Van Hese v Brown[2015] QDC 92

DISTRICT COURT OF QUEENSLAND

1. [1]
   Drew Van Hese appeals against his conviction of one count assault occasioning bodily harm in company and against the sentence imposed upon conviction, 9 months imprisonment suspended after 4 months.

2. [2]
   The grounds of appeal against conviction are that the learned magistrate erred in:

1. Allowing the prosecution to re-open its case after it had closed and part way through an application that there was no case to answer;
2. Refusing to accede to the defence submission that there was no case to answer.

3. [3]
   The appellant was co-accused with two others. The incident giving rise to the charge occurred at about 4:28am on 28 February 2013 in the Albert Street mall just across Adelaide Street from King George square. The incident was largely caught on video. It is unnecessary to set out more detail because the only issue relevant to the points taken on appeal is the identity of the appellant as one of the attackers.

No-case?

4. [4]
   There is no doubt there was an attack by three persons on the complainant. I have been able to watch the video recording of the incident and so am in a similar position to the magistrate. The evidence of the complainant and the other non-police witnesses does not include evidence of the identity of the appellant as one of the attackers.

5. [5]
   On this point, the prosecution relied on the evidence of Constable Brown. His evidence was that he was on duty at the Brisbane City Police Beat on Adelaide Street when, at 4.15am, he was alerted to the City Safe monitors. He described what he saw - ‘…a male person without a shirt strike another male person. That was followed by an attack by two further people.’^[1]One of these two wore a black shirt. The other wore a lighter coloured shirt, possibly grey or light blue. He described them as Caucasian males in their early to mid 20s. The person in the black shirt struck the complainant, who fell to the ground. The wearer of the ‘grey or possibly light blue shirt’ kicked the person who was on the ground. The officer went to the location being monitored, which was within 50 metres of the Police Beat, saw the complainant lying face down on the ground and saw ‘the male person, who I earlier described as wearing the grey or lighter coloured shirt, chasing another male and attempting to assault him’.^[2]Brown pursued that person, restrained him and took him to the ground. With the help of officer Dufty, he arrested the person, who identified himself as Drew Van Hese.^[3]

6. [6]
   Constable Brown also gave evidence that later, ‘the three defendants’ were transported to the Brisbane City station. The three were heavily intoxicated, by his observations.^[4]The three defendants were released that morning after some discussion about whether they would return to be interviewed. The three defendants were again at the Brisbane City Police station at about 10 pm, no longer intoxicated, and each declined to be interviewed.^[5]

7. [7]
   Constable Brown was not cross examined.

8. [8]
   Constable Dufty gave evidence consistent with Brown’s evidence. He was not cross examined.

9. [9]
   The prosecutor did not show the video to officers Brown and Dufty.

10. [10]
    The video confirms what Constable Brown said in evidence. Among other things, one can see a person, whose shirt is lighter coloured than the black shirt of one of the other fighters, kick the fallen man in or near the head. Without any break in the recording, that person is then seen to pursue another person but is intercepted by a police officer who, with the help of another police officer, apprehends the person in the lighter coloured shirt.

11. [11]
    In my view, the inference is open, perhaps irresistibly, that one is watching the apprehension of the appellant. Only one person kicks the fallen man and that person is then apprehended while attempting to fight another person. The apprehension is by one officer with the aid of another. The concurrence of Brown’s evidence, supported by Dufty’s, with what one can see on the video, is neat.

12. [12]
    The case against the appellant was based partly on direct evidence – what the witnesses, particularly Brown and Dufty, said they saw and did and what the video shows – and partly circumstantial – whether the inference could be drawn that the persons seen on the video were, relevantly, the appellant, Brown and Dufty.

13. [13]
    If this was, therefore, a substantially circumstantial case of identification, the question upon a no-case submission would be whether the evidence, if accepted, was capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt^[6]and thus was capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable^[7].

14. [14]
    Senior Counsel for the appellant, in the written outline, submits,

46.Without the evidence of Brown identifying himself and the appellant on the CCTV footage, it merely depicts an unknown man kicking the complainant and subsequently being arrested by first one and then a second police unidentified officer. Whilst that observed sequence of events is entirely consistent with the evidence of Brown and Dufty, there were two other police at the scene who were not called to give evidence. The video footage could have conceivably been of one or both of them.

