Dunkerton v Queensland Police Service [2018] QDC 71

DISTRICT COURT OF QUEENSLAND CITATION: Dunkerton v Queensland Police Service [2018] QDC 71 PARTIES: Dunkerton, Ross Winston (Appellant) v Queensland Police Service (Respondent) FILE NO: 172 of 2017 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Cairns DELIVERED ON: 26 April 2018 DELIVERED AT: Cairns HEARING DATE: 12 December 2017 JUDGE: Fantin DCJ ORDER: 1. Appeal allowed. 2. The conviction is set aside and the matter is returned to the Magistrates Court for retrial. 3. No order as to costs. CATCHWORDS: CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 – where appellant convicted after summary trial of common assault – where prosecution failed to disclose victim impact statement until after conviction – whether the non-disclosure could have made a difference to the verdict Legislation Justices Act 1886 (Qld) ss 222, s 223, 224 Criminal Code 1899 (Qld) ss 24, 590AB, 590AH Cases Allesch v Maunz (2000) 203 CLR 172 Dwyer v Calco Timbers (2008) 234 CLR 124 Forrest v Commissioner of Police [2017] QCA 132 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 McDonald v Queensland Police Service [2017] 45 QLR R v BBU [2009] QCA 385 -- 1 of 9 -- 2 R v Cornwell [2009] QCA 294 R v Cox [2010] QCA 262 R v Grimley [2017] QCA 291 R v HAU [2009] QCA 165 R v Spizzirri [2001] 2 Qd R 686 Teelow v Commissioner of Police [2009] 2 Qd R 489 Warren v Coombes (1979) 142 CLR 531 COUNSEL: P Feeney for the Appellant S Baso, police prosecutor, for the Respondent SOLICITORS: Wettenhall Silva Osborne Butler Solicitors for the Appellant Queensland Police Service for the Respondent [1] On 12 December 2017 I made orders allowing this appeal, setting aside the conviction and returning the matter to the Magistrates Court for retrial. These are my reasons for that decision. [2] On 4 September 2017, following a summary trial before a Magistrate, the appellant was convicted of one count of common assault and sentenced to a 12 month good behaviour bond and recognizance of $400, with no conviction recorded. [3] He appealed against his conviction pursuant to s 222 of the Justices Act 1886. Circumstances of the offence [4] The appellant is a 72 year old man with no prior criminal history who had known the complainant, a neighbour, for about 8 years. They had socialised with their respective spouses on a number of occasions. On 6 October 2016 he went to her house to speak to her husband about some electrical work. The complainant opened the door and she told the appellant that her husband was not at home. The appellant then took a step inside the house and they continued to converse. During the conversation, the appellant grabbed or squeezed her on the bottom on the outside of her pants for a short time on one side, and then on the other. (There is some dispute about this. The appellant says he touched her only once and it was a pinch to one side of her bottom.) The complainant did not consent to the touching. When the appellant realised he should not have done what he did, he made a move with his arms towards her. The complainant pulled at his arm and told him to go. The appellant apologised and left1. The trial and the Magistrate’s decision [5] The appellant’s case was that he honestly believed the complainant would consent to him touching her on the bottom, raising a defence of mistake of fact under s 24 of the Criminal Code 1899 (Qld) (the Code). At trial, it was not in issue that the appellant honestly believed the complainant would consent2. 1 TS decision p 2 line 13 to p 3 line 8 2 TS decision p 5 lines 4 – 7 -- 2 of 9 -- 3 [6] The defence having raised mistake of fact, the onus was on the prosecution to exclude it beyond reasonable doubt. The only issue was whether there were “reasonable grounds” for the appellant’s belief3. [7] The appellant’s evidence was that his honest belief was based on a longstanding social friendship between the appellant and his wife and the complainant and her husband, due to them living in the same street, and being invited to the same social events.4 The appellant relied particularly on three interactions between he and the complainant in the 15 months before the event the subject of the charge: 1. at the appellant’s 70th birthday party in July 2015 (one year and three months before the incident), a “slow dance” between them which a defence witness described as “very intimate” and “very close” with the complainant “nuzzling” into the appellant’s neck5. The appellant said the complainant was “continually squeezing [his] hand” and “pushing her body into [his body]”6; 2. An occasion in about July 2016 (3 months before the incident) when the complainant and her husband were at the appellant’s house for drinks and, while their spouses were elsewhere, the complainant sat beside the appellant and rubbed his arm while speaking to him7. He thought she was flirting with him. Later when the complainant was leaving she kissed the appellant “two or three times on the cheek” and grabbed and squeezed his arm “four or five times”8; and 3. An undated occasion which may have been the day after the above incident when the complainant and her spouse were attending a car rally at Mossman and, as she was leaving, the complainant squeezed the appellant’s arm on multiple occasions9. The appellant took that to be flirtatious. [8] The appellant’s evidence was also that he interpreted the complainant’s action in allowing him entry to her house, in the absence of her husband, as a further indication of consent10 to being touched on the bottom. [9] The learned Magistrate found that although the appellant held an honest but mistaken belief that the complainant would consent to him touching her on the bottom, the belief was not held on reasonable grounds11. [10] In so finding, Her Honour relied in particular on the passage of time since the final event relied upon by the appellant (some three months earlier), the nature of the behaviour relied upon and the context of that prior behaviour12. 