Sharp v Commissioner of Police
[2024] QDC 59
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- Unreported Judgment
- Sharp v Commissioner of Police[2024] QDC 59
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Sharp v Commissioner of Police[2024] QDC 59
Sharp v Commissioner of Police[2024] QDC 59
DISTRICT COURT OF QUEENSLAND
CITATION: | Sharp v Commissioner of Police [2024] QDC 59 |
PARTIES: | JODY ANTHONY SHARP (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO: | D112/23 |
DIVISON | Appellate |
PROCEEDING: | Appeal against conviction |
ORIGINATING COURT: | Magistrates Court Caloundra |
DELIVERED ON: | 2 May 2024 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 14 February 2024 |
JUDGE: | Cash DCJ |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND A NEW TRIAL – APPEAL AGAINST CONVICTION – CONDUCT OF PROSECUTOR OR PROSECUTION – where appellant was convicted of committing a public nuisance – where the appellant appeals the conviction on the grounds that the prosecution’s failure to call two witnesses resulted in a miscarriage of justice – where both witnesses gave statements – where the prosecution contended that the witnesses were unreliable – where the prosecution contended that the evidence of the witnesses was contradicted by a video recording – where the appellant contends that the evidence of the witnesses were capable of giving the appellant a chance of acquittal – where the prosecution has an obligation to call all material witnesses – whether the evidence of the two witnesses was material – whether the decision not to call the two witnesses gave rise to a miscarriage of justice |
LEGISLATION: | Justices Act 1886 (Qld), s 222, s 223, s 225 Justices Regulation 2014 (Qld), pt 3, sch 2, item 5 |
CASES: | Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627 R v Apostilides (1984) 154 CLR 563; [1984] HCA 38 R v Manning [2017] QCA 23 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 |
APPEARANCES: | S McGhie of Richardson McGhie for the appellant. M Olivero instructed by the Director of Public Prosecutions for the respondent. |
Introduction
- [1]On the evening of 21 May 2022, the appellant was at the Caloundra RSL. He was drinking. When security guards approached the appellant’s friend, who was vaping inside the premises, a scuffle followed. As a result, the appellant was charged with committing a public nuisance. A trial was held in the Magistrates Court in May 2023 and in July 2023, the appellant was convicted. Notwithstanding the appellant’s criminal history, which included assaulting a police officer, failing to leave licensed premises and an earlier conviction for committing a public nuisance, the appellant was fined $1,000 without a conviction being recorded.
- [2]The appellant challenges his conviction pursuant to section 222 of the Justices Act 1886 (Qld). The original grounds of appeal contained in the notice of appeal filed on behalf of the appellant do not identify any error in the proceeding at first instance that could justify setting the conviction aside. The appellant’s outline of submissions filed in the appeal sought leave to add further grounds of appeal. Some complaints were expressed in unhelpfully vague terms, such as ‘there were several errors in the Magistrate’s findings of fact’. The one ground on which the outcome of this appeal turns is a complaint that the failure of the prosecution to call two witnesses has occasioned a miscarriage of justice. This is the only ground necessary to consider.
- [3]The prosecutor appearing for the respondent on the appeal expressly and repeatedly conceded that the appellant should succeed on this ground and that there should be a retrial. While diffident, in the end I agree.
The critical issue
- [4]The police were in possession of statements from several people who were present when the events the subject of the charge occurred. These included two men, Rick Smedley and his son Zain Smedley, who were with the appellant. Rick Smedley was the person whose persistent and obnoxious use of a vape inside the RSL attracted the attention of the security guards. At the beginning of the hearing before the Magistrate, the appellant’s solicitor complained that the police prosecutor did not intend to call either Rick or Zain Smedley as witnesses in the prosecution case. When queried by the Magistrate, the police prosecutor first said that he had formed the view that the Smedleys were unreliable and, in accordance with the dicta of Dawson J in Whitehorn v The Queen (1983) 152 CLR 657 at 674, would not be called by the prosecution. The prosecutor went on to say he would, however, make the witnesses available for cross-examination. The prosecutor immediately retracted this statement, saying the prosecution would not call the witnesses but would ensure they were available for the appellant to call if he wished.
- [5]As explained below, the position taken by the police prosecutor was unsatisfactory. But there was little the Magistrate could do. It would not have been appropriate to stay the proceeding, nor would it have been right for the Magistrate to call the witnesses. The Magistrate properly concluded there was insufficient basis for doing either. The trial proceeded. The appellant gave evidence and called each of the Smedleys as witnesses. The Magistrate thought that the appellant was a poor witness. She also found that Rick Smedley’s evidence was entirely unreliable and, by extension, so was that of Zain Smedley. The Magistrate found that their evidence was contradicted by the objective evidence contained in a video recording of the events inside the RSL.
- [6]If that conclusion was correct, then despite the failure of the prosecution to call the Smedleys, no miscarriage of justice would have resulted. If the evidence of the Smedleys was contradicted by the objective evidence of the video recording, then it does not matter whether they were called by the prosecution or the appellant. But, as the respondent argued, there is sufficient doubt about the Magistrate’s conclusion. To show why that is so, it is necessary to summarise the evidence before the Magistrate.
