Perry v Queensland Police Service
[2012] QDC 294
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- Unreported Judgment
- Perry v Queensland Police Service[2012] QDC 294
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Perry v Queensland Police Service[2012] QDC 294
Perry v Queensland Police Service[2012] QDC 294
DISTRICT COURT OF QUEENSLAND
CITATION: | Perry v Queensland Police Service [2012] QDC 294 |
PARTIES: | LEON WILLIAM PERRY (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO: | 284/2011 |
DIVISION: | Appellate |
PROCEEDING: | Appeal against conviction |
ORIGINATING COURT: | Southport District Court |
DELIVERED ON: | 21 September 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 01 August 2012 |
JUDGE: | Rackemann DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Where the appellant was convicted of serious assault – Where the appellant claims defences of accident and self-defence against provoked assault – Whether error by learned Magistrate – Appeal against conviction |
LEGISLATION | Criminal Code Act 1899 (Qld) ss 23(1), 272 |
CASES | Teelow v Commissioner of Police [2009] QCA 084 Commissioner of Police v Toomer [2011] QCA 223 Gobus v Queensland Police Service [2011] QCA 283. Riley v Doyle & Grimsey [1997] QCA 112. |
SOLICITORS: | Mr M. McMillan (McMillan Criminal Law) for the appellant Ms E. Brackin (ODPP Southport) for the respondent |
INTRODUCTION
- [1]The appellant appeals against his conviction, after a summary hearing on 1 June 2011, of serious assault on Raphael Michel Verkest. The assault was serious, because Mr Verkest was over the age of 60. The appellant was sentenced to a one-year good behaviour bond, with a recognisance of $2,500, and ordered to pay $1,500 in compensation.
- [2]The charge arose out of an altercation which occurred on 10 December 2009 in a public park adjacent to the appellant’s residence. A swarm of bees had been infesting part of the park, which caused understandable concern. Mr Verkest, who was described by the learned Magistrate as a “relatively mild-mannered man of Belgian origins”, attended the park, at the request of the council, to collect and remove the bees. He was approached by the appellant and there was a physical confrontation which resulted in the complainant falling backwards and suffering an injury to his vertebrae (although harm is not an element of the offence charged).
- [3]The learned Magistrate concluded, on the evidence, that the complainant’s fall was the result of an assault by the appellant and that the suggested defences of accident (s 23(1)) or self defence against a provoked assault (s 272) did not apply. The grounds of appeal, as amended at the hearing, are that:
- The finding of guilt is not in accordance with the evidence;
- The learned Magistrate failed to properly consider self-defence or accident; and
- In all the circumstances, the evidence did not demonstrate the appellant’s guilt beyond a reasonable doubt.
It is necessary to review the evidence in order to deal with those grounds.
THE EVIDENCE
Mr Verkest
- [4]Mr Verkest’s testimony was that, on the day in question, he was attending the park, at the request of the city council, to remove a swarm of bees that posed a potential threat to children who might use that park. He took with him a box to collect the swarm of bees. At close to dusk he was carrying the box, with the swarm of bees, towards his car when he was confronted by three men, one of whom, the appellant, was particularly agitated. He called Mr Verkest a name and said words to the effect “we have been stung and there are children around, I’ll come and get you”.[1]It was only the appellant who was raising his voice, Mr Verkest and the other two men remained calm.
- [5]Mr Verkest had stopped his journey towards his car and turned, so as to face the appellant. Despite his attempts to explain that he was merely taking the bees away, the appellant proceeded to deliver a punch, over the top of the bee box, to Mr Verkest’s chest. He then proceeded to push the bee box with both of his hands, causing Mr Verkest to fall backwards and land on his back. The appellant then said words to the effect “I’m a real Aussie” and “Now you can yell”.[2]
- [6]In the course of cross-examination Mr Verkest denied that the appellant had asked him for identification, denied that he had become angry in response, denied that he had sworn at the appellant and denied that he had pushed the bee box in the direction of the appellant, causing the appellant to simply push it out of his hands. Mr Verkest was questioned about having previously referred to a kick, but he maintained that it was a case of a punch followed by a push.
Darcy Michael Gunning
- [7]Darcy Gunning was one of three children who witnessed the incident. He, his younger brother and a friend had been riding on their bikes nearby. He described the altercation as “There’s a bee man and he was confronted by another man and attacked”.[3]
- [8]Darcy described how the complainant had been taking the bees back to his car to put them away when confronted by a man (in the company of two others) who was “yelling” and being “aggressive” towards the complainant.[4]The complainant said words to the effect “I’m leaving you moron. Leave me alone”.[5]His recollection was that the man kicked the box of bees and then pushed the complainant down.