3 TS decision p 4 line 15 to p 5 line 7 4 TS decision p 3 5 TS proceedings 1-66 at line 30-35 6 TS proceedings 1-47 line 25 to TS 1-48 line 6; TS decision p 3 line 24-36 7 TS proceedings 1-49 line 1-10; TS decision p 3 line 38 to p 4 line 2 8 TS proceedings 1-49 line 14-20 9 TS proceedings 1-49 line 20-35 10 TS proceedings 1-55 line 10 11 TS decision p 5 line 9-34 12 ibid -- 3 of 9 -- 4 Grounds of Appeal [11] The notice of appeal raised the following grounds of appeal13: 1. that the learned Magistrate erred in law by failing to give sufficient reasons for her decision; and 2. that the learned Magistrate erred in fact in deciding that the mistaken belief honestly held by the appellant (that the complainant would consent to him touching her on the bottom) was not based on “reasonable grounds” having regard to the cumulative effect of the prior contact between them. [12] At the hearing of the appeal, the appellant (represented by different counsel on appeal) sought, and was granted14 without opposition, leave to add a further ground of appeal: “there was a failure to disclose the victim impact statement prior to the close of the prosecution case which non-disclosure was material to a fair trial and disadvantaged the appellant” (the late disclosure of the victim impact statement ground). [13] It was common ground between the parties that if this fresh ground of appeal were successful, the conviction should be set aside and the matter remitted to the Magistrates Court for retrial, rendering it unnecessary to determine the other two grounds of appeal. [14] For the reasons explained below, the appeal is allowed on this ground and for that reason, it is unnecessary to determine the other grounds. I do not express a view about them. Nature of the Appeal [15] The appeal is by way of rehearing on the evidence given before the Magistrates Court. It involves a review of the record of proceedings below, rather than a completely fresh hearing (subject to the grant of leave, on special grounds, to adduce fresh, additional or substituted evidence).15 [16] This court is required to conduct a real review of the evidence, which task involves weighing conflicting evidence and drawing inferences and conclusions, and making up its own mind about the case16. However, in doing so, the court must bear in mind the advantage the Magistrate had in seeing and hearing any witnesses.17 [17] For an appeal by way of rehearing "the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.”18 13 Ground 1 in the notice of appeal was abandoned in the appellant’s outline of submissions [11] 14 pursuant to s 224(1)(c) Justices Act 1886 15 Section 223 Justices Act 1886. 16 Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5. 17 Fox v Percy (2003) 214 CLR 118, 126-7 [25]; [2003] HCA 22. 18 Allesch v Maunz (2000) 203 CLR 172, [22] – [23] followed in Teelow v Commissioner of Police [2009] 2 Qd R 489, [4] per Muir J (Fraser JA & Mullins J agreed). See also McDonald v QPS [2017] 45 QLR at -- 4 of 9 -- 5 [18] The High Court held in House v. The King19 that: "It is not enough that the Judges composing the Appellate Court consider that, if they had been in a position of the primary Judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." The late disclosure of the victim impact statement ground [19] At 4:43pm on the Friday afternoon before the Magistrate’s Court hearing, the complainant emailed a victim impact statement (the statement) to the prosecution. The trial prosecutor did not receive the statement until Monday morning, just before the trial commenced. The trial proceeded. The statement was not provided to the appellant until after the Magistrate had convicted the appellant and was hearing submissions on sentence. The prosecution then tendered the statement on sentence. [20] In the statement, the complainant said: “Before the assault I was a happily married 57 year old. … Since the assault I have become extremely withdrawn, emotional and depressed. I am afraid to be home alone. I am paranoid every time there is a knock on the door. I keep the doors locked all the time. I don’t want to leave the house for fear that I will see the defendant as he lives 3 doors away. My family are very supportive but it is hard on them, my husband is a keen sailor but hasn’t been able to leave for any length of time knowing that I don’t cope emotionally. I feel that I am always looking over my shoulder and should I see the defendant in the street suffer extreme panic attacks. Through victim’s assist I was able to work with a councillor and also saw my GP who prescribed antidepressant medication. I have had great difficulty sleeping which has affected my business, being unable to concentrate and focus. I spent 3 days in hospital following a severe anxiety attack. My husband has since installed security cameras inside the home.” [47] 19 (1936) 55 CLR 499, 504 and 505 -- 5 of 9 -- 6 Principles [21] Section 590AB(1) of