Sucic v Wilkin
[1997] QDC 128
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- Sucic v Wilkin[1997] QDC 128
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Sucic v Wilkin[1997] QDC 128
Sucic v Wilkin[1997] QDC 128
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Appeal No 909 of 1997 |
BETWEEN:
TODD MARTIN SUCIC | Appellant |
AND
JAMES DAVID WILKIN | Respondent |
REASONS FOR JUDGMENT - JUDGE BOULTON
Delivered the 6th day of June 1997
Catchwords: | Appeal. Obstructing a police officer in the performance of his duty. Magistrate's finding as to credibility open to review. Police acting persuant to Part 6 and s. 16 A Traffic Act 1949. |
Counsel: | A.J. Kimmins for the Appellant N. Weston for the Respondent |
Solicitors: | Cranston McEachern for the Appellant Department of Public Prosecutions for the Respondent |
Hearing Date(s): | In the District Court at Brisbane on 20 May and 6 June 1997 |
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Appeal No 909 of 1997 |
BETWEEN:
TODD MARTIN SUCIC | Appellant |
AND
JAMES DAVID WILKIN | Respondent |
REASONS FOR JUDGMENT - JUDGE BOULTON
Delivered the 6th day of June 1997
This is an appeal against conviction. On 4 February 1997 the appellant was convicted before a Stipendiary Magistrate at Brisbane of obstructing a police officer in the execution of his duty. He was fined $100 in default four days imprisonment and no conviction was recorded.
At the commencement of the hearing, Mr Kimmins for the appellant, sought to add a further ground of appeal as follows:
“That the judgment is unsafe and unsatisfactory”.
Mr Martin, for the respondent, had no objection to this course and that further ground became the basis upon which the appeal proceeded. Mr Kimmins prefaced his application for this course as follows:
“I indicated to Mr. Martin yesterday that so far as the grounds of appeal, which were on the present Notice of Appeal effectively I wouldn't be arguing those grounds, but I would be seeking to argue a broad base ground which encompasses some of the aspects of those matters on the Notice of Appeal...”
As to the nature of an appeal against findings of the Magistrate, where issues of credibility were central to such findings, Mr. Kimmins referred to the unreported decision of the Court of Appeal in Strohfeldt v. Clemments CA 371/95 delivered 10 November 1995. In that case expert medical evidence, which was unchallenged, was more consistent with the defence versions of events. The Magistrate had considered the defendant to be exaggerating and proceeded to say that “where his evidence was in conflict with that of the prosecution witnesses, he accepted their evidence and rejected that of the appellant.”
The Court went on to say that the question for the Magistrate was not susceptible of determination by applying a simple test like that. Earlier, they had observed that
“It nevertheless remains correct to say that a credibility finding is open to review where it is shown to be ‘falsified by indisputable facts’, or where there has been a specific misunderstanding or disregard of a material fact: see R v. Free [1983] 2 Qd.R. 183, 193.”
In R v. Free (supra) McPherson J had referred to the difference between an inscrutable jury verdict and a case “where the Magistrates findings on credibility are...accompanied by informative reasons which invite examination for error...”.
The present case is such a case. Mr. Kimmins proceeded to subject the Magistrate's treatment of the issue of credibility to close scrutiny with a view to challenging the ultimate finding.
Mr. Kimmins identified five aspects of the sequence of events which he particularised in Exhibit 2. These were that:
- (i)the appellant had rudely stepped between the police officer and the motor cycle rider;
- (ii)the appellant was loud and yelling;
- (iii)the difference as to what was said by the appellant about a tape recorder;
- (iv)whether the police officer Sucic had a breath test machine in his hand at the time of making a request of McCabe;
- (v)whether prior to the appellant's arrest his arm was immediately placed behind his back.
Mr. Kimmins then proceeded to identify similarities in the police evidence, evidence given by the appellant, Lewis and McCabe, on these same issues and to submit that:
- (i)Lewis and McCabe were independent witnesses;
- (ii)the Magistrate made findings of exaggeration against the appellant but does not make specific adverse findings against Lewis and McCabe;
- (iii)the evidence of Lewis and McCabe should fulfil a role similar to that of the medical evidence in Strohfeldt.
There are some significant problems with this approach. It is hardly true to say that Lewis and McCabe can be properly described as independent witnesses. Lewis was a colleague and friend of the appellant who had been drinking with him at the time immediately prior to the incident. Lewis was involved to a degree in the confrontation that developed with the police officers. McCabe was the motor cycle rider who had been stopped by the police for an alleged traffic infringement.
