Croll v Comadira
[2002] QDC 155
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- Croll v Comadira[2002] QDC 155
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Croll v Comadira[2002] QDC 155
Croll v Comadira[2002] QDC 155
DISTRICT COURT | No 5176 of 2001 |
APPELLATE JURISDICTION
JUDGE FORDE
LEONARD THEODORE CROLL | Appellant |
and
PETA LOUISE COMADIRA | Respondent |
BRISBANE
DATE 13/05/2002
JUDGMENT
HIS HONOUR: The appellant, Leonard Theodore Croll, appeals the decision of the learned Magistrate at Brisbane on the 10th of August 2001 whereby the appellant was convicted of common assault and was ordered to pay to the complainant, Mr Coburn, $400 and convicted and fined $425 and witnesses expenses of $175 in default payment within six months to be imprisoned for 20 days.
The grounds of the appeal number 18 and are as follows:
“1. The Learned Magistrate erred in fact and law in accepting the evidence of the three Police witnesses as being truthful. The most disgusting thing that can happen to a person is to be found to have lied when they were being truthful and to have those who were lying to be found to be truthful. And then to be convicted on those lies.
- The Learned Magistrate was deceived by the Police case as the documents summonsed from the Police were forgeries.
- The Learned Magistrate erred in fact and law when she denied the defendant/appellant an opportunity to properly cross examine the Police witnesses.
- The Learned Magistrate erred in fact and law when she interfered in the defendant's cross examination of Mr Cockburn in relation to his being punched in the face.
- The Learned Magistrate erred in fact and law when she told the defendant he could not ask the witness questions the way he was and told him he had to say who hit Mr Cockburn. Mr Cockburn was lying and had to be trapped into admitting the truth. The Learned Magistrate, by interfering caused the defendant to fail to get the truth from Mr Cockburn.
- The Learned Magistrate erred in fact and law in that she gave undue weight to evidence given by the prosecution.
- The Learned Magistrate erred in fact and law in that she allowed into evidence matters that were extraneous to her considerations.
- The Learned Magistrate erred in fact and law in that she accepted evidence that was tainted by neglect or dishonesty on the part of the witnesses. There was clear evidence that the police case could not have been truthful. One example was that Mr Cockburn's face was bruised on the right side when he hit his head on the bench on the left side, witnesses gave conflicting evidence about the beer glass, how many Mr Cockburn had in his hand when he was returning to the bar after the alleged fall. Witnesses gave conflicting evidence about how Mr Cockburn tried to get the glass off the Defendant. Ms Rugg's evidence of this event is clearly the same as Mr Cockburn's. There was no spilt beer and no glass on the floor. Ms Sperling's evidence was the same as the Defendant's. Ms Rugg did not give evidence about the ash tray or the derogatory language, because they did not happen.
- The Learned Magistrate erred in fact and law in that she did not allow the defendant to properly test the evidence of the Police witnesses, instead of helping the defendant organize his questions which were designed to obtain the truth from the witnesses she only confirmed for the witnesses their lies.
- The Learned Magistrate erred in fact and law in denying uncontested evidence led by the defendant.
- The Learned Magistrate erred in fact and law in that she failed to consider evidence relevant and supporting of the defendant's/appellant's case.
- The Learned Magistrate erred in fact and law in that she refused to take into consideration that the Defendant has been persecuted by the Ferny Grove Police. She ignored what actually happened which was that the Defendant gave his story to the Police which showed there was a defence of Provocation. The Police had a discussion where Det Comadira told Det Luff she would not charge the defendant because there was a defence of provocation. Luff told her to charge him anyway and told her that he would fix it. Luff then went to the witnesses' homes and told them what to say and trained them in their perjury. This is obvious from Mr Kelly's additional evidence that Ms Sperling did have a visit from Det Luff. When asked if she could identify him in the back of the court room she said under oath that she had never seen or spoken to the police officer.
- To the two Detectives it seemed clear that to get a conviction they needed to remove provocation. By reconstructing the facts from a punch in the face after Cockburn had “Man handled” the defendant, to a push in the back and no provocation they saw they could get a conviction. So they went for it without regard to the misleading of the court or the perjury by the witnesses.
- The witnesses statements are dated after the defendant's indicating that their fabricated case was invented around the defendant's. The witness accounts were too perfect. It should have been obvious to the Magistrate that they had been rehearsed.
- The Learned Magistrate erred in fact and law in that she allowed the witnesses to take cues from Det Luff who was sitting in the court room. She did nothing to stop this nonverbal communication and hinting from Det Luff.
- The Learned Magistrate erred in fact and law in that she used a manipulation to give her reason to convict. She made a “finding of fact” that the defendant's evidence was not credible and therefor found against the defendant. She should have found beyond reasonable doubt based on the evidence before her. The defendant was not charged with stealing a beer. To someone that has stolen a beer it is not unreasonable to expect Mr Cockburn to take advantage of the defendant's misdemeanour to be the BIG Fellow, in front of other staff, and “throw his weight around”. That the defendant punched him in the face as a response to Mr Cockburn throwing his weight around could be an expected outcome. Mr Cockburn, it appeared from the evidence, liked to be called PJ. Mr Cockburn also after this incident did some training in to improve his people skills and thus his anger management.