- [9]Asked about the complainant’s conduct, he said that the complainant was “talking loudly because the man wasn’t exactly right next to him” and “may have raised his voice” but was “just like conversating and trying to tell him what he was there to do, stuff like that”.[6]Asked whether there was yelling between the complainant and the defendant, Darcy replied “Just arguing really”.[7]
- [10]Asked whether it was a case of both the complainant and the defendant being upset with each other, Darcy replied:
“The bee man had nothing against him to start with, it was just when the other man started to frustrate him and come at him aggressively.”[8]
- [11]Asked whether he saw the complainant do anything before the physical confrontation he said “he was just taking the bees back to his car to put them away”.[9]Asked specifically whether the complainant had moved the box of bees closer to the appellant immediately before physical confrontation, Darcy replied that he did not know whether that happened or not.[10]
Xavier Dolan
- [12]Xavier Dolan was one of the boys who had been riding their bikes and who witnessed the incident. As the learned Magistrate observed, his evidence is a little difficult to follow, because he uses a speech pattern that is more familiar to the younger generation. One of the hallmarks of that speech pattern is the almost obsessive use of the word “like”. Nevertheless, as the learned Magistrate observed, critical elements of his evidence can be discerned.
- [13]His testimony was that a man (the appellant) had been yelling at the complainant and had come out of his backyard, through a gate, and confronted him (in company with others). The man had been yelling at the complainant things such as “Why have you brung the bees in here?” and yelling at him to get out. The complainant responded to the effect “okay, I am going” and picked up his things to leave, but the men were getting closer.[11]Ultimately, one of the men (the appellant) kicked the bees out of the complainant’s hands and pushed him on the chest, causing him to fall over.
- [14]Asked, in cross-examination, whether the complainant had started to yell at the appellant, Xavier replied:
“Yeah. He wasn’t really yelling, more just like – he was saying that yeah, because of his accent you couldn’t really tell, but he was saying like, is like, yeah like I’m getting out of here sort of thing.”[12]
He also conceded that he had told the police that the “bee fellow” “was starting to yell and stuff”, but added “It was in like a scared sort of tone I guess you’d call it” and that the complainant had been trying to tell the defendant that he hadn’t brought the bees there, but was trying to take them away.[13]He denied that it sounded as though the complainant was starting to get angry. He also said that he had not seen the complainant do anything to cause the appellant to push him.[14]
- [15]Xavier rejected the suggestion that the complainant had simply “dropped down”. He responded that:
“He didn’t drop, he – they – 40 metres away we heard him hit the ground, he is obviously pretty solid so – but yeah, got pushed over and knocked back on like his back, like bum area.”[15]
He described the push as a “solid push to the chest”.[16]
Callum Gunning
- [16]Callum was the 14 year old brother of Darcy and had been riding his bike with the others prior to witnessing the incident. He confirmed that the boys had spoken to the complainant earlier in the day. His attention was drawn back to the complainant when a man (the appellant) started yelling at him. He saw the man kick the bee box out of the complainant’s hand and push him to the ground. On his evidence, the complainant had done nothing to the appellant prior to the physical confrontation[17]and had not himself been yelling.[18]
- [17]In cross-examination, Callum acknowledged that he had told the police officer that two men kicked the bees away, but his evidence at trial was that it was only one.
Ian Granville Crawford
- [18]Mr Crawford is an acquaintance of the appellant who was at his house for a barbecue on the day in question. At one point he went into the backyard and noticed the appellant speaking with the complainant. He described the complainant as being “boisterous and belligerent and a little bit aggressive”[19]towards the appellant. At some point however, he heard the appellant say “Fuck off” loudly.[20]He looked up to see the complainant, with the bees in his hand, step towards the appellant and raise the box. The appellant then raised his hands to his chest. The complainant then came into contact with the appellant and fell to the ground. Mr Crawford could not say exactly how the contact occurred, because the appellant’s back was towards him. He said however that “it wasn’t big contact”. The complainant did not “go flying backwards”. Rather he “just fell (to) the ground”. The appellant then told him to “Fuck off” again and then returned to his house.[21]
The Appellant
- [19]The appellant elected not to give or call evidence, but a record of interview which he gave to the police was admitted into evidence. In that record of interview, the appellant said that he observed the complainant walking about the park with a big white box. He yelled out to him “What have you got in that white box?”, to which he got no response. He then said “Look mate I hope you’re not dumping any snakes or anything like that” to which the complainant responded “Nah, nah, nah”. The appellant then again asked what was in the box, at which point the complainant started getting a bit aggressive.
