Maggs & Pasitkunlapat v Commissioner of Police
[2024] QDC 102
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- Unreported Judgment
- Maggs & Pasitkunlapat v Commissioner of Police[2024] QDC 102
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Maggs & Pasitkunlapat v Commissioner of Police[2024] QDC 102
Maggs & Pasitkunlapat v Commissioner of Police[2024] QDC 102
DISTRICT COURT OF QUEENSLAND
CITATION: | Maggs & Pasitkunlapat v Commissioner of Police [2024] QDC 102 |
PARTIES: | MAGGS, Paul Mathew (Appellant) and PASITKUNLAPAT, Kanpachira (Appellant) V COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | DC No 376 of 2023 DC No 377 of 2023 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrate Court at Southport |
DELIVERED ON: | 5 July 2024 |
DELIVERED AT: | Southport |
HEARING DATE: | 7 May 2024 |
JUDGES: | Prskalo KC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST CONVICTION – where the appellants were each convicted by a magistrate of assault occasioning bodily harm in company – where the appeal against conviction was brought pursuant to s 222 of the Justices Act 1896 (Qld) – where it was submitted the convictions were unreasonable and against the weight of the evidence – where it was submitted the Magistrate erred in making finding of facts and erred in law – whether the appeal should be allowed Justices Act 1886 (Qld) ss 222, 223, 225 Criminal Code (Qld) ss 24, 267, 268, 269, 271, 272, 273, 277, 339, 668E DU v Jackson (DCJ) [2024] QCA 122 Bode v Commissioner of Police [2018] QCA 186 Fox v Percy (2003) 214 CLR 118 McDonald v Queensland Police Service [2017] QCA 255 R v Raabe [1985] 1 Qd R 115 R v Markovski [2023] QCA 52 Lergesner v Carroll [1991] 1 Qd R 206 R v Mrzljak [2005] 1 Qd R 308 |
COUNSEL: | R Pearce for the Appellants T Connolly for the Respondent |
SOLICITORS: | Hannay Lawyers for the Appellants Office of the Director of Public Prosecutions for the Respondent |
- Introduction
- [1]Pursuant to s 339 of the Criminal Code (Qld), the appellants, Mr Maggs and Ms Pasitkunlapat were each convicted by a magistrate of an offence of assault occasioning bodily harm in company.
- [2]They appeal against their respective convictions pursuant to s 222 of the Justices Act 1886 (Qld) on the grounds that:
- The finding of guilt is unreasonable and cannot be supported having regard to the evidence.
- The learned Magistrate’s findings contain errors of fact and law, including the reversal of onus, and give rise to a miscarriage of justice.
- The evidence
- [3]Throughout the hearing in the court below, the appellant Ms Pasitkunlapat was referred to as Mrs Maggs.
- [4]On the evening of 8 December 2022, the appellants attended the residence of the complainant’s ex-wife. They were accompanied by a third person, who, through out the proceedings, was only identified as the ‘cat lady’. Mr Maggs knocked on the front door. The complainant, who occasionally stayed at the residence, answered the door. The unfortunate events which followed were largely captured by CCTV footage.[1]
- [5]The complainant testified that he heard an almighty bang, or three bangs, at his front door. It was a Crimsafe door.[2] The banging scared the hell out of him and his children. He proceeded to the door and asked Mr Maggs why ‘the fuck’ he was banging on his door. Mr Maggs asked him if he had kicked ‘this lady’s cat’ and pointed to the cat lady. The complainant replied that he had not. The complainant opened the door (about three quarters of the way), and Mr Maggs opened it further as if he wanted to come in. The complainant defensively pushed him away; Mr Maggs started laying punches into him. The complainant explained that he reacted when Mr Maggs put his hand on the door and went to open it further. He pushed Mr Maggs away.[3]
- [6]The complainant testified that he was assaulted by both appellants as he attempted to defend himself. He could not remember how long he was assaulted for. He needed a brain scan because he has had memory loss ever since it happened. He pushed Mr Maggs because he feared he might have come into the house and escalated things further. His kids were petrified.[4]
- [7]Some 20 to 30 minutes earlier, the complainant had walked the street in an attempt to pinpoint the noise of a reversing forklift siren; he found out where that was. As he was walking home, he encountered a person who he called the ‘cat lady’. One of her cats was having ‘a crap’ in the bushes and he shooed it away. The cat lady commenced recording him on her mobile phone.[5] This recording was labelled exhibit 3 in the trial[6], although the basis for its admissibility was in contention.
