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LIB v Queensland Police Service[2018] QDC 259

LIB v Queensland Police Service[2018] QDC 259

DISTRICT COURT OF QUEENSLAND

CITATION:

LIB v Queensland Police Service [2018] QDC 259

PARTIES:

LIB

(Applicant)

v

QUEENSLAND POLICE SERVICE

(Respondent)

FILE NO/S:

161/18

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

12 December 2018

DELIVERED AT:

Southport

HEARING DATE:

20 November 2018

JUDGE:

Kent QC DCJ

ORDER:

Appeal allowed; convictions below set aside and verdicts of Not Guilty entered on each charge.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – GROUNDS – where the appellant appealed against conviction pursuant to s 222 of the Justices Act 1886 – where a ground of appeal was that the Magistrate made an error of fact – where the appellant was convicted largely on the evidence of the complainant child – where the complainant’s evidence had some inconsistencies – whether the prosecution proved its case beyond reasonable doubt.

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – NATURE OF APPEAL – where the appellant appealed against conviction pursuant to s 222 of the Justices Act 1886 – where the appellant must identify a legal, factual or discretionary error – where the appellant was convicted largely on the evidence of the complainant child – where the evidence of the complainant is recorded – where the appellate court has the advantage of viewing the complainant’s evidence – whether the findings of the Magistrate should be interfered with.

COUNSEL:

self-represented for the applicant

K J Heath for the respondent

SOLICITORS:

self-represented for the applicant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    In this matter the appellant appeals, pursuant to s 222 of the Justices Act 1886 (Qld), against his conviction in the Magistrates Court at Southport after a trial on 1 May 2018 on two charges of common assault, one of which was a domestic violence offence. On 8 May 2018, he was fined $600.00 for each offence, with convictions not recorded. The appellant does not challenge the severity of his sentence, but appeals against his convictions.
  1. [2]
    The appellant also appeals against the imposition of Temporary Protection Orders made on 12 June 2016, 26 June 2016, 22 February 2017 and 7 December 2017; and the Protection Orders made on 8 March 2017 and 24 July 2017. I note that there is no such jurisdiction in s 222 of Justices Act 1886[1] thus they will not be discussed in these reasons. Of course, if the convictions were set aside it would be relevant to a review of any existing Protection Orders.

Grounds of appeal

  1. [3]
    The grounds of appeal are:
  1. (a)
    The learned Magistrate made an error of fact;
  1. (b)
    The learned Magistrate made an error of law; and
  1. (c)
    The conviction was unsafe and unsatisfactory as the appellant did not commit the offences that he was convicted for.

“Unsafe and unsatisfactory” is not a ground of appeal provided for under s 222 and is more akin to the unreasonableness ground for an appeal to the Court of Appeal after conviction on indictment under s 668E of the Criminal Code, which does not apply to s 222.[2] However it may be taken as a general complaint that there was a relevant error which vitiates the finding of guilt.