47.Further, although Brown undoubtedly arrested the appellant. His evidence was that the man that he saw on the CCTV kicking the complainant was wearing a “possibly light grey or light blue t-shirt”, whereas the man depicted in the footage is wearing a green t-shirt.

15. [15]
    So, during argument, senior counsel for the appellant submitted,

“…. because we haven’t heard from all of the police involved – and there were, it seems, at least two others who were engaged in other activity on the other side of the mall – the possibility can’t be excluded that, in fact, it was somebody else, and, in particular, I add that the person that Brown says he saw and he arrested was wearing a light-coloured shirt”.

16. [16]
    The difficulty with the appellant’s argument is that the video shows the whole of the attack on the complainant. There is only one kick and the video shows the kicker’s apprehension. For the proposition to be a reasonable alternative hypothesis the magistrate would have to not accept Brown’s evidence that he apprehended the kicker. Brown only arrested one person.^[8]No reason has been given to doubt Brown’s evidence.

17. [17]
    No doubt is cast on Brown’s evidence by his description of the shirt worn by the kicker. Two attackers wore shirts. One was black and the evidence accounts for that person as the co-accused Creedon.^[9]The shirt worn by the kicker appears, on the video exhibited, to be olive green. It is, on any view, lighter in colour than the black shirt.

18. [18]
    The appellant was charged under the name that Brown said the person he arrested gave him - Drew Van Hese. The appellant appeared by that name in court represented by a solicitor.

19. [19]
    What the police officer was not asked was – “Is the person you arrested the accused Van Hese in the dock?” The only other possibility being that the person in the dock was not the person the officer arrested and charged by that name but was another person of the same name who engaged a solicitor and came to court to answer a charge he could not have known anything about, it is not surprising the prosecutor did not ask the question. In any case, that possibility is contrary to the statement of the appellant’s solicitor before the learned magistrate, “I can’t submit he wasn’t at least in the proximity, because he was arrested in the proximity, after the incident took place.”^[10]It is not surprising that the prosecution, although made aware by the appellant’s solicitor that all matters were in issue, neglected to ask the question or – if it proved the point – show the officer the video.

20. [20]
    There was not ‘no case’ against the appellant on the ground that he was not identified as an offender. The learned magistrate did not err by refusing to accede to the no-case submission.

The re-opening

21. [21]
    The essence of the no-case submission made to the learned magistrate was that the (apparently deliberate) failure by the prosecution to have Constable Brown look at the video while giving evidence and identify himself on it arresting the appellant left a gap in the case and it was not for the learned magistrate ‘to fill that in.’^[11]

22. [22]
    The prosecutor told the learned magistrate it was by oversight and not for any tactical reason that he did not play the video to Constable Brown.^[12]He applied to re-open the case.

23. [23]
    The learned magistrate heard submissions and gave reasons for allowing the re-opening. His honour reviewed the evidence briefly and then said, “What the prosecutor hasn’t done is ask of Constable Brown to look at the CCTV footage and ask him whether or not that was him who performed the arrest on the person, and whether or not that’s the person Van Hese, etcetera.”^[13]After quoting at length from Youngberry v Heatherington; ex parte Heatherington [1977] Qd.R. 15 and McDonald v Camerotto (1984) 36 SASR 66, the learned magistrate:

• referred to and accepted the defence submission that ‘this’ was no technical matter;
• noted it may have been inadvertence by the prosecutor not to put the video to Brown;
• said ‘this’, presumably the charge the appellant faced, was a serious matter;
• considered there was no likely prejudice to the defence because Brown was available for cross-examination;
• said he did not know what evidence would be led but that the Prosecution should be able to re-open to ‘put the matter to bed one way or another.^[14]

24. [24]
    Despite the last point, the learned magistrate may be taken to have had a clear expectation of the evidence sought to be led – I have referred to his honour setting out the perceived gap.

25. [25]
    The learned magistrate, in his reasons for allowing the re-opening, did not mention what he had been told during submissions – that before the trial, when ask by the prosecution whether identification would be admitted, the Defence made it plain that all matters were in issue. It is not likely the learned magistrate did not take that into account. It may be why his honour said only that he had been told there had been inadvertence on the part of the prosecutor, not that there had in fact been such inadvertence.