- [8]The complainant had a poor recollection of that altercation. He did recall though that he attempted to grab the phone as she was recording him and was ‘karate’ kicked in the leg. He had seen the cat lady before when she was walking her cats and had had conversations with his neighbours regarding cat faeces in the garden beds.[7]
- [9]During cross examination, he accepted he told police that he was not sure why the cat lady was filming him. He thought it might be because he had a beer in his hand. He recalled her accusing him of kicking the cat, although denied that he had. He denied assaulting her and could not remember threatening her. He denied more generally that he might threaten women.[8]
- [10]Defence counsel requested that the recording be played, without objection from the prosecution. The complainant identified himself as the person in the recording and confirmed the video was taken just prior to the incident at the house.[9] He denied that he had kicked the cat, or that he had assaulted or threatened the cat lady. He denied that he had previously thrown a bucket of water at two people over a paling fence, although admitted he had thrown a bucket of water on top of the fence because there was ‘bird crap’ on it. He disagreed that he was a man with a short temper and aggressive. He was though a ‘sick person’ and ‘mentally ill’.[10]
- [11]The complainant maintained that he was not a person who threatens violence towards women.[11] He was cross examined about previous altercations with other people. He could not recall some incidents or aspects of others, and he more generally denied that he was the aggressor. He admitted that during a domestic violence incident, he smashed a chair on the dining room table. He denied that his conduct during the ‘cat lady incident’ was threatening or aggressive.[12] He denied being in an aggressive frame of mind when Mr Maggs banged on his door and maintained that he pushed Mr Maggs because he feared for his life.[13]
- [12]The complainant suffered injuries amounting to bodily harm and such injuries were proved through formal admission by defence counsel.[14]
- [13]With reference to the CCTV, the prosecutor asked the complainant whether, after he pushed the male and was punched, he then consented to the fight to occur for ‘that period of time’. He testified that he did not. He was unable to go back inside after the first punch was thrown because Mr Maggs was ‘laying’ into him. He did not go back inside the house because he was fearful Mr Maggs would come into the house; he was just trying to defend his property.[15] He didn’t think he could have removed himself from the incident. He accepted he headbutted Mr Maggs; he did that to try and get him off him.[16]
- [14]During cross examination, the complainant denied that he had a history of aggressive behaviour, but accepted he had a history of short-temperedness.[17] He accepted he had been diagnosed with depression and anxiety, as well as possibly post-traumatic stress disorder prior to the incident on 8 December 2022.[18] He could not recall telling police that he could not remember what happened after the banging on the door. His memory returned after he watched the CCTV footage.[19]
- [15]The complainant maintained that when Mr Maggs grabbed the door, he thought he was going to come into the house.[20] Mr Maggs was ‘swinging at the door, bashing on the door’ when he arrived and that was an indication of violence. He opened the door because it was there to be opened and someone was bashing on it.[21] He agreed that once the incident started, they hardly let each other go; it only ended when the complainant was on the ground, with Mr Maggs grabbing his ‘balls’. He accepted it was after that, there was a conversation about Mr Maggs teaching him a lesson.[22] He denied he told police that he had never punched Mr Maggs. He was not ‘the fighting type’; he threw punches to defend himself.[23] He accepted he headbutted Mr Maggs and grappled and wrestled with him.[24]
- Other evidence
- [16]Investigating police were cross examined about the compilation of their respective statements and other aspects of the police investigation, largely with a view to undermining the objectivity of their approach to the investigation. Police attempted to get a statement from the cat lady, but she declined to provide one.[25]
- [17]The prosecution tendered the CCTV footage at the house (exhibit 1), a bundle of 63 photographs of the complainant’s injuries (exhibit 2) and a CD containing body worn camera footage and photos (exhibit 4). The Exhibit List recorded the tender of a CD, provided by the lawyers and tendered by the prosecution as exhibit 3.
- Submissions at the hearing below
- [18]By written submissions, the defence case was that the complainant had consented to a fight by responding wholly or in part to Mr Maggs’ invitation to ‘do it.’
- [19]Consent aside, it was submitted that the prosecution had not negatived, beyond reasonable doubt, the application of s 271(1) in respect of Mr Maggs, nor the application of s 273 in respect of Ms Pasitkunlapat. It was submitted that Ms Pasitkunlapat acted in defence of her husband, or at least in an honest and reasonable belief that she was defending him.
- [20]It was submitted that there was no evidentiary foundation for the operation of s 267 and s 277 of the Criminal Code.
- [21]Defence counsel expressly disavowed reliance on s 272. It was essentially argued that the assault on Mr Maggs was unprovoked, there being no evidentiary foundation for a finding that he had provoked the complainant, and that the force used was necessary to make effectual defence against the complainant’s violent acts towards him. That being the case, Ms Pasitkunlapat was lawfully entitled to assist her husband in his defence against the unprovoked assault.
- [22]The prosecution submitted that the actions of both appellants was not authorised, justified or excused by law. It was further submitted that the force used upon the complainant was not proportionate to the immediate need and thus was not reasonable. In evidence, the complainant stated he did not provide consent to be assaulted by either appellant.
