Grubert v. Sheret

[2009] QDC 247

[2009] QDC 247

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE RAFTER SC

Appeal No 5 of 2009

JOSEF GRUBERT	Appellant
and
OLENA VIKTORIVNA SHERET	Respondent

BRISBANE

..DATE 21/07/2009

JUDGMENT

HIS HONOUR:  The appellant was tried in the Magistrates Court at Brisbane in relation to one charge of unlawful assault.  He was found guilty of the charge and placed on a recognisance in the sum of $500 to be of good behaviour for three months.  A conviction was not recorded.  The appellant was also ordered to pay the complainant the sum of $100 by way of compensation. 

The appellant has appealed against the conviction on grounds that the Magistrate's decision was not reasonably open, that the Magistrate was biased in favour of the prosecution, that the police had not made adequate disclosure to him, that the prosecution failed to provide him with a fair trial, and that there was no prima facie case against him because of conflicts in statements made by the complainant. 

He also contended that a forensic expert should have been called by the prosecution.  The appellant also raised an issue as to consent of the complainant.  The appellant's arguments are set out in lengthy written submissions filed 9 March 2009 and 4 June 2009.  He has repeated those submissions in argument here today. 

I have reached the view that there is no merit in any of the appellant's grounds of appeal and accordingly the appeal must be dismissed. 

The prosecution called the complainant.  He was performing property maintenance work cutting grass with a line trimmer, or whipper snipper, near Milton Street, Norman Park on the 13th of December 2007.  The complainant was cutting grass approximately 20 feet from a creek.  The appellant had three boats moored in the creek.  The appellant apparently resided in or near the boats at the time of these events.  The land on which the events occurred belongs to the Brisbane City Council. 

The appellant and the complainant were known to each other for a period of about three years and there had been a history of disagreements between the two men.  The appellant approached the complainant at a pace that was faster than walking pace and grabbed hold of the whipper snipper with such force that the complainant fell backwards, landing with his back on the ground.  The appellant fell over with the complainant and was subsequently positioned on top of him, with his knees on the complainant's chest.  Both men were still holding the whipper snipper.  A struggle ensued and the whipper snipper was moved across the complaint's face and torso in the course of the struggle causing scratching and lacerations to him. 

Photographs of the complainant's injuries supported his version of events.  The prosecution also called the arresting officer, Senior Constable Sheret.  Senior Constable Sheret interviewed the defendant and in the course of that interview the appellant said that he was involved in an altercation with the complainant and that he did try to take the whipper snipper from him. 

The appellant gave evidence in his own defence.  He said that he approached the complainant and grabbed the line trimmer.  He said that he was concerned about soil erosion.  Under cross-examination the appellant agreed that he approached the complainant at speed greater than walking pace.  The appellant denied that he crashed the whipper snipper on to the chest of the complainant, but accepted that the injuries were as a result of the incident. 

The appellant argued that he was concerned about soil erosion and the effect that it would have upon boats moored in the creek that runs through Norman Park.  The appellant defended his actions on the basis that the grass cutting activities of the complainant were contributing to soil erosion.  In particular he was concerned that cutting of the grass would lead to the grass dying and the creation of trenches which would then lead to flooding, and ultimately to the erosion of the creek. 

On an appeal pursuant to section 222 Justices Act 1886 a Judge is required to afford respect to the decision of the Magistrate and bear in mind any advantages the Magistrate had in seeing and hearing the witnesses give their evidence. However, the Judge is required to make his or her own review of the evidence, to weigh the conflicting evidence and to draw his or her own conclusions.

I have carefully considered the evidence and reached the view that it was open to the Magistrate to accept the evidence lead by the prosecution and reject the defences relied upon by the appellant.  As I have said, I have had regard to the advantage the Magistrate enjoyed in seeing and hearing the witnesses, and I have undertaken my own independent review of the evidence. 

The Magistrate, in my view, was correct to reject the defences relied upon by the appellant, namely defence of movable property with claim of right (section 275 Criminal Code); defence of moveable property without claim of right (section 276); defence of premises against trespassers; removal of disorderly persons (section 277); defence of possession of real property or vessel with claim of right (section 278); self defence (section 271); and section 23 (accident).

I have also had regard to the issue raised by the appellant on the hearing of this appeal that the complainant consented to the application of force.  In my view the prosecution evidence is such that it is open to conclude that the complainant did not consent to the application of force in the circumstances.

The appellant complains that the Magistrate was biased in favour of the police.  He referred to a number of pages in the transcript where the Magistrate interrupted him. 

In my view the Magistrate was entitled to interrupt the appellant when she did so.  In one instance, at page 49 on Day 1, which was 12 June 2008, the Magistrate interrupted so as to ensure that the appellant, who was then cross-examining the complainant, did not answer a question posed by the witness. The Magistrate correctly pointed out that the witness was required to answer questions and that the appellant had no obligation to do so.  That interruption was designed to assist the appellant in the conduct of his case.  Having done that for the appellant's assistance he then said to the Magistrate, "I think the whole Court system is a rort.  It's about those little mealy mouths who try to get something with weedling in and out and all that sort of thing.  It's not about honest people."

I've carefully considered all of the passages in the transcript where the Magistrate interrupted.  By and large that was done with a view to preventing the appellant from straying into areas that were irrelevant, or from leading evidence that was inadmissible.  There is nothing in the conduct of the Magistrate that gives the slightest indication that she was biased in favour of the prosecution. 

