Perry v Queensland Police Service

DISTRICT COURT OF QUEENSLAND

CITATION:

Perry v Queensland Police Service [2012] QDC 294

PARTIES:

LEON WILLIAM PERRY
(Appellant)

v

QUEENSLAND POLICE SERVICE
(Respondent)

FILE NO:

284/2011

DIVISION:

Appellate

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

Southport District Court

DELIVERED ON:

21 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

01 August 2012

JUDGE:

Rackemann DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Where the appellant was convicted of serious assault – Where the appellant claims defences of accident and self-defence against provoked assault – Whether error by learned Magistrate – Appeal against conviction

LEGISLATION

Criminal Code Act 1899 (Qld) ss 23(1), 272

CASES

Teelow v Commissioner of Police [2009] QCA 084

Commissioner of Police v Toomer [2011] QCA 223

Gobus v Queensland Police Service [2011] QCA 283.

Riley v Doyle & Grimsey [1997] QCA 112.

SOLICITORS:

Mr M. McMillan (McMillan Criminal Law) for the appellant

Ms E. Brackin (ODPP Southport) for the respondent

INTRODUCTION

1. The appellant appeals against his conviction, after a summary hearing on 1 June 2011, of serious assault on Raphael Michel Verkest. The assault was serious, because Mr Verkest was over the age of 60. The appellant was sentenced to a one-year good behaviour bond, with a recognisance of $2,500, and ordered to pay $1,500 in compensation.

1. The charge arose out of an altercation which occurred on 10 December 2009 in a public park adjacent to the appellant’s residence.  A swarm of bees had been infesting part of the park, which caused understandable concern.  Mr Verkest, who was described by the learned Magistrate as a “relatively mild-mannered man of Belgian origins”, attended the park, at the request of the council, to collect and remove the bees. He was approached by the appellant and there was a physical confrontation which resulted in the complainant falling backwards and suffering an injury to his vertebrae (although harm is not an element of the offence charged).

1. The learned Magistrate concluded, on the evidence, that the complainant’s fall was the result of an assault by the appellant and that the suggested defences of accident (s 23(1)) or self defence against a provoked assault (s 272) did not apply. The grounds of appeal, as amended at the hearing, are that:

§    The finding of guilt is not in accordance with the evidence;

§    The learned Magistrate failed to properly consider self-defence or accident; and

§    In all the circumstances, the evidence did not demonstrate the appellant’s guilt beyond a reasonable doubt.

It is necessary to review the evidence in order to deal with those grounds.

THE EVIDENCE

Mr Verkest

1. Mr Verkest’s testimony was that, on the day in question, he was attending the park, at the request of the city council, to remove a swarm of bees that posed a potential threat to children who might use that park.  He took with him a box to collect the swarm of bees.  At close to dusk he was carrying the box, with the swarm of bees, towards his car…