Rissanen v Hornby
[2008] QCA 352
•5 November 2008
SUPREME COURT OF QUEENSLAND
CITATION:
Rissanen v Hornby [2008] QCA 352
PARTIES:
RHONDA ELIZABETH RISSANEN
(applicant)
v
GREGORY HORNBY
(respondent)FILE NO/S:
CA No 140 of 2008
DC No 3124 of 2006DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
5 November 2008
DELIVERED AT:
Brisbane
HEARING DATE:
17 October 2008
JUDGES:
McMurdo P, White AJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the order made.ORDER:
Application for leave to appeal dismissed.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – applicant seeks leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – leave will only be granted in circumstances where an appeal is necessary to correct a substantial injustice and there is a reasonable argument that there is an error to be corrected – whether leave to appeal should be granted
District Court of Queensland Act 1967 (Qld), s 118(3)
Evidence Act 1977 (Qld), s 93(1)(b)
Justices Act 1886 (Qld), s 222, s 223Aldrich v Ross [2001] 2 Qd R 235; [2000] QCA 501, cited
Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Trainee Scheme Ltd[2008] QCA 100, cited
Federated Carters and Drivers’ Industrial Union of Australia v Motor Transport and Chauffeurs’ Association of Australia (1912) 6 CAR 122, cited
Mbuzi v Torcetti (2008) 50 MVR 451; [2008] QCA 231, cited
Mott v Mott [1929] QWN 38, cited
Pickering v McArthur[2005] QCA 294, cited
ReColdham; ex parte Brideson [No 2] (1990) 170 CLR 267; [1990] HCA 36, cited
Rodgers v Smith[2006] QCA 353, cited
Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40, citedCOUNSEL:
The applicant appeared on her own behalf
M J Copley for the respondentSOLICITORS:
The applicant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the respondent
McMURDO P: This application for leave to appeal should be dismissed for the reasons given by White AJA.
WHITE AJA: The applicant seeks leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 from the decision of a District Court Judge given on 1 May 2008 which dismissed her appeal from a decision of a Magistrate given on 22 September 2006. The Magistrate found proved three charges of assault contrary to s 335 of the Criminal Code and one charge of unauthorised damage to property contrary to s 7 of the Regulatory Offences Act 1985 in relation to events which occurred on 9 April 2005. The Magistrate imposed fines and recorded convictions except with respect to the first assault for which no conviction was recorded and no penalty imposed.
It is well settled that leave under s 118(3) will usually:
“... be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.”[1]
[1]Pickering v McArthur [2005] QCA 294; Rodgers v Smith [2006] QCA 353; and Mbuzi v Torcetti [2008] QCA 231.
The applicant is self-represented as she has been throughout. Before this court she sought to agitate many grounds of complaint about both the hearing of her appeal in the District Court and the original hearing before the Magistrate. This appeal concerns only the District Court appeal but since Mrs Rissanen’s complaints concern the District Court Judge’s approach to the Magistrates Court trial it will be necessary to canvass that proceeding.
Circumstances Giving Rise to Charges
Mr and Mr Rissanen live adjacent to a large vacant block of land about an acre in area at Woolloongabba which was owned by a development company. It comprised three tiers or levels. It was unfenced and the owner had no objection to cars being parked on it during the working week by employees working in nearby buildings. Mr Philip Usher, a principal of the owner, had, for a number of years, permitted the Sunnybank Football Club, an organisation with which he had a personal connection, to raise revenue by collecting money from car drivers wishing to park on the land for popular sporting events. This occurred particularly when the Lions football team was playing at the Brisbane Cricket Ground (the 'Gabba’). The club, in this way, raised about one third of its revenue. Mr Eddie Joyce was the club member to whom the permission was granted by Mr Usher and who organised the collection of money and parking attendants for these events.
