Cullen v Queensland Police Service

[2024] QCA 26

SUPREME COURT OF QUEENSLAND

CITATION:

Cullen v Queensland Police Service [2024] QCA 26

PARTIES:

CULLEN, Stephen William
(applicant)
v
QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

CA No 199 of 2023
DC No 122 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Southport – Unreported, 5 October 2023 (Andreatidis KC DCJ)

DELIVERED EX TEMPORE ON:

6 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2024

JUDGES:

Mullins P, Fraser AJA and Kelly J

ORDERS:

1.   Application for leave to adduce evidence refused.

2.   Application for leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant was found guilty after trial in the Magistrates Court of one charge of common assault – where the applicant was fined $200 and no conviction was recorded – where the applicant appealed to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) – where the District Court judge dismissed the appeal – where the applicant applies for leave to appeal from the District Court pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – whether the applicant has shown that the District Court judge made an error to be corrected

McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, cited

COUNSEL:

The applicant appeared on his own behalf
J F O’Brien for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. MULLINS P: Mr Cullen was found guilty in the Magistrates Court after trial of one charge of common assault committed on 23 November 2021 against the complainant Mr Pearce. He was fined $200 and no conviction was recorded. Mr Cullen appealed to the District Court pursuant to s 222 of the Justices Act 1886 (Qld). That appeal was dismissed. Mr Cullen now applies for leave to appeal to this Court pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld).

2. The grounds set out in the notice of application for leave to appeal are:

   1.The police had acted “illegally, unfairly and dishonestly in order to obtain a conviction”.

   2.The video that the police used has been edited.

   3.The person who videoed the alleged assault with his phone would not come to court with his phone and the video was not allowed into evidence so there was no evidence that the police made and used a fake video, as they took out the part where Mr Pearce was spraying sawdust on Mr Cullen and had him holding a phone.

3. Mr Cullen is also applying for leave to adduce evidence which is a USB with four videos on it, one of which is the edited video the subject of ground 3 and three videos respectively of his police record of interview, caution/arrest discussion and the issuing of the notice to appear.  The record of interview and caution/arrest discussion were in evidence before the learned Magistrate.  The application therefore relates only to the video that is referred to by Mr Cullen as the “fake video” and the video of the issuing of the notice to appear.  The application to adduce that evidence must be refused.  The video that is described as “fake” was not permitted to be tendered by the Magistrate and was therefore not before the District Court on the appeal where a similar application to adduce that video was refused.  That video and the video of the issuing of the notice to appear are irrelevant to the issues that can be properly raised on the application for leave to appeal to this Court.

4. Mr Cullen appeared for himself in the Magistrates Court and District Court and is also appearing for himself on the application to this Court.

   Principles that apply to the application for leave to appeal

5. Bowskill J (as the Chief Justice then was) (with whom Fraser and Philippides JJA agreed) set out in McDonald v Queensland Police Service [2018] 2 Qd R 612 at [39] a summary of the principles that apply to appeals to the Court of Appeal from judgments of a District Court in its appellate jurisdiction. In dealing with Mr Cullen’s application, it is sufficient to note from paragraphs (c), (d) and (e) of [39] that:

   1.leave to appeal is not given lightly as an applicant has already had the benefit of two judicial hearings;

   2.leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected;

   3.if leave is granted, this Court’s sole duty is to determine whether error has been shown on the part of the District Court on the material before the District Court and the appeal is an appeal in the strict sense rather than being a rehearing.

   The trial in the Magistrates Court

6. The prosecution called the complainant and the investigating police officers Acting Sergeant Melville and Senior Constable Godfrey.  Mr Cullen gave evidence in his own defence.