- [23]The prosecution submitted that Mr Maggs threatened the application of force towards the complainant by way of a bodily gesture with the actual present ability to ‘effect the purpose of assaulting’ the complainant and thereby causing bodily harm.
- [24]This submission was expanded upon at [35] of the written outline:
“As referred to above, the gesture of one’s body can be described as an act intending to threaten or attempt an application of force. The bodily gesture of Maggs banging loudly on the front door multiple times and gesturing with both hands to fight thereafter, arguably corresponds with the common law concept of assault noting it can be inferred Maggs was attempting to initiate a fight which was not consented to. Prosecutions submit it can be inferred Maggs was threatening to apply or attempt (sic) to apply force by the gesture with the apparent present ability to effect the purpose …” (footnotes omitted)
- [25]It was submitted that the act of gesturing with both hands and the words ‘come on’ prove Mr Maggs had the intention to threaten and fight the complainant. The CCTV evidenced that, within seconds, the complainant immediately reacted by pushing Mr Maggs back out of his doorway. The complainant’s evidence was that he acted out of fear and further that he was trying to defend his property and felt threatened by the appellant. It was submitted that the complainant did not provide consent to enter into a consensual fight. If the court found the immediate push to Mr Maggs after an invitation to fight showed implied consent, the degree of force used thereafter went beyond the consent implied.
- [26]The prosecution made extensive submissions on the facts as it related to the credibility of the appellants with reference to the CCTV footage.
- [27]It was also submitted that the actions of Mr Maggs provided the complainant with a defence under s 277 of the Criminal Code.
- [28]As for the application of s 271, it was submitted that the appellant Mr Maggs could not rely upon an unprovoked assault because it was clear his intention was to provoke the complainant. The push from the complainant was a justified use of force to remove a person who was unlawfully on the complainant’s property. In the event the court did not agree on the application of s 277, it was submitted that Mr Maggs used more force than was necessary. Similarly, it was submitted that Ms Pasitkunlapat was not aiding in self-defence, as the degree of force evidenced throughout the CCTV footage was not reasonably necessary. It was submitted that Ms Pasitkunlapat did not believe on reasonable grounds that Mr Maggs was at risk of imminent danger; rather she inflicted bodily injury on the complainant out of anger arising from the incident with the ‘cat lady.’
- The nature of an appeal by way of rehearing
- [29]Section 222(1) of the Justices Act 1886 provides for a right of appeal against conviction to the District Court. Section 223(1) provides that such an appeal is by way of rehearing on the original evidence on the record, although pursuant to s 223 (2) the court may give leave to adduce, fresh, additional or substituted (new) evidence if the court is satisfied there are special grounds for giving leave. Section 225 of the Act empowers a judge to confirm, set aside or vary an appealed order, or make any other order considered just.
- [30]The nature of the ‘rehearing’ provided in these and like provisions has been described in many cases. The rehearing does not involve a completely fresh hearing by the appellate court of all the evidence. The court proceeds on the basis of the record and any fresh evidence, that, exceptionally it admits: see Fox v Percy (2003) 214 CLR 118 at [22].
- [31]It is well established that, on an appeal under s 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: McDonald v Queensland Police Service [2017] QCA 255 per Bowskill JA at [47].
- [32]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: Bode v Commissioner of Police [2018] QCA 186 per McMurdo JA at [42], citing Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679.
- Ground one
- [33]The appellants assert that the respective findings of guilt are unreasonable and cannot be supported by the evidence.
- [34]This ground of appeal is expressed in the statutory formula which appears in s 668E of the Criminal Code on an appeal to the Court of Appeal. However, an appeal under s 222 is not analogous to an appeal to the Court of Appeal under s 668E, where a jury verdict may be set aside on the ground it is unreasonable or cannot be supported by the evidence. In such an appeal, the question for the Court of Appeal is whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he or she was convicted: Bode v Commissioner of Police per McMurdo JA at [39].
- [35]Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts. A jury gives no reasons, and this necessitates assumptions that are not appropriate to, and need modification for, appellate review of a judge’s detailed reasons: Fox v Percy at [24].
- [36]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: Fox v Percy at [25] and see also the observations of Dalton JA in DU v Jackson (DCJ) [2024] QCA 122 at [83] to [89].
- [37]By written outline of submissions, the appellants contend that the learned Magistrate’s findings of fact and law concerning the interaction between the appellants and the complainant are at odds with the evidence as captured in the CCTV footage (exhibit 1). It is argued that the learned Magistrate’s rejection of the available defences finds no support from an objective analysis of exhibit 1, is contrary to the evidence and is unreasonable.
- [38]I accept the appellants’ contention that, upon an objective analysis of exhibit 1, the complainant both opened the security door and (almost immediately) applied physical force to the appellant Mr Maggs by placing both hands to his throat and pushing him backwards.
