DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   The appellant was convicted on 27 February 2012 after a summary trial in the Brisbane Magistrates Court of threatening violence^[1], such offence having taken place on 22 August 2011.

2. [2]
   The Magistrate sentenced the appellant on 28 February 2012 and ordered that he be admitted to a period of 18 months’ probation. No conviction was recorded.

3. [3]
   The appellant appealed both the conviction and sentence by filing a notice of appeal on 22 March 2012.

Outline of prosecution case

4. [4]
   On 22 August 2011, the complainant (Christopher Thomas Hughes) arrived home at his unit (unit 5) at about 4 p.m. Some time later he heard a vehicle drive into the unit block driveway. The complainant walked out onto his balcony and could see that the appellant, who was an occupant of unit 3 in the same unit block, had arrived home and parked his car in front of a “no parking” sign in the driveway of the unit block. The complainant called down to the appellant, “Hey mate, we spoke about this yesterday. Please can you stop parking there?  We’re leaving soon. We’ve got to get out.”  The complainant saw the appellant look up at him, ignore him and walk inside.^[2]

5. [5]
   The complainant then walked down the stairwell at the front of the appellant’s unit and tried to speak with the appellant face to face. The complainant said, “Look, you’ve got to stop parking there. This isn’t right. What are you doing?  We can’t access our garage when you park there” and gave some further explanation for his reasons for this request. The appellant in response held his hand up and said, “One moment please, one moment please” as the complainant tried to speak with him.^[3]

6. [6]
   At that time the appellant’s brother (Serguei Pogadaev) opened the door to unit 5 from inside and the appellant entered that unit. The door was then closed and locked behind him.^[4]

7. [7]
   The complainant went to walk back up the stairs as he believed, from past experience, that the appellant would continue to ignore him. He had made it to the mid‑flight landing of these stairs when he heard the door to unit 3 open. When he turned he saw the appellant rush out of that unit carrying a very large, slightly curved knife with a big, black handle. The appellant rushed at the complainant screaming, “You want to fuck with me now, huh?  You want to fuck with me?”  The complainant ran up the top half of the flight of stairs and by the time he had reached the top landing, the appellant had reached the middle landing. The appellant was still screaming, “You want to fuck with me now, huh?”  The complainant raised his hands, didn’t say anything, but shook his head “no”. He then walked into his unit and locked the door behind him and then rang triple 0. Police attended a short time later.^[5]

8. [8]
   The complainant estimated that a period of approximately 10 seconds passed between the appellant entering his own unit and re-emerging with the knife.^[6]

9. [9]
   The complainant said that the appellant pointed the knife at the complainant during this incident.

10. [10]
    After speaking with police, the complainant and his sister, (Emily Hughes) who had been in unit 5 at the time, left that apartment to stay with family members for a short period of time.

11. [11]
    The complainant also gave evidence about a dispute that he and his father had had with the appellant and the appellant’s brother two days earlier regarding the appellant parking in front of the “no parking” sign.^[7]

12. [12]
    Emily Hughes also gave evidence. She said that upon hearing a car in the driveway her brother walked out onto the balcony and she heard him yell down from that position, “Hey mate, come on, you can’t park your car there.”  She said the appellant got out of his car and walked inside without looking up. Her brother then said to her, “I’m going to go talk to him.”  Ms Hughes said that after her brother had walked out of the unit, she heard him say, “We’ve asked you. You can’t park your car there.”  She said she heard nothing and then heard someone yell, “You want to fuck with me now”, three times. She said that her brother then came running into the apartment and locked the door behind him.^[8]

13. [13]
    Ms Hughes said that her brother’s demeanour at that time appeared to be flustered, that he talked quickly and was wide-eyed. She confirmed that her brother telephoned the police almost immediately and that later she and her brother moved out and stayed with their parents for a few weeks.

14. [14]
    Ms Hughes said that when she heard the words “you want to fuck with me now” they were being yelled or screamed.^[9]

15. [15]
    Another resident of the unit block, Mr Loic Andrew David, also gave evidence on the prosecution case. He said that he heard raised voices in his unit, although he didn’t think too much of it. At one point he heard someone say “That’s why you don’t fuck with me.”^[10]Mr David said that after that he heard “Now will you leave me alone?”  In relation to the words “that’s why you don’t fuck with me” Mr David said that the speaker had an accent that was the same as or similar to the accent of the occupant or occupants from unit 3, he having heard those people speak on prior occasions.^[11]

Appellant’s evidence

16. [16]
    The appellant gave evidence and he spoke with a Russian accent. He said that he previously had confrontations with one or more occupants of unit 5 relating to loud music emanating from that unit. He also said that the complainant had on a prior occasion knocked or banged on the door of his unit and twisted the handle whilst calling out ‘number 3’.^[12]

17. [17]
    The appellant also gave evidence about an incident that occurred two days prior to the subject incident which involved him, his brother, the complainant and the complainant’s father. He confirmed that the incident on that date involved a verbal argument over the positioning of the appellant’s parked vehicle.

