Nolan v The Commissioner of Police
[2016] QDC 9
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- Unreported Judgment
- Nolan v The Commissioner of Police[2016] QDC 9
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Nolan v The Commissioner of Police[2016] QDC 9
Nolan v The Commissioner of Police[2016] QDC 9
DISTRICT COURT OF QUEENSLAND
CITATION: | Nolan v The Commissioner of Police [2016] QDC 9 |
PARTIES: | MARIA RUTE DE OLIVEIRA NOLAN (Appellant) v THE COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | BD 3642/15 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 12 February 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 February 2016 |
JUDGE: | Searles DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was convicted of common assault in the Magistrates Court under s 355 of the Criminal Code Act 1899 – where the appellant appealed the decision of the primary judge by way of rehearing under s 222 of the Justices Act 1886 – where the primary judge made a finding that the Appellant’s memory of the incident may have been affected by a panic attack suffered after the incident – whether the primary judge erred in finding the Appellant’s panic attack adversely affected her reliability as a witness CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was convicted of common assault in the Magistrates Court under s 355 of the Criminal Code Act 1899 – where the appellant appealed the decision of the primary judge by way of rehearing under s 222 of the Justices Act 1886 – where the primary judge made a finding that anxiety prompted the Appellant’s behaviour – where there was no evidence to support a finding that the Appellant’s anxiety predisposed her to violence – where the primary judge accepted inconsistent evidence adverse to the Appellant’s position – whether the primary judge failed to properly consider the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTBALE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of common assault in the Magistrates Court under s 355 of the Criminal Code Act 1899 – where the appellant appealed the decision of the primary judge by way of rehearing under s 222 of the Justices Act 1886 – where the primary judge found the Appellant to be a credible but unreliable witness – where the Appellant argues that the Crown has failed to prove the case beyond a reasonable doubt – where the Appellant argues that she was both a reliable and credible witness– whether the verdict was unreasonable Justices Act 1886, s 222 Holland & Anor v Jones (1917) 23 CLR 149, considered R v Armstrong [2006] QCA 158, followed Teelow v Commissioner of Police [2009] QCA 84, followed |
COUNSEL: | Appellant: IA Munsie Respondent: JM Malouf (sol) |
SOLICITORS: | Appellant: Burchill and Horsey Lawyers Respondent: Director of Public Prosecutions (Queensland) |
Appeal
- [1]The Appellant appeals her conviction after trial in the Magistrates Court on 17 August 2015 pursuant to s 222 of the Justices Act 1886. On that day she was convicted of common assault in breach of s 355 of the Criminal Code Act 1899 and was sentenced:
- to be of good behaviour for a period of 12 months with a recognisance of $500; and
- to pay compensation in the sum of $300 to the Complainant to be paid within six months.
Circumstances of Offending
- [2]The Complainant, Judith Vivian, and the Appellant lived in the same unit complex with friends prior to the offending. The Crown case was that on the day in question Ms Vivian was speaking to a neighbour, Krystal Hill (on the day in question named Krystal Brooks and who shall be referred to in this judgment as Ms Brooks), at the unit complex when the Appellant approached them both, greeted Ms Brooks but ignored the Complainant before walking to a bin behind a fence. According to Ms Vivian the Appellant then walked quickly towards her, pointed in her face and said “I’m going to kill you” to which the Complainant replied “go away”. The Appellant then jumped on the Complainant and pulled her hair at the top of her head causing her to hit her head on a besser block. Further, the Appellant punched the Complainant in the head numerous times. Ms Brooks pulled the Appellant from the Complainant and assisted Ms Vivian to her apartment. At no time the Complainant says did she lay a hand on the Appellant. An Ambulance was called and the Complainant was taken to hospital.
- [3]The Appellant’s account of the incident was that she was good friends with the Complainant, Ms Vivian, prior to the incident but had been informed that Ms Vivian had been bullying the Appellant’s son. She approached Ms Hill and Ms Vivian on the day in question to discuss the issue with Ms Vivian. The conversation escalated resulting in the Complainant attacking the Appellant who then attempted to defend herself, sustaining scratches as a result of the attack.
- [4]That then is a broad outline of the competing accounts of the incident.
