Taurino v Commissioner of Police (No 1)

[2015] QDC 322

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[2015] QDC 322

DISTRICT COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE DORNEY QC

Appeal No 4094 of 2015

SEBASTIAN JAMES TAURINO  Appellant

and

COMMISSIONER OF POLICE  Respondent

BRISBANE

11.24 AM, WEDNESDAY, 2 DECEMBER 2015

JUDGMENT

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HIS HONOUR:   This is an appeal, filed 21 October 2015, from the decision of Magistrate McLaughlin made at Richlands Magistrates Court on 13 October 2015.  The offence for which the appellant was convicted was assault occasioning bodily harm.  I’ll come to the matter of the sentence later on.

The grounds of appeal are seven in number and are set out in the Notice of Appeal itself.  It is necessary to conflate some of those particular grounds in the determination of what occurred.

Before I do that, I am going to turn to the analysis of the evidence undertaken by the learned magistrate when he gave his reasons for decision.  The reasons for decision took some seven pages.  The learned magistrate did undertake a – and I say this advisedly – careful analysis of the evidence.  It does not mean I necessarily accept all his conclusions; but he clearly went through aspects of each of the witnesses who were called and made other references to evidence which was tendered by consent.

In considering the complainant’s evidence – Mr Fleming – it is clear that the magistrate found him to be an unreliable witness overall.  It is unnecessary to refer to many particular aspects of those findings; but, for instance, at page 4, around lines 5 and 6, he expresses the view that:

… Mr Fleming would probably be fairly confused most of the time.  So I really place little, if any, weight on Mr Fleming’s evidence, other than for him generally to give evidence that he got bashed by the defendant for no particular reason.

I’ll come to that exception in a moment.

With respect to Officer Trammell, his Honour formed the view that, in fact, he was both a credible and reliable witness (although he did not necessarily use those particular terms).  It was important for him, as he did, to look at the fact that Officer Trammell had made a report about what occurred somewhat contemporaneously with the incident in question.  He formed the view that, in fact, questions asked in cross-examination may well have indicated that Officer Trammell accepted that the statement he made, in fact, was the whole of what he recollected.  But it is clear that when you read the whole of the reasons for decision by the learned magistrate that he accepted that was actually not so.  Otherwise, he would not have been able to form the conclusions that he did. 

He then turned to the evidence of Officer Beattie.  It is not in contest that she saw what she said she saw on CCTV monitors.  The learned magistrate indicated that he had some concerns about her reliability, stating in particular that she gave some rather unlikely evidence that her memory at the trial was better than it was on the day in question.  He made the further specific comment that: “it’s unlikely”.  He also referred to the fact that she gave evidence which contradicted entirely her suggestion that her memory was better “today” than it had been originally.  In the end, the learned magistrate accepted some parts of her evidence to the extent to which they coincided with that of Officer Trammell.  He expressed the view that Officers Trammell and Beattie could be regarded as independent witnesses. 
 It is clear on the authorities that the approach I must take to this is as follows.  This appeal involves a rehearing; but in the technical sense of a review of the record of proceedings below rather than a completely fresh hearing.  For that purpose, I have had brief reference, by consent, to matters which are contained in an affidavit which was filed on the bail application: the affidavit being of Claire Louise Johnson filed 6 November 2015.  I have indicated that that reference is only to matters that were not otherwise available but became either exhibits in the evidence at the trial or other matters that were canvassed during cross-examination. 

What my obligation is is to conduct a real review of the trial before the learned magistrate and also to have a real review of the magistrate’s reasons and, after that, make my own determination of the relevant facts in issue from the evidence but giving due deference, attaching a good deal of weight, to the learned magistrate’s views.  In the end, in order to succeed on an appeal of this kind, the appellant must establish a legal, factual or discretionary error. 

