Howard v QPS
[2015] QDC 60
•24 March 2015
DISTRICT COURT OF QUEENSLAND
CITATION:
Howard v QPS [2015] QDC 60
PARTIES:
WILLIAM DAVID HOWARD
(appellant)v
QUEENSLAND POLICE SERVICE
(respondent)FILE NO/S:
244/14
DIVISION:
Criminal
PROCEEDING:
Section 222 appeal
ORIGINATING COURT:
Magistrates Court at Ayr
DELIVERED ON:
24 March 2015
DELIVERED AT:
Townsville
HEARING DATE:
20 November 2014
JUDGE:
Durward SC DCJ
ORDER:
1 Appeals against conviction and sentence dismissed.
2 The conviction and sentence of the Appellant in the Magistrates Court at Ayr on 19 June 2014 are confirmed.
CATCHWORDS:
CASES:
LEGISLATION:
APPEALS – CONVICTION AND SENTENCE – whether magistrate erred in his findings in respect of a potential corroborating witness supporting the evidence of the complainant where the truth and reliability of such evidence was challenged – where the magistrate correctly identified the critical issue as being one of credit between complainant and defendant – where the magistrate unequivocally found in favour of the evidence of the complainant and rejected the version of the defendant contained in a record of interview tendered as part of the prosecution case – where a four month wholly suspended sentence of imprisonment was imposed – where the offence was a relatively serious example of assault occasioning bodily harm, having been committed in the complainant’s residence and having comprised multiple punches to the head and face of the complainant – whether the sentence was in all the circumstances excessive.
Fox v Percy (2003) 214 CLR 118; House v The King (1936) 55 CLR 499.
Justices Act 1886 ss 222, 223 and 225(1); Evidence Act 1977 ss 18 and 103.
COUNSEL:
DW Honchin of counsel for the appellant
BJ Bray for the respondent
SOLICITORS:
Ruddy Tomlins & Baxter for the appellant
Office of the Director of Public Prosecutions for the respondent
The appellant was convicted of assault occasioning bodily harm in the Magistrates Court at Ayr and sentenced to four months’ imprisonment wholly suspended for an operational period of 12 months, on 19 June 2014. He has appealed against conviction and sentence pursuant to s222 Justices Act 1886. I heard the appeal on 20 November 2014.
Grounds of appeal
The grounds of appeal against conviction, in summary, are that the magistrate erred in accepting the evidence of prosecution witness Mr Caltabiano and rejecting the appellant’s account expressed in a record of interview made with police; the magistrate erred by not taking into account alleged deficiencies in the police investigation; and the magistrate erred by criticising the tender of some photographs, at the request of the appellant, by the prosecutor.
The grounds of appeal against sentence, in summary, are that the sentence of imprisonment was manifestly (sic) excessive; and that the magistrate erred by finding that the offence was premeditated.
Facts and circumstances
On 11 June 2012 the appellant and another man went to the residence of the complainant, Mr Turner, in Ayr and there was a conversation at the front door of the residence between them whilst Mr Turner held a screen door open. As Mr Turner was closing the screen door, the appellant punched him in the head and face a number of times, at the doorway and inside the residence in a lounge room. The appellant and the other man then left the location in a motor vehicle.
Mr Turner was a director of a four-wheel-drive workshop. The appellant had paid for a tray to be made in the workshop and fitted to his utility motor vehicle some nine months earlier and had an issue about the quality of the workmanship. He had taken that issue up with Mr Turner and the workshop employees over that nine month period. The conversation at the door of the residence was about that issue. Mr Turner had said that the day of the visit was a public holiday and that the appellant should address the issue at the workshop later in the week and he was invited so to do.
The summary hearing
Mr Turner and another man, Mr Caltabiano, gave evidence. The appellant was interviewed by police and a record of interview was tendered by the prosecutor. Two police officers, the man who accompanied the appellant and a medical practitioner also gave evidence. The defendant did not give evidence. In the course of the prosecution case some photographs were tendered by the prosecutor at the request of the appellant’s counsel.
Mr Turner said that the appellant pulled the screen door from his hand, punched him in the face and entered the residence and in the lounge room of the residence struck further multiple blows to Mr Turner’s face with his fists. Mr Turner cowered in a crouch and did not fight back.
