Murphy v The Commissioner of Police
[2015] QDC 149
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- Unreported Judgment
- Murphy v The Commissioner of Police[2015] QDC 149
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Murphy v The Commissioner of Police[2015] QDC 149
Murphy v The Commissioner of Police[2015] QDC 149
DISTRICT COURT OF QUEENSLAND
CITATION: | Murphy v The Commissioner of Police [2015] QDC 149 |
PARTIES: | LESLEIGH MURPHY (appellant) v THE COMMISSIONER OF POLICE (respondent) |
FILE NO: | D 9/15 |
DIVISION: | District Court |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrate’s Court, Toowoomba |
DELIVERED ON: | 29 May 2015 |
DELIVERED AT: | Toowoomba |
HEARING DATE: | 18 May 2015 |
JUDGE: | Dearden DCJ |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – GENERAL PRINCIPLES – where appellant argued that verdict was unreasonable – whether the trial magistrate erred in finding the prosecution case proven beyond a reasonable doubt – whether inadmissible evidence was admitted at trial and, if so, whether it caused the trial to miscarry – whether the appellant was prevented from conducting a proper examination of prosecution witnesses – whether the defences of self-defence and provocation were raised and/ or excluded- whether the trial magistrate failed to consider whether the appellant was defending premises against trespassers – whether the prosecution failed to provide sufficient particulars – whether the appellant’s legal representation at trial was incompetent resulting in a miscarriage of justice – whether the appellant was provided procedural fairness in respect of sentence – whether the sentence imposed was manifestly excessive |
LEGISLATION & CASES: | Penalties and Sentences Act (Qld) 1992 s 19(1)(b) Criminal Code Act (Qld) 1899 ss 245(1), 246(1), 268(1), 277(1), 335(1) Justices Act (Qld) 1886 s 222 Browne v Dunn (1893) 6R 67 Tierney v The Commissioner of Police [2011] QCA 327 TKWJ v The Queen (2002) 212 CLR 124 |
COUNSEL: | The appellant appeared on her own behalf. S. Petrie for the respondent. |
SOLICITORS: | The appellant appeared on her own behalf. Office of the Director of Public Prosecutions (Qld) for the respondent. |
Introduction
- [1]The appellant was convicted on 13 February 2015, after a trial in the Toowoomba Magistrate’s Court on 3 February 2015 of two charges of common assault (allegedly occurring on 31 December 2013 at Toowoomba). The appellant was released (in respect of both charges) upon entering a recognisance in the sum of $800 to keep the peace and be of good behaviour for a period of 12 months pursuant to Penalties and Sentences Act (Qld) 1992 s. 19(1)(b).
- [2]The appellant appeals in respect of conviction and sentence.
Grounds of appeal
- [3]
- that the learned trial magistrate’s verdict was unreasonable as it was based on inadmissible evidence;
- that the learned trial magistrate erred in fact and in law in finding that the prosecution had proved its case beyond reasonable doubt;
- that the learned trial magistrate erred in preventing the appellant from conducting a proper cross-examination of the prosecution witnesses;
- that the learned trial magistrate erred in fact and in law in finding that the defences of self-defence and provocation were not raised and/or were excluded;
- that the learned trial magistrate failed to consider a defence under s 277 of the Criminal Code;
- that the learned trial magistrate erred in law in relation to the application made for further and better particulars;
- that the inadmissible material admitted at trial, including inadmissible material introduced by the appellant’s solicitor for no discernable forensic purpose, caused the trial to miscarry;
- that the conduct of the defence by the solicitor for the appellant was incompetent, with the result that the trial was unfair and a miscarriage of justice occasioned;
- that the sentence imposed was manifestly excessive.
The law – appeals
- [4]As held by Margaret Wilson AJA in Tierney v The Commissioner of Police [2011] QCA 327:
“An appeal from a Magistrate’s Court to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) is a rehearing on the evidence given at trial and any new evidence adduced by leave. In other words, it involves a review of the record of proceedings below, subject to the District Court’s power to admit new evidence. To succeed, an appellant needs to show some legal, factual or discretionary error.”[2] [Citations deleted]
The evidence
- [5]The complainants, Dennis Steinberg and Carol Salomen were, at the relevant time (31 December 2013) in a relationship and residing at 24 Dyson Drive, Darling Heights, next door to the appellant, who resided at 22 Dyson Drive, Darling Heights.
