Lupson v Queensland Police Service
[2021] QDC 84
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- Unreported Judgment
- Lupson v Queensland Police Service[2021] QDC 84
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Lupson v Queensland Police Service[2021] QDC 84
Lupson v Queensland Police Service[2021] QDC 84
DISTRICT COURT OF QUEENSLAND
CITATION: | Lupson v Queensland Police Service [2021] QDC 84 |
PARTIES: | GRANT IAN LUPSON (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO: | 4469/19 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Southport - Date of Conviction: 24 August 2020 |
DELIVERED ON: | 20 May 2021 (ex tempore) |
DELIVERED AT: | Southport |
HEARING DATE: | 19 May 2021 |
JUDGE: | Dann DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – S 222 appeal – Justices Act 1886 – appeal against verdict – where the appellant was convicted after a trial of one count of assault occasioning bodily harm (domestic violence offence) – where no conviction was recorded – whether the verdict was unreasonable and against the weight of evidence – whether leave to appeal should be granted |
LEGISLATION: | Justices Act 1886, s 222 |
CASES: | Allesch v Maunz (2003) 214 CLR 180-181 Forrest v Commissioner of Police [2017] QCA 132 Fox v Percy (2003) 214 CLR 118 R v Dalton [2020] QCA 13 R v HBZ [2020] QCA 73 R v Shepherd (1990) 170 CLR 573 Rowe v Kemper [2009] 1 Qd R 247 Teelow v Commissioner of Police [2009] 2 Qd R 489 White v Commissioner of Police [2014] QCA 121 |
COUNSEL: | B Reilly for the appellant B Scarrabelotti for the respondent |
SOLICITORS: | Worcester & Co for the appellant Office of the Department of Public Prosecutions for the respondent |
Procedural summary and issues on the appeal
- [1]This is an appeal against a decision of a Magistrate made on 24 August 2020 where the appellant, Mr Lupson, was convicted after a trial of one count of assault occasioning bodily harm (domestic violence offence). I will refer to this as the Assault Occasioning Bodily Harm (‘AOBH’) charge for convenience. In the same trial the Magistrate acquitted Mr Lupson of a charge of breaching a protection order by failing to be of good behaviour. I will refer to this as the contravention charge for convenience. In each case the complainant was his then wife.
- [2]The sole ground of the appeal is that the verdict was unreasonable and against the weight of evidence[1]. The appellant submits that if the appeal is successful, an acquittal on the AOBH charge should be entered for the appellant. The appellant has, in any case, served the sentence imposed by the learned Magistrate on 24 August 2020 of 9 months’ probation. No conviction was recorded.
- [3]The issues to be resolved on this appeal are:
- (a)Whether, given the Magistrate acquitted the appellant on the contravention charge, the issues of credibility and reliability of the complainant’s evidence in respect of that charge affected her credibility and reliability generally;
- (b)Assuming that they did, whether the Magistrate’s reasoning considered this in the finding of guilt of the appellant in respect of the AOBH charge;
- (c)Whether the evidence relied on by the learned Magistrate is supportive of the complainant’s version of events on the AOBH charge could properly be so. This was because, the appellant submitted, in respect of the medical evidence, the prosecution was not in a position to exclude a later assault as having caused the injury. Further, whether other evidence found by the Magistrate to be supportive of the complainant, namely two photographs of a scratch on her ace, were so. The appellant contended that these two pieces of evidence could not be used as the learned Magistrate had done so to support the complainant’s account.
- (a)
- [4]In oral submissions the appellant focused predominately on this last argument, relying on written submissions in respect of the first two arguments.
Relevant legal principles
- [5]An appeal under s 222 of the Justices Act 1886 (‘Justices Act’) is by way of re-hearing.
- [6]For such an appeal:
“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 … [A]n appellate court can substitute its own decision based on the facts and the law as they then stand.”[2]
- [7]On an appeal under s 222, the District Court is required to conduct a real review of the trial (which includes the task of weighing conflicting evidence and drawing its own inferences and conclusions) and weighing 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 views.[3]
- [8]It is sometimes said that in cases where credit is an issue, it may be appropriate to give the reasoning of the Court being appealed from great weight.[4]
- [9]The Court has power pursuant to s 225 of the Justices Act to confirm, set aside or vary an order made or make any other order that the Court considers just.
The trial
- [10]The trial was completed in a day, with the complainant giving evidence and being cross-examined and two police officers giving evidence but not being cross-examined. The defendant was legally represented at the trial.
