McDonald v Price

[1994] QCA 428

IN THE COURT OF APPEAL [1994] QCA 428

SUPREME COURT OF QUEENSLAND	C.A. No. 319 of 1994
Brisbane
BeforeFitzgerald P. Davies J.A. Cullinane J.
[McDonald v. Price]

JAMES JOHN MCDONALD

v.

RONALD JOHN PRICE (Appellant)

_______________________________________________________________

Fitzgerald P.
Davies J.A.

Cullinane J.

_______________________________________________________________
Judgment delivered 25/10/94

Joint reasons for judgment of Davies J.A. and Cullinane J.; separate concurring reasons of Fitzgerald P.

_______________________________________________________________

APPEAL DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST

SENTENCE REFUSED.

_______________________________________________________________

CATCHWORDS:  CRIMINAL LAW - CONVICTION - appellant convicted of two offences of common assault - credibility of complainants' evidence - whether open to magistrate to accept Crown witness' account - whether apprehension of bias - whether failure by justice of the peace before whom complaints were laid, and the magistrate, to observe due process - whether convictions unsafe and unsatisfactory

CRIMINAL LAW - CONVICTION - failure of prosecution to call witnesses - whether substantial miscarriage of justice resulted - whether convictions unsafe and unsatisfactory

CRIMINAL LAW - SENTENCE - appellant, 46 years old, frightened, apprehended and assaulted youthful complainants - appellant annoyed by the complainants' trail bike riding - conduct unprovoked - lack of remorse - whether fine imposed and recording of a conviction justified

Counsel:	The appellant in person
Ms L. Clare for the respondent
Solicitors:	Director of Prosecutions for the respondent
Date of Hearing:	27 September 1994

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 25/10/94

The circumstances are set out in the judgment of Davies J.A. and Cullinane J., who have patiently discussed the appellant's

numerous points. It is regrettable that time has been spent

hearing and answering so many futile arguments.

The appellant's grounds included complaints against the

investigating police officer, the justice of the peace before whom the complaint was made, the prosecutor and the magistrate.

I do not find it necessary to discuss the material principles

to conclude that none of these complaints warrants the

intervention of this Court on this occasion.

These matters aside, this was a straight forward case in which

there was an abundance of evidence which the magistrate was

entitled to accept and which, once accepted, amply justified the appellant's convictions. I agree with what has been said by Davies J.A and Cullinane J.

I also agree with their Honours' reasons for concluding that

there is no basis for interfering with the sentence imposed, and

with the orders which they propose.

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND CULLINANE J.

Judgment delivered 25/10/94

The appellant was convicted after a trial in the Magistrates

Court at Gatton on 18 July 1994 of two counts of common assault,

one upon a youth named Morgan, the other upon a youth named Booth, both having occurred on 24 January 1993. He was

sentenced by the imposition of a fine of $350.00 and his conviction was recorded. The appellant appeals against that conviction and seeks leave to appeal against that sentence.

The assaults of which the appellant was convicted consisted of

an attempt to remove a motorbike helmet from Morgan's head while it was still fastened, the force leaving red marks on his

throat; and the removal of a motorbike helmet from Booth's head.

Although the appellant, who conducted his own appeal, raised 17

grounds of appeal against conviction, the facts of the case are

fairly simple and the question for the learned magistrate was

essentially one of credit. The only witnesses who gave evidence as to the circumstances of the alleged assaults were Morgan, Booth and Mr and Mrs Eastaugh who were neighbours of the appellant. Although, as might be expected, there were some inconsistencies between these witnesses as to the precise

sequence of events it is correct to say, as the learned magistrate concluded, that the evidence of Mr and Mrs Eastaugh corroborated that of each of the complainants. The learned magistrate, as she was entitled to, accepted the complainants and Mr and Mrs Eastaugh as witnesses of truth. Neither the appellant nor any of several persons whose evidence, it was asserted, would have corroborated that of the appellant and contradicted that of the complainants and Mr and Mrs Eastaugh, gave evidence at the hearing. Curiously the prosecutor sought

to tender statements by those persons and they were admitted

into evidence. The appellant's statement appears to be a self-

serving statement. Indeed his counsel remarked upon that fact and that consequently it should not go into evidence. In the end the learned magistrate chose to place little weight on the statements. In view of the failure of any of the deponents to give evidence we think that the learned magistrate was correct

in so doing.

