Stehbens v Queensland Police Service
[2012] QDC 132
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- Unreported Judgment
- Appeal Determined (QCA)
- Stehbens v Queensland Police Service[2012] QDC 132
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Stehbens v Queensland Police Service[2012] QDC 132
Stehbens v Queensland Police Service[2012] QDC 132
DISTRICT COURT OF QUEENSLAND
CITATION: | Stehbens v Queensland Police Service [2012] QDC 132 |
PARTIES: | KYM MAREE STEHBENS v QUEENSLAND POLICE SERVICE |
FILE NO: | 21/2011 |
DIVISION: | Appeal |
PROCEEDING: | Appeal against conviction |
ORIGINATING COURT: | Mt Isa Magistrates Court |
DELIVERED ON: | 4 June 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 February 2012 |
JUDGE: | Dearden DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE |
LEGISLATION: | Justices Act 1886 (Qld) ss 222, 223 |
CASES: | R v Reynhoundt (1962) 107 CLR 381 Osgood v Queensland Police Service [2010] QCA 242 Allesch v Maunz (2000) 203 CLR 172 Rowe v Kemper [2009] 1 Qd R 247 Teelow v Commissioner of Police [2009] QCA 84 |
COUNSEL: | M Hibble for the appellant C Winlaw for the respondent |
SOLICITORS: | Warren Hunter solicitor for the appellant Director of Public Prosecutions for the respondent |
Introduction
- [2]The appellant Kym Maree Stehbens appeals from her conviction before the learned acting magistrate at Mt Isa on 25 November 2011 of one charge of serious assault of a police officer.
The evidence
- [3]The evidence called at the trial has been usefully summarised by Mr Winlaw (who appears for the respondent) at paragraph 1.4 of his outline of submissions, as follows:
“Briefly the evidence was that at about 11.30 pm [on 1 April 2010 at the Isa Hotel, Mt Isa] the appellant and her partner Mr Hilton were in the process of leaving the premises. As they did, they passed Mr Pecchiar who had previously been in a relationship with the appellant. Mr Pecchiar was working in the capacity of a security officer at the premises at the time. Words were exchanged between him and Mr Hilton and the two ended up in a scuffle. The complainant [Matthew John Udovicich] and [police] Officer Steers had been dining at the premises with the complainant’s wife and upon seeing the incident unfolding before them, they approached Mr Pecchiar and Mr Hilton, repeatedly announcing that they were police officers. The complainant and Officer Steers eventually restrained Mr Hilton on the ground. As they did the appellant began yelling at them to get off him. The appellant then struck the complainant. The complainant spoke to the appellant advising that he was a police officer. The appellant requested proof of this and the complainant produced his police badge, which the appellant tried to snatch away from him. The appellant has again struck the complainant, punching him twice to his face and she has also tried to pull him off Mr Hilton. Bystanders have then intervened and moved the appellant away. She continued to walk around the men abusing them until further police officers arrived to assist.”
- [4]I was assisted by viewing relevant CCTV footage of the incident tendered in the trial before the learned acting magistrate.[1]
- [5]The learned acting magistrate, after reviewing the evidence of each of the witnesses for the prosecution, and Ms Stehbens for the defence, then expressed his findings as follows:-[2]
“The issue in determining the weight to be given to each witness’ respective evidence is perhaps not so much as one of credibility as both the prosecution and defence submitted but there certainly is an issue with respect to reliability. Given Ms Stehbens’ alcohol consumption and her admitted state of mind at the time the alleged offence took place, I have little difficulty in accepting the evidence of the prosecution witnesses, Pecchiar, Officer Udovivich, Mrs Udovivich and Officer Steers, where it conflicts with Ms Stehbens. Ultimately, the four witnesses, Pecchiar, Officer Udovivich, Mrs Udovivich and Officer Steers, when one considers their evidence as a whole, provided the court with a consistent version of events resulting in Officer Udovivich being assaulted. I acknowledge that each of their respective versions were not 100 per cent accurate with each other and with the security footage but one could not expect such accuracy, as Mr Hibble rightly pointed to in his submissions.”