Mrs Rissanen was distressed by the dust and disturbance caused by vehicles parking on the vacant land. She complained to the Brisbane City Council and, as a consequence, met Mr Steven Turner, a development manager employed by the land owner company, to discuss her concerns, as the Magistrate found, in March 2004. Mr Turner undertook to speak to those using the land as a car park during the week to ask them to park at the front of the land away from the Rissanen’s house. On the nights a football game was played at the 'Gabba, as explained by him to Mrs Rissanen, and accepted by the Magistrate, it was preferable to have the parking organised as people would otherwise park ad hoc on the land in any event.
The land in places had scattered rubble including bricks, half bricks, and pieces of cement, some of which probably came from material left after a building on the site had been demolished some time in the past. Mrs Rissanen was particularly anxious to prevent cars from parking on the upper level near her house and asserted that she had permission from Mr Turner to keep people out by erecting barricades or making driving over the ground difficult, something which was firmly denied before the Magistrate by Mr Turner.
On 9 April 2005 Mr Joyce and other club members arrived at the land between 3.00 and 4.00 pm. They set about cleaning the area of rocks and bricks and other barricades placed by or at the behest of Mrs Rissanen which would be an impediment to the safe parking of cars. Mrs Rissanen was determined to stop the cars parking and was observed by a number of witnesses to throw rocks and half bricks back onto the cleared areas on the upper tier of the land. When challenged by club members and helpers Mrs Rissanen asserted that she had the owner’s permission to do anything in her power to stop cars parking on the upper tier. Mr Joyce telephoned Mr Usher and invited Mrs Rissanen to speak to him when he was on the line but she declined to do so because she feared a trick to get her off the land and because she was not familiar with Mr Usher’s voice she believed it could have been anyone.
Mrs Rissanen was seen to stand in the path of some vehicles to prevent them parking and behave in a manner accepted by the Magistrate as “over-emotional, irrational and distraught.”[2] Mrs Rissanen agreed that she was very distressed, alleging that she had sustained concussion as a result of being hit on the back of her head by one or more of the women who had crowded around her a little later in the afternoon. Mrs Joyce stood on some bricks which she thought Mrs Rissanen was intending to throw back onto the cleared entry path but denied standing on Mrs Rissanen’s fingers. Mrs Joyce said that Mrs Rissanen pushed her with both hands on her shoulders. Mrs Joyce retaliated which Mrs Rissanen contended was an assault on her and that any touching of Mrs Joyce by her was accidental to stop herself from falling over because of the uneven ground. This conduct by Mrs Rissanen constituted charge one, that she unlawfully assaulted Fiona Joyce. The Magistrate found Mrs Rissanen guilty of the assault having considered the relevant defences.
[2]Record 521.
As Mrs Rissanen was throwing rubble and bricks around one of the bricks hit Mrs Dianne Watt on the shin. This was seen by two other witnesses. This conduct constituted charge two, that Mrs Rissanen unlawfully assaulted Dianne Watt. The Magistrate considered the state of mind of Mrs Rissanen at the time and concluded that s 23 of the Criminal Code did not apply and found her guilty.
As Mr Robert Fuller and his wife were parking their new car Mrs Rissanen was seen by several witnesses to pick up a large piece of concrete (or brick), throw it and hit the car causing minor paint damage. There was some variation in the evidence, even by the same witness, as to whether it was a brick, a part brick or a piece of cement. Mrs Rissanen made much of this. The Magistrate concluded that the missile was thrown deliberately and found Mrs Rissanen guilty of wilfully damaging the motor vehicle in breach of s 7 of the Regulatory Offences Act 1985.
Mr Joyce restrained Mrs Rissanen, he said, both for her own safety and for the safety of others and their property by holding her in what witnesses described as a bear hug. While restrained and seated on the ground she was seen to kick out at Georgia Alvos, a girl of 15 or 16, who was helping her parents organise the car parking. She had approached to speak to Mrs Rissanen to explain that she was being held for her own safety as the Magistrate found. Ms Alvos sustained an injury to her kneecap.[3] This constituted the third charge of assault. Mrs Rissanen denied kicking Ms Alvos, and said it was physically impossible to do so while on the ground. The Magistrate accepted the evidence of Ms Alvos and Mr Joyce that there was a blow and it was not accidental contact in the context of Mrs Rissanen struggling against Mr Joyce’s restraint.
