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- Unreported Judgment
Norris v Commissioner of Police QDC 180
DISTRICT COURT OF QUEENSLAND
Norris v Commissioner of Police  QDC 180
MATTHEW LESLIE NORRIS
Appeal against Conviction & Sentence
Magistrates Court at Kingaroy
29 August 2019 ex tempore
29 August 2019
Cash QC DCJ
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – PROVOCATION – SELF DEFENCE – COMPULSION – PREVENTION OR REPETITION OF INSULT – s 222 Justices Act – where the appellant assaulted a man – where the Magistrate found the complainant had threatened to shoot the appellant – whether justification or excuse excluded beyond reasonable doubt
CRIMINAL LAW – APPEAL AGAINST SENTENCE – s 222 Justices Act – whether sentence excessive
Criminal Code (Qld), ss 31, 268, 269, 270, 271
Justices Act (Qld) 1886, ss 222, 223
Allesch v Maunz (2000) 203 CLR 172,  – 
Forrest v The Commissioner of Police (2017) QCA 132, p.5
McDonald v The Queensland Police Service (2018) 2 Qd R 612
Robinson Helicopter Company v McDermott (2016) 90 ALJR 679, 686-7
Teelow v The Commissioner of Police  QCA 84, 
J M McInnes for the appellant
A Q Stark for the respondent
Mark Savic Legal for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- HIS HONOUR: This is an appeal against conviction and sentence brought by Matthew Leslie Norris against the Commissioner of Police. It relates to an offence of assault occasioning bodily harm said to have occurred on 8 January 2018 at the Radnor Hotel in Blackbutt. The appellant appeared for trial before Magistrate Pink in Kingaroy on 19 November 2018. Her Honour reserved her decision and on 17 December 2018 convicted the appellant and sentenced him to six months imprisonment to be wholly suspended for a period of 18 months.
- On 27 February 2019 the appellant filed a notice of appeal and an application for an extension of time within which to appeal. That was a little over a month late. The reason for the delay is explained in the affidavit of his solicitor, Mr Savic, filed on 12 April 2019. Mr Savic deposes that he was instructed by the appellant to appeal within time, on 11 January, but unfortunately the solicitor was hospitalised a couple of days later and that resulted in a consequential delay in securing advice from counsel and lodging the appeal. Whether an extension of time within which to appeal should be granted depends on two considerations: first, whether or not there is a satisfactory explanation for the delay, and secondly, whether the appeal enjoys sufficient prospects of success to warrant an extension. As the delay is fairly brief and is explained to a substantial degree, it is convenient to focus on the merits of the appeal.
- The alleged offence occurred on the afternoon of 8 January 2018. The complainant is a man called Christopher Thomas. He went to the Radnor Hotel at Blackbutt. There he was confronted by the appellant, who invited the complainant out to the beer garden. What occurred there was, to a degree, in dispute, but the appellant admitted that he punched the complainant and caused him bodily harm. The events were also recorded on CCTV footage, which I have watched and to which I will return. The appellant gave evidence the complainant had threatened to shoot him. It was raised on the appellant’s behalf that his use of violence was not unlawful. The Magistrate found the appellant’s conduct was unlawful and hence she convicted him.
- The essence of this appeal is to challenge the factual findings of the Magistrate in the sense that it is said it was not reasonable to conclude that the evidence had excluded operative defences. The appellant also submits the Magistrate erred in law by reversing the onus of proof and finding other potential excuses or justifications were not raised on the evidence, though, as matters have emerged in submissions, the latter complaint really is grouped within the general complaint the evidence did not exclude beyond reasonable doubt operative defences. As well, the appellant submits that if the conviction stands, the sentence was, nevertheless, excessive.
