Lupson v Queensland Police Service - [2021] QDC 84

DISTRICT COURT OF QUEENSLAND

CITATION:

Lupson v Queensland Police Service [2021] QDC 84

PARTIES:

GRANT IAN LUPSON

(Appellant)

v

QUEENSLAND POLICE SERVICE

(Respondent)

FILE NO:

4469/19

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Southport - Date of Conviction: 24 August 2020

DELIVERED ON:

20 May 2021 (ex tempore)

DELIVERED AT:

Southport

HEARING DATE:

19 May 2021

JUDGE:

Dann DCJ

ORDER:

1.    The appeal be allowed;

2.    The appellant’s conviction in the Magistrates Court at Southport on the charge of assault occasioning bodily harm be set aside;

3.    The appellant be acquitted of the charge of assault occasioning bodily harm.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – S 222 appeal – Justices Act 1886 – appeal against verdict – where the appellant was convicted after a trial of one count of assault occasioning bodily harm (domestic violence offence) – where no conviction was recorded – whether the verdict was unreasonable and against the weight of evidence – whether leave to appeal should be granted

LEGISLATION:

Justices Act 1886, s 222

CASES:

Allesch v Maunz (2003) 214 CLR 180-181

Forrest v Commissioner of Police [2017] QCA 132

Fox v Percy (2003) 214 CLR 118

R v Dalton [2020] QCA 13

R v HBZ [2020] QCA 73

R v Shepherd (1990) 170 CLR 573

Rowe v Kemper [2009] 1 Qd R 247

Teelow v Commissioner of Police [2009] 2 Qd R 489

White v Commissioner of Police [2014] QCA 121

COUNSEL:
B Reilly for the appellant

B Scarrabelotti for the respondent

SOLICITORS:
Worcester & Co for the appellant

Office of the Department of Public Prosecutions for the respondent

Procedural summary and issues on the appeal

This is an appeal against a decision of a Magistrate made on 24 August 2020 where the appellant, Mr Lupson, was convicted after a trial of one count of assault occasioning bodily harm (domestic violence offence). I will refer to this as the Assault Occasioning Bodily Harm (‘AOBH’) charge for convenience. In the same trial the Magistrate acquitted Mr Lupson of a charge of breaching a protection order by failing to be of good behaviour. I will refer to this as the contravention charge for convenience. In each case the complainant was his then wife.
The sole ground of the appeal is that the verdict was unreasonable and against the weight of evidence[1]. The appellant submits that if the appeal is successful, an acquittal on the AOBH charge should be entered for the appellant. The appellant has, in any case, served the sentence imposed by the learned Magistrate on 24 August 2020 of 9 months’ probation. No conviction was recorded.
[1] A further ground for which leave was foreshadowed to be sought in the written outline was abandoned at the hearing.
The issues to be resolved on this appeal are:
(a)Whether, given the Magistrate acquitted the appellant on the contravention charge, the issues of credibility and reliability of the complainant’s evidence in respect of that charge affected her credibility and reliability generally;
(b)Assuming that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QDC 84
Decision Date: 20 May 2021 (ex tempore)

CaseChat Overview and Summary

Lupson was convicted of assaulting someone, causing them bodily harm, in the Southport Magistrates Court. The case involved an appeal under section 222 of the Justices Act 1886, challenging the verdict on grounds that it was unreasonable and against the weight of evidence. The appeal focused on the reliability of evidence supporting the complainant’s account, particularly photographs taken by a police officer and a statement from a doctor who examined the complainant.

The key legal issues addressed were whether the Magistrate's reliance on certain evidence was justified, particularly given the inconsistencies and the lack of clear evidence regarding the timing of the photographs and the complainant’s hospital examination. The appeal argued that the Magistrate erred in finding the photographs and the doctor's statement consistent with the complainant's account. The court had to determine whether these errors were significant enough to deem the verdict unreasonable.

In its reasoning, the court found that the Magistrate's conclusions about the timing and consistency of the photographs and the doctor's examination were flawed. The court noted that the Magistrate incorrectly dated the photographs and failed to address the inconsistencies in the evidence. These errors led to a verdict that was against the weight of the evidence. Consequently, the appeal was allowed, the conviction was set aside, and Lupson was acquitted of the charge.