Background and factual matrix

  1. [4]
    The complainant’s mother and the appellant were known to each other since 2009, having met online when she was in Germany. In 2012, she migrated to Australia from the Philippines with the appellant’s help. They then cohabited (and apparently married) and had a son together. The mother also has an older child, the appellant’s stepson and the complainant in this matter.
  1. [5]
    The facts of the offending are canvassed in pages 2-3 of the decision transcript dated 8 May 2018. To summarise, it was alleged that the appellant assaulted the complainant on two separate occasions in order to discipline him. He was aged nine years at the time of charge 1; 12 years at the time of charge 2; 13 years when he was interviewed by police and was about to turn 14 when his evidence was pre-recorded for the purposes of the trial. The Magistrate convicted the appellant largely upon the evidence of the complainant child.
  1. [6]
    The child’s evidence in relation to charge 1 is that on an occasion during 2013 the appellant grabbed him by the clothing at the back of his neck before pushing his head in to a table. He then threw the child on to his bed. It is alleged that this incident occurred in the context of the appellant disciplining the complainant for carving his initials in to his new table and that this incident caused a cut to the child’s face, which bled overnight. Photograph 1 of exhibit 2 at the trial is a picture of the child showing his injury.
  1. [7]
    Charge 2 is said to have occurred when the appellant grabbed the complainant child by the back of the neck with one hand, while using his other hand to take hold of the child’s clothing so that he could push him in to a wall. The incident occurred on the last morning of the school year 2016 when the complainant child and his five-year-old brother had an argument which led to the complainant pushing his brother. The complainant told police that the appellant became angry when the complainant walked away from him after being grounded. The appellant then called the complainant back, and assaulted the child. This offending is said to have caused some scratches to the front of the complainant’s neck, visible in photograph 3 of exhibit 2 at the trial.
  1. [8]
    The appellant gave evidence at the trial that these incidents simply did not occur. His evidence was that the incidents were concocted by his estranged wife, who is the mother of the complainant child, to give her an advantage in Family Court proceedings. He pointed to the lengthy delay between the alleged conduct that comprises charge 1 and the complaint, more than three years, in support of these contentions.
  1. [9]
    The appellant called one witness at the trial, Andrew Rayner, a plasterer who was allegedly present during the commission of charge 2. He gave evidence that he was talking with the appellant when he heard a loud slap in another room which caused the appellant to leave the room to investigate. He said that there was nothing to indicate that the appellant was violent towards the complainant, and, indeed, the appellant was with Rayner – not the child - when the slap occurred. Of course, the child does not allege that charge 2 was a slap as such, rather a push into a wall.
  1. [10]
    The Magistrate convicted the appellant largely on the basis of the complainant’s evidence. She found his evidence compelling, stating that he was “truthful, credible and reliable in his accounts of these two incidents.” The learned Magistrate rejected the appellant’s account, and was of the view that the complainant’s mother gave an exaggerated version of events.[3]

Nature of the appeal 

  1. [11]
    Pursuant to s 223(1) of the Justices Act 1886 (Qld), an appeal under s 222 is by way of rehearing of the original evidence given in the proceeding at first instance before the Magistrate. The nature of this process means that the court “must, of necessity, observe the ‘natural limitations’ that exist” in such a procedure, such as the handicaps in evaluating witness credibility and not having heard, or been directed to, the whole of the evidence.[4]
  1. [12]
    It is necessary, in order for the appeal to succeed, that a legal, factual or discretionary error be identified. The position was recently helpfully summarised in Davies v Commissioner of Police[5] as follows:

“[16] An appeal by way of rehearing involves the appellate court conducting a “real      review” of the evidence given at the trial. In Robinson Helicopter Company Inc v McDermott the High Court said:

“A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgement to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.”

[17] In Fox v Percy the plurality of Gleeson CJ, Gummow and Kirby JJ said:

“Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:

“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”

As this Court there said, that approach was “not only sound in law, but beneficial in…operation”.

[18] In McDonald v Queensland Police Service Bowskill J said that:

“It is well established that, on an appeal under s 222 by way of re-hearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.”

[19]In conducting a review of the evidence any advantage the magistrate had in seeing and hearing the witnesses should be considered.” (footnote references omitted)

  1. [13]
    Thus what is required is a “real review” as to whether there is error as described.
  1. [14]
    Helpfully, in this case, the evidence of the complainant is recorded, both in the s 93A police interview and the pre-recorded evidence. Thus, the credibility of his evidence can be evaluated and assessed in a more meaningful way than other cases – indeed, this court is at no significant disadvantage, vis a vis the Magistrate, as regards the evidence of the child complainant.

