Whiley v The Commissioner of Police
[2021] QDC 241
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- Unreported Judgment
- Whiley v The Commissioner of Police[2021] QDC 241
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Whiley v The Commissioner of Police[2021] QDC 241
Whiley v The Commissioner of Police[2021] QDC 241
DISTRICT COURT OF QUEENSLAND
CITATION: | Whiley v The Commissioner of Police [2021] QDC 241 |
PARTIES: | GEORGE WILLIAM WHILEY (Appellant) v THE COMMISSIONER OF POLICE (Respondent) |
FILE NO: | D25/2021 |
DIVISION: | Criminal |
PROCEEDING: | Appeal – s 222 Justices Act 1886 (Qld) |
ORIGINATING COURT: | Rockhampton Magistrates Court |
DELIVERED ON: | 29 September 2021 |
DELIVERED AT: | Rockhampton District Court |
HEARING DATE: | 23 September 2021 |
JUDGE: | Clarke DCJ |
ORDER: | The appeal is allowed |
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST CONVICTION – s 222 Justices Act 1886 (Qld) – failure to make out grounds of appeal – misdirection – rehearing required |
LEGISLATION: | Justices Act 1886 (Qld) ss 222, 223, 225 |
CASES: | Allesch v Maunz (2000) 203 CLR 172 Teelow v Commissioner of Police [2009] QCA 84 Fox v Percy (2003) 214 CLR 118 Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 McDonald v Queensland Police Service [2018] 2 Qd R 612 Mbuzi v Torcetti [2008] QCA 231 MBL v JP [2011] QCA 2020 Smith v The Queen (2015) 255 CLR 161 Rowley v Commissioner of Police [2017] QDC 88 |
APPEARANCES: | The appellant appeared on his own behalf Mr M Sutton, instructed by the Office of the Director of Public Prosecutions for the respondent |
- [1]
- [2]The grounds of appeal are:
- The magistrate made a crucial factual error when delivering his verdict; and
- The magistrate failed to give proper attention to the hearing of evidence.
By leave, and by consent, the appellant added a third ground which had been identified in his outline of argument:
- That (the magistrate) erred by failing to direct the prosecution in relation to my complaint witness collusion was occurring.
Appeal generally a rehearing on the evidence
- [3]Section 223 Justices Act 1886 (Qld) confirms an appeal under s 222 is by way of rehearing on the original evidence given in the proceeding the order is appealed against.
- [4]Courts have regularly determined the basic following principles apply: it is for the appellant to demonstrate some legal, factual or discretionary error;[3] the court is obliged to conduct a “real review”, and to make its own findings of fact, or draw its or draw its own inferences and conclusions.[4]
- [5]
The appeal proceeded under s 223(1) on the evidence given in the Magistrates Court. On such an appeal the judge should afford respect for the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions: Fox v Percy[6] at [25]; Rowe v Kemper[7] at [5].”
- [6]Pursuant to s 225[8] among other things, on hearing the appeal I may confirm, set aside, or vary the appealed order or make any other order I consider just.
- [7]Subsequent to filing the notice of appeal, the appellant filed an application seeking access to “any and all” video recordings showing the magistrate’s lack of proper attention while watching police body-worn camera footage[9] between 2.30pm and 3.50pm on 4 May and of witnesses colluding between 8.45am and 2.30pm in the public waiting area (presumably on the same day). At a directions hearing on 30 August 2021, I deferred the argument about that application until the hearing of the appeal, to allow the respondent an opportunity to provide information about the availability of any footage. At the hearing of the appeal, the respondent relied on affidavit evidence stating an enquiry of the registrar confirmed that no footage was available. Although the appellant continued to take issue, that appears to provide adequate explanation and the application is dismissed.
- [8]In response to the appellant’s notice of appeal, the respondent submits the grounds raised do not give rise to an identifiable error and the appeal should not succeed. Costs are not sought. Issue was raised with the appellant seeking to introduce new evidence, without applying for leave to do so. The complaint raised in the appellant’s outline was that when he re-attended the scene location in July 2021, he was told by police to move away or he may be arrested. The appellant asserts that the threats of arrest were unlawful and substantially and unjustly hindered his ability to prepare for his appeal. Ultimately, the appellant did not persevere with that allegation and I did not need to consider whether to grant leave.
Summary of evidence on re-hearing
- [9]At the commencement of the summary hearing the learned magistrate explained the procedure to the self-represented litigant in accordance with the usual practice.[10] Following that explanation, it seems the appellant clearly understood that he was to present all relevant evidence at the hearing.
