Burke v Commissioner of Police
[2015] QDC 328
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Burke v Commissioner of Police[2015] QDC 328
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Burke v Commissioner of Police[2015] QDC 328
Burke v Commissioner of Police[2015] QDC 328
DISTRICT COURT OF QUEENSLAND
CITATION: | Burke v Commissioner of Police [2015] QDC 328 |
PARTIES: | BURKE v COMMISSIONER OF POLICE |
FILE NO/S: | 5011 of 2014 |
DIVISION: | Crime |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Ipswich |
DELIVERED ON: | 18 December 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 July 2015 – copies of exhibits supplied in December 2015 |
JUDGE: | Rackemann DCJ |
ORDER: | The appeal against convictions is dismissed. The appeal against sentence is dismissed. |
CATCHWORDS: | CRIMINAL LAW – APPEAL – where the appellant was convicted of serious assault, drunk or disorderly in premises to which a permit/licence relates, and assault or obstruct police officer – whether the verdict is unreasonable or cannot be sustained having regard to the evidence – whether the sentence is, in all the circumstances, manifestly excessive |
COUNSEL: | D M Burke for the appellant C M Hurley for the respondent |
SOLICITORS: | Self-represented appellant ODPP on behalf of the Queensland Police Service for the respondent |
- [1]On 26 November 2014, after a summary trial in the Magistrates Court, the appellant was found guilty of the following three offences, all of which arose from a single incident on 20 April 2014:
- (a)Serious assault, pursuant to section 340(1)(b) & (a)(i) Criminal Code – Maximum Penalty: 14 years imprisonment;
- (b)Drunk or disorderly in premises to which a permit/licence relates, pursuant to section 164(1)(a) Liquor Act 1992 – Maximum Penalty: 25 penalty units; and
- (c)Assault or obstruct police officer, pursuant to section 790(1) Police Powers and Responsibilities Act 2000 – Maximum Penalty: 60 penalty units or 12 months imprisonment.
- [2]The prosecution case was that the police encountered the appellant in the early hours of the morning in the outside area of the Racehorse Hotel at Booval. The appellant was said to be drunk, waving his arms in the air and yelling obscenities at security staff after coming outside. In the course of being arrested, the appellant struggled with the police (the obstruct offence) and spat in the face of officer Kitching (serious assault). The appellant was brought to the ground. He appeared to have a fit. The ambulance was called and he was taken to hospital. He recovered and was eventually taken to the Watchhouse where he spoke to the arresting officer, but refused to be formally interviewed.
- [3]Upon conviction, the appellant was sentenced as follows:
i)for serious assault – 6 months imprisonment suspended after 29 days for an operational period of 2 years;
ii)assault or obstruct – 7 days imprisonment (concurrent);
iii)drunk or disorderly – convicted but not punished
The appellant has served the period of imprisonment, but is still within the operational period of the suspended sentence.
- [4]The appellant appealed on the basis that:
- (a)The verdict is unreasonable or cannot be sustained having regard to the evidence, and
- (b)The sentence is, in all the circumstances, manifestly excessive.
The evidence
- [5]The prosecution called 7 police officers to give testimony at trial, namely officers Kitching, Curtis, Danz, Kitto, Bunnett, Mosey, and DeVries. The last of those arrived on the scene only after the relevant events occurred. The evidence of the other officers was generally, although not entirely, consistent. The evidence upon which the prosecution relied was to the effect that the spitting occurred whilst the appellant was resisting arrest and whilst he was being restrained in the area around the back of an unmarked police car. That was before officer Kitching applied force to the appellant’s carotid artery (in order to cause pain to obtain compliance), and before the appellant had a fit and lost consciousness.
- [6]The appellant gave evidence at trial. He denied being drunk or disorderly. He said that whilst inside the hotel, he had a dispute about a glass of beer which had been cleared away when he left it unattended. He believed it ought to have been replaced without charge. Ultimately, he was required to leave. He said that he had then been thrown down stairs by the security staff (although he was able to keep his feet) and had gone outside where he unsuccessfully complained to officer Kitching about the security staff. He was about to leave when officer Kitching, for no good reason, pushed him, face first, into the boot of the police car. He was then held down, with his face on the boot, by multiple police officers. He was handcuffed and stabbed in the neck with a key, to which he may have reacted, in self defence, by turning around and spraying a “mist” at Kitching. To the extent he reacted, it was “only against excessive force…and an unlawful arrest”. The appellant confirmed that he did not see officer Kitching put a key in his neck, but believed it was a key because he heard keys jangling near his head. The appellant accused the police officers of collusion and of perjury.
- [7]In convicting the appellant, the learned magistrate evidently accepted the core elements of the police version of events. That necessarily involved rejecting the competing version of the appellant (although the learned magistrate was not prepared to find that the appellant was drunk). His Honour rejected any suggestion of collusion among the police witnesses.