The prosecution case
The evidence of Senior Constable Shannon James Dowd
- [7]Senior Constable Dowd was an attending officer at the Caloundra RSL on 21 May 2022. He evidence was to the following effect:
- He and a colleague attended at the Caloundra RSL at approximately 10:20pm. He observed the appellant sitting at the entrance to the premises in a wheelchair with security guards around him;
- He had a brief conversation with the appellant and the security guards, before the appellant was transported to hospital by ambulance on a stretcher as he was complaining of an injury which “appeared to be” a broken leg;[1]
- The appellant attended the Caloundra Police Station on or about 3 June 2022 to report an assault by one of the security officers on the night of 21 May 2022. However, no proceedings were commenced against any person in relation to the appellant’s complaint;
- He took statements from the appellant, the security guard and from other witnesses. He confirmed that he also received CCTV footage;
- He was shown the CCTV footage and was asked to identify the appellant, Rick Smedley, Zain Smedley, and the security guards Darryl Hill and Dillon Fourie.
The evidence of Kaitlyn Louise Simpson
- [8]Ms Simpson was working on the reception desk at the RSL when the events the subject of the hearing occurred. Her evidence was to the following effect:
- She was working at the reception desk of the Caloundra RSL on 21 May 2022. She confirmed that the appellant was a patron of the RSL and had recognised him “from a previous incident”.[2] She observed him having a conversation with another person at the reception desk before entering the club. She was unsure of the time that the appellant arrived, but it was in the evening;
- She undertook her “normal walks around the club” to see whether the areas were “properly staffed” and if there were “any issues”, and observed the appellant and his party “drinking and playing pool and…enjoying themselves”;[3]
- After that, she observed that there was a “discussion and argument” between the security guards, the appellant and his two friends (presumably Rick and Zain Smedley) at the pool tables.[4] She said this was after she observed one of his friends vaping. She said she did not hear the discussions but did observe the volume of the discussions from the reception area. She did not see the appellant again until “he was being carried down by security guards to the reception area”.[5]
The evidence of Donna Maree Sheehy
- [9]Ms Sheehy was a junior manager at the RSL. Ms Sheehy’s evidence was as follows:
- On 21 May 2022, she was working as a junior manager at the Caloundra RSL. She had worked there for about 4 years;
- She observed that the appellant’s demeanour indicated that he “had a few drinks before he came to the club”.[6] She said, “he was just a bit rowdy”.[7] She described that he was “very vocal” and “very jovial, very loud and very forthright. Like he was over the top sort of thing….he was a bit overbearing”.[8] In cross-examination, she confirmed that while the appellant was not drunk, it seemed that he was “nearing intoxication”;[9]
- She indicated that at around 8:30pm, she observed the appellant have an interaction with a security guard (whom she identified as Mr Hill) upon entering the premises. Ms Sheehy recalled that the appellant went up and shook Mr Hill’s hand. She said that the appellant introduced himself and said words to the effect of “I’m a 50 year old boxer” and that he had his last fight a few weeks prior;[10]
- She did not have any other interactions with the appellant, but she got called out of her office because “there was a situation” an hour or so after the appellant arrived.[11] She described that the appellant and his two friends (presumably the Smedleys) were vaping at the pool table, which set the premises’ smoke alarms off. Ms Sheehy specified that “it was the shorter friend” who had vaped.[12] She said that she had a conversation with someone regarding the person vaping in the premises, and recalled that Mr Fourie and Mr Hill then went over to “ask old mate to leave”.[13] She says she was about 5 metres away from the pool table and was not able to hear the conversation between the security guards and the person vaping;
- She observed that during the conversation, the appellant “started to arc up a bit”.[14] Ms Sheehy recalled hearing yelling, and saw Mr Fourie point towards the front door. She noted that loud music was playing at the time and conceded, in cross-examination, that it would have been reasonable for people to talk very loudly to be heard over the music. Ms Sheehy recalled that the appellant was moving forward towards Mr Hill and “was speaking with his hands”.[15] Mr Fourie then stepped forward and took the appellant to the ground;
- She confirmed that she had completed an incident report and had given a statement to the police. She conceded that she did not describe the appellant was being aggressive or that he had “arced up” at the security guards in her statement or incident report.[16] Ms Sheehy also conceded that she did not mention in her police statement that the appellant was aggressive when he entered the premises, nor that the security guards pointed the appellant towards the door;
- She conceded that she did not see the appellant walk into the premises and did not personally observe that the appellant had an aggressive demeanour when he walked in. Ms Sheehy had been informed by a security guard that the appellant was aggressive when he entered the premises, and said that while the appellant was “having a good night”, he was “amped up” and “his body language was aggressive”, such that she felt “intimidated by him”.[17] She also conceded that she was not always watching the appellant.