[3]Mrs Rissanen wanted to tender as new evidence before the District Court Judge a photograph of Ms Alvos showing her injured knee but had been persuaded not to do so by her husband, as she told the District Court Judge, because the girl was in her school uniform. The photograph would apparently demonstrate how mild the injury was.
Police were called. Mrs Rissanen was observed by many witnesses who had contact with her that late afternoon and subsequently at the Dutton Park Police Station to smell of alcohol and to behave as though intoxicated and in a distressed and emotional manner. Mrs Rissanen said that she had had a moderate amount of alcohol earlier at lunch with her husband at a nearby hotel. She was on medication prescribed by her general practitioner for a range of ailments, including depression.
Proceedings before the Magistrate
The trial before the Magistrate occupied five hearing days spread over five months.[4] The decision was given on 22 September 2006. The prosecution called 12 witnesses; Mrs Rissanen gave evidence and called Mr Rissanen about the right to exclude cars from the land, her consumption of alcohol and bruises on her body as seen by him at about 1.00 am the following day when she eventually returned home after making complaints about the conduct of the complainants at two police stations. Mrs Rissanen also called two police officers who attended the scene to assist the investigating police from Dutton Park Police Station. Those witnesses were able to contribute very little to the issue which Mrs Rissanen wished to ventilate.
[4]Hearing evidence on 30 January, 29, 30, 31 March and 15 June 2006.
It was Mrs Rissanen’s contention that many of the prosecution witnesses gave untruthful evidence demonstrated by inconsistencies and changes in position from details in their statements. She asserted that she was the victim of assaults by many of the people parking their cars and supported this complaint by photographs of numerous bruises and scratches to her person. The Magistrate noted that the pushing and restraining which occurred would account for the bruising, and found that those who restrained Mrs Rissanen were entitled to do so pursuant to s 260 of the Criminal Code.[5]
[5]Preventing a breach of the peace.
Mrs Rissanen maintained and continued to maintain before the District Court Judge and this court that she was physically unable to throw a full brick over-arm as she said one of the witnesses claimed, and sought to support this by a statement from her treating doctor. Much evidence and analysis of that evidence was devoted to the “the brick” issue. A brick was tendered as an exhibit.
A ground of appeal before the District Court Judge and this court
concerned the failure by the prosecutor to call as a witness in the prosecution case, Sandra Margret Atwell, who was helping direct cars on 9 April. Mrs Rissanen expected her to be called as she was on the prosecution’s witness list and had provided a statement to police. After the Magistrate had ruled against Mrs Rissanen on her “no case to answer” submission at the end of the prosecution case on 30 March 2006, the prosecutor noted that three witnesses, two of whom were police officers, who had not been called by the prosecution were sought to be called by Mrs Rissanen in the defence case. Arrangements were made for the two police constables to give evidence the next day before Mrs Rissanen gave her evidence to suit their convenience.
The prosecutor indicated that Ms Atwell, although summonsed, was not available as she then had mental health issues. Mrs Rissanen did not call Ms Atwell in her case and, it seems, did not attempt to do so. She now contends that Ms Atwell’s statement could have been tendered pursuant to s 93(1)(b) of the Evidence Act by the prosecutor. The document purporting to be Ms Atwell’s statement had apparently been prepared by police after interview but had never been signed by her. It could not therefore have been put forward by the prosecutor as Ms Atwell’s statement and would likely have been rejected by the Magistrate had Mrs Rissanen attempted to tender it. Although Mrs Rissanen was interested in Ms Atwell’s account which she gave to one of the constables called by Mrs Rissanen she did not question the officer about it. Ms Atwell’s statement, if the document purporting to be her statement contained the evidence that she would give, if called, supported the other prosecution witnesses about Mrs Rissanen’s conduct. However, Mrs Rissanen contended that Ms Atwell supported her complaint that some of the women surrounded her and assaulted her,[6] and that any kick to Ms Alvos was “involuntary”.
[6]As the District Court judge pointed out to Mrs Rissanen, the Atwell “statement” merely said they “crowded around the lady to avoid the situation escalating further.”