- [20]The complainant mentioned something about the council and the appellant asked for his ID. At this point the complainant explained that “I am a bee collector and I have permission by the council to do what I want with my bees”. The appellant responded “You have got no permission to do anything with the bees, you are not allowed to breed them in our park” and “Our kids are getting stung” and “I’ve got a friend here who is allergic to them who had just had to go inside because if he gets stung by them, you know, they are hovering around the place”. The complainant responded “Well, fucking bad luck” and started “carrying on like a two bob watch”. This part of the appellant’s version is not without difficulty. It presents the complainant as belligerently insisting that he can do what he likes with his bees, but the complainant was not challenged on his evidence that the bees were not his and that he was simply taking them away for the council.
- [21]The appellant again asked for his ID, started to get agitated and swore at the complainant. The appellant approached within a foot of the complainant and said “Mate, I want to see your ID otherwise fuck off” and kept saying to him “Fuck off”. The appellant’s evidence was that:
“Next minute I’m standing there and he turns around and he’s got this big white box in his hand and he pulls in on the side and he lunges it to me, I have turned around and basically lifted myself, my hands up to defend myself and he’s gone arse over”.
The appellant claimed that, prior to the altercation, both he and the complainant were being verbally aggressive.
- [22]In response to Mr Verkest complaining about his back and saying that the police should be called, the appellant responded “Why don’t you call the fucking police you idiot and get the fuck out of our park … These bees are stinging us, get rid of them now”. The appellant admitted that he was angry with the complainant but denied that he hit him or struck him, he said he simply “lifted my hands up to protect myself”. He claimed that the bee box collided with him as a result of the complainant pushing the box into him and that is what caused the complainant to fall backwards. He denied pushing him at all.
DISCUSSION
Was the complainant assaulted?
- [23]The first question for his Honour to resolve, on the evidence, was whether the complainant was assaulted by the appellant. To answer that question, his Honour had to determine whether, as the complainant attested, it was a case of the appellant applying force to him directly or indirectly.
- [24]The evidence of what the appellant had said in his record of interview and the testimony of Mr Crawford, if accepted,[22]would lead to the conclusion that the prosecution had not proved that the appellant had assaulted the complainant. Rather, it was a case of the complainant advancing at the appellant with a box, coming into contact with the appellant’s defensively raised arms, and falling over as a consequence.
- [25]The learned Magistrate did not, in his reasons, explicitly reject the evidence of Mr Crawford (although he noted that since he was facing the appellant’s back, he did not see as well as he might have), or what the appellant had said in the record of interview, but his rejection of that version of events is implicit in his finding that there was a pushing motion by the appellant, against the bee box, which caused the complainant to fall over and fall backwards.
- [26]His Honour’s finding was consistent with the relevant part of the complainant’s testimony. His Honour was entitled to accept that evidence. In doing so he was entitled, as he did, to have regard to evidence that the complainant had fallen backwards from the appellant. He was also entitled to have regard, as he did, to the evidence of the complainant and the three children that it was the appellant who was the aggressor in the incident.
- [27]On the version which his Honour accepted, there was an intentional assault by the indirect application of force (ie. via a push on the box). The learned Magistrate said that this version was “in fact verified by the other witnesses, to a greater or lesser extent”. In fact, no other witnesses spoke of the appellant pushing out at the box. The childrens’ evidence was that the bee box was kicked out of the complainant’s hands. The children also said, however, that the appellant did push out, causing the complainant to fall backwards, albeit that they said that this occurred after the box had been kicked.
- [28]The learned Magistrate was conscious about the inconsistencies in the evidence about the way in which the appellant applied force, and did not accept all aspects of the evidence of any individual witness. This did not preclude conviction, because his Honour was entitled to accept parts of what a witness said, while rejecting other parts. His Honour found that there was force applied by a push. That is, as he observed, a common theme of the evidence of the complainant and the children albeit that there was a difference among them as to whether the force was applied directly (as the children said) or indirectly, by pushing the box (as the complainant said). That was sufficient to establish an assault. Given the inconsistencies otherwise however, his Honour understandably did not accept that an assault had occurred otherwise (by, for example, a punch).
Was the assault unlawful?
- [29]The remaining question for the learned Magistrate was whether the assault was unlawful and, in that regard, whether:
- Defences were raised on the evidence; and
- If so, had they been negatived beyond a reasonable doubt.
The prosecutor asked the learned Magistrate to direct himself to possible defences under s 272 (self defence against provoked assault) and s 23 (accident). It was accepted, correctly, that defences once raised, have to be negatived beyond a reasonable doubt.
- [30]The possible defence under s 23 can be disposed of briefly. It was, it seems, referred to as possibly applying on the appellant’s version of events (ie. force applied accidentally). On the appellant’s version however, no assault on the complainant occurred. In any event, on the facts found by the learned Magistrate, there was an intentional, rather than accidental, application of force by the appellant. It is unnecessary to consider accident in relation to the consequences of the assault, since harm did not form an element of the charge. The appellant’s solicitor did not push this ground with much enthusiasm, describing it as a backup to a backup.
