Hoggett v Lowis

[2004] QDC 508

DISTRICT COURT OF QUEENSLAND

CITATION:

Hoggett v Lowis [2004] QDC 508

PARTIES:

MICHAEL AARON HOGGETT
Appellant
v
CONSTABLE M LOWIS
Respondent

FILE NO/S:

D1089 of 2004

DIVISION:

Appeal

PROCEEDING:

Appeal under s 222 of the Justices Act 1886

ORIGINATING COURT:

Magistrates Court, Sandgate

DELIVERED ON:

15 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2004

JUDGE:

Judge Robin QC

ORDER:

Appeal allowed

CATCHWORDS:

Criminal Code
Domestic and Family Violence Protection Act 1989
Justices Act 1886

Appeal to District Court under s 222 of the Justices Act against conviction by a magistrate of assault occasioning bodily harm and breach of domestic violence order – police brought in by appellant (not complainant) – complainant loath to confirm her statement to police, made determined efforts to get charges dropped, insisted in witness box she had provoked appellant – magistrate should have entertained reasonable doubt on assault charge – on the other, mistake as to whether domestic violence order continued in effect at date ascribed to the offence not excluded beyond reasonable doubt

COUNSEL:

Self Represented for the Appellant
Ms McCormack for Respondent

SOLICITORS:

Appellant Self-represented
DPP Queensland for the Respondent

1. Before the Court is Mr Hoggett’s appeal against his conviction by the Magistrate at Sandgate on 25 February 2004 of two offences charged as having happened on 9 September 2003 at Yeronga, the more serious being assault occasioning bodily harm to his de facto partner Kylie Maree Hardgrave, the other that “he being a respondent under the provisions of the Domestic and Family Violence Protection Act 1989 contravened a protection order made under the said Act on 29 April 2003 in the Magistrates Court at Sandgate and the said Michael Aaron Hoggett was served with a copy of the said order.”

1. Mr Hoggett argued his appeal in person, with some assistance from his father, as had been provided before the magistrate.  On that occasion, the magistrate had refused Mr Hoggett Senior a right of audience.

1. I reserved a decision upon the appeal; throughout the hearing, I felt considerable misgivings regarding the soundness of the decisions of the magistrate, which were made in unusual circumstances, of a “complainant” whose evidence was vital being uncooperative with the prosecution.  It must be unusual for criminal charges to succeed in such circumstances, but they can do so, as in R v D [2000] QCA 203 - on appeal from a trial in Maroochydore on indictment 207 of 1999, commencing 2 November 1999. (D made admissions in a recorded interview with police.) I thought it necessary to consider all of the evidence (including exhibits) and the magistrate’s full and careful reasons.

1. Mr Hoggett’s short relationship with the complainant has been tempestuous.  The domestic violence order obtained against him for her protection was taken out by police, according to her, she not having asked for them to do it (transcript p 7); it was mirrored by an order taken out against her for Mr Hoggett’s protection.  It appears that the two resided together at the complainant’s residence in Yeronga for some months prior to conflict which occurred on 8 and 9 November 2003.  On the evidence, she attempted to shut him out of the house, injuring his hand when it got caught in a door she was pushing shut against him.  There was some suggestion that injuries to the complainant noted by Dr Lawrence on 10 September (of a black eye and a broken rib) might have been caused when Mr Hoggett flung the door open, against Ms Hardgrave.  The doctor admitted this was possible.

1. The injuries (to the extent visible) were noted by police who were called to the house by Mr Hoggett (evidently not contemplating he risked the bringing of any complaint against himself) on 10 September 2003 when he considered it advisable to obtain a police presence so that he could enter the house to remove his things.  See Sergeant Riznyk’s evidence.

1. No complaint was made by Ms Hardgrave. However, she signed a statement containing the acknowledgement referred to in s 110A(5)(c)(ii) of the Justices Act 1886 on that date which told of an assault by Mr Hoggett (many hours after the door incident) by punching “in the face, ribs and kidney areas”.  The statement denied the giving of any provocation or permission for the assault.