Turning then to my own independent analysis.  I do so in light of the conclusion that I have reached that the evidence of Officer Trammell is reliable and, to the extent to which credibility is brought into account, that it is credible.  I do this relying upon the learned magistrate’s views (of the evidence he heard).  It is in accordance with my own views in that the evidence-in-chief and in cross-examination of this witness is self-consistent except for an issue that the appellant’s learned solicitor drew my attention to in argument. 

It is clear that Officer Trammell did agree that his memory at times was vague.  Nevertheless, it is also clear when one reads his evidence carefully that he was able to recall specific events and recall them with reasonable accuracy.  It is also clear that other parts of his recollection are vague.  But I accept with respect to the incident in question (namely, the assault – the alleged assault for the moment – by the defendant on the complainant) that it was as he described.  The exception that I have with the reasoning of the learned magistrate is with respect to the cross-examination with respect to the report that he made.  The report is set out on transcript page, T:1-78, of the original hearing.  The important aspect is that Officer Trammell had written in that report that:

And a scuffle began and punches were thrown.

The rest of that report - which I interpolate was brief - dealt with the immediate events prior to that time and, of course, what I think was more important for the officer at the time (namely, what happened afterwards).  In the last question asked by Mr McGhie in cross-examination of Officer Trammell, it was put to him the following question:

That’s the truth of it, isn’t it?  That’s really all you can remember of what you saw, I’d suggest.

To which the answer was given:

Yes.

Although when one reads the transcript the immediately preceding questions which were asked by the learned magistrate dealt with the notes made, I am not at all sure that this particular witness, who did not appear to be a witness who often appears in court, understood the question in that particular way.  It does not fit with the rest of the evidence that he gave and even the rest of the cross-examination that he was subjected to.  He acknowledged that he had put what I have just referred to in the report but it is clear from my reading of it that what he was saying otherwise was his true and fuller recollection.

In the circumstances where it is a matter of obvious inference that a report of that kind is prepared by such an officer for the purposes of covering what occurred at the time and that the concern of that report would be what efforts were made subsequent to the incident in question, it does not appear to me that the brief statement (of a scuffle beginning and that punches were thrown) is either (in Officer Trammell’s view of his evidence) the full evidence given or inconsistent with the other evidence that he gave.  The evidence that he did give was to the effect that punches were thrown; and it is a reasonable summary of the evidence prior to that that there was a scuffle.

The evidence that Officer Trammell gave was to the effect that he observed the defendant go through what was called an “air lock” and, when he was released to the other side, that the path he took intersected with the path that the complainant, Mr Fleming, took.  His evidence was to the effect that they ended up being “face-to-face”.  And while he conceded quite freely that he could not hear if any words were exchanged, he did state expressly that he did recall seeing the defendant punch the complainant and that there were three punches to the best of his recollection.  He then gave further evidence that the complainant stepped back and then took his shirt off and then went back in and was punched again.  It is also clear from the rest of the evidence that he gave that the intersecting path led to both the complainant and the defendant being what was called “toe-to-toe” or having their faces close together.  That is also repeated later in his evidence-in-chief.

Taking, therefore, his evidence as a whole and acknowledging that it was some considerable time between the event in question and the evidence that he gave and that his memory was, on some aspects, vague, I do accept, relying also upon the learned magistrate’s assessment of credibility, that the evidence given by Officer Trammell was open to be accepted as both credible and reliable in the circumstances.

One then turns to the other evidence.  It is clear from my own reading of the evidence given by the complainant that one could not accept, as the learned magistrate clearly did not either, that the evidence given by Mr Fleming was reliable.  The learned magistrate, though, went further and accepted that small part of the evidence of the complainant where he said that he did not consent to what occurred.  The independent view that I form is one cannot rely upon anything that the complainant said.  That means, then, I must analyse whether, in fact, an inference can be drawn, in a circumstantial way, for the question of whether the police prosecution has satisfied the required onus of establishing the lack of consent “beyond reasonable  doubt”.  I will turn to that a little later.  But I express a general conclusion that with respect to the complainant, the complainant was neither credible nor reliable.