26. [26]
    Upon the re-opening, Brown was shown the video and identified himself as the officer arresting the kicker who he said identified himself as the appellant.^[15]

27. [27]
    Various guidelines or relevant considerations may be gleaned from the cases. Primarily, the question is whether an injustice would be occasioned by allowing the case for the Prosecution to be re-opened.^[16]The discretion to allow a Prosecution re-opening should be exercised sparingly. It is incumbent on the Prosecution to lead all evidence to be relied on before closing its case. DM Cambell J said, in Youngberry:

‘A departure from the general principle should only be sanctioned in special circumstances; for example, “where some explanation is needed or where some formal matter has been neglected or some merely technical objection is taken”: Tierney v O'Connor [1906] QWN 50.’

28. [28]
    In McDonald v Camerotto (1984) 36 SASR 66, Cox J identified as relevant considerations the nature of the evidence sought to be led, whether it relates to a topic in real dispute, the reasons for the prosecutor’s failure to tender it earlier, the stage of the trial, possible prejudice to the defence, the danger of encouraging poor prosecuting practices by too easily permitting re-opening. Although I recount these I do not necessarily accept or adopt all as relevant considerations. Cox J said later in the same judgment, “Of course, these criteria can never be completely satisfactory.”^[17]

29. [29]
    In a joint judgment in R v CDR [1996] 1 Qd R 183, Pincus JA, de Jersey J and Ambrose J said, at 185,

‘An application by the Crown to re-open can more readily be accepted where … the purpose is not to rebut evidence called on behalf of the defence, but to fill a gap in the Crown evidence which has been noticed.’

30. [30]
    The court also considered relevant whether the evidence sought to be led was formal, ‘non-controversial’ or ‘non-contentious’ in the sense that the evidence itself was not likely to be in contest, referring to R v Brown [1985] 2 Qd R 126.

31. [31]
    In Martelli v Police [2007] SASC 21, it was held the magistrate erred in allowing a re-opening where the evidence then led included the tender of a document that had not been previously provided to the defence without which the prosecution could not prove its case and which effected a reversal of the onus of proof, and involved the re-call of two witnesses and the calling of a new witness.

32. [32]
    The appellant attacks the magistrate’s exercise of discretion as follows:

1. He found that the error was not in relation to a merely technical issue;
2. He found that the charge was serious;
3. He did not know, and did not ask what evidence it was that the prosecution intended to lead if granted leave;
4. He did not identify any factor that tended in favour of the exercise of discretion beyond a desire to “put the matter to bed one way or another”; and
5. He failed to have regard to the fact that:
   1. The issue of identity was central to the prosecution case; and
   2. The prosecution had, before the trial, been put squarely on notice that identity was in issue.

33. [33]
    For the reasons I have already set out, although the issue of identity was central, the evidence permitted to be led upon the re-opening was not central to proof of that issue. In my view, it was marginal if of any effect at all. The seriousness of the charge, in my opinion, tended towards the exercise of discretion in favour of re-opening. I have already set out why I think the magistrate had a clear expectation of the evidence to be led. His honour’s statement that he did not know what the evidence would be was only a true reflection of the fact that it had not been expressly opened to him. I am not satisfied the discretion miscarried on the basis that the magistrate did not apprehend the nature of the evidence sought to be adduced upon the re-opening. There was no relevant prejudice to the defence in the exercise of the discretion to allow the re-opening. The evidence led was not new. No-one was surprised by it. It was non-contentious. Apparently all parties expected the officers to be shown the video. The only surprise was that that did not happen. It is not relevantly prejudicial for the prosecution to lead relevant, admissible, probative evidence that the defence anticipated would be led in the first place.

34. [34]
    It is clear the learned magistrate was aware of the relevant considerations. It has not been shown that his honour erred in their application. I am not persuaded the learned magistrate erred in the exercise of discretion to allow the re-opening.

35. [35]
    The appeal against conviction must be dismissed.

Sentence appeal

36. [36]
    The appellant submits the sentence is manifestly excessive and also that the learned Magistrate erred in making certain findings of fact. The sentence imposed was nine months imprisonment with parole release after four months.^[18]The appellant has not served any of this time - the learned Magistrate granted bail.

37. [37]
    Before the learned Magistrate the prosecutor referred to R v Lude; R v Love [2007] QCA 319 and relevant provisions of the Penalties and Sentences Act 1992. He told the learned Magistrate that the complainant was left bloodied and unconscious; the complainant recalls waking up in the ambulance and trying to pull something out of his mouth; that was one of his teeth; the complainant suffered serious dental damage which, according to the report of a dental surgeon, would likely require crown work to be replaced at least three times within a normal life span. The cost of initial treatment would be a little more than $14,000. The cost of treatment over his lifetime could be between $40,000 and $50,000 in today’s costing.

