Marshall v Queensland Police Service
[2015] QDC 261
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- Unreported Judgment
- Marshall v Queensland Police Service[2015] QDC 261
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Marshall v Queensland Police Service[2015] QDC 261
Marshall v Queensland Police Service[2015] QDC 261
DISTRICT COURT OF QUEENSLAND
CITATION: | Marshall v Queensland Police Service [2015] QDC 261 |
PARTIES: | STEPHEN LLOYD MARSHALL And QUEENSLAND POLICE SERVICE |
FILE NO/S: | 4394/14 |
PROCEEDING: | 222 Appeal |
DELIVERED ON: | 28 October 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 October 2015 |
JUDGE: | Bowskill QC DCJ |
ORDER: | The appeal is dismissed. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION - Where easement exists on the appellant’s land, for the benefit of the complainant’s land – Where complainant lawfully entitled to enter the land to exercise the easement, but appellant had given notice that complainant’s right to use the easement was disputed – Where appellant convicted of assault occasioning bodily harm - Where appellant assaulted complainant in the course of attempting to stop the complainant from entering the easement – Where s 279 of the Criminal Code provides that it is lawful for the person in possession of the land subject of the easement to “use such force as is reasonably necessary for the purpose of making the person so entering desist from the entry” - Whether the Magistrate erred in finding that the assault was unlawful, on the basis that the appellant used more force than was reasonably necessary. Criminal Code (Qld) s 279 |
COUNSEL: | A S McDougall for the Appellant J Marxson (Solicitor) for the Respondent |
SOLICITORS: | Lawler Magill for the Appellant Office of the Director of Public Prosecutions for the Respondent |
Introduction
- [1]The appellant appeals, under s 222 of the Justices Act 1886, against his conviction in the Magistrates Court, on 17 October 2014, of the offence of assault occasioning bodily harm.
- [2]The trial was heard over two days, on 28 and 29 April 2014. On 17 October 2014, the Magistrate delivered her verdict, finding the defendant guilty, with an indication that reasons would be published subsequently. The appellant was sentenced, on 17 October 2014, to a good behaviour bond for a period of 6 months on recognisance of $1,000. No conviction was recorded. In the sentencing remarks, her Honour noted:
“The circumstances of this offence was that there had been a history of dispute between neighbours. It wasn’t in (sic) a gratuitous act. On both sides there was apparent frustration and considerable disagreement. In relation to the matter my reasons are to be published. I do accept that this was a matter involving an easement and some force could be used, however in the circumstances of this case I consider the force to be excessive.”
- [3]Her Honour’s reasons were published on 1 April 2015 (Reasons).
- [4]The assault occurred during an altercation between the appellant and the complainant, Ms Coulson, which arose in the context of a dispute between them about the complainant’s access to an easement across a small portion of the appellant’s property.
- [5]At trial, there was no dispute that the appellant had assaulted the complainant. The issues in dispute before the Magistrate were (1) whether, by the assault, the appellant did bodily harm to the complainant; and (2) whether the assault was unlawful, reliance being placed in this regard on the defence under s 279 of the Criminal Code.
- [6]In relation to the first issue, the Magistrate found that as a result of the assault the complainant sustained injuries to her left wrist (which was bruised and swollen and restricted in movement) and left ankle (swollen and tender) (as well as bruising to one of her arms),[1]and was satisfied beyond reasonable doubt that the complainant suffered bodily harm, as that term is defined in s 1 of the Criminal Code.[2]There is no challenge to that finding on this appeal.
- [7]In relation to the second issue, her Honour found that the assault was unlawful because the appellant used more force than was reasonably necessary to prevent the complainant from entering the easement (and accordingly that the defence under s 279 of the Criminal Code had been excluded).
- [8]Although there were a broader range of issues canvassed in the appellant’s outline of submissions which was filed on 24 March 2015 (before the Magistrate’s reasons were published), the only issue pressed on the hearing of the appeal was whether the Magistrate erred in concluding that the assault was unlawful, on the basis that the defence raised under s 279 of the Criminal Code had been excluded.
- [9]The appeal is by way of rehearing on the evidence given in the proceeding before the Magistrate.[3]The appeal involves a “rehearing” in the technical sense of a review of the record of proceedings below, rather than a completely fresh hearing.[4]This Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.[5]Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.[6]
Facts leading up to the altercation
- [10]The following facts are uncontroversial.
- [11]The altercation leading to the assault occurred on 29 March 2012. At this time, the appellant and the complainant were the owners of adjacent properties in Mathew Crescent, Burpengary, with one property in between them belonging to a Ms Kempener (who gave evidence for the appellant at trial) and a Mr Mollee (Kempener property). These three properties are identified in colour on the “smartmaps” annexed to a statement of Richard Statham, the principal surveyor in the office of the Registrar of Titles, which was admitted into evidence before the Magistrate without any objection.[7]
- [12]There are a number of easements affecting these properties. Relevantly, there is an easement affecting the appellant’s property, across a small corner at the boundary of his property and the Kempener property, where they meet the road (easement “Z”); and an easement that runs from that point, across the Kempener property, to the complainant’s property (easement “AA”). Easement AA burdens the Kempener property and is for the benefit of the complainant’s property. Easement Z burdens the appellant’s property and is for the benefit of both the complainant’s property and the Kempener property.[8]
- [13]
- [14]At the trial, the prosecution admitted that “the defendant both orally and in writing gave notice to the complainant in 2011 of a dispute of her rights to his easement and raises the defence contained in Section 279 of the Criminal Code Act 1899 (Qld), Exercise of right of way or easement”.[11]It was also said that Ms Kempener had given the appellant authority to act on her behalf in relation to access to the easement across her property.[12]
- [15]On 29 March 2012 the complainant was having some furniture delivered to her home. Evidence given by the furniture delivery men (Mr Gillies and Mr Liverstage) was that their truck would have difficulty accessing the complainant’s driveway, due to its steep pitch and the presence of an old cattle grid. After discussion with the complainant about this, she directed them to the “other driveway”[13]– which is the easement from the appellant’s property, across the Kempener property, to the complainant’s property.
- [16]The furniture delivery men then reversed their truck back towards the entrance to the appellant’s property, whilst the complainant walked from her property, through a gate, towards the easement to meet them.[14]
- [17]The furniture delivery men were met at the entrance to the appellant’s property by the appellant, who came to speak to them while they were still in the truck, and informed them that they could not use the driveway/easement. It seems shortly after that the complainant arrived there also, and the altercation ensued.
Section 279 of the Criminal Code
- [18]Section 279 of the Criminal Code provides, relevantly, as follows:
“When a person who is lawfully entitled to enter upon land for the exercise of a right of way or other easement … enters upon the land for the purpose of exercising such right of way, [or] easement, … after notice that right to use such way or easement … is disputed by the person in possession of the land, or having entered persists in entry after such notice, it is lawful for the person in possession …to use such force as is reasonably necessary for the purpose of making the person so entering desist from the entry, provided that he or she does not do the person entering grievous bodily harm.”
- [19]This provision is to be read also with s 283 of the Code which is headed “excessive force” and provides that “[i]n any case in which the use of force by one person to another is lawful the use of more force than is justified by law under the circumstances is unlawful”.
- [20]The basis on which the appellant disputes the complainant’s right to use the easement is not clear. The appellant, in his interview with police on 25 April 2012,[15]alleged that it was on the basis of “continued damage to our property” (referring to both his property, and his neighbour’s, the Kempener property) and “being assaulted” and abused by the complainant.[16]But there was no evidence before the Magistrate of any legal action taken in relation to the disputed easement.
