Queensland Police Service v TKD
[2017] QMC 24
•7 December 2017
MAGISTRATES COURT OF QUEENSLAND
CITATION: | Queensland Police Service v TKD [2017] QMC 24 |
PARTIES: | Queensland Police Service v TKD |
FILE NO/S: | MAG-00202130/17(8) |
DIVISION: | Magistrates Court |
PROCEEDING: | Criminal hearing |
ORIGINATING COURT: | Brisbane Magistrates Court |
DELIVERED ON: | 7 December 2017 |
DELIVERED AT: | Brisbane Magistrates Court |
HEARING DATE: | 9 October 2017 & 14 November 2017 |
MAGISTRATE: | AC Thacker |
ORDER: | Guilty. Convicted of the assault occasioning bodily harm |
CATCHWORDS: | Trial - Assault occasioning bodily harm – Domestic andFamily Violence Protection Act 2012 - accident defence Criminal Code 1899 (Qld), sections 245 and 339(1) and 23 Liberato & Ors v The Queen (1985) 159 CLR 507 at 515. |
COUNSEL: | Senior Constable Barnes for the prosecution J Jones for the defendant |
SOLICITORS: | The Brisbane Prosecutions Corp for the prosecution McGuiness & Associates for the defendant |
The question for decision in this trial is whether or not TKD (“the defendant”) unlawfully assaulted his wife QRS (“the complainant”) on 4th December 2016 and thereby did her bodily harm. The defendant claims the harm was caused by accident. This is a defence available pursuant to section 23 Criminal Code 1899 (Qld).
Even if the court rejects the defendant’s testimony about accident, the prosecution nevertheless must prove the elements of the unlawful assault charged. A consequence of a witness not being believed is not that the opposite has been proved. The prosecution must therefore prove to a level that is beyond a reasonable doubt that the defendant struck or hit the complainant: See Liberato & Ors v The Queen (1985) 159 CLR 507 at 515.
The charge is brought pursuant to the Criminal Code section 339 and also alleges the offence is a domestic violence offence. Pursuant to section one of the Criminal Code “domestic violence offence” means an offence committed by a person where the act done which constitutes the offence is also domestic violence under the Domestic and Family Violence Protection Act 2012 committed by the person. There is no contest about this as the complainant and the defendant were at the time a married couple with two children resident all together.
The incident on 4th December 2016 resulted in injury to the complainant. She received a split lip and damage to her teeth and gums. Exhibit 1 is three photographs taken of the complainant by the investigating officer Constable Verrills on the evening immediately after the event, showing aspects of the injuries. The defendant accepts that the harm the complainant suffered is “bodily harm” within the meaning of section 339 Criminal Code.
The testimony in this case while essentially the complainant’s word against the defendant’s word included other witnesses to the immediate aftermath of the incident that occurred on 4th December 2016 by the testimony of Constable Fiona Verrills, Constable Luke Moloney and medical evidence of Dr Mark Willsdon and Dr James Douglas.
During the trial I have had the opportunity of listening to and observing the demeanour of each of the complainant and the defendant. This has assisted me in assessing the credibility of their versions of the events. I accept there is a need to keep the appearance and demeanour of a witness in perspective and the weight of that aspect in light of other more objective considerations.
The complainant’s testimony is that at the time of the alleged assault the family resided together with a settled regime. She was employed as a French teacher at one of the local private schools. The defendant stayed at home with the children and was expected to contribute to their joint effort to home-school the children. The complainant home-schooled the children before and after her work.
On Saturday 4th December 2016 the family met up at a local park where Christmas festivities were occurring. The defendant wanted their son P to do a particular activity – rock wall climbing. P had not been successful at it the year previous and the defendant wanted him to have another attempt. This opportunity was missed and the complainant says the defendant was “very angry” with her and telling her it was her fault. She also stated:
I saw how angry he was. His face was actually very distorted. That was very frightening. He decided that we would not stay for the Christmas carols, that we were going home. [1]
And also:
[1] Transcript Day 1 at 1-7
He was obviously extremely angry. I’d never seen that face before, and he had hit me before. [2]
[2] Transcript Day 1 at 1-12
The complainant later in the evening sought to avoid the defendant after the children were put to bed and asleep when the defendant was still ruminating on the failure at the park. As a consequence the complainant decided to leave the house. She could not get out the front door as it was locked and her keys were not where they usually are. The defendant then appeared behind her holding a machete and demanding to see the phone she was holding. She talked to him until he calmed and he put down the machete. She then took up her phone and entered into it the triple 000 emergency number. She walked to the back deck to exit the house that way. She hid behind the table on the back deck with her phone but could not bring herself to make the 000 call. Again the defendant came and demanded to see her phone and who she was calling. When she did not answer him, he left. At that point the complainant says she decided to leave but did not reach the door because the defendant suddenly appeared again. She saw “a big light” and something hit her “very very hard”. She immediately pressed the triple 000 call and complained into the phone “my husband just hit me”.
