Gamble v Commissioner of Queensland Police Service
[2014] QDC 122
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- Unreported Judgment
- Gamble v Commissioner of Queensland Police Service[2014] QDC 122
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Gamble v Commissioner of Queensland Police Service[2014] QDC 122
Gamble v Commissioner of Queensland Police Service[2014] QDC 122
DISTRICT COURT OF QUEENSLAND
CITATION: | Gamble v Commissioner of Queensland Police Service [2014] QDC 122 |
PARTIES: | LLOYD STEPHEN GAMBLE (appellant) v COMMISSIONER OF QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 192/13 |
DIVISION: | Civil |
PROCEEDING: | Section 222 appeal |
ORIGINATING COURT: | District Court at Maroochydore |
DELIVERED ON: | 30 May 2014 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 9 May 2014 |
JUDGE: | Long SC DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – s 222 Justices Act (Qld) 1886 – appeal against conviction – where appeal brought by defendant – where defendant was convicted of an offence of dangerous operation of a vehicle – whether the trial Magistrate erred by failing to direct herself in regards to s 25 or s 23(1)(b) of the Criminal Code – whether the trial Magistrate erred by failing to advise the self-represented litigant of his rights and obligations in the trial process – whether the appellant was denied procedural fairness – rehearing on the record Criminal Code 1899, s 23 (1)(b), s 25 Justices Act 1886, s 222, s 223, s 225 Apostilides v R (1984) 154 CLR 563 Commissioner of Police v Al Shakaji [2013] QCA 319 Fox v Percy (2003) 214 CLR 118 Mbuzi v Torcetti [2008] QCA 231 Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181 Powell v Chief Executive Officer of Customs [2006] QDC 184 Rowe v Kemper [2009] 1 Qd R 247 Teelow v Commissioner of Police [2009] QCA 84 Tierney v Commissioner of Police [2011] QCA 327 |
COUNSEL: | Appellant: T. George (solicitor) Respondent/Crown: A. Stark |
SOLICITORS: | Appellant: Suthers Lawyers Respondent/Crown: Queensland Police Solicitor |
- [1]On 22 November 2013 the appellant was convicted, after trial, by a magistrate at Maroochydore, of an offence of dangerous operation of a vehicle on 24 May 2012. He was sentenced to six months imprisonment wholly suspended for an operational period of 18 months and he was disqualified from holding or obtaining a drivers licence for a period of nine months.
- [2]On 27 November 2013, the appellant lodged a notice of appeal. He did that personally and in circumstances where he had been legally unrepresented in his trial before the magistrate. The ground of appeal in that notice was:
“I was abandoned on day of trial by representing solicitor. Being represented I had not prepared for trial. I was not given a fair chance to prove my innocence.”
- [3]However and on the hearing of this appeal, the appellant was represented by a solicitor and that ground of appeal was not pursued. Rather the court was pressed with the following grounds as set out in an amended notice of appeal filed on 2 April 2014:
“1.The trial magistrate failed to direct herself in regards to:
- (a)Extraordinary emergency (s 25 Criminal Code);
- (b)Accident (s 23(1)(b) Criminal Code);
- 2.That the trial magistrate failed to properly advise the appellant as the self-represented litigant, in regards to his rights and obligations within the trial process.
- 3..The trial magistrate denied the appellant procedural fairness with the trial process.”
- [4]The contention in support of the first ground of appeal starts with the obvious support of the fact that at the trial and in the magistrate’s reasons, no reference was made to either s 25 or s 23(1)(b) of the Criminal Code or the matters specifically dealt with in those provisions and that in written submissions to this court, the respondent concedes that the appellant’s evidence, at trial, raised the issues dealt with in those provisions.
- [5]However that is unsurprising. That is because the only evidence that was capable of raising and therefore requiring the consideration of those provisions was that given by the appellant. That evidence was critically in conflict with that given by the complainant and his wife and upon which the prosecution case depended and the critical question which was essentially answered by the Magistrate in her reasons that follow, was to reject the evidence of the appellant and accept the evidence relied upon by the prosecution:
“… In general, I am satisfied that the prosecution witnesses, particularly Mr and Mrs Munce, and certainly there’s no reason to disbelieve the police officer, senior constable Greer’s evidence, are credible, but I wasn’t impressed with the defendant’s evidence at all for the reasons that I’ve given.