The Magistrate’s decision occupied some 60 pages of transcript. He analysed the evidence of all the principal witnesses for the prosecution subjecting their evidence to Mrs Rissanen’s contrary evidence and her criticisms about inconsistency. He paid particular attention to her claim of right and concluded that even if she had an honest but mistaken belief that she could exclude motor vehicles from the top tier of land, nonetheless, that did not provide a defence to the several assault charges and the damage to Mr Fuller’s motor vehicle. He considered all other relevant defences in respect of each of the charges.
Appeal to the District Court
Mrs Rissanen filed her appeal in the District Court on 20 October 2006 setting out 31 grounds of appeal.[7] The first five grounds concerned the land owner’s entitlement to permit parking on its land and were irrelevant to the charges against her; grounds 6-9 complained that the Magistrate ought to have found there was an agreement between the land owner and Mrs Rissanen which permitted her to exclude parking on the land; ground 10 complained that the Magistrate ought to have found that Mrs Rissanen had a good defence under s 24 of the Criminal Code that she could exclude others; grounds 11-14 concerned complaints about findings by the Magistrate about Mrs Rissanen’s condition including being affected by alcohol; grounds 17-19 concerned complaints about the Magistrate giving no weight to Mrs Rissanen’s own injuries; grounds 15 and 16 complained that the Magistrate ought not to have accepted Cam Alvos’ evidence;[8] grounds 20 and 21 complained that the Magistrate did not give any weight to the state of the ground such that the assault against Dianne Watt could have occurred as stated by Mrs Rissanen, namely, stumbling; grounds 22-25 complained that the Magistrate ought to have rejected the witness’s evidence as to how Mrs Rissanen was held by Mr Joyce, and ought to have found that her hands were held over her face above her head because of bruises on the underside of her arms; that the kick at Ms Alvos was accidental; that Mrs Rissanen should have been permitted to demonstrate in court the impossibility of kicking deliberately whilst held with her arms above her head and in front of her face as contended for by Mrs Rissanen; that Ms Alvos’ evidence that she saw Mrs Rissanen throw a brick should have been rejected because a brick was too heavy for her to have thrown; grounds 26 and 27 complained that the Magistrate ought to have considered the sequence of evidence in Constable Kallasmae’s notebook[9] as the account given by Ms Atwell to her was inconsistent with that of other witnesses; ground 28 contended that the Magistrate ought to have drawn an adverse inference from the prosecution’s failure to call Ms Atwell; grounds 29 and 30 complained that the Magistrate erred in finding that Mrs Rissanen intentionally damaged Mr Fuller’s motor vehicle despite inconsistencies in the witnesses’ evidence and further that he erred in finding that s 7 of the Regulatory Offences Act 1985 applied in the circumstances as the prosecution had not proved the value of any damage where the Act requires a loss of $250 or less and not nil value.
[7]Grounds 32 and 33 were the orders sought by her.
[8]Not a direct witness.
[9]Mrs Rissanen withdrew these grounds at the hearing after she became aware that the notebook had not been tendered. Mrs Rissanen called Constable Kallasmae in her defence case before the Magistrate.
Subsequently, on 16 March 2007, Mrs Rissanen filed a new document headed Grounds of Appeal in which she complained about the unavailability of certain parts of the transcript[10] of evidence in Magistrates Court hearing and expanded her grounds of appeal to 50 although grounds 45-50 are the orders sought and some other grounds are not separate grounds. The remaining grounds expand, in a discursive fashion, the original grounds.
[10]Since provided to this court.
The hearing before the District Court occupied just over one day. Mrs Rissanen sought to tender fresh evidence being police notebook entries, Ms Atwell’s statement, a statement by Mrs Rissanen’s treating doctor about her injuries and capacities and a photograph of Ms Alvos’ knee injury.
An appeal pursuant to s 222 is by way of re-hearing on the evidence below however:
“... the District Court may give leave to adduce fresh, additional or substituted evidence (“new evidence”) if the court is satisfied there are special grounds for giving leave.”[11]
If the court gives leave to adduce new evidence the appeal is by way of re-hearing on the original evidence and on the new evidence so adduced.[12]
[11]s 223(1) and (2) of the Justices Act 1886.
