PAA v Commissioner of Police

[2024] QDC 210

DISTRICT COURT OF QUEENSLAND

CITATION: 

PAA v Commissioner of Police [2024] QDC 210

PARTIES: 

PAA
(appellant)

v

COMMISSIONER OF POLICE
(respondent)

FILE NO/S:

Appeal No. 3815 of 2023

DIVISION:

Appellate Jurisdiction

PROCEEDING:

Section 222 Appeal

ORIGINATING COURT:

Magistrates Court at Caloundra

DELIVERED ON:

10 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2024

JUDGE:

Devereaux SC CJDC

ORDER:

1.   LEAVE TO ADDUCE NEW EVIDENCE IS REFUSED.

2.   THE CONVICTION APPEAL IS DISMISSED.

3.   THE SENTENCE APPEAL IS ALLOWED.

4.   THE ORDER OF THE LEARNED MAGISTRATE IS VARIED BY DELETING THE ORDERS THAT CONVICTIONS BE RECORDED.

CATCHWORDS:

CRIMINAL LAW – APPEAL– appeal pursuant to s 222 Justices Act 1886 (Qld) – appeal against conviction and sentence – where the appellant was charged that he assaulted a police officer in the execution of duty and obstructed another officer in the performance of that officer’s duties – whether the police officers had lawfully entered the appellant’s home – whether evidence supported the allegation that the appellant assaulted the complainant officer – where the appellant sought leave to adduce further evidence

LEGISLATION:

Justices Act 1886 (Qld)

Police Powers and Responsibilities Act 2000 (Qld) s. 609

CASES:

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

COUNSEL:

The appellant was self-represented.
Z Arnold for the respondent.

SOLICITORS:

The appellant was self-represented.
Office of the Director of Public Prosecutions for the respondent.

1. The appellant was charged that on 31 May 2023, he assaulted a police officer in the execution of duty and obstructed another officer in the performance of that officer’s duties. The trial took place on 20 November 2023 at the Caloundra Magistrates Court.  The appellant was convicted on 4 December 2023 and fined $5,000 with convictions recorded.

2. The appeal, pursuant to s 222 Justices Act 1886 (Qld), is against the finding of guilt and the recording of the conviction upon sentence. For the reasons that follow, the appeal against conviction must be dismissed. Because of the findings below, the recording of the conviction rendered the sentence excessive.

3. The grounds of appeal in the notice are that:

   1.    The learned Magistrate’s decision to convict was unreasonable and unjust given the whole of the evidence.

   2.    The learned Magistrate erred in exercising the sentencing discretion by recording a conviction.  

   The appellant also raises other arguments in his outline and seeks leave to adduce further evidence.[1]

   [1]Justices Act 1886 (Qld) s 223(2).

Trial

1. At trial, the appellant was represented by counsel.  The learned Magistrate’s reasons include an accurate statement of counsel’s arguments: the officers were unlawfully inside the appellant’s home; it could not be proved that the appellant touched the complainant police officer who, it was argued, grabbed the appellant first and if the appellant did come into contact with the officer he acted in self-defence.

2. The learned Magistrate accepted the prosecution case that the officers were lawfully inside the appellant’s home pursuant to s 609 Police Powers and Responsibilities Act 2000 (Qld). Relevantly, the officers relied on s 609(1)(b), on the basis that they reasonably suspected domestic violence was occurring or had occurred before their arrival at the appellant’s residence.[2] This made it lawful to enter and stay at the place for the time reasonably necessary to establish whether the reason for entry existed and to ensure that, in the officers’ opinions, an imminent risk of injury, damage or domestic violence did not exist at the place and to give or arrange all reasonable help to any person at the place.[3]

   [2]Police Powers and Responsibilities Act 2000 (Qld) s 609(1)(b).

   [3] Ibid s 609(2).

3. The evidence included police communications information that the appellant raised an incident at 17:19 as follows:

   “[Informant] states his partner has called him several times today and is threatening to come home and verbally assault him – She has been accusing the [informant] of drinking alcohol and threatening the [informant] to not tell anyone about their situation – [Informant] wouldn’t elaborate further but [informant] is quite scared of her.

   Partner is [PH] – She is currently on her way home from work – Home within 45 min.

   [Informant] wouldn’t provide a [description] of POI.

   …

   Current DV with [informant] as [respondent] and [PH] as the [aggrieved] – until 2027 – good [behaviour] only.”