The Magistrate’s Reasons

  1. [15]
    The Magistrate identified the particulars of the charges and the onus and standard of proof. The issues were whether the assaults happened and whether the offence of reasonable domestic discipline was excluded. Her Honour summarised the evidence of the complainant, the investigating police officer and the appellant’s recorded interview. During this he said he was not present for the incident forming count 1 and assumed the mother did it; however he later claimed in evidence he was present on that occasion and saw the mother out of control and hitting the child: clearly a significant shift. Her Honour noted the appellant denied wrongdoing and said the mother was violent towards himself and the children.
  1. [16]
    As regards the mother’s evidence, it was noted she claimed to be present during count 1, but did not notice the injury at the time, as the child covered his face, a detail she admitted omitting from her domestic violence order application. It is of course curious that the mother did not see a significant facial injury to her child, caused in her presence.
  1. [17]
    As to the evidence of Mr Rayner, the plasterer, it was noted he heard a big slap which could not have been delivered by the appellant as they were together, separate from the children, at the time. Further he did not see or hear any violence by the appellant. Her Honour did not find this helpful, it is not quite clear why.
  1. [18]
    Her Honour said the complainant was compelling, fluent, coherent and responsive and did not contradict himself, and likely was not influenced by the mother. The mother may have exaggerated. The appellant was, conversely, not “compelling” and was inconsistent as outlined above.
  1. [19]
    Her Honour accepted the complainant’s evidence and found the appellant guilty.

Appellant’s submissions

  1. [20]
    In his challenge to the fact finding of the Magistrate, the appellant relies upon the inconsistencies between the complainant’s s 93A statement[6] and s 21AK evidence[7], as well as the inconsistencies between the child’s evidence and the evidence given by the mother at trial. He submits that these inconsistencies are significant, damaging to creditworthiness, and were not properly investigated by the Magistrate, resulting in convictions that are unsound or unsatisfactory having regard to the evidence, and the Magistrate’s fact finding process was therefore in error.
  1. [21]
    With respect to charge 1, the appellant submits that:
  1. (a)
    The dates given by the child were incorrect (he said 2014; the charge said 2013);
  1. (b)
    The mother’s evidence about seeing another assault (not particularised as an offence, but apparently led as part of the evidence, for an unspecified purpose) cannot be relied upon as it has not been established by the evidence that she could actually see in to the garage where the alleged assault occurred;
  1. (c)
    The complainant’s evidence that the appellant physically assaulted him conflicts with the mother’s evidence at one point that the appellant merely threatened to assault the complainant;
  1. (d)
    The complainant contradicted himself during his s 93A statement, at one time asserting that the appellant grabbed him by the neck and later claiming that he was actually grabbed by his clothing.
  1. (e)
    The complainant’s allegation that his face bled overnight and on to his pillow is not supported by the evidence, that is, that the severity of the alleged injuries indicated by exhibit 2 do not support this contention.
  1. [22]
    With respect to charge 2, the appellant submits that:
  1. (a)
    The complainant gave conflicting versions of this event, alleging during the s 93A statement that he was pushed in to a wall, and later claiming that he was pinned to the ground;
  1. (b)
    Scratches to the front of the complainant’s neck, said to be visible in the copy of the photograph which is part of Ex 2, are not consistent with the complainant’s version where (i) he does not describe the appellant as having physically done anything to the front of his neck, and (ii) contact with the smooth surface of a newly plastered wall is simply incapable of such a result;
  1. (c)
    The evidence of Mr Rayner was improperly ignored by the Magistrate. In his evidence, Mr Rayner said that he heard a slap (likely the child complainant slapping – not “pushing” as he said - his younger brother) that caused the appellant to leave the room to investigate. He did not hear any sounds consistent with anger or inappropriate domestic discipline by the appellant, despite being nearby in what seems to be a relatively small house;
  1. (d)
    The complainant could not remember significant details of the alleged offence;
  1. (e)
    The complainant is the only person to give evidence that the appellant had “grounded” him;
  1. (f)
    The photos of the complainant’s injuries were said to be taken by the complainant’s mother on her phone. This normally produces an image with a date, yet there is no date on the image. This is suspicious, particularly in the context of the complaint as to count 1 being about four years delayed for no apparent reason; yet the Magistrate did not refer to this issue.
  1. [23]
    The appellant also points to a number of inconsistencies in the mother’s evidence which, he says, leads to the conclusion that she is an unreliable witness. As I have previously stated, the Magistrate convicted the appellant largely on the basis of the child’s evidence, and was of the view that Ms LIB gave an exaggerated account. Thus, issues relating to her credit are not of central importance.
  1. [24]
    What was also developed during submissions was the proposition that the complaints were motivated by Ms LIB’s tactical approach to Family Court proceedings, and the following timeline was advanced:
  1. (a)
    Between June and November 2013 – The assault the subject of count 1 allegedly occurs. There is no complaint to police or other authorities or a doctor, and the only action taken is an undated photo;
  1. (b)
    12 June 2016 and 26 June 2016 – temporary protection orders made (I am unaware of the nature of the allegations therein, however they do of course indicate contact with Police);
  1. (c)
    9 December 2016 – the second assault allegedly occurs. Another undated photo is the only action, apart from a visit to an unidentified doctor who was not called to give evidence;
  1. (d)
    10 February 2017 – the mother, who emigrated from the Philippines some years previously with the appellant’s support, received a letter confirming her citizenship;
  1. (e)
    11 February 2017 – the mother moved out of the parties’ home, with the children;
  1. (f)
    April 2017 – the mother commenced Family Court proceedings, including seeking custody of the couple’s child;
  1. (g)
    11th May 2017 – the mother takes the complainant to police and the s 93A recording takes place;
  1. (h)
    August 2017 – the appellant is charged.
  1. [25]
    This is said to demonstrate the general unreliability of the prosecution case, in that the allegations give the appearance of having been orchestrated by the mother for tactical reasons, to assist her in Family Court proceedings.