- [11]The complainant gave evidence through an interpreter and as a special witness.
- [12]The statement of Dr Kristian Krogh, Emergency registrar at the Gold Coast University Hospital, dated 18 November 2019 was tendered by consent. Two photographs of the complainant which were taken when the complainant reported the alleged assault to the police were also tendered.
- [13]
- [14]The learned Magistrate gave her ex tempore decision the same day as she heard all the evidence, after standing down to consider her decision for a little over one hour. She expressly stated that she was giving her decision without the benefit of the trial transcript.[7]
Whether, given the Magistrate acquitted the appellant on the contravention charge, the issues of credibility and reliability of the complainant’s evidence in respect of that charge affected the complainant’s credibility and reliability generally
- [15]
“Time: on or about 8.30pm
Date: 14 September 2019
Place: 2010 Gracemere Gardens Court, Hope Island, Queensland.
Further particulars:
… at the abovementioned time, date and place the defendant has returned home to the victim and strangled her around the neck.
The victim had a bodily injury of a hematoma on the right side of her neck as a result of the defendant strangling her.
The victim did not consent to the defendant assaulting her, nor was the assault authorised, justified or excused by law.”
- [16]The appellant has set out in written submissions a list of points where it is contended that attacks on the complainant’s credibility were successfully made. Relevantly, the learned Magistrate made findings in respect of the two main issues, being the complainant’s denial that she gets angry and aggressive and the complainant’s evidence about an incident involving her throwing a remote control at the appellant’s son.
- [17]The complainant denied in her evidence that she gets angry and aggressive.[9] The Magistrate found the complainant’s credibility to be undermined on the issues of whether or not she gets very angry, loses her temper and acts aggressively because of a video shown in cross examination of the complainant which, in the Magistrate’s view, showed her to be acting angrily and perhaps aggressively including potentially striking Mr Lupson.[10] The Magistrate recorded that Mrs Lupson was not forthright about getting angry and aggressive but she was forthright about the threat to kill.[11] The video was not tendered at the trial and did not form part of the record. The Magistrate’s finding was clearly open on the evidence of Ms Lupson.
- [18]Similarly, the learned Magistrate found Mrs Lupson’s evidence on the issue which resulted in a bruise to the head of the appellant’s son, James, to be not a frank and forthright response from the outset.[12] That finding was also open on the evidence.
- [19]In Ms Lupson’s favour, the Magistrate accepted that evidence concerning motive of Mrs Lupson was not made out given her visa status.[13] That finding is open on the evidence which was before the learned Magistrate.
- [20]Further, the learned Magistrate stated that some of the aspects of the complainant’s evidence being not entirely frank and forthright and lengthy and convoluted may have been attributable to her giving evidence through an interpreter.[14]
- [21]The learned Magistrate, having been the person who observed the complainant giving evidence, and being cross-examined particularly with the use of an interpreter and giving her evidence from a remote room, was in the best position to make such an assessment and due deference must be given to her assessment of the complainant.
- [22]In my assessment, the various matters which the learned Magistrate found affected the complainant’s credibility, were issues which could affect the complainant’s credibility generally.
Assuming that they did, whether the Magistrate’s reasoning considered this in the finding of guilt of the appellant in respect of the AOBH charge
- [23]As I understood the appellant’s oral submissions, the appellant accepted that the Magistrate’s reasons disclosed she had considered the issues of the complainant’s credibility and reliability in reaching her decision on the AOBH charge.
- [24]On my review of the transcript of the evidence at the trial and the magistrate’s reasons, that was a proper concession.
- [25]Even though the complainant gave evidence that before being strangled she and the appellant started fighting about something in the past and it was getting aggravating,[15] nothing was put to Mrs Lupsom in cross-examination about the AOBH charge that she was angry or aggressive with the appellant on 14 September 2019. Rather, what was put to her was that there was no assault on that day. In cross-examination the complainant confirmed her evidence that:
- [26]The learned Magistrate stated she accepted that the complainant’s evidence of the charged offence was consistent. She then went on to state her decision that this was particularly so in respect of the matters the subject of the AOBH charge which she maintained under challenge. By reference to the passages set out above from the complainant’s evidence in cross examination, that finding was open on the evidence.
- [27]It is apparent from the decision, that the learned Magistrate had turned her mind to the particular evidence given by the complainant in respect of the AOBH charge, and had accepted it notwithstanding some concerns about the complainant’s credibility on other issues. That, of itself, does not disclose error.
