Strohfeldt v Clemments

[1995] QCA 500

IN THE COURT OF APPEAL	[1995] QCA 500
SUPREME COURT OF QUEENSLAND

C.A. No. 371 of 1995

Brisbane

Before Davies J.A.
McPherson J.A.
Dowsett J.

[Strohfeldt v. Clemments]

BETWEEN

CRAIG LACHLAN STROHFELDT

v.

KY ROBERT CLEMMENTS

(Appellant)

Davies J.A.
McPherson J.A.

Dowsett J.

Judgment delivered 10 /11/95
Reasons for judgment by the Court

APPEAL ALLOWED. THE FINDING THAT THE APPELLANT WAS GUILTY OF ASSAULT, TOGETHER WITH THE FINE IMPOSED FOR IT IS SET ASIDE. A FINDING OF ACQUITTAL OF THE CHARGE SHOULD BE RECORDED AND THE COMPLAINT AGAINST THE APPELLANT DISMISSED.

CATCHWORDS	CRIMINAL LAW - ASSAULT - Question of credibility finding in the face of conflicting evidence - Whether credibility finding is "falsified by indisputable facts" - Whether there has been a specific misunderstanding or disregard of a material fact - R. v. Free [1983] - Whether in light of the undisputed medical evidence the verdict is unsafe and unsound.
Counsel:	T. Glynn for the appellant M. Byrne Q.C. for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	3 November, 1995

REASONS FOR JUDGMENT BY THE COURT

Judgment delivered the 10th day of November 1995

This is an appeal from a decision of a magistrate finding the appellant guilty of a charge of common assault alleged to have been committed at the Sir David Longland Correctional Centre on 12 March 1995. The magistrate did not record a conviction but he imposed a fine of $150, coupled with a sentence of three months imprisonment in default of payment.

As was said by the magistrate in his reasons, there is a wide divergence between the two accounts of events given at the hearing. The prosecution case was that the appellant arrived at the visit section of the prison at about 12.50 p.m. on 12 March 1993 and said he wished to see his brother. The complainant, a prison officer named Mason, was on duty at the gate house with another officer named Brian McCully, who was the gate officer. One of them told the appellant that he was too late; visiting time had begun; the entrance to the visiting centre was locked at 12.45 p.m.; and he would not be admitted. At this, the appellant, who in his evidence claimed that he had been told earlier on the telephone that he would be allowed to see his brother if he waited five minutes, became enraged. According to prosecution witnesses, he began pulling at the gate, kicking the fence and gate, and shouting abuse.

Mason arranged for the Oxley police to be called, and he and another officer went through the gate, and asked the appellant to move off the perimeter road in front of the gate. The appellant said, "Who's going to make me?", and adopted a "fighting stance". As Mason and his companion approached, the appellant stepped forward and swung a punch at Mason from about half a metre away. Mason ducked or stepped aside, and he and Higgins took hold of his arms. Higgins is a big man said to be 6' 5" in height. The appellant was a little under 18 years old at the time. They took him, struggling and yelling, over to the visitors' shed, placed him on his stomach on the ground, and handcuffed his hands behind his back. They had to hold him down until the arrival of the police, who took him away in the police car.

The appellant's account of matters was very different. He said on arrival at the gate house he was told to wait five minutes, and went back to the visitors' shed. Then he returned and used the intercom at the gate to ask what was happening, whereupon he was again told to wait. About four prison officers came out; one of them grabbed him by the arm, and he was spun round to face the prison building. He clenched his fist. One of the prison officers warned him "Don't throw a punch", and the appellant was punched in the face by one of the officers.

At that, the appellant said, he "went blank". When, as he put it, he regained focus, he was hit again, and then picked up off his feet and carried to the shed. He was forced onto the ground, hitting his knees, and then his head. While lying there on his stomach, two of the prison officers stood on his feet, while one trod on his back. Another or others stamped on his head. One of them lifted up his head by the hair and kicked him in the face. Threats of further violence were made if he did not keep quiet. Then the police arrived, and put him in the police car, also taking his bicycle, which he had left in the shed. He was taken first to Oxley police station; then to a city watch house; and, after that, to the Inala watch house, where he was charged. From there he was returned to the Oxley police station and released. He was not able to ride his bicycle home because the tyres had been slashed while it was in the visitors shed. He telephoned his mother, who came and collected him at a nearby service station. It was then about 5.00 or 6.00 p.m. and getting dark. While in the police car, the police officers asked what had happened. He told them about it, at which one of them said "Don't mess with them. They will kill you. They ain't got restrictions like us". On collecting him at the service station, his mother drove him straight to the Mater Hospital.

The evidence of the complainant that the appellant had taken a swing at the complainant Mason was supported by one of the police officers. He said they saw it happen when they were about 40 or 50 metres away and driving up the road to the prison. He also saw the appellant being restrained by two prison officers and being walked away to the visitors' shed. The appellant was struggling, and he was laid on the floor, and handcuffed. He was described as "very, very agitated".