In summary, the facts as found by the magistrate were as

follows. The complainants were cousins and on the day in

question were riding trailbikes. The complainant Morgan lived

in Lefthand Road, Mt Sylvia as did the appellant. As they rode

their bikes along a roadway approaching the appellant's property

a man Vanhoff drove his stationwagon from the appellant's driveway onto the roadway and into their path. The appellant

alighted from the passenger side of that vehicle and began photographing the complainants. They were riding slowly as one

of the tyres on one of their motorcycles was flat. As Morgan sought to ride past the car the appellant stood in front of him, grabbed the handle bars of the motorcycle and attempted to tip

it over, at the same time calling out that Morgan had tried to

run over him. The appellant then ran backwards and forwards between the two complainants photographing them and calling out

obscenities to them. He then attempted to remove Morgan's helmet with considerable force but as it remained attached under

his chin he was unable to do so. He then hit Morgan in the

head. He had previously pulled a fuel pipe from his bike and,

after hitting him in the head, threw the pipe away. Booth had unclipped his helmet and the appellant forcibly removed it from his head and threw it onto his own property. Morgan and Booth

then pushed their bikes away. The appellant followed, some

distance behind, continuing to call out abuse.

On those facts the learned magistrate was entitled to convict

the appellant on each of the counts on which she did. Indeed,

having found those facts, no other conclusion was open than that

the appellant was guilty of each of those offences.

The grounds of appeal are all put as particulars of an unsafe

and unsatisfactory ground.

The first, ground (a), asserts that the prosecution failed to prove absence of consent to the assaults. In fact consent was

never in issue. On the evidence there was no occasion for any doubt that the complainants had not consented to the assaults.

The complainant Morgan gave evidence that he had expressly asked

the appellant to stop, and there was evidence that both

complainants were frightened of the appellant's aggressive behaviour, committed as it was while he was in the company of

other adult men. It was a question for the magistrate to determine whether or not the relevant application of force was

with or without the consent of the complainants. From the transcript of the proceedings and the magistrate's decision it

is apparent that she had correctly concluded that the issue of

consent was not one which was open. And upon the evidence that

was the only conclusion which was open.

The appellant further contended that there had to be express

evidence from the complainants as to their absence of consent to the application of force for the prosecution to have discharged

the onus of proof. However, it was unnecessary for lack of

consent to be proved in that or in any other way where consent
was not in issue; cf. R v. Wilson [1985] 2 Qd R 420.

The second, ground (b), asserts lack of identification. First, it was submitted that the appeal must be allowed as there had

been no express identification of the appellant as the person

alleged to have assaulted the complainants. However, that was plainly unnecessary as there was an unequivocal identification

of the appellant by all four witnesses for the prosecution. The appellant was known to each of them. Further, the appellant in his written statement which had been tendered, admitted being involved in a confrontation with the complainants. It was also

contended by the appellant that there were a number of people at the scene who could have been referred to as "Mr Price".

However, there could be no doubt that the appellant was that

person as there was no suggestion that any of the appellant's

friends who were present at the relevant time were involved in

the incident. And, although the appellant's sons were in the

vicinity of the incident there was nothing to suggest either that they were involved, or that the name "Mr Price" was being

used by the witnesses other than in relation to the appellant. Indeed, as we have said, some of those witnesses expressly knew

"Mr Price" as the defendant before the court.

Ground (c) asserts that if the learned magistrate found there was a case to answer, the charges should have been dismissed or stayed at that time. The submission appears to confuse the duty of a magistrate, at the end of the prosecution case, to decide whether there is a case to answer with his or her right, if a defendant does not call evidence, to refuse to convict. There

is no substance in the submission.

Ground (d) asserts that the learned magistrate made assumptions detrimental to the defendant which were not open on the

evidence. It is difficult to understand precisely the nature of the appellant's complaint, although he has particularised a

number of matters in his written submissions. First, it was suggested that her Worship, in questioning the admissibility of a tape recording of part of the incident, indicated that the accused should not have the opportunity to test the credibility of the prosecution witnesses. However, the course of the proceedings indicates the contrary. The tape was in fact

admitted into evidence. Further, it was played by the appellant's solicitor to the complainant Morgan during cross- examination and he was questioned on inconsistencies between the evidence which he had given and the recorded version of the incident. The appellant also made a number of other assertions

concerning assumptions made by the magistrate during the course of the hearing. In our view there is no substance in any of these contentions.