The evidence of James Garwin Bebington
- [10]Mr Bebington was a bartender at the RSL. His evidence was:
- He saw someone be taken to the ground by security, but did not recall the person’s name or whether he had seen him before. He did recall that the person was with other people;
- He did not have any interactions with the appellant, but said that his friend had come up to him at the bar. Mr Bebington recalled that the friend was slurring his words, “seemed off balance” and was rude.[18] The friend requested a round of drinks for the group, but Mr Bebington advised him that they were “cut off” and would no longer be served alcohol;[19]
- Mr Bebington did not have an open view to the appellant’s group at the pool table from where he was at the bar. He recalled “commotion” and “general rowdiness”, but conceded that he did not see anything apart from the person on the ground.[20]
The evidence of Jay Desmond Yelds
- [11]Mr Yelds was a security guard. His evidence was as follows:
- On 21 May 2022, he was working as a security guard at Caloundra RSL. He had worked there previously as a security guard and at that time, it was his usual place where he performed security work;
- He confirmed that on 21 May 2022, he witnessed an incident where a male was on the ground with Mr Fourie and Mr Hill. He did not know the man’s name. About one hour and a half prior to the incident, Mr Yelds recalled that he had an interaction with the man (presumably the appellant), which was described as follows:
…he had a tray of drinks, we crossed paths and he said to me, “Am I all right to drink these?” And I said, “Yeah, that’s fine, as long as you behave yourselves.” And he replied, “We all think you’re a bunch of fucking heroes.”[21]
- He told the other security guards that were on duty on the time of this interaction and alerted them to be aware;
- He conceded that he did not describe this interaction in his police statement;
- At the time of the incident, he was out the back in the smoking area and did not see anything. He was made aware of the situation inside and then went inside the premises, where he saw the appellant on the ground and Mr Fourie on top of him.
The evidence of Darryl Wayne Hill
- [12]Mr Hill was another security guard at the RSL. His evidence was:
- He is a security officer and has been working in security for eight years. On the night of 21 May 2022, he was acting as a security guard at the Caloundra RSL. His role was supervisor over the premises and of the four guards on duty. He was working for QSEC Security and had been employed by them for about 15 months. At the time of the incident, he had largely been doing security work just at Caloundra RSL, four to five nights per week. In cross-examination, Mr Hill indicated that the security guards undertake their duties “with the knowledge of what they are supposed to do”, but are typically under the instruction or direction of the duty manager of the RSL, but said that they were not always around;[22]
- Mr Hill recalled that he first had dealings with the appellant at approximately 7:00pm when the appellant walked into the premises while he was working at the door of the premises. He had not met the appellant prior to 21 May 2022. Mr Hill described that he was on the opposite side of the room when the appellant walked into the premises. He recalled that upon walking in, the appellant “yelled out, ‘Hey security’” in what he described as “a sarcastic manner”.[23] Mr Hill said that this made him weary of the appellant and that he was “one to watch because he was not intoxicated at that stage. But just a very loud, big man”.[24] He also said that he had received reports from other guards about the appellant;
- Mr Hill recalled observing the appellant by the pool tables for a long time while he was standing at the door. He described that the appellant and his friends (presumably the Smedleys) were “getting loud” and “boisterous”.[25] He also recalled that the appellant had interactions with or attempted to make advances towards two female patrons approximately half an hour to an hour prior to the incident;
- He had conversations with the other security guards regarding one of the appellant’s friends vaping. Mr Hill described that he was “wary” of this other gentleman.[26] He approached the person, who he was unable to recall, and said “We have a policy here you have – you get caught once and you’re out”.[27] Mr Hill said that the person “mimicked him”[28] and responded with “sarcasm”.[29] He recalled then telling the person who was vaping, “All three of you are cut off…and now it’s time to leave”.[30] The appellant and the other man were standing approximately two feet away;
- Mr Hill described that the appellant then “took over” the conversation and approached him.[31] Mr Hill recalled that the appellant said to him words to the effect of “Why are you being so fucking aggressive?”.[32] Mr Hill said he responded with, “You have to leave, you’ve had your warning” and “you got aggressive”,[33] and “you’re being smart”.[34] He then said he advised that “you’ve been cut off, it’s time to leave”;[35]
- He described that the appellant then became aggressive towards him. He recalled that he told the appellant words to the effect of, “Look it’s none of your business, mate. You have a first and final warning. You’ve been cut off. He’s been smart. We’ve noticed behaviour…it’s time to go”.[36] Mr Hill described that the appellant refused to leave and told him to “get fucked, cunt”.[37] In cross-examination, he recalled that the appellant also said, “I’m going to fuck you up cunt”.[38] Although, he conceded that he did not record this in his statement to police on 9 June 2022;
- He recalled that the way the appellant spoke to him was aggressive and threatening, and said that he tried to use “stand over tactics” by moving towards him with two glasses in his hand.[39] He described the appellant as a larger, towering man;