- The Learned Magistrate erred in fact and law in that she stated that the defendant lied to the Police therefore what is stopping the defendant from lying in court. She refused to consider the defendant's explanation of what had happened.
- The Learned Magistrate erred in fact and law in that the Police in charge of the investigation were not called as witnesses. There was a need to cross examine the Police to properly establish the facts in relation to the police interview. The Magistrate failed to take into consideration the length of time it has taken to bring this matter to court. The defendant should never had been charged in the first place.”
Those grounds have been added to by an outline of submissions together with a further document marked “A” for identification of submissions actually made in the hearing.
The grounds of appeal are conveniently divided into three main areas: questions of credit; interference by the learned Magistrate in not allowing the appellant to cross-examine and the questions of provocation and a subsidiary area of evidence not being available.
The learned Magistrate, at page 138 of her reasons, said:
“If I believed everything Mr Croll said and said, “Yes, Mr Croll, you're a totally believable, credible witness.”, I would find that his version does not equate to a defence of self-defence, does not equate to a defence of provocation and he would be guilty of assault. Because he says a bar manager told him to give him the beer glass. He refused. The bar manager hit his hand to get the glass out of him and he punched him in the head. Well, look at those facts. The bar manager has got a duty to manage the bar. Mr Croll admits stealing beer. He did that. It was a breach of order in the hotel. The bar manager, I believe, would have the right to use reasonable force to retain back from Mr Croll property unlawfully taken from the hotel; so he had the right to get that glass off Mr Croll. He asked for it three times; Mr Croll refused to give it to him. He took it using some force on Mr Croll. Mr Croll in that case, if he punched Mr Coburn in the head, that was not a reasonable response to what Mr Coburn had done. It was a reaction far in excess of what was required or would've constituted a defence of self-defence or provocation. However, I find I don't accept Mr Croll as a reliable and credible witness because of the reasons I said before.”
The approach to be adopted in cases of this nature has been the subject of decisions, particularly the Queen v. Free 1983 2 Queensland Reports 183 at 192 where Justice McPherson, with whom the others agreed, at page 192 said:
“It is conceivable that the Magistrate might, without reference to the supposed irregularity of those payments, have reached the same conclusions. But apart from his reasons there was no means of knowing this and from his reasons a contrary is to be inferred. In other words, the decision is one that within the meaning of section 673 cannot be supported having regard to the evidence.”
That particular approach was also followed in Bailey v. Costin Court of Appeal 261 of 1993:
“This appeal can succeed only if no reasonable Magistrate could have reached the conclusion which the Magistrate did or if there is no evidence to support that conclusion.”
In this case it is submitted that there is discrepancies within the Crown case. What is clear is the evidence of Mr Coburn and Ms Spurling who were the bar manager and bar attendant at the material times was that the appellant had a glass in his hand and it was pulled or taken from him and that the appellant pushed the complainant in the back and he fell and hit his head. That is not in dispute as far as they were concerned.
What is not in dispute as far as the appellant is concerned is that the glass was knocked from his hand and he punched the complainant having been, he said, provoked by that former action of hitting his hand. When one looks at the approaches of the Courts of Appeal in relation to matters of this nature questions of credit often arise. The High Court in Devries and Another v. Australian National Railways Commission (1992/1993) 177 Commonwealth Law Reports 472 at 479 joint judgment of Justices Brennan, Gaudron and McHugh said that:
“More than once in recent years this Court has pointed out that a finding of fact by a trial Judge, based on the credibility of a witness, is not to be set aside because an Appellate Court thinks that the probabilities of a case are against - even strongly against - that finding of fact. If the trial Judge's finding depends to any substantial degree on the credibility of the witness to find he must stand unless it can be shown that the trial Judge has failed to use or has palpably misused his advantage or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.”
Once one accepts the substance of evidence of Mr Coburn and Ms Spurling on those main aspects putting aside other minor aspects of whether the glass was full or not or whether it spilled or how long in was in the hand or not, the main issue in the case is that the learned Magistrate has accepted that evidence.
What follows from that is that a Court of Appeal is reluctant to interfere. The appellant has appeared in person and argued his case in detail. In relation to the discrepancies in the evidence he referred to various passages in relation to how much beer was in the glass that he had filled. It is interesting to note at this stage that what caused this fracas was that the appellant reached over the bar, used the tap to put some beer in his glass and was subsequently confronted by Mr Coburn.