- [21]In any event, it is clear that there was, prior to March 2012, a fairly long running and acrimonious dispute between these neighbours; and the case seems to have proceeded on the basis of an acceptance that there was a dispute as to the complainant’s right to use the easement and, as already noted, an admission by the prosecution that the appellant had given notice of that dispute to the complainant.[17]The Magistrate was not required, and nor is it necessary on this appeal, to consider the merits or otherwise of that dispute.
- [22]The only issue is whether the prosecution proved, beyond reasonable doubt, that the appellant used force that was more than reasonably necessary for the purpose of making the complainant desist from entering the land subject of easement Z to exercise the right of way under the easement.
The Magistrate’s findings regarding the assault
- [23]The Magistrate made the following findings of fact in relation to the assault:[18]
“1. The complainant spoke to the defendant on his driveway which is the entrance to the easement and they argued about her legal access to the easement.
- The complainant started to walk up the easement for the truck to follow her and the defendant grabbed her by her left arm and she was swung or flung to the ground some distance toward the road, missing the culvert and the gravel.
- She got up and started to go up the easement again, toward a gate on her property.
- She was again grabbed by the defendant and was thrown or flung by the defendant toward the ground and went into the legs of her son, Scott Coulson.
- Her son grabbed her by the scruff of the neck and helped her up.
- Around this time the defendant slapped or punched the complainant’s son, Scott Coulson, to the face and the son’s glasses flew off.
- The complainant got up again and the defendant put her in a wrist lock by holding her arm and bending her arm backwards. This was very painful for the complainant. The defendant [sic, complainant] said she felt like it was getting broken and she was screaming.
- The defendant forced the complainant back toward the roadway and she was forced to the ground.[19]
- The defendant released the wristlock on the complainant.
- The complainant walked down the street to her own driveway and the truck also went to her driveway.
- The truck driver and his passenger delivered the furniture by walking the goods about 150 metres up on the complainant’s driveway.”
- [24]On the hearing of the appeal, the only aspect of these findings that was challenged by the appellant was the underlined portion of point 8; it being submitted there was no evidence of this. I will return to this below.
- [25]The reasoning of the Magistrate, towards the conclusion that the assault was unlawful, is set out in [59]-[69] of the Reasons, as follows:
“[59] There is a considerable disparity in size between the complainant and the defendant. The defendant is about 6’ 4” and weighed about 120 kilograms. He is a strong healthy build. The complainant, who is several years older than the defendant, is about 5’ 3” tall and weighs 53 kilograms. In the Record of Interview the defendant described himself as an ‘ex-ring fighter’.[20]
[60] When the complainant came down the easement it was her intention to meet the truck and allow it access up the easement across the defendant and Kempener’s land.
[61] However before the complainant arrived the defendant had spoken to the truck driver and told him there was a legal dispute over the complainant’s right to use the easement and the truck driver would not be allowed to use the easement.
[62] At all times the truck remained parked and the truck driver Liverstage and the passenger Gillies remained in the truck.
[63] The truck driver Liverstage said that as the complainant attempted to walk past the defendant he was able to block her. However as she attempted to walk past him he grabbed her and flung her on to the ground. She landed heavily. The complainant got up and again attempted to walk past the defendant and he again flung her to the ground. He described the complainant as landing on the ground as going straight down like a potato sack.[21]He says the defendant was flung to the ground three times. Then he started yelling out ‘this is enough, this is enough’.[22]
[64] The defendant a former police officer, used pain compliance holds he had been trained in as a police officer on the complainant, including a wrist lock. During this time the truck had made no attempt to enter the property. The defendant due to his size would have been able to block the complainant and stop her from entering the easement. He did not just block the complainant he escalated the force[23]he used to push or throw the complainant to the ground. Taking into consideration the circumstances, including the complainant’s persistence in attempting to walk up the driveway, the complainant was swearing at the defendant and the history of the dispute between the complainant and the defendant it is possible that the holding of the complainant and the throwing or pushing her to the ground may be force that was reasonably necessary to stop the complainant from entering the easement. However the defendant then used a wrist lock on the complainant. The defendant in his Record of Interview said ‘so she’s coming towards me, I’ve reached across turned her, like caught her by the elbow, turned her and spun her wrist backwards and pushed like that’.[24]The complainant described the wrist lock as the defendant pulling her fingers backwards. The complainant said she felt like her wrist was being broken and she said she was screaming.
[65] I consider the use of the wrist lock following the previous force used as excessive. By this time the truck driver Liverstage had advised the defendant and the complainant that he would use the complainant’s driveway. Further the complainant had said she was going back up the easement only to check the gate (she was concerned that the horses might get out) and her intention to do this was known to the defendant.[25]
[66] Also the defendant had successfully communicated to the truck driver and his offsider that they would not be using the easement.
[67] Also I do not consider the defendant was at any risk of being injured by the complainant and I do not accept, other than in defending herself against the complainant [sic, defendant], that she struck the defendant in any way.
[68] Considering therefore then it was clear that the truck was not going to enter the easement, that the complainant had said she was going to close the gate, that the defendant was able to block the complainant’s path with his own body or at the very least by shoving or pushing her away and that the complainant made no attempt whatsoever to strike or hit the defendant, I consider the use of the wrist lock which caused considerable pain, and as can be seen in the photographs, significant swelling, to be excessive in all of the circumstances.
[69] Accordingly I consider the assault by the defendant on the complainant as unlawful as the defendant used more force than was reasonably necessary to prevent the complainant from entering upon the easement. The degree of retaliation by the defendant was excessive.”[26]
Appellant’s arguments on appeal
- [26]On this appeal, the appellant challenges the Magistrate’s finding that the use of the wrist lock was excessive, and does so on the following bases.
- [27]First, what was said to be the erroneous finding as to the “last contact between the complainant and the defendant” involving the complainant being forced to the ground (that is, the underlined part of point 8 in [24] of the reasons, referred to above). It was submitted that the Magistrate’s conclusion of the force at this point being “excessive” is based on the combination of a wrist lock being used and the complainant being forced to the ground, when in fact it was “simply the wrist lock”.[27]
- [28]The appellant submitted there was “no evidence” to support this aspect of the Magistrate’s finding, and supported that submission by reference to the complainant’s evidence[28]that “… after I got in the wrist lock, I was dancing backwards, so I was sort of going down the footpath towards my place a bit and then that’s where it stopped – when he released me”. But there was evidence, both from the complainant’s son and the appellant in his interview with police, which may have been the basis for the Magistrate’s finding in this respect. This evidence will be referred to below.
- [29]Second, that, properly considered, the use of force as applied by the appellant was “justified and reasonable”.