- Mr Hill took a step back and the appellant again indicated that he did not intend to leave the premises. In cross-examination, he described that the appellant continued to move towards him with drinks in his hands. Mr Hill said that, as he was thinking that he had to “make a call”, he became aware of Mr Fourie by his side.[40] He described that it was usual practice for another guard to come into a conversation with an angry patron and attempt to de-escalate the situation. He recalled Mr Fourie “took over with the direction” and asked the appellant to leave three times with words to the effect of “Can you please leave, you’ve been directed to leave, you’ve been cut off” and a hand gesture.[41] He described that Mr Fourie “showed him, as we’re supposed to, open palms, ‘There’s the door, you’ve been warned three times’. And he refused. He did not move”;[42]
- He heard the appellant refuse to leave, although appeared to concede that he did not record this in his statement. Mr Hill said that the appellant did not appear interested in the conversation with Mr Fourie and “totally ignored” him;[43]
- Mr Hill recalled that the appellant stepped towards him, and then Mr Fourie took down the appellant to the ground. He conceded, however, that he did not recall witnessing the takedown;
- He denied that he was aggressive or swore at the appellant and his group. In cross-examination, Mr Hill agreed that the appellant asked him why he was being aggressive and said that the appellant did not “deserve to be kept calm...I know what a bully is and he was intimidating…he was moving towards me the whole time with drinks in his hands. So I’m going to be on the defensive”,[44] and recalled that he was “very wary of this guy”;[45]
- Mr Hill recalled that the appellant used foul language, including “fucking” and “cunt”.[46] In cross-examination, he conceded that he was unable to definitively recall how many times the appellant used such words, but estimated two or three times. Mr Hill also conceded that he did not write that the appellant used these words in his statement to police, nor in his incident report;
- He denied that the appellant was not asked to leave by himself or Mr Fourie, and said that the appellant was asked by both security guards to leave more than once;
- In re-examination, Mr Hill was asked to read his log entry from the night of 21 May 2022, which said:
The white shirt male became aggressive and threatening to me. He refused to leave and was threatening of punch me out…Guard 144 [Mr Fourie] approached…And asked him to leave due to threats, swearing and intox, numerous times…[47]
- Mr Hill again agreed that he did not record the specific conversation he had with the appellant in his log book entry;
- In the CCTV footage, Mr Hill confirmed he was obstructed from view by the pole.
The evidence of Dillon Fourie
- [13]Mr Fourie was a third security guard. His evidence was:
- He is a security officer, and was working as a security guard at the Caloundra RSL on the night of 21 May 2022. He recalled that he had commenced work at approximately 7:00pm. Initially during his shift, he primarily walked and patrolled the premises, spoke with other staff of the RSL and made himself known. He described that his primary role that night was “general duties”, which involved walking and patrolling the premises, managing the intoxication of patrons, and making “sure everyone’s behaving”;[48]
- He had not met the appellant prior to 21 May 2022. Prior to the incident, he could not recall whether he had any personal interactions with the appellant. He said he had seen the appellant earlier in the evening with two other people, presumably Zain and Rick Smedley;
- In cross-examination, he accepted that he had been told “something bad” about the appellant by someone else, but denied that he had a “bad attitude towards him”.[49] In re-examination, Mr Fourie elaborated that the receptionist, who he identified as “Caitlin”, had a previous interaction with the appellant, and recalled that he thought “it was something to do with the check-in procedures, something he had a problem with”.[50] He also recalled that the appellant had a problem with another security guard, and said that he could not recall whether the appellant “threatened him or if he was just abusing”.[51] He was, however, “made known about Mr Sharp’s presence in the club…that he had caused trouble on a previous date”.[52] Mr Fourie explained that the security would use such information to monitor patrons who are:
known troublemakers or people that can’t follow the rules of the venue…in case they start displaying signs of disorderly behaviour, so we can minimise whether they become disorderly towards other patrons or to staff, we try to stop it before it gets bad.[53]
- He was standing near the pool tables and thought he had seen one of the appellant’s group vaping. Mr Fourie said he was not sure whether he did see someone vape, so he wanted to confirm and “ask if anyone else saw it”.[54] He approached Mr Hill who told him that he observed someone vaping. He described that they both went over to give a warning to the person that they were not to vape in the premises. He said the appellant was not involved in the conversation initially, but subsequently became involved when he interjected. That was when, he said, they “started talking to Mr Sharp and disregarded his friend”.[55] In further re-examination, he said that this was when the appellant was first asked to leave, either by him or Mr Hill;
- Mr Fourie said that he “took a step back” when Mr Hill was conversing with the appellant.[56] He described that the appellant “became increasingly agitated, aggressive, angry”.[57] He could not recall the conversation between Mr Hill and the appellant. Mr Fourie recalled that he said to the appellant words to the effect of “Hey, look, like because of your behaviour you guys can just go…we were going to warn you guys, but like because of this you’re now being disorderly, like you’re going to have to leave”,[58] and “Because of your behaviour now, you will now have to leave. So we tried just warning you. It’s time to go now”.[59] He recalled that he gave both hand and verbal directions to the appellant;
