R v Mathews

[1995] QCA 336

IN THE COURT OF APPEAL [1995] QCA 336

SUPREME COURT OF QUEENSLAND

C.A. No. 18 of 1995

Brisbane

[R. v. Mathews]

THE QUEEN

v.

RUSSELL GORDEN HAIG MATHEWS

Appellant

Macrossan CJ
Pincus JA

Byrne J

Judgment delivered 08/08/1995

Judgment of the Court

APPEAL DISMISSED

CATCHWORDS:	CRIMINAL LAW - whether verdict unsafe or unsatisfactory - whether summing-up defective.
Counsel:	Appellant in person Mr G Rice for the respondent

Solicitors: Director of Public Prosecutions for

the respondent

Hearing Date:  24 March 1995

REASONS FOR JUDGMENT OF THE COURT

Judgment delivered 08/08/1995
After a six day trial in the Brisbane District Court at
which he conducted his own defence, the appellant was convicted

of assaulting Anne Scahill thereby occasioning her bodily harm.

This appeal is against his conviction.

In 1993 Ms Scahill was employed by the Human Rights and Equal Opportunities Commission ("the Commission") as a senior legal adviser. On the afternoon of 16 September 1993 she attended the Brisbane Registry of the Federal Court of Australia to settle an appeal index. The appeal had been instituted by the present appellant against a decision of Spender J in proceedings between the appellant and the Commission. While Ms Scahill was waiting to see the Registrar, the appellant approached her. After a brief conversation in which Ms Scahill identified herself, the appellant assaulted her. In the ensuing scuffle, Ms Scahill sustained bodily injury.

Ms Scahill testified that, after she told the appellant who she was, the appellant seized her right elbow, saying "You know the documents are stolen. You are under arrest." According to Ms Scahill, she told the appellant: "Take your hands off me". He reacted, she said, by seizing both her wrists while continuing to announce that she was under arrest. She called out to court staff for assistance. As she struggled, the appellant put her into a head lock which, she said, caused a deal of pain in the region of the neck and about the ears. Ms Scahill told the jury that, as she sought to break free, she tried to strike the appellant in the groin with her knee. He then relaxed his grip and a security officer pulled her behind a security door and into the Registry area. The substance, though not all the detail, of Ms Scahill's account was corroborated by two witnesses to the assault - a security officer and the Court Manager.

The appellant admitted having taken hold of Ms Scahill in an attempt to arrest her. However, he maintained that the headlock, which probably was the cause of the bodily harm, was applied only after Ms Scahill tried to knee him in the groin. He testified that he put Ms Scahill into a headlock fearing that she might again try to strike him in the groin.

The main issue was whether the prosecution had proved that the assault was not justified or excused by law. The appellant suggested that the assault was lawful, calling in aid s.546(d) of the Criminal Code, which provides that:

"When an offence is such that the offender may be arrested without warrant generally, if the offence has actually been committed, it is lawful for any person who believes on reasonable grounds that another person has committed the offence to arrest that person without warrant, whether that other person has committed the offence or not."

The appellant testified that when he assaulted Ms Scahill he believed that she was an accessory after the fact to misappropriation by Joanne Barker of documents. Misappropriation of property is a crime: s.408C of the Code. An accessory after the fact to such an offence is also guilty of a crime (s.544) and may be arrested without a warrant (s.5), using reasonable force to overcome either force used in resisting the arrest (s.254) or an attempt to escape (s.257).

Joanne Barker was once employed by AAH-REM Pty Ltd, a company associated with the appellant. Ms Barker worked in an office which the appellant also occupied. The appellant gave evidence alleging that in late February 1989 Ms Barker stole documents relating to her training at the office. In April or May, the appellant complained to the police that Ms Barker had taken the documents. Ms Barker was interviewed on 23 June. Soon afterwards, the police informed the appellant that no action was to be taken on his complaint. Then, on 25 July 1989, Ms Barker complained to the Commission about conduct of the appellant. The Commission held a hearing into her allegations. Those proceedings were followed by the hearing before Spender J.

On 9 October 1992, Ms Barker was charged with theft of documents in a private prosecution brought against her by the appellant. The complaint was dismissed and the appellant was ordered to pay court costs of $2,595.

The appellant testified that he believed that Ms Scahill "knew of the documents being misappropriated ... by Joanne Barker" when he tried to arrest her. On this basis, he attempted to raise the possibility that his assault was justified or excused as a use of reasonable force to effect an arrest of Ms Scahill for having been an accessory after the fact to the misappropriation by Ms Barker of the documents. Of course Ms Scahill could only have been such an accessory if, knowing that Ms Barker was guilty of misappropriation, she had assisted Ms Barker in order to enable her to escape punishment: see S.10 Code; cf R v. Winston (1994) 76 A Crim R 113, 116 ("under s.10 some positive act has to be found in an aspect of the behaviour of the person charged towards the principal offender before it can be said that he has been assisted..."). Yet neither the appellant's testimony nor any other evidence was by any possibility capable of sustaining an inference that Ms Scahill had assisted Ms Barker to enable her to escape punishment.