Some moment was made of the fact that the learned magistrate referred to the complainant, among other things, as intellectually handicapped or being a simpleton.  It is unnecessary, really, to examine that further, although I will make brief reference to it when I deal with the issue of apprehended bias.  It is my opinion that the learned magistrate, merely, was expressing a robust view about the inability that the complainant had to recollect things in any way accurately or reliably. 

I then turn to the evidence which the learned magistrate, as I indicated before, accepted, in part only, of Officer Beattie.  My own conclusion is that the responses, particularly in cross-examination given by Officer Beattie, showed that no one would place any reliance upon her evidence.  She seemed, in cross-examination, to have a new memory of what occurred and she asserted that, in fact, her memory at the date of trial - as observed by the magistrate (and discussed earlier) - was better than it was on the day in question.  That was clearly, in the magistrate’s words again, “unlikely”. 

The rejection of her evidence, of course, does raise the issue of the extent to which the notes that she made contemporaneously should be brought into account.  She had stated that in the notes that she made that she “observed two prisoners to be exchanging punches in front of the officers’ station”.  She stated she could not identify those prisoners, although she “now” knew the prisoners to be Fleming and Taurino.  It is a very brief notation of what she reported. 

The problem with her evidence, besides that which was obviously illustrated graphically in the cross-examination, was that she observed the events on CCTV.  Although it was somewhat of an issue at trial, the CCTV footage in question could not be located.  In the end, as I indicated during argument, trials sometimes end up that way.  There was nothing, necessarily, in the absence of that CCTV footage which would make the trial unfair.  But it did have the effect, as the learned magistrate also indicated, that one might have some doubt about her evidence.  My own analysis of the evidence taken as a whole of Officer Beattie is, in fact, that she was observing, on the CCTV footage, events that she misunderstood - to put it kindly. 

The matter of exchange of punches does not fit easily with any other evidence; and, particularly, does not fit with the evidence of Officer Trammell.  It was urged upon me by Mr McGhie that it should undermine the evidence that Officer Trammell gave.  The view that I take of Officer Beattie’s evidence, in total, is that it is unreliable and therefore it does not, in my view, lead to any undermining of what Officer Trammell’s real recollection, as he gave it, was.

Therefore, on analysis of the evidence to be accepted, I form the conclusion at the end of the day, observing the requirements that are placed upon me, that the evidence of Officer Trammell was both consistent and coherent and was reliable in terms of its recollection of what occurred on the day in question.

Before I turn to other issues, I’ll just briefly also mention that a statement of Officer Carter was tendered by consent.  She was not called to give oral evidence.  Her statement contained, in part, the following passage:

Immediately –

(that is immediately after the defendant entered the particular unit called S5)

a fight has begun between (the defendant) and another prisoner who I know as Nigel Fleming.  It was unclear to me who started the fight.

I do not take that, in the circumstances, to otherwise undermine the conclusions that I have reached about the cogency of the evidence given by Officer Trammell. 

What then should I conclude from the evidence that I have accepted?  It is clear from the evidence which was actually led at trial, which included photographs, that the complainant did receive injuries to his face.  They are consistent with punches which were observed by Officer Trammell.  But, as urged by Mr McGhie, one of the important issues that must be decided on this real review of the trial is whether a lack of consent could be inferred.  As I have indicated, I do not accept the evidence of the complainant Fleming as to his refusal of consenting (to the incident in question).  An inference of this kind, of course, is an inference that is often drawn in criminal cases.  It means, of course, that, if there is an hypothesis consistent with innocence open on the evidence, then that should be in the appellant/defendant’s favour. 

An analysis of the evidence (given by Mr Jackson, for the respondent, to me in oral response), I think, answers that particular question.  If one looks on the acceptance of Officer Trammell’s evidence as to the timing of what occurred and the further evidence of Officer Trammell that he observed the complainant Fleming being both stunned after the initial attack and having his hands by his side, it can be inferred that there was, in fact, no consent to what occurred.  There is nothing that has been pointed to me in the evidence that suggests that, in fact, there was a reasonable and rational inference which is consistent with the giving of consent.  There is just nothing that one can draw of that kind.