1. Mr Hogget was interviewed by police on tape on 13 September 2003.  According to the transcript, he said he knew what Miss Hardgrave was talking about in relation to “the shoving across the living room but the other stuff I don’t.”  He denied any punching “in the face … (or) … anywhere on her body”.  In relation to the apparent contravention of the domestic violence order by residing at Yeronga for “probably about three months”, he said:

“I realise but I didn’t get in contact with her she got in contact with me then told me her sister who was a solicitor was arranging to have the orders revoked.”

Asked whether he ever attended court or received any court paperwork he said, “no it was always in the pipeline … as far as I know nothing ever happened.”

1. Ms Hardgrave was active in trying to influence police to drop the charges, signing her name to a number of written requests that got into evidence before the magistrate, in that regard.  All of these are premised on Mr Hoggett’s having committed an “assault”, in the sense that she used the word.  Speaking broadly, she asserted she had “contributed”, that she was “accepting responsibility for my actions preceding the assault.”

1. When the complainant came to give evidence before the magistrate (all of her efforts to have the charges dropped proving unavailing), her response to the prosecutor’s neutral question as to whether anything occurred on the relevant date was:

“Yes, we had words and through the course of my provoking Michael I received broken ribs and a black eye.”

She went on to blame herself for what the prosecutor (rather than she) described as an assault:

“I had it coming because I’d shaped up to him.”

There was much along those lines, in the course of which she volunteered in response to a leading question additional piece of information:

“Okay.  So Michael was there – was he staying at the house at the time?--  Yes, he was.  I had told him that the DV order had been revoked, if you like, my sister’s a solicitor, and that, you know, there would be no laws being broken.  However, my sister had no knowledge of that.  That was my imagination or I lied basically.  My sister didn’t have the power and I never approached her to do so.”

1. Effectively, she was treated as a hostile witness from that point, and required to read out aloud much of her statement of 10 September 2003, which became Exhibit 1.  Mr Hoggett lacked the legal sophistication to attempt objecting to this.  Ms Hardgrave agreed her signature was there “saying that the contents of the statement are correct”.  While she did not clearly disavow (or endorse) the statement, she said it was “clearly incorrect” in denying provocation or incitement to assault.

1. In cross-examination by Mr Hoggett, she said her various communications seeking to have the charges dropped were “more accurate” than the police statement.

1. The magistrate was careful to direct herself accurately as to the relevant law and to give consideration to relevant parts of the evidence.  In relation to the assault charge, she said:

“The onus of proof is on the prosecution to prove the elements of the offence to the criminal standard, that being beyond a reasonable doubt.  Should the prosecution fail to prove the elements of the offence to such a standard, then the defendant is entitled to be acquitted of the charges.

I have had the opportunity of listening to and observing the demeanour of the witnesses whilst they gave their evidence, and this has assisted me in assessing credibility of the witnesses which is of importance.

…

Miss Hardgrave has given her evidence today.  She has said quite clearly that she was assaulted by Mr Hogget.  She did go to great pains and at great lengths to say although she had been assaulted, she accepts full responsibility that she had been nagging him, that she pushed him, that she was annoying him, that she had provoked him, that she had been painful for a couple of days, two and a half days or something and that she had goaded him, I think, and she kept biting away and biting away at him.  She said after the incident when she made her complaint to the police that she was angry with Michael and that’s why she didn’t explain to the police in the first place that she had been provoked.

Today it is quite clear in the statement that she handed up that she had been – she made a complaint of being punched.  Her injuries in the final wash were a black eye which had been photographed that Dr Lawrence has explained, also, that through X-rays a fractured rib was also evident.

Miss Hardgrave said that she did receive those injuries when she had been assaulted by Mr Hoggett.

Mr Hoggett says that he did not assault Miss Hardgrave.  He said that his hand was slammed in the door by Miss Hardgrave earlier.  That wasn’t put to Miss Hardgrave in the first part when she was giving her evidence.  In any event, if a person’s and is in the door and the door is closed, short of somebody making somebody put their hand there that’s not an assault.  Unless you’re made with perhaps a gun at your head and put your hand there and let me slam your hand in the door, then that is not an assault.