Respondent’s submissions

  1. [26]
    The respondent submits that the learned Magistrate made neither an error of fact nor an error of law in convicting the appellant. It was submitted that the Magistrate applied the correct standard of proof; she said she considered the whole of the evidence and found the complainant truthful and reliable. Any inconsistencies demonstrated in the complainant’s evidence were not such as to impede this finding. The defence of reasonable domestic discipline, Section 280 of the Criminal Code, was considered but the defendant’s actions were found to be excessive such that the defence was excluded to the required standard. No error of fact or law is demonstrated.
  1. [27]
    The respondent relies upon the appellant’s conflicting accounts given in his record of interview and whilst under cross-examination. During his cross-examination, in relation to charge 1, the appellant said that Mrs LIB was violent and out of control at that time, and that she was screaming and began to hit the complainant child. The learned Magistrate noted that his cross-examination was “clearly at odds with his account in the police interview, as he stated that he couldn’t recall that incident and was not present for it.” The learned Magistrate did not find the appellant a compelling witness.
  1. [28]
    With respect to the evidence of Mr Rayner, the respondent submits that the Magistrate was of the view that it was limited to him hearing a slap, and that it did little to advance the case for either side.
  1. [29]
    In summary, the respondent submits that the Magistrate was correct in finding the evidence of the complainant child reliable and credible, and convicting the appellant necessarily followed.

The Evidence

  1. [30]
    The appellant was represented at the trial, but unrepresented on appeal. He had filed a written outline of argument which canvassed the above issues. Oral submissions were heard from both sides.

Mrs LIB

  1. [31]
    The complainant’s mother, Mrs LIB, said that she observed the occurrence of count 1 because she was in the room at the time. She said that she did not realise he was hurt at the time of the assault and only later discovered he was bleeding when she checked on him.[8]
  1. [32]
    She gave evidence of the occurrence of the second assault after the complainant was grounded for doing something to his younger brother. The appellant was attempting to make the complainant apologise to the younger brother. He was pushing the complainant down, grabbing the back of his neck.[9]
  1. [33]
    In cross-examination, she agreed that the appellant had sponsored her to Australia in 2011 and in late 2016 she had applied for Australian citizenship. On 10 February she received her approval and on 11 February she moved out.

The Appellant 

  1. [34]
    The appellant said that he had seen Mrs LIB cause the injury to the complainant’s face which is the subject of charge 1, however also conceded that that is not what he had said to the detectives in the record of interview.[10]
  1. [35]
    As to charge 2, Mr LIB gave evidence that he heard the complainant strike his brother (which was overheard by the plasterer).[11]  Mr LIB was firm in his denials of any wrongdoing.