Under cross-examination the complainant insisted she had been hit and repeatedly denied that she and the defendant had “collided” around the back deck table. [3] The complainant did not know on the night what had hit her. She complains that the injury was caused by something being held by the defendant. She has tried to identify what she was hit with from time to time since.
[3] Transcript Day 1 at 1-46.
Constable Verrills’ testimony was that she and her partner, Constable Moloney were detailed to attend the residence at about 10.45pm, Code 2, and arrived there within a couple of minutes. Constable Verrills had a conversation with the complainant while Constable Moloney had a conversation with the defendant. During her conversation Constable Verrills made observations of injuries to the complainant’s face and took the three photographs mentioned already. She also searched the house looking for a torch which she was unable to locate. She helped the complainant arrange for a neighbour to come and look after the children and she also arranged for the Queensland Ambulance Service (QAS) to attend. She saw the QAS treat the complainant and then the complainant went with QAS to the PA Hospital.
Under cross-examination Constable Verrills explained that the complainant did not want to make a complaint against the defendant. Nevertheless Constable Verrills recorded the conversation she had with the complainant on a digital recorder (not produced to the court). I have no reason to disbelieve the Constable’s testimony and I accept it.
Constable Moloney’s testimony was that when he and Constable Verrills arrived at the front door the complainant was there and he saw she had a cut on her lip and appeared quite shaken, eyes bloodshot like she had been crying. Constable Moloney had a conversation with the defendant although the content of that conversation was not disclosed to the court. Constable Moloney did not search the house. He remained with the defendant the whole time and searched the defendant and did not observe any injuries on him. His evidence was not challenged and I accept it.
Dr Mark Willsdon and Dr James Douglas gave medical evidence. Neither had any independent recollection of attending the complainant and referred to notes made in their files on her. Dr Willsdon saw the complainant the next day after the incident, 5th December. He performed X-rays and a CT scan of the complainant’s facial bones which showed under-lying jaw fracture. He applied treatment. He agreed with defence counsel’s proposition that the injury would be in keeping with a blunt object. However, he declined to agree that “not a great deal of force would be required” to cause the injury. [4] I find this an important piece of evidence.
[4] Transcript Day 1 at 1-55
The dentist, Dr James Douglas gave testimony that he saw the complainant some days later, on 8th December. His notes revealed the complainant had claimed to him that she’d “had a knock and had fallen”. After observing the injuries he made a plan for treatment over a month to six weeks. I find that this description of the complainant’s claim about how she received her injuries as noted by Dr Douglas does not advance the issues one way or the other.
Under cross-examination Dr Douglas explained that the complainant by wearing a retainer (also referred to as an Invisalign retainer) at the time of the event on 4th December, would have acted like a mouth guard in the event of trauma.
I have no reason to disbelieve the evidence of the doctors and I accept their evidence.
The defendant gave evidence. His evidence-in-chief was that he is well educated with two University degrees though not employed. He was a house husband and contributed to the home education of their two children although he was not able to detail anything about what he did to home - school the children despite a number of attempts by his counsel to have him do so.
Regarding the missed opportunity at the park the defendant said he was “unhappy”.[5] He was asked if he contorted his face as suggested but he did not answer the question. Instead he proffered “We bought some ice cream…” [6] Under cross-examination his evidence on this point was -
I – it was the - almost a year ago, you realise that. I don’t – oh – it – well, I wouldn’t have been happy. If that’s what you’re asking me. I would have been the opposite of happy, yeah. I don’t know.[7]
[5] Transcript Day 1 at 1-77
[6] Transcript Day 1 at 1-77
[7] Transcript Day 2 at 1-19
He also gave evidence that he had prepared a picnic hamper for them to eat at the park. Instead of eating and staying for the Christmas carols he decided they would not stay and they went home.