Nature of Appeal
- [5]An appeal under s 222 is by way of rehearing. As Muir JA said in Teelow v Commissioner of Police:-[1]
[3] A Characteristic of an appeal “by way of rehearing” is that the appellate court, subject to its powers to admit fresh evidence, rehears the matter on the record of the court from which the appeal comes. In Scrivener v Director of Public Prosecutions (2001) 125 A Crim R 279, McPherson JA, referring to an appeal “by way of rehearing” under r 765(1) of the Uniform Civil Procedure Rules 1999, observed:
“It is well established that a provision that characterises an appeal to this court as a ‘rehearing’ ordinarily refers to a rehearing on the record, and not to what is sometimes called a hearing de novo: See Powell v Streatham Manor Nursing Home [1935] AC 243, 263. On such a rehearing the appellate court has power to draw inferences from primary facts, including facts found and facts not disputed, which is an complete as that of the primary judge: see Warren v Coombes (1979) 142 CLR 531, 537-541. On the other hand, an appeal under that form of procedure does not involve a rehearing of witnesses… Further evidence may be received on appeal, but only on special grounds: see r 766(1)(c)…”
[4] It is a normal attribute of an appeal by way of rehearing that “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…” At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.
Grounds of Appeal
- [6]The Appellant relies on three grounds of appeal:-
- the learned Magistrate erred in finding the Defendant’s ‘panic attack’ adversely affected her reliability as a witness;
- the learned Magistrate failed to properly consider the evidence; and
- on the whole of the evidence, the learned Magistrate’s verdict was unreasonable.
Evidence Relied Upon by Appellant
- [7]Before dealing with the arguments in relation to each ground of appeal it is instructive to set out the evidence the Appellant points to in support of her appeal. Firstly, the Appellant points to Exhibit 1 containing the particulars of the Crown case in these words:-
“…the defendant Maria Nolan assaulted the complainant Judith Coral Vivian by (1) pulling the complainant’s hair with one or both hands and (2) hitting the complainant in the head with open hands multiple times in quick succession.”
Complainant’s Evidence[2]
The Complainant said she was talking to Ms Brooks in a common area of the subject unit complex when the Appellant walked past saying hello only to Ms Brooks before going to some industrial bins. The Complainant said to Ms Brooks “this doesn’t seem right”.
- [8]When the Appellant returned to the Complainant and Ms Brooks, she pointed in the Complainant’s face saying things about the Appellant’s son and that she, the Appellant, would kill the Complainant. She then jumped on the Complainant, grabbed her hair, pulled her down and punched her in the head before swinging her into a metal post on two occasions. Ms Brooks pulled the Appellant away from the Complainant but the latter returned on two other occasions and attacked the Complainant further. At the time of the attack, the Appellant was armed with a sharp implement and used closed fists when hitting the Complainant.
- [9]In cross-examination the Complainant said she could not initially recall how many times she told the Police she had been hit during the first attack but ultimately conceded that she could have told the Police it was 40 times. Her head was slammed against a concrete pillar by the Appellant. The Complainant said she had spoken to Ms Brooks about the incident outside the Court on the day of the trial. She agreed she did not include any reference to the Appellant being armed in her statement to the Police who she told she had no warning of the attack. According to the Complainant, under cross-examination the Appellant said something to her about her son, pointed her finger in Ms Vivian’s face and said she was going to kill her and then went to the bins, only to return and attack her without warning. The Complainant could not remember what she told Police on the day of the incident and agreed she did not suffer any cuts or abrasions. She said she had a pre-existing injury, namely an 11mm aneurysm in the main cereal arch of her brain.
Ms Brooks
- [10]In her evidence, Ms Brooks said the Appellant went to the bin and then attacked the Complainant using open and closed fists and there was no lead up to the attack. She said the Complainant was hit about 10 times and that she, Ms Brooks, pulled the Appellant off the Complainant who returned and attacked the Complainant again, Ms Brooks again pulling her away from the Complainant.