- [28]The Magistrate was, however, fortified in her assessment of the complainant’s evidence, by her analysis that the complainant’s version of events on 14 September was supported by other evidence. I move now to consider this part of the Magistrate’s reasoning.
Whether the evidence relied on by the learned Magistrate as supportive of the complainant’s version could properly be so
- [29]This argument relates to two pieces of evidence.
- [30]The first is of two photographs of a scratch on the complainant’s face which were taken by a police officer who took the complaint from the complainant. Whilst the police officer’s evidence was that she took the photographs on the date the complainant attended the station and made her complaint, the police officer gave no evidence of what that date was. The complainant gave no evidence of the date she attended the police station to make her complaint. Thus it is not possible to date the photographs which were tendered into evidence.
- [31]The Magistrate, however, without the benefit of the transcript, found in her decision that the officer had taken the complaint on 16 September 2019 and this was the date the photographs were taken.[18] The reference to that date is unsurprising because the police officer gave evidence “we took a lot of notes of what had occurred on the most recent incident of 16 September”.[19] However, there was no incident of 16 September in evidence. Nothing was clarified with the police officer as to what she meant by this. There is no evidence in the record to support the finding made by the Magistrate as to the date the photographs were taken.
- [32]The complainant’s evidence was that the strangling occurred at about 9pm on 14 September 2019. and the examining doctor performed her examination of the complainant at 3.49am on the morning of 15 September 2019. The police officer’s evidence was that she was on afternoon shift on the day the complainant attended the station. Logically, therefore, the photographs must have been taken after the complainant’s attendance at hospital.
- [33]This causes some problems of consistency of observations arising from the physical examination by the doctor. The examining doctor’s statement as to what she saw on examination after finding the hematoma, specifically states ‘no other bruising or injuries present’.
- [34]As such, the complainant’s account cannot rationally be supported by the photographs taken at some unknown later time, which contain the scratch and the learned Magistrate erred in finding the photographs containing the scratches were consistent with the complainant’s allegation.[20]
- [35]The second piece of evidence is Dr Krogh’s statement.[21] This was admitted into evidence by consent.[22] It contained the following relevant information:
- (a)She attended the complainant in the morning of 15 September 2019 at the Emergency Department of the Gold Coast University Hospital
- (b)The patient presented at 03:59 hours on Sunday with a sore throat after an alleged assault with choking;
- (c)On examination:
- Minor superficial hematoma on right side of neck under the mandible. Neck sore on palpitation on the front;
- No other bruising or injuries found;
- CT neck found no filling defect/intimal flap identified on CTA of the head and neck vessels;
- No treatment required for present injuries other than pain relief with simple analgesia … ;
- The injury would be consistent with a bodily injury that interferes with health or comfort … .
- (a)
- [36]The complainant’s evidence in chief, however, included evidence of a later assault by the appellant on her after the alleged strangling but before the attendance at the hospital.
- [37]The evidence concerning this later assault is very confined on the evidence in chief, being limited to the following passage: “…. I tried to collect Harry, but he – the defendant wouldn’t let me and he assaulted me again…”.[23] There is no evidence of where the assault was on the complainant’s body. Clearly, the complainant’s evidence was that the later assault, whatever it comprised, was inflicted on her by the appellant.
- [38]The complainant had already given her evidence that the alleged strangulation, had occurred ‘approximately 9pm, a bit after 9pm’.[24] The evidence from the complainant of the strangulation she alleged occurred was consistent with the event particularised by the Crown prior to the trial as the event it relied on to support the AOBH charge.
- [39]The appellant’s representative did not cross-examination the complainant about the later assault, and indeed, there was no obligation on them to do so.
- [40]The appellant now argues that, for the learned Magistrate to have been able to regard the doctor’s evidence as supportive of the complainant’s account of the assault, the Crown had to have excluded beyond a reasonable doubt that the assault which the complainant alleged in her evidence as occurring at about midnight, but before she saw the doctor, could not have been the cause of the injury as it was an uncharged act. The appellant further argues that the Crown has not done so.
- [41]The appellant submitted that it was not apparent from the reasons of the learned Magistrate that she undertook any process of drawing of inferences. I accept the appellant’s submission that there is nothing in the reasons to indicate that the Magistrate drew any inferences.
- [42]The Magistrate’s reasons do not address, in any respect, the complainant’s evidence of the assault she alleges occurred at about midnight on 14 September 2019, some three hours after the events of the alleged strangulation and some three to four hours prior to the doctor’s examination.
