McLennan v Zimmerman

[1997] QCA 297

[1997] QCA 297

COURT OF APPEAL

PINCUS JA DAVIES JA WHITE J

CA No 241 of 1997
ANDREW McALLISTER McLENNAN
v.

RODNEY ERNEST ZIMMERMAN	Applicant
BRISBANE ..DATE 04/08/97
JUDGMENT
040897 T22/SJ3 M/T COA170/97

DAVIES JA: The applicant was convicted of a serious assault in the Magistrates Court at Maroochydore on 20 March last. He was fined $500, in default 10 days imprisonment and ordered to pay compensation of $1,000 in default of which he was ordered to undergo 20 days imprisonment. He seeks an extension of time within which to appeal against his conviction.

The discretion to grant an extension of time is dependent usually on proof of two matters; the first that there is a reasonable explanation for the delay and secondly, that there are some prospects of success of an appeal if an extension were granted.

As to the first of these, the notice of application for extension is dated 16 June. It is therefore about two months out of time. The applicant's explanation for his delay is that he was given misleading advice that he could not lodge an appeal. He says that he was advised on a number of occasions by his barrister that he could not appeal. He also says that he was unaware of the procedures of an appeal and the fact that there was a time limit in which to appeal. I have no reason to doubt his statement on the second of those matters.

As to the first of them, there is no evidence from his barrister or solicitor and it seems unlikely that he would have received that advice. It may well be that he was mistaken and that the advice which he was given by his barrister was that he should not appeal because there would be little or no point in doing so, the finding against him having been one based on credibility. It is unnecessary to speculate about that further

2   JUDGMENT

040897 T22/SJ3 M/T COA170/97

because in my view the applicant's prospects of success are not
sufficient to justify granting an extension of time.

The events leading to and constituting the assault occurred on 1 July 1996 at the police station at Maleny. The offence particularised was assaulting a police officer acting in the execution of his duty and the assault, as alleged and found, was spitting in the face of a police officer, Constable McLennan.

The applicant has provided a detailed statement to this Court in which he has set out the history of a relationship between him and Constable McLennan. That it resulted in mutual bad feelings between them may be accepted. Some time prior to these events an infant child of the applicant and his de facto wife died. Both the applicant and his wife were understandably grief stricken. Constable McLennan was involved in the police investigation into the death and according to the applicant handled the matter with great insensitivity thereby increasing the suffering of the applicant and his de facto wife. The relationship continued to deteriorate resulting in charges against the applicant of being unlawfully on police premises on 5 June 1996 and disqualified driving, assault and obscene language on 18 June 1996, all of which were subsequently dismissed but which were pending on 1 July. The applicant plainly believed on that day and as appears from his statement before us still believes that these charges and other incidents which it is unnecessary for me to describe but which he has set out in his statement show that Constable McLennan continued to act aggressively towards him and indeed to victimise him. Indeed, part of his concern in this appeal is that the full

3   JUDGMENT

040897 T22/SJ3 M/T COA170/97

history of this relationship was not gone into in the
proceedings in the Magistrates Court in which he was convicted.

Although the applicant's concern about this is understandable, the history was not relevant to the events on the day in question although it is relevant to Constable McLennan's credibility. This was put to Constable McLennan by the applicant's counsel though plainly not to the extent that the applicant would have wished. The case in the end depended on a conflict between Constable McLennan and the applicant, Constable McLennan's evidence to some extent being supported by Sergeant Fawkes with whom the applicant said he had a quite good relationship.

Constable McLennan said that when on duty at the police station at about 11.10 a.m. on the day in question he saw the applicant and his de facto wife enter the police station and approach the front counter. He went to the counter and the applicant's de facto wife began to question him about the death of the child. He said he was not prepared to discuss the matter but he described the demeanour of both of the applicant and his de facto wife as wild, angry and abusive. Sergeant Fawkes then came out of his office and Constable McLennan returned to his own. Sergeant Fawkes began to speak to them.

Constable McLennan said he then heard the applicant yell out, "You're a cockhead, Andrew, I'm going to fucking smash your head in one day." There was then quiet and the constable looked up and noticed that the applicant and his de facto wife had left. He continued to work in his room with his back to the door when

4   JUDGMENT

040897 T22/SJ3 M/T COA170/97

he heard a noise at the door. He turned around and saw the applicant running through his door into his room. When the applicant was about 20 centimetres from him he said, "I'm going to fucking get you one day" and spat into the constable's face.

The constable said he felt saliva on his face and he could taste it in his mouth. The applicant then ran out of the office. The constable then apprehended him by grabbing him at the front counter and said, "You're under arrest you dirty bastard. No-one spits at me." There was a struggle in which Sergeant Fawkes also became involved and the applicant was finally handcuffed.

The applicant's evidence as to the spitting incident was that when he went into McLennan's office he said "What the fuck are the three summonses about?" referring to the summonses about the other matters to which I have just referred and McLennan said "Get out of my office." The applicant said he then said, "Until these matters are sorted out, Andrew, your uniform means shit to me", and he made a gesture of a spit directed towards the floor in the manner discussed. He denied spitting in the constable's face. He then said that the constable in restraining him rammed his head into the wall three times and choked him.

While Sergeant Fawkes' evidence about events outside Constable McLennan's office generally supported Constable McLennan as to the events in Constable McLennan's office, which included the alleged assault, there were no witnesses other than the two participants. As to them the learned Magistrate made strong findings of credibility in favour of the constable. He found the constable to be truthful and credible and that he gave his

5   JUDGMENT

040897 D.1 T23/DP7 M/T COA170/97

evidence in a credible and believable manner. On the contrary he thought that the applicant was not a convincing witness and that he was prone to exaggeration and embellishment.

In his statement put before us the applicant seeks to give a version of events as he says they occurred. Some of this is consistent with his evidence in the Magistrates Court, some appears to be additional to it.

This Court does not hear cases afresh. With some exceptions which are not relevant here, it does not rehear evidence. Consequently the Magistrate had the advantage which this Court lacks of seeing and hearing the witnesses and of forming an impression, based on their demeanour, of their respective credibility. It is a rare case in which this Court would interfere with such a finding and in my view this is not one.

The applicant also makes some criticism of his barrister in failing to cross-examine McLennan with respect to the spitting offence. The evidence shows that the barrister did in fact cross-examine McLennan about this. He put it to him that at no stage did phlegm or spittle strike him in the face. The applicant also complains that his barrister did not cross- examine the other witnesses, Sergeant Fawkes and Mrs Maclean who was the administration officer at the police station, about the spitting incident but as I have said they were not in a position to see what happened. He also complains that his barrister did not call his de facto wife. She had been charged with kicking the police officer whilst the latter was struggling with the

6   JUDGMENT

040897 D.1 T23/DP7 M/T COA170/97

applicant. Perhaps she could not deny this. In any event she
was not present in the room to see the spitting incident.

In his statement before this Court the applicant also complains that no-one said they saw spittle on the constable's face. However, it seems that no-one was asked about that.

Whatever justification the applicant may have had for concern about Constable McLennan's conduct before the day in question the case in the end turns on the Magistrate's impression of the credibility of two persons giving evidence about an event which occurred in a very short space of time. The findings which the Magistrate made in this respect to which I referred are so unlikely to be overturned on appeal for reasons which I have already given that in my view there is no point in letting this case proceed to appeal. I would therefore refuse the application for an extension of time.

PINCUS JA: I agree.
WHITE J: I agree.

DAVIES JA: The application is refused.

-----

7   JUDGMENT