the Code provides “This chapter division acknowledges that it is a fundamental obligation of the prosecution to ensure criminal proceedings are conducted fairly with the single aim of determining and establishing the truth.” [22] Subsection (2) provides, “Without limiting the scope of the obligation, in relation to disclosure in a relevant proceeding, the obligation includes an ongoing obligation for the prosecution to give an accused person full and early disclosure of … all evidence” upon which the prosecution intends to rely and of “all things in the possession of the prosecution … that would tend to help the case for the accused person.” [23] On appeal, the prosecution accepted that the statement ought to have been disclosed to the defendant as soon as practicable, pursuant to s 590AH(2)(e)(i) of the Code. [24] The parties accepted that the non-disclosure was the result of an oversight, and was not any deliberate attempt to circumvent the prosecution’s disclosure obligations or deprive the appellant of his right to a fair trial. [25] Non-disclosure of relevant documents in the prosecution’s possession adversely affects an accused’s right and ability to receive a fair trial. Non-compliance by the prosecution with its obligations of disclosure is ‘such a serious breach of the presuppositions of the trial as to deny the application of the … proviso’, at least where the material not disclosed ‘might well have influenced the result of the trial’20. [26] Where documents are not disclosed in breach of this obligation, the appeal 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’”21. [27] The question is whether the non-disclosure resulted in a miscarriage of justice and the test in this context is an undemanding one: namely whether the material withheld could have made a difference to the verdict22. [28] The use of documents (or of information contained in them) in an attempt to discredit the principal Crown witness is a legitimate forensic purpose23. Submissions and consideration [29] The appellant submitted that if the statement had been disclosed as required, the trial might have been conducted in a different way and that disclosure of the statement may have made a difference to the evidence, and verdict, at trial. [30] That was said to arise from the contents of the statement. The appellant’s trial counsel, during sentencing submissions, described the statement as “out of proportion to the 20 R v HAU [2009] QCA 165 at [37]-[40] per Keane JA, referred to with approval in R v Cornwell [2009] QCA 294 at [20] (which concerned failure to disclose a victim impact statement). See also R v BBU [2009] QCA 385 21 ibid 22 R v Cox [2010] QCA 262 at [13] referred to with approval in R v Grimley [2017] QCA 291 at [36] (which concerned failure to disclose a victim impact statement) 23 R v Spizzirri [2001] 2 Qd R 686 at [33] -- 6 of 9 -- 7 conduct alleged”. The appellant’s appeal counsel submitted that the statement revealed “an extreme reaction or response” to the offending conduct and that it had “an extreme quality to it” (for example, the reference to hospitalisation for a panic attack). [31] He submitted that the Magistrate had proceeded on the basis that there was no real dispute about the facts, she had accepted the defendant’s version of events at its highest and she said there was no real issue of credibility. The conduct of the trial in the absence of the statement was that the alleged offending was a matter of misunderstanding, where the complainant’s account of the preceding events was very ordinary, that the offending was unwelcome, and that she had dealt with it by getting the defendant to leave and later contacting police. He submitted that the statement was at odds with the idea that the complainant was a reliable historian and a calm reporter of events, and with the Magistrate’s view that there was no issue with the complainant’s credibility. [32] The appellant submitted that if the statement had been disclosed as required, the trial would have been conducted differently and the Magistrate would have been much less likely to accept that there were no issues with respect to the complainant’s credibility. The statement raised the issue of hospitalisation, and the matters set out in it were all linked to the assault. The appellant may have wished to subpoena the complainant’s hospital records and explore the issue of the anti-depressant medication. The appellant’s counsel submitted that the “extreme reaction” described in the statement would have called into question the complainant’s overall credibility or reliability about the preceding events. [33] The prosecution conceded that, had the statement been disclosed in a timely fashion, it may have given rise to further disclosure being sought and to additional cross examination of the complainant. But it submitted that that cross examination would not have been likely to significantly affect the complainant’s credibility, or to have made an impact on the Magistrate’s decision24. This was said to be so for a number of reasons. First, the statement did not refer to the assault or any preceding events, but was confined to the impacts of the offending on the complainant. Second, the evidence of the assault was largely uncontested and this was not a case that turned on the complainant’s credibility. Third, in those circumstances the loss of the opportunity to cross examine the complainant on the statement would not have deprived the