- [30]Third, that the Magistrate failed to consider what was described as the “second tier … of reasonableness”, which, as I understood the submission, sought to contrast objective reasonableness with a consideration of whether or not, in all of the circumstances, “it was open to the defendant to maintain a belief that the application of the force that was applied was necessary and reasonable in all of the circumstances”.[29]This submission was made by reference to a passage from the Court of Appeal’s decision in Biddle v Dimmock[30] which in a broader context reads as follows:
“The defence [of self defence, under the first limb of s 271] was fairly raised in the present matter and the onus was on the prosecution to exclude its application beyond reasonable doubt. Having regard to the evidence accepted by the Magistrate, what were the limits of what could be regarded as ‘reasonably necessary to make effectual defence against the (complainant’s) assault’? Judges commonly counsel juries against conclusions reached in the calm atmosphere of a court room which is very different from the stressful circumstances in which the accused person reacted. That such an approach is necessary is well established (Zecevic v DPP 1987 162 CLR 645, 650, 662-663; R v Johnson 1964 Qd R 1, 13-14; R v Palmer 1971 AC 814, 832
‘If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.’ (Palmer p 831)
The determination of the question whether the degree of retaliation was excessive is one in which the primary tribunal applies what it perceives to be the community standard with the advantage of having seen the protagonists, and involves matters of circumstance and degree. Perusal of the photographs in the present matter reveal significant damage to the complainant’s face and supports the remarks of the magistrate that the response was excessive to the occasion. Although the question falls to be considered by reference to the stressful circumstances in which the appellant reacted, the Magistrate’s finding that excessive force was used was supported by the evidence and should not be disturbed.”[31]
- [31]By reference in particular to the underlined passage above, it was submitted that the court ought to undertake the exercise of considering whether, in all of the circumstances, it was open to the defendant to maintain a belief that the application of the force that was applied was necessary and reasonable in all of the circumstances.[32]Relevantly in this case it was said that the following matters ought to be considered: that the exercise of “that use of force” (ie which was used by the appellant) was honestly and instinctively necessary given the years of bad blood; the bad language by the complainant;[33]that this was not a one-off event that could be viewed in isolation, but was an ongoing dispute which went back over a period of at least 3 years; that the complainant had previously been abusive towards the appellant; and that the application of the wrist lock was after the complainant had attempted on at least 3 occasions to push past the appellant to use the easement.
- [32]Fourth, but related to that third point, that the Magistrate failed to make reference to:
- (a)the evidence of Mr Liverstage that on the final occasion the complainant had tried to push past the appellant “with what looked like more oomph”,[34]and the complainant’s own evidence that she had tried to “get a bit of a boost of speed to get past him”;[35]which it was said “indicates that there was a greater deal of strength... about her desire to get past him”;[36]
- (b)the evidence of Mr Liverstage that it was the complainant who made first contact with the appellant.
- (a)
- [33]Fifth, that the finding of excessive force was based on interference with the complainant’s health and comfort, and the degree of injury that was caused, not simply the application of the force – yet there was “significant challenge to the degree of injury that was caused” at trial. In this regard, reference was made to:
- [34]In this regard, although the appellant does not challenge the finding regarding bodily harm, it was submitted that in so far as the finding regarding the degree of injury caused has informed the finding that the force used was excessive, the Magistrate has made an error.
- [35]Sixth, that no weight should have been placed on the evidence of Mr Gillies, given that in his statement to police, he had said he did not see anything, but then gave an account in his evidence at the trial.
- [36]Seventh, that greater weight should have been placed on what counsel for the appellant described as the collusion between the complainant and her son on two occasions, namely:
- (a)firstly, as a result of the complainant and her son being interviewed by the police together, rather than separately, which it was said resulted in the son changing his description of what occurred, from originally saying that his mother only went to the ground once, to agreeing that she had gone to the ground three times; and
- (b)secondly, the suggestion of collusion outside the court, after the complainant had given evidence, but before her son gave evidence, which was put to the son in cross-examination.
- (a)
- [37]Eighth, that the Magistrate should have found the complainant’s credibility was adversely affected by the evidence concerning the small cut or scratch on her ankle, having regard to the doctor’s evidence, by reference to a photograph of this cut or scratch, that it looked like it was perhaps 5 to 7 days old.
- [38]Lastly, there was criticism of the investigation of the matter by the police, not only in terms of the collusion allowed between the complainant and the son, but also in terms of the police officer who took the complainant’s statement effectively putting words into the complainant’s mouth (for example, the phrase “excruciating pain”… and “I ended up on the ground”).[42]
- [39]“In summary”, it was submitted that the Magistrate:
“… has erred in a discretionary way in that there had to be a second tier of finding made that not only was it excessive, but it was also unreasonably excessive in terms of what the defendant may have believed was reasonably necessary…. In all of the circumstances, in the heat of the moment, it was open … and it’s a hypothesis consistent with innocence, that [the appellant] held a belief – based on the number of times that the complainant kept coming back and trying to enter the easement, that he held the belief that the use of wristlock was necessary and reasonable in all the circumstances”.[43]
- [40]Although on this appeal it was submitted that the Magistrate “fell into discretionary error in finding the defendant guilty”, her Honour’s conclusion that the use of force by the appellant was more than reasonably necessary was not a discretionary matter; but rather a finding of fact. What the appellant is really contending is that the Magistrate made a factual error.
The evidence
- [41]In so far as the assault is concerned, there was evidence at trial from the complainant and her son, Scott Coulson; the two furniture delivery men, Mr Liverstage (who was driving the truck) and Mr Gillies (who was a passenger in the truck). The appellant did not give evidence, but his record of interview with police on 25 April 2012 was in evidence, in which he gave a version of events. The appellant called Saskia Kempener to give evidence, but she did not witness the assault.
- [42]Before turning to a consideration of their evidence, I note that the following observation of the Magistrate is a fair and reasonable one:
“It is not uncommon for witnesses to give similar but differing versions of assaults, especially if there is more than one assault in the interaction. Assaults are dynamic and witnesses may be standing in different places and view the incident from different angles or may have had their attention drawn to different matters and also there can be difficulty in the recollection of a sequence of physical interactions.”[44]
Mr Gillies
- [43]In his evidence at trial, Mr Gillies said that, having reversed the truck down to the “other driveway”, they saw (who he came to know as) the appellant standing there, and they had a conversation with him, in which the appellant said there is an “ongoing easement issue”, and informed them the complainant “hasn’t got any right to use this driveway”. At that point, the complainant was coming down a dirt track from her property, and as she was walking towards the truck, she was saying “just come down here”, presumably directing the truck towards the easement. Mr Gillies said:[45]
“… as she’s walked up to the truck, this chap here [the appellant] says why don’t you just fuck off to those – to those words, and we said oh – we said well, oh yeah. There’s going to be a situation here, and they started a bit of banter and backchat besides each other. It was going on. I sat back down in the truck, and there [they?] were off to the right-hand side, and I couldn’t see him or her. It got heated, and all of a sudden, my truck driver’s gone oh my god, he’s pushed her, and obviously, I stood up like that … She was recovering, had grass all over her back. More words were exchanged. I sat back down in the truck. More words were exchanged and oh he’s done it again. He’s done it again. He’s thrown her backwards down there – down the bank again,[46]and I stood – leaned up like that again … and she was getting up again with grass on her back. More words. The son then stepped between – I – I got up, looked like that … and the son stepped between her and him, obviously to protect his mum, and he said you’re going down next.[47]
- [44]His evidence was to the effect that this happened three times (that is, the complainant getting herself up).[48]
- [45]Mr Gillies said just before the “first call of my god, he’s pushed her over” (from the truck driver), the complainant had folded her arms and tried to walk past the appellant, “and he sort of blocked it, kept on blocking it, and she kept on trying to walk past with her arms folded”.[49]
- [46]When he referred to standing up, Mr Gillies later explained that he stood up and leaned over to look down out through the “little quarter glass on the truck” on the driver’s side.[50]It was apparent from Mr Liverstage’s evidence that the truck was parked on the opposite side of the road to the driveway, with the driver’s side closest to the driveway where the appellant and the complainant were.[51]
- [47]After what he described above Mr Gillies said he and the truck driver were saying “This is ridiculous”, and “Don’t do this. Just stop this. Stop this, lady, don’t go near him kind of thing”[52]and then offered to go back to the complainant’s driveway, and just walk the furniture to her house, instead of trying to get through the easement.
