65]
    Some of the submissions made by the applicant that attribute a misunderstanding or misrepresentation of the evidence on the part of the District Court judge involve misinterpretation of the District Court judge’s reasons.  As submitted by the respondent, many of Mr Millar’s arguments misconceived the role of the Magistrate as the finder of fact and that the Magistrate was able to act on some evidence of a witness, even if other aspects of the witness’ evidence were inconsistent with evidence given by other witnesses which the Magistrate accepted.
  3. [66]
    A fair reading of the reasons in conjunction with the evidence given before the Magistrate and the Magistrate’s findings on credibility does not reveal any misrepresentation or misunderstanding by the District Court judge of the evidence given at the trial.
  4. [67]
    The applicant does not succeed on ground 2.

Grounds 3 and 4

  1. [68]
    Mr Millar was very quick at all hearings to accuse witnesses of perjury.  A faulty recollection of a witness that was genuinely believed by the witness does not constitute perjury.  It does not follow from any inconsistencies between one witness’ evidence and the evidence of another that one of those witnesses must have committed perjury.
  2. [69]
    Ground 3 raises a specific discrepancy between the complainant’s evidence and that of her mother in relation to whether there was a third grab of the complainant by Mr Millar, as described in the complainant’s evidence.  As set out above, the District Court judge disposed of this argument (at [38] of the reasons) on the basis that the discrepancies in that aspect of the evidence did not undermine the witnesses’ evidence of the assault committed when the applicant had the complainant up against the brick wall.  This was orthodox reasoning.  The Magistrate had in his decision expressly taken the discrepancies in the evidence about the number of times the complainant was grabbed into account in assessing the evidence.  In any case, the complainant’s evidence was to the effect the third grab was momentary.  It was also apparent from the complainant’s mother’s evidence as to what she observed when the complainant got away from Mr Millar at the brick wall that the events that transpired at that point in time in the incident were dynamic.  This issue does not indicate any error in the analysis of the District Court judge.
  3. [70]
    Ground 4 also raises the discrepancy between Mr Darby’s evidence that he saw the complainant’s mother pull Mr Millar’s arm away from the complainant, when the complainant was pressed against the brick wall, which the complainant’s mother said that she did not do.  As noted above, this was disposed of by the District Court judge (at [56] of the reasons) in an orthodox manner, as the Magistrate took the inconsistencies in Mr Darby’s evidence with other witnesses into account when assessing the credibility of Mr Darby.  Mr Millar has not shown any error on the part of the District Court judge, as a result of this analysis.
  4. [71]
    The applicant does not succeed on grounds 3 and 4.

Ground 6

  1. [72]
    Mr Millar asserts that the District Court judge made many findings in respect of which there was a failure to particularise or explain how the District Court judge arrived at those findings.  Even though this ground suggested that Mr Millar was asserting that the District Court judge’s reasons were inadequate, that was not the way the ground was argued.
  2. [73]
    The applicant largely repeats the submissions he made before the Magistrate and repeated before the District Court judge as to why he should not have been found guilty of the assault and that have been otherwise addressed in these reasons.  These included the submission that the District Court judge should not have endorsed the Magistrate’s findings to the extent they were based on Mr Darby’s evidence, because there were so many aspects of his evidence that were inconsistent with other witnesses’ evidence.  He repeats his arguments in relation to Mr Thompson’s evidence who did not observe the applicant touching the complainant.  He also repeats his arguments based on one aspect of the complainant’s evidence about the timing of the scratch.  There is nothing raised by Mr Millar in either his written or oral submissions for ground 6 that points to any error made by the District Court judge in dismissing Mr Millar’s appeal based on the evidence adduced in the summary trial.
  3. [74]
    The applicant does not succeed on ground 6.