- [43]The Crown’s submission was that the complainant, in using the language of ‘assault’ rather than ‘strangulation’ to describe whatever occurred at about midnight, did not suggest a strangulation had occurred. As such, the Crown submitted that an inference could be drawn that the injury arose from the earlier strangulation about which detailed evidence was given, rather than the later, unparticularised assault about which there was no other evidence.[25]
- [44]A review of the transcript shows the complainant has used the word ‘assault’ to describe several different physical attacks she alleges the appellant perpetrated against her at various times:
- (a)In speaking about the history of their relationship she said: “When he got really, really drunk he would physically assault me. He would beat me up”;[26]
- (b)In describing some of the appellant’s actions on the contravention change she gave evidence “… he still followed me and he tried to assault me again …”[27]
- (c)In the context of the evidence about the strangulation at about 9pm, the complainant’s evidence was “It was him that was hurting me physically, assaulting me physically …”[28]
- (a)
- [45]Further, when asked about the injuries to her neck, the prosecutor asked the complainant what injuries she had as a result of the assault.[29] This question plainly did not clarify which actual event was being referred to.
- [46]As such, this Court cannot draw the inference contended for by the Crown that the complainant’s use of the word ‘assault’ must mean something different from or other than ‘strangulation”.
- [47]In view of the above analysis, in my view, the learned Magistrate has erred in finding that the evidence of the doctor concerning the existence of the hematoma, without considering the effect of the intervening assault, was supportive of the complainant’s account of the particularised strangulation.
What consequence flows from the fact that this evidence cannot be supportive of the complainant’s account?
- [48]On the ground that a verdict is unreasonable or cannot be supported by the evidence, the following principles were recently summarised in R v Dalton [2020] QCA 13 at [173] – [181][30]:
“It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported …
An intermediate court of appeal (the appellant court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand
The appellant court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused must weigh the whole of the evidence (in particular the competing evidence)
The appellate court must not disregard or discount either the consideration that the tribunal of fact is the body entrusted with the primary responsibility of determining guilt or innocence or that it had the benefit of having seen and heard the witnesses… [it] must pay full regard to those considerations
The ultimate question for the appellate court is whether it thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond a reasonable doubt that the accused was guilty
The setting aside of a tribunal of fact’s verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step
The appellate court’s reasons must disclose the assessment of the capacity of the evidence to support the verdict … .”
- [49]It is apparent from the learned Magistrate’s reasons that, having seen the complainant give evidence and having assessed her credibility and reliability in doing so, part of her preparedness to convict the appellant on the AOBH charge arose because she found support existed for the complainant’s version in the other evidence. So much can be seen from the part of her decision where she states:
- (a)She was not prepared to convict on the contravention charge because the date of that count is less certain, there’s no corroborating or independent evidence supporting the complainant’s evidence, there is no contemporaneous complaint to the police or any medical evidence supporting the allegation;[31]
- (b)By contrast, in respect of the AOBH charge, she observed the complainant’s version is consistent with the supporting evidence.[32] That evidence was both the photographs of the scratches and the medical evidence.
- (a)
- [50]In this Court, conducting a review of the evidence concerning the AOBH charge with the benefit of the transcript:
- (a)The complainant was not asked any questions about being scratched during the events of 14 September 2019;
- (b)Her evidence was that she never hurt herself or inflicted injury on herself in respect of the events of 14 September 2019;[33]
- (c)The time of presentation at the hospital was 03.59 hours on Sunday 15 September 2019. Whilst this is capable of corroborating the date of the events as 14 September 2019, it says nothing about whether the hematoma was caused by the alleged strangling or the later assault about which nothing is known;
- (d)The complainant gave evidence that DV Connect had told her to go to the hospital so the hospital could look at her throat where it was strangled when she called them.[34] Again this evidence is capable of corroborating the date of the events of 14 September 2019 and the fact of an alleged strangulation, but it says nothing about whether the hematoma was caused by the alleged strangling about which the complainant gave evidence, or the later assault, about which the complainant gave brief evidence, and of which nothing else was known;
- (e)The history taken by the doctor at the time of the complainant’s presentation is of “alleged assault with choking”. The Court of Appeal has recognised that the dictionary definitions show that the terms choke, suffocate and strangle can be used interchangeably[35]. This aspect of the statement is supportive of an allegation by the complainant of being strangled, but it too says nothing as to whether this occurred during the event which the complainant gave specific evidence of, or the later assault which the complainant gave only the most general evidence of. In light of the intervening assault, the Court cannot draw the inference that this must relate to the strangling at around 9pm. It is unsurprising that the doctor’s statement does not go into more specific details. The relevant information for the doctor in considering the medical issues is the description of the potential cause of any symptoms or injury which may be observed on examination;
- (f)On examination, specifically, the doctor ascertained a minor superficial hematoma on the right hand side of the neck under the mandible and that the neck was sore on palpitation at the front. These observations are supportive of the suggestion of pressure being applied to the neck region. The doctor also recorded “no other bruising or injuries found”. As I previously noted, this is inconsistent with the photographs[36] which appear to show a scratch on the right hand side of the complainant’s jaw and which should have been freshly present on the complainant’s face when the doctor performed her examination if it occurred during the alleged strangling.
