Johnson v Edwards

[1994] QCA 418

IN THE COURT OF APPEAL [1994]QCA 418

SUPREME COURT OF QUEENSLAND

C.A. No. 231 of 1994.

Brisbane

[Johnson v. Edwards]

DARRYL ROBERT JOHNSON

v.

JOHN JOSEPH EDWARDS

Appellant

_______________________________________________________________

Fitzgerald P.
Pincus J.A.

McPherson J.A.

Judgment delivered 12/10/1994
Joint Reasons for Judgment of Pincus J.A. and McPherson J.A.; Fitzgerald P. separately, concurring as to the order to be made. _______________________________________________________________
APPEAL AGAINST CONVICTION DISMISSED
_______________________________________________________________

CATCHWORDS: CRIMINAL LAW - ASSAULT - union official punched complainant worker on building site, breaking his nose - assault alleged to be in response to being hosed by complainant - tape recording made by party present on site - expert evidence suggested tape doctored at five places - recording tendered by prosecution - magistrate found tape to be unreliable - whether magistrate should have taken recording into account on defence's behalf.

Counsel:Mr S Herbert QC with him Mr S Lewis for the appellant.

Mr M Byrne QC for the respondent.

Solicitors:Quinlan Miller & Treston for the appellant.

Director of Prosecutions for the respondent.

Date of hearing:31 August 1991.

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND McPHERSON J.A.

Judgment delivered 12/10/1994

This is an appeal against a conviction in the Magistrates Court on a charge of assault occasioning bodily harm. The prosecution case was that the appellant assaulted the complainant by striking him with his fists; one of the punches broke the complainant's nose. The defence case was that, although there was an assault, being one of less seriousness than the respondent alleged, it was provoked by the complainant's action in wetting the appellant with a hose. Self-defence was also mentioned in address, but it was provocation which was pressed.

The substantial point of the appeal is that the magistrate did not deal properly with evidence relating to a tape-recording of events. According to an expert witness called on behalf of the appellant, Mr R J Prandolini, the tape-recording had been interfered with expertly in a number of ways, including substantial deletions and some insertions. The appellant argues that the magistrate did not take enough notice of Prandolini's evidence, and especially did not note matters in it which favoured the defence.

The appellant came to a building site at which the complainant was working as an assistant to a bricklayer. The visit was made by the appellant in carrying out what he regarded as his duties as an official of a union; in the course of it the assault occurred. The defence put before the magistrate considerable detail with respect to the events of the appellant's visit to the site, some of which did not appear to be highly material to the issues the Court had to consider. The principal question undoubtedly was whether the assault which the appellant admittedly committed was a matter for which the appellant was not criminally responsible, on the grounds set out in s. 269 of the Criminal Code; a subsidiary question was the precise nature and extent of the assault.

The provocation relied on was that, so the appellant said, the complainant wet him with a hose which the complainant had been using in the course of his work. The complainant denied hosing the appellant, but the appellant said that he did so, deliberately. Evidence was called on each side and the magistrate favoured the version of events put forward by the prosecution. His Worship found that while the complainant was hosing a cement mixer for the purpose of cleaning it, the appellant quickly approached the complainant and punched him hard on the nose, causing him to fall, and that the appellant continued to punch him, more than once. His Worship found that the assault caused bodily harm, a point not disputed by the appellant.

With respect to the defence of provocation, which was rejected, it was found that the complainant did not deliberately hose the appellant, although the magistrate thought it possible that spray from the hose accidently contacted the appellant. He noted that the appellant is much larger and stronger than the complainant. The magistrate noted answers which the appellant gave in discussing the affair with the police.

The view was open that those answers, and indeed answers the appellant gave in cross-examination, suggested a deliberate retaliation by the appellant for the purpose of maintaining the appellant's self-respect and others' respect for him as a union official, rather than fulfilling the description in s. 269 of the Code - i.e. of having been deprived of the power of self- control and acting upon it on the sudden.

The magistrate said that if he had found the complainant hosed the appellant "I would find that the force used by [the appellant] was excessive and not reasonable in the circumstances". The magistrate also found for the prosecution on the issue of self-defence.

To come now to the principal question raised, as mentioned above, the magistrate expressed the view that the tape did not embellish or assist the prosecution case and said that he did not accept it as reliable evidence. The tape in question was the product of a recorder which a man called Heath, one of the prosecution witnesses, had in his pocket and which he turned on when the appellant arrived on the building site. Heath said that he left the tape recorder on during the whole of the relevant events, but Prandolini's evidence was to the effect that there were gaps.

Prandolini's opinion is to be found in an elaborate report which he made, as well as in his oral evidence. He appears to have made careful tests of the tape and identified five places "where the continuity of the recording has obviously been tampered". He also corrected a transcript which was proffered by the prosecution as, supposedly, an accurate version of what is able to be heard when the tape is played. The main difference it appears is that, rather oddly, the transcript omits a statement "Put the hose on ya mate" which can be heard when the tape is played and which would tend to support the idea that there was a deliberate hosing.