[12]s 223(3) of the Justices Act 1886.
On hearing an appeal pursuant to s 222 the court is required to make its own determination of the issues on the evidence, giving due deference and attaching “a good deal of weight” to the magistrate’s view.[13]
[13]Stevenson v Yasso [2006] QCA 40 per McMurdo P at para 36 citing Federated Carters and Drivers’ Industrial Union of Australia v Motor Transport and Chauffeurs’ Association of Australia (1912) 6 CAR 122 per Higgins J at 123, Re Coldham; ex parte Brideson [No 2] (1990) 170 CLR 267 at 274-5; Aldrich v Ross [2001] 2 Qd R 235 at 254-5; and Mott v Mott [1929] QWN 38.
At the commencement of the appeal the District Court Judge gave Mrs Rissanen leave to amend her grounds of appeal to appeal the Magistrate’s decision convicting Mrs Rissanen of the assault of Fiona Joyce which had been overlooked.
Mrs Rissanen substantially concentrated in her oral submissions on “the brick” issue emphasising that evidence that she had thrown a brick demonstrated that the witnesses were lying as she was physically incapable of so doing. His Honour accepted the submission that she was incapable, physically, of throwing a full sized brick of the kind tendered. Mrs Rissanen then turned to the physical impossibility of kicking Ms Alvos in the manner alleged, complaining that the Magistrate would not permit a demonstration at the trial and seeking to use Ms Atwell’s statement to support her contention that Ms Alvos was lying.
His Honour traversed the various witnesses’ evidence-in-chief and cross-examination in great detail with Mrs Rissanen[14] about “the brick” noting that sometimes the reference in the evidence was to a rock, sometimes to a piece of a cement, sometimes to a stone, and sometimes to a brick. His Honour went through the many passages of evidence before the Magistrate which Mrs Rissanen submitted demonstrated inconsistencies and thus, untruthfulness, of many of the witnesses. His Honour explained to her how a court will usually approach inconsistencies in eyewitness accounts of critical incidents:
[14]This occupied at least 16 pages of transcript.
“HIS HONOUR: And often in situations where there are quite a number of people about, as there were here, there were quite a number of people about, and you never ever get the same account from two people. But what you find is that if there’s a critical thing that happens, someone being stabbed with a knife, you may find a number of witnesses there actually see it and they remember the critical event because it really ----
APPELLANT: It imprints.
HIS HONOUR: ----- they may see it from a different perspectives; they may place it in a slightly different time frame, but that happens repeatedly in real life situations, in Courtrooms, and that’s exactly what the situation is in your case. A number of witnesses saw that kicking out by you and it really imprinted themselves [sic] on their mind.
The context in which they saw it may have varied slightly, but that’s a function of the movement of events, the different perceptions of people and their different positions at the time. And also that we don’t always remember everything, when they’re always looking at the same position at the same time. We’re looking and speaking to people, we’re looking over here, we’re looking there. So, I can’t see any problem – any inconsistency in that statement by that witness from the evidence on which the Magistrate acted.”[15]
[15]Record 573.
His Honour was taken to the transcript where Mrs Rissanen had attempted to tender the written medical evidence about her bruises, cuts and her general medical condition and the Magistrate’s explanation that the makers of the statements would need to be called, and his Honour explained and endorsed that decision.
After hearing brief oral submissions from counsel for the respondent who had provided extensive written submissions dealing with the various grounds of appeal his Honour invited any further submissions that Mrs Rissanen might wish to make to be made in writing.