- [39]However, for the following reasons, I do not accept that an objective analysis of exhibit 1 demonstrates the failure of the prosecution to negative the defences raised by the appellants: namely, that the complainant consented to the application of force, and that the appellants acted in self-defence pursuant to s 271 (1) and s 273 of the Criminal Code.
- [40]For the reasons outlined below, in my independent analysis of the evidence and evaluation of the competing contentions, I am satisfied that the prosecution has proved the guilt of each appellant beyond a reasonable doubt.
- Ground two
- [41]The appellants assert that the learned Magistrate’s findings contain specific errors of fact and law, including the reversal of onus, and give rise to a miscarriage of justice.
- Exhibit 3
- [42]The appellants contend that the learned Magistrate failed to have any or any adequate regard to the content of exhibit 3. Exhibit 3 was a video file recording of the complainant’s confrontation with the cat lady a short time prior to the offending.
- [43]During the trial, defence counsel indicated that he was prepared to tender the recording, if the prosecution didn’t.[26] The recording was handed up by the prosecutor and marked as exhibit 3 by the court.[27] On a strict reading of the transcript, it is unclear whether the recording was tendered by the prosecutor or defence counsel. Irrespectively, the recording was tendered into evidence through the complainant, who identified himself on the footage and thereby authenticated it.
- [44]
“Defence relied on this footage pertaining to the subject event, which brought about the charges against the defendants, and which is conceded by the parties to be the catalyst for the actions of the defendants. Prosecution submitted that the video was provided, not tendered to the court. Prosecution says the evidence provided of the prior event is hearsay evidence and therefore inadmissible at law. It is correct that exhibit 3 was not tendered by prosecution, nor introduced through their witnesses, and it was not introduced through either of the defendants or any witnesses for the defence.
During the proceeding, (defence counsel) informed the court that prosecution have this video and that he would like it played. It is noted that (defence counsel) states in his submissions that this video was included in the brief. Prosecution stated to the court that there was no objection to the video being played. The video was played, and defence then asked Mr Ryan questions in respect of the video.
Having reviewed the transcript of the hearing, the court marked the - it is clear that the court marked the footage exhibit 3, and there was no further exchange in respect of this video; that is, that it should not be marked as an exhibit and should be marked for identification. At the time, there was no objection to the footage being given an exhibit number.
Mr Ryan gave evidence regarding his interaction with the cat lady, prosecution refers to this interaction in their submissions, and defence refers to the footage in exhibit 3 in their submissions. Mr Ryan’s evidence is mostly consistent with the footage in exhibit 3. It is clear that both defendants were not present at the time of interaction between Mr Ryan and the cat lady.
It is noted from body-worn camera footage of the attending police officers that the defendants informed the police that they had been out for dinner. During cross- examination of Mr Ryan, Mr Ryan adopted the contents of conversations between him and the cat lady in exhibit 3. The reporting is a prior consistent statement and therefore not admissible.[29] Exhibit 3 could not be tendered through Mr Ryan, as he was not the maker of that footage. The court has taken into consideration the footage as played and the evidence given by Mr Ryan in respect of his interaction with the cat lady.”
- [45]The appellants contend that the recorded exchange between the cat lady and the complainant provided evidence of the complainant’s aggressive temperament on the evening in question and was plainly admissible and properly tendered into evidence.
- [46]Apart from noting the concession of the parties that the confrontation was the catalyst for the appellants’ actions, the reasons do not expressly identify any other basis for admissibility. The finding that the recording was not admissible as a prior consistent statement is correct in principle. But the footage was not received into evidence for that purpose.
- [47]As submitted by the appellants’ counsel on this appeal, prior to the reception of the footage into evidence, the complainant could not recall if he threatened the cat lady and more generally denied that he would ever threaten a woman.[30] Further, the complainant positively asserted that his behaviour towards the cat lady was not aggressive or threatening.[31]
- [48]Relevant evidence is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings.
- [49]The recording was relevant in that, on one view of it, it damaged the complainant’s credibility to the extent that he denied being aggressive or threatening to the cat lady.
- [50]It was also relevant to the extent that it showed the complainant to be in an agitated and belligerent state proximate to the fight with the appellants. It can be rationally inferred that the loud banging on his front door only served to agitate the complainant further.
- [51]A central issue in the trial was whether the complainant acted upon the invitation to fight issued by Mr Maggs. To prove the guilt of the appellants, the prosecution was required to prove beyond reasonable doubt that the complainant did not consent to the assault upon him.
- [52]The footage was relevant as evidence from which it could be inferred that the complainant responded to an invitation to fight, rather than acting out of fear or in defence of his property. As a general proposition, a person may simultaneously be agitated and fearful. But a proper resolution on the issue of consent required an evaluation of all relevant facts and an analysis of the reasonable inferences which could be drawn from those facts.
- [53]During oral submissions on the hearing of this appeal, the respondent conceded that exhibit 3 should have been tendered and accepted as an exhibit.