In the reasons he gave for his decision, the magistrate remarked that the appellant was "quite impressive" in giving his evidence; but that, when cross-examined, he became upset, and there was "considerable hesitation and thought on his part" in answering specific questions about certain aspects of the evidence, as well as some inconsistencies. In the end the magistrate decided that the appellant had "exaggerated the situation", and, where his evidence was in conflict with the evidence of prosecution witnesses, he accepted their evidence and rejected that of the appellant.

The appeal is therefore one in which the appellant has the task of upsetting a credibility finding made in the face of conflicting testimony. The appeal comes to this Court pursuant to s.673 of the Criminal Code, which authorises an appeal against a summary conviction for an indictable offence on the same grounds and subject to the same conditions as if the appellant had been convicted on indictment. That has the effect of assimilating it to an appeal against a conviction following a jury verdict, which is governed by s.668E(1) of the Code, although with the obvious difference that in a case like this the decision is accompanied by written reasons explaining how the conclusion has been arrived at. See R. v. Free [1983] 2 Qd.R. 183, 191-192; Murphy v. Porter ex p. Murphy [1985] 1 Qd.R. 59, 67. Since those cases were decided, there have been other decisions dealing with the test to be applied in determining whether a jury verdict is unsafe and unsound. It nevertheless remains correct to say that a credibility finding is open to review where it is shown to be "falsified by indisputable facts", or where there has been a specific misunderstanding or disregard of a material fact: see R. v. Free

[1983] 2 Qd.R. 183, 193.
In the present case there was evidence from the medical practitioner

Dr Fahandej, who examined the appellant after his arrival at the Mater Hospital and made notes of what he saw. He found the appellant had "a fair bit of bruising" over his face. He noticed altogether six bruises to his head, mainly around his eyes on the right and left side, and also on his right shoulder blade, left chest and axilla (armpit). There was bruising on the triceps region on the back of the right arm, and on the right knee, with tenderness over the thoracic spine and between his shoulder blades, and over his right flank. There were no fractures there, but, after taking x-rays, Dr Fahandej concluded that there was a possible fracture to the left inferior orbit, or bone under his left eye. There was some breaking or grazing of the skin of the face.

Dr Fahandej considered that the injuries he saw were less than 10 hours old, and possibly as little as two, and that they were consistent with some kind of assault. In cross-examination it was put to him that the injuries in those areas might have been caused by hitting the ground; but he gave his opinion that the fracture or injury to the inferior orbit was more likely to have been the result of a blow, adding that it was difficult to get that sort of injury by just hitting the ground. Of the six bruises on the head, two were on the lateral side of the forehead; one just above the (left) eye and one just below it; and, on the right side, one to the right of the eye and one on the side of the forehead.

There was no cross-examination of Dr Fahandej to suggest that his observations were mistaken. He was plainly a disinterested and impartial witness. What he saw, and recounted in evidence, can fairly be described as undisputed and indisputable fact. The magistrate thought that, on the prosecution evidence, there were explanations of the injuries and of how they might have occurred. However, it would have been possible to arrive at such a conclusion only by considerably discounting the medical evidence with respect to the number, extent, and severity of injuries observed, as well as the medical opinion about the improbability of the lower orbital fracture being caused by hitting the ground. On the other hand, the medical evidence tended, in a quite detailed way, to support the appellant's account of having sustained blows and kicks to the face and the head, and of having someone treading on his back.

The central issue in the proceedings was whether the appellant swung a punch at Mason early in the encounter, which was the assault with which the appellant was charged. However, the medical evidence was considered by the parties or their representatives at the hearing as a matter proper to be considered in determining whether the prosecution witnesses were reliable. As to that, the magistrate appears to have regarded his function as being to make a choice between the two conflicting bodies of evidence coming from the prosecution and the defence. Having decided that the appellant was exaggerating, he went on to say that, where his evidence was in conflict with that of the prosecution witnesses, he accepted their evidence and rejected that of the appellant.

In view particularly of the indisputable medical evidence, the question before the magistrate was not one that was susceptible of determination by applying a simple test like that. The possibility exists that the whole truth was not told by either the prosecution witnesses or the appellant. The matter for determination was not simply whether, in the evidence he gave, the appellant had exaggerated the situation, but whether the evidence of the prosecution witnesses was sufficiently reliable to provide a safe foundation for reaching a conclusion beyond reasonable doubt that the appellant had committed the offence charged. For the reasons we have given, we do not consider that it was. That impression remains irrespective of whether or not the appellant was himself guilty of exaggeration in the account he gave of what had happened.

In the result, we have concluded that the appeal should be allowed; and that the finding that the appellant was guilty of assault, together with the fine imposed for it, should be set aside. The case is not one in which any useful purpose would be served by a further trial or hearing of the complaint. A finding of acquittal of the charge should therefore be recorded, and the complaint against the appellant dismissed.