The appellant also contended that the prosecution was aware that

the evidence being given by the complainant Morgan substantially

conflicted with an earlier statement which they had in their possession and had not informed the defence of this. The

appellant has failed to particularise what, if any, prior conflicting statements of that witness for the prosecution were in the Crown's possession. There appears to be no foundation

for this complaint.

Other submissions under this ground of appeal were general

assertions that the convictions were unsafe and unsatisfactory. The substance of them was that the conclusion reached was not

one open on the evidence. It is unnecessary to reiterate them or refer to them in any detail. For the reasons which we have already given that conclusion was one which was plainly open.

Ground (e) alleges bias. A number of contentions were advanced.
One of them was that the learned magistrate showed bias in her
consideration of those statements tendered which supported the
appellant's written account. She said in her decision that they
were of little assistance and that she could not make much sense
of them as they appeared principally only to confirm the
contents of the appellant's statement. As we have said she
correctly placed little or no reliance on them in reaching her
decision. Nothing which the magistrate said about these

statements could be taken to indicate bias against the appellant. It was also contended that the magistrate's intervention during cross-examination of Morgan was indicative

of bias. It was plainly appropriate for objection to be taken to the questions being asked and there is no substance in this. It

was also contended that there was an apprehension of bias from a failure of the magistrate to make any comment when the

Prosecutor asked a number of leading questions during

examination in chief. No objection had been taken to those questions. In our view it is impossible to draw any such

inference from this.

It was further submitted that an inference of bias could be

drawn because the magistrate had accepted Morgan's evidence in

circumstances where the defence had attacked his credibility. But we think that the magistrate properly considered the issue

of credit and no apprehension of partiality can be made against her because she chose to accept the substance of his account of

the incident. Other assertions were made concerning the conduct of the proceedings with the object of showing that the magistrate was biased, but it is unnecessary to refer to them in any detail. There is nothing on the record of the proceedings which indicates that her Worship acted other than with judicial propriety.

In his written submissions the appellant referred to a comment

allegedly made by her Worship in previous proceedings between Daniel Morgan and himself. According to the appellant her

Worship had said: "Mr Price thinks he can get away with

anything."

Those proceedings were pursuant to a complaint brought by Morgan

against the appellant pursuant to the Peace and Good Behaviour Act 1982. They were unrelated to the incident out of which the

appellant was charged and were in fact dismissed. Further, the context in which the statement was made was not fully explained before us. Nor, notwithstanding that statement, was any

objection apparently taken to the same magistrate presiding in the proceedings from which this appeal is brought. In the

circumstances the magistrate's statement cannot be such as to give rise to a reasonable suspicion that she approached the

present proceedings other than impartially or that she had pre-

judged the issues.

The magistrate had apparently also presided in other matters to

which either the appellant, or the appellant and the complainant Morgan, were parties. It was submitted that there was an apprehension of bias because the magistrate had in a prior proceeding committed the appellant for trial, the appellant's

subsequent conviction being overturned on appeal. In another matter the appellant had brought proceedings against the Nominal Defendant in respect of injuries allegedly caused from the use of one of the motorcycles in the course of the same incident out of which the assault charges arose. That action was dismissed, but apparently on a ground other than upon any issue which

required determination by the magistrate in these proceedings. Nothing in the facts put before us with respect to either

proceeding gives rise to any reason for concluding that there

was a reasonable suspicion or apprehension that the magistrate was biased; and no such reason was suggested below. We therefore reject this ground of appeal.

Ground (f) alleges that there was a reasonable doubt. This ground may be taken together with ground (j) which asserts that the learned magistrate failed to have due regard to the onus of

proof and ground (k) which asserts that she failed to have due

regard to the standard of proof. But once the magistrate accepted the evidence of the witnesses who gave evidence the case against the appellant was established according to the appropriate standard and there was no room for any reasonable doubt. Moreover it is plain that the learned magistrate

correctly directed herself on these questions.