Mr Rayner

  1. [36]
    The defence also called Mr Rayner, the plasterer. He heard a “great big slap” at a time when he was pretty sure that Mr LIB was in his presence and as he described it, this was part of an argument between the two young boys.[12]  He did not see Mr LIB offer any violence to any of the children.  In cross-examination, he said that he did not hear anything which would have indicated anything like that, including at the time when Mr LIB had gone a short distance outside of the room.[13]

The Complainant

  1. [37]
    The complainant first said on p 2 of the Transcript of his s 93A Statement that the incident forming charge 1 occurred in 2014 – this is wrong, according to the dates given in the charge. He said that his mother only knew after the next day, because she checked on him and saw blood on his pillow. She checked at 3.00am in the morning. She took a photo of his face.
  1. [38]
    The complainant also referred to another incident, which was not the subject of a charge, which had occurred in the carport at the front of the house and there was an issue as to whether his mother was either present or otherwise able to see that incident occur.
  1. [39]
    In relation to charge 2, he initially described it as being thrown at a wall. He later said that he had pushed his younger brother, who was five years old at the time (this seems incongruous if the first incident happened in 2013, as Mrs LIB said that she was pregnant at the time of the happening of the first incident. Thus at the time of the second incident, the younger brother would not have been more than three years of age). The push described by the complainant is obviously different from the loud slap heard by Mr Rayner. In any case, the complainant said that the appellant shouted at him that he was grounded for a week. When he walked off, Mr LIB again shouted at him to come back and say that he should not hurt his brother. He then grabbed him by the neck and back of his clothing and pushed him into the wall and he then fell to the ground. He said this caused scratches to the front of his neck. The police seem to have difficulty understanding this (understandably) and asked him what did he hit to get the scratches on his neck. The complainant said:

“Um, I can’t remember but like my the doctor um saw me like um like three lines of like scratches on my neck.”

Scratches are visible on the undated photo.

  1. [40]
    The police confirmed that Mr LIB had his hands on the back of his neck, not the front. The complainant was not able to confirm the name of the doctor to whom he was taken in relation to this event.
  1. [41]
    He also said that he and his mother went to the police that day as well to tell them but he wasn’t sure if his mother actually did so. He mentioned the police in Southport. There was no other evidence in the case confirming that such a complaint had been made.
  1. [42]
    When the complainant was cross-examined at the pre-recording of his evidence on 6 March 2018, his version was that his mother was in the same room when count 1 happened and observed the assault[14].  This is consistent with the mother’s evidence.  However, the inconsistency was pointed out with the s 93A recording[15] where the following exchange took place.  The complainant said that from the scratch on his face there was blood on the pillow and then the police continued:

“Q: What did your mum say?

  A: Um, I can’t remember.

  Q: Did you tell your mum, or did she know?

  A: Um, she knew after the next day, like she checked on me and saw blood all over the pillow.”

When asked about the difference he said he wasn’t sure.

  1. [43]
    This exchange may be explained on the basis that it was only on the next day that the mother saw the blood, rather than being previously unaware of the incident at all.  However, the response is at least vague, and at worst, quite inconsistent with the later assertion that she was in the same room at the time when it happened.  Further, it may be observed that if the complainant child had a bleeding wound to his face, one would expect (a) the mother to have seen it (despite some alleged attempt by the child to cover it up, as to which she shifted ground); (b) some treatment, for example, a band aid.  There was no suggestion by the complainant or his mother that he was taken to the doctor on that occasion or given any treatment.
  1. [44]
    In relation to the second count, he was cross-examined about the marks on his neck from being pushed into the wall and was asked to explain it. He said that he wasn’t sure how those marks were caused.[16]

Discussion

  1. [45]
    In relation to the complainant’s evidence, there are a number of obstacles to its unqualified acceptance:
  1. (a)
    His apparent shift of ground as to whether his mother was present for count 1;
  1. (b)
    His error as to the date of count 1;
  1. (c)
    His inconsistency as to being grabbed by his neck or his clothing;
  1. (d)
    For count 2, the unexplained mechanism of injury causing scratches to the front of his neck, possibly from contact with a flat surface, in circumstances which frankly make no sense;
  1. (e)
    Further for count 2, his denial of slapping his brother, apparently inconsistent with Mr Rayner’s evidence; as well as Rayner’s observations being generally inconsistent with violence by the appellant.