- [48]In cross-examination, Mr Gillies agreed that he had provided a statement to police on 30 April 2012 (so about a month after the incident), in which he said “I did not see what happened. I was a passenger in the truck. I don’t want to get involved. I don’t want to make a statement”.
- [49]When it was put to him in cross-examination that he told police not long after the incident that he did not see what happened, Mr Gillies said “Well, I didn’t. I told you what I saw, and I also told what I just heard”[53](referring to his evidence just given at trial).
- [50]He explained that he had told the police he did not want to be involved, and that the police officer had said to him something to the effect that he would word his statement to give effect to that.
- [51]Both before the Magistrate, and on this appeal, the appellant submitted that Mr Gillies’ evidence at trial should be rejected in its entirety, on the basis of its inconsistency with his statement to police.
- [52]However, the Magistrate said that, “[e]ven considering what he had told the police and his obvious reluctance to provide a statement”, she considered he was an honest and believable witness.[54]
- [53]The Magistrate had the benefit of seeing Mr Gillies in the witness box, which this court does not have. But even on the basis of the transcript of his evidence, it does not seem unreasonable to accept the account he gave at trial. That account is not inconsistent with Mr Gillies saying “I did not see what happened”, because he did not see the acts which caused the truck driver to say “oh my god, he’s pushed her”. But, on his sworn evidence at trial, he did hear what he described as the “banter and backchat” between the appellant and the complainant, he did hear what the truck driver said, and he did see the complainant getting up from the ground with grass on her back. He explained his reluctance to get involved. It is not unreasonable to infer that a person might be reluctant to be involved in something of this kind initially, but upon being advised that the matter is proceeding to a trial, and presumably being subpoenaed,[55]decide that they ought to say what they saw or heard.
- [54]In any event, Mr Gillies’ evidence only goes so far, in terms of supporting the evidence otherwise given of the appellant’s actions towards the complainant forcing her to the ground on two to three occasions. That was consistent with the appellant’s version also, of the complainant stumbling to the ground at least twice (although he was careful to say she was “not totally lying on the ground”).[56]
Mr Liverstage
- [55]Mr Liverstage, the driver of the truck, described reversing down the road, to the other driveway, and having a conversation there with a gentleman from the house opposite (who would be the appellant). The appellant told him they could not enter the driveway, and Mr Liverstage said he would wait and speak to his customer (the complainant). Mr Liverstage described being parked on the opposite side of the road to the driveway entrance. He was on the driver’s side of the truck, which was closest to the driveway. He said the complainant walked across to him, having “some words” with the appellant on the way, and then saying to Mr Liverstage “come in through this way” and going back to the driveway.[57]Once there, the appellant and complainant again “had words” and were arguing.[58]At this point, Mr Liverstage said:
“She tried to get past him, and he – he grabbed her in, like, a bear hug style of a thing kind of around her shoulders and chest area and flinged her about three to four feet through the air onto the ground”[59]and that “She landed just straight – straight down on a – on her body like a potato sack”.[60]
- [56]After this, Mr Liverstage said the complainant “walked back over, and he just grabbed her again around the – the – the chest area and the shoulder and flinged her again. That happened three times. On the third time, she tried to force her way past him back down this common driveway, apparently, and he did the same thing again, and then I started yelling out stop, this is enough, this is enough. Then she come back over to my truck. She’s crying. She’d been hurt and she was just very, very upset”.[61]
- [57]Mr Liverstage then said “enough’s enough, we’re going to the other driveway and I would walk the goods in across that bridge”, and told the complainant to walk down the street while he was driving.[62]
- [58]Mr Liverstage had earlier described the person now known to be the appellant as “over 6 foot” and having “a tall, fit frame”; and the complainant as being “around 5 foot” with “just a small frame”.[63]I note in this regard the Magistrate’s finding of the height and build of the appellant and the complainant, at [59] of her Honour’s Reasons, referred to above.
- [59]It was put to Mr Liverstage in cross-examination, by reference to his statement to police given shortly after the incident, that he (Mr Liverstage) had indicated he would just go back to the original driveway and carry the furniture in by hand, before any physical contact occurred between the appellant and the complainant; that the complainant had said “No. That’s too far to walk”, and insisted on using the easement, following which the argument between the complainant and the appellant continued, and escalated. Although he initially said he could not remember that, when the statement was put more fully to him he said he did remember that.[64]
- [60]It was put to Mr Liverstage that the first point of physical contact between the appellant and the complainant was made by the complainant trying to push through where the appellant was standing. Mr Liverstage said “Well he tried to block her” and “I think from the beginning of his standing there… and saying no, that she can’t use it, was the first – the first part of it”.[65]
- [61]It was also put to Mr Liverstage that, in his statement, after saying he yelled out “enough, enough”, he said the complainant “tried again with what looked like more oomph to get past”, which he agreed with. He said that by “more oomph” he meant that she was more determined.
- [62]He was asked “Okay. Do you mean that she dropped the shoulder a bit more to try to get past, like as you would in a football game?” to which he said “Possibly”.[66]
- [63]On the basis of the parts of his statement put to Mr Liverstage, it appears that after this time of trying to get past with more oomph, the complainant has attempted to pass again, and has been grabbed by the appellant on her shoulders, at which point the complainant’s son stepped in and tried to stop it. The appellant “has flung [the complainant] again”, and then a “scuffle” developed between the appellant and the son. After this, it was said the complainant went back again towards the appellant, and he pushed her away again.[67]He later said:
“It was three times – it was three times that – that [the appellant] flung [the complainant]. And there was a scuffle with the son. I do not remember whether that was between the second and the third time or whether that was on the third time and then we drove to the other driveway. I do not recollect when that was at this stage.”[68]
- [64]He agreed that on each of those occasions the complainant was the one who approached the appellant.[69]
- [65]The Magistrate found Mr Liverstage to be an honest, reliable and credible witness.[70]That is not challenged on this appeal, and I saw no reason to question that in my consideration of the transcript of his evidence.
The complainant
- [66]The complainant described how, after telling the furniture delivery men that they could use the other driveway (the easement) she walked from her property to meet them there. She had to go through a gate. When she arrived at the entrance to the appellant’s driveway, she had an exchange with the appellant. The appellant refused permission for the truck to enter, and the complainant insisted that she had a right to use the easement.[71]The complainant said she then started to walk up the easement so the truck would follow her to see where to go and then said:
“… but that’s when I was stopped.
… That’s when [the appellant] has grabbed my arm – left arm – and flung me four or five metres towards the road, just missing the culvert and on the gravel.
… I got up and then I started to go up to the gate again, the way I’d come because I wanted to make sure it was shut and I got thrown again, but this time I went into Scott’s [her son’s] legs. I went down into Scott’s legs. Scott was grabbing me up by the scruff of the neck, helping me up. That’s when I believe [the appellant] sent his glasses flying and – so he helped me up. I started to go up the easement again because I didn’t want the horses getting out onto the main road and then I got thrown again back towards the road and same thing again. I got up, tried to make it – get to the gate so I could shut it, and thrown and then I was put in a wrist lock – my left wrist felt like it was getting broken so I was screaming at that stage but I didn’t have too much to say. I was just winded a lot.