- [8]The evidence clearly established that the appellant spat at officer Kitching. The appellant did not deny that, but said that any spit was in an attempt to stop officer Kitching from unlawfully assaulting him. In this respect, his Honour appears to have hinged his decision upon the extent of consistency of the police evidence in relation to the spitting occurring when the defendant was standing and before the “pressure point technique” was applied by officer Kitching to the appellant’s carotid artery. His Honour concluded “There is no evidence that the use of a thumb or knuckle or key, for that matter, was used on the defendant prior to the spitting incident.” There was evidence from the appellant to that effect, but his Honour evidently rejected that evidence.
- [9]His Honour also noted that “If the defendant was seeking to argue provocation or self-defence, then I do not think that is open to him, not that those have been raised by him as defences in the course of the hearing.” Despite that observation, it does appear that the appellant argued, at the very least, that he was acting in self-defence and, of course, it was incumbent on the learned magistrate to consider any defence open on the evidence. However, it is apparent from the decision that his Honour did not accept the appellant’s version of events and considered that potential defences were not available on the facts as he found them.
The appellant’s complaints about conviction
- [10]In support of his appeal against conviction the appellant, who was self-represented both at trial and on appeal, relied on 2 outlines of argument, an affidavit and oral submissions. His documents include serious allegations against the police, the prosecutor, and the Magistrate. The documents descend to inappropriate name calling. Further like allegations and name calling were forthcoming when the parties were informed, by my associate, that the CCTV footage exhibit was not in a format that could be viewed by me and that the audio recording exhibit was missing from the file. I was subsequently provided with (and viewed) each.
- [11]The key areas of complaint appear to be as follows:
i)The police version of events was the product of demonstrable perjury and collusion and ought not have been accepted;
ii)The learned Magistrate ought not to have been satisfied that the police were acting in the execution of their duty;
iii)The evidence did not exclude that the appellant was defending himself against police thuggery and an unlawful assault that ultimately resulted in his seizure;
iv)The appellant was not required to be passive in the face of unlawful assault by the police;
v)Relevant evidence was suppressed or doctored;
vi)The appellant was denied the opportunity to call relevant medical evidence;
vii)The disciplinary records of officer Kitching and a cell audio ought each have been disclosed;
viii)The appellant ought now be permitted to rely on a different medical report and on a report by the ambulance service;
ix)As at the time of trial the appellant was hampered by mental health issues;
x)The magistrate exhibited bias and otherwise conducted the trial inappropriately;
xi)The prosecutor was guilty of misconduct;
xii)The assault was not “serious” in any event; and
xiii)The defendant ought not to have been deprived of a trial by jury.
Consideration
- [12]The verdicts hinged upon the resolution of competing evidence of fact. Whilst this appeal is by way of rehearing, findings of fact made by a magistrate at trial are not lightly departed from. Whether different findings should now be made requires an examination of the content of the evidence. The appellant submits that a critical examination of the evidence reveals that the police evidence was not credible or reliable and was, indeed, tainted by demonstrable collusion and perjury.
- [13]The appellant pointed to what he saw as demonstrable errors or inconsistencies in the police evidence. It must be remembered that not every inconsistency or error demonstrates a general lack of credibility or reliability in relation to proof of the elements of the relevant offences, far less proves collusion or perjury. Some level of inconsistency or error can be expected when different people recount their recollection of a past event. The gravity of the inconsistency or error, insofar as proof of the relevant charge is concerned, should be duly considered.
- [14]The appellant placed a deal of reliance on what he says are inconsistencies between the police evidence, on the one hand, and of what is shown on the CCTV footage which was in evidence, on the other. That footage shows the appellant inside the hotel and as he exits from it.
- [15]There can be no suggestion of relevant inconsistency in relation to what occurred inside the hotel, as the police officers did not observe what occurred at that time. At trial some hearsay evidence was given about that, which the magistrate rightly ignored. The inconsistency is said to relate to what is shown of the appellant as he exits the hotel.
- [16]There are 2 aspects of the CCTV footage of the appellant exiting the hotel upon which the appellant relies in submitting that the police evidence was not credible or reliable. The first relates to the manner in which he exited the hotel and the second relates to whether he returned to the entry/exit after leaving.
- [17]Insofar as the manner of the appellant’s exit is concerned, the evidence of those officers who observed it, particularly officers Kitching and Curtis, was that he left unaided. The appellant says that he was wrongfully physically thrown out by the security staff, which was the cause of his upset and, he claims, complaint to officer Kitching. The CCTV footage does show that the appellant was escorted down the stairs by security staff and that there was some physical interaction with one security officer.
