R v Downes

[1995] QCA 574

COURT OF APPEAL

[1995] QCA 574

FITZGERALD P
DAVIES JA
DOWSETT J

CA No 295 of 1995

THE QUEEN

v.

ADRIAN KEITH DOWNES

BRISBANE

..DATE 31/10/95

JUDGMENT

THE PRESIDENT:  The appellant has appealed against his conviction in the Magistrates Court at Brisbane on 27 June 1995 on one offence of having assaulted a police officer Stephen Charles Paskin while acting in the execution of his duty. 

The evidence for the prosecution was that at approximately 12.15 a.m. on 26 February 1995 Constable Paskin together with another police officer, Constable Garrett, attended a disturbance involving a large number of youths.  There were other police officers in attendance and a scuffle occurred between police and some of the youths.  Two of the youths were arrested and placed in police vehicles which then left the scene. 

Constables Paskin and Garrett got into their vehicle with Garrett driving and Paskin in the passenger seat and they reversed past a group of youths who were calling out obscenities.  He heard the sound of spitting and was struck by saliva on the left side of his face.  He then looked in the direction that the spittle had come from and saw the appellant staring directly at him and calling out obscenities.  He also heard the appellant drawing saliva into his mouth and he said that the appellant stared directly at him and spat at him.  Constable Paskin turned his head to avoid being hit but the spit landed on his face.  He said that he wiped the spit from his face and the appellant said, "Take that you fucking dog."  Constable Garrett gave similar evidence.

The appellant gave evidence which denied the offence.  He said that he had been involved in a heated argument with another person and was arrested and when he was arrested he asked, "Why?" or, "What for?" and was told by the police that he had spat on them.  His response according to his evidence was to say, "Oh, you're all a bunch of dogs and cunts and deserve to be spat on."  He said that he also told the police that, "It was a fucking girl that spat on youse, not me." 

A defence witness was called, a 14 year old girl who gave evidence that she did not see the appellant spit at the police officer. 

If the matter stood there, it would be obvious that it was open to the magistrate to accept the evidence of the police officers and to reject the evidence of the appellant and indeed in one sense the girl's evidence is really only neutral but, in so far as it supported the appellant, it was also open to the magistrate to reject it and to believe the police. 
However, it seems that the two police officers engaged each other in conversation in the interview room outside the Court prior to the trial and it is plain from what they said when they were cross-examined that they discussed the evidence which they were to give. 

Their accounts of what they discussed differed and, taken with the conduct in which they engaged, no doubt required the magistrates carefully to scrutinise their evidence before accepting it.  It is a matter of some disquiet that the police officers not only discussed the evidence which they were to give but, when asked questions about it in the course of their evidence, each seemed to think that such a course was perfectly appropriate.  It should be made clear that in my view it was not appropriate and it was not made appropriate by the circumstance that one was being called to corroborate the other.

All that having been said, the magistrate after examining the evidence said that he accepted the evidence given by the police officers as being a true and accurate account of the events that occurred at the material time and that he rejected the evidence of the appellant.  It is also apparent that he considered and indeed discussed the criticisms which were made of the police officers because of their conduct in the interview room and took that into account in deciding whether or not to accept their evidence.  He, correctly in my view, expressed the opinion that what they had done was a matter of concern and agreed with the submission by the defence solicitor that it was an extremely dangerous practice and certainly a practice that should not take place.  He said also that although what they had done might be innocent it left the parties open to scrutiny.  That, to my mind, rather understates the matter but nonetheless it is clear that he was conscious of the need not to accept the police officers' evidence without proper scrutiny particularly having regard to what had occurred outside the Court.

The essential submission for the appellant, as council for the appellant has properly conceded, is that the magistrate could not reasonably have reached the conclusion that he did, particularly because of the matters which occurred between the police officers prior to giving evidence. 

In effect it is said that any verdict founded solely on the evidence of the police officers in these circumstances must be set aside as unsafe and unsatisfactory.  In my opinion that submission simply cannot be accepted.  The conduct in which the police officers engaged outside the Court was a matter which made it necessary, as I have already said, to take care with their evidence but, having done so, was open to the magistrate to accept it and, having accepted it, there was no conclusion open to him provided he accepted its truth beyond reasonable doubt other than to convict the appellant.  In the circumstances I would dismiss the appeal.

DAVIES JA:  I agree.

DOWSETT J:  I also agree.

THE PRESIDENT:  The order of the Court is appeal dismissed. 

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