Tipman v Kranz

[1995] QCA 172

IN THE COURT OF APPEAL	[1995] QCA 172
SUPREME COURT OF QUEENSLAND

C.A. No. 332 of 1994

Brisbane

[Tipman v. Kranz]

VICTOR ARNOLD TIPMAN

v.

KURT BERNHARD GERHARD KRANZ

Appellant

Macrossan CJ
Fitzgerald P

Byrne J

Judgment delivered :12/05/1995

Judgment of the Court

Appeal dismissed. Application for leave to appeal against sentence refused.

CATCHWORDS:  CRIMINAL LAW - Whether conviction unsafe - whether cross-

examination unfairly restricted.

Counsel:	Appellant in person
Mr J Fraser for the respondent
Solicitors:	Director of Prosecutions for the respondent
Hearing Date:	22 March 1995
REASONS FOR JUDGMENT OF THE COURT

Judgment delivered: 12/05/1995

In July last year the appellant was convicted at the Toowoomba Magistrates Court of offences said to have been committed on 4 November 1986: assault occasioning bodily harm and possession of six firecrackers. This appeal is against his conviction for assault. He also seeks leave to appeal against the sentence: that he be fined $100, allowed three months to pay, and imprisoned for four days in default of payment of the fine.

The appellant's ex-wife testified that in November 1986 she was living at her parents' house near Toowoomba with her 10 month old daughter when the appellant came to visit. She spoke of an assault after a heated exchange concerning some papers of hers which she found in, and removed from, the appellant's bag. There was, she said, a scuffle over the papers. Then, on her account, the appellant pushed her in the chest and she fell on to her daughter, who was on the bedroom floor. Next, she said, the appellant got on top of her and put his hands around her neck. She clawed at him, called out to him to get off, and kicked him. He dragged her from the floor, she testified, and punched her on the face. At some stage, according to the complainant, the appellant kicked her.

The complainant's brother testified that he was in the kitchen when he heard a "thumping noise", and then his sister telling him to call the police. Next he saw his sister emerge from the bedroom "quite fast" with the appellant in pursuit. He took the child away. From a distance he saw his sister "go through the laundry screen door", breaking the door hinges. He returned to the house and saw injuries to his sister's face.

Dr Young examined the complainant on the day she sustained her injuries. The examination revealed multiple superficial lacerations to the legs, arms, back, chest and face, and bruising to the right upper eyelid, the jaw, both sides of the face, the region of the neck and shoulder muscles, and to the right buttock.

The appellant also gave evidence. He testified to a different story. He said that he saw some notes by his ex-wife about matrimonial matters and that she gave them to him to keep. Afterwards, he said, he went outside to work on his car. On returning to the bedroom, he saw that the notes had been removed from his case. The complainant, he said, told him that she had taken the notes back and destroyed them. An altercation ensued. According to the appellant, his ex-wife was the aggressor and he touched her only to the extent necessary to defend himself.

The first ground of appeal against conviction concerns a police note book. This book recorded an account of a conversation with the appellant which, if true, exonerated him. The appellant now contends that his self-serving account, which was admitted on his insistence, was inadmissible. To state the complaint is to demonstrate that this ground of appeal cannot call the conviction into question.

Another ground of appeal is that the Magistrate ought to have directed separate trials. There is no basis for supposing that the hearing of the two charges concurrently caused any miscarriage of justice, which suffices to dispose of this ground. Moreover, the appellant acceded to the Magistrate's hearing the charges together. At first, the appellant expressed a concern about "the prejudicial value of joining two charges together." His concern, as he identified it to the Magistrate, was a possibility that proof of possession of the firecrackers might influence her towards a conclusion that the appellant was a violent person. The Magistrate assured him that she would not approach the assault charge in that fashion. After that, the appellant accepted that the Magistrate should deal with both charges at the one hearing. There is no reason to think that the Magistrate acted inconsistently with the assurance, and so this ground also fails.

