Smith v Commissioner of Police
[2012] QDC 25
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- Smith v Commissioner of Police[2012] QDC 25
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Smith v Commissioner of Police[2012] QDC 25
Smith v Commissioner of Police[2012] QDC 25
[2012] QDC 25
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE DORNEY QC
No 23 of 2011
CHRISTOPHER LAWRENCE SMITH | Appellant |
and | |
COMMISSIONER OF POLICE | Respondent |
TOOWOOMBA
DATE 06/02/2012
JUDGMENT
HIS HONOUR: This particular proceeding is an appeal by Christopher Lawrence Smith. The appellant was charged with a number of offences and came before the Magistrate, by whom he was convicted, on the 23rd of March 2011 for sentence. The charges arose from one incident. They are: (1), obstructing a police officer on 8 October 2009 contrary to section 790(1) of the Police Powers and Responsibilities Act 2000, and (2), assaulting a police officer on 8 October 2009, again, pursuant to section 790(1) of the Police Powers and Responsibilities Act 2000.
The Magistrate, Mr Quinn, dismissed the charge of obstructing a police officer as he had formed the view that it would be duplicitous to convict the appellant of both charges. The appellant was subsequently sentenced by the Magistrate, as stated, on 23 March 2011 and given a six month good behaviour bond with a recognisance of $450. Further, he was ordered to pay $100 compensation to the complainant; and no conviction was recorded.
The Court has before it an amended notice of appeal dated 30 September 2011. In that appeal, the grounds of appeal are stated in a discursive way, but they include aspects such as the following: the suspicion of the police was not founded (and it was only a ruse by the police to unlawfully detain the appellant to justify the carrying out of other unlawful acts); and that such acts which are allowed under Queensland Government laws are inconsistent with the Commonwealth Act, because they are superior and prevail other State laws. Further grounds refer to particular sections of the Queensland Criminal Code, including section 78, 267, 268, 269, 270, 271, 277 and 278, as well as references to the definition of a “dwelling” in section 348 and the meaning of “consent”. References are also made to the Commonwealth Criminal Code, and to a particular decision of the High Court of Australia, Plenty v Dillon, which is reported in (1991) 171 CLR 635.
The appellant has not filed an outline of submissions. Nevertheless, I've allowed him a deal of latitude today to present his arguments orally, and he has done so clearly, even though I judge it was slightly repetitive, even if more limited than the notice of appeal (in both forms). The original grounds of appeal were two: namely, that in the circumstances and on the evidence the learned Magistrate could not be satisfied beyond reasonable doubt that the complainant police officer in this case - I think it's Sergeant Ryan (in fact, it’s Constable Johnson) - was acting in the performance of the officer's duty; and, secondly, that the verdict of the learned Magistrate was unsafe, unsatisfactory and against the evidence.
On an appeal under the provisions of the Justices Act 1886, I'm required to afford respect to the decision of the Magistrate, and bear in mind any advantage the Magistrate had in seeing and hearing the witnesses give evidence, but even so I'm required to review the evidence to evaluate conflicting evidence and to draw my own conclusions. Among the cases requiring me to do that is Rowe v Kemper [2008] QCA 175, particularly paragraph [5].
I have had an opportunity to actually have a look at the transcript of proceedings in this particular case. The learned Magistrate reviewed the evidence in some detail. He decided, after considering the evidence of the complainant (who, as noted, was obviously not Sergeant Ryan) and Sergeant Ryan, that they had exercised appropriately the powers given to them under the Police Powers and Responsibilities Act in intercepting the appellant's vehicle.
The respondent’s outline of argument refers, among other things, to the power of the police to intercept cars and conduct licence checks. It's important that, when undertaking those responsibilities, section 68(2) of that Act further provides the police officer with powers to require the person in control of a vehicle to do, or not to do, anything the police officer reasonably believes is necessary to enable the police it to safely exercise a power under the Transport Operations Road Use Management Act 1995 in relation to the vehicle or to preserve the safety of the police officer.
Accordingly, it was open to Sergeant Ryan to remove the appellant's keys from the car and the complainant to position himself in such a fashion to prevent the appellant from closing the door, if otherwise the Magistrate found that the evidence was supportive of those particular actions.
Again, both police officers, on the acceptance of the Magistrate’s decision, which I think was open to him in my independent review of matters, in order to ensure that a person such as the appellant was not committing an offence, pursuant to section 78 of the Transport Operations Road Use Management Act 1995, were able to exercise the relevant authority. In particular that authority prohibits persons driving motor vehicles unless the person holds a driver's licence. And, therefore, if the complainant and Sergeant Ryan were of the view that in fact they were performing a legitimate task in asking the appellant and then requiring him to produce a licence, and ensure that he was not in contravention of that Act, they were behaving appropriately.