- [54]I am of the view that exhibit 3 was relevant and admissible. As they relate to the treatment of exhibit 3, the reasons in the hearing below are deficient. The error necessarily affected the learned Magistrate’s findings on the facts.
- The failure to call witnesses and adduce evidence
- [55]The appellants contend that the cat lady was a relevant witness and yet she was not called by the prosecution. It is argued that no explanation was provided as to the failure to call the cat lady and, accordingly, the court should proceed on the basis that her evidence would not have advanced the prosecution case. The learned Magistrate dealt with this issue in the following terms[32]:
“Next is the issue of the cat lady not being called to give evidence. Prosecution and defence did not call the cat lady to give evidence. The interaction between the cat lady and (the complainant) was viewed by the court in the footage marked exhibit 3, which, as noted earlier, is conceded by both parties to be the catalyst to the subject altercation which occurred. No explanation was provided as to the failure to call the cat lady by either party. The court has determined this matter on the basis of the evidence before it.”
- [56]It is argued that these comments amount to a reversal of the onus of proof. The appellants point to a similar error in the learned Magistrate’s comments relating to the absence of medical evidence regarding the complainant’s mental health. At t 1-4, the learned Magistrate observed that no supporting documentation was tendered by the defence to the court regarding the complainant’s mental health and therefore the court was not able to give proper consideration to the complainant’s PTSD and his mental health.
- [57]By written outline on the appeal, the respondent concedes that the learned Magistrate was in error in so far as the findings related to the failure to call the cat lady as well as the failure to adduce medical evidence. The respondent accepts that these matters amount to a reversal of the onus of proof. The respondent however submits that the learned Magistrate’s comments relate to peripheral matters which had no material bearing on the ultimate finding.
- [58]I accept the submission that the defence were not required to provide an explanation as to the failure to call the cat lady. To the extent that the comment of the learned Magistrate tended to suggest an onus to adduce evidence, it was in error. Nevertheless, the learned Magistrate correctly proceeded on the basis that the court was to determine the matter on the basis of the evidence before it.
- [59]I am not prepared to proceed on the basis, as urged by the appellants’ counsel on this appeal, that the cat lady’s evidence would not have advanced the prosecution case. Senior Constable Morris testified that he made enquires with the relevant person. He asked her if she wanted to provide the footage or a statement and she initially said yes; however, when he did not hear from her for a couple of days, he got back to her, and she said that she was given advice not to provide a statement.[33] This amounts to a satisfactory explanation as to why the prosecution did not call the cat lady.
- [60]I accept the appellants’ submission that the complainant’s mental health ailments were a proper matter for cross examination in so far as they might have impacted upon his behaviour and his capacity to recall events. The complainant conceded that (long term) memory loss was one of the symptoms of his mental health ailments.[34]
- [61]I also accept that the defence bore no onus to adduce supporting documentation regarding the complainant’s mental health and that the comments by the Magistrate which tended to cast an onus on the defence were wrong as a matter of law. Irrespectively, the complainant admitted that he had mental health conditions which impacted upon his memory. This was (and now is) a relevant factor to be considered generally in the evaluation of the complainant’s testimony. In the circumstances of this case, supporting documentation was not likely to have advanced the matter one way or the other.
- Criticisms of the appellants’ credit
- [62]The appellants complain that the learned Magistrate’s criticism of their credibility was not supported by the objective evidence and, in Ms Pasitkunlapat’s case, was attended by factual error.
- [63]The latter complaint is justified. The learned Magistrate stated:
“In respect of Mrs Maggs, Mrs Maggs stated to police that (the complainant), ‘tried to touch her boobies too’. This was not evidenced in the CCTV footage, and there is no evidence before the court to the contrary. Again, this inconsistency does not place Mrs Maggs in the position of a credible witness.”[35]
- [64]It is correct that Ms Pasitkunlapat did not accuse the complainant of trying to touch her breasts. She told police that the complainant had tried to touch the ‘boobies’ of the cat lady. The learned Magistrate erred in finding that this specific statement did not place Ms Pasitkunlapat in the position of a credible witness.
- [65]As to Mr Maggs’s credit, the learned Magistrate considered that he had made a number of statements to police which were inaccurate when compared with the CCTV footage.[36] A few examples were given, one of which was the assertion that the complainant ‘came out swinging’. The learned Magistrate found the inconsistencies to be concerning and considered that they did not place Mr Maggs in the position of a credible witness.
- [66]Upon a strict interpretation of events, the complainant did not come out swinging and a statement to that effect might correctly be described as inaccurate. In this respect, the Magistrate was not in error. However, one example of an inconsistency was said to be the statement by Mr Maggs as follows:
“We knocked on the door, and he arced up and placed his hands on the throat”.
- [67]In my view, the Magistrate was wrong to find that this was not what was shown on the footage. This description by Mr Maggs was accurate enough, although incomplete in that it left out aspects of the interaction.