Mr Caltabiano had also been present at the residence as a guest of Mr Turner. In his testimony Mr Caltabiano said he was behind a fence inside the yard of the residence and had seen the appellant “grab the screen door out of [Mr Turner’s] hand” and saw the appellant enter the residence through the doorway space. He heard Mr Turner call out for the police to be called and he ran to a neighbour’s house to alert them. When he returned to the house, he saw Mr Turner with blood on his face and his hands and saw blood on the carpet, furniture and the wall of the lounge. He did not see any punches thrown by the appellant.
He was challenged in cross-examination about his opportunity to see what happened at the door, at his vantage point in the yard of the residence, but maintained that he saw what he had described. Mr Honchin put to Mr Caltabiano matters referred to in a Statement of Witness purporting to have been made by Mr Caltabiano to police. The Statement of Witness refers to Mr Caltabiano having seen the appellant punch Mr Turner to the face about 20 times inside the house.
Mr Caltabiano denied the contents of the Statement of Witness and denied that it bore his signature. A police officer gave evidence that Mr Caltabiano had made the Statement of Witness to her and had signed it.
In the record of interview the appellant said that Mr Turner had told him to “fuck off” a couple of times, that he was struck first by a blow from Mr Turner; and that he had responded with a number of punches.
Appeal approach and process
The appeal is conducted as a hearing de novo, on the evidence that was before the magistrate: s223 Justices Act 1886.
I am required to review the evidence and draw my own inferences and conclusions and thereby determine the relevant facts in issue from the evidence, giving proper deference to the magistrate’s views. Whilst in a case where the issue was one of credibility, as was the case here, it is exceptional to find against the magistrates findings on credit, given the magistrate’s advantage in seeing the witnesses first-hand, an appellate court nevertheless may interfere with such findings if there are sound reason for do doing: Fox v Percy (2003) 214 CLR 118.
Decision: conviction
The magistrate, in an ex tempore decision, found the appellant guilty.
The magistrate correctly identified the primary issue in the proceeding as one of credit between the complainant and the defendant.
So far as is relevant on the appeal, the magistrate referred to the following matters:
· “Now … the events of here, today, of Caltabiano giving evidence, in my view, bears some further investigation, but that’s not a matter for me.”
· “He stated that he never said it [the content of the Statement of Witness] to police, and is evidence-in-chief and his memory here today is that he at no time … ever was in the house or observed the defendant assaulting Mr Turner.”
· “Now, Constable Bloomfield attends the residence … she gave evidence that she saw blood located throughout the house.”
· Reference was made to the record of interview wherein the appellant said, “Well, the reason I went around there is because I go to Western Australian and so forth, and basically that’s why I went around there on the day.’ He says to [the interviewing police officer] then, that the complainant then told him to fuck off twice and that the complainant hit him. His evidence then is that he … on instant reflex … hit him a couple of times … and then the complainant fell down to where the door frame is, and he said, ‘You owe me a new tray,’ and he left.”
· Reference was made to observations that the interviewing police officer made of the appellant at the time of the interview and he was “… asked if he saw a mark … above the eye on his face … [he] gave evidence that he was aware that this was the defendant’s position … that the defendant’s position … that the complainant hits him, and hits him with a hand on which is a ring, and he states that he received an injury from the punch he says the complainant delivers to his face … because of the ring. Now, the police officer gave evidence that he specifically looked for the injury and couldn’t see one. … his evidence is solid in that there was no observable injury from the short distance – the close distance – that he was to the defendant when he was sitting opposite him that he observed on his face.”
· “Now, the doctor gave evidence … about what he treated the complainant for, left and right jaws were injured. Nasal bridge injured. Chest wall, ribs injured, and injuries over the eyebrows. He prescribed pain relief and gave him some head injury advice. Now, he conceded in cross-examination – he agreed that there was just soft-tissue injury and a swelling to the nose.”
· “I accept Turner’s evidence… having accepted that, the defence of self-defence, in my view … vanishes, because its be negatived beyond reasonable doubt by the acceptance of the evidence of the complainant.”