7. The circumstances that gave rise to the charge can be summarised as follows. Mr Pearce was employed by the owners of the property where he lived to “dismantle a tree”.  He commenced at 8.00 am on 23 November 2021 and had two men on the ground assisting him.  Mr Pearce was in the tree on spurs (spikes on the boot) with a lanyard around the main stem and a second point of attachment to enable a quick descent.  The tree was on the edge of the property on the fence line and very close to Mr Cullen’s adjoining property.  Mr Pearce had removed all the crown and main limbs and the main stem of the tree was left.  When Mr Pearce cut through the main stem, Mr Cullen became abusive and complained to Mr Pearce because of the sawdust going onto his property.  Mr Pearce did not stop chainsawing.  About 1.30 pm Mr Pearce was making the second cut to the main stem when he could hear a metal clanking sound and felt something hard hit him from behind into his left buttock or upper left leg and it was Mr Cullen with a steel pole about four metres long.  He did not consent to being poked with the pole.

8. Mr Cullen admitted to using the pole to poke Mr Pearce to stop the sawdust and, in fact, Mr Cullen’s evidence was to the effect that he poked Mr Pearce with the pole three times and the Magistrate accepted Mr Cullen’s evidence that there were three applications of force using the pole but reconciled the evidence on the basis that Mr Pearce may not have felt the first two impacts.  The Magistrate also accepted Mr Cullen’s evidence that Mr Pearce was still operating the chainsaw when Mr Cullen poked him with the pole in preference to Mr Pearce’s evidence that was to the effect that, when Mr Cullen started yelling at him, he put his chainsaw away to get his video camera out, but he did not get the video camera working before Mr Cullen hit him with the pole.

9. One of the men on the ground recorded the incident on his telephone and sent the video to Mr Pearce.  That man was not called as a witness by the prosecution. The Magistrate refused to allow the prosecution to tender the video.  The video that the prosecution attempted to tender is called the “fake video” by Mr Cullen.

10. The police were called to the incident and Officers Melville and Godfrey attended.  Mr Pearce did not make a formal complaint until October 2022 and after that Mr Cullen participated in a record of interview with the police that was recorded on officer Melville’s body-worn camera.  The record of interview was played at the trial.

11. What was at issue in the trial was whether the prosecution could exclude self-defence under s 271(1) of the Criminal Code (Qld) and provocation under s 269 of the Code beyond reasonable doubt.  The Magistrate proceeded on the basis that Mr Cullen perceived he was being assaulted by the sawdust being produced by the complainant through use of the chainsaw.  The Magistrate identified from Mr Cullen’s evidence matters that affected Mr Cullen at the time of the incident.  These were that he was angry because he had been in his house for five hours waiting for Mr Pearce to finish taking the tree down and that he had offered to remove the tree and Mr Pearce had “stolen” the job of removal of the tree from him.  The Magistrate accepted that Mr Cullen believed that Mr Pearce was deliberately spraying the sawdust across his house and on him.  The Magistrate rejected the allegation by Mr Cullen that Mr Pearce had crossed over the airspace into Mr Cullen’s property as having anything to do with what happened in the incident.

12. The Magistrate accepted that Mr Cullen was assaulted by the complainant’s causing the sawdust to fall on him.  The Magistrate accepted that the sawdust might amount to nuisance with respect to Mr Cullen’s property but was not prepared to find that there was an unlawful assault upon Mr Cullen by the complainant.  The Magistrate then considered that, if that conclusion were wrong, the Magistrate would have concluded that the degree of force was not reasonably necessary to made effectual defence against the assault.  The Magistrate found that Mr Cullen used the pole, because he knew that was the only way to reach the complainant who was up in the air.  The Magistrate found it was dangerous for Mr Cullen to use a long pole against the person up in the air who was tied to the tree operating a chainsaw and that was completely unnecessary in the circumstances of any perceived assault.

13. On the issue of provocation, the Magistrate found that Mr Cullen was dissatisfied with the way things were after he had waited inside his house for five hours and the efficacy of the tree removal and that Mr Pearce had not stopped dispersing the sawdust over Mr Cullen’s property.  The act or insult for the purpose of the defence of provocation was found by the Magistrate to be Mr Pearce not stopping the sawdust flying into Mr Cullen’s property when Mr Cullen asked him to stop that.  The Magistrate found that that was not a wrongful act or insult of such a nature as to be likely, if done to an ordinary person, to deprive them of the power of self-control.  In any case, the Magistrate found that, even if Mr Cullen were provoked, he did not act “on the sudden and before there was time for his passion to cool” before he poked Mr Pearce because of the time it took for him to collect the pole and to move to the fence.