appellant of some forensic advantage in the conduct of his defence. [34] The complainant’s evidence in chief of the incident, and her response to it, was understated compared to her description in the statement of the impact of the offending: “I then sort of looked over at the fish, at which time he stepped beside me and groped my buttocks, and I’ve then stepped away and tried to go back to the front door, at which point he’s pushed me out of view of the front door and tried to put his arms around me. I’ve then pulled him away and told him he needed to leave, and at that point, he’s turned around and said “Just tell David I’ll be home between 1 and 2 o’clock,” and at that point he left, and I locked the door.”25 24 Outline of Submissions on behalf of the Respondent [43] – [49] 25 TS proceedings 1-4 lines 44-47 and 1-5 lines 1-3 -- 7 of 9 -- 8 [35] In cross examination, the complainant’s responses about their previous social interactions, the assault and the events following it, were brief, restrained and temperate. She could not recall much detail of their previous social interactions. In relation to the assault, her evidence was as follows26: “And then completely out of the blue, he put his hand on your bottom? Yes. Now, you said it was the right buttock? Yes. What did he do when he put his hand on it? Squeezed it. Two fingers or his entire hand? His entire – well, his entire hand, I think. It wasn’t hard, was it? It didn’t hurt you? No. It didn’t hurt me. It didn’t leave any injury or mark to your buttock? No. You didn’t scream at that point, did you? I looked at him. Yeah. So you looked at him and then, almost immediately, he moved his hand to your left buttock? Correct. All right. Once again, you continued to look at him? No. I moved away at that point. At that point you moved away. Did you run away? I walked back towards the front door. All right. You didn’t say anything to him, did you, at that point? I just said my husband would be home later and he’d call him. Yeah. So you walked away from him. You didn’t say anything to him about what he’d done, correct? I don’t recall. Then you walked towards the front door and you were some distance towards the front door when he touched you with his body, correct? Yes. He didn’t touch your backside again, did he? And he actually went to put both hands on you, didn’t he? And, at that point, you told him, didn’t you, effectively, he should go? Yes. And he said to you, didn’t he: “I’m sorry, Judy,” didn’t he? I don’t recall. Do you accept that he did? I don’t recall. You don’t recall whether he did or didn’t? I don’t recall. All right. Now, when he put his hands up towards you, you actually thought that he was trying to make some sort of sexual advance on you, didn’t you? Yes. And you then – it was then that you told, wasn’t it, that he had to leave? [indistinct]” [36] This evidence may be contrasted with her description of the impact of the offending contained in the statement. Now, there may be a number of explanations for that. This observation should not be taken for one moment as suggesting any preconceived notion of how a complainant in that situation would react to such an assault. However, the statement had a different quality to the complainant’s evidence at the trial. It was open to defence counsel to characterise the complainant’s account in the statement of the impacts suffered by her as an extreme or disproportionate response to the actual offending. It would have been open to defence counsel to make further enquiries about the matters referred to in the statement and to cross examine the complainant 26 TS proceedings 1-20 lines 33-46 1-21 lines 1-32 -- 8 of 9 -- 9 about those differences in a way which may have affected the Magistrate’s assessment of the complainant’s credibility. The defendant was deprived of that opportunity because of the late disclosure of the statement. [37] The test is a relatively undemanding one. Even a relatively slim possibility that the defence has been forensically disadvantaged by the non-disclosure and that the opportunity which the defence was denied ‘could have made a difference to the verdict’, will be sufficient to allow the appeal. [38] It is difficult to conclude that the opportunity to consider, enquire into and cross examine on the statement could not have made a difference to the verdict. [39] The following statement from R v Cornwell27 is apt: “It is possible that cross-examination on the late produced documents may not have assisted the appellant’s case or may even have harmed it. But it is also possible that the documents, with or without the aid of matters uncovered by further enquiry, may have caused the jury [Magistrate] to take an adverse view of the complainant’s character and reliability… I therefore conclude that the appellant was denied the opportunity to conduct his case in a way ‘which could have made a difference to the verdict’…” [40] This is such a case. I consider that the appellant has demonstrated that the opportunity which he was denied (to cross-examine on, and make enquiries about, the matters in the statement) could have made a difference to the verdict. There is a possibility that the defence has been forensically disadvantaged by the non-disclosure. Conclusion [41] Accordingly, the appeal must be allowed. The conviction is set aside and the matter is returned to the Magistrates Court for retrial. I make no order as to costs. 27 [2009] QCA 294 at [39] – [40] -- 9 of 9 --