38. [38]
    The appellant has one previous conviction. On 21 July 2012 at Rockhampton he committed the offence of public nuisance. This occurred at night in what was described as the nightclub precinct in Rockhampton. The prosecutor told the learned Magistrate the appellant had been involved in a verbal argument with two women. He was screaming obscenities. The police tried to calm him down but he was eventually arrested.

39. [39]
    The appellant’s solicitor tendered references that form part of the record and I have read them. They attest to the appellant being a good and reliable friend and a valued employee. One referee refers to the appellant’s involvement with sport - he continued to play rugby league and touch football after finishing school and has coached young teams. He draws great pride in the role of coach and in that regard the referee considers the appellant shows a great deal of maturity for his age.

40. [40]
    The learned Magistrate was also told the appellant is now 23 years old and in a stable relationship. He left school during grade 10 but has since become qualified as a carpenter and is in permanent employment. He has been placed in positions of responsibility over other employees. The appellant’s solicitor submitted that “this particular matter has been a salutary experience, to say the least, and your Honour can see that expressed as a common theme throughout the references”. The solicitor submitted that the assault was not a completely unprovoked event, it was common ground that there had been an earlier incident although the appellant was not involved in it.

41. [41]
    At the hearing of the appeal I was told, without objection, that the appellant has completed more training, is employed in a supervisory position and has bought a house and has a mortgage.

42. [42]
    The learned Magistrate sentenced on the basis that after the complainant had been hit in the head by another he went to the ground and was lying motionless when the appellant kicked him. So much as not controversial. His Honour continued,

“in my view you kicked him in the head. In my view, you caused some of the damage to his face. It is more probable than not that you caused the damage to the teeth. The way I see the matter has unfolded that when he fell to the ground he has hit his head – that’s what caused the gash to the forehead and your blunt kick caused the damage to the mouth. It may have been the other way but it seems to me on looking at all the evidence that that’s what has more probably happened.”^[19]

43. [43]
    I do not understand any other of the Magistrate’s comments to be challenged as demonstrating error. His Honour described the appellant’s actions as a cowardly kick to a man when he was down. His Honour noted then that the appellant chased another man before he was apprehended by police. The learned Magistrate said that such street violence has to be stopped and the exercise of his Honour’s discretion required that the appellant serve some time in actual custody. His Honour referred in some detail to the decision of Lude and Love. Correctly, in my respectful opinion, his Honour considered the appellant had shown no remorse.

44. [44]
    I have looked many times at the video recording of the incident. I respectfully disagree with the learned Magistrate that it may be concluded on the balance of probabilities that the appellant kicked the complainant to the head and caused the dental injuries. But it is beyond doubt that after the complainant fell, as if unconscious, onto his face and lay motionless, the appellant kicked him if not in the head then high up in the body with sufficient force to shake the whole body. It was not a glancing blow. It was every bit a cowardly violent act that the learned Magistrate described. The appellant is jointly responsible for all of the complainant’s injuries. Nonetheless, I am satisfied the learned Magistrate made such an error as to enliven the fresh exercise of sentencing discretion. In doing so, I reach a different conclusion.

45. [45]
    The appellant was entitled to have his trial and the sentence is not increased on that account. But the appellant is without the mitigating benefit of a submission on his behalf that he accepted responsibility for what he did or that he was willing to facilitate the course of justice or that he was remorseful.

46. [46]
    The appellant deliberately joined in a vicious attack on the complainant who was left with a serious example of bodily harm. It was, however, a very quick event involving one effective punch and the appellant’s single kick. He is still a young man. He has only one prior conviction, is in stable, good employment and is well supported by referees.

47. [47]
    In my opinion, the appropriate disposition is a sentence of 12 months’ imprisonment to be served in the community under an intensive correction order. Such an order would punish the appellant, deter him and others, ensure his close supervision for the period of the order and promote his rehabilitation. Separately, I would order compensation. I have in mind the amount of $5000.

48. [48]
    An intensive correction order would require the appellant’s agreement. Although I have been told the appellant is well employed, I have no information about how long he would require to pay compensation. For these reasons and because the order I have in mind might be considered a greater punishment than that imposed by the learned magistrate, I will hear further submissions before making any orders.