- [18]When questioned about this prior to being shown the CCTV footage, Officer Kitching said, in examination in chief, that he had been in conversation with other officers (outside the hotel) when he heard a loud and abusive male voice. He turned around to see the appellant shouting at the security staff. In cross examination, he said that, “the bouncers were hands-off…they didn’t touch you when you walked down the stairs”, and that he knew that was the case because he had seen the appellant walk down the stairs unassisted after he turned around. When asked whether he was certain that the appellant was unassisted, officer Kitching responded,
“Well, that is what I saw. Prior to turning around, I didn’t observe you… I was facing my colleague…”
- [19]Immediately before the appellant played the CCTV footage he put to officer Kitching that, if it showed the appellant being pushed or shoved down the stairs, then the officer would be shown to be a liar. The officer did not accept that. He responded by pointing out that his observations were limited to what he saw after he turned around.
- [20]When the CCTV footage was shown to officer Kitching, he accepted what it showed, but did not change his evidence. He said that he did not see the physical interaction with the security staff that appeared on the footage. He repeated that the appellant was walking unassisted when he saw him, but that he did not see what happened before he turned around. He said, “what happened before I turned around, I did not observe”, and “at the point of me turning around and observing the defendant directly…I did not see anyone with hands on him as he’s moved down the stairs and where that concrete divide is, I could probably only see the last stair or the second last stair. I did not see hands on him at that point”.
- [21]Similarly, officer Curtis said that she did not see the security officers touch the appellant, but that he was already half way down the stairs by the time she saw him. Officer Danz only recalled seeing the appellant once he was approximately half way down the stairs.
- [22]Having regard to what the CCTV footage shows, if those officers did not see any physical interaction as the appellant was escorted from the premises they must not have observed much, if anything, of what happened on the stairs. In that event, officer Kitching could be criticised at least for not having made that clear when he initially rejected the suggestion that the bouncer had assaulted the appellant, and when he positively asserted that the bouncers were “hands off”.
- [23]It was certainly open to the appellant to press the officers on this point. The fact that the officers did not leave the appellant under observation for the whole of his descent down the stairs and that and that none of the officers say they saw the security staff touch the appellant when the CCTV footage suggests some interaction does impact on what can be made of their evidence insofar as the manner of the appellants descent down the stairs is concerned, but does not necessarily mean that their evidence is not credible or reliable on the matters which establish the charges. It does not establish collusion, perjury or some attempt to protect the security staff or the hotel, as the appellant appeared to suggest by questioning officer Kitching about his past employment (many years ago) with the same proprietor (but at a different hotel).
- [24]The second aspect of the CCTV footage relied upon by the appellant related to his conduct after he left the hotel. Officer Kitching testified, in chief, that the appellant walked away before returning to abuse the security officers and then walked away again before returning again, which caused Officer Kitching to step in. Officer Curtis testified that the appellant “would start to walk away from the stairs, like a few steps, but then he had, sort of, walked back towards the steps… and then started yelling at the security guards”. In cross examination she said that he did this about 3 or 4 times. The CCTV footage however, does not show the appellant returning to the foot of the stairs.
- [25]Officer Curtis was challenged about this aspect of the CCTV footage. That was perhaps because she had, in cross-examination, described the movement as being “to the bottom of the stairs”, earlier having described the movement as “towards the stairs”. After being shown the CCTV footage she reverted to the description of “towards” the bottom of the stairs, saying that the appellant was further back (out of the view of the CCTV). The shifting of officer Curtis’ evidence in this respect was relevant, but not necessarily decisive in terms of her overall credibility and reliability.
- [26]It has already been noted that the learned magistrate, whilst accepting that the appellant was disorderly, was not satisfied that he was drunk. The appellant had been in licensed premises and had been drinking. There was however, no breath or alcohol testing. The allegation that the appellant was drunk was based upon the observations of the police officers, who described him as being both unsteady on his feet and in an agitated state. The learned magistrate observed that police officers have some experience with intoxicated persons, but have no expertise (over an ordinary person) to make an assessment of drunkenness.
- [27]Having viewed the CCTV footage of the appellant in a discussion/argument at the entry/exit of the hotel, the learned magistrate observed that the appellant, whilst moving sideways and pacing (something to which officer Kitching referred), was not behaving in a way which the learned magistrate considered evidenced him being drunk, albeit that the magistrate was sure that the appellant was affected by alcohol to some extent. One would have thought that to be an objective assessment of the evidence leading to a conclusion which was, in that respect at least, favourable to the appellant. It is difficult to reconcile that with the appellant’s other complaints of the magistrate as being generally biased in favour of the police.