The approach taken by Mr. Kimmins in selecting five incidents out of a complex episode and focusing minutely upon them is illustrative of the inconsistencies in the evidence on matters of detail. However, this is not at all unusual in episodes where there is a great deal of confusion. McCabe referred in his evidence to seven people being involved in the argument that developed and that various participants were talking at the same time. The positioning of the various participants was not uniform. He seemed to have vague recollection of the appellant from time to time stepping down on to the roadway. According to McCabe, he was asked on a number of occasions by the appellant as to whether he wanted legal advice and remained non-committal because he was uncertain as to what the intentions of the police were. It was only on the fourth or fifth invitation that he said that he accepted the offer. Suffice to say that there was much confusion and experience would suggest that in those circumstances it is difficult for people to take in everything that everybody said or did.
Mr. Kimmins complains that while the Magistrate made a finding of exaggeration by the appellant, he made no such adverse finding against Lewis or McCabe. An examination of the evidence and of the Magistrate's reasons, however, reveals that the Magistrate was referring to the evidence of the appellant that the police officer, Sucic, was “bullying” the motor cycle rider. Lewis gave no such evidence. Neither importantly did McCabe, the motor cycle rider, who described Sucic as “polite”, and that he had no difficulty with the way he was being treated. McCabe gave the following account:
“...I was concerned because I didn't see where I had done an offence and that's why I asked when - wanted Sucic to substantiate where it happened and he did give me a good description of where...
He openly-----?-- Yeah.
-----told you what had happened?-- Exactly. I haven't got a problem with that.
And he was polite to you?-- Yep.
Okay. And he was calm in his demeanour towards you?-- Yeah. At the same time I did find, because the situation where I'm - like for example when I said, “Okay, didn't you see” - I was asked if I saw a police car and I said, “No, okay.”
The Magistrate was quite entitled to have regard to this evidence along with the evidence of the police officers and to conclude that the appellant was exaggerating in his allegations of bullying.
A close examination of the Magistrate's reasons reveals that he by no means rejected the evidence of the non-Police witnesses out of hand. He carefully refers to the conflicts of evidence, giving quite a deal of attention to the evidence of McCabe. References to the evidence of McCabe and Lewis can be found at pages 3 to 9 inclusive of the Magistrate's reasons and on both pages of Exhibit 1.
Mr. Kimmins submitted at page 12 of the transcript of the hearing of the appeal:
“We say one of the fundamental errors that he has made is that he has not disposed of McCabe and Lewis. He doesn't deal with them at all. Has, in fact, decided - put them basically in the too hard basket and just said, believe the police, disbelieve the accused man, make the decision.”
I have perused the entire transcript of the evidence and the entire reasons for decision of the Magistrate. The problem that the appellant has in a submission of this kind is that the Magistrate engaged in quite a lengthy discussion of the evidence, referring to the salient aspects quite accurately and identifying such contradictions as were to be found. His approach was not a simplistic one. I am not satisfied that the manner in which he proceeded to resolve the abovementioned conflicts was in any way inappropriate.
The police officers in the circumstances had manifest powers under Part 6 and s. 16 A of the Traffic Act 1949. Apart from the evidence of the appellant to the effect that Sucic was bullying the motor cycle rider - evidence which the Magistrate plainly rejected - there was no suggestion that the police officers were exceeding their powers under the abovementioned legislation. Those powers are not made conditional upon the intervention of passing legal practitioners offering gratuitous legal advice. The police vehicle and the motor cycle were impeding traffic in a busy location. The police officer Sucic warned the appellant on a number of occasions that he was not prepared to tolerate interruption with the performance of his duties.
This is not a case like Hogben v. Chandler (1940) VLR 285 where it was held that the mere giving of advice not to answer questions put by a police officer in the course of his duty does not constitute the offence of hindering a police officer in the execution of his duty. Martin J observed at p.288:
“...there is no statutory right in a police constable to ask questions of anyone, though it is a common practice for the police to do so. As the Legislature has not given the police the right to ask questions nor imposed on persons questions the obligation to answer, I think it is clear that any person who is questions can refuse to answer...”
Here, there was statutory power given to the police officer under the legislation referred to above. Martin J. further observes that the term “hinder” is not a term of art or capable of precise definition.
The Magistrate made the following finding:
“In those circumstances, I am satisfied that the defendant, in the matter that he acted whilst the police officer Sucic, in my view, was lawfully acting in the execution of his duty, by speaking over the police officer and interrupting Sucic and distracting the attention of McCabe, that such behaviour did, in fact, obstruct Sucic in the performance of his duties. I am satisfied on the whole of the evidence that the prosecution has proved each and every element of the offence to the required standard.”
Such a finding was perfectly open to the Magistrate to make on the evidence before him. The behaviour to which he referred was capable of satisfying the description of obstructing a police officer in the performance of his duty.
I dismiss the appeal and order that the appellant pay the respondent's costs of and incidental to the appeal to be taxed.