The appellant said that he had concluded that staff of the Commission, in various ways, had attempted to assist Ms Barker to avoid prosecution for misappropriation of the documents. His reasons, as he sought to explain them at the trial, were not easy to grasp. More importantly, the evidence could not possibly have implicated Ms Scahill in the transgressions alleged against Ms Barker and the Commission. The misappropriation was alleged to have occurred in 1989. The police informed the appellant of the decision not to prosecute some time before Ms Barker made her complaint to the Commission in July 1989. And Ms Scahill had been employed by the Commission only since August 1992. These facts made for an unpromising beginning for the defence case.

When the appellant first broached the topic of aid to Ms Barker to escape punishment - which occurred during his cross- examination - he said that the assistance had been in "putting such pressure on me to disqualify my evidence". Further cross- examination elicited answers which seemed to imply attempted interference by the Commission in the investigation by the police of the appellant's complaints. The appellant was then asked what the Commission had done to impede the prosecution of Ms Barker. "Denigrate me so any complaint ... would not be acted upon : and making someone ... untouchable... The ... Commission ... have powers to affect everyone" was his answer. Pressed to state grounds for a belief that the police were even aware of his dealings with the Commission, he spoke of the "wide publicity" which, he asserted, the Commission gives to such matters. The appellant was invited to identify the publicity which the Commission had solicited in his case. He claimed that there were "many" examples but specified none. There were other allegations of attempts by officers of the Commission to influence the police. None was shown to have any factual basis, and none related to Ms Scahill.

The appellant's evidence demonstrated that there was no
basis for a belief that Ms Scahill had assisted Ms Barker to
enable her to escape punishment. The cross-examiner put to him:
"So as at 16 September when you walked into the Federal Court
Registry you had no idea of what involvement Ms Scahill had in
the matter in which you were interested?" He answered, "No,
that's why I asked her." The questions he said he put to Ms
Scahill only concerned her knowledge of the Commission's file
and of the proceedings before Spender J. The appellant did not
suggest that Ms Scahill said anything to him to indicate that
she had helped Ms Barker at all, much less that she had assisted
Ms Barker to escape prosecution. Later on, the cross-examiner

returned to Ms Scahill's conduct. The transcript records this

exchange between the prosecutor and the appellant:

"MR HUNTER: What did Miss Scahill do to assist Miss Barker to escape punishment?-- The general actions of the Human Rights Commission----
Please stop. The question is: what did Miss Scahill do to assist Miss Barker to escape punishment, not what the Human Rights Commission had done?-- She assisted in the general actions of the Human Rights Commission that they had been doing, which was all aimed at assisting Joanne Barker to make her complaints stick against me and so escape punishment for taking the documents - stealing the documents.
You say she assisted. What evidence did you have of the assistance which she gave?-- The assistance does not need to be great at all. It needs only be minor, and her----

Listen to my question?-- ----her being involved with the Human Rights Commission - I heard your question - her being involved with the Human Rights Commission and assisting in proceeding with what they had been doing.

Okay. What evidence did you have of what she had actually done?-- Her being there in the Federal Court that day and working towards pushing through the decision.

Well----?-- And pushing through an appeal, so, you know, I can't get justice.

It was your appeal, though, wasn't it?-- That's right.
...
How do you say that by attending the Federal Court Registry and defending the judgment that they had operated to assist Barker to escape punishment?-- To prevent my being able to have justice show through.

Well, how did it operate to do that?-- By ensuring that I would not win the appeal.

How did that stop any law enforcement agency from prosecuting Miss Barker?-- By the general approach that the Human Rights Commission has to being able to just be overly powerful - be supremely powerful, politically correct. They win everything."

Ms Scahill testified that when she was assaulted she did not know whether Ms Barker had misappropriated documents, and there was nothing to suggest that it was a reasonable possibility that Ms Scahill believed that Ms Barker had committed an offence.
The prosecution established beyond reasonable doubt that the appellant had no grounds for a belief that Ms Scahill was an accessory after the fact to misappropriation by Ms Barker. The assault of Ms Scahill was unlawful, and uncontradicted evidence proved that it caused bodily harm. The first ground of appeal, which is that the verdict cannot be supported on the evidence, must fail.