The magistrate referred to Mr Caltabiano’s evidence:
“Now, he may have some problems. I’m not sure, but as I mentioned during the submission process, I accept his evidence where he says he was positioned at the fence. I accept his evidence in respect of what he says he heard, and that corroborates what the complainant states. I accept his evidence, for that matter, that the defendant standing at the front door, this other person standing right behind him holding a beer, and I accept his evidence where he states that he, despite what was put to him in cross-examination, that he had a view and a memory and a recollection and gave evidence of Mr Howard moving towards the doors so as to go through it. His evidence is that he went into the door. He conceded that, given that he couldn’t see the door frame – the door, couldn’t give some definite evidence about him walking into the house. Now, his evidence, despite what, as I’ve pointed out, what’s contained in his statement – his evidence here today, and he’s solid on this, is that he never saw Mr Turner being assaulted. He gave evidence of that when he gave evidence of the blood, but in any event, if there are some shortcomings in his evidence, where it attaches to credit, where it attaches to my assessment of what happened, it is Turner who has the front row seat, if you like, in respect of giving evidence about all that occurred from the time that he attends the front door from Mr Howard knocking on it. My impression of Mr Turner was he was an honest witness. My impression of Mr Turner, and from my observations of him, was that he would be, in my view, a person unlikely to start a fight. My impressions of Mr Turner was that he was honest because where he was in a position, he made certain concessions through cross-examination“ and “now, usually when someone makes those comments [a reference to the allegation that Mr Turner told the appellant to fuck off] not once, not twice – that it’s not done in a level, measured way. Someone’s angry and someone’s yelling. There is no evidence, and there’s nothing discrediting Caltabiano’s evidence or Turner’s evidence about what they say was there was no raised voices and no anger.”
Discussion: conviction
It is clear that the magistrate’s decision was made upon his unequivocal acceptance of the evidence of Mr Turner. There was other evidence of the presence of blood inside the house. The police officer who interviewed the appellant did not see any mark on the appellant’s forehead, to support his allegation of being punched by Mr Turner. The evidence of Mr Turner about being hit by multiple blows is corroborated by the presence of the blood, regardless of whether there was or was not any blood on the wall of the lounge-room; and by the evidence of the medical practitioner who examined and treated Mr Turner.
Further, his Honour said in submissions [T1-54 ll 11-19] that:
“… look, you can get all excited – someone can get all excited about the disparity in the evidence of Caltabiano, and focus on those inconsistences, and focus on what he could and couldn’t see, and focus on whether or not he’s telling lies here today, or there’s something wrong with that subject – that statement … but at the end of the day, we have the evidence of the complainant.”
Mr Honchin submitted on the appeal that the matter of Mr Caltabiano’s Statement of Witness gave rise to a specific credit issue, namely prior inconsistent statements. Mr Caltabiano denied making the relevant statements at all. The Statement of Witness was produced in court and reference made to its content in the examination-in-chief and/or cross-examination of Mr Caltabiano and Constable Bloomfield, although it was not formally tendered pursuant to ss 18 and 101 of the Evidence Act 1977 and arguably that provision was not met, although the statements in the Statement of Witness that were characterised as prior inconsistent statements were read into the record in the course of the cross-examination.
The observations of the magistrate about Mr Caltabiano’s Statement of Witness were that, in effect, he found the question of whether the statement was made and signed by Mr Caltabiano was unresolved. The police officer Constable Bloomfield said Mr Caltabiano did make and sign the Statement of Witness. Mr Caltabiano unequivocally said he did not. His Honour observed in the course of submissions that “… it’s bizarre. Someone’s lying, and someone needs to investigate it” [T1-53 ll 4-5]; and in his decision he referred to observations of Mr Caltabiano’s demeanour whilst being cross-examined when he denied making or signing the Statement of Witness [D5, l 40-D6 l 9]. The clear inference is that his Honour believed Mr Caltabiano’s denial, even though he did not make any contrary assessment about Constable Bloomfield’s evidence, merely observing in his decision that this matter “… bears some further investigation, but that’s is not a matter for me” [D5, ll 10-11].
Whilst the magistrate found support for the evidence of Mr Turner in the evidence of Mr Caltabiano [in respect of his observations of what happened at the door, that the words “fuck off” were not said by Mr Turner and that there was blood inside the house] it does not seem to me that this support was critical in his finding in respect of Mr Turner’s evidence and in his decision.