I have observed the demeanour of the complainant in the s 93A recording and pre-recorded evidence.  I do not find this to be particularly decisive either way.  He was neither a particularly compelling, nor unpersuasive witness, in my assessment as to his demeanour. It may thus be better to analyse objective factors such as inconsistencies and contradictory evidence, rather than the intangible “demeanour”.

  1. [46]
    As noted above, my task is to conduct the appeal by way of re-hearing of the original evidence given in the proceeding at first instance before the Magistrate, as to whether error is established. The court must of necessity observe the natural limitations that exist in this procedure without having heard the evidence, in evaluating witness credibility. As I have noted, this is ameliorated in this case by being able to see and hear the recordings of the most central witness, the complainant. I note the limits typically restricting appeal courts as opposed to trial judges (see e.g. Fox v Percy at [26]) but these are simply not as clear in this case for the reason identified. It is not a case where the advantages of the trial Magistrate were substantial and unique;[17] nevertheless the findings below should not be interfered with unless demonstrably wrong.[18] I am able to draw my own inferences from the established facts whilst respecting the advantage of the court or tribunal at first instance in seeing and evaluating the other witnesses, particularly in the context of assessment of credibility. I must make my own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view
  1. [47]
    As I have noted, in this case the differences in advantage are not as stark as some other cases where a number of witnesses whose credibility is in issue give evidence and are cross-examined before a Magistrate (and not the appellate court). In this case, the only two witnesses who fall clearly into that category are Mrs LIB and the appellant. Mrs LIB was found by the Magistrate not to have a high degree of creditworthiness, for understandable reasons, and thus her creditworthiness is something of a side issue. The other contentious witness who the Magistrate was able to observe in a different way than myself was the appellant. She noted his shift of ground on one issue and felt that it was a significant blow to his creditworthiness and indeed, on that basis, seems to have set his evidence aside. Of course, there is no fault in that particular reasoning process as an approach, although the result in this case will be further examined below.

Impression of Mr LIB 

  1. [48]
    I have not had the opportunity of seeing and hearing Mr LIB give evidence and be cross-examined. However he conducted the appeal unrepresented and thus I did have direct engagement with him from the bar table for a significant period during the hearing of the appeal. This is not, of course, a direct analogue to giving evidence and being cross-examined, nevertheless it was an opportunity to directly interact with the appellant, who I found to be a sincere, somewhat measured person very concerned to be heard about what he perceived to be an injustice.

Impression of the Complainant 

  1. [49]
    In relation to the complainant, as I have observed, I found his demeanour in the recordings to be reasonably neutral. He presented as neither a particularly persuasive nor unpersuasive witness. Therefore in assessing creditworthiness, in my view, it is best to direct attention to the inconsistencies and contradictions which emerged during his evidence and cross-examination. As noted above, there are problem areas for the complainant. If, as observed by the Magistrate, the appellant is to be criticised for a stark inconsistency, a similar observation can be made in relation to the complainant. His evidence suffered from the five problems set out at [45] above.
  1. [50]
    This reduces the contest to the following broad parameters. On the prosecution side, there is the evidence of Mrs LIB whose creditworthiness was damaged in the way assessed by the Magistrate. She nevertheless tends to be corroborative of the complainant’s evidence, at least on count 1. For count 2 she does not seem to allege that she was present or witnessed the happening of that assault.
  1. [51]
    Apart from her, the only evidence supporting the charges is that of the complainant, whose creditworthiness is damaged to some extent, in my view, by the problems identified. As against this, there is the evidence of the appellant who was himself inconsistent in one area but maintained sworn denials of the offences. Mr Rayner also tends to contradict the complainant in the sense that his evidence is really consistent with the idea that the complainant slapped, rather than pushed his younger brother. In assessing this contest between witnesses whose creditworthiness is in issue, I am assisted by the approach in the directions from the Supreme and District Court Benchbook as to a defendant giving evidence.  The trite propositions contained therein give guidance in the kind of fact finding exercise in which the Magistrate was engaged and I am reviewing. Her Honour should have had regard to these matters, in a full and precise way.

Defendant giving evidence – “Word against Word”?