- He described that the appellant continued to become increasingly agitated and upset. He recalled that the appellant was raising his voice and “trying to like stand over us”.[60] Mr Fourie described that the appellant was taller and a larger build than he was, and his presence “felt threatening…he was just trying to like impose his size on us”.[61] In cross-examination, he agreed that as the appellant became increasingly aggressive, his size “started playing a factor”;[62]
- He recalled that the appellant would, in between his discussions with Mr Hill, look over Mr Hill’s shoulder and “abuse” him, including by saying words to the effect of “Fuck off, fat cunt” and “You just want to be heroes”;[63]
- He spoke with one of the appellant’s friends, but he could not recall which one. Mr Fourie recalled that he was attempting to get the friend to talk to the appellant and get him to leave the premises “without there being like any kind of actual confrontation or having to get the police involved in the matter”.[64] He was unsure how long this conversation went for. Mr Fourie described that the friend started to gather their belongings, and it was “when he saw Mr Sharp start aggressing Darryl” that he “took over”;[65]
- He recalled that, as he was speaking to the appellant’s friend, he noticed the appellant aggressively move closer towards Mr Hill and “into his face”.[66] Mr Fourie recalled that he was worried that the appellant would hit Mr Hill, although indicated that the appellant “did not throw a punch or anything”.[67] He indicated that Mr Hill did not move. Mr Fourie said:
that’s when I put my hand out to stop him, I started ushering towards the exit, towards the door, or just away from Darryl…And then as I pushed him further, I just felt something grabbing me. At the time I didn’t know if it was Darryl trying to me back or a friend, it was behind me. I felt him like around me, I saw that he had two glasses in his hands, I didn’t know what was going to happen next. I feared for my safety and the safety of my colleagues. And then I took Mr Sharp down.[68]
- In cross-examination, Mr Fourie described that he used an outstretched hand to apply “a constant use of force” and push the appellant on his torso, around his chest or rib area, towards the door of the premises.[69] With his other hand, he recalled that he was giving the appellant a direction;
- Mr Fourie conceded that, as he and the appellant were facing one another and the appellant had glasses in both of his hands, he knew that it was not the appellant who had touched him on his back. When he was asked why he did not turn around and confront whoever was behind him, Mr Fourie answered:
Because he [the appellant] was deemed, in my eyes, in my experience over the years, the biggest threat at that moment. He was the only one that was being – like from the conversation with the other guard, he was the only one being increasingly aggressive, he was abusing us…[70]
- Mr Fourie recalled that “it all happened really quickly as [he] was pushing him” and that he was trying “minimise the biggest threat” to his and Mr Hill’s safety.[71] He agreed, in cross-examination, that he did not know who was behind him and, therefore, could not have known how big a threat that person was;
- In cross-examination, Mr Fourie agreed that because of the appellant’s aggressive behaviour, his “abuse” of Mr Fourie when he looked over Mr Hill’s shoulder towards him, and his non-compliance with directions to leave by both security guards, he felt intimidated by the fact that the appellant was close to him and was taller than him. He also said that he interpretated the appellant’s behaviour as an attempt to “intimidate” him “with his size”;[72]
- In cross-examination, Mr Fourie conceded that, even though he was close by and would have heard the conversation between the appellant and Mr Hill, he did not have a recollection of the specific conversation, apart from the appellant’s “increasing aggressiveness and hostility towards being told to leave”;[73]
- In cross-examination Mr Fourie agreed that his memory now regarding the incident would not have been better than it was when he gave his police statement, and it would not have been as good as it was on the night of the incident. However, he said that while he did not remember exact conversations, “when someone says something as striking as that, yes, I tend to remember it”;[74]
- He disagreed with the suggestion that the appellant did not use the words “Fuck off, fat cunt”,[75] or that the appellant did not swear at, or was not aggressive towards, either him or Mr Hill. He disagreed with the suggestion put to him that the appellant was not asked to leave by either him or Mr Hill;
- In further re-examination, he referred to the video recording and attested that, while he was unable to be seen in the recording as he was standing behind a pillar, his hands were able to be seen and showed that he was giving hand directions to the appellant and ushering him to leave the premises. Mr Fourie also said that he gave continuous verbal instructions to the appellant to leave, but that the appellant completely ignored him, aside from when the appellant verbally abused him. He described that when the appellant was “advancing” on Mr Hill and he was still giving the appellant verbal and physical directions to leave the premises, he started to feel a hand on his back and the appellant “grabbing” him, which led to him taking the appellant to the ground.[76]
The appellant’s case
The evidence of the Appellant
- [14]The appellant gave evidence. His evidence was as follows:
- He confirmed that he was at the Caloundra RSL on the evening of 21 May 2022 with his friends Rick Smedley and Zain Smedley. He recalled that he and Rick Smedley used to attend a boxing gym together, and that he had known Zain Smedley since he was a child. He said that he did not know that Rick Smedley was vaping on the night of the incident;
- He arrived at the premises at approximately 8:45pm, after Rick Smedley had messaged him and asked if he wanted to attend the RSL to play some pool, and he said he thought they would “have a couple of drinks”.[77] The appellant described that the group played pool “with a family, an old fellow – he was 88 – and his grandson. And they lost and we have them 100 bucks, and, you know, we were having a good time”;[78]
