Morriss v Dubbeld

[1995] QCA 527

IN THE COURT OF APPEAL [1995] QCA 527

SUPREME COURT OF QUEENSLAND

Brisbane	C.A. No. 281 of 1995
[Morriss v Dubbeld]

ROBERT CARL MORRISS
v
DANIEL ANDREW DUBBELD

Appellant

Macrossan CJ
Davies JA

Lee J

Judgment delivered 1 December 1995
Judgment of the Court

APPEAL AGAINST CONVICTION ALLOWED ON COUNT ONE. ORDER THAT THE CONVICTION AND SENTENCE BE SET ASIDE IN RESPECT OF THAT COUNT. APPEAL AGAINST CONVICTION ON COUNT TWO DISMISSED.

CATCHWORDS: CRIMINAL LAW - CONVICTION - Whether enough evidence to support conviction for assault - complainant unable to see clearly what happened -Whether Magistrate reversed onus of proof in rejecting appellant's evidence.

Counsel:	Mrs D. Richards for the appellant. Mr J. Henry for the respondent.
Solicitors:	Legal Aid Office for the appellant. Director of Prosecutions for the respondent.

Hearing Date: 9 October 1995

JUDGMENT OF THE COURT
Delivered the 1st day of December, 1995

The appellant appeals against convictions on 30th June 1995 in the Magistrates Court at Cairns on two counts of assaulting a police officer acting in the execution of his duty on 10th March 1995. The first count involved Morriss and the second count involved Staneke, both police officers on duty at the time. The appellant was sentenced to 18 months probation. Convictions were recorded.

There were two grounds of appeal relied upon - first, that the learned Magistrate erred in that he reversed the onus of proof in holding that to acquit the appellant it was necessary for the appellant to prove that the police officers had effected a violent unprovoked assault upon the appellant; second, that no Magistrate acting reasonably upon the evidence could have failed to have a reasonable doubt about the guilt of the appellant such that the convictions were unsafe and unsatisfactory. While submissions were made with respect to the first ground, major reliance was placed on ground two.

On 10th March 1995 the appellant was taken to the Cairns watchhouse where he spent most of the day. He was of very large build, 6 feet 4 inches tall with a well-developed body. He had been allowed out of his cell to make a telephone call after which he was pacing up and down so Constable Jago told him to sit down. Words were exchanged and the complainant Staneke became involved.

Staneke gave evidence that at approximately 2.00pm that afternoon he heard yelling coming from the charge counter area and that it was coming from the appellant. He decided to take the appellant to a padded cell down the corridor and took him by the arm. He and the complainant Morriss, accompanied by Constable Jago, took the complainant down towards a padded cell.

As the party passed the door to the kitchen the appellant apparently became agitated and a melee broke out. During the course of this altercation, which was of short duration and lasted between 10-20 seconds only, both of the complainants and the appellant suffered various injuries. At the trial the appellant gave a very different version of events from that given by the police officers.

The police version of events was that on the way to the cell, the appellant tensed up, broke free, and pushed Staneke to the wall whereon he struck Staneke a blow to the chest. This is the first blow struck, the subject of Count 2. The appellant held up his right arm as if to strike another blow at Staneke. Morriss came to Staneke's aid. During the melee that followed, Staneke struck the appellant a hard blow to the mouth area. Morriss, according to this version of events, tried to restrain the appellant by means of a choker hold. Morriss was a much shorter man than the appellant who leant forward whilst Morriss retained his hold around the appellant's neck. Morriss' body rose above the appellant in an almost inverted position. His body fell back, his feet still above the floor, while still holding the appellant's neck. The appellant apparently brought his head back and this hit Morriss above the right eye. This was the head butt the subject of Count 1. Constable Jago came to assist and took hold of the appellant's right arm. The appellant was subdued and wrestled to the floor. He was then taken to the cell and continued to struggle on the way.

The appellant on the other hand said that he had been insulted by Constable Jago, and in return had been sarcastic but not abusive. He said in effect that the police were the aggressors and had been abusive to him before he was moved towards a padded cell. He said that because of the way he was being marched towards the cell with Staneke twisting his arm behind his back so that it hurt, he attempted to free it. He said he was then struck to the head by Staneke's fist five or six times. During the course of this, the appellant's tooth was chipped. He said that Morriss jumped on his back whereupon he put his head down to try to keep the blood from the cut to his eye from running into his eyes when he was punched on the top of the head and kicked in the leg by Jago.