   At 18:09, the appellant called back and wanted to know why the police had not arrived yet.  He was told the police would be with him as soon as operationally possible.  The note records,

   “Nothing essentially has changed as his partner still has not arrived – He was advised to call back if she arrives home and a disturbance occurs.”

   At 18:16, the appellant called again,

   “[Informant] called to cancel request for police saying he has already protected himself and expressed his disappointment in police response time.

   Partner is still at IL (Incident Location), they have talked things through. Confirmed no injuries. 

   [Informant] refused to give further information and terminated call.”

4. In the reasons, the learned Magistrate accurately recounted the following. The police communications records suggest the police officers arrived at the home at 18:48 for a so-called welfare check. On the way, the complainant officer in the assault charge (H), read this material and it informed his reasonable suspicion for the purposes of s 609.[4] When police arrived, they were met with an “angry, aggressive” and “rude complainant”. He said things to the police like “I’m not interested. Bugger off please”. He told the police it was none of their business. They then asked about his partner. He confirmed that she was at the address. Initially, he said they could talk to her, then he said they could not. Stating it was “none of their business”. He told the police to “fuck off”.

   [4] Ibid.  

5. These conclusions were confirmed in the evidence, including video from both officers’ body-worn camera video. The combination of the information from police communications, the presentation of the defendant and his refusal to allow the police to see his partner, who was the aggrieved in a current domestic violence order, laid a proper foundation for the formation of a reasonable belief that domestic violence had occurred and needed to be investigated. This finding was open to the learned Magistrate and upon my review of the record was the only reasonable conclusion.

6. Once the officers had gained entry it was only a matter of seconds before the incident which gives rise to the charge occurred.

7. As the police arrived, and before the appellant came to the door, a delivery person left food at the front door. When the appellant came to the front door, among other things, the police drew his attention to the food. He opened the screen door to pick it up and the second officer held the door open to allow their entry. This further agitated and offended the appellant but ultimately he turned around and went inside, telling police they might as well come in. He put down the food and turned back towards the front door, walking towards H. He pointed a finger at H, who was only a few paces away from him, each walking towards the other in a small hallway. The appellant demanded the officer’s name.

8. As the learned Magistrate found, the appellant stopped but H took two or three more steps towards him. The essence of the assault was, as H claimed, that the appellant touched him on the shoulder. After carefully examining the body worn camera video, the learned Magistrate concluded beyond reasonable doubt that the appellant’s right hand came into contact with the officer moments before the officer grabbed the appellant. Her Honour concluded H’s account was supported by the other evidence – that during the scuffle H’s spectacles were knocked from his face and he suffered an injury on the side of the head. The learned Magistrate concluded:

   “There is only one way [H]’s glasses could have become dislodged and flung from his face at that time, which is [the appellant’s] hand also coming into contact with his glasses and/or his face, as he described. The officer’s right hand can be seen grabbing the defendant’s left wrist. If he had somehow hit his own glasses in that movement, they would not have been flung backwards as can be seen in the video footage.”

Appeal

1. Upon my review of all the material, the evidence proves beyond reasonable doubt that the appellant initiated an assault on the officer. It cannot be said beyond reasonable doubt that the appellant touched H’s shoulder but his action nonetheless constituted an assault.  However, it also cannot be said that it was the appellant’s act which caused any injury or caused the spectacles to come from the officer’s head.

2. H’s evidence, aside from what can be seen on the video, was not reliable. In evidence-in-chief he said,

   “we were walking forward towards the lounge room itself. The defendant has grabbed hold of my upper arms with both hands and started to either push me backwards or to start to push me backwards. I’ve then grabbed hold of his full arms to push away from me. He’s then lashed out at my face, hitting me in the face with his hands and then, obviously, causing the injuries and knocking my glasses off my face.”

3. Under cross-examination, H repeatedly disagreed that the appellant had stopped walking towards him by the time the two engaged physically. He also did not accept that the appellant put his hands up to stop the officer coming into the appellant’s space. After viewing the footage, it was put to the officer the appellant’s “feet were planted, and he was stationary. Do you agree or disagree?” The officer answered, “from the footage, it looks like that’s the case”. Ultimately from the officer’s point of view, the assault “was when he grabbed me by the shoulders and then the continued assault after that”.   