- [6]The learned acting magistrate then went on to state:-[3]
“I am satisfied based on the evidence of those four witnesses together with the video evidence which I am of the opinion shows a punching motion by Ms Stehbens towards those persons who were located on top of Mr Hilton that the following facts can be made out: firstly that Mr Pecchiar and Mr Hilton were involved in a scuffle at or in the vicinity of the doorway to the Isa Hotel at approximately at 11.30 pm on the 1st of April 2010: secondly that Officers Udovivich and Steers, who were off duty at the time and sitting at a table with Mrs Udovivich in the hotel dining area, observed the scuffle and walked towards the scuffle; thirdly that Officer Udovivich in the process of walking towards the scuffle verbally identified himself as a police officer; fourthly that both officers, upon intervening in the scuffle, verbally identified themselves as police officers on numerous occasions whilst in the process of restraining Mr Hilton; fifthly, that during the process of restraining Mr Hilton both officers and Mr Hilton ended up in the doorway and predominantly outside of the licensed premises; sixthly, whilst Officer Udovivich and Officer Steers restrained Mr Hilton the floor, the defendant has come towards Officer Udovivich and attempted to get Officer Udovivich off of the top of Mr Hilton by grabbing the officer on several occasions; seventhly that Officer Udovivich has advised the defendant verbally that he is a police officer and at some point whilst restraining Mr Hilton he has placed his right hand into the back pocket of his trousers and removed a black wallet with his police badge and identification in it and presented it in the direction of the defendant; eighthly that the defendant then approached Officer Udovivich and struck him twice to the face with her right hand; and finally that the blow struck Officer Udovivich in the lip area. As was rightly submitted by Sergeant Flynn [the prosecutor], injury is not an element to this offence; however the evidence of Dr Lowe as to the injuries she observed Officer Udovivich to be suffering on the 2nd of April 2010 are consistent with receiving blows to the lip area. Based on the finding of fact, I will only briefly mention the issue of whether Officer Udovivich was acting in the execution of his duty at the time of the alleged assault. My ruling which I handed down earlier today addresses that issue. Despite a different test applying to determine Ms Stehbens’ guilt or otherwise, I think that my finding of fact and my acceptance of Officer Udovivich as evidence with respect to his actions on the evening of the 1st of April 2010 would lead to the conclusion that I am satisfied that Udovivich was acting in the execution of his duty when the alleged assault took place.”
- [7]The learned acting magistrate then went on to consider whether or not the defence of mistake of fact applied. After citing R v Reynhoundt (1962) 107 CLR 381, the learned acting magistrate stated:-[4]
“A defence of mistake of fact would only be successful on the grounds that Ms Stehbens had not known that the two persons were police officers and that her actions would not have constituted an assault on that basis. … Although Ms Stehbens indicated in her evidence that had she known that the men restraining Mr Hilton were police officers, she would not have acted as she did, when one views the video footage and her own evidence it is clear that she was taken away from where the officers and Mr Hilton were located on several occasions by a friend. Each time she was taken away she returned. Based on her oral evidence, her thoughts were that the men were hurting Graham [Hilton] and that she wanted to get them off of him. The evidence in my view makes it abundantly clear that her actions were that of someone who was determined to get those two men off of Mr Hilton. Knowledge that the two persons were police officers would, in my opinion, have no impact on Ms Stehbens’ behaviour given her own oral evidence and the video evidence before the court.”
- [8]The learned acting magistrate then concluded that he was satisfied that the prosecution had proved all of the elements of the charge to the standard required, being beyond reasonable doubt, and found Ms Stehbens guilty of the charge before the court.
- [9]Mr Hibble then made further submissions, seeking to query the learned acting magistrate’s conclusion, on the basis that the learned acting magistrate had not fully appreciated Mr Hibble’s submission in respect of the definition of assault (Criminal Code s. 245) and the effect of the Criminal Code s. 24 defence, which he submitted had not been addressed to the learned acting magistrate’s reasons for judgment.
- [10]The learned acting magistrate then indicated to the court[5] that he was setting aside the finding of guilt in respect of the defendant pending consideration of the further matters which had been the subject of submissions by Mr Hibble on behalf of the appellant. The learned magistrate in his re-considered decision summarised Mr Hibble’s submissions as follows:-[6]
“I understand Mr Hibble’s submissions to be that, based on my finding of fact, the evidence pointed to the defendant, Ms Stehbens, holding an honest and reasonable but mistaken belief that at the time the two officers were restraining Mr Hilton outside the doorway of the Isa Hotel, there was consent or, more particularly, implied consent for the defendant to assault Officer Udovivich.”
- [11]The learned acting magistrate then expressed his conclusions as follows:-[7]
“After giving this matter further consideration and with respect, I cannot agree with Mr Hibble’s submission. I have reviewed my finding of facts, and in my view the evidence and the finding of fact which resulted from my determination of the evidence lead me to conclude that any defence of mistake of fact, based on the grounds which Mr Hibble submitted on, has been negatived beyond reasonable doubt by the prosecution. It therefore follows that I do find Ms Stehbens guilty of the charge before the court.”
- [12]I note in conclusion that the appellant was fined the sum of $450 and no conviction was recorded.[8]
Grounds of appeal
- [13]Mr Hibble of counsel raised a number of grounds on appeal, but in his oral submissions, identified specifically that the ground of appeal relied on was that the learned acting magistrate failed to find that the prosecution had persuaded him, beyond reasonable doubt, that the appellant did not have a honest and reasonable but mistaken belief that the person she assaulted was a police officer.
The law
- [14]An appeal to the District Court from a decision of a magistrate pursuant to s 222 of the Justices Act 1886 (Qld) “is a rehearing on the evidence given at trial and on any new evidence adduced by leave”[9] and requires the District Court judge to make their “own determination of relevant facts in issue from the evidence, giving due difference and attaching a good deal of weight to the magistrate’s view.”[10]
- [15]As the High Court stated in Allesch v Maunz[11] “… the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error … at least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicate that the powers may be exercised whether or not there was error at first instance.”