So for the reasons I find the defendant guilty. I am satisfied that the dangerousness of the driving was, in effect, driving at Mr Munce, and that is evidenced by the fact that the vehicle did come in contact with Mr Munce in a reasonably forceful way, knocking him to the ground and leaving the injuries that were evident from the photographs.”
- [6]That finding is to be viewed in the context of the competing versions of the incident, as placed before the Magistrate and described by her in her reasons as follows:
“… Mr and Mrs Munce and the defendant were the only people present at the property at the time of the incident. The Munces gave evidence that at about 11:30 on the 24th of May last year that the defendant drove into the driveway of their property while Mr Munce was on the roof of the house doing some repairs.
When Mr Munce saw the defendant drive in he called out to him to leave the property because he was trespassing and called to his wife, who was inside the house, to call the police. He then got down from the roof. He still had the hammer in his hand with him that he was using while he was doing the repairs. He went to the defendant at his car and told him again to leave. There was various language and whatnot involved in that, which I won’t repeat. He then called to his wife again to call the police and to tell them that the defendant had been told to leave and wouldn’t leave. The defendant told Mr Munce on Mr Munce’s version, that he’d come to sort them out about his girlfriend. Mr Munce said that he waved the hammer towards the defendant when he was telling him to leave the property, as waving him off the property.
The defendant said, ‘Now I have proof you’ve attacked me’. Mr Munce called to his wife to again call the police. She was still in the vicinity of the house he thinks. The pair traded insults towards each other. The defendant had got back into his vehicle, reversed his car out of the driveway and then drove back into the driveway and Mr Munce says changed direction and drove at Mr Munce at speed. Mr Munce turned and ran to avoid being hit but was struck in the back by the driver’s side mirror and he thinks the front guard and tyre of the vehicle. He fell to the ground. The defendant’s vehicle became caught on a rock in the vicinity of some pavers in the garden. The vehicle was stuck there for a short while and the wheels were spinning, as the Munces both gave evidence that the defendant was revving his vehicle.
Mr Munce was helped away from the vehicle by his wife and they went back towards the house and the defendant drove off. The defendant’s version of events is that Mr Munce came down off the roof with the hammer, that he also grabbed a machete or a cane knife, that – and that he began attacking Mr Gamble for no reason. He says – he agrees that they traded some language and there was some discussion – a heated discussion, about why Mr Gamble was there and that he was being told to leave the property. He says that Mr Munce struck the bonnet of his car with the hammer, causing damage.
That he – that Mr Munce then came around towards the driver’s side of the vehicle, that he was swinging at the vehicle with the hammer, that the defendant wound the window down so that it wouldn’t be broken and at that stage Mr Munce again swung at him with the hammer, that he raised his arms to protect his head, the hammer came into contact with his arm, and during cross-examination of the prosecution witnesses, Mr Gamble put to them that Mr Munce had actually thrown the hammer at him and that it deflected off his arm and into the car. In his evidence Mr Gamble said that he was struck with the hammer and that the force of the blow was so hard that the hammer flew out of Mr Munce’s hand and ended up in the car. He said after the hammer incident, Mr Munce then tried to chop at him with the machete through the window of the vehicle and that the machete was striking the side of the vehicle.
He – Mr Munce was moving backwards and forwards as he was doing that and the defendant was moving the vehicle backwards and forwards. In cross-examination it was put to the witnesses about six times. In the evidence of the defendant he said three or four times and then in cross-examination said at least four or five times. He was driving backwards and forwards to avoid the machete attack and then Mr Munce fell down. The defendant is not sure if he was struck by the vehicle or whether he just got tangled up in something under his feet and fell over and the defendant then took that opportunity to drive off.”
- [7]Notwithstanding that the respondent conceded that the appellant’s evidence raised matters going to the application of particularly s 25 if not s 23(1)(b) of the Criminal Code but otherwise confronted with the force of the respondent’s contention that those matters were effectively and appropriately dealt with on the basis of the Magistrate’s decision to reject the defendant’s evidence and accept the complainant’s evidence, the argument shifted to being one of the sufficiency of the reasons given in that regard.