    The appeal to the District Court

14. The appeal grounds that were argued before the learned District Court judge were:

    1.The Magistrate did not explain to Mr Cullen how the trial would proceed.

    2.The phone that took the video of the incident could not be found and the video that the police had was fake.

    3.There was error in the Magistrate’s decision.

15. The District Court judge’s reasons record that his Honour proceeded to conduct “a real review of the evidence” that was required by a rehearing pursuant to s 223 of the Justices Act 1886.  That included a perusal of the transcript of the trial before the Magistrate and the exhibits but paying due regard to the advantage the Magistrate had in seeing the witnesses give evidence.  The extensive reasons reflect that task was undertaken by his Honour.

16. The District Court judge rejected ground 1 as the transcript of the trial showed the Magistrate afforded procedural fairness to Mr Cullen.  As to the second ground, this focused on the video that the Magistrate refused to allow the prosecution to tender at the trial.  The District Court judge therefore concluded that as the asserted fake video was not in evidence, it was irrelevant to the appeal.

17. As to whether there was error in the Magistrate’s decision, the District Court judge found no error in the Magistrate’s conclusions that both self-defence and provocation were excluded on the basis of the Magistrate’s findings on the evidence with which findings the District Court judge also agreed.  In addition, his Honour considered s 278 of the Code which was an additional defence relied on by Mr Cullen on the appeal.  His Honour found that Mr Cullen was trying to defend himself and his property from the sawdust and not seeking to defend his peaceable possession of his land.

    Is there an error to be corrected?

18. The definition of “assault” in s 245(1) of the Code includes a person who “otherwise applies force of any kind to, the person of another, either directly or indirectly”.  The definition of “applies force” in s 245(2) “includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort”.  That means there was no error in the finding that Mr Pearce assaulted Mr Cullen by causing sawdust to enter Mr Cullen’s property and fall on him.

19. Even assuming that the assault was unlawful pursuant to s 246(1) of the Code, for the purpose of considering self-defence, it was only the sawdust that fell on Mr Cullen or was threatening to fall on him, that was the extent of the assault for the purpose of considering whether it was reasonably necessary for Mr Cullen to make effectual defence against the assault to poke Mr Pearce’s bottom or leg with a long metal pole when Mr Pearce was using the chainsaw up the tree.  All Mr Cullen needed to do was to return inside his home to stop the sawdust falling on his person.  The sawdust landing on his property was irrelevant to this defence.  There was no error in the District Court judge’s conclusion that the Magistrate correctly found that self-defence was excluded.

20. In relation to the defence of provocation, it was relevant to consider the act or insult as encompassing the sawdust that was landing on Mr Cullen’s property and himself.  Even so, it is patent there was no error in the findings of the Magistrate that were confirmed on appeal by the District Court judge that Mr Cullen’s conduct was an overreaction and that he did not act “on the sudden”.

21. To the extent that the defence under s 278 of the Code was considered by the District Court judge, there was no error in his conclusion that the defence was not open as Mr Cullen was not defending the possession of his property when he assaulted Mr Pearce.

22. It is apparent from the transcripts of the hearings in the Courts below and on this application that Mr Cullen is concerned with peripheral matters and not with the essence of his offending conduct that was the subject of unchallenged factual findings made by the Magistrate that supported the conclusion by the District Court judge that he was properly convicted of common assault, as the prosecution had excluded all relevant defences beyond reasonable doubt.  There is no error to be corrected.

    Orders

23. The orders which should be made are:

    1.Application for leave to adduce evidence refused.

    2.Application for leave to appeal refused.

24. FRASER AJA:  I agree.

25. KELLY J:  I agree.

26. MULLINS P:  The orders of the Court are those which I have already announced:

    1.Application for leave to adduce evidence refused.

    2.Application for leave to appeal refused.