- [6]Mr Steinberg gave evidence that on 31 December, 2013, he was putting his bins beside the house when he heard the appellant and Carol Salomen having a conversation with raised voices, then heard Ms Salomen yell out “you can’t do that”, turned around and saw that Ms Salomen was wet.
- [7]Mr Steinberg then had words with the appellant and the appellant “put the hose” on Mr Steinberg and Ms Salomen. Mr Steinberg was struck by the water in the face and on his shirt, including over his glasses which he took off. Ms Salomen went into the house to ring police, Mr Steinberg told the appellant that she was “a bloody idiot” and “needed mental help”.[3]
- [8]Mr Steinberg then noticed the appellant’s partner Tim running from the back of the appellant’s house and was starting to jump the dividing fence between the appellant’s house and the complainant’s house. Tim got one leg over and was leaning forward. Mr Steinberg invited Tim to fight, and shortly afterwards was hosed again by the appellant in the face and over his shirt. Mr Steinberg did not give the appellant any authority or permission to wet him on either of these two occasions.
- [9]Mr Steinberg denied making any threats to the appellant, and denied having anything in his hands on either of the two occasions when he was sprayed with water, other than his glasses which got wet when he was watered.
- [10]Mr Steinberg was shown a videotape of CCTV footage[4]and identified the interactions when Ms Salomen was sprayed and both occasions on which he was sprayed.
- [11]Ms Salomen gave evidence that she had lived at 24 Dyson Drive, Darling Heights, next door to the appellant for four years (as at the time of the alleged assaults) and indicated there had been many incidents between the appellant and her.
- [12]Relevantly, in respect of the events of 31 December, 2013, Ms Salomen gave evidence that the appellant had yelled at her while she was on the footpath between 20 Dyson Drive (the appellant’s neighbour on the other side) and Ms Salomen’s house, and that while Mr Steinberg was putting their bins around the back of their house, Ms Salomen said to the appellant, who she noticed “hiding behind trees” in the appellant’s backyard, “I can see you Lesleigh”.[5]The appellant was then in her yard at 22 Dyson Drive and Ms Salomen was in her yard at 24 Dyson Drive. The appellant, who was a bit higher in her yard than Ms Salomen’s yard, looked over at Ms Salomen and “just put the hose Ms Salomen” which made Ms Salomen “wet from the head down to the waist”.[6]Ms Salomen then responded “you can’t do that Lesleigh.” Ms Salomen did not give the appellant any authority or permission to wet her with the hose.
- [13]Ms Salomen then also observed the appellant hosing Mr Steinberg, and Ms Salomen was also hosed on the second occasion.
- [14]Ms Salomen recalled the appellant calling her a “ho”, which she understood to mean “slut,” shortly before Ms Salomen went inside her house to call the police. When Ms Salomen returned outside Mr Steinberg had (on her observation) been hosed again as he was “quite drenched from the top to the bottom of his trousers”. Ms Salomen observed the appellant’s partner Tim on the fence line with one leg over the fence.
- [15]Ms Salomen also viewed the CCTV footage and identified particular portions of that footage.
- [16]The appellant gave evidence, which it should be noted was frequently rambling, discursive and unfocused, apparently with a view to placing the events of 31 December 2013 in context.