Orders

Orders of the court

1. The appeal be allowed;

2. The appellant’s conviction in the Magistrates Court at Southport on the charge of assault occasioning bodily harm be set aside;

3. The appellant be acquitted of the charge of assault occasioning bodily harm.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Magistrate was, however, fortified in her assessment of the complainant’s evidence, by her analysis that the complainant’s version of events on 14 September was supported by other evidence. I move now to consider this part of the Magistrate’s reasoning. Whether the evidence relied on by the learned Magistrate as supportive of the complainant’s version could properly be so This argument relates to two pieces of evidence. The first is of two photographs of a scratch on the complainant’s face which were taken by a police officer who took the complaint from the complainant. Whilst the police officer’s evidence was that she took the photographs on the date the complainant attended the station and made her complaint, the police officer gave no evidence of what that date was. The complainant gave no evidence of the date she attended the police station to make her complaint. Thus it is not possible to date the photographs which were tendered into evidence. The Magistrate, however, without the benefit of the transcript, found in her decision that the officer had taken the complaint on 16 September 2019 and this was the date the photographs were taken.[18] The reference to that date is unsurprising because the police officer gave evidence “we took a lot of notes of what had occurred on the most recent incident of 16 September”.[19] However, there was no incident of 16 September in evidence. Nothing was clarified with the police officer as to what she meant by this. There is no evidence in the record to support the finding made by the Magistrate as to the date the photographs were taken. [18]Transcript 1-93 lines 5 – 7. [19]Transcript 1-76 lines 4 – 5. The complainant’s evidence was that the strangling occurred at about 9pm on 14 September 2019. and the examining doctor performed her examination of the complainant at 3.49am on the morning of 15 September 2019. The police officer’s evidence was that she was on afternoon shift on the day the complainant attended the station. Logically, therefore, the photographs must have been taken after the complainant’s attendance at hospital. This causes some problems of consistency of observations arising from the physical examination by the doctor. The examining doctor’s statement as to what she saw on examination after finding the hematoma, specifically states ‘no other bruising or injuries present’. As such, the complainant’s account cannot rationally be supported by the photographs taken at some unknown later time, which contain the scratch and the learned Magistrate erred in finding the photographs containing the scratches were consistent with the complainant’s allegation.[20][20]Transcript 1-95 lines 1 – 3. The second piece of evidence is Dr Krogh’s statement.[21] This was admitted into evidence by consent.[22] It contained the following relevant information: [21]Exhibit 1.[22]Transcript 1-15 lines 37 – 41.(a)She attended the complainant in the morning of 15 September 2019 at the Emergency Department of the Gold Coast University Hospital(b)The patient presented at 03:59 hours on Sunday with a sore throat after an alleged assault with choking;(c)On examination:(i)Minor superficial hematoma on right side of neck under the mandible. Neck sore on palpitation on the front;(ii)No other bruising or injuries found;(iii)CT neck found no filling defect/intimal flap identified on CTA of the head and neck vessels;(iv)No treatment required for present injuries other than pain relief with simple analgesia … ; (v)The injury would be consistent with a bodily injury that interferes with health or comfort … .

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lupson v Queensland Police Service [2021] QDC 84
PARTIES:	GRANT IAN LUPSON (Appellant) v QUEENSLAND POLICE SERVICE (Respondent)
FILE NO:	4469/19
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Southport - Date of Conviction: 24 August 2020
DELIVERED ON:	20 May 2021 (ex tempore)
DELIVERED AT:	Southport
HEARING DATE:	19 May 2021
JUDGE:	Dann DCJ
ORDER:	1. The appeal be allowed; 2. The appellant’s conviction in the Magistrates Court at Southport on the charge of assault occasioning bodily harm be set aside; 3. The appellant be acquitted of the charge of assault occasioning bodily harm.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – S 222 appeal – Justices Act 1886 – appeal against verdict – where the appellant was convicted after a trial of one count of assault occasioning bodily harm (domestic violence offence) – where no conviction was recorded – whether the verdict was unreasonable and against the weight of evidence – whether leave to appeal should be granted
LEGISLATION:	Justices Act 1886, s 222
CASES:	Allesch v Maunz (2003) 214 CLR 180-181 Forrest v Commissioner of Police [2017] QCA 132 Fox v Percy (2003) 214 CLR 118 R v Dalton [2020] QCA 13 R v HBZ [2020] QCA 73 R v Shepherd (1990) 170 CLR 573 Rowe v Kemper [2009] 1 Qd R 247 Teelow v Commissioner of Police [2009] 2 Qd R 489 White v Commissioner of Police [2014] QCA 121
COUNSEL:	B Reilly for the appellant B Scarrabelotti for the respondent
SOLICITORS:	Worcester & Co for the appellant Office of the Department of Public Prosecutions for the respondent