- [10]Mr Rothery was a One Nation candidate who was handing out “how to vote” cards in the car park outside the Yeppoon PCYC polling booth on 28 October 2020. His evidence was the defendant, a stranger to him, abused him on arrival calling him a “piece of shit”. After voting, he said the appellant got in his face, accusing him of being a racist and being part of a “fucking racist party”. Mr Rothery said he was agitated. Mr Rothery explained he was of Aboriginal heritage and worked assisting Indigenous youth and was not racist. The appellant also argued with him about a workplace injury claim Mr Rothery had commenced which had been reported in the media and about how the appellant had been deleted from the One Nation Facebook page after posting comments in it.
- [11]Mr Rothery said the appellant came up to him so that his motorcycle helmet touched the front tip or brim of Mr Rothery’s Akubra hat saying, “I should fucking hit you now” and “I fucking want to hit you now”, while “flinching” or threatening to punch Mr Rothery three times. That caused Mr Rothery to step back. He asked the appellant to leave, having voted. He said the verbal abuse continued after the appellant had walked to his motorcycle and again returned, threatening him. Mr Rothery said another man from the PCYC (Mr Barnes) asked the appellant to leave.
- [12]After referring to photographs showing the PCYC car park area where the incident occurred, Mr Rothery said the appellant was yelling loudly and everyone stopped walking in to vote from the front gate and started watching the commotion. He said the flow of people had been constant before then. He estimated it was a bit after lunch.
- [13]Mr Rothery’s evidence was that as the appellant took off on his motorbike, he came close to him and others and flicked dirt up on their legs. He said he had to take a step back because he thought he was going to be hit by the motorcycle and the appellant then sped off. Mr Rothery said that the motorbike had been parked 10 metres away but that he rode to within one foot of him. He said another witness, Ms Ganfield, was right next to him and the appellant revved the engine and spun or flicked the back wheel to flick up rocks and gravel that he rode over, in their direction.
- [14]The defendant’s cross-examination did not directly challenge the evidence despite being informed and reminded of the appropriate process of cross-examination. Instead, the appellant’s cross-examination centred upon where Mr Rothery was standing on the day; his social media post about being at the polling booth for every minute of every day; about how the appellant had been banned from the One Nation Facebook page; about who controls the publication of posts on that Facebook page; whether Mr Rothery had supplied Ms Ganfield with a One Nation shirt (even though she supported a different political party); and whether Mr Rothery had told a different version of events to police about the speed at which the motorcycle was ridden. Mr Rothery was also cross-examined how Aboriginal people are capable of being racist, and about global warming.
- [15]Although identity was not an issue, there was extensive cross-examination about whether the incident occurred around 12.19pm (when the appellant had taken a photograph of his ballot) or between 1.00pm to 1.30pm (as estimated by Mr Rothery, who does not wear a watch).
- [16]Ms Ganfield’s cross-examination centred upon whether she was wearing or owned a One Nation shirt and whether she had her phone with her and was filming the appellant at the time. She denied both. Considerable cross-examination failed to establish a discrepancy in her evidence about seeing the appellant ride off and whether she had neglected to mention that in one minute of interaction with police on the body-worn camera footage on the day of the incident.
- [17]Ms Ganfield was a candidate for the Informed Medical Options Party. She was standing about 1.5 metres from Mr Rothery. She heard the defendant make a comment as he went in to vote before coming back and speaking to Mr Rothery. She said that soon developed into him abusing, yelling at him and “bagging him out”. She said the appellant was bringing up really personal stuff from Mr Rothery’s private life and was calling him a racist before trying or nearly hitting him two or three times by just pulling up with his punches. She said it was really horrible; lots of people were coming and going, including families with children coming for PCYC camps. She recalled Mr Barnes came out because of the commotion and asked the appellant to leave. She said everyone could hear “up the whole road”, saying the appellant was really loud, quite animated and approaching Mr Rothery closely. Ms Ganfield said this about the defendant’s departure:
“And the man decided to leave – all the time still yelling out – jumped on his motorbike and as he was leaving he zoomed sort of quite closely to us and turned around and spun dirt up onto (Mr Rothery) and my legs. And there was, like, people crossing the road and coming and going in that area as well. So it was a little bit dangerous for others, not just us.”[11]
- [18]Ms Ganfield later said by reference to photographs, the appellant came towards them, where they were standing, instead of driving on the middle of the road where most people would reverse out. She repeated that instead he came in towards them and then zoomed off.