- [8]Whilst it was appropriately recognised that the issue of the sufficiency of reasons depends on the nature of the matter under consideration,[1] the contention was that there was insufficient explanation as to how the Magistrate was satisfied of the appellant’s guilt beyond reasonable doubt.
- [9]Whilst the Magistrate’s ex-tempore reasons contained no express acknowledgment as to the onus and standard of proof to be applied, it is hardly to be expected that such an experienced Magistrate was in any way mistaken about this and also whilst and as the respondent has conceded, particular defences or issues arose on the appellant’s evidence, the essential point is that there was no need to separately or expressly consider whether the prosecution had negatived or excluded the application of those provisions, if the underlying basis of the appellant’s version was rejected.
- [10]In other words the most fundamental and direct way in which the prosecution could negative those matters is by having the complainant’s evidence accepted and the appellant’s evidence rejected.
- [11]In this case, that is what the Magistrate found, correctly recognising that the competing versions were directly contradictory and that whilst the appellant’s version (unlike that of the appellant) was afflicted by some difficulties in the consistency of presentation of it, the complainant’s version was substantially corroborated by objective and independent evidence, confirmatory of the lodgement and removal of the vehicle from some bricks or rocks in the garden.
- [12]That then leads to the remaining grounds of appeal. The explanation given to the appellant at the outset, as to the trial process, was brief and could conceivably have been usefully expanded upon, as suggested by the appellant, by reference to the benchbook model available to this court.[2] However, that model is designed for use in respect of jury trials and where and unlike the situation in the summary jurisdiction exercised by the Magistrate, there is a demarcation between the fact finding role of the jury and the role of the Judge and not all of it is relevant to the summary jurisdiction exercised by a Magistrate. The Magistrate’s explanation was as follows:
“BENCH:Thank you. The sergeant will call his witnesses one after the other. Just stand up while I talk to you.
DEFENDANT:Sorry.
BENCH:The – each witness will give their evidence. Once they have given their evidence, then you will have an opportunity to cross-examine them and it’s very important that you, when – that when you are asking them questions that you put any differences in your version of events to them. So, for instance, if they say you were driving a black car, but you were, in fact, driving a red car, you need to put that to them so that they get the opportunity to answer that. That’s not only out of fairness to the witness, but there’s also a legal rule under one of the cases that says that if you don’t put your version of events to the witnesses, then I’m entitled to, perhaps, conclude that you might have – and you later give a later – you later give a different version of events then, perhaps, I’m entitled to conclude, if it’s appropriate, that you have invented that scenario after you’ve heard the evidence. So, it’s very important from a number of bases that you do put those differences to the witnesses, whether or not you’re going to give evidence later on. Okay.
DEFENDANT:Yeah.
BENCH: After you cross-examine the witness, the prosecutor will have a chance to clear up any issues that arose during cross-examination and then we move off to the next witness. After the prosecution have called all of their witnesses, then I will ask on you to ask you whether or not you wish to give evidence yourself or call any witnesses. There’s no obligation on you to do either of those things and I can’t draw any adverse inferences against you if you decide not to give evidence. For instance, I can’t be saying to myself, “Oh, there’s something funny going on. He didn’t tell me what his story is”, so I’m doubting things.
So the prosecution have to prove the charge. If you wish to give or call evidence then you can do that, but if you choose not to do that, then that’s fine too. But the only information that I can use to determine whether or not you’re guilty is what I hear from the witness box and any documents that are tendered or tape recordings that are played, etcetera. Anything that’s said by yourself or the prosecutor from the bar table isn’t evidence. It can help me in interpreting things, but it isn’t evidence itself. So only what comes from the witness box. Okay?
DEFENDANT:Yeah.
BENCH:Do you have any questions?
DEFENDANT:No, your honour.”[3]
That adequately covered the essential features of the trial process and it is, of course, not the role of a judicial officer to provide legal advice to an unrepresented party.