4. An examination of the body worn camera video does not confirm the allegation that the appellant pushed the officer on the shoulders or at all. If the appellant’s right hand touched the officer’s left shoulder, it was because the officer walked into it. In the circumstances of the lawful entry for the purposes of s 609 Police Powers and Responsibilities Act, the officer was entitled to walk into the house and an attempt to stop him would have been to obstruct a lawful exercise of duty. Whether or not the appellant’s right hand touched the officer’s left shoulder, it was at that moment of imminent or actual touching that the officer took control of the appellant’s arms and raised them up. In that action the officer’s spectacles were knocked from his face. It is impossible to know, but seems unlikely, that the appellant controlled the movement of his hands which apparently led to their contact with H’s head and spectacles. The officer apparently took control of the appellant’s arms.

5. By approaching the officer as he did, either touching or threatening to touch the officer, the appellant assaulted the officer in the exercise of his duty. This was the limit of any deliberate unlawful act of the appellant.

6. In my respectful view, upon a thorough review of the materials, it was open only to conclude that the appellant had assaulted the officer by touching or threatening to touch him. For these reasons, the conviction of the charge of assault is sound and what followed, as tumultuous and violent as it was, was a lawful arrest which was obstructed by the defendant, giving rise to charge 2, obstruction of a police officer. The conviction of charge 2 is also sound.

7. The result is the conviction appeal is to be dismissed.

8. Once the limit of the appellant’s liability is understood, the exercise of discretion to record a conviction was excessive. The appellant was born on 16 March 1984. At the time of the offence he was 39 years old and is now 40 years old. His criminal history comprises one entry that on 4 July 2022 at Caloundra Magistrates Court, he was dealt with for a contravention of a police protection notice by way of a fine of $500 with no conviction recorded. At sentence, his solicitor tendered a short letter from a treating psychiatrist, which confirmed that the appellant presented with a major depressive episode on a background diagnosis of alcohol and substance misuse, now in remission, and Bipolar II disorder, diagnosed 15 years previously. His solicitor told the learned Magistrate that the appellant had worked in several roles in the IT industry and that, even without a conviction recorded, the matter on his criminal history had to be explained to employers. It was submitted the defendant had demonstrated a good work history until the last few years when he had struggled with his mental health. Because the appellant was about to relocate to Victoria, his solicitor submitted that community orders were not appropriate and suggested the imposition of a fine. The learned Magistrate, properly, did not place much weight on the previous entry in the history, remarking that although the facts were not before the Court, they may be assumed to have not included physical violence. Her Honour accepted that the appellant was otherwise a person of good character. The Court would have considered a community order but for the appellant’s intention to relocate. As to recording a conviction, the learned Magistrate appreciated that “any conviction for violence can have an affect on a person’s future, including their working future” but the submission before the Court was “not so strong as to suggest that the defendant will be unable to work or will lose any current employment.” Because of the seriousness of the matters, convictions were recorded.

9. In my respectful view, despite the serious nature of an offence of assaulting a police officer in the execution of his duty, the peculiar circumstances of this offence taken with the appellant’s character and age, including his significant mental illness difficulties, and the impact that recording a conviction will have on his chances of finding employment, a conviction should not be recorded.

10. Other issues the appellant raised in his outline do not give rise to a miscarriage of justice or appellate error. One complaint was about the conduct of the proceeding by his legal representatives. Having reviewed the material, the legal representatives conducted the case by focussing on the real issues and dealing with matters thoroughly but efficiently. The conduct of the case did not produce an injustice.

11. The appellant also complained that not all the body-worn camera footage was played in full in Court. At the hearing of the appeal, the Court watched more of the video than had been played at the trial, the appellant conceded it was not relevant to the essential issues. It did, the appellant submitted, show the full seriousness of the conduct of the police in their handling of him personally.

12. The material the appellant sought leave to adduce as further evidence comprised of statutory declarations from his mother, his partner, her sister and himself.  His partner, although at the home at the time of the events, witnessed only the appellant’s apprehension and struggle with police.  The other declarants spoke of the appellant’s good character and struggle with mental illness.  The appellant sought to call his partner to give evidence at the hearing of the appeal.  This material was not relevant to the essential issue at trial.  Much of it must have been available with reasonable diligence for use at the trial.  The material would not probably have borne an important influence on the outcome. There are not special grounds,[5] as required by s 223 Justices Act 1886, for giving leave to adduce new evidence.

    [5]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

13. The orders will be:

    1.    Leave to adduce new evidence is refused.

    2.    The conviction appeal is dismissed.

    3.    The sentence appeal is allowed.

    4.    The Order of the learned Magistrate is varied by deleting the orders that convictions be recorded.