Edwards v Queensland Police Service [2014] QDC 38

DISTRICT COURT OF QUEENSLAND CITATION: Edwards v Queensland Police Service [2014] QDC 38 PARTIES: EDWARDS, David Robert (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: DIVISION: Appellate jurisdiction PROCEEDING: Appeal against Conviction ORIGINATING COURT: Toowoomba Magistrates Court DELIVERED ON: Ex tempore 21 February 2014 DELIVERED AT: Ipswich HEARING DATE: 14 February 2014 JUDGE: Bradley DCJ ORDER: Appeal dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – GENERAL PRINCIPLES – where the appellant sought leave to adduce additional evidence – where additional evidence alleged to demonstrate a motive on the part of the complainant to make a false complaint – where evidence available at trial – where the appellant did not raise any evidence of a false complaint at trial or during cross- examination of the complainant – whether leave should be given to the appellant to adduce additional evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted on a charge of serious assault at trial – where the appellant was found to have spat on the complainant – where the complainant, the complainant’s daughter and a police officer gave evidence at trial of observing spittle on the complainant’s glasses – where the appellant was identified by the complainant – where the complainant was found to be over the age of 60 at the date of the assault – where the appellant claimed to have no knowledge of the complainant or the assault – whether there was sufficient evidence on which the Magistrate could be satisfied beyond reasonable doubt of the appellant’s guilt Justices Act 1886 (Qld), s 223 Penalties and Sentences Act 1992 (Qld), s 43B -- 1 of 5 -- COUNSEL: The appellant appeared on his own behalf N W Needham for the respondent SOLICITORS: The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the Respondent The appellant appeals against his conviction on a charge of serious assault in the Magistrates Court in Toowoomba. On the 22nd of October 2013, after a trial, the appellant was convicted of a charge that on the 8th of September 2012 at Toowoomba, he unlawfully assaulted Yvonne Mavis Langdon, a person of 60 years of more. He was fined $2000, and an order was made pursuant to section 43B of the Penalties and Sentences Act that he have no contact with Mrs Langdon for two years. The appellant was not legally represented at the trial or in this appeal. The grounds of his appeal as stated in his notice of appeal are that “The whole story is a false allegation told by only one individual. There is no other evidence or proof, including no film footage, no witnesses, no motive, no forensic evidence, no confession, and no proof that I would even have known this individual existed.” In other words, as I understand the appellant, he is saying that there was insufficient evidence on which the magistrate could be satisfied beyond reasonable doubt that the prosecution had proved the case against him. Mrs Langdon was 64 years of age at the time. She had undergone some surgery just prior to the incident giving rise to the charge. During her recovery, she was staying with her daughter who lived in the same street as the appellant. The allegations are that at about 10.30 am on the day of the incident, she was walking along the road and observed the appellant in his front yard. The appellant followed behind Mrs Langdon and started berating her. Mrs Langdon walked back to her daughter’s house, again followed by the appellant, and when she turned around, he spat in her face. The appellant’s evidence was that he has no knowledge of Mrs Langdon or of the incident at all. In accordance with section 223 of the Justices Act, this appeal is by way of rehearing on the evidence given before the magistrate. The appellant, when I advised him of his right to seek leave to adduce fresh or additional evidence, did indicate a wish to place before me evidence which he said would disclose a motive on the part of Mrs Langdon to make a false complaint against him, namely, that Mrs Langdon has a relative with whom the appellant is not on civil terms, and who had made a similar complaint of being attacked by the appellant in a similar fashion. Apparently the police brief included statements from this person and from another person who allegedly witnessed the previous attack. These people were not ultimately called at the trial, and it was not put to Mrs Langdon that she had some motive to make a false complaint by the appellant during cross-examination, neither did the appellant give any evidence raising this issue. In those circumstances, I declined to give leave to the appellant to adduce any additional evidence. I will, therefore, decide this appeal on the transcript of the evidence given before the magistrate. Mrs Langdon’s evidence was that her daughter lives next door to the appellant’s mother, and the appellant lives opposite his mother’s house on the same street. Her daughter has lived there for 15 to 16 years, and she visits her daughter every Sunday. -- 2 of 5 -- She says she would see the appellant probably two out of every four visits. In addition to that, Mrs Langdon said she had had two encounters with the appellant over the years. On the first occasion, she walked past the appellant at a shopping centre where she worked and he called her a “stupid bitch”. She turned around and said “excuse me”, but he just kept going. The second occasion was when she was working at the checkout of a supermarket and was in the middle of serving a customer, when the appellant, who was next in line, became agitated. When she asked him what was the matter, he said “I want to get served.” She replied, “As soon as I finish serving this lady, I will serve you.” In response, the appellant threw his money down on the counter and stomped off. On the 8th of September 2012, Mrs Langdon was staying at her daughter’s after having her gallbladder removed. On doctor’s advice, she would take gentle walks three to four times a day to the end of the street. That morning, she walked down the road to the corner, which took her past the appellant’s home. She was walking on the road on the opposite side to the appellant’s house. She could see the appellant in his yard glaring at her. She kept walking and could hear him cross the road behind her. She got to the appellant’s mother’s gate and stopped to catch her