- [19]Mr Barnes was the Outdoor Adventure Co-ordinator/Facilitator at the PCYC, Yeppoon. He kept an eye on the confrontation between the appellant and “the Pauline Hanson guy”. He said there were raised voices and there was something going on there that he needed to pay close attention to. He gave evidence that the appellant was in Mr Rothery’s face, screaming and leaning in with aggressive body language. After walking away to his motorcycle, he saw him go back over to Mr Rothery with his helmet. Mr Barnes was about five to six metres away and he heard muffled non-specific swear words. He said it all went on for 10, 15 minutes. He said he asked the appellant to leave, mainly because there was a school group coming in. He said the appellant was agitated, agreed to go but went back and continued arguing a couple of times with Mr Rothery.
- [20]As to the appellant’s departure, Mr Barnes said this:
“...I observed – he got his bike he’s had his helmet on. He did – instead of heading out like you normally would, he did towards them a little bit, on his motorbike, and then took off out the front, but it wasn’t – wasn’t on the back tyre or anything, it was just – he left a little bit faster than usual…
…. where (Mr Rothery) and the rest of those guys were on the right-hand side of the road. It’s a car park, but if you were driving out, it would be on the right hand side. Instead of just going out the left hand side, he sort of veered right over, close to them.”[12]
- [21]The witness then referred to the area with the use of photographs. He described a similar area to Mr Rothery and Ms Ganfield.
- [22]The cross-examination centred upon whether the witness had told police the appellant was very loud, but had not used foul language and why Mr Barnes’ wife was not a witness. Mr Barnes said she was over at their house, some 15 to 30 metres away.
- [23]Mr Mullbrick (the Greens candidate) gave evidence by telephone. He said the appellant was yelling loudly, aggressively and erratically at Mr Rothery. He was positioned so that he could see the back of the appellant and the front of Mr Rothery, who he saw backing away defensively. He was 20 or 30 metres away he estimated. He saw the appellant hop on the motorcycle, rev it and stall it. He said he then revved it quite aggressively and swerved around onto the dirt on the far side of the car park. He said there were lots of people at that far side of the car park. Mr Rothery was standing at the edge of the car park with Labor and Liberal “pre-poll hander-outerers”. Mr Mullbrick was unable to say how close the motorcycle got to Mr Rothery.
- [24]In cross-examination he confirmed his difficulty in seeing things from some distance and confirmed his police statement had recorded the appellant was “not driving reasonably fast”.[13] Mr Mullbrick said the only issues with the appellant’s riding happened in the car park.
- [25]The evidence of Senior Constable Harrison simply commenced with tendering and playing the body-worn camera footage of his attendance at the scene on that day, capturing interactions with people upon his attendance at the scene and police interactions with the appellant and the arrest process. The appellant was allowed to provide commentary as the document was played to the court. No basis for relevance or admissibility of the out of court hearsay document was argued, nor ruled upon. Aside from the defendant generally asserting to some witnesses they had neglected to say things when talking to the police officer on the day, any purported prior inconsistent statement was not played to those witnesses, in the usual course. The civilian police prosecutor had stated at the time the document was tendered and played, the following: “I only played it in its entirety because the defendant asked.”[14]
- [26]With respect, evidence does not become relevant or admissible because the defence simply wants it led. In my view there should have been legal argument and determination about the admissibility of the document. To compound issues, the footage was “skipped” (usually on the appellant’s say so) without identifying precisely what was played to the court and what was not. If any of the document was admissible, that edited portion should only have been tendered and played. It would be prudent for the prosecution to advise a litigant in person that although there is a wide duty of disclosure, only relevant and admissible evidence can be led on the trial.
- [27]The unhelpful cross-examination of the police witness was largely irrelevant and comprised of criticisms of what some witnesses may or may not have said, why more witness statements had not been gathered, and whether the police officer was a liar.
- [28]On resuming on 5 May, after indicating to the magistrate the remaining witnesses would have no bearing on the case the appellant elected to give evidence in his case. It appears he was allowed to read from a prepared statement. He said he had a heated argument with Mr Rothery but rode off slowly, no-one was in the vicinity and he did take into consideration the welfare of others. He tendered the photograph he took of his ballot (to make sure he had voted for the right person). The magistrate declined to receive his Greek birth certificate.
- [29]The evidence of the appellant was ultimately not accepted by the magistrate. He was entitled, with respect, to reach that conclusion.