Later the same evening when the complainant came out of the children’s’ bedroom he was sitting on the sofa and he again spoke to her about missing the rock climbing wall activity. His testimony was that he was the one that again raised the missed opportunity and that he was “disappointed”[8] about that not eventuating. He was not happy either that the complainant was dismissive of his criticism saying “get over it / do it next year.” [9] There was little more to his evidence-in-chief about this.
[8] Transcript Day 1 at 1-79
[9] Transcript Day 1 -79 - 80
His testimony about what occurs very shortly thereafter at, or near, the front door involving the machete conflicts directly with the complainant’s. He says there was no machete. However, on either version the parties were at that stage, in conflict. The conflict caused the complainant to retreat to the back deck and to crouch down behind a table there. He knew she had gone to the back deck and followed her there wanting to know what she was doing on her phone or who she was talking to on her phone. When he went to the back deck he had a torch[10]: He says she didn’t talk to him, she just kept looking at her phone. He then went towards her around the table. She threw something at him (a toy). Then he says:
[10] Transcript Day 1- 81 at lines 37 and 45
---I don’t know. I was confused. We were around the table, and then we collided.[11]
[11] Transcript Day 1 at 1-82
He does not deny he approached her. He denies intentionally colliding with the complainant. However, he gives no explanation as to why he was moving towards her such that they would collide and nor why he was moving with such force that she was injured to the extent of suffering an injury causing her injuries. He also gave no evidence of what he did in the immediate aftermath.
Under cross-examination he conceded he owns a machete. He also failed or refused to answer many challenging questions. I am troubled by the defendant’s failure or refusal to give a complete narrative of the events of 4th December. For example, he was unable to give an account of his immediate response to missing the rock climbing wall activity. To the contrary his evidence was as follows:
Defence Counsel: … Did you raise with [the complainant] – that the children had not had the opportunity to use the climbing wall?
Defendant: Well, it was Christmas at the park. It didn’t really – I – well yes. I pointed it out. I was unhappy. Yes.
Defence Counsel: Okay. Did you contort your face in such a manner as to demonstrate that you were extremely angry?
Defendant: We bought some ice cream, and we talked to some other people, and they had ice cream with us.
Defence Counsel: Just listen to the question. Did you contort---?
Defendant: No. I didn’t.
Defence Counsel: --- your face? No? You didn’t?
Defendant: No.
He was vague or non-responsive to a number of questions. His testimony was a worrying brevity of evidence when more explanation would be a reasonable expectation. For example –
1. he did not give any account for what he actually did in his role as home educator - he does not tell what he did as home educator despite being asked to do so a number of times by his counsel; or his role putting the children to bed;
2. he did not explain what he said to the complainant about being “disappointed”;
3. he did not give a full account of their conversation exchange of later that night when he again raised his disappointment;
4. he did not give any evidence about the complainant's assertion the front door was locked with the key not in its usual position;
5. he did not give a full account of what occurred on the back deck. He briefly asserts she was behaving “quite oddly” without saying what it was that caused him to have this belief. [12];
6. he gave no testimony about his response to the police attendance, including conspicuous by its absence he gives no testimony as to whether or not he told anyone on the evening of 4 December 2016 that the injuries to the complainant were caused by an accident.
[12] Transcript Day 1 at 1-82
When asked “Did you approach her?” he does not respond to the question.[13]
[13] Transcript Day 1 1-80
The best he is able to say about what happens at the back deck table is “I was confused.” He gives no reason why he would be confused when he acknowledges he was moving towards her. [14]
[14] Transcript Day 1 at 1-82-83
He makes no account for why his movement caused an unintended “collision”. In response to his counsel asking “Did you intend to collide with Ms QRS?” his answer is simply “No”. There is nothing more.
There were a number of times during cross-examination when the defendant simply did not answer questions that challenged his not guilty plea.
I find the defendant was a poor witness to the facts. The combination of the concerns listed above have led me to conclude that the defendant was hiding something of his evidence. He was not forthright and clearly gilded the little evidence he gave to hinder the court knowing what truly happened on his version of events. I find the defendant is not a credible or truthful witness and I reject his evidence.
This finding does not cause an automatic conclusion of guilt against the defendant. I must look at all the evidence that I do accept to determine whether or not I am satisfied beyond a reasonable doubt that the prosecutor has proved the charge.
I attach weight to the evidence that shows the complainant made her complaint to the police immediately. The evidence of the complainant was generally, although not entirely consistent as between what she told Constable Verrills on the night and what she told others in the time that has followed.