- [68]In my independent analysis, I am of the view that Mr Maggs’ statements to police are not inconsistent with the CCTV footage. The account given at that time was incomplete, but not necessarily at odds with the CCTV footage. The statements to the effect that the complainant ‘came out swinging’ are in the nature of a general description of events and are accurate in that sense. Considered as a whole, the statements do not reflect adversely on Mr Maggs’ credit.
- Conclusion on ground 2
- [69]For the reasons outlined above, the decision in the court below was affected by error.
- Consideration
- [70]I am required to make my own findings of fact and determine whether the case against the appellants is proved beyond reasonable doubt. While they are conjointly charged, the case is to be considered against each appellant on the evidence admissible in their respective cases.
- [71]The CCTV footage largely captures the unfortunate turn of events. Mr Maggs delivers three loud bangs to the security door. At the complainant’s approach, Mr Maggs says, “Good aye buddy”. The complainant replies, “What the fuck are you banging on the door for?” in a loud tone. Mr Maggs asks, “Did you hit that lady’s cat?” The complainant replies, “No.” Mr Maggs says, “Mate if you touch that lady’s cat again, I’m going to …”. At that point the security door is closed. Before Mr Maggs could complete the sentence, the complainant, in an aggressive tone, says, “Hey, don’t be fucking banging on the fucking door – you’re coming into my property banging on the fucking door.” Almost simultaneously, the complainant opens the screen door partially, before opening it fully. Mr Maggs is seen to pull open the door on the latter part of its course. Nevertheless, in my view the open trajectory of the door remains in the complainant’s control.
- [72]At about 00:17, the door is fully open, with the complainant in control of it in so far as his hand remains on the handle and Mr Maggs is not touching it. Mr Maggs says, ‘do it, do it’ and gestures with his hands. The action and the words spoken can only be understood as an invitation to fight. Immediately thereafter, the complainant moves towards Mr Maggs and pushes him, with his hands connecting with Mr Maggs’ throat. It is difficult to tell from the footage if this was an attempt to grab Mr Maggs by the throat or to push him away by force applied to the throat. Irrespectively, because of the immediacy of the complainant’s reaction, I find it to be a direct response to Mr Maggs’ invitation.
- The absence of consent as an element of assault
- [73]To prove its case against the appellants, the prosecution was required to prove beyond reasonable doubt that the complainant was unlawfully assaulted.
- [74]The term assault of itself involves the notion of want of consent. An assault with consent is not an assault at all. Section 339 of the Criminal Code, including assault as an element, is one of those sections where the legislature has left as a fact to be decided by the jury (or tribunal of fact) whether or not the relevant application of force was with or without consent. If it was with consent, then the Crown has failed to discharge the onus of proof which it bears to negative consent: see the observations of Cooper J in Lergesner v Carroll [1991] 1 Qd R 206 at 217 and 218.
- [75]As a general proposition, a person may respond to an invitation to fight while simultaneously being fearful of an imminent assault. In such a case, for example, it does not automatically follow that the person has thereby consented to being assaulted in the event he delivers a pre-emptive blow fearing an attack.
- [76]In the circumstances here, immediately prior to launching himself at Mr Maggs, the complainant retained control of the security door. As at that time, he had not asked the appellants to leave. Neither appellant made any attempt to enter the house. On any view of it, the complainant was in a belligerent mood. He was plainly seen to be incensed at the loud banging on his door and appeared not to have regained calm after his hostile interaction with the cat lady.
- [77]I reject any notion, as a finding of fact, that the complainant initially acted out of fear or in defence of his person or property. The circumstances do not permit such a finding and the complainant cannot avail himself of s 267 or s 277 of the Criminal Code.
- [78]Nor do the facts here permit a finding that Mr Maggs’ gestures and words in inviting a confrontation with the complainant amounted to an assault against him. I find that to be so whether for the purpose of proving the charge against the appellants, or for the purpose of making lawful the complainant’s initial push against the appellant’s throat.[37]
- [79]I conclude that the complainant acted upon the invitation issued by Mr Maggs and, by so acting, implicitly consented to the application of a degree of force by Mr Maggs.
- [80]The real issue in this case is whether the Crown have proved beyond reasonable doubt that the complainant did not consent to the gravity and degree of force used against him.
- The limits of consent
- [81]While the absence of consent is an element of the offence of assault, the consent referred to is not of an abstract nature. Whether express or, as is the most usual, implied, the consent contains a factor as to degree. While this may not always be easy to define in precise terms it is often possible to determine with ease whether the bodily harm caused manifests a degree of violence which is within the limit consented to. But the point is that there is a limit to be found: see Lergesner v Carroll per Shepherdson J at 211 to 212, citing R v Raabe [1985] 1 Qd R 115 per Derrington at 124 to 125.