- [28]The appellant saw the learned magistrate’s finding, in this respect, as demonstrating that the police evidence, particularly as to him being unsteady on his feet, was the product of collusion and perjury. That does not follow from his Honour’s finding. His Honour simply made a different assessment, based upon what he saw on the CCTV and, given the absence of breath or alcohol testing, was not prepared to go so far as to find, beyond reasonable doubt, that the defendant was indeed drunk. It does not follow that the police lied about their assessment of the appellant, or that their evidence generally lacked credibility or reliability.
- [29]The appellant claims that officer Kitching unlawfully assaulted him by using a key to apply pressure to his carotid artery. Officer Kitching denied that, testifying that he used the fingernail of his thumb. Police evidence otherwise had him using his knuckle or his thumb. It might be noted that , notwithstanding the appellant’s assertion about a key, he can be heard on the audio tape of the conversation in the Watchhouse to question officer Kitching about the justification to “put your knuckle through the back of my skull”.The learned magistrate made no finding about that, being satisfied that, whatever was used, the ‘pressure point technique’ was applied after the spit (such that it could not be used to justify or excuse the spit). That might be so, but if the police were found to have been lying, or at least unreliable, about the way that technique was applied, then that could potentially affect an assessment of their overall credibility and reliability.
- [30]None of the police officers backed the appellant’s assertion (based on what he says he heard) that a key had been used. The appellant suggested that the police evidence, in this regard, is disproved by photographic evidence which shows that, as a result of the technique, the appellant bled from the area. This logically suggests that more than a knuckle was used, but it does not necessarily expose officer Kitching, whose evidence was that he used the fingernail of his thumb, which left ‘a small red mark’, which he later described, in cross-examination, as composed of a ‘slight cut’ and blood. There was no medical evidence which established that the injury was inconsistent with officer Kitching’s testimony. The appellant complains that his efforts to call such evidence were, in effect, thwarted. That complaint is dealt with later.
- [31]The appellant also claims that officer Kitching was, in effect, ‘caught out’ by the recording of a conversation between the two in the watchhouse. In the course of cross-examination it was put to officer Kitching that, in the audio recording, he said that he doesn’t run and jump on people. The officer denied that but, when the audio was played, had to acknowledge that he had indeed said words to that effect. The appellant saw the statement as carrying an implicit admission that the officer had instigated the incident by physically running and jumping on the appellant for no good reason. The officer denied that and sought to place the words in context. The audio records him as asserting that he had approached the appellant to get him to walk away before saying, “I don’t run and jump on people for playing up cause you have a legitimate reason for being upset for being removed from a hotel, ok? What I was trying to tell you was that the security guards and staff have a job to do and they have a liquor licence to protect… Cause you are welcome back there tomorrow and the next day”. He then goes on to give the appellant advice about drinking and appropriate behaviour. Officer Kitching said that what he intended to convey was that he does not “automatically go you’ve committed an offence, you come with us”, but rather that the appellant was provided with an opportunity to stop his behaviour and leave.
- [32]The audio recording does not contain an unequivocal admission of the kind which the appellant asserts. What officer Kitching said in initially denying having used the words was a legitimate matter for the appellant to rely on in submissions, but had to be viewed in context and in light of the officer’s explanation. His initial denial was not necessarily determinative (in an adverse way) of his general credibility or reliability.
- [33]It would have been better had the learned magistrate dealt with these specific matters relating to consistency or otherwise of the police evidence with the CCTV, audio and photographic evidence in his reasons relating to findings as to credibility and reliability. None of the points raised by the appellant in these respects however, necessarily required a rejection of the credibility or reliability of the witnesses’ evidence which was relied upon as establishing the elements of the offences.
- [34]In addition to the respects in which it was said that the witnesses had been ‘caught out’ by the CCTV footage, the audio recording, and photograph, there were respects in which there was an element of inconsistency in the testimony of the police officers. In this respect, there is some tension between the fact of a level of inconsistency, on the one hand, and the appellant’s allegation of collusion on the other.
- [35]Inconsistencies are relevant and should be considered in coming to a conclusion about the credibility and reliability of the testimony of relevant witnesses. The learned magistrate expressly did just that in relation to some areas of inconsistency. There was however, at least 1 area of inconsistency which was not resolved by his Honour. That related to the way in which the ‘pressure point technique’ was applied. It has already been noted that those officers who testified as to that technique rejected the appellant’s assertion that a key was used. There was some inconsistency otherwise. In particular, officer Kitching says that he used the thumb fingernail and caused the appellant to bleed, whilst officer Curtis testified that Kitching used his knuckle and she did not see the appellant bleed. Officer Mosey said that the thumb was used.
- [36]It has already been observed that the photographic evidence of the injury to the appellant’s neck suggests that something further or other than a knuckle was used, but that did not necessarily contradict the evidence of officer Kitching that he used the fingernail of his thumb. The degree of inconsistency in this respect was not necessarily decisive of the officers’ credibility and reliability in relation to the elements of the offences. The learned magistrate referred to the different versions. That he did not go on to resolve the conflict suggests that he did not view that degree of inconsistency as problematic in terms of the credibility and reliability of the evidence about the elements in the offences. That view was open.