Very many other contentions are advanced in the notice of appeal. Several complain of the absence of directions in the judge's summing up. The objections largely concern omissions to advert to fanciful or irrelevant matters. The summing up is said to be deficient because of the absence of a direction "that the arrest of Scahill ... is legitimate ... for any offence for which I had reasonable grounds for believing Scahill had committed it ...", although there is no basis for supposing that Ms Scahill had committed any offence when the appellant assaulted her. There is a complaint that his Honour failed to direct in relation to S.568(5) of the Code, which is concerned with the form an indictment may take. Next it is said that the judge failed to direct on s.269 (provocation), s.270 (prevention of repetition of insult), and s.272 (self-defence against provoked assault) - provisions which had no arguable application. Then it is contended that his Honour "failed to direct the jury regarding all the possible scenarios including regarding accessory after the fact and/or party to offence that the Crown needed to negative" - another complaint which is, in substance, that the summing up did not extend to irrelevancies.

A like complaint relates to S.546(d): that when the judge pointed out that, if the prosecution had proved beyond reasonable doubt that neither Ms Scahill nor anyone else at the Commission had assisted Ms Barker to escape punishment, the accused should be convicted at least of assault, his Honour "failed to direct the jury as to all the possible scenarios that the Crown was required to negative". Before us, the appellant argued that it was possible that someone other than Commission staff could have assisted Ms Barker to escape punishment and that such a possibility deserved a direction to the jury. One sufficient answer is that the evidence did not disclose a possible basis for supposing that anyone else assisted Ms Barker in a potentially relevant way. Another objection to the summing- up is that the judge failed to direct the jury that a written statement which had been voluntarily provided to the police by the appellant giving his account of the assault, and which the judge had admitted after a voir dire, was inadmissible.

Those and other complaints suggest that everything troubling the appellant about the case now finds its place in the notice of appeal. Some need only be stated to demonstrate their lack of substance: as examples, (i) that the appellant was not asked to plead to a charge which had not been preferred against him, viz the alternative of assault; (ii) that the magistrate who presided at the committal hearing had "improperly intercepted" documents brought to court at the appellant's request; (iii) that the trial judge required the appellant in opening his case to the jury to confine his address to matters of fact; and (iv) that the trial judge refused "to read in part of the transcript of the Federal Court that I had requested".

The record shows that the accused had a strong sense of grievance but lacked the capacity to distinguish relevant matters from those he saw as important to his grievances. The appellant conducted his defence in a manner which was often exasperating. On the other hand, as the transcript reveals, his Honour was anxious that the trial not be unduly prolonged by attempts to re-argue issues once decided, by other undue repetition or by irrelevancies.

The appellant complains that he was unfairly restricted in cross-examination. The particular matter mentioned concerns Ms Scahill. The appellant sought to question her about the contents of the Commission's file on Ms Barker. His Honour ruled that the appellant was not entitled to ask her about every document in the possession of the Commission, including documents which Ms Scahill knew nothing about. The appellant was, however, permitted to cross-examine Ms Scahill concerning any document possibly bearing upon her knowledge and on other pertinent matters. The appellant was not inappropriately constrained in the conduct of the cross-examination.

Allegations concerning the judge's conduct should be mentioned. One is of bias, which is said to be apparent from "outbursts" for which on two occasions the judge "apologised to the jury ... but not to" the appellant. The second is that the judge acted to protect police officers who had arrested the appellant after he let them into his house. The notice of appeal asserts that the judge "was aware" that these officers "had committed the crimes of armed robbery ... breaking and entering with intent and yet "acted to protect them and condone such crimes". This contention is groundless. Another complaint is that the judge "derided intimated and harassed the unrepresented accused" and prevented the appellant from advancing his defence.

On one occasion, unfortunately in the presence of the jury, his Honour told the appellant "Don't muck about. I don't want to have to send the jury away to deal with you. I think you are foxing; I know I should not say this. I think you are deliberately trying to upset the trial and I think you are deliberately wasting time. Now, will you get on with your case

. .. either get on with your case or sit down - take your pick."

The appellant then asked his Honour to disqualify himself "because of bias", adding his allegation that the judge was conspiring to allow the police officers who had arrested the appellant to escape from crimes. This moved his Honour to ask, "Are you not frightened of making a fool of yourself in front" of the jury? "Don't you see what you are doing to your case?" The appellant repeated his allegation of bias and soon afterwards announced that he did not know if he had any more questions "that you will allow me to ask". His Honour assured him that he had not stopped him from asking relevant questions.

Other interventions followed in the next few days. Sometimes the appellant was told that he was wasting time. On other occasions the judge insisted that the appellant comply with his directions on matters of law. On a couple of occasions, his Honour foreshadowed contempt proceedings if the appellant did not observe the rulings.
There were, it must be acknowledged, occasional lapses by the judge in a generally sufficiently patient approach. But the episodes of impatience and some intemperate remarks appear not to have inhibited the appellant in the conduct of his defence. Nor did the interventions otherwise put at risk a fair trial.
More complaints are made in the notice of appeal. None has substance and it is not necessary to discuss them.

The appeal should be dismissed.