Subsequent submissions made by the applicant

  1. [75]
    After the hearing was completed in this Court on 8 July 2024, the applicant made a supplementary submission dated 10 July 2024 on inconsistencies that he asserts can be found in the evidence as to whether Officer Palmer took one or more photographs on the day of the incident and other assertions about the photos provided by the complainant to Officer Palmer.  He asserts there is no corroboration of Officer Palmer’s evidence that he took the photo of the complainant in the pink singlet on 20 May 2018.  This supplementary submission also repeats a submission made by Mr Millar before this Court that the photo of the complainant in the pink singlet was taken a long time after the photo in the blue and white top.  One problem with that submission was that Mr Millar never cross-examined the complainant on the contention he now advances that the photo of her in the blue and white top was taken prior to her leaving the residence that morning to go walking.  The photos of the scratch reflect the evidence of what the complainant’s boyfriend and Officer Palmer who observed the scratch saw.  The complainant’s evidence and that of her boyfriend was that she did not have a scratch on her shoulder before the incident.  Dr Stanley saw it the next day.  Ultimately, the scratch on the complainant’s shoulder was irrelevant to the charge pursued at the summary trial, except to the extent that it was relevant for Mr Millar to test the complainant’s credit.  Mr Millar’s focus on the photographs does not diminish the effect of the significant evidence of the assault that resulted in the guilty verdict.
  2. [76]
    The next supplementary submission from the applicant dated 20 August 2024 seeks to revive Mr Millar’s application for Officer Palmer to be cross-examined in this Court.  It also seeks “cross-examination” of Officer McNabb when Officer McNabb was not a witness called in the summary trial.  The supplementary submission repeats the applicant’s theories about when the photo of the complainant in the pink singlet was taken.  The applicant filed at the same time an affidavit affirmed by him that exhibits email exchanges with the prosecutor about disclosure prior to the summary trial.
  3. [77]
    The applicant sent a further submission to the Court dated 22 August 2024 that advanced a further reason for Officer Palmer to be ordered to appear for cross-examination that was based on the email by which the photographs taken by the complainant were received by Officer Palmer.
  4. [78]
    The applicant sent a further submission to the Court dated 4 October 2024 that made complaints about the office of the Director of Public Prosecutions and the disclosure of documents provided to the applicant before the summary trial and after reviews held in this Court in advance of the hearing of the application for leave to this Court.
  5. [79]
    These submissions sent by the applicant to the Court subsequent to the hearing on 8 July 2024 are peripheral to the main issue on the application in this Court of whether it was proper for the District Court judge to refuse the applicant’s appeal from his conviction in the Magistrates Court of the assault of the complainant on the basis of her evidence that was supported in varying aspects by other witnesses at the trial.
  6. [80]
    When Mr Millar’s complaints about the conduct of the prosecution against him are considered in the context of the charge for which he was ultimately prosecuted and the evidence adduced at the summary trial of the incident in which the assault was committed, it suggests that Mr Millar has been distracted by matters which can have no bearing on the outcome of his application.  To the extent that the further submissions lodged with the Court by Mr Millar after 8 July 2024 apply for leave to adduce further evidence on the application for leave to appeal, those applications should be refused.  It is not in the interests of justice to permit Mr Millar in this application for leave to appeal to attempt to pursue matters that will not alter the outcome of the proceeding in this Court.

Orders

  1. [81]
    The orders which should be made are:
  1. Applications for leave to adduce further evidence refused.
  2. Application for leave to appeal refused.
Close

Editorial Notes

  • Published Case Name:

    Millar v Queensland Police Service

  • Shortened Case Name:

    Millar v Queensland Police Service

  • MNC:

    [2025] QCA 14

  • Court:

    QCA

  • Judge(s):

    Mullins P, Boddice JA, Crowley J

  • Date:

    25 Feb 2025

Litigation History

EventCitation or FileDateNotes
Primary JudgmentMC23446/18 (No citation)06 Dec 2019Date of conviction of common assault after summary trial.
Primary Judgment[2021] QDC 30402 Dec 2021Appeal dismissed: Dann DCJ.
Appeal Determined (QCA)[2025] QCA 1425 Feb 2025Application for leave to appeal refused: Mullins P, Boddice JA and Crowley J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Forrest v Commissioner of Police [2017] QCA 132
2 citations
Jump To
Cite 1 - [2017] QCA 132
Cite 2 - [2017] QCA 132
McDonald v Queensland Police Service[2018] 2 Qd R 612; [2017] QCA 255
3 citations
Jump To
Cite 1 - [2017] QCA 255
Cite 2 - [2018] 2 Qd R 612
Cite 3 - [2018] 2 Qd R 612
Millar v Queensland Police Service [2021] QDC 304
2 citations
Jump To
Cite 1 - [2021] QDC 304
Cite 2 - [2021] QDC 304

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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