- (a)
- [51]The appellant further submitted that in drawing inferences, the only inferences which could be drawn were those which were reasonably open on the evidence, and no inference could be drawn which was adverse to the appellant unless it was the only rational inference arising from the evidence .
- [52]In view of:
- (a)The Magistrate’s findings about the credibility of the complainant generally, which I have found were open on a review of the transcript and should be paid particular attention given the Magistrate was better placed in this Court to assess the complainant;
- (b)The Magistrate’s conviction of the appellant being anchored in the existence of support in the other evidence of the complainant’s version of the AOBH charge;
- (c)The evidence shows the photographs of the scratches were taken on an unknown date, but after the doctor’s examination which expressly noted “no other injuries were present”;
- (d)The prosecutions inability to exclude the later assault as causative of the hematoma which was observed;
- (a)
this Court cannot be satisfied that the Crown has proven the AOBH charge as particularised beyond a reasonable doubt.
- [53]The Court orders:
- 1.The appeal be allowed;
- 2.The appellant’s conviction in the Magistrates Court at Southport on the charge of assault occasioning bodily harm be set aside;
- 3.The appellant be acquitted of the charge of assault occasioning bodily harm.
Footnotes
[1] A further ground for which leave was foreshadowed to be sought in the written outline was abandoned at the hearing.
[2] Allesch v Maunz (2003) 214 CLR 180-181 at [23], Teelow v Commissioner of Police [2009] 2 Qd R 489 at 493 [4], White v Commissioner of Police [2014] QCA 121 at [8].
[3] Fox v Percy (2003) 214 CLR 118 at 127-8 [27], Rowe v Kemper [2009] 1 Qd R 247, 253 at [3], White v Commissioner of Police [2014] QCA 121, at [6], Forrest v Commissioner of Police [2017] QCA 132.
[4] Forrest v Commissioner of Police [2017] QCA 132 at p 4.
[5] Transcript closing address of defence: 1-89 line 18.
[6] Transcript closing address of defence: 1-89 lines 12 – 14.
[7] Transcript 1-91 lines 11 – 14.
[8] The particulars were tendered as forming part of Exhibit A.
[9] Transcript 1-53 lines 25 – 40.
[10] Transcript 1-94 lines 1 – 9.
[11] Transcript 1-94 lines 13 – 14.
[12] Transcript 1-94 lines 23 – 25.
[13] Transcript 1-94 lines 24 – 27.
[14] Transcript 1-94 lines 28 – 31.
[15] Transcript 1-27 lines 18 – 20.
[16] Transcript 1-58 lines 15-18.
[17] Transcript 1-59 lines 10-11.
[18] Transcript 1-93 lines 5 – 7.
[19] Transcript 1-76 lines 4 – 5.
[20] Transcript 1-95 lines 1 – 3.
[21] Exhibit 1.
[22] Transcript 1-15 lines 37 – 41.
[23] Transcript 1-30 lines 6 – 7.
[24] Transcript 1-28 line 11.
[25] R v Shepherd (1990) 170 CLR 573.
[26] Transcript 1-20 lines 38 – 39.
[27] Transcript 1-26 lines 23 – 24.
[28] Transcript 1-27 lines 29 – 30.
[29] Transcript 1-31 lines 8 – 9.
[30] Taken from the outline of submissions of the respondent at [10]. The cases cited in the passages set out have been omitted.
[31] Transcript 1-95 lines 5 – 8.
[32] Transcript 1-95 lines 10 – 12.
[33] Transcript 1-70 lines 8 – 16.
[34] Transcript 1-30 lines 43 – 44.
[35] R v HBZ [2020] QCA 73 (HBZ) at [55] per Mullins JA, McMurdo JA and Boddice J concurring.
[36] Exhibit 3.