Consideration of the grounds of appeal
- [30]Turning to the grounds of appeal, ground 1 has no substance. The “crucial factual error” about the defendant riding in the middle of the road was simply part of the magistrate’s recitation of Ms Ganfield’s evidence. As to ground 2, I am not satisfied the magistrate was inattentive to the playing of the body-worn camera footage. It would perhaps be unsurprising if he was seen to rub his eyes and temples while watching an hour and a half of irrelevant footage.[15] The transcript shows the magistrate re-watched part of it and agreed with the appellant to skip other parts. The magistrate provided quite detailed ex- tempore reasons at the end of the hearing, based upon some of the contents of the footage.
- [31]As to the third ground belatedly added, it also lacks foundation. The appellant’s complaint at the hearing and again on the appeal, is that witnesses were “colluding” prior to giving their evidence. Putting aside the fact the appellant was in the court room when he alleged this was occurring, one wonders what they could collude about, prior to giving evidence. They were each taken to their statements in cross-examination and to things they had apparently said on the body-worn camera footage. No recently invented evidence could be pointed to by the appellant to confirm the alleged conspiracy. The fact the evidence overall was consistent appeared to be the product of the witnesses simply recounting what had happened. Their individual accounts appeared largely consistent with other versions they were each taken to.
- [32]Although the appellant has failed to demonstrate any of the grounds of appeal are made out, I am nonetheless of the view the magistrate misdirected himself in reaching his verdict.
- [33]Firstly, he took into account irrelevant and inadmissible evidence in the form of the body-worn camera footage. No basis was advanced for the admissibility of the out of court hearsay statements. In my view, it is incumbent upon the prosecution to present only relevant and admissible evidence. On the appeal, the respondent was unable to point to any reason for admissibility. Although the appellant had contended at the hearing there was some discrepancy between what witnesses said on the day of the incident and on another occasion, the appropriate manner of attempting to prove a prior inconsistent statement was not followed.
- [34]Of greater concern is the incorrect test applied by the magistrate in his consideration of what use to make of the appellant’s evidence and how he used that incorrect test as the basis to find the appellant guilty.
- [35]His Honour said this, after summarising the defendant’s evidence:
“That evidence itself was far from convincing as it related to the elements of the charges. Where his evidence conflicted with the evidence of the prosecution witnesses, I prefer the evidence of the prosecution witnesses. Having preferred that evidence, I find beyond reasonable doubt that on the offence date that the defendant…”[16]
before going on to make findings of fact and finding the defendant guilty.
- [36]The respondent accepted it was wrong for the tribunal of fact to reach a decision, based upon choosing between the evidence of the appellant and the prosecution witnesses. In the event his Honour found the evidence of the appellant to be unconvincing, he should have set it to one side and considered the prosecution evidence. In my assessment and allowing for the fact ex-tempore reasons were provided, the magistrate impermissibly based his decision upon preferring the prosecution witnesses over the appellant’s evidence, instead of making findings confirming he was prepared to accept the prosecution evidence beyond reasonable doubt, despite the evidence given by the appellant.[17]
- [37]In the circumstances, although the evidence of the witnesses appeared quite compelling, I am not able to make a determination about reliability and credibility of the witnesses. A rehearing will be necessary.
- [38]I order the convictions be set aside. A rehearing is ordered. I make no order as to costs.
Footnotes
[1]Section 6(1) Summary Offences Act 2005 (Qld).
[2]Section 83 Transport Operations (Road Use Management) Act 1995 (Qld).
[3]Allesch v Maunz (2000) 203 CLR 172; Teelow v Commissioner of Police [2009] QCA 84.
[4]Fox v Percy (2003) 214 CLR 118; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; McDonald v Queensland Police Service [2018] 2 Qd R 612.
[5][2008] QCA 231 at [17].
[6](2003) 214 CLR 118.
[7][2008] QCA 175.
[8]Justices Act 1886 (Qld).
[9]Exhibit 4 on the hearing.
[10] See MBL v JP [2011] QCA 2020; Smith v The Queen (2015) 255 CLR 161; Rowley v Commissioner of Police [2017] QDC 88.
[11]T1-54/5 – 9
[12]T1-70/36 – 71/5.
[13]The confusing statement was not clarified.
[14]T1-89/41.
[15]Indeed, at the hearing of the appeal, the appellant contrarily asserted the Magistrate was “having a nap” while the footage was played.
[16]D5/25 – 30.
[17]See Supreme and District Court Benchbook direction no. 26.