- [82]In Lergesner v Carroll at 219, Cooper J held:
“In each case it is a question of fact for the jury to determine whether consent existed and if it did exist, the precise limits of the consent. No useful comment can be made as to where the limits, if any, of a consent lie. This is to be determined by the jury as a fact having regard to all the circumstances existing at the time the consent is expressly given or is to be inferred from the circumstances. …. In the case of a fight, of the type with which this case and Raabe were concerned, the type of considerations mentioned by Thomas and Derrington JJ. in Raabe and referred to in the reasons of my brother Shepherdson J. will be relevant. However, whatever the limits, if any, of the consent be, they are set by the person giving the consent and they are not imposed as a matter of law. In most, if not all cases, the practical consequence will be that the circumstances dictate that the person giving the consent inferentially placed some limits on it. The consent is to the application of force and not to the consequence that follows from it. Thus, the jury must determine the limits of the consent before the first blow is struck in a fight, and this will include a consideration as to whether or not the person giving consent intended that it should be withdrawn or expire if any subsequent event should occur e.g., if the person should become incapable of defending himself.”
- Analysis of the issue of consent
- [83]After the initial exchange of violence, Mr Maggs and the complainant grapple and wrestle with each other, each delivering various blows upon the other. Ms Pasitkunlapat was not deliberately struck by the complainant and, although less engaged in the fight, herself delivered various blows to the complainant.
- [84]However, a close analysis of the CCTV footage shows that the grappling and wrestling is not entirely continuous. That fact is relevant both to the issue of consent and to the separate question of whether Mr Maggs actions were reasonably necessary to make effectual defence against any unlawful assault (assuming there to be a limit to the consent given by Mr Maggs).
- [85]At 00:32, Mr Maggs forces the complainant towards the wall next to the front door and pushes his head and face into that wall. At 00:40, the complainant tries to put his thumb into Mr Maggs’ eye before trying to move away at 00:43. At 00:45, Mr Maggs follows the complainant and the complainant turns, lunges and pulls Mr Maggs to the ground. At 00:47, Mr Maggs and the complainant grapple on the ground before Ms Pasitkunlapat comes over and pulls the complainant by his shorts and arms to get him off Mr Maggs. At 00:51 Ms Pasitkunlapat kicks the complainant in the lower stomach before delivering two punches to his head. The blows to the head are delivered while Mr Maggs has the better of the complainant and is on top of him.
- [86]At another point (01:09), Mr Maggs holds the complainants left arm and right side of his neck and forces him (backwards) into the wall near the door. The complainant falls to the ground. At 01:12 while the complainant is on the ground, Mr Maggs continues to hold his arm before kicking towards the complainant’s torso, propelling him back against the wall. At 01:14 Mr Maggs’ and the complainant’s connection has broken and neither person has a hold of the other.
- [87]At 01:16, the complainant attempts to get up and Mr Maggs is in front of him. At 01:17, the complainant is on his feet and in a somewhat standing position. Mr Maggs pulls his arm back in a gesture to throw another punch, and the complainant raises his left hand towards Mr Maggs, either in an attempt to block the punch or to signal defeat. Once he has regained his footing, the complainant throws punches towards Mr Maggs’ head and makes connection.
- [88]It is not reasonable to say that a person entering a fight (such as this complainant) gives his opponent carte blanche to administer such violence as to cause as much injury as he wishes within the bounds of bodily harm whilst the former continues to manifest a willingness to fight, no matter how inadequate he may be. Equally it could not be said that a licence is given in such circumstances to use any means to inflict violence providing that the injury caused does not exceed bodily harm: see Lergesner v Carroll per Shepherdson at 211, citing R v Raabe per Derrington at 124.
- [89]In my view, the degree of violence inflicted upon the complainant was not within the limit consented to by him. He was confronted with the combined force of two assailants. I infer that any initial consent he provided was to Mr Maggs and not Ms Pasitkunlapat as an additional assailant.
- [90]Blows were delivered by Ms Pasitkunlapat on some occasions when the complainant was restrained by Mr Maggs. At moments when the complainant appeared to be quite defeated, Mr Maggs demonstrated a clear intention, by words or action, to continue the violence. The complainant’s continued engagement is to be seen in that light.
- [91]In the circumstances, I find that the prosecution has proved, beyond reasonable doubt, that the assault upon the complainant was without his consent.
- Self-defence
- [92]The exculpatory operation of s 271 of the Criminal Code is defeated if the prosecution proves beyond reasonable doubt that an accused person was not unlawfully assaulted.
- [93]As with proof of an assault under s 339, the term ‘assault’ in s 271 involves a notion of want of consent, and an assault with consent is not an assault at all.
- [94]The fact that Mr Maggs initially invited the fight does not automatically exclude the operation of the self-defence provisions of the Criminal Code, nor does it mean that there could not be a limit to any consent he might initially have given.