Ground (g) asserts that the learned magistrate allowed the admission of inadmissible evidence. The only evidence of doubtful admissibility, but of some relevance, which was

admitted was the evidence contained in the statements ex. 3, to which we have already referred; that is statements by the appellant and by a number of his friends or relatives who were present at various stages. However as the learned magistrate

rightly gave little weight to this its doubtful admissibility does not matter. In any event as the evidence supported the

appellant's case and contradicted that of the prosecution its
admission could not have disadvantaged the appellant.

The next ground, ground (h) asserts that the learned magistrate disallowed legitimate cross-examination of prosecution

witnesses. No basis for this ground was established.

Ground (i) asserts that the learned magistrate failed to take into account substantial differences between prosecution

witnesses. We have already referred to variations between these witnesses. These were consistent with four honest witnesses recalling events 18 months previously. Indeed, as the learned magistrate herself said, coincidence on all matters would have required a greater critical appraisal of their evidence. On the other hand it is not correct to say, as the appellant does in his written submissions, that the learned magistrate thought

that the credibility of the prosecution witnesses was enhanced

by these variations. It is apparent that she carefully

considered the credibility of each.

Ground (l) asserts that the learned magistrate failed to have due regard to the variance between particulars provided and the

evidence. This seems mainly to rely on the sequence in which the appellant attempted to remove Morgan's helmet and removed

Booth's helmet. The particulars assert and Morgan deposed to

the sequence being attempted removal of Morgan's helmet followed

by successful removal of Booth's helmet, Morgan adding that

there had first been an unsuccessful attempt to remove Booth's

helmet. Booth thought that the sequence was otherwise. The

learned magistrate properly regarded the difference between

their evidence as minor and inconsequential.

The next ground, ground (m), criticised the failure of the prosecution to call witnesses. We assume that these were the

witnesses whose statements comprise exhibit 3, excluding of course the appellant himself. It was submitted by the appellant that it was imperative that the court have before it all the

persons who could give direct eye witness evidence. We think

that this is to overstate the obligations of the Crown in

calling evidence. The prosecutor has the responsibility of determining the evidence to be called for the Crown and in

making that decision he or she will be guided by considerations of fairness to an accused person; The Queen v. Apostilides (1984) 154 CLR 563. While the failure of the Crown to call a

witness may constitute a ground for a new trial, this will only be so where that failure constitutes a miscarriage of justice; see also The Queen v. Watt and Austin (unrep. 17/5/94; C.A. Nos. 430, 431 of 1993). It is apparent that the witnesses concerned were friends or sons of the appellant, at least one of whom had been a party to the appellant's apprehension of the

complainants. But it was not demonstrated what relevant evidence any of these witnesses could have given. All that was shown was that they were prepared to confirm the appellant's account. There is no requirement that merely because there is a witness who is said to be prepared to give testimony contrary to that given by Crown witnesses that the Crown is thereby obliged

to call that person; The Queen v. Bellino (unrep. 12/10/93; C.A.

No 2 of 1993). The appellant has not shown that there has been a substantial miscarriage of justice by the Crown's failure to call those witnesses. We would therefore reject this submission.

The next ground, ground (n) asserts that the learned magistrate failed to have due regard to the failure of the investigating

officer to properly investigate the complaint. In his written submissions the appellant complains about the propriety of the police investigation, principally that inquiries respecting the

registration of the complainants' motor cycles had not been undertaken by the investigating officer. The failure to ascertain whether the motor cycle ridden by the complainant Morgan was registered was alleged to be evidence of a lack of

good faith on the part of the officer to properly ascertain the

facts. We do not see this failure as indicative of a failure to

properly investigate the incident out of which the charges

arose. It was also contended that there was a failure to properly investigate the complaint by failing to interview the

persons named in the appellant's statement. However, in the absence of evidence that any of those persons could have given relevant evidence, rather than merely supporting the appellant, this ground is not made out.

Further contentions under this ground of appeal related to the

credibility of the officer's testimony as indicative of a failure to properly investigate the complaints. In considering

his evidence we see no substance in this. This ground of appeal

must therefore be rejected.

Ground (o) asserts generally that the convictions were unsafe and unsatisfactory. In his written submissions the appellant repeats much of what is said under the other grounds. He complains about the credibility of Morgan's evidence and that his account of the incident could not be accepted because of the

differences between his answers and the tape recording of the

incident played to him in cross examination. He asserted that

the magistrate was in error in relying on his evidence. She

however found the tape to be highly unsatisfactory. She found

that it finished or was cut off before the incident was over.