Prandolini said that the gaps in the recording could have been caused accidently or might have been made deliberately. He thought there was evidence that the recording had been edited, using sophisticated techniques. As an example, Prandolini pointed to evidence that a technique of disguising by the sound of hammer blows a place at which the tape had been edited, had been used. Prandolini thought that editing had been definitely used with respect to what he described as the "fight"; he pointed out that there were no sounds of any blows at that point. He referred to frequent changes in the background sounds, unusual acoustic noises and other features as all leading to the conclusion that the recording was not authentic.

On Prandolini's evidence the tape was practically worthless, its state being redolent of fraud. But the peculiarity of this case is that the complaint is not that the magistrate took notice of it, but that he failed to do so. The only really important matter which, according to the submission, the magistrate ignored was the statement "Put the hose on ya mate" referred to above. It is not absolutely clear to what extent, if at all, the magistrate took that into account, but as a matter of commonsense it seems unlikely that the magistrate was unaware of the point; it was emphasised by counsel for the appellant in the address he made shortly before the magistrate delivered his ex tempore judgment. The magistrate's statements that the tape did not embellish or assist the prosecution case, and that he did not accept the tape as reliable evidence, do not necessarily warrant the conclusion that his Worship overlooked the statement in question.

It was further argued that the magistrate ignored a statement made by the appellant, recorded on the tape, "I can defend myself". Because of the unreliability of the tape, one cannot safely deduce from it when that statement was made, but it was argued that we should take it that "I can defend myself" was said only moments before "Put the hose on ya mate". One cannot confidently determine whether the magistrate took notice of "I can defend myself" or regarded it as being of assistance to the defence; it was mentioned in the address made for the appellant below. There is no reason to think the statement assists the defence, in any significant way.

It would not seem right, on what is little more than assumption, to set aside the magistrate's decision on the ground that he ignored relevant evidence favourable to the appellant. But even if one did so, it is difficult to see how that could bring success in this appeal. Although the magistrate did not expressly find that the force used was disproportionate to the provocation, he made a finding equivalent to that in saying that, if he had found that the complainant hosed the appellant, he would find the force used was excessive and not reasonable in the circumstances; that finding was not challenged before us.

It follows that the appeal must fail. But it seems desirable to mention two other matters. One is that, while counsel should not refrain from vigorous defence of a client's interests, it is desirable and indeed essential that magistrates be accorded all proper respect in the performance of their duties. A second and more important point is that the evidence of Mr Prandolini about the tape gives grounds for disquiet. His opinion was to the effect that the tape used by the prosecution in this case was deliberately altered by some person or persons to give a false impression of relevant events. One must hope that consideration may be given by the appropriate authorities to an investigation of the circumstances, to ascertain whether or not any person has been guilty of fabricating evidence. This is desirable, despite the fact that the magistrate declined to use the evidence in question against the defence.

The appeal is dismissed.

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND McPHERSON J.A.
Judgment delivered 12/10/1994

This is an appeal against a conviction in the Magistrates Court on a charge of assault occasioning bodily harm. The prosecution case was that the appellant assaulted the complainant by striking him with his fists; one of the punches broke the complainant's nose. The defence case was that, although there was an assault, being one of less seriousness than the respondent alleged, it was provoked by the complainant's action in wetting the appellant with a hose. Self-defence was also mentioned in address, but it was provocation which was pressed.

The substantial point of the appeal is that the magistrate did not deal properly with evidence relating to a tape-recording of events. According to an expert witness called on behalf of the appellant, Mr R J Prandolini, the tape-recording had been interfered with expertly in a number of ways, including substantial deletions and some insertions. The appellant argues that the magistrate did not take enough notice of Prandolini's evidence, and especially did not note matters in it which favoured the defence.

The appellant came to a building site at which the complainant was working as an assistant to a bricklayer. The visit was made by the appellant in carrying out what he regarded as his duties as an official of a union; in the course of it the assault occurred. The defence put before the magistrate considerable detail with respect to the events of the appellant's visit to the site, some of which did not appear to be highly material to the issues the Court had to consider. The principal question undoubtedly was whether the assault which the appellant admittedly committed was a matter for which the appellant was not criminally responsible, on the grounds set out in s. 269 of the Criminal Code; a subsidiary question was the precise nature and extent of the assault.

The provocation relied on was that, so the appellant said, the complainant wet him with a hose which the complainant had been using in the course of his work. The complainant denied hosing the appellant, but the appellant said that he did so, deliberately. Evidence was called on each side and the magistrate favoured the version of events put forward by the prosecution. His Worship found that while the complainant was hosing a cement mixer for the purpose of cleaning it, the appellant quickly approached the complainant and punched him hard on the nose, causing him to fall, and that the appellant continued to punch him, more than once. His Worship found that the assault caused bodily harm, a point not disputed by the appellant.

With respect to the defence of provocation, which was rejected, it was found that the complainant did not deliberately hose the appellant, although the magistrate thought it possible that spray from the hose accidently contacted the appellant. He noted that the appellant is much larger and stronger than the complainant. The magistrate noted answers which the appellant gave in discussing the affair with the police.