On the contrary, in my view, the Magistrate endeavoured to assist the appellant in the conduct of his case, to the extent to which she could.  The appellant also complains that there was a lack of full disclosure by the prosecution.  He made reference to a letter to the Queensland Police Service prosecution section, dated 23 May 2008, which is attached to his outline of submissions dated 9 March 2009.  In that letter he made a request for various materials, including the criminal history of the complainant.  That material was apparently not provided to him. However there was no cross-examination at the trial itself,  that was designed to elicit that the complainant had any criminal history whatsoever.

Having regard to the nature of the issues in the trial, I am not persuaded that there was any disadvantage to the appellant by not being provided with such material such as would lead to a miscarriage of justice. 

As I have mentioned the appellant complained that there was no prima facie case against him because of conflicts in the complainant's statements.  He has provided copies of the complainant's statement and addendum statement and drawn attention to areas that he says amount to inconsistencies in the evidence.  They do not provide any basis for concluding that there was no prima facie case and the charge against him was, in my view, properly brought.  He has also contended that he was not afforded a fair trial.  There is no substance in that contention. 

Having reviewed the entire transcript and the lengthy submissions of the appellant, I have reached the conclusion that the appeal must be dismissed.  Accordingly the order is appeal dismissed. 

...

HIS HONOUR:  All right.  Now, Mr Grubert, when you bring an appeal and lose the respondent to the appeal is entitled to seek costs, and I think the scale allows for costs up to $1,800, but Ms Litchen has a standard practice of not seeking costs‑‑‑‑‑

APPELLANT:  Thank you.

HIS HONOUR:  ‑‑‑‑‑and she is not seeking costs here‑‑‑‑‑

APPELLANT:  Thank you.

HIS HONOUR:  ‑‑‑‑‑so you are spared that.  Since the Magistrate's orders stand, your exposure is limited to the $100 compensation.  You were ordered to pay that by the Magistrate.

APPELLANT:  Mmm-hmm.

HIS HONOUR:  As far as I know you didn't challenge the penalty or the compensation order‑‑‑‑‑

MS LITCHEN:  No, your Honour. 

HIS HONOUR:  ‑‑‑‑‑so that order does stand.  You were placed on a three-month bond, but that has expired.

HIS HONOUR:  So, there is an order for a hundred dollars compensation.

APPELLANT:  Mmm-hmm.

HIS HONOUR:  If you can afford to pay that then you ought to do so.  If you can't it'll be dealt with at the State Penalties Enforcement Registry.  That's right, isn't it, Ms Litchen?

MS LITCHEN:  I would imagine so, your Honour.  I'm not sure if‑‑‑‑‑

HIS HONOUR:  It may well have already been referred there. 

MS LITCHEN:  Yes, it may. 

HIS HONOUR:  Although there may be - is there a stay of compensation orders, when an appeal is being filed?

MS LITCHEN:  I believe so, your Honour. 

APPELLANT:  Mmm-hmm.

HIS HONOUR:  Yes.  All right.  Well, I think the Magistrate allowed three months to pay?  If you're in any doubt about these matters you can perhaps speak to Ms Litchen about it, or the Magistrates Court. 

APPELLANT:  Yeah‑‑‑‑‑

HIS HONOUR:  Yes, the Bench charge sheet is endorsed: "compensation $100 to the complainant.  Allowed three months to pay.  In default, levy in distress."  So - I'm not sure whether there was a stay of that compensation order as a result of your appeal‑‑‑‑‑

APPELLANT:  There was.

HIS HONOUR:  There may well have been.

APPELLANT:  There was.  I received several letters over it‑‑‑‑‑

HIS HONOUR:  I see.

APPELLANT:  ‑‑‑‑‑and - which indicated that there - it's a stay and‑‑‑‑‑

HIS HONOUR:  All right.  Well, if there is a stay that means that the time runs from now that your appeal has been dismissed.

APPELLANT:  According to your Honour's order.

HIS HONOUR:  According to my order.  So, State Penalties and - the State Penalties Enforcement Registry‑‑‑‑‑

APPELLANT:  Yeah, I will‑‑‑‑‑

HIS HONOUR:  ‑‑‑‑‑will take the matter up with you. 

APPELLANT:  I will receive letters, I guess. 

HIS HONOUR:  Yes.  But I think the bond would not have been stayed.  Would that be right?

MS LITCHEN:  I think it might have.

HIS HONOUR:  It might have been stayed as well.

MS LITCHEN:  Yes.

HIS HONOUR:  So, it may well be the period of good behaviour, which was also three months, maybe that starts from now as well.  Although it would not have been stayed in the period from trial to filing the appeal, I don't think.

MS LITCHEN:  No, it wouldn't have. 

HIS HONOUR:  So, part of the bond period would have elapsed.  And perhaps again that formality, Ms Litchen, might help you with that.  If you have any doubts, she can perhaps provide you with some guidance.

APPELLANT:  She doesn't return‑‑‑‑‑

HIS HONOUR:  But I'm sure that you will‑‑‑‑‑

APPELLANT:  She doesn't return my phone calls.

HIS HONOUR:   I'm sure you will be - remain of good behaviour, so it won't be of a concern to you any way.  All right.  Well, thank you both for your assistance.

APPELLANT:  All right. 

HIS HONOUR:  Adjourn the Court.

MS LITCHEN:  Thank you, your Honour.

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