- [37]The appellant also pointed to an alleged inconsistency in officer Kitching’s evidence as to whether handcuffs had been applied before or after the “pressure point technique”. At page 36 of the transcript, Officer Kitching said the technique was applied to provide “pain compliance, so I could place handcuffs on you”. The appellant saw this as inconsistent with what he said at page 33 that the appellant was ‘restrained’ at the time the technique was applied. There is no necessary inconsistency however, because the ‘restraint’ to which reference was made at page 33 was not necessarily restraint by handcuffs. Indeed the following passage at page 36 (to which the appellant referred) suggests as much:
“--- That’s not correct, Mr Burke. You were restrained at the time and you were resisting restraint and to provide you with some pain compliance, so I could place handcuffs on you, is the reason why there was a connection between my thumb and the side of your neck.”
Similarly, in his evidence in chief, officer Kitching having spoken of using a ‘come along hold’ to restrain the appellant prior to the spit, said that after the spit:
“I can’t remember exactly what that was but – a couple of swear words and I then tried to restrain him even further to take it from the come-along hold to try and restrain his wrist so I can get handcuffs on him.”
- [38]The appellant also referred to what he saw as inconsistencies in the police evidence about what he calls the “first assault”. The appellant testified that officer Kitching, at the outset, “continued to shove me in the front of the chest… I was going to leave, but he got aggressive and brutal… as I was heading off he’s pushed me into the back of the police car and shoved me head down, face first, onto the back of the boot, and that hurt”. Earlier in the course of cross examining officer Kitching, the appellant put to him that he had delivered a shove, which officer Kitching denied. Officer Kitching’s evidence was that he first intervened by stepping in front of the appellant as he has gone to come back towards the hotel. The officer then began to speak with the appellant, telling him to leave. At that point, the appellant challenged Kitching’s credentials (he being in plain clothes). There was a conversation about that following which the appellant moved away and then turned back again at which time officer Kitching arrested and attempted to restrain him.
- [39]The appellant points to what he says are inconsistencies between that version and other police testimony. Officer Curtis’ evidence was to the effect that officer Kitching had approached the appellant as he was walking to and from the stairs, arguing with the security staff. She saw officer Kitching having a conversation with the appellant and heard him say that the appellant should leave or would be arrested, before the appellant aggressively questioned Kitching’s credentials. Ultimately the appellant started to walk towards the stairs again, which is when officer Kitching arrested and restrained him. That is consistent with officer Kitching’s version of events. Her evidence however, was also to the effect that when officer Kitching was asking the appellant to leave, he pushed him with the open palms of his hands in the direction to leave. That level of inconsistency is relevant, but not necessarily determinative of general credibility and reliability. Further, even if such a push was used, it did not render the subsequent arrest unlawful or justify or excuse the appellant’s reaction which founded the charges.
- [40]The appellant also pointed to the evidence of officer Danz, that officer Kitching went “hands-on” just after giving the appellant a verbal warning to move on. That might however, be referring to the arrest and restraint. Officer Danz’s testimony was that, “plain-clothes Senior Constable Michael Kitching asked him to leave or to move on, and then there was a heated exchange from that. I don’t recall exactly what was said between both the officer and the defendant. And then – yes, Michael Kitching went hands-on, then I think another police officer has grabbed the other arm because he was struggling a little bit with the hold.”
- [41]Any inconsistencies or alleged errors in the police evidence need to be considered in the context of the evidence as a whole. It should be noted that there was a considerable body of evidence from multiple police officers to the following effect:
i)The appellant was disorderly;[1]
ii)The appellant was escorted, by officer Kitching (using a come-along hold) to the rear of the police vehicle;
iii)The appellant obstructed the police as he was arrested and restrained;
iv)The appellant spat at officer Kitching;
v)The ‘pressure point’ technique, of which the appellant complains, was applied after the spit.
- [42]It was open to the Magistrate to rely on that body of evidence in convicting the appellant, notwithstanding a degree of error/inconsistency in the alleged evidence otherwise. I am not persuaded to reach a different conclusion.
- [43]The appellant had concerns not just about the evidence which was put before the court, but also what was not before the court. The evidence relied upon by the prosecution was oral testimony of the police officers. None of the officers had activated their audio recording devices during the relevant event. The appellant questioned officers Kitching and Curtis about that. They gave answers which, whilst not satisfying the appellant, were plausible. The state of the evidence did not justify, far less compel, a finding either that there was a dishonourable reason for no recording being made or that relevant recordings were supressed in order to protect the police or to obtain a conviction.