The view was open that those answers, and indeed answers the appellant gave in cross-examination, suggested a deliberate retaliation by the appellant for the purpose of maintaining the appellant's self-respect and others' respect for him as a union official, rather than fulfilling the description in s. 269 of the Code - i.e. of having been deprived of the power of self- control and acting upon it on the sudden.

The magistrate said that if he had found the complainant hosed the appellant "I would find that the force used by [the appellant] was excessive and not reasonable in the circumstances". The magistrate also found for the prosecution on the issue of self-defence.

To come now to the principal question raised, as mentioned above, the magistrate expressed the view that the tape did not embellish or assist the prosecution case and said that he did not accept it as reliable evidence. The tape in question was the product of a recorder which a man called Heath, one of the prosecution witnesses, had in his pocket and which he turned on when the appellant arrived on the building site. Heath said that he left the tape recorder on during the whole of the relevant events, but Prandolini's evidence was to the effect that there were gaps.

Prandolini's opinion is to be found in an elaborate report which he made, as well as in his oral evidence. He appears to have made careful tests of the tape and identified five places "where the continuity of the recording has obviously been tampered". He also corrected a transcript which was proffered by the prosecution as, supposedly, an accurate version of what is able to be heard when the tape is played. The main difference it appears is that, rather oddly, the transcript omits a statement "Put the hose on ya mate" which can be heard when the tape is played and which would tend to support the idea that there was a deliberate hosing.

Prandolini said that the gaps in the recording could have been caused accidently or might have been made deliberately. He thought there was evidence that the recording had been edited, using sophisticated techniques. As an example, Prandolini pointed to evidence that a technique of disguising by the sound of hammer blows a place at which the tape had been edited, had been used. Prandolini thought that editing had been definitely used with respect to what he described as the "fight"; he pointed out that there were no sounds of any blows at that point. He referred to frequent changes in the background sounds, unusual acoustic noises and other features as all leading to the conclusion that the recording was not authentic.

On Prandolini's evidence the tape was practically worthless, its state being redolent of fraud. But the peculiarity of this case is that the complaint is not that the magistrate took notice of it, but that he failed to do so. The only really important matter which, according to the submission, the magistrate ignored was the statement "Put the hose on ya mate" referred to above. It is not absolutely clear to what extent, if at all, the magistrate took that into account, but as a matter of commonsense it seems unlikely that the magistrate was unaware of the point; it was emphasised by counsel for the appellant in the address he made shortly before the magistrate delivered his ex tempore judgment. The magistrate's statements that the tape did not embellish or assist the prosecution case, and that he did not accept the tape as reliable evidence, do not necessarily warrant the conclusion that his Worship overlooked the statement in question.

It was further argued that the magistrate ignored a statement made by the appellant, recorded on the tape, "I can defend myself". Because of the unreliability of the tape, one cannot safely deduce from it when that statement was made, but it was argued that we should take it that "I can defend myself" was said only moments before "Put the hose on ya mate". One cannot confidently determine whether the magistrate took notice of "I can defend myself" or regarded it as being of assistance to the defence; it was mentioned in the address made for the appellant below. There is no reason to think the statement assists the defence, in any significant way.

It would not seem right, on what is little more than assumption, to set aside the magistrate's decision on the ground that he ignored relevant evidence favourable to the appellant. But even if one did so, it is difficult to see how that could bring success in this appeal. Although the magistrate did not expressly find that the force used was disproportionate to the provocation, he made a finding equivalent to that in saying that, if he had found that the complainant hosed the appellant, he would find the force used was excessive and not reasonable in the circumstances; that finding was not challenged before us.

It follows that the appeal must fail. But it seems desirable to mention two other matters. One is that, while counsel should not refrain from vigorous defence of a client's interests, it is desirable and indeed essential that magistrates be accorded all proper respect in the performance of their duties. A second and more important point is that the evidence of Mr Prandolini about the tape gives grounds for disquiet. His opinion was to the effect that the tape used by the prosecution in this case was deliberately altered by some person or persons to give a false impression of relevant events. One must hope that consideration may be given by the appropriate authorities to an investigation of the circumstances, to ascertain whether or not any person has been guilty of fabricating evidence. This is desirable, despite the fact that the magistrate declined to use the evidence in question against the defence.

The appeal is dismissed.

FOR JUDGMENT - FITZGERALD P. Judgment delivered 12/10/94

I agree with Pincus and McPherson JJA's comments concerning counsel's duty towards magistrates.

I also agree that, if there is substantial basis for concern that evidence has been tampered with or lies told in evidence, there should be an investigation and, if there is adequate evidence of an offence, prosecution should follow. Offences which are calculated to pervert the course of justice are extremely serious. However, I leave it for others to decide whether there is cause for further investigation in this matter.

That said, I agree with Pincus and McPherson JJA that the appeal should be dismissed. Their Honours have set out the circumstances and I need not repeat them. On the approach most favourable to the appellant, the magistrate should have found, having regard to the tape and Prandolini's evidence, that the complainant had hosed the appellant and that the blows struck by the appellant were retaliatory. Assuming that to be so, the magistrate was of opinion that the force used by the appellant was excessive and unreasonable in the circumstances. That was not challenged and was plainly correct. The appeal, therefore, must fail.