Cox v Commissioner of Police[2015] QDC 183

[2015] QDC 183

DISTRICT COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE BOWSKILL QC

Appeal No 169 of 2014

DAVID COX Appellant

and

COMMISSIONER OF POLICE Respondent

MAROOCHYDORE

12.39 PM, FRIDAY, 19 JUNE 2015

JUDGMENT

HER HONOUR: This is an appeal under section 222 of the Justices Act against a decision of a Magistrate made in the Maroochydore Magistrates Court on the 8^th of October 2014 by which the defendant was found guilty of a charge of common assault under section 335 of the Criminal Code, and in respect of which no conviction was recorded but a fine of $500 was imposed. The appellant appeals both against his conviction and also his sentence.

I will deal first with the appeal against the conviction.

This is an appeal by way of rehearing on the evidence given in the proceeding before the Magistrates Court. It is a rehearing in the technical sense of a review of the record of proceedings in the Magistrates Court rather than a completely fresh hearing. This Court is required to conduct a real review of the trial and the Magistrate’s reasons and make its own determination of the relevant facts in issue from the evidence giving due respect and weight to the Magistrate’s conclusion, but in order to succeed the appellant must establish some legal, factual, or discretionary error.

One aspect of the appellant’s appeal seeks to rely upon evidence that he would give about the circumstances in which this offence was charged. I have ruled that that evidence, not being evidence which was given before the Magistrate, cannot be given on this appeal on the basis that in terms of the established principles which can be found in the decision of Justice Thomas in Clarke v Japan Machines (1984) 1 Qd R 404 at 408, it is undoubtedly evidence that could have been given at the trial. It is evidence of the appellant himself.

The appellant has made a number of arguments in support of his appeal against the conviction. The first one, and a very important one on the appellant’s arguments, is that he was denied natural justice by the Magistrate who dealt with his matter, because two days were set aside for the trial, and he feels he was denied a chance both to give evidence and make submissions, and that the only reason he said that he would not give evidence himself was after he was continually denied the things that he was asking for. He has also said that on the day of the trial he wasn’t well. He was suffering mental health issues and he was on medication.

The transcript of the proceedings before the Magistrate shows that when the matter was called on for hearing, it appears first thing in the morning or early-ish in the morning, about 9.40 am, the appellant then made an application for the trial to be adjourned. The Magistrate indicated that he was not going to grant an adjournment, and that the trial would be proceeding. He made the point that the appellant had had plenty of time to prepare for the case, and indeed it is apparent from that that there was an application for an adjournment made the previous week to a different Magistrate which was also refused. So it is apparent to me that the appellant had considerable notice of the trial.

The next adjournment application was made just after 3.20 pm when the Prosecution had closed its case, and the defendant was called upon to indicate whether he was proposing to give evidence himself. He indicated he wanted to seek an adjournment because he wanted to seek legal advice in relation to the evidence, and just, he said:

Review what we have before I elect to give or not give evidence, and I can’t do that without an adjournment.

The Magistrate made the point that the appellant had started the trial that day without a lawyer and had conducted it himself, and he said he would not grant an adjournment in order to get legal advice, and he indicated the trial must continue.

There was then a request for – sorry, the appellant asked:

If I choose to give evidence can I take my computer and notes to the witness box?

And the Magistrate said:

No. It doesn’t work that way because it’s oral evidence.

Following that, the defendant said:

No, your Honour. I won’t give evidence.

And he also noted at that time that the young lady that was with him when this offence was said to have taken place is overseas and could not attend.

In terms of whether there is any basis for criticising, on this appeal, the decision of the Magistrate both at the beginning of the day and at 3.20 – around 3.20 or 3.30 – not to grant an adjournment, it is important to note that a decision of that kind by the Magistrate is a decision made in the exercise of discretion vested in that Court. It is a decision which would not lightly be set aside on an appeal, and importantly the High Court in a decision that was made in 1993, so the principles are very well established, has noted that:

In determining whether to grant an adjournment, the Judge of a busy Court is entitled to consider the effect of an adjournment on Court resources, and the competing claims by litigants in other cases awaiting hearing in the Court as well as the interests of the parties.