In so far as the grounds of appeal against conviction are concerned, I do not agree with Mr Honchin’s submission that the magistrate relied on Mr Caltabiano as providing corroborating evidence of Mr Turner and that this was a critical factor in his finding on the central issue of credit as between Mr Turner and the appellant. The record of interview was tendered in the prosecution case. The version of the appellant was different to that of Mr Turner. The magistrate referred to the record of interview, but in his decision preferred the evidence of Mr Turner. The appellant did not give evidence. Hence his version in the record of interview was not tested by cross-examination. In my view there was nothing irregular in his reasoning in determining the issue of credit.
In so far as the photographs and the police investigation were concerned, those matters were not critical to the resolution of the issue of credit. His Honour did not, in my view, criticise the tendering of photographs by the prosecutor in the course of its case and at the request of Mr Honchin. There was nothing irregular in that practice and his Honour did not saying anything that suggested to the contrary.
Insofar as any deficiency in the police investigation was concerned, the magistrate was able to resolve the issue of credit regardless of whether the prosecution case should have been better investigated and it was open for his Honour so to do.
The acceptance of the evidence of Mr Turner implies the rejection of any self-defence. His Honour said as much in his decision. In any event, even if the appellant’s version of events had been preferred by the magistrate the number of blows struck prima facie would potentially have amounted to excessive force and self-defence would not have been open.
However, his Honour did make one error. It was not open to him to infer that the appellant had “… attended that residence there that morning with the intention of assaulting Mr Turner due to his nine months of frustration, due to his uncontested disappointment and anger of his problem not being resolved by Mr Turner, and due to the fact, of course, he saw it fit to take someone to the house with him, not only to sit in the car whilst Mr Turner came out and had a look at the tray, but to accompany him to the front door.”
That statement suggests that the offence was premeditated. Intention is not an element of the offence of assault occasioning bodily harm. The prosecution did not assert any intention or premeditation to commit the offence. There was no evidence led to that effect. It was not a relevant consideration for findings of guilt or non-guilt. If it was relevant at all, it would only be so on sentence. His Honour did not refer to this in submissions on sentence nor in his sentencing decision. The observations are part of his finding that the offence was proved and his finding of guilt.
However, whilst such an error was made, it does not in my view vitiate his Honour’s principle findings on the issue of credit nor his finding of the appellant’s guilt of the offence. It was not a matter that appeared to have been taken into account on sentence and it could not have been in the circumstances that I have described.
The magistrate made no error in respect to his finding that the appellant was guilty.
Accordingly, the appeal against conviction is dismissed.
Discretion
The principles governing appeals against the exercise of discretion are those referred to in House v The King (1936) 55 CLR 499, at pp504-505. Sentencing involves of course an exercise of discretion.
Decision: sentence
His Honour found that the offence was one of gratuitous violence and that the appellant had no remorse. He considered that the appropriate sentence was one of imprisonment wholly suspended rather than the fixing of a parole release date.
Discussion: sentence
The appellant worked in the construction industry, mainly interstate. He was 45 years of age, married and whilst there was one entry on a criminal history record – an assault occasioning bodily harm in 1992 – the magistrate did not place any significant weight on the conviction because of its age, although he quite properly referred to the fact that the appellant did have such an entry on a criminal history record.
The description by his Honour of the offence as being one involving gratuitous violence was appropriate in all the circumstances. It was a serious example of assault occasioning bodily harm, committed in the victim’s home and arising out of a business dispute between the appellant and Mr Turner. I infer that there was an element of frustration over that dispute, perhaps on the part of both the men and that the appellant had lost his self-control.
The sentence imposed was open to be made and was within the range for more serious offences of assault occasioning bodily harm such as was the case here. Whilst Mr Turner suffered primarily soft-tissue injuries he was fortunate not to have suffered a more serious injury, given that he had not on his evidence fought back. I do not consider that the sentence imposed was excessive.
The appeal against sentence is dismissed.
Conclusion
Pursuant to s225 (1) Justices Act 1886 I may on determining an appeal “confirm, set aside or vary the appealed order or make any other order in the matter” that I consider just. Accordingly, I confirm the conviction and the sentence orders made by his Honour.
ORDERS
1. Appeals against conviction and sentence dismissed.
2. The conviction and sentence of the appellant in the Magistrates Court at Ayr on 19 June 2014 are confirmed.
0
3
1