- It is convenient first to deal with the principles that apply to an appeal to this court pursuant to section 222 of the Justices Act. Such an appeal is to be determined in accordance with section 223 of that Act. That is, the appeal is by way of a rehearing on the evidence that was before the Magistrate and any other evidence that might have been introduced with leave of this court. It is not a hearing de novo, nor is it an appeal in the strict sense. It is, in my view, for the appellant to demonstrate the decision the subject of the appeal was the result of some legal, factual or discretionary error (see Allesch v Maunz (2000) 203 CLR 172 at 22 to 23, Teelow v The Commissioner of Police  QCA 84 at 4, but contrast Forrest v The Commissioner of Police (2017) QCA 132 at page 5).
- 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 v McDermott (2016) 90 ALJR 679 at pages 686 and 687, 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 judgment 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.”
- In McDonald v The Queensland Police Service (2018) 2 Qd R 612, Justice Bowskill said:
“It is well established that, on an appeal under section 222 by way of rehearing, 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.”
- While it may be that there has been some difference in approach to an appeal by way of rehearing under this legislation, nothing turns upon that in the present matter where if it is the case that the evidence was not sufficient to exclude any operative defence, that would necessarily amount to a sufficient error to allow this Court to intervene in any event.
- The evidence before the Magistrate was in relatively short compass and there was, as I have said, no dispute the appellant struck the complainant and caused him bodily harm. I have watched the video of the relevant events. The video shows the complainant and the appellant in an area at the rear of the hotel. They are standing face-to-face. Sixteen or so seconds into the video, the appellant raises his right fist and directs a blow toward the complainant. That is followed immediately by the appellant directing a right knee toward the groin or the abdomen of the complainant. Over the course of the next seven or so seconds, the complainant falls to the ground and the appellant can be seen leaning over him and punching his direction a number of further times. It might be that six blows are directed at the complainant after he fell or it might be there was one as he fell or before he fell and a further five, but nothing particularly turns upon that. Finally, after that period of about seven seconds, the defendant appears to push at the complainant and leaves the area as another person, the publican, came in and intervened. The video is not accompanied by sound, so it is not clear, from the video at least, what, if anything, was being said.
- Relevantly four witnesses testified about the particular events the subject of this appeal. The complainant Christopher Thomas testified that he was 50 years of age. At about quarter to 2 on the afternoon of 8 January 2018 he went to the hotel to buy a sixpack of beer. While he was at the bar, the appellant approached him. The appellant indicated he wanted to have a discussion in a private place relating to some kind of neighbourhood dispute. They went to the beer garden where they had a discussion. The complainant described the appellant as being a very large man. Speaking for myself, looking at the video evidence, the difference in build does not seem to me to be especially substantial.
- The complainant testified that the appellant invited the complainant to strike him. The complainant said as he turned to walk away, the appellant hit him in the head, and as he fell down, he could feel blows to his ribs and around his back. He suggested there was a period of time in which he blacked out and he was trying to cover his head while blows were being rained down upon him. To the extent that this evidence is inconsistent with the video, I, of course, prefer what is depicted in the video recording, which is an objective representation of what occurred. The complainant described the publican coming out, which brought an end to the assault. He said that he did not intend to fight with the appellant. He suffered injuries which are relatively minor in nature, but which constitute bodily harm. The complainant testified he did not consent to a fight or to the appellant assaulting him. He denied any kind of threat to shoot the appellant. He said his car was parked about 15 or 20 metres away. He was asked about whether he had any firearms and said that while he had a firearms permit, he did not often carry firearms in the vehicle.
- The complainant’s girlfriend testified as well. She, in effect, confirmed that she had gone to the pub with the complainant, saw him go outside, heard voices, and saw the appellant and the complainant in a verbal altercation at the beer garden. She testified that she saw the appellant punching the complainant around the head area and also in the abdomen area, but then said she could not remember much after that.
- The publican saw the complainant coming into the bar. He saw the appellant approach and say something like, “Let’s talk about this out the back.” The publican saw the complainant and appellant both walk out to the beer garden. He said he kept an eye on them from the kitchen. He observed finger pointing and raised voices, but then his attention was distracted. After that, the publican heard a commotion, as if someone was falling to the ground. He went out and heard the appellant say to the complainant, “Don’t fucking threaten to shoot me.” The complainant was on the ground at this point.