- [17]The appellant, Lesleigh Murphy, gave evidence that on 31 December, 2013, she was watering in her garden, observed Mr Steinberg and Ms Salomen dragging wheelie bins, and then observed Mr Steinberg “moving in a very rapid pace across to the base of the retaining wall” and that she (the appellant) believed “that he [Mr Steinberg] had a cigarette lighter in his hand”.[7]The appellant claimed to be panicked and reacted by giving Mr Steinberg “a quick spray of water to try and deter and repel him from coming any further” up the wall between the two residences.[8]
- [18]The appellant then gave evidence that Ms Salomen was “calling out something along the lines, you need to take your medication” and the appellant responded by giving her “a quick spray of water to try and get her to lower the tone”. The appellant’s explanation for this action was that she was “a registered nurse”, that there were “neighbours nearby” and that “the last thing [the appellant wanted was] people thinking that [she was] on some sort of medication, for which [she was] not. It was becoming highly embarrassing.”[9]
- [19]The appellant’s counsel then put the following question to the appellant:
“So you admit to the court that you did, in fact, spray these two people with the hose?
Ms Murphy: yes I did. Yes I did.”[10]
- [20]The appellant in cross-examination claimed to have hosed the complainants “once each”.[11]
- [21]
- [22]The appellant claimed that she sprayed Mr Steinberg “to repel him”, and when pressed on the effectiveness of that strategy stated “I felt that it might startle him and give him a jolt and make him realise what he was doing”.[14]
- [23]In respect of the complainant Ms Salomen, the following was put to the appellant in cross-examination by the police prosecutor:
Police Prosecutor: “Now with respect to Salomen I simply put to you that at no stage did she act physically aggressive to you?
Ms Murphy: She was inciting the two men, and trying to lift the mood of the predicament that was going on at the fence line. She was calling out things to me, you’re fucking watching us, you’re – you need to be on medication. So, yes, she was being verbally aggressive towards me.”[15]
- [24]The appellant in cross-examination again claimed to be worried “about the cigarette lighter [Mr Steinberg] had in his hands.”[16]
Discussion
- [25]Ground 1: That the learned trial magistrate’s verdict was unreasonable as it was based on inadmissible evidence.
- [26]Although there was a deal of inadmissible hearsay evidence heard by the learned magistrate, relating to failed attempts at mediation, the learned magistrate’s decision relied on the evidence of each of the complainants, which the learned magistrate accepted (as he was entitled to do).
- [27]Relevantly, the appellant’s counsel did not require particularisation of the number of times each of the complainants was hosed and the appellant faced a single charge of common assault in respect of each of the complainants. In those circumstances, the appellant’s own admission that she had hosed each of the complainants once, in the light of the complainants’ evidence, was clearly more than sufficient for the learned magistrate to conclude that each of the complainants had been assaulted by the appellant.
- [28]The learned magistrate identified that Criminal Code s. 335(1) provided (in respect of the charge of common assault) that “any person who unlawfully assaults another is guilty of a misdemeanour, and is liable, if no greater punishment is provided, to imprisonment for three years”. The learned magistrate identified that the term “assault” in Criminal Code s. 335 was defined in s. 245 of the Criminal Code. Although the learned magistrate did not set out the terms of Criminal Code s. 245, it is clear that the learned magistrate was fully appraised of the definition which relevantly provides (s. 245(1):
“a person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.”
- [29]s.245(2):
“In this section in –
Applies force involved includes the case of applying heat, light, electrical force, gas, odour or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.”
- [30]The learned magistrate went on to identify that, pursuant to Criminal Code s. 246(1), “an assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.”
- [31]The learned magistrate then concluded (correctly in my view) that in the circumstances of these charges, the appellant hosing each of the complainants constituted an assault, and that the issue which followed was whether any such assault was “authorised, justified or otherwise excused by law”.[17]In that respect the learned magistrate identified and addressed the potential defences of provocation and self-defence which were raised by counsel for the appellant in his submissions.
- [32]The learned magistrate identified that Criminal Code s. 268(1) defined provocation as follows:-
“The term provocation used with reference to an offence of which assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under the person’s immediate care, or to whom the person stands in a conjugal, parental, filial, or fraternal relation, or in the relation of master or servant, to deprive the person of the power of self-control, and to induce the person to assault the person by whom the act or insult is done or offered.”
- [33]The learned magistrate concluded that neither Mr Steinberg nor Ms Salomen “committed any wrongful act or insult to or towards the defendant which [the magistrate was] prepared to find, was provocation sufficient for the defendant then to hose both of them on the number of occasions that she did.”
