Moore v Queensland Police Service
[2012] QDC 133
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- Unreported Judgment
- Moore v Queensland Police Service[2012] QDC 133
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Moore v Queensland Police Service[2012] QDC 133
Moore v Queensland Police Service[2012] QDC 133
DISTRICT COURT OF QUEENSLAND
CITATION: | Moore v Queensland Police Service [2012] QDC 133 |
PARTIES: | Aaron Mark Moore (Appellant) v Queensland Police Service (Respondent) |
FILE NO/S: | 18/2011 |
DIVISION: | Appeal |
PROCEEDING: | Appeal from 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: | APPEAL AND NEW TRIAL – whether convictions were unsafe and unsatisfactory – where misstatement of identification evidence APPEAL AND NEW TRIAL – whether magistrate went beyond the particulars of the charge |
LEGISLATION: | Justices Act 1886 (Qld), s 222 Criminal Code 1899 (Qld), s 572 |
CASES: | R v Domican (1992) 173 CLR 555 R v Saffron [1989] 17 NSWLR 395 R v Trifyllis [1998] QCA 416 Rowe v Kemper [2009] 1 Qd R 247 Teelow v Commissioner of Police [2009] QCA 84 Osgood v Queensland Police Service [2010] QCA 242 Allesch v Maunz (2000) 203 CLR 172 |
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
- [1]The appellant, Aaron Mark Moore, seeks to appeal from convictions before the learned magistrate at Mt Isa on 8 September 2011 with respect to two summary offences, public nuisance and obstruct police.
The law
- [2]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”.[1]
- [3]As the High Court stated in Allesch v Maunz[2] “… 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.”
- [4]Justices Act s 223 requires a District Court judge to conduct “a real review of the evidence drawing [their] own inferences and conclusions”[3] and for the District Court judge to make their “own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.”[4] As Muir JA indicates, in Teelow v Commissioner of Police, “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.”[5]
Appeal grounds
- [5]The appellant appeals against conviction on the following grounds:
- (a)that the conviction for the public nuisance offence is unsafe and unsatisfactory;
- (b)that the learned magistrate erred in going beyond the particulars relied upon by the police for the obstruct police charge, which caused a miscarriage of justice.
The evidence
- [6]Around 3.18am on 7 August 2010, a male person was seen by an employee of the Mt Isa Hotel to be standing on the bonnet of a police car parked in the middle of the road outside the Mt Isa Hotel.
- [7]Shortly after the male person jumped off the bonnet of the police car, and started walking towards the police station, there was a conversation between a police officer, Senior Constable Brendan McDonell, and a security provider from the Mt Isa Hotel, and as a result, Senior Constable McDonell followed a male person to a position at or next to Woolworths on Miles Street, where, after a struggle, the person then apprehended (the appellant) was charged with obstruct police and public nuisance.
- [8]At the commencement of the trial, Mr Hunter, solicitor, (who conducted the summary trial on behalf of the appellant) read into the record the following particulars provided by police:
“The particulars of public nuisance are that on the 7th of August at about 3.18am the defendant behaved in a disorderly manner by standing on the bonnet of a vehicle in Miles Street, Mt Isa.
In respect of the particulars of obstruct, those particulars are that on the 7th of August 2010 at about 3.18am the defendant obstructed police during his arrest by struggling and resisting.”[6]
- [9]Mr Hunter went on to state:
“Sergeant Stevens [the police prosecutor] indicated to me or gave me particulars that Senior Sergeant Day and Sergeant Edwards took the defendant by the arms and turned him towards the windows – this is at Woolworths over the road here, your Honour in Miles Street side. They held each arm and McDonell said, ‘I am going to search you before you go to the watch house. Do you have any weapons or anything that might hurt me?’ The defendant said, ‘You’ll find out.’ McDonell did a pat down search, located a wallet in his pants pocket, and the defendant began to twist his body and pull his arms against the holds of Senior Constable Day and Sergeant Edwards. And that, I was told, is the obstruct police that the prosecution intend to rely” (sic).[7]
Discussion – public nuisance charge
- [10]The submission on behalf of the appellant in respect of the public nuisance charge is that there was a lack of continuity of identification. The witness, Paul Fulton, who identified himself as “a glassie at the Mt Isa Hotel”, who was “just helping the security out” on the night of the rodeo (7 August 2010) gave evidence that he had “seen the defendant on … the bonnet of a police car”,[8] and then identified him in court as “the guy sitting just down there” [presumably a reference to the defendant in court].[9] Mr Fulton gave evidence that he recognised “the face and also pointed him out to … the police officer on … the night”.[10] Mr Fulton gave evidence that the lighting was good, and that although there was a crowd of 100 or 150 people outside the hotel, he (Fulton) “was pretty much between the crowd and the defendant, 3, 4 metres away from the defendant”.[11]