Dr. McAuliffe examined both complainants and the appellant.
The medical evidence is consistent with each of the injuries
claimed by the various parties. The appellant had a 2cm
laceration over the left eyebrow, a 1cm contusion to the centre
of the lower lip, an oval red swelling on the top of the head
4cm x 5cm, plus various scratches to the head. There were also
fingernail marks on his arm. Dr. McAuliffe said that the
injuries to the appellant's lip and the injuries to Staneke's
hand, which had a deep cut to the knuckle, were consistent with
one blow, that the injury to the appellant's eye was consistent
with a twisting, striking blow and that the scratches on the
head were not consistent with a head butt. After the
circumstances of the head butt were described to him, the doctor
said that the injuries to the appellant's head whilst not
absolutely inconsistent with Morriss' injury, were unlikely to
correspond with it.

There were accordingly some unexplained injuries to the appellant. It was submitted for the appellant that this indicated the possibility that other blows were thrown by the police which were not explained in their evidence, so that the magistrate should have been left with a reasonable doubt with regard to both counts. The police when asked how these occurred said that they did not know. They openly acknowledged that they had not seen precisely how some of the injuries were caused. It was submitted for the respondent that this supported their credibility.

In support of the first ground of appeal counsel for the appellant relied on the following passage in the record at p.

143 as follows:-

"However when the defendant gave his evidence and was cross-examined, the storyline which Mr Bovey had woven to my mind lacked the substance necessary to give it credibility. I am afraid I found it impossible to accept that the three police officers, who were heard and observed by me in the witness box did, for no reason or the flimsiest of reasons decide to set themselves up as a sadistic team of giant killers."

That passage of course cannot be read without a reference

to the immediately preceding paragraph as follows:-
"The defendant is a veritable giant of a young man. He

states he is six foot four tall and has a body that is well developed and well fleshed. Defendant's size has been a matter of real significance in the evidence given by the prosecution witnesses. Mr Bovey has skilfully put the instructions of his client to the police witnesses in the course of cross-examination and certainly provided an appropriate back drop for his client to give evidence."

The foregoing simply means that the appellant did not come
up to proof which apparently had been foreshadowed by Mr Bovey.
The Magistrate seemed to be doing no more than assessing the
credibility of the appellant's evidence as well as that of the
police officers. In the result, he did not accept the
appellant's evidence. It cannot reasonably be said or implied
that the Magistrate required the appellant to prove that the
police had acted unlawfully or had assaulted him in order for

the appellant to be found not guilty of the offences. The

Magistrate was simply making an assessment as to credibility.

As to the second ground relied upon (Ground 5 of the notice of appeal) no reason has been demonstrated why the Magistrate could not have concluded beyond reasonable doubt that the appellant did punch Staneke in the chest. This was the first punch thrown during the entire incident. Staneke was clear in his evidence that he was punched by the appellant and his evidence was corroborated by that of Morriss who also stated that he saw the appellant punch Staneke. Accordingly it cannot be said that it was not open to the learned Magistrate to find beyond reasonable doubt that the offence in Count 2, that is the assault on Staneke had been committed. It cannot be said that this conviction is unsafe or unsatisfactory.

With respect to the first count, which relates to the complainant Morriss being subsequently head-butted, the evidence is in an entirely different category. There is no doubt that Morriss did suffer an injury, but the exact manner in which it was caused is subject to much confusion. Indeed, during cross- examination, Morriss conceded that it was possible that his injury occurred as a result of the appellant's head being driven back by Staneke's fist. This was pointed out by counsel for the respondent who conceded that in view of this fact, he could not offer an argument to support that conviction.

It would seem from the evidence that by the time Morriss' head was struck, the altercation had become an "all in" scuffle involving the appellant and at least the two complainants, with Jago becoming partly involved. It is hardly surprising in such circumstances that the various parties would have suffered injuries in respect of which the precise cause was not readily identifiable. The appellant himself suffered several wounds and abrasions during the melee and it must be recalled that he was finally subdued to the floor and then virtually dragged along to his cell while he continued to struggle and protest.

There appears to be no direct evidence as to exactly how Morriss' head was struck. None of the police witnesses offered unequivocal evidence on this point. It has not been shown that the head butt was a wilful act perpetrated by the appellant upon Morriss. In these circumstances, the learned Magistrate could not have found on the evidence before him that the prosecution had proved the first count beyond reasonable doubt. The conviction on that count must be set aside.

In the result, the conviction on Count 1 (involving Morriss) and the probation order with respect to it are set aside. The appeal with respect to Count 2 (involving Staneke) is refused. That conviction stands, together with the recorded conviction in relation to it.

No submissions were made with regard to the sentences imposed. The probation order for 18 months made with respect to count 2 is not disturbed.