- [13]Moreover, this complaint can only have some relevant effect if the third ground is made good, in establishing some relevant procedural unfairness in the trial or some other error such as the admission of evidence that was not properly admissible.
- [14]In this regard the appellant contended that the Magistrate had considered some inadmissible opinion from the investigating police officer, as to what was disclosed by the photographs, in respect of tyre marks and other indicia of the movement of the car in the garden. That was because the following discussion, as set out in the Magistrate’s reasons:
“The other evidence, through Senior Constable Greer, is the photographs of the scene and of the defendant’s vehicle and of the defendant himself. The photographs, according to the police evidence and the clearly, when you look at them, show vehicle tracks leading up to the pavers and the rock. It’s apparent there’s some indentation in relation to those tracks indicating that there was, according to the police evidence, that there was some speed involved in the vehicle at that point and that there’s a mark on the rock indicating or confirming on the police evidence that the vehicle became lodged on the rock for a period of time. The police officer also gave evidence that there’s another set of tracks further away from the house where it’s presumed that the defendant’s vehicle took off from when driving back towards Mr Munce.
Those tracks are somewhat less clear on the photograph that the ones in the area of the pavers and the rock, probably because of the, what appears to be the difference in the hardness of the ground in those two areas. The defendant says that the photographs show a number of tracks in the gravel and he says that those tracks confirm his evidence about moving backwards and forwards in the car, attempting to avoid the machete attack. The – what is clear from the photographs, as I said, is that travelling at speed to the point of the vehicle becoming lodged on the rock in the area of the pavers. Beyond that I think the evidence is less conclusive from the photographs in relation to tracks.”
- [15]From that passage it is clear that the Magistrate appropriate focused on her own interpretation of what was demonstrated by the photographs and particularly the important feature that has already been mentioned in relation to the objective indicia of the lodgement of the vehicle on the rocks.
- [16]To the extent that Senior Constable Greer was prompted to proffer any opinion or view as to what was disclosed by the photographs, it must first be kept in mind that he also attended and visually inspected the scene and in any event this only occurred in the cross-examination of him by the appellant and in the context of him being pressed in respect of the appellant’s contentions, which he did not accept.[4]
- [17]There was also a complaint raised on the appeal that the prosecution had failed to call the scenes of crime officer who attended and also inspected the scene and who took the photographs, albeit at Senior Constable Greer’s direction. That, of course, was a matter for decision by the prosecutor[5] and it has not been demonstrated that there was any evidence that might have been given by such a witness that could demonstrate any miscarriage of justice.
- [18]Pursuant to s 223 of the Justices Act 1886 this appeal is conducted as a rehearing on the record and the obligation of this court extends to reviewing the evidence and making its own decision about the appropriateness of the Magistrate’s conclusions, with due weight being given to that decision and any advantages enjoyed by the magistrate in making it.[6] The concern in any such appeal is as to whether there was any error in the determinations of the Magistrate, requiring the intervention of this Court pursuant to s 225 of the Justices Act 1886[7]. Not only did the magistrate here, have the advantage of seeing and hearing the witnesses give evidence, no such error is apparent on this appeal.
- [19]Accordingly this appeal is dismissed and it is ordered that the decision of the magistrate, made on 22 November 2013, to convict the appellant of the offence of dangerous operation of a vehicle on 24 May 2012, is confirmed.
Footnotes
[1] Reference was made to Powell v Chief Executive Officer of Customs [2006] QDC 184 at [60] – [61] and the cases there cited.
[2] See Supreme and District Courts Benchbook, No. 6
[3] T1-2, ll 21 - 1-3 ll 16
[4] T 1-13, ll 29 – 1-17, ll 12
[5] See Apostilides v R (1984) 154 CLR 563
[6] s 223 Justices Act 1886 and see Fox v Percy (2003) 214 CLR 118 at [25], Rowe v Kemper [2009] 1 Qd R 247 at [5] and Mbuzi v Torcetti [2008] QCA 231 at [17].
[7]Teelow v Commissioner of Police [2009] QCA 84 at [2]-[4], Tierney v Commissioner of Police [2011] QCA 327 at [26], Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181 at [10] and Commissioner of Police v Al Shakaji [2013] QCA 319