Garner v Hocking

[1993] QCA 35

[1993] QCA 035

COURT OF APPEAL

FITZGERALD P McPHERSON JA DAVIES JA

CA No 315 of 1992
DEREK JOHN GARNER
and
TOM ANTHONY HOCKING
BRISBANE
..DATE 05/02/93

McPHERSON JA: The appellant was convicted in the Magistrates Court at Townsville on a complaint alleging that on 3 November 1991 he unlawfully assaulted Rowena Keoskie and that the assault was of an aggravated nature in that Rowena Keoskie was a female.

The incident giving rise to the charge took place late in the evening at a Townsville night club where the appellant was employed in the role of a security officer on a part-time basis.

A large number of witnesses gave evidence at the hearing about

what had happened on that occasion.

There were marked discrepancies in their accounts of events. That is not surprising having regard to the time and place at which they occurred and to the state of evident insobriety of some of the witnesses. Nevertheless it made it difficult for the magistrate to arrive at a conclusion, and it is noteworthy that he reserved the matter for some four months or more. In the end he reached a conclusion basing his findings on his view of credibility of witnesses and identifying two whom he thought were the most reliable.

The matter has now come before us on an appeal that involves a
number of grounds. For present purposes it is necessary only to
look at the facts and at one of the bases on which the conviction
may be open to question.
It is difficult, because of the inconsistencies among the various
accounts given by the witnesses, to speak about the matter in a
completely neutral way; but it is probably sufficient to say that
it was, at the trial and on appeal common ground that the
appellant laid hands on Keoskie, moved her to the door, and put
her outside the club premises.

That sequence of events took place directly in front of the assistant manager of the night club. He also gave evidence at the trial. When questioned about this matter he said, at page 68 of the record, that he wanted Rowena Keoskie removed from the night club at the time, but that he did not give any instructions to remove her. He also said he was in charge. It is plain enough that the answer to the question whether he gave instructions to remove her referred to express instructions. One would have thought that if he had stood by and acquiesced in what happened, it might well be regarded as a sufficient authority to a person occupying the position of the appellant in this matter to remove the offending patron without the manager’s expressly telling him to do so.

However that may be, it would, on any view of the matter, appear
to be at least a basis for a reasonable belief that the security
officer was authorised to undertake the removal of that patron
even if in fact he was not instructed to do so.
There is some question how far this particular aspect of the
matter was raised at the hearing and in the submissions that
followed it. However, in the course of his reasons the
magistrate said, speaking of the appellant in this matter:

“If he believed he was acting within his authority as a security officer to remove Miss Keoskie form the premises because she was disorderly or breaching the decorum of the night club, then that belief is not properly based and certainly did not justify her removal in the manner described by Trevor Smith.”

One might be excused for thinking that if, for the reasons I have briefly outlined, the appellant was in fact authorised, even if only impliedly, to remove the woman, it would afford the strongest possible basis or reason for his believing that he was authorised to do so.

Curiously, when the magistrate came to deliver sentence in this matter some few days after he had delivered his substantive decision with written reasons, he proceeded to explain to the appellant the substance of the reasons for finding as he had that the appellant was guilty.

In the course of this explanation, he said that the assault was “not authorised by the assistant manager, who was there at the time, nor was it required by him”. This conclusion is not consistent with the assistant manager’s evidence that he wanted Keoskie removed from the night club at that time.

The result seems to be that there is, to some extent, a divergence between the evidence, the formal written reasons that were delivered, and the explanation of them given in the course of the sentencing remarks to which I have referred.

It is clear that the magistrate was seised of the question whether there was , within the terms of section 24 of the Code, a ground of exculpation in favour of the appellant based on an honest and reasonable belief on his part that he was authorised by the assistant manager to carry out the act of removing the parton, Rowena Keoskie. Once that point emerged - as the magistrate evidently thought it did - in the course of the hearing, the onus was, of course, on the prosecution to exclude a defence or ground of exculpation of that kind.

In all the circumstances, it is by no means clear that the magistrate properly apprehended where that onus lay, or that there were, as I see the matter, cogent grounds in the evidence for considering that the appellant was either in fact authorised, or had reason to believe he was authorised, by the assistant manager to carry out the removal of Keoski that took place in from of the manager.

In all the circumstances, I consider that the proceedings or their result must at some point have miscarried in relation to the matter mentioned; and that consequently the appeal should be allowed and the conviction and sentence set aside; and that the proceedings on complaint before the magistrate should be dismissed.

THE PRESIDENT: I agree.

DAVIES JA: I agree.
THE PRESIDENT: The order of the Court is appeal allowed,
conviction and sentence set aside, complaint dismissed.

BRISBANE

... DATE

JUDGMENT