Turning then to the evidence led at the hearing. The learned Magistrate did prefer the evidence of the police witnesses, and of the relevant council worker, against that of the appellant. All those persons gave evidence orally before him. During the appellant's oral submissions, he referred to the fact of a video tape being had that may well have been relevant to the issue of credibility. That video tape does appear to have been considered by the learned Magistrate.
One of the complaints that the appellant made was that if he had known that the issue of credibility could be raised, then he would have led evidence with respect to that. Unfortunately for his case, it was clear beyond argument, particularly since he was represented by a solicitor, that the issue would always be one of credibility. He was, after all, contesting the particular charges which were bought against him, which were clearly outlined as both obstructing and assaulting a police officer on that particular day.
The learned Magistrate rejected the appellant's evidence at the first instance on a number of grounds. He accepted the corroborating evidence which was led by the other witnesses besides the complainant. There is nothing in my consideration, both of the evidence and in the findings by the Magistrate, that proves to the satisfaction necessary that I must have that the Magistrate did not make his decision lawfully. It is perhaps understandable in the circumstances that Mr Smith disagrees with the findings that he did make, but a position any decider of facts must take - as the Magistrate was faced with in this particular case - is in fact to accept one version of events in preference to another version.
There is nothing in the Magistrate’s reasons, considered in light of all of the evidence, which shows that in fact the undoubted advantage he had of seeing all witnesses was in any way misused. I therefore in accordance with the relevant authority must pay due regard to that. I have, as also required by law, taken account generally of the evidence which has been given, and specifically of the evidence which is in conflict between the witnesses who were led for the prosecution and the evidence of Mr Smith. In all, I am not satisfied that the appellant has been able to establish in this appeal that the relevant inquiry that I should make should lead to his success.
Before I make the final decision in this case, I'll refer to a number of matters that the appellant raised orally. He first raised the fact that the language used by Sergeant Ryan in fact was insulting. That, of course, is an aspect that might be brought into account; but from the Magistrate's consideration of the evidence overall, I cannot see that, even if it were to be found that Sergeant Ryan was insulting to him (in his description of the appellant), that would necessarily lead to a rejection of the rest of Sergeant Ryan's evidence. There was also the aspect of: if Sergeant Ryan had a suspicion concerning the appellant's licence, why didn't he mention that to the other police officer?
Again, of course, these are issues which were available for determination by the learned Magistrate at first instance, and again, it's impossible to see from the record that that would have had any effect on the eventual outcome of the decision made by the Magistrate with respect to credibility.
The issue of provocation, if it could have been raised, does not appear to have been effectively raised by Mr Smith's representative (ie his legal representative) at the Magistrates Court hearing. Again, that is not an issue that affects the outcome here.
Mr Smith raised the issue of the bias of the Magistrate. Again, there is no evidence before the Court of such bias. And it's an important aspect of bias that, if the issue is not raised before the decider of fact at first instance, the appellate Courts are very reluctant to consider that any such allegation should be entertained on appeal, and I do so in this case. Finally, there is mention of the High Court decision of Plenty v Dillon. It is, as Mr Smith asserts, binding on me in terms of its principle. Unfortunately for his case, it's not binding upon me without the established factual basis that was accepted in that case. It was only upon acceptance of that factual basis that the High Court was able to move to the principles which they applied, and it was on that particular basis they were entitled to make their decision. That particular decision – about which there is some disagreement about whether it was mentioned at first instance or not - of course is not relevant to this particular case unless I should accept Mr Smith's contentions that in fact the proper factual foundation had been laid in this case for acceptance of the relevant principles for the reasons that I've outlined in some detail.
The Magistrate had it open to him to make the findings of credibility that he did. Those findings of credibility rejected the evidence of Mr Smith at first instance, and I see nothing available to me which would indicate that the Magistrate was wrong in that. Therefore, the principles which are outlined in Plenty v Dillon cannot be applied to this appeal without a proper factual basis.
Overall, therefore, I reach the decision, after review, that in fact the Magistrate correctly addressed the legal issues in this case and correctly came to the decision he did. The evidence that I've canvassed and that appears in the record at first instance shows that no other decision would appear to have been open to him on his credibility findings. I therefore find that the appeal should be dismissed.
Since the legal representative for the Crown has not sought costs, I make no order as to costs.