His evidence at page 5 line 10 was to the effect:
“I approached that gentleman and said to him (the appellant), mate, you cannot pour your own drinks. You cannot lean over the bar and pour your own drinks. I said please give me your glass and leave the hotel. He then said to me, ‘what are you going to fucking do about it’ and I said, mate, I don't want any trouble. I said it's Boxing Day. I said I just want to go home. I said can you please leave the hotel and give me your glass. He said, ‘go on, mate, and in a round about way, go on, mate, just fucking try’ and he was holding a schooner glass, it was half full of beer, he was holding it I think in his right hand and I put my fingers inside the glass, pulled it from his hand and I said to him I told you. I grabbed that glass and I said can you please leave and I turned to walked back to the bar, someone then pushed me in the back and as I was falling forward my leg got caught inside one of the bar stools and consequently I tripped and hit the right side of face on one of the long dry bars in the hotel and fell to the ground.”
It would be fair to say if one looks at the type of direction which was required in the Queen v. Taiters (1997) 1 Queensland Reports 333 that pushing someone like that an ordinary person in the position of the accused would have reasonably foreseen the complainant falling and hitting his head as a possible outcome in the circumstances.
What the appellant relies upon is the provocation he said of hitting his hand and his responding by punching. If one for the moment assumes that to be an accurate version of what occurred there still remains the problem of the provisions of section 164 and 165 of the Liquor Act 1992.
“An authorised person for premises to which a licence or permit relates may require a person to leave the premises if (b) the person is disorderly or (c) the person is creating a disturbance.”
It also allows under section 165(3) the authorised person to use necessary and reasonable force to relieve the person. An authorised person is defined as an employee or agent of a licensee or permittee. Once the evidence of Mr Coburn is accepted as it was by the learned Magistrate it raises the question then that the appellant had refused to leave, the glass was taken off him in some manner and then a punch thrown. Mr Coburn was justified in using that reasonable force even on the accused version of events. Therefore it could not be said that at law provocation was such that it deprived the appellant of his power of self control and he was therefore justified in the punch.
Mr Coburn was performing his duties. In any event that is an alternative because on the facts of this case and having heard the submissions of the appellant the learned Magistrate in rejecting his evidence was entitled then to find the facts as proved in accord with the Crown case.
The other matters that are raised of interference by the learned Magistrate. Having perused the transcript last night and this morning and this afternoon the examples which one finds the learned Magistrate interfering is where the questioning became repetitive or irrelevant. Section 21 of the Evidence Act provides as follows:
“(1) A Court may disallow a question which in the opinion of the Court is indecent or scandalous unless the question relates to a fact in issue the proceedings or to matters necessary to be known in order to determine whether or not the facts in issue existed.
- (2)A Court may disallow a question which in the opinion of the Court is intended only to insult or annoy or is needlessly offensive in form.”
The types of questions which were objected to and which were repetitive could be said to be annoying. The interference by the learned Magistrate was not in my view such which could in any way suggest that she was biased or not allowing the appellant to proceed.
There were 130 odd pages of transcript involving evidence in what is described as a fairly trivial assault two days in the Magistrates Court. The appellant was given advice to issue a subpoena which he did and documents were produced to the Court but not to his satisfaction. This brings me to the fact of evidence not being called or produced. The appellant was given the opportunity to adjourn the case if he wished. He was not happy with the copies of documents produced by the Commissioner of Police. I refer to the transcript at page 133. At that point in time the appellant had an option, to ask for an adjournment or to proceed with the case. The case was proceeded with and the addresses occurred. That is a matter unfortunately perhaps with his inexperience that he did not take advantage of and ask for an adjournment but I am not here to judge his inexperience.
There was also the failure to call a Constable Luff but once again there is nothing before me which would indicate that that he was a necessary witness. There is a suggestion that there was a conversation between a Mr Kelly and the partner of Ms Spurling who gave evidence to suggest that Luff had spoken to her the night before. The evidence of Kelly of his conversation with the partner of Ms Spurling is hearsay. In any event, Ms Spurling gave evidence that she had not spoken to Luff. That is a collateral issue. The appellant was stuck with that answer. There are only a limited type of case where that collateral issue can be broadened where there is, apart from the credit, an actual issue which is inextricably linked with the principal issue which was not the case here. See R v. Lawrence, QLR 4 May 2002.
There was also a statement that the appellant and his father overheard a police person saying that they would fix the evidence in relation to this matter. The appellant's father was not called on that aspect and it does not seem to have been fully explored at the hearing.
When one looks at the particulars of the Crown case and the admissions by the appellant in this case it would have been open for the Court to convict him in any event on an assault charge. See R v. Trifyllis, COA358 of 1998 at page 10, particularly the reference there to the High Court case of Dare v. Pullen (1982) 148 CLR 658 where the Court said:
“A disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in the case was closed.”
There were no particulars provided in the present case and on the appellant's own admission there was an assault by nature of the punch.
There is further an application to re-open the case to call evidence if I were against the appellant. Section 223 allows new evidence to be adduced. Any evidence which the appellant wished to tender was available as at the date of the hearing. In particular, an adjournment could have been sought to seek that other material of which he was well aware. For those reasons the appeal is dismissed.