- The appellant himself testified. He said that when the complainant came into the pub, the appellant approached the complainant and said they needed to talk. The complainant agreed to discuss matters outside and they went out to the rear of the hotel. There the appellant said there was a heated discussion. He claimed the complainant threatened to punch the appellant in the mouth. In response to this, the appellant said, he invited the complainant to have a swing at him or to have the first punch. The Appellant noticed the Complainant’s car was about 20 or so metres away. He saw movements by the Complainant’s girlfriend. The Appellant said that as he turned to walk back into the pub the Complainant said to him:
If you’re not going to fight me, you big prick, I’m going to shoot you.
- He testified that he knew, in effect, the Complainant did not have a gun on him, but was concerned because the Complainant’s car was quite close and he was familiar with the Complainant’s dealings with firearms. The Appellant testified that he said to the Complainant:
Are you going to shoot me? How are you going to do that?
- To which he said the Complainant responded that his gun was right in the car and he would have it before the Appellant left the front door. The Appellant asked the Complainant whether he was serious and said his subsequent actions were intended to immobilise the Complainant so that he could not get to the car and potentially get a gun. In cross-examination the Appellant stated that he thought the Complainant was trying to get up during the course of the assault, which doesn’t seem to be borne out, looking at the video. But not much turns upon that, in my view. The magistrate rejected a contention that the complainant consented to the assault by going outside with the appellant. Referring to the evidence, the magistrate concluded the complainant only went outside to talk, and there was nothing in his subsequent conduct that suggested an agreement to fight.
- When considering self-defence and provocation, the magistrate stated her findings that the complainant threatened to shoot the appellant, and that the appellant believed the complainant had a gun in his car nearby. Her Honour went on to conclude that the complainant’s conduct did not amount to an assault, as he did not have the “present ability to shoot” the appellant. I note the appellant’s submission that the magistrate’s approach reversed the onus of proof, and I will return to this in due course.
- Her Honour went on to say that in any event, the force actually used was more than reasonably necessary to make effectual defence to the threat, or the perceived threat. Similarly, in relation to provocation, the magistrate found the appellant had been provoked by the threat, but that she was also satisfied the force actually used by the appellant was disproportionate to the provocation. The magistrate did not consider, and was not asked to consider, either compulsion pursuant to section 31 of the Criminal Code, or prevention of repetition of insult pursuant to section 270 of the Criminal Code.
- The question for me on the rehearing is whether, having regard to all of the evidence, I am satisfied beyond reasonable doubt that the evidence excludes the operation of any relevant defence. I am required to consider the evidence and to make my own findings, giving due deference to the decision of the magistrate.
- Having considered all of the evidence, including the video recordings, I agree with the fundamental factual findings as stated by the magistrate. That is, the appellant invited the complainant out to the beer garden. The complainant went because he thought there was going to be a conversation. The complainant probably made a threat to shoot the defendant. The appellant probably believed the complainant had a firearm in his car which was relatively nearby. And, having regard to the video, the appellant directed several blows toward the complainant and some of those were at a time when the complainant was on the ground in what I described as a defensive position.
- In the circumstances, I am satisfied beyond reasonable doubt, as was the magistrate, that even if the conduct of the complainant amounted to provocation or an assault, the force used by the appellant was disproportionate and unreasonable. It was, in my view, no longer a proportionate or reasonable response to continue punching at the complainant after he had fallen to the ground, as is shown in the CCTV footage. The degree of violence employed was, in my view, in excess of a proportionate response to the provocation offered. As for self-defence, it is important to observe that a consideration of whether the force used was more than reasonably necessary is for the objective determination of the tribunal of fact, and does not depend on the defendant’s state of mind. I am conscious, of course, that events unfolded rapidly and are not to be judged solely from the safety of hindsight. I am conscious, as well, of the need to judge things in light of circumstances which might call for quick action. Nevertheless, having regard to the actual threat with which the appellant was faced, the degree of violence that was used was, in my view, unreasonable. For this reason, it does not matter if her Honour erred in finding the conduct of the complainant did not amount to an assault.