- [44]The appellant was also concerned that, at trial, the hotel staff were not called. Officer Kitching explained that the staff had refused to give statements and were not subpoenaed because all of the conduct said to give rise to the charges occurred after the appellant emerged from inside the Hotel. The security staff might conceivably have given evidence about their actions in ejecting the appellant and the appellant’s alleged abusive behaviour towards them, but the explanation given by Kitching was plausible and the failure to call the hotel staff, including the security officers, did not render the trial unfair, nor call for an adverse inference against the prosecution.
- [45]Unfortunately the events in the car park, where the appellant is alleged to have been disorderly, obstructive and to have spat at officer Kitching before having the “pressure point” tactic applied to him, were not the subject of any CCTV footage presented at trial. That was a further matter of concern to the appellant, particularly as officer Kitching had, in his conversation with the appellant at the Watchhouse, referred to the existence of CCTV footage. Officer Kitching gave evidence that, on the night in question, he assumed that there was CCTV footage of the incident. His evidence was however, that when he returned to the hotel to obtain the footage, he found that there was footage of what occurred in the hotel, but not of the relevant events which occurred outside.
- [46]Further, it had not occurred to officer Kitching to check to see whether the CCTV cameras at the nearby bottleshop had picked up activity in the carpark of the hotel. He accepted that he could have been more diligent in that respect, but that does not mean that his evidence, as to what occurred on the evening, ought to have been rejected or an adverse inference ought to have been drawn or that that the appellant did not receive a fair trial.
- [47]In the course of cross-examination officer Kitching said that he did not retrieve CCTV footage from the hospital (which the appellant wanted in order to refute evidence that he was abusive there) because no offence was alleged to have taken place. That is understandable. The appellant was concerned about descriptions of him at the hospital and the learned magistrate indicated, in the course of the trial, that he would ignore any reference to the appellants conduct at the hospital.
- [48]Officer Kitching’s explanations for not marshalling further evidence in these respects, were plausible and did not justify, far less compel, jumping to a conclusion that relevant evidence, adverse to the prosecution, had either been suppressed or destroyed.
- [49]A further matter of concern to the appellant was the audio recording of the discussion between officer Kitching and the appellant at the Watchhouse. The appellant asserts that, contrary to the evidence of officer Kitching, the recording admitted into evidence was not a complete and accurate recording. He asserts that the prosecution ought to have produced the full ‘cell audio’ (ie from a recording device in the cell), rather than just from officer Kitching’s recording device. There is however, no evidence that such a recording exists, far less that it was suppressed by the prosecution.
- [50]The fact that the evidence of the police officers on the core matters of relevance was not corroborated by contemporaneous audio or CCTV footage or by the evidence of independent (ie non-police officer) eyewitnesses is relevant. In those circumstances, the learned magistrate was required carefully assess the testimony of the officers to determine whether it was sufficiently credible and reliable in order to establish the guilt of the appellant beyond reasonable doubt, notwithstanding the lack of such corroboration and notwithstanding the appellant’s competing version of events. That does not mean however, that the testimony of the police officers could not be accepted or that it was insufficient to ground the convictions.
- [51]The appellant complained that he did not get to use medial evidence at trial. In the course of cross-examining officer Kitching about the extent of the injury caused by the ‘pressure point technique’, the appellant wanted to rely upon a report from a doctor who was not available to be called to give evidence on that day. The prosecution understandably objected. The appellant said that he had arranged for the doctor to be present on the date for which the trial had first been set down for hearing, but that the doctor was not available for the later date to which the trial was moved. The appellant viewed the movement of the trial date as a means by which he was disadvantaged.
- [52]The evidence did not establish that there was anything sinister about the trial date being moved. Indeed, when that was raised during the trial, it was established that the adjournment to 26 November 2014 was a consequence of arrangements concerning the G20. The appellant had not sought a further adjournment prior to the adjourned hearing date on the basis of the unavailability of a witness. His explanation for not doing so was that he thought (wrongly) that he could use hearsay. The learned magistrate, at trial, specifically asked whether the defendant was then seeking an adjournment. The appellant replied ‘no’ and the trial continued. The appellant can hardly now complain that the trial proceeded in circumstances where he elected not to seek an adjournment, either before or during the trial, in order to call the medical evidence.
- [53]The appellant sought leave to adduce further evidence on the hearing of the appeal. In particular he sought to rely on the contents of a report from the ambulance service. That report contains a “case description” which, relevantly, including the following:
“QPS officer stated PT was being arrested and had tried to spit on another officer, he was then positioned bent over boot of Police car where he was seen to have a generalised seizure – lasting approx. two mins with eyes twitching…”
- [54]The appellant wished to rely on an inconsistency between the description of him having the seizure when he was bent over the boot of the Police car and Police evidence that the seizure occurred later. The fact that the incident was described in that way in the ambulance report does not, of course, necessarily establish that the Police evidence lacked credibility or reliability. The description is obviously a very brief summary of what an ambulance officer remembered being told at the time. That recollection might itself be inaccurate or the way in which it was expressed in the report might be inaccurate.