… after I got in the wrist lock, I was dancing backwards, so I was sort of going down the footpath towards my place a bit and then that’s where it stopped – when he released me. And then that’s when all of us went up to my driveway and the truck went up the dippy driveway.”[72]
- [67]The complainant described being thrown three times, and said all the throws were on the grass (referring to, it seems, photograph 3, of exhibit 2).[73]In terms of the wrist lock, the complainant described the appellant bending her wrist back, by pulling her fingers in a backwards direction. As already noted, she said her wrist felt like it was getting broken and she was screaming at that stage.
- [68]The complainant agreed that, prior to any physical contact between herself and the appellant, she had been advised by the truck driver that he was happy to go back to her driveway and carry the furniture in. But her evidence, in effect, was that she persisted with trying to get access to the easement because she did not think they should have to do that.[74]
- [69]The complainant’s evidence of her first physical contact with the appellant is that she started walking back to go the way she had come (ie across the Kempener property, to her property), and “I started to, like, try and get a bit of a boost of speed to get past him and as I’m getting past him that’s when he – I get flung”.[75]She denied, on either that occasion, or the second occasion, that she “put her shoulder” into the appellant.[76]As to why, having been thrown to the ground on two occasions, she still, on a third occasion, came back and tried to walk down the easement, she said “the gate was open” and “I was worried the horses were going to get out”.[77]
- [70]
- [71]The Magistrate also found that the complainant was a believable witness, and that her version of the event was consistent and largely corroborated by the independent witness, Mr Liverstage.[80]
Dr Guha (Wilson)
- [72]The evidence of Dr Guha, by reference to her notes, was of bruising and swelling of the complainant’s left wrist, and restricted movement in the left wrist; bruising on her right upper arm; and swelling and tenderness over the lateral part of the ankle joint.[81]
- [73]Before the Magistrate, nothing seems to have been said about the difference between the doctor’s notes (referring to the right arm) and the complainant’s evidence, as well as the photographs, showing bruising to her left arm. The photographs which are exhibit 2, as well as exhibit 6/7, both clearly show the bruising on the left arm. In addition, the appellant, in his record of interview with the police, referred to grabbing her on her left arm.[82]Perhaps the explanation is an error in the doctor’s notes. In any event, this does not affect the issues at trial, or on this appeal. The finding of bodily harm was on the basis of the wrist and ankle injuries.
- [74]
- [75]Because of a submission made both to the Magistrate, and on this appeal, regarding the age of a scratch wound on the complainant’s left ankle, which is depicted in photographs 16 and 17 of exhibit 2 (and the final photograph in exhibit 6/7),[85]I note that the complainant, in her evidence in chief, did not identify that scratch as having been caused by the altercation with the appellant.[86]In her cross-examination, when it was put to her “you’d agree with me that there’s no gravel rash that you might ordinarily…”, she said “Well, there was the mark on the ankle, the blood spot there…”.[87]That evidence is ambiguous. The complainant did not expressly state that the mark was caused by the assault. At the most, it could be said the complainant was seeking to reinforce or even talk up the injuries she sustained (as perhaps she did when referring to having a “deformed toe” or “deformed foot”[88]as a result of the injury to her ankle). But I do not consider that this can be said to adversely affect her credibility in a material way, in terms of her description of the assault, particularly having regard to the evidence of Mr Liverstage, and even what the appellant said in his interview with police.
Scott Coulson
- [76]The complainant’s son, Scott Coulson, also gave evidence. He had walked over to the appellant’s property with the complainant, to meet the truck. He said that as the complainant started to head back up the easement (towards the gate), having spoken to the furniture removalists and argued with the appellant, the appellant got in her way and told her she could not go that way:
“And then, as she tried to walk past him, he stepped in front of her again and shoved her fairly hard. But she didn’t fall over at that time. She just sort of lost her balance and – but regained her footing. Then after that, she tried to go around again – tried to get around – get past him again and that’s when [the appellant] either threw her or pushed her very hard and made her fall to the ground. I tried to intervene to break, you know, to break up the situation. And that continued on and there [sic, another] two times.”[89]
- [77]He said “she got shoved once and then thrown to the ground three times”.[90]
- [78]In relation to the “third one”, he said:
“… I heard my mother scream and I didn’t exactly see what was going on, but I sort of got the impression that, you know, something bad was happening. But I didn’t really [see] them.
Why didn’t you see them? – I didn’t see the full on wrist lock until the end of it. At first I was wondering why she was screaming for, but ---
Why is that you couldn’t see – what were you doing? – Well I didn’t – I didn’t know that her hand was being twisted. I didn’t realise that was going on until --
Well, how do you know that? Is it correct that you saw that, or not? – I saw it. I noticed it towards the end, but I just noticed her, sort of getting thrown again.”[91]
- [79]After describing seeing “something like” the appellant using his hand to push the complainant’s hand backwards, he was asked what occurred next, and he said “she basically got thrown to the ground again”.[92]
- [80]Mr Coulson was cross-examined about the statement he had given police, by reference to a recording of it, on the day of this incident. In particular, his attention was drawn to the fact that he had initially said “she went down once that I remember”, after which his mother (the complainant), who was there at the same time, said “I went down three times”, and then Mr Coulson said “Well, he threw you three times but you went down once I think”. When he was later interviewed by police, on 11 April 2012, it was put to him that he said “mum was thrown to the ground three times”.[93]In response to this, at trial, Mr Coulson said “well I did see her getting up three times but I only saw her actually go down one time”.[94]
- [81]Mr Coulson was also cross-examined about a conversation he was said to have had with his mother, when she walked out of court after having given her evidence, but before he had been called to give evidence. He agreed that he had a conversation with her[95]and agreed with some of the things that were put to him about that, but said he could not remember in respect of other things put to him, and denied that other things put to him were said. He said he had not been advised by police that he was not to speak to people who had already given evidence.[96]
- [82]The Magistrate, fairly in my view, accepted that Mr Coulson’s evidence should be given less weight, given the differences between the original version he gave police and his version given in court, the issue raised about his mother being present when he spoke to police, and that he said he had since spoken to his mother who assisted him in his recollection of how many times she had gone to the ground.[97]
The appellant
- [83]The appellant did not give evidence at the trial. However, there was in evidence a record of his interview with police on 25 April 2012. I have listened to that interview, with the benefit of the transcript.[98]
- [84]It is apparent from the very beginning of that interview that the appellant is astute in matters relating to the criminal law of assault. He describes himself as being “well versed on the law”. This is explained by the fact that he is a former police officer, of some 20 years’ service.[99]He identifies himself as being born in April 1969, making him 43 years of age at the time of the interview.
- [85]In relation to his initial exchange with the furniture truck driver on 29 March 2012, he says the truck driver told him the complainant did not want her driveway damaged by his truck, so to bring it in through the appellant’s driveway.[100]I note that that is not consistent with the evidence given by Mr Liverstage and Mr Gillies (whose evidence was that their truck was too big to negotiate the complainant’s steep driveway, which is the reason they were directed to the “other driveway”, that is, the easement), and that this version was not put to them at the trial.
