R v Hall

[1996] QCA 418

IN THE COURT OF APPEAL	[1996] QCA 418
SUPREME COURT OF QUEENSLAND

C.A. No. 387 of 1996

Brisbane

[R. v. Hall]

THE QUEEN

v.

JEFFREY ALAN HALL

Appellant

Fitzgerald P.
Davies J.A.

Ambrose J.

Judgment delivered 5 November 1996

Judgment of the Court

APPEAL DISMISSED.

CATCHWORDS:	CRIMINAL - Appeal against conviction - assaulting a police officer in the performance of his duty - obstructing a police officer in the performance of his duty - malicious damage to a police car at night.
Counsel:	Mr. M. Fellows for the appellant Mr. P. Ridgway for the respondent
Solicitors:	Connolly Suthers for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	29 October 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 5 November 1996

The appellant was convicted after a trial in the Magistrates Court on 1 August this year on two counts of assaulting a police officer in the performance of his duty, two of obstructing a police officer in the performance of his duty and one of malicious damage to a police car at night. He appeals on the grounds that:

1.        the decision of the Magistrate was against the evidence and weight of evidence.

2.        The Magistrate erred in law in finding that the police officers who moved to arrest the appellant did so because they "perceived" that the appellant was about to assault his mother as such finding:

(a)	was a rejection of evidence for the prosecution that the appellant was in fact assaulting his mother; and
(b)	was a finding that had not been made the subject of evidence or argument at the trial.

Accordingly the verdict of the Magistrate was unreasonable.

3.        For the same reasons as set out in 2. there was a substantial miscarriage of justice.

It is common ground that the police were called to the appellant's premises by the appellant's wife. However her evidence was that she called them because he had been assaulted outside in the street by another person. When the police arrived the appellant, his mother and his wife were inside the house. It is also common ground that the appellant at the time was very drunk.

Both police officers gave evidence that, when they arrived at the house they heard what seemed to be yelling and screaming from inside. When they entered they observed this to be coming from the appellant. Each said they observed him swearing and yelling at an elderly woman who, as it turned out, was his mother. He was also kicking and punching at her. She appeared to be attempting to restrain him and quieten him down whilst he was telling her to "Fuck off" and "Get away". The police officers then approached the appellant and one of them grabbed him by the right arm and said to him "Calm down" or words to that effect. He then lifted his right knee and kneed the police officer in the right thigh. He then also punched that police officer in the chest. The police then sought to restrain him and he violently resisted including kicking the other police officer. He was then arrested. He continued to behave violently including doing some damage to the police vehicle after he was placed in it.

This version of events given by both police officers appears plainly to have been accepted by the learned Magistrate. Unfortunately there was some confusion caused by the use by the Magistrate of the word "perceived" in a context in which it could have referred to a conclusion which either or both of them drew rather than a fact which they observed. However when read in the context of the Magistrate's reasons as a whole, he appears clearly enough to have there been using that word as a synonym for "saw", which bore the appearance of an attempt by the appellant to assault his mother although it seems that he was simply rejecting her attempts to pacify him. Once that is accepted the principal argument of Mr. Fellows for the appellant that the learned Magistrate did not appear to have accepted one version of events rather than another, fails.

The Magistrate was entitled to accept the version of the two police officers over that of the appellant's wife and his mother. The appellant, although he gave evidence, was quite unable to recall, with any clarity, the events of that night. Once the evidence of the police officers was accepted the conclusion that the appellant was guilty of each of the offences charged necessarily followed.

The appeal should therefore be dismissed.