breath. As she turned around, the appellant was “practically in [her] face about a foot away from [her]”. He said, “What are you doing? You’re loitering. This is my house.” He told her to “fuck off” and said “We don’t want filthy scum like you in this street.” She replied that it was a public street and proceeded to walk back to her daughter’s house. The appellant walked behind her telling her to “fuck off”. As she got to her daughter’s yard, Mrs Langdon could sense that the appellant was really close behind her. She turned around, and the appellant said again “fuck off” and spat in her face. Mrs Langdon was sure it was a deliberate spit. The spittle landed on her face and on her glasses. Mrs Langdon immediately told her daughter, who was hanging washing in the back yard, what had happened, and showed her the spittle on her face. Mrs Langdon’s daughter confirmed the immediate complaint to her and her observation of what looked like spittle on her mother’s glasses. She immediately went inside and rang the police and went with her mother to the police station. The officer who was behind the counter gave evidence of observing a “water mark” on Mrs Langdon’s glasses when she came in that morning. Another police witness gave evidence of arresting the appellant pursuant to a warrant and that the appellant’s response to the charge was that he had no knowledge of the matter and didn’t know what the police were talking about. The appellant, after receiving appropriate advice from the magistrate after the prosecution closed its case, chose to give evidence. His evidence was that he had no knowledge of Mrs Langdon’s existence until he was arrested by the police. He denied any previous encounters with her and knew nothing of the allegations. This case depends on the acceptance of Mrs Langdon’s evidence of the facts beyond reasonable doubt despite the appellant’s sworn blanket denial. Mrs Langdon gave detailed and precise evidence as to her knowledge of the appellant and her previous encounters with him, and as to what occurred on the morning of the 8th of September 2012. Given the proximity of the appellant’s residence and the appellant’s mother’s residence to that of Mrs Langdon’s daughter, and the fact that her daughter had lived in that street for 16 years, her evidence that she knew the appellant by sight is much more plausible than the appellant’s assertion that he had no knowledge of her existence. Mrs Langdon made an immediate complaint to her daughter and very soon thereafter to the police, and her -- 3 of 5 -- version of events is supported to some degree by the observation of her daughter and the police officer of something which resembled spittle on her glasses. There is no suggestion that Mrs Langdon had a motive to make a false complaint, and that was not put to her in cross-examination by the appellant. Even though I am of course not in the same position as the magistrate to assess credibility, not having had the opportunity of observing the witnesses in the witness box, Mrs Langdon’s evidence does have the ring of truth about it. Certainly her identification of the appellant as the offender was clear and unequivocal and is supported by her long knowledge of him by sight, as well as the previous encounters that she had had with him. Mrs Langdon’s evidence identifying the appellant as the offender should be accepted because of her knowledge of him by sight over 16 years, her previous encounters with him, her observations of him in his yard – in fact, the appellant admitted he lived on the opposite side of the road to Mrs Langdon’s daughter – her observations of him at the corner of the road, and her observations of him very close to her when she was outside her daughter’s house when the offence was committed. The magistrate certainly found he could accept Mrs Langdon’s evidence in the face of the appellant’s denials. The appellant was under some disadvantage in representing himself; however, the magistrate carefully and comprehensively explained the onus of proof, the elements of the offence, procedure and his rights in the trial at appropriate points in the trial, both at the commencement of the trial and his rights after the prosecution closed its case. The appellant was given every opportunity to cross-examine the witnesses and give evidence himself if he wished to. The appellant can have no complaint that his trial was in any way unfair. I should say, though, that the evidence of the investigating police officer that he made a number of unsuccessful attempts to locate the appellant at his address and left calling cards there on three or four occasions but was never contacted by the appellant and ultimately applied for a warrant for the appellant’s arrest, was really of no relevance to the issues in dispute. The appellant’s evidence was that he was totally unaware of the police’s desire to speak with him until he was arrested on the 9th of July 2013, and that he knew nothing of any of the calling cards. It was submitted to the magistrate by the police prosecutor that the magistrate would find that the appellant deliberately chose not to engage with police. The magistrate, however, did not make any such finding, and there’s no suggestion that this evidence influenced the magistrate’s finding with respect to credibility of the appellant’s evidence. Certainly it is evidence that I have disregarded when determining this appeal. In the circumstances, and given the evidence that Mrs Langdon gave, I can be satisfied beyond reasonable doubt that Mrs Langdon has correctively identified the appellant as the offender. The only evidence regarding Mrs Langdon’s age, which of course is an essential element of the offence, was her own evidence as to her birth date. No birth certificate was produced by the prosecution. However, it’s clear from the magistrate’s exchange with Mrs Langdon that he accepted her age as 65 at the time she gave evidence. There is sufficient evidence to prove beyond reasonable doubt that Mrs Langdon was over 60 at the time of the assault. -- 4 of 5 -- The evidence of Mrs Langdon about what happened to her on the 8th of September 2012 is clearly much more credible than that of the appellant, and the finding of guilt of the magistrate should be confirmed. The appeal is therefore dismissed, and the orders made by the magistrate on the 22nd of October 2013 are confirmed. -- 5 of 5 --