Bock v Sheppard [2022] QDC 172

DISTRICT COURT OF QUEENSLAND CITATION: Bock v Sheppard [2022] QDC 172 PARTIES: KEVIN DARREN BOCK (appellant) v M.J SHEPPARD (respondent) FILE NO/S: 2390 of 2021 DIVISION: Appellate PROCEEDING: Appeal pursuant to s 222 of the Justices Act 1886 (Qld) ORIGINATING COURT: Maryborough Magistrates Court DELIVERED ON: 2 June 2022 (ex-tempore) DELIVERED AT: Brisbane District Court HEARING DATE: 2 June 2022 JUDGE: Dearden DCJ ORDER: (1) Appeal granted; (2) Set aside the conviction for common assault; (3) Remit the matter to the Maryborough Magistrates Court for retrial; and (4) No order as to costs. CATCHWORDS: MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where appellant was found guilty of common assault – where the appellant appeals conviction – whether the appellant was denied procedural fairness LEGISLATION Justices Act 1886 (Qld) ss 222, 223 CASES McDonald v Queensland Police Service [2017] QCA 255 Forrest v The Commissioner of Police [2017] QCA 132 R v HAU [2009] QCA 165 R v Spizzirri [2001] 2 Qd R 686 Rose v Commissioner of Police [2018] QDC 226 Waset Sali v SPC Limited [1993] ALR 625 -- 1 of 8 -- 2 COUNSEL: J Torcetti (solicitor) for the appellant S Poplawski (solicitor) for the respondent SOLICITORS: Murray Torcetti Lawyers for the appellant Office of the Director of Public Prosecution for the respondent Introduction [1] The appellant, Kevin Darren Bock, appeals against his conviction, after trial, of one charge of common assault in the Maryborough Magistrates Court on 13 August 2021. The appellant was found guilty and fined $600 with no conviction recorded. Grounds of Appeal [2] The appellant filed a notice of appeal on 13 September 2021 with the following ground: – (1) The Defendant was denied procedural fairness. The Law/Appeals [3] The appeal proceeds pursuant to the Justices Act 1886 (Qld) (‘JA’) s 222, and is a rehearing.1 [4] In McDonald v Queensland Police Service [2017] QCA 255 [47] Bowskill J (as she then was) stated: “It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.” [Citations omitted].2 [5] In Forrest v The Commissioner of Police [2017] QCA 132, Sofronoff P stated [p2]: “... an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case.”3 1 Justices Act 1886 (Qld) s 223. 2 McDonald v Queensland Police Service [2017] QCA 255 [47] 3 Forrest v The Commissioner of Police [2017] QCA 132, 2. -- 2 of 8 -- 3 Background [6] The appellant usefully summarises the background to this matter as follows: (1) On the 21st of December 2021, the appellant, Kevin Bock, was issued a notice to appear in the Maryborough Magistrates Court for an offence of assault occasioning bodily harm occurring on 12 October 2020. (2) The matter was listed for a hearing in the Maryborough Magistrates Court for the single count of assault occasioning bodily harm on Friday 13 August 2021. (3) On 11th of August 2021, defence spoke to the prosecution and obtained consent to have the matter delisted and the date substituted for mention for the purpose of obtaining a further date to allow defence to issue subpoenas consistent with the instructions and advice of counsel for additional materials for the defence’s strategy at hearing. (4) On advice from the registry, the application was put to the magistrate who was to be presiding on that day, the magistrate directed the matter was to remain as listed with any further applications to be considered on the day. (5) On the date of the hearing, police made an application by consent to amend the charge to a single charge of common assault. The defence made an application to adjourn the matter as further materials were to be sought. (6) The appellant sought an adjournment for the following materials: (a) medical records held by the Prince Charles Mental Hospital; (b) QPRIME records (7) QPRIME records were requested and disclosed on the day of hearing. (8) The application was refused. (9) The matters proceeded to a summary hearing, the defendant did not give evidence, the presiding magistrate found the defendant guilty of common assault and fined the defendant [$600] with no conviction recorded. [7] The circumstances of the alleged offence are usefully summarised by the respondent as follows:- “4.1 The facts were summarised by the learned magistrate in his Honour’s remarks. 4.2 By way of brief summary, the appellant and complainant were neighbours whose relationship deteriorated over time due to a dispute regarding a fence built between their properties. Since then, there -- 3 of 8 -- 4 have been allegations of abusive and threatening phone calls to the defendant’s wife and daughter from the complainant. 