  1. [52]
    By giving evidence, as her Honour correctly said, the defendant did not assume any responsibility of proving his innocence and in no way assumed any burden of proof. His evidence and that of his other witness was simply added to the evidence called for the prosecution and is to be examined with all of the evidence as to the assessment of whether the prosecution has proved the elements of the offences beyond reasonable doubt or fallen short of that standard. The proper approach is not to analyse the contest as “word against word”, but rather to understand that the prosecution case depends on the tribunal of fact accepting that the evidence of the complainant (and his mother, in relation to charge 1) was true and accurate beyond reasonable doubt despite the sworn evidence by the appellant and his witness. Thus it was not necessary to accept the appellant was telling the truth before he is entitled to be found not guilty, if, on an assessment of all of the evidence, the conclusion was that the evidence by the prosecution witnesses fell short of persuasion beyond reasonable doubt.
  1. [53]
    In the three possible examples given by the Benchbook: if the defence evidence is credible and reliable and provides a satisfying answer to the prosecution case, the verdict would be not guilty.  Secondly, even if the defence evidence was not convincing, it may still raise a state of reasonable doubt as to what the true position was, again producing a verdict of not guilty.  Even if the defence evidence should not be accepted, as the Magistrate concluded, it should simply be set aside to analyse the rest of the evidence as to satisfaction beyond reasonable doubt that the prosecution has proved each of the elements in the offence in question.[19]
  1. [54]
    Although her Honour did criticise the appellant’s evidence for the one established inconsistency, in my view it did not follow that this destroyed the value of his sworn denials. Thus to summarily set it all aside was an error. Moreover, it was not correct to thereupon find the complainant’s evidence “compelling” by contrast, given it suffered from the problems above. These are identifiable errors.

Delay – Longman Direction?

  1. [55]
    There is also the question of delay, as regards charge 1. The complaint was delayed by perhaps four years, an unusual length of time for a non-sexual assault. A Longman[20] direction may still be relevant in a non-sexual case.[21] Thus in my view the Magistrate should have approached charge 1 giving weight to the relevant principles, that is:
  1. (a)
    The difficulty for the defence, given the unusual delay, in adequately testing or meeting the allegations;
  1. (b)
    The defendant’s denial of a chance to assemble evidence soon after the alleged incident;
  1. (c)
    The consequent impairment of the fairness of the trial process;
  1. (d)
    And in light of the above issues, a conclusion that it would be dangerous to convict on the complainant’s evidence alone without careful scrutiny and consideration of the above features.

True it is that her Honour received no assistance on this point; defence counsel did not ask for a Longman direction. However this may present no obstacle for the appellant if correction is necessary to avoid a miscarriage of justice.

The mother’s evidence supported the complainant’s on this count, so that it was not the complainant’s evidence “alone” in issue; however her evidence was properly regarded sceptically by the Magistrate. Thus the delay should have been carefully regarded and weighed; it was not; and this amounts to a further error.