That decision is Sali v SPC (1993) 116 ALR 625 relevantly at 629 and 632. The defendant being asked at half-past 3 in the afternoon to indicate whether or not he would give evidence and the refusal of an adjournment in that context does not raise any suggestion in my mind that there has been any error in the exercise of the Magistrate’s discretion in that regard, and on that basis there is no basis on which to interfere with that on this appeal.

It is apparent to me that the appellant made a choice not to go into the witness box and give evidence, and the matter then proceeded whereby the Magistrate heard submissions from the Crown and heard submissions from the defendant before making his decision. So I do not accept the appellant’s submission that he was denied natural justice. He was given the full opportunity to cross-examine the the Prosecution witnesses and he did that in some detail.

I do not accept the submission that has been put that the appellant was denied the opportunity to replay the CCTV footage. It is quite clear to me from reading the transcript that it was played numerous times, and at a certain point the Magistrate did refuse for it to be replayed, but that was entirely reasonable. The appellant was given an opportunity to decide whether he wanted to give evidence, and he was given an opportunity to make full submissions, and so I do not accept the submission that he was denied natural justice.

Also, in that context, in the appellant’s outline of argument, reference is made to a letter from a Dr Wade, described as a consultant physician in psychiatry, from the 11^th of May 2011, in the context of a submission regarding the appellant’s health issues including mental health issues. As I have said in the course of the hearing, matters of that kind were matters relevant to be dealt with in the context of a sentence, but could not impact on the Magistrate’s finding in relation to the charge itself.

The next argument in relation to the appeal is that the conviction is unreasonable because the CCTV footage does not show the impact of the umbrella on the complainant’s cheek. In that context the further submissions are made that that may be demonstrated by the fact that there was no puncture to the skin or blood in terms of the injury that was said to be suffered, and the further submission was made that the conduct of the complainant and her husband and her father immediately after the alleged assault was not consistent with an assault having occurred, and in that regard my attention was drawn to those parts of the CCTV footage which showed the complainant, her husband and her father following the defendant after the time when the assault occurred.

I am going to pause at that point to deal with the circumstances as they were alleged in the evidence before the Magistrate. What was alleged is that on the 29^th of June 2013, the complainant had gone to the unit complex where both Mr Cox then resided, and also the complainant’s father. The complainant was there with her husband. The complainant’s father had come down to let the complainant and her husband in through a security door. The evidence that was given was that as the complainant, her husband, and her father walked along an area of the car park towards a lift, the appellant came in the other direction. It was said that he had leaned in towards the complainant’s father and called him a “wanker”. The complainant’s father’s evidence was that there had been a history of the appellant on many occasions abusing him in passing. The evidence was that after that the complainant spoke to the defendant in terms of asking him why he abused her parents every time he saw them, or words to that effect. That then led to a verbal altercation, it seems, between the appellant and the complainant,  as a result of which the complainant’s evidence was that the appellant struck her with his umbrella in her face.

The complainant’s husband gave evidence in terms that he didn’t see exactly what happened, but he did become aware of something having happened when he heard his wife say “Don’t hit me” or something to that effect, and he then immediately dropped what he was holding and rushed to get in between the appellant and the complainant. The complainant’s father also said he didn’t see exactly what happened, but what he did see – and his evidence was:

Mr Cox raised an umbrella. I didn’t see the actual attack on the eye, I just saw her head go back.

And he referred to the husband having dropped his things, his keys and mobile phone, etcetera, and him, that is, the father, picking them up. So those three people, the complainant, her husband, and her father, all gave their evidence about what happened and were cross-examined at some length by the defendant. There were other witnesses who gave evidence, but not people who could speak about that incident. There was the manager from the unit complex who gave evidence about the production of the CCTV footage and the complainant’s mother, likewise. But they were not people who could talk about what happened.