The fact that Officer Trammell could not hear what had occurred, in the absence of any evidence that anything was observed to be said, does not give rise to that particular inference consistent with innocence.  Even if one could actually take from the evidence that anything was said, the evidence given is that – from Officer Trammell – there was no recollection of anything being said, even if it could not be overheard.  Accordingly, I accept (on the evidence that I do accept) that the prosecution has established, beyond a reasonable doubt, the circumstances of assault occasioning bodily harm.

I’ll turn then to the other issues which were raised in the appeal.

Ground 1 is simply that the learned magistrate, having rejected the evidence of the complainant and, or, alternatively, found the same to be unreliable, ought to have found there was no basis upon which the defendant should have been convicted.  It is my conclusion that any eyewitnesses’ evidence, such as that of Officer Trammell, means that, even if one entirely rejects the evidence of the complainant, then there still is a basis upon which the defendant could be convicted.

Ground 2 is that the learned magistrate erred in accepting the evidence-in-chief of the witness Trammell and should have found that such was inconsistent with his contemporaneous note.  I have dealt with that in the reasons that I have so far given.

The 3^rd ground is that the learned magistrate erred in accepting and applying those parts of Officer Trammell’s evidence-in-chief which were inconsistent with his contemporaneous notes; and, again, I have dealt with that in the reasons that I have just expressed.

The 4^th ground is the learned magistrate should have found that, in any event, Officer Trammell’s evidence and that of Officer Beattie and Officer Carter were inconsistent with the evidence of the complainant and did not support the prosecution case.  Again, my analysis has covered the evidence of those three witnesses.

The 5^th ground is the learned magistrate erred in law in finding the defences of self-defence and/or provocation were not raised in the evidence.  The evidence which I have accepted and read as a whole does not show in any way any evidence of self-defence and, or alternatively, provocation.  Therefore, there was no onus placed upon the Crown to establish the absence of those matters beyond a reasonable doubt.

Ground 6 is that the magistrate should have drawn inferences adverse to the prosecution case of the assault because of: (a), the failure to call any evidence of the investigating officer, Amanda Jane Watt, or explain her unavailability;  and (b), the failure to produce the video recording of the relevant events or to explain why the said video recording was not available. 

As to the first (which was addressed in the written outline of the appellant), there was no reason to have that particular person called.  She simply took a statement from one of the witnesses and there was otherwise no suggestion that she did anything improper.  The failure to produce the video recording is simply part of the background to this particular case and its relevance is limited in the way that I have already addressed.  With respect generally to the absence of such things, I refer briefly to the High Court decision of The Queen v Edwards [2009] HCA 20. In the decision of the Court in full, there is reference to, in paragraph [31], trials involving the “reconstruction” of events and that it has happened on occasions that relevant material is not available (evidencing documents, recordings and other things that may have been lost or destroyed). As the High Court judgment went on to state, that does not make the trial “unfair”.

The final ground is in paragraph 7 and that deals with, in fact, “manifestly excessive”, which I will come to in a moment.  It is also clear from the appellant’s outline that the issue which I referred to earlier of apprehended judicial bias was raised. 

Although the learned magistrate expressed himself perhaps rather robustly at times, it seems to me that the bases, or the factors, which are relied upon by the appellant with respect to judicial bias were simply factors that went to an analysis of the individual witnesses that I have already dealt with in some detail. 

On the tests for reasonable apprehension of bias, it is not clear at all to me that any basis is established for making a finding that the learned magistrate had such judicial bias in this particular case.  As I indicated, the best that could be said is that the factors that are mentioned in the written outline simply go to assisting in the analysis of the evidence which were given by the other witnesses.  Accordingly, having considered all those particular grounds, I dismiss the appeal as to conviction.

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