18. [18]
    The appellant said that on 22 August 2011 he drove his car into the driveway of his unit block and saw the complainant at the time on the third level balcony. After parking his car and walking towards the foyer he heard the complainant call out, “Oi, you’ve got to move your car” in what he described as a commanding and antagonising tone. He said that as he was walking up the stairs he could hear the complainant yelling words to the effect of “dude, you’ve got to move your fucking car”. He said that as he went to his unit he saw the complainant out of the corner of his eye standing on the first step on the right of the doorway. The appellant’s brother opened the door and at that time the complainant said, “Move your car or you’ll be sorry.”  He said he entered his unit and his brother closed the door behind him. He said that he spoke to his mother and then went into his bedroom, cleaned himself up and played a computer game.^[13]

19. [19]
    The appellant denied leaving the unit at any relevant time thereafter and denied threatening the complainant with a knife.^[14]

20. [20]
    The appellant’s brother and mother (Irina Prodger) also gave evidence on the defence case. Serguei Pogadaev said that he had seen the complainant on the balcony of the complainant’s unit for some time prior to his brother arriving home. He said that he saw his brother drive into the driveway and park in front of the garage in the usual spot and that as he got out of the car he heard the complainant say, “Oi, move you car. We’re leaving now.”^[15]

21. [21]
    Serguei Pogadaev then went over to his unit door and looked through the peephole. He said he could hear stomping from above and the complainant saying, “Move your car. Move your car or you’ll be sorry” aggressively. He then opened the door and saw the complainant standing with his hands on his hips as the appellant walked into the unit. The appellant did not say anything at that time.

22. [22]
    Serguei Pogadaev said that the appellant’s mother then spoke briefly before each brother went into their respective bedrooms.^[16]

23. [23]
    Irina Prodger said that she had seen the complainant looking from his balcony apparently watching the entrance of the driveway for sometime prior to her son‘s arrival home that afternoon. She said that after her son drove into the driveway and parked his car she heard the complainant say “Hey. Oh, move your car, move your car. We are leaving now.”  She noted that her son said nothing and walked straight into the building.^[17]She said she then heard the complainant say, “Move your car. Move your fucking car” and after that her other son opened the door and the appellant came inside. She said after the appellant came inside she heard the complainant say, “Move your car or you will be sorry.”^[18]

24. [24]
    Ms Prodger said that the appellant then went into his bedroom and she went into the kitchen. She said that he did not come out of that room after entering it and he did not have a knife at any time.^[19]

Grounds of appeal

25. [25]
    The appellant has appealed against both conviction and sentence.

26. [26]
    He particularised the grounds of appeal as follows:

1. (a)
   The learned Magistrate erred in rejection (sic) the appellant’s evidence and defence witnesses’ evidence, and drew improper inference (sic) against the witnesses;

2. (b)
   The learned Magistrate erred in drawing inference (sic) against the appellant’s credit from the manner (sic) his vehicle was parked; and

3. (c)
   The sentence was manifestly excessive.

27. [27]
    On 6 August 2012 the appellant filed an outline of submissions in which he added to the grounds of appeal considerably. For present purposes I do not need to particularise those additional grounds of appeal. It appears that at that time, he was self-represented.

28. [28]
    A further outline of submissions was filed on his behalf on 21 February 2013. That document sought leave to add the following grounds:

1. (a)
   The learned Magistrate failed to make a functional finding as to the significance of evidence from the witness Irina Prodger.

2. (b)
   Even if it can somehow be inferred that Her Honour made a functional finding as regards the evidence of Irina Prodger, it was at most defining that she did not “accept” the evidence of this witness, and was therefore insufficient for the purposes of excluding a reasonable doubt as to the appellant’s guilt.

3. (c)
   Even if it was possible to infer that Her Honour made any other finding as regards the evidence of the witness Irina Prodger, the process by which any such finding was made miscarried.

29. [29]
    At the hearing of this appeal, counsel appearing on behalf of the appellant asked the court to disregard the earlier outline of submissions and only act upon the later document.^[20]

30. [30]
    Leave was granted to add those grounds.