- [11]In cross-examination Mr Fulton agreed that in his police statement, provided on 20 October 2010, he was unable to describe the defendant.[12] Mr Fulton in cross-examination stated that a “police officer” had “come past in a car”, asked “Who saw the defendant?” and when Mr Fulton said that he had identified the defendant, the police officer asked him to jump in the car, which he did, and then, while seated in a police car, in a laneway between the court and the police station, Mr Fulton, “identified him as being the right person.” Mr Fulton was unable to name the police officer with whom he had had this conversation.[13]
- [12]Mr Fulton was unable to identify the clothing worn by the person he saw, other to say that he wasn’t wearing shorts.[14]
- [13]Mr Fulton gave evidence in cross-examination that he had a conversation with a police officer who “took off after [the person identified by Mr Fulton]” and then Mr Fulton was asked to jump into a police car and drove down to the police station where “I identified him”.[15] Mr Fulton was similarly unable to name the police officer with whom he spoke initially to tell that police officer “which direction [the person he identified] went in”.[16]
- [14]Mr Fulton was never asked to undertake a photoboard identification of the person that he saw that night.[17]
- [15]The only police officer who gave evidence of a conversation with a civilian purporting to identify the appellant was Senior Constable Brendan McDonell, who gave evidence in these terms:
“We were just in the vicinity of the Isa Hotel in the section of Marion and Miles Street. A security provider approached me and told me something and then pointed out a male walking along Miles Street … as a result of this I walked along Miles Street and maintained constant visual contact with that male until I caught up with him. That male is the defendant in this matter.”
- [16]Senior Constable McDonell then gave evidence about the interaction between himself, Senior Constable Day and Sergeant Edwards, during which interaction Senior Constable McDonell “used an open hand strike to the right-hand side of the defendant’s head.”[18] The strike by Senior Constable McDonell to the appellant’s head appears to have occurred after McDonell located and removed a wallet from the appellant’s back pocket.
- [17]None of the other police officers who gave evidence, Senior Constable Matthew Day, Senior Constable Luke Mair and Sergeant Stephen Edwards, claim that they were privy to any conversation between any employee of Mt Isa Hotel and Senior Constable Brendan McDonell, nor did they personally claim to have had a conversation with any employee of the Hotel.
Identification
- [18]The issue of identification is a question of fact and as the High Court has indicated, there is a special need for caution before convicting a defendant in reliance on the correctness of that identification.[19]
- [19]In this trial, the witness Paul Fulton attests to having seen a male person, briefly, on a police car, then seeing a male person in the custody of police, from a police car, being held by police in a laneway between the police station and the courthouse, then subsequently some 13 months later, purporting to identify the defendant in court proceedings as being the same person who stood on the police car and was being detained by police in the laneway beside the police station. The witness Fulton was unable to give much substantive evidence by way of description of the male person concerned and was never asked to take part in a photoboard identification.
- [20]The learned magistrate should have been clear in directing himself on the issues of identification in terms of the model direction contained in the Supreme and District Court Benchbook.[20]
- [21]What is clear, however, is that the learned magistrate then fell further into error when he stated in his decision:
“The observation by Officer McDonell, that he kept Mr Moore under constant observation from the point that he was identified by Mr Fulton, aids the certainty of identification.”[21]
- [22]That, unfortunately, was a misstatement of the evidence. The witness Paul Fulton was unable to recall which police officer he spoke to, and conversely, Senior Constable McDonell was not able to place his evidence higher than that “a security provider approached me and told me something and then pointed out a male walking along Miles Street.”[22] It would appear that the learned magistrate has approached the issue of identification on the basis that it was the witness Paul Fulton who spoke to Senior Constable McDonell, but that is not borne out by the evidence. In fact, the witness Paul Fulton states that on the night his role was “picking up glasses and just helping the security out”.[23] There is a lacuna of evidence as to what clothing Paul Fulton was wearing on the evening in question.
- [23]I accept the submission that there was a failure in the continuity of evidence, and that the purported evidence of identification from the witness Paul Fulton was tainted by the circumstances in which it occurred (ie identifying a single person, in police custody, without subsequently participating in a photoboard identification).
- [24]Accordingly, I have no hesitation in the circumstances in concluding that it would be unsafe and unsatisfactory to conclude, beyond reasonable doubt, that the appellant was the person who stood on the police car in Miles Street, Mt Isa on 7 August 2010.