- [86]In any event, the appellant’s version, in the record of interview, was as follows [after telling the truck driver he could not use his driveway]:
“At that point [the complainant] came storming through the property with her son following about 30 metres behind and I said ‘Gerry, you’re not supposed to be on my property or approaching me in any way’. She said ‘Fuck off. You’re a cunt or you’re a cocksucker or something like that’. More abuse. That was said on the road ‘cause the truck was parked on the road. The truck driver said to [the complainant] ‘Look I’ll drive down to your driveway, just drive in a little bit and I’ll carry the bed to your place’. She said ‘Nuh, you’re to take it in this driveway’. He said ‘No. no. Lady I’m not getting involved in this. I’m not doing that’. I thanked the truck driver and went back and stood inside my property in between and a little bit inside where my letterbox and Peter and Saschia’s [the Kempener’s] next door where their letter box stands. Truck driver started to go forward. Gerry Coulson went to come back on the property. I said to her you’re not coming onto the property. She said, she goes ‘I’ve got to shut the gate up there’. I said ‘Well go in your own drive way and shut it from there. You’re not to approach or come on here’. She tried to walk past me. I grabbed her in a number one come along hold, which is a term that you’re aware of if you’d done POST training in the last 20 years and I’ve escorted her off the property. Her son’s then come up to me, stood right in front of me. I could see in his eyes he was about to punch me. He dropped his left shoulder and punched with his right fist straight at my face. I’m a ex-ring-fighter. Leaned forward. His punch has gone straight over my left shoulder as his punch was coming back, I followed it up with an open-handed clout to the side of his head causing him to not wish to fight anymore. Then [the complainant] came at me again, tried to get past and I got her in a number one come along hold, shoved her back. She’s used more swear words against me. The truck driver’s yelled out the window, ‘Lady, why don’t you go in your own driveway? Why are you escalating this?’[101]She goes ‘I’ll go where I want’. She came again at me, I grabbed her in a number one come along hold again and escorted her off, each time pushing her a little bit further just escalating my level of force slightly to combat her level of force which I didn’t need to do under the laws of the state and being reasonable and due to her age, that’s what I did. Fourth time she came, tried to get around me and onto the property again, by this stage I was quite anxious, I was also apprehensive and in fear for myself and my property and her wellbeing and her son’s wellbeing because if I snap it’s not going to be a pretty sight. You’re house is your castle and I take great objection to being [called] a ‘Fuckwit’ and a ‘Cunt’ in my own property. Great objection. And having it invaded by scum so once again, number one come along hold for the fourth time, pushed her back, then she’s come running and tried to get around the other side. I’ve caught her wrist, that’s the other side of me closest to my letterbox. I’ve caught her wrist and put her in a wrist lock, which you’re also aware of if you’ve done POST in the last 20 years. And applied pressure, the whole time I was using a number one come along hold, I was subjected to four punches in the chest and three slaps in the arm and chest by the [complainant]
…
No three punches to the chest and four slaps to the arm and chest by [the complainant]. Hence, you know after the wrist lock and I shoved her back, she, that was a slightly higher level of force, she saw the truck driver and my point of view and went down her own driveway.”[102]
- [87]The appellant then confirms that he put her in a come along hold four times and once in a wrist lock. He is then asked “was she flung to the ground at any stage?”, to which he responded:
“Almost to the ground. She steadied herself with her hands so, that was on the last number one come along hold and on the wrist lock because she was stumbling because there’s a slope there were she was trying to conduct her criminal behaviour and also that was another reason I was concerned for her welfare too, was that there’s concrete ends on the pipe that runs under the ground there that’s exposed, there’s also a, there’s also a power pole there, very easy for her to have fallen, stumbled and, and broken her skull opened on that concrete end, causing more anxiety for myself due to her persistent wanting to invade my property.
…
Oh, she stumbled down, but not totally lying on the ground. She stopped herself with her hands on the ground.
…
It was just a small stumble each time…”[103]
- [88]When asked how many times she stumbled, the appellant said:
“Twice… Oh there was a slight stumble where she just took a few steps herself just to stead herself but not a stumble where she stumbled over.”
- [89]On my listening to the interview, it is apparent from this answer that the “slight stumble” is in addition to the “twice” that she actually stumbled, that is, a third stumble.[104]
- [90]When asked to describe the “number one come along hold”, the appellant said he reached across and grabbed her left arm, “reached across, turned her, like caught her by the elbow, turned her and spun her wrist backwards and pushed like that”.[105]He later explained that it involved putting a hand behind the elbow, and then “palm on palm” twisting the wrist backwards with one arm, using your other arm to push in the back of the elbow to straighten and control that arm.[106]In relation to the wrist lock he said he could not remember which arm he grabbed, “I just caught her by what ever wrist I could when she ran, and she ran passed me onto my property”. In relation to the complainant’s three punches and four slaps that he referred to, he said “That was while I had her in the wrist lock with one hand, she’s hitting me with the other one…”.[107]
- [91]The appellant said he thought the complainant was probably 60 years old, give or take a couple of years, expressing surprise when told by the police that she was 52.[108]
- [92]In relation to what the truck driver might have seen, the appellant said:
“So, he would have seen probably most of, except, these things were happening very quickly, I can put a wrist lock and a come [along] hold on someone extremely quickly and, so, so, whether he knows what I has actually doing when I was doing that, I wouldn’t know. And also whether, you know, I suppose if he’s questioned in the right manner, he’d say it started off with little shoves and then got, I shoved her further and further out of the property as she kept on continuing. Obviously he’s, you know, it might be a bit of a shock to him because all of a sudden there’s an elderly lady getting shoved off the property however, he’s not aware of the ongoing assaults and stalking and the abuse that we’ve had from that woman for the last year. So, though he might think that’s a bit harsh, if read in context, that’s quite lenient compared to what a reasonable person might have done to her. However, I’m well versed on the law and knew exactly what I was doing, when I was doing, where it was taking place and, yeah.”[109]
- [93]As to that last point, he later made express reference to sections 277 to 279 of the Criminal Code as stating that a person can remove any person from their property who won’t leave of their own volition and can use such force so long as it does not constitute grievous bodily harm.[110]
- [94]The Magistrate said that, of the two versions, given by the complainant and the appellant, she “substantially preferred[ed] the version of the event given by the complainant. Particularly as her version is corroborated by the witness Gillies and Liverstage. Further, the complainant’s injuries are consistent with her version of the events”.[111]
Consideration
- [95]As a matter of principle, a key part of the appellant’s argument on this appeal proceeds from an incorrect premise. That is the argument that the Magistrate was required to consider whether it was open to the defendant to maintain a belief that his application of force was necessary and reasonable in all the circumstances.
- [96]Section 279 imports an objective standard as to the force that was necessary. This may be contrasted with other provisions, such as s 267, which do depend upon the state of an accused’s belief as to the force that was necessary.[112]For the purposes of s 279 it is not a question of considering what the appellant believed was reasonably necessary; but rather of considering, objectively, what was reasonably necessary.
- [97]Moreover, in so far as the appellant relies upon the passage quoted from R v Palmer, set out above, whilst it may be accepted as necessary and appropriate to consider what was reasonably necessary, having regard to the stressful circumstances, in this case, those circumstances do not include the appellant being physically attacked. As the Magistrate found:
“Also I do not consider the defendant was at any risk of being injured by the complainant and I do not accept, other than in defending herself against the complainant, that she struck the defendant in any way.”[113]
- [98]That finding is consistent with the appellant’s own evidence, in his interview with police, that the complainant did not strike him until he had put her in the wrist lock.