Standard to be met on appeal

31. [31]
    On appeal under s 223(1) of the Justices Act 1887, a Judge should 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 the Judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions.^[21]

Submissions

32. [32]
    The appellant has submitted that the learned Magistrate when deciding this matter was in no different position to that which is imposed on a Judge after a trial without a jury. A Judge in that position is obliged to give reasons sufficient to identify the principles of law that were applied and the main factual findings upon which reliance was placed in reaching the ultimate decision.^[22]

33. [33]
    It is submitted on behalf of the appellant that there is a similar necessity for Magistrates to give adequate reasons where there is a statutory right of appeal. The respondent does not dispute that contention. I accept that it is a submission that accurately reflects the law in that regard.

34. [34]
    The principal submission on behalf of the appellant is that the learned Magistrate failed to apply the relevant “principles of law” as identified by the High Court in Murray v The Queen^[23]. It is submitted that the learned Magistrate adopted an erroneous approach to her determination of this matter by indicating that she did not accept the version of events related by the appellant and his mother rather than determining whether the prosecution had negatived that version of events as a reasonable possibility. Resolution of this issue requires close examination of the learned Magistrate’s reasons.

35. [35]
    The learned Magistrate commenced her reasons by summarising the evidence that had been placed before the court. That included reference to the events of the day of the alleged offence as well as the events of two days earlier in relation to the parking dispute. There is no complaint about Her Honour’s summary in that regard.

36. [36]
    At the end of that process Her Honour then said:

“I have to say that I accept the evidence of the complainant. I do not accept the evidence of the defendant for many reasons.

My own assessment of him, and the manner in which he gave his evidence, and his approach, generally, his evidence is not reliable.

I do not accept the evidence of his brother which is, I must say, equivocal. He does not say that he is in the position to say whether the defendant left or not. He went straight to his room, and even that scenario is difficult to believe, because of the emotional situation that he had essentially whipped up for his brother on that day.”^[24]

37. [37]
    A little later Her Honour said:

“The defendant made no concessions. In my view, he did not take a reasonable approach. On a number of times, he wasn’t sure and did not know.”

38. [38]
    As I read that comment, it seems to me that the Magistrate was suggesting that the appellant did not take a reasonable approach when giving evidence. Nevertheless, in the very next paragraph she went on to give an example of this failure to take a reasonable approach which did not relate to the nature of the evidence that he gave:

“An example of his unreasonable behaviour, in my view, was that even against the background of dispute, when the complainant called down to him, ‘Can you move your car?  We are leaving now’, it was open to him to move his car. Instead, he chose to ignore the complainant, to refuse to speak to them about the matter, as he had done in the past.”^[25]

39. [39]
    The Magistrate then went on to speak about the corroborative evidence in support of the complainant’s version of events, that being the evidence of his sister and of Mr David.

40. [40]
    After doing that, importantly, Her Honour then said:

“Therefore, I am satisfied beyond a reasonable doubt, that the event occurred as described by the complainant. I do not accept the evidence of the defendant or his mother that he did not leave.

I do not accept that there was any threat towards the defendant by the complainant. …”^[26]

41. [41]
    A little later her Honour said:

“Therefore, at the end of the day, my assessment of – not only is there corroboration of the complainant’s story, my assessment of the defendant is that he was not telling the truth when he said he did not behave as alleged.”^[27]

42. [42]
    Finally, her Honour said:

“The defendant is, therefore, it is established that he produced a knife. I accept that beyond a reasonable doubt. I accept it was an act which, and I am satisfied beyond a reasonable doubt, it was likely to cause Christopher Thomas Hughes to fear bodily harm to himself on an objective basis, and on the basis he said he was scared, and that he left to stay somewhere else.

And that the production of the knife, by its production, I am satisfied it was produced with an intent to alarm and to cause – alarm Christopher Hughes by its very production and accompanying statements, and the manner of production of the knife and the steps, the actual movement of the defendant towards the complainant.”^[28]

43. [43]
    The appellant has submitted (as a secondary argument) that use of the word “therefore” in the passage repeated in [40] above invites attention to only that which had been considered beforehand, noting that the Magistrate had not considered the evidence of Irina Prodger prior to that point in time. It is submitted that as a consequence of that omission, the only reasonable inference is that the Magistrate failed to take into account the evidence of Irina Prodger before arriving at her conclusion that each of the elements of the offence had been proved beyond reasonable doubt. The difficulty with that submission however, is evidenced by the fact that the Magistrate, immediately after her functional decision said:

“I do not accept the evidence of the defendant or his mother that he did not leave.”

44. [44]
    The fact that the Magistrate did not indicate that she had taken the evidence of Irina Prodger into account until after pronouncing her functional decision does not mean that she in fact failed to take it into account before arriving at that decision. On the appellants argument, had the learned Magistrate indicated that she did not accept the evidence of the appellant or his mother prior to announcing her functional decision then no complaint could arise. In my view, the order of the sentences uttered by the Magistrate in the delivery of her ex tempore decision provides no basis for the appellant to mount a successful appeal. It is an argument that can be properly categorised as nit picking. In my opinion, the Magistrate sufficiently indicated in the course of her reasoning that she had considered the evidence of Irina Prodger when reaching her functional decision.