On 1 May 2008 his Honour published his reasons for dismissing the appeal. He set out the factual basis upon which the Magistrate had found Mrs Rissanen guilty of the charges. He noted that the Magistrate:
“... conducted the trial with both patience and consideration. His reasons for judgment occupy 60 pages of the transcript. He gave very careful consideration to the evidence, and to the issues raised by way of defence. He also considered possible legal defences not raised by Mrs Rissanen. Both his conduct of the trial and his very thorough and careful reasons for decision are a model of judicial fairness.”[16]
His Honour concluded that the evidence against Mrs Rissanen was overwhelming. He noted that apart from the witnesses associated with the land owner company the prosecutor had called three different groups of witnesses, namely, the persons associated with the football club who were involved in or witnessed the incident, the occupiers of the motor vehicle which was struck by something thrown by Mrs Rissanen and the police officers who attended the scene. His Honour observed:
“Each of the three groups’ evidence of Mrs Rissanen’s emotional state and behaviour was consistent and the evidence as a whole supported the conclusions and findings of [the Magistrate].”[17]
[16]Reasons para 8.
[17]Reasons para 9.
He disposed of “the brick” issue succinctly. He noted that the witnesses used a range of terms to describe the objects thrown by Mrs Rissanen during the incident. He said:
“The word “brick” was used, as was “part brick”. One witness at least used these terms interchangeably. Witnesses also spoke of a “rock” or a “piece of cement” to describe an object thrown by her.”[18]
[18]Reasons para 13.
His Honour said that he agreed with counsel for the respondent’s written submissions and did not propose to deal with Mrs Rissanen’s arguments “point by point”. When the grounds of appeal are as wide ranging and diffuse as Mrs Rissanen’s were that is an understandable course but it would have been preferable for his Honour to have addressed Mrs Rissanen’s principal concerns in more detail in his formal reasons for dismissing the appeal. “The brick” issue was the one which troubled Mrs Rissanen the most and his Honour, effectively, gave more expansive reasons in the course of the hearing that in his formal reasons. He also explained to Mrs Rissanen in the course of the hearing why Ms Atwell’s evidence would not have assisted her defence; and why the medical evidence could not be admitted (unless by consent); and why the s 24 defence had been appropriately addressed below and did not, in any event, assist her defence to the charges. It is apparent after considering the record of the appeal hearing that his Honour was familiar with the whole of the evidence before the Magistrate and understood Mrs Rissanen’s so called “new” evidence. When that is taken into consideration his Honour was correct to conclude that:
“...there are simply no arguable grounds of appeal that I can see. She received a fair trial in the Magistrates Court. [The Magistrate] considered the issues of fact and the law very carefully, conscious that she was at disadvantage in a trial before him as an unrepresented defendant. He gave very careful consideration to the issues of fact. It has not been shown that he erred in law or in fact.”[19]
And:
“I have read the [new evidence] but cannot see any basis upon which it could be received.”[20]
[19]Reasons para 15.
[20]Reasons para 16.
As his Honour noted[21] this was essentially a case about credibility and the Magistrate set out carefully why he preferred the evidence of the prosecution witnesses to that of Mr and Mrs Rissanen. His Honour subjected the Magistrate’s approach to the witnesses’ evidence to careful scrutiny before reaching his decision to dismiss the appeal. No substantial injustice to Mrs Rissanen has been revealed neither has error been exposed.
[21]Reasons para 15.
I would dismiss the application for leave to appeal.
MCMEEKIN J: I agree with the reasons of White AJA whose judgment I have read in draft, and I am indebted to her for her thorough analysis.
The constraints placed on the appellate courts in their ability to review findings of facts, and more particularly assessments of credibility, lies at the heart of the difficulties facing Mrs Rissanen in this application for leave to appeal.[22]
[22]See White AJA at [23] and [24]
I do not mean by that to indicate that I have any reason to think that I would have decided other than as the Magistrate did here. As the District Court judge noted the evidence against Mrs Rissanen was “overwhelming”. But that is not the test. It was for Mrs Rissanen to demonstrate a reasonable argument that there has been an error and substantial injustice.[23] In my view, whilst she plainly felt strongly about the justice of her cause, Mrs Rissanen did not establish that any substantial injustice has occurred here or demonstrate any reasonable argument that the learned District Court judge fell into error.
[23]In addition to the authorities cited by White AJA at [2] above I add a reference to Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Trainee Scheme Ltd [2008] QCA 100 per Fraser JA at [5]
I agree that the application for leave to appeal should be dismissed.
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