- [99]Having carefully considered the evidence, and the arguments, I am unable to discern any error on the part of the Magistrate in forming the view that the appellant used more force than was reasonably necessary for the purpose of making the complainant desist from entering the easement.
- [100]Indeed, in my view, it was generous (to the appellant) for the Magistrate to conclude[114]that, taking into consideration the circumstances (including the complainant’s persistence in attempting to walk up the driveway, the complainant swearing at the defendant and the history of the dispute between the complainant and the defendant) it is possible that the holding of the complainant and the throwing or pushing of her to the ground may be force that was reasonably necessary to stop the complainant from entering the easement.
- [101]In circumstances where there was no question of the furniture delivery truck entering the easement (this having been made clear from the beginning of the altercation) and that being the only basis on which the appellant could be concerned about damage being caused to his property, to go to the lengths the appellant did to prevent the complainant from returning to her own property the way she had come was not, in my view, objectively reasonable.
- [102]A man of his age, height, stature and, I infer, strength grabbing the older, and much smaller complainant on four occasions, and forcing her to stumble to the ground, on whatever number of occasions, culminating in applying a wrist lock which made the complainant feel as though her wrist was being broken and causing her to scream in pain, is not objectively reasonable, simply in order to prevent a person walking across an area of land.
- [103]That the dispute has been ongoing between them for some time does not justify a greater level of force being used. Section 279 is an unusual provision, premised as it is upon the person to whom the force is applied being lawfully entitled to enter the land to use the easement. According to its terms, all that s 279 requires is that the person in possession of the land subject of the easement have given notice that the other person’s right to use it is disputed, before they are, in essence, permitted to use “such force as is reasonably necessary” to stop that other person from entering. But there must come a point at which appropriate legal steps be taken to properly deal with the dispute,[115]as opposed to resorting to physical violence.
- [104]As to the other arguments raised by the appellant:
- (a)In so far as the underlined part of the finding in point 8 in [24] of the Reasons is concerned, it seems to me the Magistrate may have made that finding on the basis of the evidence of both the complainant’s son, Scott Coulson (referred to at paragraph [78] above) and the appellant himself (referred to at paragraph [87] above). But in any event, the conclusion reached by the Magistrate, which I consider to be correct, that the use of the wrist lock at the end of this altercation, which caused considerable pain and swelling, was excessive, does not depend on whether or not as a result of that the complainant was forced to the ground.
- (b)In so far as it was submitted the Magistrate failed to refer to aspects of Mr Liverstage’s and the complainant’s evidence (regarding the use of “more oomph” or a “boost of speed” to get past the appellant, and that it was the complainant who made the first contact with the appellant), I note that:
- (i)it was not necessary for the Magistrate, in her reasons, to recite every part of the evidence given. Her Honour’s written reasons are detailed and clearly set out the basis upon which her Honour reached the conclusion that she did;
- (ii)Mr Liverstage’s evidence, when it was put to him that the first point of contact was when the complainant tried to push through where the appellant was standing, was “Well he tried to block her” and that the first part of it was “his standing there … and saying no, that she can’t use it”;[116]
- (iii)in any event, it is apparent that the Magistrate understood the physical assault(s) occurred when the complainant attempted to walk past the appellant, and that she persisted in trying to do this;[117]and
- (iv)although the evidence from Mr Liverstage of “more oomph” being used was after the complainant was thrown to the ground the third time, the evidence from the complainant of getting up a boost of speed was in relation to an earlier attempt to get past him.
- (i)
- (c)As to the submission that the finding of unreasonable or excessive force is tainted by an incorrect finding regarding the degree of injury caused, in my view no error can be shown. The evidence accepted by the Magistrate was of the pain caused at the time the wrist lock was applied (the complainant describing feeling as though her wrist was being broken and screaming in pain), and the resultant swelling to her wrist. That the complainant may have been more susceptible to pain than the ordinary person, and may have been seen picking up branches the following day, does not alter the conclusion that the force used by the appellant was more than was reasonably necessary.
- (d)I have already addressed above the issue concerning Mr Gillies’ evidence. I do not consider the Magistrate erred in accepting his evidence at trial.
- (e)As to whether greater weight ought to have been placed on the alleged collusion between the complainant and her son, it seems to me the Magistrate acted appropriately by placing less weight on the son, Mr Coulson’s evidence. I can see no basis to find any error on the part of the Magistrate in accepting and acting on the complainant’s evidence and, indeed, preferring that to the evidence of the appellant in his interview with police, particularly having regard to Mr Liverstage’s evidence.
- (f)I have also addressed the evidence regarding the injury to the ankle above. Even if it be accepted that the scratch or mark on the ankle was not caused in this altercation, I do not consider this affected the complainant’s credibility in a material way, in so far as her evidence regarding the circumstances of the assault is concerned.
- (g)The issue regarding the police officer using his own words in the complainant’s statement is not significant, in my view, having regard to the evidence given at trial.
- (a)
- [105]In my view, it was open to the Magistrate to make the findings that she did on the basis of the evidence before her. Upon my own assessment of the evidence at trial, I have similarly formed the conclusion that the force used by the appellant in preventing the complainant from accessing the easement to return to her property was more than was reasonably necessary in the circumstances. Consequently, it was not lawful.
- [106]The appeal is therefore dismissed.
- [107]In relation to costs, I note that the effect of s 232(4) of the Justices Act 1886 is that no order as to costs may be made (this being an appeal in relation to an indictable offence that was dealt with summarily). Should any party wish to make submissions contrary to this, I direct that any such submissions be filed and served within seven days.
Footnotes
[1] Reasons at [32] and [41].
[2] Reasons at [42]-[47].
[3]Justices Act 1886 s 223(1).
[4]Fox v Percy (2003) 214 CLR 118 at [22]; Teelow v Commissioner of Police [2009] 2 Qd R 489 at [3]
[5]Fox v Percy (2003) 214 CLR 118 at [25]; Rowe v Kemper [2009] 1 Qd R 247 at 253-4; White v Commissioner of Police [2014] QCA 121 at [6].
[6]Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7], [65]; White v Commissioner of Police [2014] QCA 121 at [8].
[7] Annexure J, pp 2 (the complainant’s property), 3 (Ms Kempener’s property) and 4 (the appellant’s property).
[8] Mr Statham’s statement at [2], [6], [7] and annexure J at pp 5-7. The terms of easement Z appear in annexure H – it is an easement of right of way, for the purpose of going from Mathew Crescent to the dominant tenements, which are the complainant’s property and the Kempener property. Easement AA appears in annexure G, and is also a right of way easement, for the purpose of going from Mathew Crescent to the complainant’s property.
[9] Reasons at [7] and [8]
[10] Transcript (trial) at p 1-45.38.
[11] Particulars, exhibit 1.
[12] Ms Kempener’s evidence at T 2-9.15. The question put to Ms Kempener is ambiguous, saying “Has Mr Marshall previously given you authority – to act on your behalf in relation to access to that easement” – to which Ms Kempener answered “yes”. But it does not appear this was controversial, and in any event it seems to be accepted that the altercation took place on, near, or in relation to easement Z (being the easement affecting the appellant’s property).
[13] Mr Gillies at T 1-5; Mr Liverstage at T 1-17.
[14] Mr Gillies at T 1-5.47; Ms Coulson at T 1-31.