She held that it did not demonstrate the complainants in a bad

light and that was open to her. He also makes other complaints

about Morgan and Booth's testimony; that it was so unreliable that a tribunal of fact could not be satisfied beyond reasonable

doubt of the appellant's guilt. He complains again of the

police investigations and bias. To the extent that, under this

head, the written submissions add to those already made, they

are of no substance.
Ground (p) asserts that the learned magistrate failed to
consider or give the appellant the benefit of the defences which
were open to him. The defence case was principally that the
Crown had not proved that the appellant had committed the

offences alleged. The appellant's solicitor however did raise as a defence s. 260 of the Criminal Code. The appellant asserted that Morgan had run his motor cycle into him to prevent him from

taking photographs which could be used in a prosecution of

Morgan for riding an unregistered motor cycle. The magistrate

held that there was no evidence upon which that defence was open

to the accused and we agree with that conclusion. There was no

evidence of a breach of the peace nor that the appellant interfered to prevent one. There appears to be no substance in

this ground.

The final ground of appeal, ground (q), asserts that the magistrate failed to proceed with due process. The appellant's submission relates to a number of different complaints.

First, it was submitted that as the Crown could not prove the

circumstance of aggravation it was not open for the magistrate to convict the appellant on the charge with respect to the

complainant Booth. The magistrate dealt with the offence as one of common assault having ruled that the element of aggravation involving Booth's age had not been proved. It was asserted that

it was necessary for the appellant to be re-charged for an

offence of common assault upon Booth. But, as the offence for which the appellant was convicted was the same offence as that in the summons, the circumstance of aggravation merely providing

for a heavier punishment, we see no substance in the contention

that due process was not observed by the magistrate; Ross v. The

Queen (1979) 141 CLR 432, 433, 437-9.

The appellant also contended that due process had not been

observed by the justice of the peace before whom the complaints were laid. That justice of the peace was employed to perform administrative duties in the police station in which the officer who laid the complaint was stationed. It was contended that as an employee of the Police Department she would be subject to a reasonable suspicion of bias, and that accordingly there was an infringement of due process. While it may sometimes be

undesirable for a subordinate employee to exercise such functions in proceedings in which his or her superior is

involved as complainant, we do not think that any objection can be taken in this case; cf. Electronic Rentals Pty Ltd v.

Anderson (1971) 124 CLR 27 at 45-6. She was not a police

officer, nor was there any evidence of any employment relationship with the investigating officer; see also Justices Act s. 53.

It was also questioned whether the justice of the peace signed the summons with an awareness of the requirements to be observed

in an exercise of her powers. However, there was no evidence

that the justice of the peace failed to exercise her discretion and it was conceded below by the appellant's solicitor that the discretion had been considered and that the summons had been

validly issued. There is no foundation for this contention.

We have also considered the appellant's further contentions

which were included in this ground of appeal. It is unnecessary

to refer to them in any detail. We see no substance in them.

As we have already indicated, the case turned on whether the

learned magistrate was entitled to accept the evidence of the

prosecution witnesses. She had the advantage, which this Court

lacks, of observing their demeanour and, in consequence,

assessing their credibility. It was not demonstrated to this

Court that she had gone wrong in making that assessment.

Accordingly the appeal must be dismissed.

The appellant also seeks leave to appeal against the sentence

imposed and the recording of the conviction.

The appellant is a 46 year old man who apprehended and

frightened two youths, abused them, used obscene language to

them and assaulted them in circumstances in which his conduct

was unprovoked. Moreover, by pleading not guilty and contesting

the prosecution, he showed no remorse for his conduct.

On the other hand there was some evidence that the complainants

had been annoying the appellant and his neighbours by fairly

frequent and noisy riding of trailbikes in the vicinity. This plainly disturbed the appellant and his conduct, as described by

the witnesses, indicated extreme agitation at the relevant time.

The appellant had no relevant previous convictions.

Given the conduct which we have described, and the appellant's

lack of remorse, in our view the fine imposed and the recording

of a conviction were fully justified. This is not a case in which an indiscretion should be excused by the non-recording of a conviction.

We would therefore refuse the application for leave to appeal

against sentence.