- At approximately 10:00pm, the appellant described that a security guard, who he identified as Mr Hill, came over with “over the top aggression”[79] that was “out of the blue”.[80] He said that Mr Hill went over to Rick Smedley, but conceded that he did not see him coming. The appellant recalled that Mr Hill and Rick Smedley were behind him and to the side, approximately 1 metre away. He described that he turned around after hearing Mr Hill “abusing” Rick Smedley, swearing and using words to the effect of “You do this again, you’re gone” and “You fucking vape again, mate, you’re out of here”.[81] In cross-examination, he recalled that Rick Smedley replied, “Okay, mate. No worries”.[82] He described that Mr Hill’s “overall demeanour” was aggressive and “wasn’t a respectful manner at all”,[83] and that he did not find the security guard’s reprimand of his group for vaping “appropriate”;[84]
- He recalled asking the security guard, “Why are you being so aggressive”[85] and words to the effect of “Do you talk to everyone in your life like this?”.[86] He said that he was trying to understand or diffuse the situation. He confirmed that the conversation arose because of Rick Smedley’s vape. In cross-examination, the appellant said that he had a discussion with Mr Hill, and that he was the only one talking to Mr Hill. He denied hearing Rick or Zain Smedley swear or say anything at all in the course of his conversation with Mr Hill. The appellant recalled that he “felt like it all happened rapidly and before I knew it, I was getting thrown on the ground”;[87]
- He denied conversing with Mr Fourie. The appellant described that Mr Fourie was to his right and was moving around. He said he had “just looked back at him a couple of times” and thought Mr Fourie tapped him on the back once;[88]
- In cross-examination, the appellant agreed that he was “bigger” than Mr Hill and Mr Fourie,[89] but denied that he tried to use his size to stand over them. He recalled that there was plenty of distance between him and the security guards;
- He denied that he or the group he was with received any prior warnings, or had been asked to leave by staff. In cross-examination, the appellant described that Mr Hill “had me by the collar and…at the same time, pushing me out the door”;[90]
- He denied being aggressive or swearing at the security guards, and did not think that he stepped towards the security guards. In cross-examination, the appellant told the Court that he was “in a defensive mode”,[91] and conceded that he had pointed at Mr Hill. He said though that he had two drinks in his hands and “never had free hands at any point”.[92] He denied ever touching or threatening either Mr Hill or Mr Fourie;
- In cross-examination, he confirmed that he had consumed two scotches prior to attending the RSL, and then consumed “probably about four scotches” and “a couple of sambucas”.[93] The appellant described that he would be “tipsy” with that level of alcohol consumption, but denied that he was “over the top”;[94]
- He confirmed that his ankle was broken in the incident, and was required to have surgery at hospital where a screw and plates were inserted into his ankle. He recalled that he called the RSL when he got to the hospital to inform them that Mr Hill had broken his ankle. The person who answered the phone at the RSL responded, “That’d be right”.[95]
The evidence of Zain Smedley
- [15]The appellant called Zain Smedley to give evidence. His evidence was as follows:
- He and his father, Rick Smedley, attended at the Caloundra RSL and he texted the appellant to join them, who did so at approximately 8:30pm. He described that they “had a couple of drinks” and played pool;[96]
- He attempted to get another drink, but was refused service by the bar staff;
- The appellant came back from the bar with two drinks.[97] He recalled that the appellant asked the security guard if that was alright, and the security guard had apparently responded that it was;
- Zain Smedley described that “the older security guard” went up to his father in a “staunch” manner with his “fists clenched” and “puffed out chest”,[98] and aggressively requested that he stop vaping. He recalled that the security guard and his father were about a metre or two apart. He said that his father “was calm and said, ‘Yes, no worries’”.[99] He said that the guard appeared to have accepted this. He agreed that it was then that the appellant reportedly went up to the guard and “stuck up” for his father by questioning the guard as to why he was speaking to them that way;[100]
- The security guard and the appellant had a conversation, in which the security guard was raising his voice and was getting “more aggro” towards the appellant.[101] He said he had tapped the appellant on the back when he noticed more security was coming towards them, and then the appellant was “taken down”;[102]
- He did not hear any bad language or any conversation, but said the security guard’s tone and demeanour was “tense”,[103] and the older security guard raised his voice;
- He recalled that the “gist” of the conversation between the appellant and the older security guard was that the appellant was asking “the security officer why he was talking in the way that he was”,[104] and why he was talking to Rick Smedley that way;
- Within 10 to 20 seconds of when the older security guard began to raise his voice, a “stockier” security guard came closer to the appellant’s group.[105] He estimated that the stockier security guard was five metres away from him to his right. He said that he did not see or hear the appellant look or say anything to the stockier security guard, and did not hear the security guard say anything to any person;
- He denied that the appellant raised his voice, pointed at, or stepped towards the security guards. He denied that the appellant used foul language, and said that it would be “uncharacteristic” of the appellant to do so.[106] He denied that the appellant tried to dominate them by using his size. However, he conceded that he was looking away at times, and was not listening to all of the conversation.