[15] The audio recording of which, and transcript, are exhibit 3. The audio recording was not played in court at the hearing of the appeal, but at the request of the parties I have listened to the recording.
[16] Exhibit 3 (transcript) at p 6.
[17] Reasons at [50].
[18] Reasons at [24].
[19] Underlining added.
[20] Record of Interview page 7.
[21] Page 1-20 Line 1-2.
[22] Transcript page 1-21 Line 5.
[23] Transcript of Record of Interview page 7.
[24] Transcript of Record of Interview page 9.
[25] Transcript of Record of Interview page 7.
[26] Footnotes in the original. Underlining added.
[27] Transcript (appeal) at p 1-6.19.
[28] Transcript (trial) at p 1-35.2-.10.
[29] Transcript (appeal) at p 1-7.14-.16.
[30] [1992] QCA 265 (Fitzgerald P, Davies JA and Thomas J, 21 August 1992).
[31] Underlining added.
[32] Transcript (appeal) at p 1-7.1-.16.
[33] In fairness, it appears the bad language was mutual: when the complainant was being cross-examined about abusive things she had said to the appellant, prior to the incident the subject of this proceeding, she at one point said “Well, he’d been previously saying abusive things to me and that, so I just thought I’d say something back”: p 1-49.37.
[34] Transcript (trial) at p 1-25.31-.29.
[35] Transcript (trial) at p 1-55.32
[36] Transcript (appeal) at p 1-14.8.
[37] Who had recently changed her name, by marriage, to Dr Wilson.
[38] Transcript (trial) at p 1-45.27-.32 (complainant) and p 1-76.2 and .23 (Dr Wilson)
[39] Reasons at [45].
[40] Transcript (trial) at p 1-78.9-.20.
[41] Transcript (trial) at p 2-9.39.
[42] Evidence of Constable Kentworthy at transcript (trial) p 1-107.42 to p 1-108.27.
[43] Transcript (appeal) at p 1-16.11-.22.
[44] Reasons at [13].
[45] Transcript (trial) at p 1-6.1-.14.
[46] It is apparent from Mr Gillies’ later evidence, at p 1-10.22 that it is the truck driver who said this.
[47] It is apparent from Mr Gillies’ later evidence, at p 1-10.37, that it is the appellant who said that to the son.
[48] Transcript (trial) at p 1-10.17 and .35.
[49] Transcript (trial) at p 1-6.35-.39 and p 1-9.30-.45.
[50] Transcript (trial) at p 1-10.7-.14.
[51] Transcript (trial) at p 1-19.7-.18.
[52] Transcript (trial) at p 1-6.17-.27.
[53] Transcript (trial) at p 1-13.10.
[54] Reasons at [14].
[55] Mr Gillies referred to speaking with police officers “every time I got served” (p 1-14.4).
[56] See paragraph [87] below.
[57] Transcript (trial) at p 1-18.34-.36.
[58] Transcript (trial) at p 1-19.1-.27.
[59] Transcript (trial) at p 1-19.40-.45.
[60] Transcript (trial) at p 1-20.2.
[61] Transcript (trial at p 1-21.1-.6.
[62] Transcript (trial) at p 1-21.16-.21.
[63] Transcript (trial) at p 1-18.16-.23.
[64] Transcript (trial) at p 1-22.34 to 1-24.31.
[65] Transcript (trial) at p 1-24.40 to 1-25.4.
[66] Transcript (trial) at p 1-25.37-.38.
[67] Transcript (trial) at p 1-25.43 to 1-27.40.
[68] Transcript (trial) at p 1-28.15-.18.
[69] Transcript (trial) at p 1-28.24.
[70] Reasons at [15].
[71] Transcript (trial) at p 1-31.4 to 1-32.13.
[72] Transcript (trial) at p 1-34.35 to 1-35.12.
[73] Transcript (trial) at p 1-38.39 and 1-39.25 to 1-40.5. Although in her cross-examination, without reference to the photographs, she said “It was all on the gravel area there” (p 1-63.40).
[74] Transcript (trial) at p 1-53.35-.41.
[75] Transcript (trial) at p 1-55.26-.33.
[76] Transcript (trial) at p 1-55.35-.47.
[77] Transcript (trial) at p 1-56.12-.34.
[78] Marked as exhibit 6 at p 1-37.20 (although the exhibit marking has amended by hand from 6 to 7); and also by reference to the photographs comprising exhibit 2.
[79] Transcript (trial) at p 1-36.40.
[80] Reasons at [18].
[81] Transcript (trial) at p 1-73.5-.14.
[82] See paragraph [90] below.
[83] Transcript (trial) at p 1-74.16.
[84] Transcript (trial) at p 1-103 to 1-104 (this was in the context of cross-examination of the police officer, Kentworthy, as to his use of the word “excruciating”, which he agreed had come from him, not the complainant).
[85] The evidence of Dr Guha, by reference to the photograph, was that this mark did not look like it was 24 hours old, that it looked more like 5 to 7 days old (page 1-77.11-.18). The Magistrate dealt with this at Reasons [28]-[31].
[86] Cf pages 1-36.40, 1-37.5-.13 and 1-40.
[87] Transcript (trial) at p 1-64.14.
[88] Transcript (trial) at p 1-37.13, p 1-40.44 and p 1-44.9.
[89] Transcript (trial) at p 1-81.6-.12.
[90] Transcript (trial) at p 1-81.46.
[91] Transcript (trial) at p 1-83.6-.17.
[92] Transcript (trial) at p 1-83.20-.42.
[93] Transcript (trial) at p 1-90.7.
[94] Transcript (trial) at p 1-90.8-.9 and 1-91.4.
[95] Transcript (trial) at p 1-95.46.
[96] Transcript (trial) at p 1-96.1 to 1-97.23.
[97] Reasons at [19].
[98] Exhibit 3.
[99] Record of Interview at p 15.
[100] Record of Interview at p 6.
[101] I note that this was not put to Mr Liverstage either, and is inconsistent with his evidence.
[102] Record of Interview at p 7. Emphasis added.
[103] Record of Interview at p 8. Emphasis added.
[104] Record of Interview at p 8.
[105] Record of Interview at p 9.
[106] Record of Interview at p 10.
[107] Record of Interview at p 9.
[108] Record of Interview at p 9.
[109] Record of Interview, pp 9-10.
[110] Record of Interview at p 11.
[111] Reasons at [23].
[112]R v O'Neill [2009] QCA 210 at [16] and [17] (in relation to s 277 of the Criminal Code, the relevant part of which is in the same terms as s 279); and Whitelaw v O'Sullivan [2010] QCA 366 at [26] and [27] per McMurdo P (regarding the objective standard imposed by s 615, in relation to police officers, in which an equivalent form of words appears (“reasonably necessary force”)).
[113] Reasons at [67].
[114] Reasons at [64].
[115] Cf s 181 of the Property Law Act 1974 (Qld). See also Brisbane City Council v Amstad [1968] Qd R 371 (a case in which the plaintiff council acquired an easement over the defendants’ property, for the purpose of drainage works; part of the defendants’ pergola extended over the easement area and obstructed the excavator being used to construct the drainage works; the defendants, having given notice, used physical force to prevent the plaintiff’s employees from removing the pergola; and the plaintiff successfully applied to the Supreme Court for an injunction to restrain the defendants from interfering with the plaintiff’s employees in taking down the pergola).
[116] See paragraph [60] above.
[117] Reasons at [63] and [64].