Rissanen v. Hornby & Ors

[2008] QDC 96

DISTRICT COURT OF QUEENSLAND

CITATION:

Rissanen v Hornby & Ors [2008] QDC 96

PARTIES:

RHONDA ELIZABETH RISSANEN

Appellant

AND

GREGORY HORNBY & ORS

Respondents

FILE NO/S:

BD3124/06

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices’ Act

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

1 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

29 & 31 October 2007

JUDGE:

Nase DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

APPEAL AGAINST CONVICTION – FINDINGS OF FACT – whether the Magistrate acted on evidence inconsistent with established facts

COUNSEL:

Mrs Rissanen appeared on her own behalf

Mr M Hungerford‑Symes appeared for the respondents

SOLICITORS:

The appellant was not represented

Office of the Director of Public Prosecution for the respondents

1. On 22 September 2006 Rhonda Elizabeth Rissanen was convicted in the Magistrates Court at Brisbane of three charges of assault and one charge of unauthorised damage to property contrary to s 7 Regulatory Offences Act 1985.

1. All of the offences occurred on a vacant block of land on Vulture Street, Woolloongabba, near the Woolloongabba Cricket Ground (the Gabba).  Mr and Mrs Rissanen live next to the vacant land.  They object to vehicles parking in the block to attend AFL matches at the Gabba ground.

1. Philip Usher Constructions, who owned the land, had given the Sunnybank Football Club permission to control parking on the land during AFL matches.  The fees charged for parking during Brisbane Lions home matches was one of the club’s major sources of revenue.

1. On the afternoon of the incident Mrs Rissanen went on to the vacant land with the idea of stopping cars parking there.  She claimed she had the permission of the owner to prevent any parking on the land.  Mr Usher (from Philip Usher Constructions) was effectively the proprietor of the land.  He was also a member of the football club.  The people from the football club contacted him by phone, and then asked Mrs Rissanen to speak to him on the phone to confirm they had permission to be on the land.  She declined.

1. The first charge of assault is based on a push by Mrs Rissanen.  The complainant for this offence is a Mrs Joyce.  At another point during the incident Mrs Rissanen threw a rock or piece of brick or cement, which hit Mrs Watt on her shin.  Mrs Watt is the second complainant.  The third charge arose while Mrs Rissanen was being restrained.  A girl, Georgia Alvoss, bent down to speak to her, when she kicked out with her foot, connecting with Alvoss’ kneecap.  The fourth offence, the charge of wilful damage to Mr Fuller’s motor vehicle, occurred when Mrs Rissanen threw a piece of rock, cement, or brick at a car owned by Mr Fuller.  The object struck the front passenger side window, causing a chip and some other damage to the paintwork.  Mr Fuller was endeavouring to park in the block at the time.

1. Mrs Rissanen in endeavouring to physically stop vehicles from entering and parking in the block quickly became distressed, over-emotional, and irrational.  The police officers who took Mrs Rissanen into custody thought she was intoxicated and over-emotional.  Whatever the particular causes, and whether or not her mental health contributed to her state, all of the witnesses described a person who was very distressed and who was not acting normally.

1. Mrs Rissanen conducted her own defence.  The trial proceeded before Mr Barbeler, Magistrate, over five days.

1. Mr Barbeler 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.

1. The evidence against Mrs Rissanen was overwhelming.  Apart from the witnesses associated with Philip Usher Constructions, the prosecutor called three different groups of witnesses:  the persons associated with the football club who were involved in or witnessed the incident; the occupants of the motor vehicle (Mr and Mrs Fuller); and, the police officers who attended the scene.  Each of the three groups’ evidence of Mrs Rissanen emotional state and behaviour was consistent, and the evidence as a whole supported the conclusions and findings of Mr Barbeler.

1. Mrs Rissanen, as she is entitled to do under s 222 of the Justices’ Act, appealed from the conviction and sentence.  She also conducted the appeal herself.

1. In the initiating notice of appeal Mrs Rissanen set out 30 separate grounds of appeal.  In a subsequent document filed by her entitled “Grounds of Appeal” she listed 50 separate grounds of appeal.  For a reason I do not understand she omitted to appeal from the conviction for assaulting Mrs Joyce.  On the first day of the hearing before me, I permitted her to orally amend the notice of appeal to include the conviction for the assault on Mrs Joyce.

1. The appeal occupied about 43 minutes on the first day, and virtually the whole of a second day.  Before me Mrs Rissanen basically simply reargued the issues of fact, previously argued before Mr Barbeler.

1. One of the main points she wishes to make is that she could not have thrown bricks during the incident because she lacked the strength to throw such objects in an overhead throwing motion.  There is a short answer to her point.  In fact, the witnesses, and indeed Mr Barbeler, used a range of terms to describe the objects thrown by her during the incident.  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.

1. The court was assisted by Mr M Hungerford‑Symes, who prepared very lengthy submissions answering the appellant’s argument point by point.

1. I do not propose to deal with the appellant’s argument point by point, as generally I agree with Mr Hungerford‑Symes’ written submissions.  Unfortunately for Mrs Rissanen there are simply no arguable grounds of appeal that I can see.  She received a fair trial in the Magistrates Court.  Mr Barbeler considered the issues of fact and the law very carefully, conscious that she was at a disadvantage in the trial before him as an unrepresented defendant.  He gave a very careful consideration to the issues of fact.  It has not been shown that he erred in law or in fact.  During argument Mr Hungerford-Symes reminded me of the well known dicta repeated by the Court of Appeal in  Riley v Doyle and Anor[1]:

“where credibility is the critical issue and the magistrate has made findings based on credibility, an appellant cannot succeed unless it can be shown that the magistrate has failed to use or has misused his advantage in seeing the witnesses, or has acted on evidence which is inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable (Devries and Anor v Australian National Railways Commission and Anor (1992-3) 177 CLR 472).”

Those comments apply to this case.  In reality, I cannot see any reasonably arguable ground of appeal; and I am satisfied the appeal should be dismissed.

[1]Unreported CA nos 15, 16 of 1997, 9 May 1997

1. Mrs Rissanen also sought leave to place new evidence before the court on the appeal.  I have read the material but cannot see any basis upon which it should be received.

Order

1. Appeal dismissed.