Conclusion

  1. [56]
    This is a case rather near the borderline. As I have noted, the relevant task is to conduct a real review as to whether there was an error. In doing so, the Magistrate does have some natural advantages, however as I have noted, the circumstances of this case somewhat reduce the degree of those natural advantages from the normal case where a Judge sitting on appeal would not be able to see and hear the video recorded evidence of the child complainant.
  1. [57]
    In my respectful view, there was a legitimate criticism of the evidence of the appellant for the, as it was put, rather stark inconsistency or shifting ground which was demonstrated during his cross-examination. However, this did not, in my view, completely extinguish the value of his sworn denials. Further, the evidence of Mr Rayner tended to strongly support the conclusion that the complainant slapped his brother, something which he was not admitting to. I saw no reason to reject the relevance of Mr Rayner (which the Magistrate said she found unhelpful) and in my view, it does present something of an obstacle to the unqualified acceptance of the complainant child’s evidence. If he was untruthful about the slap, it was a blow to his creditworthiness.
  1. [58]
    In relation to the child complainant, I found his demeanour to be rather neutral, as I have said. However, his evidence did suffer from a number of problems as outlined above.
  1. [59]
    As to Mrs LIB, her evidence was supportive of the complainant in relation to count 1, but no more than generally consistent in relation to count 2. I also note the curious circumstances of the timeline noted above and the at least reasonable possibility that there may have been a degree of tactical convenience, at least for Mrs LIB, in raising the allegations late and in the way that she did. In saying this, however, I note that she had sought temporary protection orders somewhat earlier in the piece and that whatever her motives may have been, it is difficult to directly ascribe them to the child complainant.
  1. [60]
    Nevertheless, the following errors are identified in the Magistrate’s fact finding process:
  1. (a)
    The unqualified acceptance of the complainant’s evidence despite the several problems listed above;
  1. (b)
    Further, the complainant’s evidence was required to be weighed against the appellant’s sworn denials and Mr Rayner’s apparently contradictory evidence. Approaching the matter along the lines suggested for a tribunal of fact in the draft direction in the Benchbook, although the defence evidence may not have been totally convincing, it nevertheless should have left the Magistrate in a state of reasonable doubt about what the true position was and thus, her Honour should have been driven to conclusions of not guilty; 
  1. (c)
    The lack of consideration of the delay and a warning along the lines of a Longman direction, for charge 1.
  1. [61]
    In reaching this conclusion, I am also assisted by consideration of the Benchbook as to the vexed question of “reasonable doubt”.  To paraphrase, a reasonable doubt is a doubt considered by the tribunal of fact to be reasonable on consideration of the evidence. I have weighed the conflicting evidence and arrived at my own conclusions. At the end of the deliberations which I have set out above, after making proper allowance for the Magistrate’s advantages, I have concluded that the Magistrate should have entertained such a doubt as to the guilt of the defendant, with the result that (a) an error is demonstrated in the Magistrate’s fact finding process as set out above, and (b) on my review of the evidence, the charges have not been proved to the required standard.  As is commonly observed, it is a high standard, which is more than a finding that the defendant is merely probably guilty. 
  1. [62]
    In all the circumstances, then, my conclusion is that an error of the fact finding process is identified and in my review of the evidence I do entertain a reasonable doubt for the reasons above. The result is that the appeal is allowed and verdicts of not guilty are entered in relation to each of the charges.

Footnotes

[1]  Rather see Domestic and Family Violence Protection Act 2012 (Qld), s 164.

[2] McDonald v Queensland Police Service [2017] QCA 255 at [64].

[3] Transcript of Decision, 8th May 2018. P6 l21-22.

[4] Fox v Percy (2003) 214 CLR 118, [23].

[5] [2018] QDC 201 at [16]-[19].

[6]  I.e. his statement recorded by investigating police pursuant to s 93A of the Evidence Act 1977

[7]  The evidence pre-recorded pursuant to s 21 AK of the Act.

[8]  Transcript 1-14, ll 7-47.

[9]  Transcript 1-15, ll 5-45.

[10]  Transcript 1-27, l 24 – 1-28, l 19.

[11]  Transcript 1-28, ll 34-35.

[12]  Transcript 1-32.

[13]  Transcript 1-33.

[14]  T1-4 l42.

[15]  Page 4 of 10 of the Transcript of the Recording.

[16]  Pre-recording, 6 March 2018, Transcript 1-7, l; 13-14.

[17] Robinson Helicopter Company Incorporated v McDermott (2016) HCA 22 at [57].

[18] Supra at [43].

[19]  References for the relevant draft direction in the Benchbook include R v E (1995) 89 A Crim R 325 at 330 per Hunt CJ; Middleton (2000) 114 A Crim R 141 at 145 [13]; R v G (1994) 1 Qd R 540 at 543; R v Armstrong [2006] QCA 158; R v McBride [2008] QCA 412.

[20] Longman v The Queen (1989) 168 CLR 79.

[21]  See e.g. Carr v The Queen (2001) 117 A Crim R 272; R v Johnston (1998) 45 NSWLR 362 per Spigelman CJ at 370, 375.

Close

Editorial Notes

  • Published Case Name:

    LIB v Queensland Police Service

  • Shortened Case Name:

    LIB v Queensland Police Service

  • MNC:

    [2018] QDC 259

  • Court:

    QDC

  • Judge(s):

    Kent DCJ

  • Date:

    12 Dec 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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