- [95]However, in my view, Mr Maggs consented to the application of force throughout the altercation and there was not, either expressly or impliedly, a withdrawal of consent by him. At moments where he could have desisted from the fray, he refused to do so. By his actions and words, he incited the complainant to continue fighting. He did not desist even at those moments where he had assumed the upper hand. There was no indication by him at any stage to signal a truce. In the result, Mr Maggs was not unlawfully assaulted and cannot avail himself of the self-defence provisions of the Criminal Code.
- [96]Having so found, it follows that the prosecution has negated, beyond reasonable doubt, the operation of s 271 of the Criminal Code.
- Aiding in self-defence and mistake
- [97]The exculpatory provisions applicable in the case against Ms Pasitkunlapat are s 273, in combination with s 24 of the Criminal Code:
“273 Aiding in self-defence
In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself or herself against an assault, it is lawful for any other person acting in good faith in the first person’s aid to use a like degree of force for the purpose of defending the first person.
24 Mistake of fact
- A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.
- The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”
- [98]Section 273 calls for a consideration, first, of whether it was lawful for Mr Maggs to use force to defend himself. As I have found, the facts here did not entitle Mr Maggs to use such force.
- [99]In considering whether a defence under s 273 (coupled with s 271) is available, it is not necessary to show that Ms Pasitkunlapat turned her mind to whether it was lawful for Mr Maggs to use the force that he did.
- [100]Pursuant to s 24, the question is whether Ms Pasitkunlapat may have held an honest and reasonable, but mistaken belief that the circumstances were such that Mr Maggs was entitled to defend himself using the force he did, such that it was lawful for Ms Pasitkunlapat to use a like degree of force for the purpose of defending him.
- [101]For s 24 to operate, there must be some evidence, direct or inferential, of the relevant state of mind of the accused. This does not require evidence to be called by an accused person, nor that there be direct evidence of that state of mind. But there must be some foundation, in the evidence, for the requisite inference of mistaken belief to be drawn. If there is, it is for the prosecution to prove, beyond reasonable doubt, that an accused did not act under the requisite mistake. While there is an evidential onus on an accused, the onus of proof at all times is on the prosecution, which bears the ultimate legal onus of displacing the defence: R v Markovski [2023] QCA 52 at [40].
- [102]Section 24(1) requires consideration of whether an accused person’s belief, based on the circumstances as he or she perceived these to be, was held on reasonable grounds as opposed to whether a reasonable person would have held it: R v Mrzljak [2005] 1 Qd R 308 at 321 and 326.
- [103]In the circumstances, I consider that Ms Pasitkunlapat held an honest belief that Mr Maggs was entitled to use the force that he did and that she therefore honestly believed she was entitled to use a like degree of force for the purpose of aiming him. However, I do not consider that the belief was held on reasonable grounds. Ms Pasitkunlapat delivered various blows to the complainant. In particular, she stomped on his stomach and delivered two blows to his head at a point when he was underneath and effectively restrained on the ground by Mr Maggs.
- [104]Accordingly, in the case against Ms Pasitkunlapat, I find that the prosecution has negated the exculpatory provisions of s 24 and s 273 of the Criminal Code beyond a reasonable doubt.
- Other exculpatory provisions
- [105]In my view, the facts here do not enliven the operation of s 272, nor of s 268 and s 269 of the Criminal Code.
- Conclusion
- [106]In the result, the prosecution has proved, beyond reasonable doubt, each element of s 339 of the Criminal Code. Equally, the prosecution has negated, beyond reasonable doubt, the available exculpatory provisions of the Criminal Code.
- Orders
- The findings of guilt against each appellant respectively are confirmed.
- The appeal is dismissed.
- There is no order as to costs.
Footnotes
[1] Exhibit 1.
[2] T 1-13.
[3] T 1-14; 1-16.
[4] T 1-17.
[5] T 1-13.
[6] T 1-45.
[7] T 1-14.
[8] T 1-34.
[9] T 1-35.
[10] T 1-36; 1-37.
[11] T 1-41.
[12] T 1-45 to 1-52.
[13] T 1-51.
[14] T 1-7; 1-8.
[15] T 1-21.
[16] T 1-22.
[17] T 1-24.
[18] T 1-24, 1-25.
[19] T 1-28.
[20] T 1-29.
[21] T 1-30; 1-31.
[22] T 1-31.
[23] T 1-32.
[24] T 1-33.
[25] T 1-84.
[26] T 1-43; 1-44.
[27] T 1-45.
[28] Decision 1-3.
[29] The reasons in this respect essentially adopted the prosecution submission regarding the status and relevance of exhibit 3.
[30] T 1-34.
[31] T 1-51.
[32] Decision 1-4.
[33] T 1-84
[34] T 1-50; 1-17.
[35] Decision 1-7; 1-12.
[36] Decision 1-6.
[37] Cf the learned Magistrate’s reasons at 1-8.