Miss Hardgrave has gone to great lengths.  In fact, she demonstrated her displeasure with the system.  She has contacted different police officers.  She has written letters saying she doesn’t want these charges to proceed, and she has tried to facilitate a defence by Mr Hoggett to these charges.  She’s been very strong.  She has been rude to the Prosecutor.  She was arrogant in her evidence in that she said she did not want these matters to proceed.  She never at any stage, though, recanted from her complaint that she had been punched in the head, in the face and in the body, so the evidence of Mr Hoggett is completely at the other end of the spectrum.

He emphatically denied assaulting Miss Hardgrave.  I felt that Miss Hardgrave was opening up a defence for Mr Hoggett to say, yes, there was an altercation but it was because I was severely provoked which never at any time did he do that.

…

Now, Miss Hardgrave was a difficult witness.  She was really uncooperative to a large part.  She was attempting to be very loyal to Mr Hoggett.  Mr Hoggett has not demonstrated any loyalty to her.  His record of interview did not impress me as truthful.  His evidence in Court today could not be described in any way as convincing or truthful.  In fact, I feel that he is the most unbelievable witness that I have come across in quite a long time.  The suggestions through cross-examination did not demonstrate to me any version of events which would hold water.

…

The suggestion that that black eye and a fractured rib simply were caused to the complainant through that door being forced open by Mr Hoggett who had a hand slammed in the door, that the pushing open of the door and forcing her across the room does not impress me.  I understand her injuries could be sustained by such an activity.  The doctor has conceded that it is possible that those injuries could have been caused in a way other than in the way that the complainant has described.  However, there was no probing of what she’s – how she’s hit herself, what she’s hit herself on.  Simply that she had been moved across the room really is not very impressive at all.

…

The definition of “assault” in the Code does allow for a defence of provocation and that that defence has not been raised at all by Mr Hoggett.  He emphatically denies that he has assaulted the complainant.  The complainant has said that she was assaulted by Mr Hoggett, that at the time she made the complaint she was very angry, did not think through the circumstances.  She has since realised that she could have caused him to be angry with her and lose his cool and she has tried to minimise it for Mr Hoggett, so he has not actually raised provocation.  It has not been raised by the defendant and, therefore, does not meet any standards.

…

Miss Hardgrave also said in evidence that Mr Hoggett had found a paper which had Meeting People, some section like that circled.  That caused him to become very angry.  Mr Hoggett also described about where she had admitted to being unfaithful, I think, or there might have been a different word.  I would just like to turn that up.  Just le me have a look at this.  Confession of infidelity.  She says now she understands that that could have been very upsetting to him.

However, punching – and she said at least four blows – actually I think she said more but she reduced it today to four blows is excessive.  It is excessive for a person who is not entitled to treat another person in such a way.  If you are upset with something that has been said, then that force is excessive in all of the circumstances that I have seen here.

Upon a consideration of all of the evidence given, I am satisfied beyond a reasonable doubt.  I do not have any doubt at all with the evidence given by the complainant and also the police officers.  The standard of proof has been reached.  I am totally satisfied that there has been, on the standard.  I am satisfied that all the elements of the offence have been proven.  I therefore convict the defendant of both offences as charged.”

1. (I should interpolate, I agree entirely with the magistrate’s noting Mr Hoggett’s lack of loyalty (to adopt her term) to Ms Hardgrave.  I found his (and Mr Hoggett Senior’s) persistent and gratuitous belittling of Ms Hardgrave quite reprehensible.  It reflects very badly on both of them.)

1. My misgivings are based on the resort that was necessarily had to Ms Hardgrave’s police statement made the day after the alleged offences to found the assault conviction.  The approach has been taken, it seems to me, that on that occasion, she told the truth and gave a reliable account, whereas on every other occasion she is unreliable.  Ms Hardgrave (like any witness in a similar situation) was faced with the signed acknowledgement appended to her signed statement under the Justices Act that she “may be liable to prosecution for stating … anything that I know is false.”  This effectively commits her to the statement, making it a very serious matter for her to give sworn evidence from the witness box to a different effect.  It cannot really be said that she confirmed the statement in her sworn oral evidence.