The evidence of Rick Smedley
- [16]The appellant called Rick Smedley to give evidence. His evidence was as follows:
- He confirmed that he and his son, Zain Smedley, attended at the Caloundra RSL with the appellant. He was unable to recall what time he attended at the premises, and estimated that the subject incident occurred about an hour to an hour and a half after they arrived;
- He had a couple of drinks prior to attending the RSL, and consumed more alcohol at the premises, including shots and Sambuca, which he confirmed were either bought by Zain Smedley or the appellant. He denied though that they were intoxicated;
- He said that he, Zain Smedley, and the appellant played pool with another family, including a grandfather and grandson, and chatted that night;
- He recalled that he snuck in a vape and an older security guard, likely upon seeing the vape, used “derogative language” and aggressively told them to stop vaping.[107] He described that he was standing approximately a metre or two away from the appellant. The appellant responded to the security guard with words to the effect of “Oh, you could ask nicer”[108] or “Oh, geez, you could ask nicely”.[109] He recalled that it was then the security engaged in what was described by him as “attack” on the appellant, where they “threw him on the ground”;[110]
- He denied that there was any warning given by the security guard and described that the security guard was aggressive immediately;
- He did not witness the appellant acting in a belligerent or threatening way towards the security guards, and denied that the appellant argued with the security. He also denied that the appellant called either security guard a “cunt”,[111] and described that the appellant was not aggressive at all;
- He said that “the attack” on the appellant “happened very quick”,[112] and repeatedly denied that there was any conversation or substantial period of time between the security guard asking the appellant’s party to stop vaping and the appellant being thrown to the ground. However, he conceded, after watching the video recording, that there was a “a lot of time” from when the security guard initially came over to the appellant’s group to when the appellant was taken to the ground,[113] during which he agreed that it appeared that the appellant was “talking or something” to a security guard or someone out of the view of the video recording;[114]
- He denied that he or a member of his party was asked to “ease up” on their alcohol consumption,[115] or to leave the premises by security or bar staff;
- He conceded that the incident occurred “a long time ago”.[116]
Was there a miscarriage of justice because of how the hearing proceeded?
- [17]On the summary of evidence above, it might be thought that the case against the appellant was strong. The Magistrate was right to conclude, on that evidence, that the appellant was guilty. But that is not the issue presented in this appeal. Where the respondent rightly concedes that the Smedleys should have been called as prosecution witnesses, the question is whether a miscarriage of justice has resulted from the way in which the proceeding was conducted.[117] As I have noted, if the evidence of the Smedleys was plainly contradicted by the contents of the CCTV footage, they could not be believed and it would not matter who called them as witnesses. But as is so often the case, critical parts of the events are not able to be seen on the footage because the view is obscured by a pillar. Having viewed the footage in court, I cannot conclude that it contradicts the Smedleys to the extent that their evidence was bound to be rejected for that reason alone. In these circumstances, it was not enough that the prosecutor concluded the Smedleys were aligned with the appellant’s case. They should have been called as witnesses in the prosecution case.
- [18]The prosecution gained an unfair advantage because the prosecutor wrongly decided not to call the Smedleys. The result was that the prosecutor had the advantage of cross-examining the Smedleys, establishing matters going to the assessment of their credit such as the amount they had to drink and their poor memories. He would not usually have been able to do this if they were prosecution witnesses. Conversely, the appellant’s solicitor was constrained to asking only non-leading question in evidence-in-chief. This is enough for me to agree with the respondent’s submissions that the appellant was denied a fair trial.
- [19]Mindful that there may be a retrial of the charge, it is useful to set out a statement of the Court of Appeal in a similar case to remind prosecutors of their duties in calling material witnesses (citations omitted):
Once it is seen that the evidence was material and not unreliable, the prosecution was obliged to lead that evidence because “a basic requirement of the adversary system of criminal justice is that the prosecution, representing the State, must act ‘with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one’.” This is part of prosecutor’s function ultimately to assist in the attainment of justice between the Crown and the accused. A prosecutor is not relieved of that responsibility by the fact that the accused could elect to call that evidence. Rather, fairness requires the prosecution to produce all of the material evidence which is available to it before putting the defendant to his election as to whether to give or call evidence. Therefore, the fact that the defence was able to call the witness as a defence witness does not overcome the miscarriage of justice which occurs as a result of the Crown’s refusal to call a material witness.[118]
Should there be a retrial?
- [20]Where a trial has miscarried for some reason, the usual remedy is an order for a retrial. The appellant submitted that, were he successful, I should exercise my discretion and not order a retrial.[119] The basis for this submission is the appellant’s claim that he would be prejudiced by the fact that he and the Smedleys have already given evidence and have been cross-examined. I do not accept this would produce prejudice of a kind sufficient to justify the unusual order that there be no re-trial. The same situation will arise in many cases and the appellant has referred to no decision where this was thought to be a sufficient reason to warrant an order that there be no retrial. The appropriate order is that there be a retrial.
Costs?
- [21]Unsurprisingly, the appellant seeks his costs of the appeal. The respondent concedes that scale costs of $1,800 should be awarded. But the appellant wants more. The court may allow the cost of:
Court fees and other fees and payments … including allowances to interpreters, and travelling, accommodation and other expenses of a lawyer acting as advocate, may be allowed to the extent they have been reasonably incurred and are paid or payable.[120]
- [22]Relying upon this provision, the appellant seeks to be reimbursed for payments totalling $3,117.02 to obtain the transcripts of the hearing before the Magistrate. The respondent does not identify why the appellant should not be compensated for this expenditure. It is a fee or payment that has been reasonably incurred. It should be paid for by the respondent.