- Her Honour said she was not satisfied to the requisite standard the complainant had the present ability to shoot the appellant. Literally, that suggests a reverse of the onus of proof. It may be that this was a simply slip of the tongue, but even if it was not, and was a misapplication of the onus of proof, the operation of the defence of self-defence is nevertheless excluded because I am satisfied, on the evidence, the force used was more than reasonably necessary.
- There remains the two matters not raised at the trial: compulsion and prevention of repetition of insult. Her Honour, as I have said, made no finding on the evidence because she was not asked to. Compulsion would afford an excuse or justification unless the Prosecution proved one or more of the following: that there was no actual violence threatened; if violence was threatened, it was not unlawful; or what the appellant did was not “reasonably necessary in order to resist the threatened violence”. It is the third of these that, in my view, presents the appellant with considerable difficulty. At best, he may have believed the appellant could have gone to the car to retrieve a gun, subsequent to the threat that was probably made. The appellant was at the rear of the hotel, inside which were the publican and a number of patrons. There was, in my view, much he could have done before resorting to the violence as he did. And as I have already observed, by continuing to throw punches at the complainant after he had fallen to the ground, the response of the appellant was, in my view, more than reasonably necessary. I am conscious that the mere availability of some alternative, especially with the benefit of hindsight, is not an entire answer, but to strike the complainant repeatedly, as the appellant did, was not reasonable.
- The last question concerns prevention of repetition of insult. This justification or excuse would be excluded in circumstances where the force used was objectively more than reasonably necessary to prevent the insult being repeated. For the reasons I have already mentioned in relation to self-defence, I am satisfied on the evidence beyond reasonable doubt the force actually used by the appellant was more than reasonably necessary.
- It follows that, having conducted a review of the evidence, I am satisfied of the guilt of the appellant. In the circumstances, while I grant the extension of time within which to appeal, the appeal against conviction will be dismissed.
- As far as the appeal against sentence is concerned, I have already noted the sentence imposed was six months imprisonment, wholly suspended for 18 months. The appellant was 35 years old. He had a number of old and relatively minor convictions. With the exception of one offence of assaulting police in 2006, none of the convictions appear to relate to offences of violence. He has a good work history, and was sentenced on the basis that he had reacted excessively to threatening and provocative conduct by the complainant. His culpability was therefore significantly less than someone who attacked without such provocation or threat.
- The complainant’s injuries, while they amounted to bodily harm, were not serious. It was said that he was off work for five weeks, something which seems a little difficult to understand in light of the evidence about the nature of the injuries. The appellant did not have the benefit of cooperation or an early plea, but nevertheless, a sentence of imprisonment, in those circumstances, was, in my view, excessive. That is particularly so, given the reduction in the appellant’s capability because of the conduct of the complainant. In my view, it is appropriate to set aside the sentence of suspended imprisonment, and instead I will impose a fine of $1000. A conviction will be recorded.
- The orders, then, will be: (1) extend time within which to appeal to 27 February 2019, (2) the appeal against conviction is dismissed, (3) the appeal against sentence is allowed, (4) set aside the sentence of six months imprisonment, wholly suspended for 18 months and instead, I order the appellant be fined the sum of $1000. I direct the proper officer of the Court give particulars of the fine to State Penalties Enforcement Registry for registration pursuant to section 34 of the State Penalties Enforcement Act. A conviction is recorded.
- Published Case Name:
Norris v Commissioner of Police
- Shortened Case Name:
Norris v Commissioner of Police
 QDC 180
29 Aug 2019