45. [45]
    Accordingly, there is no merit to that ground.

46. [46]
    The principle ground of appeal (see [34] above) is however deserving of close consideration. The only finding made by the Magistrate in relation to the evidence of Irina Prodger was that she did not accept it. The issue for Her Honour was not whether she should accept Ms Prodgers version of events, but whether the prosecution had negatived that version of events as a reasonable possibility. This is an erroneous approach of some significance. As Gaudron J said in Murray v The Queen^[29]

“And as the issue for the jury was not whether it should accept the appellants version but whether the prosecution had negatived it as a reasonable possibility, that direction misstated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt.”

47. [47]
    In that same case at [57] Hayne J said:

“The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant.”

48. [48]
    Although the Magistrate did state in her reasons that she was satisfied beyond reasonable doubt that the event occurred as described by the complainant, she did not reach that conclusion after an appropriate consideration of the evidence of Ms Prodger. Even if Her Honour had not been persuaded by Ms Prodger’s evidence, she could not convict unless she was satisfied that Ms Prodger’s evidence was not reasonably possibly true.^[30]Unfortunately, even if in fact the Magistrate had reached that conclusion, she did not express that she had adopted that approach in her reasons.

49. [49]
    The respondent has submitted that this is a matter which came down to the learned Magistrate accepting the complainants evidence to the requisite standard. It is submitted that upon consideration of the Magistrates reasons, “one is left with the impression that she was in no doubt about the complainants’ evidence and therefore the appellants’ guilt.”  The respondent has submitted that as the Magistrate indicated that she was satisfied beyond a reasonable doubt that the event occurred as described by the complainant, she must therefore have rejected the evidence of the appellant and his mother (given that Ms Prodger’s evidence mirrored that of the appellants) that the appellant did not leave the unit. That may well be correct. Unfortunately, the approach that the Magistrate adopted to the evidence of Ms Prodger was inadequate for the reasons described above. Before the Magistrate could have concluded that the charge had been proved beyond reasonable doubt, she would necessarily have had to also conclude that Ms Prodgers evidence was not reasonably possibly true. Not only was that conclusion not expressed, it is also not reasonably open to infer that the Magistrate reached such a conclusion.

50. [50]
    I have also been referred to a passage in the transcript of the sentencing remarks which purports to suggest that Ms Prodger said something to the court during the sentencing procedure. The Magistrate stated to the person that the transcript identifies as Ms Prodger, “I did not believe you either, so, sit down”.^[31]The respondent submits that this comment is a further demonstration that the Magistrate made a positive finding of rejection in respect of the evidence of Ms Prodger. I do not accept that submission. That passage formed no part of the hearing during which the appellant’s guilt was decided and formed no part of the reasons given for the decision. Furthermore, the person transcribing the tapes has identified that it was Ms Prodger who said something. Whether or not it was in fact Ms Prodger remains a matter of conjecture. Accordingly, no weight can be placed upon that passage.

51. [51]
    Elementary requirements of fairness demand that important procedural steps be followed. It is not apparent in the reasons given by the learned Magistrate that the correct approach to the assessment of Ms Prodger’s evidence was adopted in this matter. Such an omission goes to the heart of the appropriateness and therefore the fairness of the ultimate conclusion.

52. [52]
    Accordingly, the appeal should be allowed on this ground.

53. [53]
    Given my findings in relation to the second ground of appeal, there is no necessity for me to consider the argument in relation to the third ground of appeal.

Appeal against sentence

54. [54]
    As I indicated, the appellant has also appealed against the sentence imposed. Sometimes, it is appropriate to consider the appropriateness of a sentence notwithstanding that the appeal against conviction is upheld. This is not such a case as no argument was presented to the Court relevant to the appeal against sentence.

Conclusion and Orders

55. [55]
    The appellant has conceded that even if successful in this appeal, this case presents as one in which it would be appropriate, pursuant to s 225(2) of the Justices Act 1886 to remit the matter to the Magistrates Court. I agree with that submission.

56. [56]
    It has been further submitted that to ensure that justice is seen to be done it would also be appropriate to order that any re-hearing of the matter be presided over by a different Magistrate.^[32]I note that the respondent does not disagree with that approach and in my view it is an appropriate order to make in the circumstances.

57. [57]
    The orders of the court are:

1. The appeal is upheld.

2. The matter is remitted to the Magistrates Court to be presided over by a different Magistrate.