Ms Brooks’ Cross-examination
- [11]In cross-examination Ms Brooks said she had spoken to the Complainant on the day of the trial about “what happened” as she and the Complainant were reading their statements but said that, although they had discussed “what’d happened” they did not discuss the contents of their statements. Ms Brooks agreed she did not tell the Police that the Appellant had attacked the Complainant twice, nor did she tell them that she had pulled the Appellant off Ms Vivian, the first time she said that being at the trial. She could not recall any conversation between the Complainant and the Appellant and said she had problems with her memory and trouble remembering things due to prior trauma. She said her memory was better at the time of the incident, again acknowledging that she had not, at that stage, indicated there were two attacks or that she had pulled the Appellant off the Complainant.
Senior Constable Gleadhill
- [12]SC Gleadhill gave evidence that he attended the Complainant’s unit, saw a lock of hair on the table that had its roots attached. He said the Complainant appeared to be in distress. He took a photograph of the piece of hair and the Appellant’s injuries (scratches). The Complainant did not indicate to him that the Appellant had been armed.
Senior Constable Mildred
- [13]SC Mildred gave evidence that she attended the unit complex and spoke to Ms Brooks who did not indicate to her that she had pulled the Appellant off the Complainant, or that there had been two attacks by the Appellant. Whilst she was at the complex, the Appellant was taken away by the Queensland Ambulance Service.
Detective Senior Constable Bree Sonter
- [14]Detective Senior Constable Bree Sonter took a statement from Ms Brooks and, again, the latter did not indicate to her that she had pulled the Appellant off Ms Vivian during the incident.
- [15]That then is the evidence the Appellant points to from the Crown case.
Evidence of the Defence Case Relied Upon by the Appellant
- [16]The first defence witness was the Appellant’s treating psychologist, Ms Cavalcante, who gave evidence that she had known the Appellant since 2011 and that she had been her client since then. In that time she said the Appellant had never displayed any tendencies towards violence, nor initiating violence. The Appellant consulted her on a fortnightly basis and Ms Cavalcante based her opinion on observations during consultations and practical assessments of the Appellant.
The Appellant’s Evidence
- [17]The Appellant, a Brazilian, gave evidence that she had been in Australia for 10 years, that she understood English but would ‘get blanked’ if she was too anxious. She said she was good friends with the Complainant prior to the incident but had been told the Complainant had been bullying her, the Appellant’s son. She approached Ms Brooks and the Complainant to discuss the matter, the conversation escalated resulting in the Complainant attacking her. The Appellant attempted to defend herself and, as a result, sustained scratches. In cross-examination she said she was feeling a little depressed on the day and, whilst she approached the Complainant to ask her to stop bullying her son, she did not point at the Complainant, threaten to kill her or hit her. Ms Brooks did not touch her during the incident. Later that morning after the altercation she said she was suffering from anxiety and was assisted by Queensland Ambulance officers and during the rendering of that assistance she had a panic attack which was not violent. In re-examination she gave evidence that she had suffered from panic attacks since 2010 and during such an attack she felt disorientated and panicked.
Consideration of Grounds of Appeal
- [18]I turn now to a consideration of the grounds of appeal.
Ground 1 – the Learned Magistrate Erred in Finding the Defendant’s Panic Attack Adversely Affected her Reliability as a Witness
- [19]In her decision the learned Magistrate, after reviewing the evidence of the Complainant, Ms Brooks and the Appellant, said:-[3]
“Therefore I completely reject the defendant’s version.
I do not completely reject the defendant as a – it is clear on the evidence that she gave that she is subject to panic attacks where she suffers intensely and that she is perhaps fragile. I accept she does not have a predisposition to violence as the evidence was given by her psychologist but she clearly has a predisposition to anxiety and it is possible that her panic attack interfered with her clear memory of what occurred and that it was perhaps anxiety that prompted the behaviour. However, on the evidence, which I accept is a clear case, I am satisfied beyond a reasonable doubt that the prosecution has proved its case and the defendant is found guilty.” (emphasis added)
- [20]The above was predicated upon her Honour’s acceptance of the evidence of the Complainant as to what occurred and the non-acceptance of the Appellant’s account that the Complainant had struck her first and scratched her. On that basis, her Honour was satisfied that the defence of self-defence had been excluded beyond a reasonable doubt.[4]
- [21]The Appellant says that the only evidence before the Court of her suffering a panic attack on the day of the incident was subsequent to the incident whilst she was being treated by the Ambulance officers. As to the effect of a panic attack upon her, the only evidence was her own evidence outlined above. She said:-[5]
“QUESTION: And can you tell the court – you’re not originally from Australia?