- [55]The inconsistency to which the appellant wishes to point was not put to any of the witnesses at trial. That is because the report was only obtained by the appellant after his conviction, as a result of an application (under freedom of information legislation), first made by him after his conviction. It has not been established that he could not have obtained the document, with reasonable diligence, prior to the trial. His only explanation for not doing so was that “I didn’t think I would be found guilty”. In the circumstances I am not prepared to grant leave to adduce that further evidence.
- [56]The appellant also complained that he ought to have had access to the disciplinary records of officer Kitching, essentially to prove that Kitching is a thug. Officer Kitching was cross-examined about his disciplinary record at trial. He acknowledged that complaints had been made against him over the years, but he could not say how many complaints had been made. He was however, able to say that, to his knowledge, there had been no complaints against him which alleged the use of excessive force. The appellant complains that he did not have the disciplinary records to test that, but there was no obligation on the prosecution to have obtained and provided those records to the appellant in advance of the trial. The appellant had not subpoenaed the documents. When this was pointed out to him at the trial he did not seek any adjournment. He continued with his cross-examination. The trial did not miscarry in this respect.
- [57]The appellant also sought to place before the Court, on the appeal, a brief medical report from a psychiatrist, to the effect that the appellant suffers for a generalised anxiety disorder and a major depressive disorder and was on high doses of medication at the time he conducted his defence at trial. The medical report does not suggest any particular knowledge, on the part of the doctor, as to the course of the trial, save that he was told, by the appellant, that it lasted more than 7 hours. On this basis the doctor opined that it may have been that the appellant’s levels of anxiety and difficulties with concentration may have affected adversely his ability to fully organise his defence and cross-examination witnesses and may also have had a bearing on his ability to have previously organised the various materials necessary for his defence.
- [58]A review of the transcript does not justify a conclusion that the appellant was unable to put his case and to cross-examine the witnesses or to otherwise conduct his defence. There is nothing which establishes any particular respect in which his preparation for trial was hampered by his condition. There were a number of breaks throughout the day of the hearing. At one point, the learned magistrate asked if the appellant needed some water (when he complained of some dizziness), but the appellant insisted he was ‘right’. The appellant did not seek an adjournment of the trial on the basis that he was unfit to proceed. No miscarriage of justice in this respect has been established.
- [59]The appellant was critical of the way the learned magistrate conducted the case. One of those complaints was that the learned magistrate, by what he said and the way in which he said it, rushed the parties, inappropriately intimidated the appellant from pursuing a relevant line of questioning and exhibited undue interest in finishing of the case within the day.
- [60]The transcript does not reveal the tone of voice used by the learned magistrate. An examination of what was said does not establish that the trial miscarried in this respect. The efficient conduct of a case is, of course, a proper matter of concern for all judicial officers. This will, at times, call for some discipline to be imposed. There were certainly times, during the trial, when the learned magistrate expressed a level of concern, but the cause of that concern was explained and was not limited to criticism of the appellant. For example, at p 1-48 of the transcript the learned magistrate said that not only had the appellant had been making inappropriate comments on answers given in cross examination (rather than limiting himself to asking proper questions), but also that officer Kitching could be more concise in his answers if he used less “police speak”.
- [61]Later, the leanred magistrate, in a passage to which the appellant takes particular exception, told the appellant to “move on” and that “we haven’t got all day. I understand there are six more witnesses to go through. At this rate we will be here in three weeks.” At that stage his Honour was obviously somewhat frustrated. He could have expressed himself in a more measured way, but was obviously provoked by repetition and commentary, notwithstanding what he had earlier said.
- [62]Fairly viewed, the learned magistrate was simply curtailing inappropriate repetition and commentary. He was not exhibiting bias against the appellant or preventing the appellant from pursuing legitimate lines of cross-examination by asking relevant questions in an appropriate way. The trial did not miscarry in this regard.
- [63]The appellant complained that, in the reasons for his decision, the learned magistrate said:
“If one has a complaint about the behaviour of Police officers, the course that one follows is not to resist on the spot, is not to fight with them, is not to spit at them, but rather in due course make a complaint to the Police standards committee.”
- [64]Insofar as this might suggest that a person must be passive and may not defend themselves in the face of an unlawful assault from a Police officer then it is wrong. That does not however, affect the convictions in this case since, on the findings made by the learned magistrate, the appellants conduct in obstructing the Police and ultimately in spitting at Officer Kitching, was not in self-defence and, in particular, was not responsive to the ‘pressure point technique’ which was only used after the actions of the appellant which found the relevant charges.