Orders
- [23]The appeal is allowed. The conviction is set aside. A retrial is ordered. The respondent is to pay the appellant’s costs of the appeal in the amount of $4,917.02.
Footnotes
[1] T1-19.25–40.
[2] T1-21.20–40.
[3] T1-22.30–45.
[4] T1-23.25–30.
[5] T1-23.5.
[6] T1-27.40–45.
[7] Ibid.
[8] T1-28.25–35.
[9] T1-32.5–10.
[10] T1-25.30–35; T1-27.20–30.
[11] T1-28.45.
[12] T1-29.40–45.
[13] T1-29.20.
[14] T1-30.40–45.
[15] T1-31.40–45.
[16] T1-33.5–25; T1-36.30 – T1-37.5; T1-39.5–10.
[17] T1-39.5–30.
[18] T1-42.5–10.
[19] T1-42.15–20.
[20] T1-42.30 – T1-43.5.
[21] T1-45.5–10.
[22] T1-58.5–20.
[23] T1-50.30–40. See also T1-60.30–40.
[24] T1-50.35–40. See also T1-60.10–30.
[25] T1-51.25–30.
[26] T1-61.5.
[27] T1-54.15–20.
[28] T1-55.5–10.
[29] T1-54.35. See also T1-69.5–15.
[30] T1-55.5–10. See also T1-69.15–20.
[31] T1-55.10.
[32] T1-55.25–30. See also T1-62.5–15.
[33] T1-55.10–20.
[34] T1-69.15.
[35] T1-55.10–20.
[36] T1-55.40–45.
[37] T1-56.10–30.
[38] T1-64.5–20.
[39] T1-55.40 – T1-56.5.
[40] T1-56.10–40.
[41] T1-69.30–40.
[42] T1-70.10–15.
[43] T1-56.45 – T1-57.5.
[44] T1-61.40 – T1-62.5.
[45] T1-63.15–20.
[46] T1-63.20–25.
[47] T1-71.40 – T1-72.5.
[48] T1-75.35–40.
[49] T1-81.20–25.
[50] T1-93.20–30.
[51] T1-93.25–35.
[52] Ibid.
[53] T1-93.30–40.
[54] T1-76.10–15.
[55] T1-77.5–10.
[56] T1-77.10–15.
[57] T1-77.15–20.
[58] Ibid.
[59] T1-77.30–35.
[60] T1-77.35–40.
[61] T1-77.40–45.
[62] T1-80.15–20.
[63] T1-78.5–10. See also T1-79.5–35 and T1-90.5–30.
[64] T1-86.5–20.
[65] T1-78.15–40.
[66] T1-78.45.
[67] T1-78.35–45.
[68] T1-78.15–25.
[69] T1-84.5–20; T1-85.15–25.
[70] T1-86.5–10.
[71] T1-86.15–25.
[72] T1-87.5–45.
[73] T1-89.40–45.
[74] T1-90.40–45.
[75] T1-90.45; T1-92.20.
[76] T1-94.40–45.
[77] T1-3.35–40.
[78] T1-3.35–45.
[79] T1-3.45.
[80] T1-9.40–45.
[81] T1-9.20–25.
[82] T1-12.5.
[83] T1-9.20–30.
[84] T1-20.15–20.
[85] T1-4.20–35; T1-11.30.
[86] T1-18.20–25. See also T1-19.20–30.
[87] T1-4.30–35.
[88] T1-13.45 – T1-14.5. See also T1-20.40–45.
[89] T1-6.15–20.
[90] T1-20.5–10.
[91] T1-17.10–15.
[92] T1-17.15–20.
[93] T1-12.45 – T1-13.15.
[94] T1-14.5–15.
[95] T1-13.30–35.
[96] T1-23.25–35.
[97] T1-23.35–40.
[98] T1-24.20–45.
[99] T1-25.5–20.
[100] T1-25.20–30. See also T1-23.35–40 and T1-26.25–30.
[101] T1-23.40–45.
[102] T1-23.45.
[103] T1-25.35–40.
[104] T1-25.40 – T1-26.20.
[105] T1-27.10–15.
[106] T1-28.10–15.
[107] T1-96.25–30.
[108] T1-96.40–45.
[109] T1-101.20.
[110] T1-96.40 – T1-97.5.
[111] T1-104.5–15.
[112] T1-102.20–35.
[113] T1-103.20–25.
[114] T1-103.10–15.
[115] T1-100.5–15.
[116] T1-101.45.
[117] See R v Apostilides (1984) 154 CLR 563; [1984] HCA 38; Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42; R v Manning [2017] QCA 23.
[118] R v Manning [2017] QCA 23, [27].
[119] Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627.
[120] Justices Regulation 2014 (Qld), Part 3, Schedule 2, Item 5.