ANSWER: No I am Brazilian. I have been in Australia ten years now.
QUESTION: And can you tell the court about your understanding of English and where it sits with your first language?
ANSWER: Yes. I understand well English. It’s just – because my medical condition sometimes I get blanked if I’m too anxious.”
That evidence, it is argued, was in the context of the Appellant feeling comfortable to recall information in English when nervous as opposed to the question of retaining details about a particular event. Further, the prosecution did not submit at trial that the Appellant’s condition of suffering panic attacks would affect her reliability as a witness and, indeed, on the appeal the Crown, through Ms Malouf confirmed that the Crown did not rely on the Appellant’s anxiety condition as affecting her memory of the incident in question The following exchange is relevant:-[6]
“MS MALOUF: Your Honour, 7.4 just details the different ways that panic attacks affect the Complainant.
HIS HONOUR: But just let me clarify: does the Crown assert, in 7.4 – sorry by reliance upon 7.4 or anything else, that the anxiety condition which Ms Nolan, from time to time, battles, affects her memory?
MS MALOUF: No Your Honour.”
- [22]The Appellant next says that there is no expert evidence before the Court suggesting that the Appellant’s medical condition of suffering from anxiety “had interfered with her clear memory of what occurred” as speculated upon by Her Honour in the passage I have outlined above at paragraph [19]. Such an attribution for the condition of anxiety or a subsequent panic attack is not, it is argued, a fact so generally known that every ordinary person may be reasonably presumed to be aware of it. On that issue the Appellant relied upon the authority of Holland & Anor v Jones[7]where Isaacs J, whom Barton A.C.J. agreed, (Duffy J not delivering a judgment) said:
“The only guiding principle – apart from Statute – as to judicial notice which emerges from the various recorded cases, appears to me that wherever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the court “notices” it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any reasonable doubt.
The basic essential is that the fact is to be of a class that is so generally known as to give rise to the presumption that all persons are aware of it…”
- [23]Given that any correlation, if it indeed exists, of a panic attack on the one hand and interference with the victim’s clear memory of an occurrence on the other does not satisfy the above test, the Appellant says the learned Magistrate should not have taken judicial notice of the effect a panic attack may have had on the Appellant’s reliability as a witness. It is on the issue of the reliability of the Appellant rather than her credibility where, it is said, Her Honour fell into error. That can be seen from the same passage in Her Honour’s decision where she accepted the Appellant’s evidence that she suffered panic attacks and her further acceptance of the psychologist’s evidence that the Appellant did not have a predisposition to violence.
- [24]The final point made by the Appellant on Ground 1 asserts a breach of natural justice. The Appellant says the rules of natural justice required that Her Honour to disclose to the parties any material upon which she intended to rely which was not in evidence and the fact that she intended to take judicial notice of it. In that regard, the Appellant relies on Gordon M Jenkins & Associates Pty Ltd & Anor v Coleman.[8]There, a professional negligence case against an architect, the trial Judge, in making interlocutory orders, took into account certain Practice Notes of the Royal Australian Institute of Architects which were not in evidence and had not been referred to in argument. Relying upon those notes, the Court found the architect to be negligent. On appeal the Appeal Court (Shepherd, Beaumont and Hill JJ) allowed the appeal finding that it was not possible for an appellate court to conclude that there was material, apart from the Practice Notes, from which negligence could be inferred.[9]In the course of that judgment their Honours said:[10]
“In Re K (Infants) [1963] Ch. 381, Upjohn LJ (as he then was, said, at 405-406):
‘It seems to be fundamental to any judicial enquiry that a person or other properly interested party must have the right to see all the information put before the judge, to comment on it, to challenge it and if needs be to combat it, and to try to establish by contrary evidence that it is wrong. It cannot be withheld from him in whole or in part. If it is so withheld and yet the judge takes such information into account in reaching his conclusion without disclosure to those parties who are properly and naturally rightly concerned, the proceedings cannot be described as judicial.”’