- [65]That does not mean that his Honour endorsed the use of the ‘pressure point technique’ or the way in which it was effected. The use of such a technique has obvious risks. Depending upon the facts, the use of the technique and/or the way it was effected might well be legitimate matters of concern and of complaint. His Honour’s role was however, the determination of the charges against the appellant. On the sequence of events as found by his Honour, the legitimacy or otherwise of the ‘pressure point technique’ was not relevant.
- [66]The appellant complains that the learned Magistrate showed bias in allowing ‘hypotheticals’ to be used by the prosecution, but not by the appellant. He referred, in this respect, to pages 66 and 112 of the transcript. At page 66 of the transcript the prosecutor took objection to a question on the basis that the appellant was putting a hypothetical. The learned magistrate however, ruled against the prosecution and allowed the question. The appellant’s complaint is misplaced. At page 112 of the transcript the prosecutor was not putting hypothetical questions to a witness. He simply submitted that his Honour surely could be satisfied that the police officers were acting in the performance of their duty even if he found that the appellant had not, in fact, committed an offence at the time he was arrested and restrained.
- [67]The learned magistrate spent some time, at the commencement of the trial, explaining the trial procedure to the appellant. The appellant complains however, that the learned magistrate did not instruct the appellant as to the elements of the offences. The appellant had been charged and had entered pleas. The case against the appellant was, of course, opened. The learned magistrate was not required to give the appellant legal advice. The appellant has not established any respect in which he was ignorant of relevant matters which prejudiced the presentation of his case. The trial did not miscarry on this basis.
- [68]An examination of the transcript does not reveal a proper basis for otherwise concluding the learned magistrate was biased or conducted the trial unfairly. Similarly it does not reveal misconduct on the part of the prosecutor.
- [69]The appellant complained, in the course of the trial, that the police witnesses spoke to each other over an adjournment. It was not established however, that they spoke inappropriately about the evidence. The appellant was concerned, during the trial, that officer Kitching sat in the Court and communicated with the prosecutor after he had completed his evidence, but there is nothing necessarily untoward about that.
- [70]The appellant also complained that officer Curtis, in her testimony, made reference to officer Kitching by his nickname. That does not establish collusion or anything else which would justify interfering with the convictions.
- [71]The appellant’s complaint of being denied a trial by jury, ignores s 552A of the Criminal Code which gave the prosecution the election to proceed to a summary hearing.
- [72]The appellant’s complaint that the assault was not serious cannot stand with s 340 of the Criminal Code 1899 and with the evidence, accepted by the magistrate, to the effect that the assault was on a Police officer in the execution of his duty.
- [73]The appeal against convictions is dismissed.
Sentence
- [74]The appeal against sentence focuses upon the term of imprisonment imposed for the serious assault. The learned magistrate was referred to the case of R v King [2008] QCA 1 where Court of Appeal reduced a sentence of six months imprisonment suspended after three months for an operational period of two years to one of four months imprisonment suspended after two months for an operational period of two years. The facts of R v King were, as the learned magistrate acknowledged and the respondent concedes, somewhat more serious, involving spitting blood into the face and mouth of Police. Here the officer had a robust attitude. He simply wiped the spit off and was apparently unconcerned about any possible further consequences. On the other hand, King had proceeded by way of early plea of guilty and had given a written apology, with an assurance of no communicable disease. He also had a previously unblemished character and was in a state of depression at the time.
- [75]The assault in this case was less serious, but the appellant, who was older, proceeded to trial, showed no remorse and had some criminal history. The authority of King also must be viewed in the context of increase in the maximum penalty, from 7 to 14 years, as a consequence of the 2012 amendment.[2]
- [76]There was no evidence placed before the learned magistrate that he was, at the relevant time, suffering mental health issues in the same way as in King. I have already referred to the psychiatrist report which the appellant wishes to rely upon on the hearing of the appeal. It was not established that the report is one that could not have been obtained by the appellant and placed before the learned magistrate at the relevant time. I would not be prepared to grant leave to adduce that further evidence at this stage. In any event, the report goes to the difficulties which the appellant may have had in preparing for and conducting his case at trial rather than to the effect which his conditions may have had upon him at the time of the offences or the extent to which they may exacerbate the effect of any sentence on him.
- [77]The head sentence of six months was within range and the effect of that sentence was substantially mitigated by an early suspension after only 29 days. In the circumstances the sentence was not manifestly excessive.
- [78]The appeal against sentences is dismissed.
Footnotes
[1] The appellant relies on the fact that officer Mosey says he did not hear the conversation between the appellant and Kitching at a distance of 20-30 metres, but Mosey also gave evidence of the appellant yelling and waving his arms around prior to that conversation – and evidence of disorderly conduct was also given by other officers.
[2] See Ross v Commissioner of Police [2015] QDC 315.