1. The implications of the standard of proof in criminal matters, which the magistrate acknowledged, must never be forgotten.  Juries are frequently told that suspicion of guilt is never enough to justify conviction, nor probability or likelihood of guilt.  There must be no room for a doubt recognisable as “reasonable” about the existence of every element of the offence charged.  Magistrates trying charges summarily must apply the standard of proof in the same way as juries are required to.

1. On appeal, a magistrate’s “verdict” has the same standing as a jury’s:  it can be set aside by an appeal court only if the appeal court can say that on the evidence before the magistrate, a reasonable doubt must have been acknowledged.  A magistrate’s decision, indeed, may command greater standing than that of a jury, in that, so far as I am aware, it may not be set aside as “unsafe” or “unsatisfactory”.  That the appeal court itself may entertain reasonable doubt after scrutinizing the evidence does not justify setting aside a conviction.

1. In the end, I regretfully reached the conclusion that the convictions cannot stand. The assault conviction depends upon there having been, beyond reasonable doubt, an incident as recounted in Exhibit 1 on the afternoon of 9 September 2003. I do not think that robust conclusion was reasonably open. The complainant, who was brought to court to give evidence to that effect, did not do so. Unless she was willing to risk prosecution for perjury, or for some offence under the Justices Act, she could not deny the assault, having committed herself in the way that she did in Exhbit 1. I think there had to be a reasonable doubt about the correctness of Exhibit 1 in regard to all of the elements of the offence of assault occasioning bodily harm. I do not think the magistrate could find, on the criminal standard of proof, although doubtless it would have been open on the civil standard, that Ms Hardgrave was both truthful and reliable about all of the vital matters in Exhibit 1.

1. While the magistrate’s reasons do not expressly acknowledge that the potential defence of provocation had to be excluded beyond reasonable doubt by the prosecution (rather than proved by Mr Hoggett - who, as the magistrate observed, did not raise it), I would expect that the magistrate proceeded on the correct basis.  It is not clear to me that it was incumbent upon the appellant to “raise” provocation after Ms Hardgrave had volunteered it.

1. There is more concern regarding the “section 24” defence to the other charge.  As to Mr Hoggett’s holding any mistaken factual belief regarding the domestic violence order’s being at least on the way to being revoked, the magistrate said, having acknowledged the passage of evidence of Ms Hardgrave set out in para [9] above:

“A long period of time has expired whilst they were cohabitating.  I would have thought somebody in Mr Hoggett’s position would have attended to those matters during that time.

It is not an honest belief, really.  I do not find that it was an honest belief.  I do not find that it was reasonable in any way that you thought that the order had been lifted.  It is quite clear that when there are orders of the Court made, that they are produced in writing.  If they are orders dealt with in any other way, I think it would be reasonable for a person to expect that that would also be dealt with in writing.

The evidence of Mr Hoggett is that at September he had been told that the order was being revoked.  My concern is that he had said that he had been there for at least three months.”

1. My concerns are two. First, the way in which the magistrate expressed herself rather suggests that she looked to Mr Hoggett to establish an honest and reasonable belief, rather than to the prosecution to exclude it beyond reasonable doubt. Further, I am concerned that he may have been convicted for residing with Miss Hardgrave for three months, whereas the offence charged was placed on 9 September 2003, and at no other time. It gets the prosecution nowhere to show similar offending on earlier occasions. The magistrate appeared to accept (and on the evidence there is little alternative) that by September 9 Mr Hoggett had been told that the order was being revoked. In the circumstances, even if there were technically an offence (which it is clear Ms Hardgrave connived at and encouraged), there ought not to have been a conviction. The potential defence under s 24 of the Criminal Code could not be excluded beyond reasonable doubt.

1. For the above reasons the appeal should be allowed and the convictions of 25 February 2004 (and attendant penalties and costs orders) set aside. I am not inclined to return the matter to the Magistrates Court for any further proceedings under s 225(2) of the Justices Act.