- [25]Their Honours also cited with approval the following extract from Brinkley[11]where Scarman J (as he then was) said:
“For a court to take into consideration evidence which a party to the proceeding has had an opportunity during trial to see or hear, and thus to challenge, explain or comment upon seems to us to strike at the very route of the judicial process.”
Respondent’s Argument Re: Ground 1
- [26]As I have said, the Respondent made it abundantly clear, towards the end of the appeal, that it did not rely upon the evidence of the Appellant’s propensity to anxiety and panic attacks as evidence of any consequential effect on her memory, prior to that, in the written submissions, certain arguments were advanced. They are brief so I shall deal with them.
- [27]The points made by the Respondent in its written submissions were:-
- (a)The evidence of the Appellant set out earlier that, in relation to her understanding of English, because of her medical condition sometimes she gets blanked if she is too anxious, is said by the Respondent to extend beyond the context of the Appellant’s ability to recall information in English when nervous. In reliance upon that the respondent points to the following evidence of the Appellant:-
“Because my medical evidence, sometimes I get blanked if I am too anxious.”;[12]
“In the end of everything you feel disorientated, don’t know how to react. It’s just – your body does – doesn’t know, it’s panic.”;[13]
“When you have a crisis you don’t – you can’t think properly.”;[14]
As to how long it took her to calm down after a panic attack – “I was having panic attack. I don’t have an idea.”;[15]
The Appellant sought treatment for her anxiety symptoms;[16] and;
She felt upset[17]and “a little bit feeling blue, depressed”[18]at the time of the incident.
- (b)Contrary to the Appellant’s assertion, the Respondent says there was evidence of the appellant being effected by anxiety prior to being attended to by the Ambulance Service because she had given evidence that she was “very agitated because I have anxiety disorder”[19]after she became aware of the Complainant’s pain, seeing her on the floor and hearing her say to call an Ambulance. Immediately after this the Appellant said “I went to my place, I didn’t know how to react to do, if I kill myself. That’s how I was, so unwell. And then Police came.”[20]In the Respondent submission that evidence properly founded the learned Magistrate’s finding that she was a person who “is subject to panic attacks where she suffers intensely and that she is perhaps fragile”.[21]
- (c)Given the above, the Respondent says there has been no breach of natural justice because it was the learned Magistrate’s reading of the Appellant’s evidence that led her to her decision and she accepted the Appellant’s evidence in relation to her medical condition.
Ground 2 – The Learned Magistrate Failed to Properly Consider the Evidence
- [28]The Appellant particularised this ground as follows:
- (a)Propensity – Panic Attack
The Appellant points to Her Honour’s reasons[22]that it was perhaps the anxiety that prompted the Appellant’s behaviour. Again, it is pointed out there is no evidence before the Court that the Appellant’s anxiety predisposed her to violence or made it more likely she would commit an offence of violence. The only panic attack on the day was when being treated by the Ambulance Service and there was no suggestion of any violence. No evidence was led to rebut the Appellant’s evidence and it was impermissible for Her Honour to make the finding she did.
- (b)Ms Vivian’s Inconsistent Evidence
The Appellant points to the inconsistencies in the evidence of the Complainant and to the manner in which that inconsistent evidence was treated by the learned Magistrate when she said:-[23]
“the ____ a sensible conclusion about the differences in the evidence is that the complainant, who, despite all encouragement from both counsel not to give evidence about it, eventually gave evidence that she had had surgery, and the event of being struck in the head, which I accept occurred as she said, would have caused her a different perception of what had happened and reaction to the perception of the witness.”
The Appellant points to the fact that there was no evidence before the Court as to the extent of the Complainant’s surgery or the effect, if any, it may have had on her ability to recall the incident so that Her Honour’s conclusion that this surgery explained the inconsistencies in the Complainant’s evidence was not open on the admissible evidence before the Court.
- (c)Consistency between Complainant and Ms Brooks – Number of Attacks
The Appellant in this ground speculates that Her Honour in describing the evidence of the Complainant and Ms Brooks was likely to have found consistency between the versions whereas, in fact, there was the inconsistency in that the Complainant said she was attacked three times but Ms Brooks spoke only of two attacks.