4.3 On 12 October 2020, the complainant and appellant drove past each other when the complainant gave him [the appellant] the middle finger, as a rude gesture. The appellant chased after the complainant’s car for approximately four kilometres before forcing the complainant to pull over on the side of the road. 4.4 The appellant exited his car and approached the complainant whilst yelling and screaming. The appellant punched the complainant in the temple. The complainant put his arm up to protect himself from a further punch and was also struck on the arm near the elbow.” 4 [8] The trial itself ran with evidence called from the complainant, Anthony Parry, and Constable Meghan Sheppard, and three exhibits were tendered, the photographs of the complainant;5 the police body worn camera footage and the appellant’s criminal history.6 The appellant elected not to give evidence.7 [9] The appeal is opposed by the respondent. Discussion [10] At the commencement of the trial, the appellant’s solicitor, who also appears on this appeal, advised the learned magistrate that an adjournment was being sought.8 He advised the court that counsel had been engaged “a month ago”, and that counsel’s view was that further material should be requested, relevant to credit.9 He went on to explain that it was intended to subpoena mental health records from Prince Charles Hospital, as well as to seek disclosure of QPRIME records in respect of an incident involving the complainant.10 [11] The learned magistrate then clarified, in an exchange with the appellant’s solicitor, that the solicitor had been acting for the defendant since 23 February 2021 (the trial the subject of this appeal proceed on 13 August 2021); that the trial had been listed for hearing some two and a-half months previously; and that counsel had advised two 4 Exhibit 2 – Outline of submissions on behalf of the respondent [4.1] – [4.4]. 5 Exhibit 1. 6 Exhibit 2 – Outline of submissions on behalf of the respondent; Exhibit 3. 7 Exhibit 2 – Outline of submissions on behalf of the respondent, 5. 8 T 1–2, ll 22 – 23. 9 T 1–2, l 43 – T1–3, l 7. 10 T 1–3, ll 11 – 14. -- 4 of 8 -- 5 weeks prior to the trial that subpoenas should be issued but not subpoenas had, in fact, been issued as of 13 August 2021.11 The application for an adjournment was then refused.12 [12] The learned magistrate subsequently set out his reasons for that refusal in more detail as follows:-13 “Mr Torcetti earlier made an application to adjourn the matter on two bases; firstly, to enable them time to summons some medical records of some counselling obtained by the complainant, Mr Parry, at Prince Charles Hospital, and secondly, to get disclosure from the prosecution of the details of the complaint made by the defendant’s daughter regarding Mr Parry to the police. The basis of the refusal of the adjournment was twofold. Firstly, Mr Torcetti has been acting for the defendant in this matter since at least 23 February 2021, so for some six months, and he received advice from counsel about two weeks ago to obtain these things, that they haven’t been summonsed. So, in my view, they’ve had sufficient time to do what they needed to do to try and obtain the medical records of the complainant. And regarding the complaint by the defendant’s daughter, I can’t see how that would be admissible in evidence here. So the application to adjourn the matter, which was then an assault occasioning bodily harm was refused.” [13] It should be noted that, in the absence of counsel, the appellant’s solicitor was required to conduct the trial as solicitor/advocate.14 Also, as previously noted, the QPRIME material was disclosed by police on the day of hearing.15 [14] The appellant submits that the refusal of the application for an adjournment, despite the prior agreement between prosecution and defence,16 amounts to a denial of procedural fairness, and a consequent injustice to the appellant. The respondent submits, in contradistinction, that the learned magistrate sufficiently considered the nature and details of the adjournment application, and its effect on the prosecution, and argues that the exercise of the discretion to refuse the adjournment did not amount to an error at law. 11 T 1–5, ll 9 – 27. 12 T 1–5, l 47. 13 T 1–8, ll 4 – 20. 14 T 1–5, ll 42 – 43. 15 Exhibit 1 – Outline of argument on behalf of the appellant, 7. 16 Affidavit of James Torcetti affirmed 31 May 2022, exhibit JT-A. -- 5 of 8 -- 6 [15] In R v HAU [2009] QCA 165, Keane J (with whom Cullinane, and Jones JJ agreed) stated: “[38] In R v Spizzirri [2001] 2 Qd R 686, 693 [30] Pincus JA, with whom de Jersey CJ and White J agreed, said that ‘use of documents or information contained in them in an attempt to discredit the principal Crown witness is a legitimate forensic purpose.’ ... [40] As the decision in R v Spizzirri shows, where documents are not disclosed in breach of this obligation [for the prosecution to disclose relevant documents], this court cannot ignore even a relatively slim possibility that the defence has been forensically disadvantaged by the non-disclosure. It is enough that the opportunity which the defence was denied ‘could have made a difference to the verdict.’” [16] It should be noted, of course, that in HAU, there was a failure by the Crown to comply with its statutory obligation of disclosure, an issue which does not appear in this matter before me. [17] In Rose v Commissioner of Police [2018] QDC 226, Farr SC DCJ stated at [6]: – “A decision not to grant an adjournment is, of course, a decision made in the exercise of discretion. In deciding whether to grant an adjournment, the court may consider the effect an adjournment would have on the interests of both parties, the competing claims by the litigants, if relevant to the cost to the court and the prosecution resources as well as the issue of the timely finalisation of matters. In this matter, of course, the court should also have had due and proper regard to the prosecution’s failure to comply with the relevant practice direction. An appellate court should interfere if a refusal to grant an adjournment would result in a denial of justice to the appellant, in circumstances where granting the adjournment would not have resulted in an injustice to the other party. As was said in Waset Sali v SPC Limited [1993] ALR 625, 629: ‘An adjournment which, if refused, would result in a serious injustice to the appellant should only be refused if that is the only way that justice can be done to another party in the action.’” [18] Further, Farr SC DCJ identified at [7], relevantly: – “There are, therefore, two questions that arise: whether the refusal to grant an adjournment was an error of discretion, and whether the refusal to grant an adjournment resulted in any injustice to the appellant.” [19] Isenglaas v The Commissioner of Police [2014] QDC 6 is an example of this court, in its appellate jurisdiction, concluding that the late supply of a brief, with two to three -- 6 of 8 -- 7 hours for an appellant to familiarise himself with it, before proceeding to trial, did not, in those circumstances, give rise to a miscarriage of justice. [20] Clearly, as Farr SC DCJ identified, there is a balancing exercise involved for a magistrate in a busy court, who needs to weigh up the competing interests of the parties and, of course, the importance of dealing with a busy court, where a matter has been listed for trial for more than two months, and an adjournment has been sought to subpoena material which, it is submitted, may be relevant to credit. [21] It is a legitimate criticism, in my view, that the appellant’s solicitors should have moved more quickly to subpoena the medical records, and should not have assumed that a joint agreement with the prosecution to an adjournment would necessarily be agreed to by the learned magistrate. Such decisions, as always, remain the purview of the presiding magistrate, although self-evidently, the views of both ends of the bar table are relevant to that decision. [22] On the other side of the ledger, however, is that this was a trial in which the sole issue was the credit of the complainant; there was some explanation for the delay in issuing subpoenas; a clear likelihood that material relevant to the complainant’s credit might be produced, given the context of the history between the complainant and the appellant; and the trial itself was very short, with only two witness (one of them a professional police officer) and could easily have been relisted. [23] In those circumstances, I am satisfied that the learned magistrate has, in the exercise of his discretion, placed too much weight on the efficient running of the court system, and too little weight on ensuring that the appellant was given the appropriate opportunity to subpoena documents which, I accept, it was “on the cards” could raise issues relevant to the complainant’s credit, which as I’ve already identified, was the sole issue in a practical sense in this trial - could the court be persuaded beyond reasonable doubt to accept the evidence of the complainant that the assault occurred as he gave evidence of. Order [24] It follows that I conclude that the learned magistrate erred in the exercise of his discretion in refusing to grant an adjournment; there has been, in the circumstances, -- 7 of 8 -- 8 a denial of procedural fairness, equally appropriately described as a miscarriage of justice, and in the circumstances, the appeal should be granted. I make the following orders: – (1) Appeal granted; (2) Set aside the conviction for common assault; (3) Remit the matter to the Maryborough Magistrates Court for retrial. (4) No order as to costs. -- 8 of 8 --