- [34]With the greatest of respect, on the facts as the learned magistrate found them to be, I accept without hesitation that he was entitled to conclude that the defence of provocation had been excluded to the requisite standard (beyond reasonable doubt).
- [35]The learned magistrate also found that “there were no actions perpetrated by either [Mr] Steinberg or [Ms] Salomen which [the learned magistrate] was prepared to accept that the defendant acted in self-defence of any action or actions”.[18]
- [36]Again, with the greatest of respect I have no hesitation in accepting that the learned magistrate was entitled to reject the submission that the appellant was acting in self-defence in respect of either of the complainants.
- [37]It follows that, despite the inadmissible evidence that may have been placed before the learned magistrate, it is clear that the learned magistrate’s conclusions were based solely on the admissible evidence and were entirely justified in the light of that evidence.
- [38]It follows that ground one of the appellant’s grounds of appeal must fail.
- [39]Ground 2: that the trial magistrate erred in fact and in law in finding that the prosecution had proved its case beyond reasonable doubt.
- [40]I have no hesitation in concluding, given that the appellant admitted hosing each of the complainants once (each complainant’s evidence being that each was hosed twice), and given that the learned magistrate (entirely correctly in my view) concluded that the defences of provocation and self-defence had been excluded, there was clearly no error in concluding beyond reasonable doubt that the prosecution had proved its case in respect of each of the charges.
- [41]Ground 3: That the learned trial magistrate erred in preventing the appellant from conducting a proper cross-examination of the prosecution witnesses.
- [42]In my view, the learned magistrate did not in any way prevent each of the prosecution witnesses being properly cross-examined. The learned magistrate made it clear that further time was available to conduct the trial if it was unable to be concluded in a single day.[19]I am not persuaded that the learned magistrate fell into error in any way in respect of the cross-examination of the prosecution witnesses.
- [43]Ground 4: That the learned trial magistrate erred in fact and in law in finding that the defences of self-defence and provocation were not raised and/or were excluded.
- [44]As indicated above, the learned magistrate concluded (entirely correctly in my view) that the defences of provocation and self-defence were excluded, and was not in error in doing so.
- [45]Ground 5: That the learned trial magistrate failed to consider a defence under s. 277 of the Criminal Code.
- [46]Criminal Code s. 277(1) (defence of premises against trespassers – removal of disorderly persons) relevantly provides that:
“It is lawful for a person who is in peaceful possession of any land, structure, vessel or place, or who is entitled to the control of management of any land, structure, vessel or place, and for any person lawfully assisting him or her or acting by his or her authority, to use such force as is reasonably necessary in order to prevent any person from wrongfully entering upon such land, structure, vessel or place, or in order to remove therefrom a person who wrongfully remains therein, provided that he or she does not do grievous bodily harm to such person”.
- [47]A potential defence under Criminal Code s. 277 was not argued by the appellant’s counsel at trial. In any event, there is a complete lack of evidence which would have satisfied the necessary evidentiary onus to raise the defence in this matter. In the circumstances, the learned magistrate had no obligation to consider a defence under s. 277 of the Criminal Code. Any such defence, even if raised, must inevitably have failed.
- [48]Ground 6: That the learned trial magistrate erred in law in relation to the application made for better and further particulars.
- [49]The counsel for the appellant was, at the commencement of the trial, asked by the learned magistrate “now do you want the prosecutor to particularise those three that she sprayed Mr Steinberg and two possibly that she sprayed Vogler [a reference to Ms Salomen] so we know where we are going or not?”, to which the appellant’s counsel replied “it’s pretty clear, I think on the evidence that will come out and I understand….” The learned magistrate then replied “so you don’t require it?” and counsel for the appellant said “no your Honour”.[20]
- [50]In those circumstances I do not consider that the learned magistrate fell into error in respect of particulars, and in light of the appellant’s evidence in the trial that she hosed each of the complainants once it could not be said that any error in law ensued arising from any failure to particularise the assault.