The CCTV footage was put in evidence and we have watched that in the course of this appeal as well. It is in quick-time, but it seems to me, that what I can see on that footage, albeit that it is quick, is consistent with what those three witnesses said. One can see the appellant raise his arm towards the complainant with the umbrella in his hand and one does see the movement of her head going back. It was said the evidence of the complainant was that – that striking of the umbrella caused her to have some redness and swelling on her right cheek. She gave that evidence herself but there were also tendered some photographs which showed some redness on her cheek as well.

Now, the important point in the context of this appeal is that although it is not the case that one just simply, on an appeal, has to follow what the findings of the Magistrate below were, where they depend on credibility or demeanour, or something of that kind. But one does take into account the fact that the Magistrate had the opportunity of seeing those witnesses. He found them to be honest and credible witnesses and he said he accepted completely the evidence of the complainant, her husband and her father about what occurred. He said they were impressive witnesses, very clear in their evidence and that it was backed up by the footage that was in evidence. I cannot comment on how they appeared in person, but I can comment on reading the transcript, that it seemed to me that their evidence was very clear. It was not moved at all in the course of fairly detailed cross-examination by the defendant. And I cannot see any reason to form a different view from that which the Magistrate formed.

Now, the appellant’s argument focuses significantly on the CCTV footage. But in terms of being satisfied of the elements of this offence, it was appropriate for the Magistrate, and indeed it is appropriate for me, to have regard to all of the evidence. And that includes the evidence of the complainant, her husband and her father about what occurred. It is not a case of simply acting on the basis of what appears in the CCTV footage.

As I have said, the charge here was one of common assault under section 335 of the Criminal Code. The elements of that offence, that is the things that the prosecution needed to prove beyond reasonable doubt, are that the defendant appellant (1) unlawfully, (2) assaulted another person.

Assault is defined in section 245 of the Criminal Code to mean, relevantly:

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.

By section 246:

An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.

It seems to me that there is no basis on which to conclude that any factual error was made by the Magistrate in reaching the view that those two elements had been satisfied on the evidence before him, beyond reasonable doubt. The evidence of the complainant, her husband and her father, taken together with the CCTV footage, all supported very clearly that there had been an assault within the meaning of section 245 by the appellant on the complainant and there was no authorisation, justification or excuse for that.

I need to mention two other points. The appellant, in his submission, sought to rely on section 23 of the Criminal Code as providing an excuse, or a defence of some kind. That section, of course, is relevant where intention is an element of the offence. Intention is not an element of the offence of common assault, and therefore that is not relevant. There was another matter raised in the appellant’s outline of argument, dealing with the period of custody that he had spent in early 2014, but that was for different charges and therefore is of no relevance here.

The point was made that the photographs of the complainant’s injury did not support there being any injury. I have looked at those photographs, and it seems to me one has to consider that in the light of the oral evidence given by the complainant as to the injury that was suffered and there is no reason why it would be unreasonable for the Magistrate to have acted on her evidence.

In all the circumstances, in my view, there has been no legal, factual or discretionary error shown to have been made by the Magistrate in terms of the conviction of the defendant of the offence of common assault. In my view, the evidence before the Magistrate plainly supports a finding of guilt based on proof of those two elements of unlawfully assaulting another person. The appeal against conviction will therefore be dismissed.

I turn then to the sentence. As I have noted, the sentence that was imposed on the appellant was a fine of $500, half of which was to be paid as compensation to the complainant and the other half as a fine, and no conviction was recorded. What the Magistrate said in considering the sentence is that he took into account the medical report from the psychiatrist of May 2011 that was tendered by the appellant, although noting the date. He noted the issues in respect of the appellant’s late wife passing away and his depression, and he said he took that into account. He noted he had no issues of violence on his criminal record and no conviction previously recorded, and said that because this was the first time the defendant was coming before the Court in respect of an assault, and that it is an assault at the lower end of the range, he would not record a conviction. In all the circumstances, it seems to me that the sentence imposed was eminently fair and reasonable, and there can be no suggestion that in any way it was excessive. And therefore I also dismiss the appeal against the sentence.