Discussion – obstruct police charge
- [25]The learned magistrate, in his decision, concluded (in respect of the obstruct police charge) that, “I find Aaron Moore obstructed police by struggling and resisting police and is guilty of that offence.”[24]
- [26]During an exchange between the learned magistrate and Mr Hunter subsequent to the learned magistrate’s decision, the learned magistrate stated:
“Obviously, in considering whether or not [the appellant] had committed the offence, and finding that he did, I am able to make that finding on all of the evidence, not just that which is contained within the particulars.”[25]
The learned magistrate went on to state[26] that the police were “not restricted by those particulars. There is clear authority on that.”
- [27]The learned magistrate has in my view misstated the law. In R v Saffron [1989] 17 NSWLR 395, Hunt AJA stated:[27]
“Certainly an accused’s entitlement to particulars in a criminal case is the same as the defendant’s entitlement in a civil case. An accused is not able to plead to the charge unless he knows the precise case which is the basis for the charge preferred against him …
Where the relevant particulars are not stated in the indictment (because the necessity to do so has been dispensed with by statute), an accused is entitled to have identified the specific transaction upon which the Crown relies and to be appraised not only of the legal nature of the offence with which he is charged but also the particular act, matter or thing alleged as the foundation of the charge … If the Crown’s obligation to give particulars in a criminal case is the same as the plaintiff’s obligation to do so in a civil case, so should the consequences of having given those particulars be the same in each type of case – subject only to the trial judge’s duty in each case to ensure that prejudice is not created by any departure from those particulars.”
- [28]Criminal Code s 572 permits a court to “order an indictment to be amended where there appears a variance between the indictment and the evidence if the variance is not material to the merits of the case and the accused will not be prejudiced. Amendment may occur after verdict where the court is satisfied that no injustice will be done.”[28]
- [29]In this matter, it is clear that the trial was litigated by the appellant on the basis of the particulars placed before the learned magistrate at the commencement of the trial, and forensic decisions (including a decision not to call the appellant to give evidence) were, no doubt, made on the basis of those particulars.
- [30]However, in addition to the misstatement of law as to particulars, there is a more fundamental defect in the learned magistrate’s decision reasoning. The wording of the bench charge sheet in respect of the obstruct police charge is as follows:
“That on the 7th day of August 2010 at Mt Isa in the Magistrates Court district of Mt Isa in the State of Queensland one Aaron Mark Moore obstructed a police officer namely Brendan McDonell in the performance of the officer’s duties.”
- [31]This should be contrasted with the learned magistrate’s findings that the appellant “obstructed police by struggling and resisting police and is guilty of that offence.”[29]
- [32]For the learned magistrate to be satisfied beyond reasonable doubt that the defendant was guilty of the charge as alleged, it was necessary for him to conclude not that “police” had been obstructed, but that “police officer … Brendan McDonell” was obstructed in the performance of his duties.
- [33]It is clear that the learned magistrate has erred in law, both in respect of the purported widening of the particulars, but more fundamentally, in failing to find, beyond reasonable doubt, that the charge as alleged was made out.
Conclusions
- [34]I conclude that in respect of each of the two charges the subject of this appeal, the appeal should be granted. In respect of each charge, the conviction is quashed.
- [35]In respect of the public nuisance offence, a verdict of acquittal is entered.
- [36]In respect of the obstruct police charge, pursuant to Justices Act s 225(2) I order that the charge be remitted to the Magistrates Court at Mt Isa for retrial for a different magistrate.
- [37]I will hear the parties on costs.
Footnotes
[1]Osgood v Queensland Police Service [2010] QCA 242 per White JA at para 20.
[2] (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.
[3]Rowe v Kemper [2009] 1 Qd R 247 per McMurdo P at para 5.
[4]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.
[5] [2009] QCA 84 per Muir JA at para 4, citing with approval Allesch v Maunz (2000) 203 CLR 172, 181.
[6] Transcript p 1-12.
[7] Transcript p 1-13.
[8] Transcript p 1-17.
[9] Transcript p 1-18.
[10] Transcript p 1-18.
[11] Transcript p 1-17, 1-20.
[12] Transcript p 1-20.
[13] Transcript p 1-19.
[14] Transcript p 1-21.
[15] Transcript p 1-24.
[16] Transcript p 1-24.
[17] Transcript p 1-25.
[18] Transcript p 1-28.
[19]R v Domican (1992) 173 CLR 555.
[20] Direction No. 49.
[21] Decision pp 1-23 – 1-24.
[22] Transcript p 1-27.
[23] Transcript p 1-17.
[24] Decision p 1-32.
[25] Decision p 1-33.
[26] Decision p 1-34.
[27] [find reference between pp 445 – 449]
[28]R v Trifyllis [1998] QCA 416 per Chesterman J at [21].
[29] Decision p 1-32.