- [51]Ground 7: That the inadmissible material admitted at trial, including inadmissible material introduced by the appellant’s solicitor for no discernible forensic purpose, caused the trial to miscarry.
- [52]As indicated previously, there was an amount of inadmissible material admitted during the course of the trial, and although that may have wasted some time during the course of the trial, it was in practical terms irrelevant to the learned magistrate’s entirely appropriate conclusion that the appellant had assaulted each of the two complainants, and that such assault was not “authorised, justified or otherwise excused by law.”
- [53]Ground 8: That the conduct of the defence by the solicitor for the appellant was incompetent, with the result that the trial was unfair and a miscarriage of justice occurred.
- [54]As the respondent has submitted, for the appellant to be successful, there must be “a miscarriage of justice”:[21]
“In the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellant court as having worked to the possible, or even probable disadvantage of the accused. For a trial to be fair, it is necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks.”
- [55]In the context of this appeal, the appellant’s counsel failed to press for particulars because he considered the evidence was clear,[22]and in fact permitted the admission of otherwise inadmissible evidence in order to place before the court a recording of the appellant’s interview with police, which in strict terms was inadmissible because it was self-serving.[23]This gave the appellant a benefit at the trial and did not act to her detriment.
- [56]The appellant’s counsel did not require strict proof (or proper authentication) of the CCTV footage, but there is nothing to suggest on this appeal that that footage was interfered with in any way, and the admission into evidence of the CCTV footage did not create unfairness during the course of the trial.
- [57]There is, on this appeal, no evidence that the appellant’s case was not conducted in accordance with instructions, and even if that were the case, that in itself would not ground a successful appeal, neither would any failures to comply with the rule in the Browne v Dunn.[24]Despite the learned magistrate’s finding that the appellant was not a credible witness, her own admissions were nonetheless more than sufficient to ground the case against her.
- [58]With respect to the purported failure to call the appellant’s partner “Tim”, the respondent was entitled not to call him, and the appellant could have called him but it appears chose not to do so. Failure to call him does not in my view raise any issue of unfairness in the trial.
- [59]Any criticism by the appellant as to the conduct of the closing argument by her counsel at the trial needs to be taken in the context of the evidence as it unfolded at the trial, in particular the appellant’s own admissions, which were more than sufficient to ground the case against her.
- [60]I conclude then that the conduct of the defence by the appellant’s counsel at trial was not incompetent, certainly not to a level that resulted in an unfair trial sufficient to amount to a miscarriage of justice.
- [61]Ground 9: That the sentence imposed was manifestly excessive.
- [62]The respondent concedes that the learned magistrate failed to call for submissions from the appellant’s counsel in relation to the sentence.[25]That was a clear failure to provide procedural fairness to the appellant, and amounts to a legal error, which enlivens the jurisdiction of this court to exercise the sentencing discretion afresh. This ground of appeal succeeds.
Conclusion and orders
- [63]Accordingly, I order as follows:
- Appeal against conviction dismissed in respect of each of the charges of common assault.
- Sentence be set aside.
- That the District Court resentence the appellant in respect of each of the two charges of common assault.
- No order as to costs.
Footnotes
[1] Filed 13 March 2015.
[2]Tierney v The Commissioner of Police [2011] QCA 327, para 26.
[3] Transcript 1–27.
[4] Trial Exhibit 2.
[5] Transcript 1–47.
[6] Transcript 1–47.
[7] Transcript 1–83.
[8] Transcript 1–83.
[9] Transcript 1–84.
[10] Transcript 1–84.
[11] Transcript 1–85.
[12] Transcript 1–86.
[13] Transcript 1–87.
[14] Transcript 1–87.
[15] Transcript 1–87.
[16] Transcript 1–88.
[17] Criminal Code s.246(1)
[18] Decision p.5.
[19] Transcript 1-78.
[20] Transcript 1-6
[21] TKWJ v The Queen (2002) 212 CLR 124, 130 per Gleeson CJ.
[22] Transcript 1-6
[23] Transcript pp. 1,-4, 1-19.
[24] (1893) 6R 67
[25] Transcript 1-6