- [31]The appellant’s solicitor submitted that his client’s strongest ground of appeal was the learned Magistrate’s failure to properly consider the defence of self-defence. A somewhat similar observation may be made about the defence of self-defence and, although it was not discussed at first instance, mistake in combination with self-defence (ie. whether the appellant honestly and reasonably, but mistakenly, believed that he was being assaulted such as to justify him in taking steps to defend himself). On the appellant’s version, he did not ‘push out’ or otherwise apply force to the bee box or to the complainant. Rather, the complainant lunged into his defensively raised arms. If that were so then there would simply have been no assault by the appellant at all. It has already been observed that the learned Magistrate rejected that version and accepted that the appellant applied force by pushing out.
- [32]I accept that the finding that the appellant applied force by a push, while inconsistent with the way the appellant said that he reacted, does not itself negative the defence of self-defence. Accepting that there was an assault, the learned Magistrate had to consider whether the appellant, in applying a push, was reacting defensively to an assault by the complainant or was reacting defensively to circumstances in which the appellant honestly and reasonably, but mistakenly, believed that he was being assaulted. An assault may, of course, be constituted by a bodily act or gesture by which the application of force is attempted or threatened. Had the learned Magistrate concluded that the prosecution had not negatived that prospect, then he would have been required to go on to consider the other elements of the defences, but he did not get that far.
- [33]His Honour disposed of self-defence by finding that “the defendant was, at all times, aggressive”. It would have been better had his Honour expressed himself more fully, but it is tolerably clear that his Honour accepted that it was the appellant who was, at all times, the aggressor and (inferentially) that he was not, at any time, reacting defensively, in response to anything done by the complainant. That was the effect of the evidence of the complainant, who his Honour had described as “relatively mild mannered” and was corroborated, to varying extents, by the evidence of the children.[23]The defence (considered alone or in combination with mistake) was negatived on the evidence which his Honour accepted.
CONCLUSION
- [34]The decision to convict the appellant was reasonably open on the evidence. It was an understandable one, albeit that the reasons could have been more fully explained. I appreciate that this appeal proceeds as a “rehearing”,[24]but having regard to the advantages of the learned Magistrate in assessing the witnesses. I am not minded to interfere with his findings or conclusion. Indeed, I am not tempted to do so, in light of the evidence of the complainant and the three disinterested juvenile witnesses. I appreciate that the learned Magistrate had no advantage over me in relation to the appellant’s record of interview, but the unconvincing version of events given by the appellant in that interview would not drive me to have a reasonable doubt, even having regard to the extent of corroboration afforded by the evidence of his friend, Mr Crawford (with his partially obscured view).
- [35]The appeal is dismissed.
Footnotes
[1] Summary trial transcript, T1-39, ll 47–8.
[2] Summary trial transcript, T1-48, ll 51–2.
[3] Summary trial transcript, T1-14, ll 16–7.
[4] Summary trial transcript, T1-14, ll 41–2.
[5] Summary trial transcript, T1-22, l 1.
[6] Summary trial transcript, T1-19, ll 38–44.
[7] Summary trial transcript, T1-21, l 14.
[8] Summary trial transcript, T1-22, ll 11–3.
[9] Summary trial transcript, T1-15, ll 1–5.
[10] Summary trial transcript, T1-24, l 35.
[11] Summary trial transcript, T1-57, ll 12–7.
[12] Summary trial transcript, T1-59, ll 10–4.
[13] Summary trial transcript, T1-54, ll 22–30.
[14] Summary trial transcript, T1-58, l 35.
[15] Summary trial transcript, T1-60, ll 18–21.
[16] Summary trial transcript, T1-60, ll 51–2.
[17] Summary trial transcript, T1-65, l 55.
[18] Summary trial transcript, T1-66, l 1.
[19] Summary trial transcript, T1-69, ll 19–20.
[20] Summary trial transcript, T1-70, l 2.
[21] Summary trial transcript, T1-70, ll 13–33.
[22] Or even if it raises a reasonable doubt.
[23] That evidence is summarised earlier. Darcy Gunning could not say whether the bee box was pushed towards the appellant, but his evidence otherwise paints the appellant as the aggressor throughout. The evidence of the other two children is to the effect that the complainant had done nothing to cause the appellant to push out.
[24] Teelow v Commissioner of Police [2009] QCA 084; Commissioner of Police v Toomer [2011] QCA 223; Gobus v Queensland Police Service [2011] QCA 283; Riley v Doyle & Grimsey [1997] QCA 112.