MR STARK: The only additional matter would be the payment of costs. I made that submission in the outline of submissions. I would submit that it would be reasonable for your Honour to make an order. Your Honour has to be satisfied under 226 of the Justices Act it’s – it’s a fairly broad – there’s not much guidance in the cases about these.

HER HONOUR: No. It’s a completely unfettered discretion, effectively, isn’t it?

MR STARK: Yes. And of course, the maximum allowed – amount allowed is $1800. In my submission, it essentially would be your Honour’s consideration in terms of just – the time and resources our office has spent in dealing, in hearing and preparing for the appeal.

HER HONOUR: Yes. I understand that. But as against that, well – are there any – you don’t refer me to any authorities, do you?

MR STARK: No. Given – it’s a broad, unfettered discretion. The cases – the cases certainly don’t preclude orders being made, for example, to statutory bodies. And I – I’m – I can recall a case where such orders were considered. There’s enough to preclude the – the costs order being made – it simply – but you may make such order as costs has to be paid by either party as you think just.

HER HONOUR: Yes.

MR STARK: In my submission, it may not necessarily be the full amount of $1800, although the schedule allows up to that. Your Honour may consider some amount if you felt some lesser amount was just.

HER HONOUR: Now, Mr Cox – see this is always a difficult matter, the matter of costs. On the one hand, you have been unsuccessful in your appeal and frequently in such circumstances it is fair and reasonable for the other party to seek an order that you pay their costs. It undoubtedly costs a lot, lot more than the amount that is provided for. But on the other hand, I am conscious that you are not legally represented and – what are your financial circumstances?

APPELLANT: Your Honour, I’m really struggling, your Honour. And, your Honour, I need encouragement to – to – to try and get back on track. I don’t need discouragement with more fines, your Honour. I’ve got – I’ve got to pay ‑ ‑ ‑

HER HONOUR: It’s not a fine. This isn’t about – this isn’t a fine.

APPELLANT: Sorry.

HER HONOUR: This is – this is the costs associated with coming to Court, because it costs the other party money to respond to what you want to do.

APPELLANT: Well, it costs me, too, your Honour, as – as well.

HER HONOUR: That’s the choice you make. You bring the appeal.

APPELLANT: Your Honour, I don’t believe that you should impose any financial penalty on me to pay the costs, your Honour. Because I’ve exercised my right to have an appeal. I’m not legally represented and it’s – it’ll discourage people from trying to – to – to do an appeal, your Honour. I’m not a lawyer, I’m – your Honour, it’s extremely ‑ ‑ ‑

HER HONOUR: No. Okay.  

APPELLANT: ‑ ‑ ‑ difficult under the circumstances for me, your Honour, if you impose any sort of penalty – extremely difficult, your Honour. Like, I’m very fragile and emotionally – and financial is tough at the moment, your Honour. I’ll be honest.

HER HONOUR: Okay. Mr Cox, an order made for payment of costs when you have been unsuccessful in a proceeding is not a penalty that is imposed on you. It is, effectively, to compensate the other party who have had to expend money in order to deal with it. You have had a hearing in the Magistrate’s Court and you have made an election to come to this Court. I do not consider that your appeal had good prospects of succeeding because of the position that you took at the trial. But I am conscious, also, of the circumstances which you have put to me as well. What I think is just is that I make an order for costs, but a more limited amount, because I am conscious of the hardship to you, but also in fairness to the Crown, I cannot make no order at all in the circumstances of this particular matter.

So in the exercise of my discretion under section 226, I am going to order that you pay the respondent’s costs, fixed in the amount of $400. Do I need to make a – deal with a time in respect of that, or does the legislation take care of that?

MR STARK: I think the legislation deals with that. It’s – there’s not time to pay. It’s a matter that’s handled by the civil registry, as I understand.

HER HONOUR: Okay. Are those all the matters that we need to deal with?

MR STARK: Yes, your Honour.

HER HONOUR: Thank you. Adjourn the Court.

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