Defence sought to have the evidence about the machete seen as a recent invention of the complainant because it was not directly a part of her complaint to the police when they attended on the night. However, the probative value of what was said or left unsaid immediately after the event when the complainant was injured must take into account the limitations caused by being injured. Also, the investigation at the residence was not sufficiently thorough to draw from it that there was no machete at the residence. There was interruption to the investigation because the Queensland Ambulance Service also attended and took the complainant to the hospital. Their children – asleep in bed - required care. An arrangement was made for a neighbour to take the children. There were also other activities occurring including other investigation of the defendant and his arrest and taking him to the Brisbane City Watch House.
It is hardly surprising in all of these circumstances that the complainant would give a fairly brief and to the point description of her complaint to Constable Verrills. The complainant’s complaint was clear in its essential features that the defendant had a reason to be angry with her and “He hit me.”
Clearly, since the complainant and the defendant have separated and are embroiled in Family Court proceedings they are now hostile to each other. However, this was not necessarily the case at 4 December 2016 when they were living together and co-operating for the benefit of their two children. The complainant was compliant with the wishes of the defendant e.g. When they left the park early because he did not want to stay. The complainant sought to avoid the defendant later because he was still angry with her.
Furthermore, the parties did not separate until 26 December 2016. In these circumstances I place more weight on what occurred on 4th December 2016 than on suggestions the couple have since juggled for position in the context of proceedings for a Domestic Violence Protection Order, who has the day-to-day care of the children and more recent Family Law proceedings as suggested by the defence case.
The evidence the complainant gave to the court was forthright and clear. I find she gave a full account of the events of 4th December and the response she saw coming from the defendant as a result of the missed opportunity for P to climb the rock wall and the consequences of that. She explained why she was fearful of him and how she sought to avoid him later that night. She explained the complaint he raised again and their confrontation over it. She explained why she did not leave the house sooner by the front door; she explained what she was doing as she hid on the back deck, again ignored his demands and then tried to leave but was confronted by the defendant and hit and then how immediately after she was hit, pressed the call to the police which is supported by the fact they attended so quickly thereafter. She did not falter under cross-examination and was not undermined by cross-examination. For example, she was firm in her acceptance of the chronology of events on the back deck including correcting defence counsel when he slipped up.[15] She made repeated refusal of the defence characterisation of the assault as an accidental collision. Under cross-examination she made explanation regarding why she complains it was a “hit”.[16] She explained she could not recall all of the aftermath detail of events at the point when the ambulance arrived and took her to the hospital.
[15] Transcript Day 1 at 1-45
[16] Transcript Day 1 at 1-47
There were a very few inconsistencies in the complainant’s evidence. I am mindful that not every inconsistency in a witness’ testimony demonstrates a general lack of credibility or reliability. I am satisfied that the complainant told the police exactly what had happened to her on the 4th December 2016 briefly but accurately and honestly. Overall, I found the complainant consistent, forthright in her explanations and justifications for what she said to the court. I found her to be an honest and reasonable witness. I accept her evidence.
The complainant’s evidence is supported by the evidence of Dr James Douglas. He explained that the complainant by wearing the Invisalign retainer at the time of the event on 4th December would have acted like a mouth guard in the event of trauma. This evidence supports the complainant’s complaint that the hit was “very very hard”.
The defendant’s claim of accident is not supported by any other evidence. In particular, there is no testimony from 4 December 2016 or immediately after that raises accident as an explanation for the injury to the complainant.
By her testimony about the defendant’s anger that P had missed the rock wall climbing activity, the quick exit from the park demanded by the defendant against the original plan and his preparation to picnic there, the mounting tension in the household later in the evening and especially the conversational conflict between them, the fear that caused the complainant to put the emergency triple 000 number into her phone and her attempts to leave the house culminating in her immediate complaint “He hit me” to the 000 operator and again when the police arrived at the residence shortly afterwards and observed her shaken and complaining, and furthermore, there being no evidence that he took the opportunity provided by the presence of Constable Moloney with him at the residence and immediately thereafter, to proffer any explanation for the injury to the complainant, lead me to the inevitable conclusion beyond any reasonable doubt that the defendant hit the complainant rather than accidentally colliding with her on the back deck as now claimed by him. I do so find.
I Order the defendant guilty and convicted of the assault occasioning bodily harm charge alleged.
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