- [16]Justices Act s 223 requires a District Court judge to conduct “a real review of the evidence drawing [their] own inferences and conclusions”[12] and for the District Court Judge to make their “own determination of relevant facts in issue from the evidence, giving due difference and attaching a good deal of weight to the Magistrate’s view.”[13] As Muir JA indicates “on an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.”[14]
Discussion
- [17]The decision of the learned acting magistrate in this matter is somewhat confusing, in that having stated “knowledge that the two persons were police officers would, in my opinion, have no impact on Ms Stehbens’ behaviour given her own oral evidence in the video evidence before the court”,[15] he went on to state “It therefore follows that I am satisfied the prosecution had proven all elements of the charge to the standard required, that being beyond a reasonable doubt, and I therefore find Ms Stehbens guilty of the charge before the court”.[16]
- [18]There then follows some five pages in the decision transcript of an exchange between Mr Hibble (who was both the trial counsel and appellate counsel) and the learned acting magistrate, essentially on the issue as to whether the prosecution had excluded a consensual fight beyond reasonable doubt, a matter not addressed by the learned acting magistrate in his reasons for decision.
- [19]The learned acting magistrate, having adjourned to consider the matter, returned and indicated that his previous “finding of guilt was revoked” or “set … aside” pending the consideration of the further matters which Mr Hibble had brought to his attention.[17]
- [20]The learned acting magistrate made it clear that he did not “intend in any way to alter the finding of fact which [he had] made out”.[18] The learned acting magistrate then stated “In my view the evidence and the finding of fact which resulted from my determination of the evidence led me to conclude that any defence of mistake of fact, based on the grounds which Mr Hibble submitted on, has been negatived beyond reasonable doubt by the prosecution” and again found Ms Stehbens guilty of the charge.[19]
- [21]Mr Hibble’s submission on appeal is that the learned acting magistrate did not reject the evidence of the appellant to the effect that she had an honest reasonable but mistaken belief that the complainant was not a police officer. The appellant’s evidence on this in her evidence-in-chief was clear, that she did not know until later in the night after she was arrested that the two persons concerned were police officers,[20] and the appellant was not shifted on the issue despite determined cross-examination by the trial prosecutor.[21]
- [22]Although the learned acting magistrate’s reasons for decision were somewhat equivocal, his statement that “knowledge that the two persons were police officers would, in my opinion, have no impact on Ms Stehbens behaviour given her own oral evidence and the video evidence before the court”[22] does not, either in its own terms or in conjunction with the learned acting magistrate’s previous detailed reasons, amount to a finding that the prosecution had negatived, beyond reasonable doubt, the s 24 defence. To some extent, this conclusion is supported by the terms of the learned acting magistrate’s finding “that I am satisfied the prosecution have proven all elements of the charge to the standard required, that being beyond a reasonable doubt”[23] without going on then to exclude, beyond reasonable doubt, the defence raised pursuant to s 24.
- [23]When the learned acting magistrate then returned subsequently to re-deliver his decision, although again finding the appellant guilty, he still failed to identify that in order to do so, he would have to conclude, beyond reasonable doubt, that he had rejected the appellant’s honest and reasonable albeit mistaken belief that the complainant was not a police officer.
Conclusion
- [24]It follows that the learned acting magistrate fell into legal error in failing to find beyond reasonable doubt that the defence under s 24 was excluded. In my view, given the state of the evidence before the learned acting magistrate, he could not have been persuaded beyond reasonable doubt that the appellant did not have a honest and reasonable but mistaken belief of fact that the complainant was a police officer. On the evidence before the learned acting magistrate, the defendant should have been acquitted.
Orders
- [25]I order as follows:
- Appeal granted.
- Conviction for serious assault of a police officer on 1 April, 2010 quashed.
- Verdict of acquittal entered.
- [26]I will hear the parties on costs.
Footnotes
[1] Trial Exhibit 1.
[2] Decision p. 16.
[3] Decision p. 17.
[4] Decision p. 19.
[5] Decision p. 25.
[6] Decision p. 26.
[7] Decision p. 26.
[8] Decision p. 31.
[9] Osgood v Queensland Police Service [2010] QCA 242 per White JA para 20.
[10] Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175 at [3] per McMurdo P.
[11] (2000) 203 CLR 172, 180-181, adopted by Muir JA in Teelow v Commissioner of Police [2009] 2 Qd R 489; cited with approval by White JA in Osgood v Queensland Police Service [2010] QCA 242.
[12] Rowe v Kemper [2009] 1 Qd R 247 per McMurdo P at para 5.
[13] Rowe v Kemper [2009] 1 Qd R 247 per McMurdo P at para 3; Osgood v Queensland Police Service [2010] QCA 242 per White JA para 21.
[14] Teelow v Commissioner of Police [2009] QCA 84 per Muir JA at para 4, citing with approval Allesch v Maunz (2000) 203 CLR 172, 181.
[15] Decision p. 20.
[16] Decision p. 20.
[17] Decision p. 25.
[18] Decision p. 25.
[19] Decision p. 26.
[20] Transcript p. 2-11.
[21] Transcript p. 2-17.
[22] Decision p. 19.
[23] Decision p. 19.