- (d)Number of times Complainant struck by Appellant
The Appellant also points to Her Honour’s decision[24]when dealing the Complainant’s evidence as to how many times she was struck by the Appellant. Her Honour said: “…she had originally said that she was hit 40 to 60 times. The evidence does not support that, and she did not maintain that today…” The Appellant then points to various exchanges in the cross-examination of the Complainant where the Complainant agreed that she would have had to have been hit over 60 times[25]and later agreeing that she was hit up to 60 times, including into a concrete pillar.[26]The Appellant says that Her Honour was in error in finding that she had originally said she was hit 40 to 60 times but did not maintain that at trial. To my mind that is strictly correct but the evidence of the Complainant as to the number of blows she sustained was all over the place. What is clear is that her evidence was to the effect that she had received numerous blows.
Respondent’s Submissions in Relation to Ground 2
- [29]In answer to the Appellant’s argument, the Respondent says:-
- (a)Propensity – Panic Attack
Given Her Honour’s acceptance of the defence evidence that the Appellant was not one predisposed to violence and that when being attended to by Ambulance officers after the incident she had a panic attack causing her to kick out her arms and legs, Her Honour’s findings[27]– it was perhaps her anxiety that prompted her behaviour – cannot be said to constitute a factual, legal or discretionary error so as to constitute a successful ground of appeal.
- (b)Inconsistencies in evidence
In relation to the identified inconsistencies in the evidence ultimately the learned Magistrate accepted the evidence given by the complainant and Ms Brooks and rejected the Appellant’s account of events. In coming to that decision there was no misuse by Her Honour as to the advantage she had in seeing the witnesses giving evidence.[28]The respondent pointed to Devries v Australian National Railways Commission[29]which the High Court said:-
“More than once in recent years, this Court has pointed out that a finding of fact by a trial Judge based on the credibility of a witness, is not to be set aside because the appellate Court thinks that the probabilities of the case are against – even strongly against – the finding of fact. If the trial Judges findings depend to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial Judge has failed to use or has palpably misused his advantage or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was glaringly improbable.”
In the Respondents view Her Honour did not so act.
Appeal Ground 3 – Unreasonable Verdict
Appellant’s Arguments
- [30]Given the Appellant gave evidence, the Appellant relies upon a passage from R v Armstrong[30]where Jerard JA said:-
‘[34] The effect of the passages identified herein as misdirections are that they treat Mr Armstrong’s credit as a matter in issue, and misdirect the jury that this belief of Mr Armstrong’s evidence was itself a matter to consider when deciding if he had an intention to rape. It would have been preferable had the learned judge studied the draft direction suggested in the Queensland Supreme and District Courts Benchbook at direction 27, from which the judge may have derived assistance. That draft direction, frequently given, suggests that the jurors be told:
“But where, as here, there is defence evidence, usually one of three possible conclusions is suggested:
- (a)you may think the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case. If so, your verdict would be not guilty;
or
- (b)you may think that, although the defence evidence was not convincing, it leaves you in a state of reasonable doubt as to what the true position was. If so, your verdict will be not guilty;
or
- (c)you may think that the defence evidence should not be accepted. However, if that is your view, be careful not to jump from that view to an automatic conclusion of guilt. If you find the defence evidence unconvincing, set it to one side, go back to the rest of the evidence, and ask yourself whether, on a consideration of such evidence as you do accept, you are satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.”
- [31]The appellant says that it may inferred from Her Honour’s reasons that she found the Appellant credible but an unreliable, witness by her statement set out in paragraph [19] above, where Her Honour says she did not completely reject the Defendant. In the Appellant’s view the adverse finding against her as to reliability was not reasonable and she should have been regarded as both a reliable and credible witness in which case the verdict would have been not guilty. In the alternative, it is argued that the Crown failed to prove the case beyond a reasonable doubt because of the following:-
- (a)The Complainant’s embellished, exaggerated and internally inconsistent evidence also inconsistent with that of Ms Brooks as outlined above;
- (b)The discussion between Complainant and Ms Brooks on the day of trial prior to both giving evidence resulting in the likelihood that Ms Brooks’ account was contaminated by discussions with the Complainant prior to the evidence.
- (c)The complainant’s evasive behaviour when answering questions under cross-examination, failing to making concessions where appropriate (this ground is not particularised); and
- (d)The Complainant could not remember whether anything was said prior to the altercation.