Other grounds of appeal may be summarised in this way: that evidence given by from her reasons to have given careful consideration to the evidence. Further, an independent assessment of the evidence does not disclose a reason for doubting the Magistrate's findings in relation to the reliability of testimony; cf. The Queen v. Kranz (1991) 53 A Crim R 331, 342. And the evidence the Magistrate accepted afforded a satisfactory basis for the conviction. prosecution witnesses was unreliable and the conviction is therefore unsafe.

Although the issues in relation to both charges were in narrow compass, the trial occupied 8 days. (The firecrackers were, as the appellant acknowledged, found by a police officer in the boot of the appellant's car). Witnesses for the prosecution were subjected to extensive cross-examination. The evidence-in-chief of Mr Tipman, a police officer, occupies 6 pages of the transcript; his cross-examination 244. Thirteen pages of transcript record the evidence-in-chief of the complainant. The transcript of her cross-examination extends to 176 pages. The evidence-in-chief of the complainant's brother is recorded in 7 pages. His cross- examination extends for 60. The Magistrate had ample opportunity to assess the witnesses and the significance, if any, of discrepancies in their accounts of events which had occurred more than 7 years earlier. As might have been expected with honest witnesses attempting to recall events from years ago, there were differences between the complainant and her brother. The complainant's brother, for example, thought that the appellant had come to the house a few days before the incident. The complainant said that the appellant arrived on the day of the assault. And the complainant's brother recalled an encounter at the screen door - an incident which the complainant did not mention. The Magistrate was impressed with the complainant, describing her as an exemplary witness. The substance of her evidence was accepted "unreservedly". The Magistrate considered that the complainant's brother had tried to be truthful but that his memory had been adversely affected by the passage of time. The Magistrate also commented that some of the things the complainant's brother had said in his cross-examination appeared to be partly attributable to a desire to please. Where there were variations between the account given by the complainant and her brother (for example, as to the time the appellant had been at the house before the incident), the Magistrate preferred the evidence of the complainant. The Magistrate was unimpressed by the appellant's evidence.

Another ground of appeal complains that the Magistrate unfairly restricted the appellant Mention has already been made of the duration of the cross-examinations of prosecution witnesses. They were prolix. The transcript also reveals undue repetition and irrelevancies in them. It is true that the Magistrate encouraged the appellant to pursue lines of inquiry that might matter and sought to prevent "an undue prolongation of the expensive procedure of hearing and determining a case": see Wakeley v. The Queen (1990) 64 ALJR 321, 325; cf The Queen v. Higgins (1994) 71 A Crim R 429, 442-443; The Queen v. Kranz at 340-341. She also tried to ensure, the transcript suggests, that the appellant was not disadvantaged by his decision to conduct his own defence. The appellant, however, appears to have had considerable difficulty in identifying, and in restricting his cross-examination to, lines of inquiry which might have been of some value to his defence. It would be tedious to provide illustrations. It suffices to observe that the Magistrate, on the whole patiently, accorded the appellant substantial latitude. The appellant was not unfairly constrained in his cross-examinations. The appellant sought leave to amend the notice of appeal to raise two new grounds. One complains that, at the outset of the proceedings, he was required to plead to four charges, only two of which were proceeded with. Plainly, the appellant was not prejudiced by that course. The other proposed new ground alleges that the prosecutor failed to provide particulars of the charge. No written particulars were supplied. However, the prosecutor was asked by the Magistrate to provide particulars orally, and did so at length. After that, the appellant did not suggest to the Magistrate that he was not fully informed of the case he had to meet, nor did he press for written particulars. Neither of the additional complaints has any prospect of success. Leave to amend to raise them should therefore be refused. in his cross-examination. ordered in default of payment of the fine. There was no suggestion that the order was beyond power. It was well within the range of a sound discretion.

The appeal should be dismissed and the application for leave to appeal against sentence

refused.