The Appellant’s evidence was both credible and reliable
- [32]The Appellant says:-
- (a)Her injuries are consistent with her evidence but inconsistent with that of the Complaint and that of Ms Brooks. Both as to the latter’s recollections on the day of the incidence and at the time of her Police statement in May 2015;
- (b)The Appellant was not someone predisposed to violence; and
- (c)Her evidence was largely consistent with Ms Brooks’ initial versions provided to the Police at the time of the altercation and in May 2015.
Respondents Arguments Re: Ground 3
- [33]The Respondent points to the acceptance by Her Honour of the evidence of the Complainant and the rejection of that of the Appellant in relation to the circumstances of the incident. That included the failure of the defence of self-defence. Her Honour found that the Crown had proved its case beyond a reasonable doubt and no error of law was involved in accepting the evidence of the Complainant over that of the Appellant.
Discussion
- [34]I am satisfied that Her Honour fell into error in her assessment of the reliability of the Appellant as a witness by introducing the extraneous element of the possibility of compromise of the integrity of her evidence resulting from memory disruption of her panic attack on the day. Firstly, that finding was not available on the evidence. Secondly, the evidence shows that the only panic attack was after the incident in question and when the Appellant was being treated by the Ambulance officers. I say that bearing in mind the contrary argument by the Respondent. However, the matters raised by the Respondent do not evidence a panic attack other than that which I have just mentioned. Thirdly, neither party was given any notice or opportunity to answer, by way of appropriate evidence, the proposition that the Appellant’s clear memory of the incident had possibly been corrupted by the panic attack she suffered after the incident in question. To my mind, Her Honour was not entitled to take judicial notice of that or to rely upon it in her decision. That was a denial of natural justice to the Appellant in accordance with the above authorities. Appeal ground 1 is upheld.
- [35]Ground 2 is also upheld. I consider Her Honour again fell into error in relying upon the Appellant’s susceptibility to anxiety as being something which perhaps may have prompted her behaviour on the day. That speculation is unfounded by any evidence and neither party was given notice of that proposition or the opportunity by evidence to rebut it.
- [36]As to ground 3, I am likewise satisfied consistent my findings in relation to Grounds 1 and 2, that the decision of the Learned Magistrate was unreasonable having regard to all the evidence. Had Her Honour followed the process in the Benchbook identified by Jerard JA in Armstrong, free of the errors I have found in Grounds 1 and 2, I am satisfied that it would have been open to find that the Appellant’s evidence was both credible and reliable and provided a satisfactory answer to the prosecution’s case. At the very least, I am satisfied that, although she may not have concluded the Appellant’s evidence convincing, Her Honour would have been in a state of reasonable doubt as to what the true position was. Either of those scenarios would have invited a verdict of not guilty.
Orders
- [37]I make the following orders:-
- Appeal allowed;
- Verdict of guilty be set aside;
- Sentence and associated orders be set aside;
- Verdict of not guilty be entered; and
- Appellant be discharged.
Footnotes
[1] [2009] QCA 84.
[2] Appellant’s outline of submissions para 6.
[3] Decision p 4 lines 20-30.
[4] Decision p 3 lines 38-45.
[5] T1.56.1-6.
[6] T2.27.31. (Appeal hearing)
[7] (1917) 23 CLR 149 at 153.
[8] (1999) 87 ALR 477.
[9] Ibid, p 487.
[10] Ibid, p 484.
[11] [1965] P75 at 78.
[12] T1.56.5-6.
[13] T1.67.1-4.
[14] T1.66.14.
[15] T1.66.7.
[16] T1.67.5.
[17] T1.60.15.
[18] T1.59.45.
[19] T1.57.23.
[20] T1.57.23.27.
[21] Decision p 4 lines 22-30.
[22] Decision p 4 line 27.
[23] Decision, p 4 lines 4-9.
[24] Ibid p 2 lines 32-36.
[25] T1.17.1.
[26] T1.21.19.
[27] Decision p 66 line 15.
[28] See Riley v Doyle unreported Court of Appeal CA No. 15 and CA No. 16 of 1997.
[29] (1992-3) 177 CLR 472.
[30] [2006] QCA 158.