Bale v Anderson [2012] QDC 159

QDC [2012] 159 DISTRICT COURT APPELLATE JURISDICTION JUDGE CLARE SC No 760 of 2012 COLIN EDWARD BALE Appellant and B M ANDERSON Respondent BRISBANE ..DATE 11/05/2012 JUDGMENT -- 1 of 13 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 HER HONOUR: I will give my reasons for judgment now. This is an appeal from the Magistrates Court at Richlands against convictions for two charges of serious assault. The wording of each charge was identical save for the identity of the complainants. The grounds of appeal are that the convictions were unreasonable, that the prosecution did not prove the charges beyond reasonable doubt, and that the trial was unfair. Mr Bale argued the appeal in person, after defending himself at trial. He is an articulate and intelligent man, and has proved to be a capable advocate pursuing issues and perceived witnesses in the prosecution evidence. The principal issue of dispute is a narrow one. Mr Bale has never disputed that at the relevant time he was a prisoner, that the complainants, Austin and Fisher, were Corrective Services officers on duty; that he, those officers, and Corrective Services officer Moody and Edwards were present at the time of the incident; that Mr Bale threw some punches, and that the complainants were injured. Mr Bale's primary challenge to the prosecution evidence concerned the direct cause of those injuries. He argued that his punches did not connect, and that any injuries must have been caused in the scuffle that followed. Injury was not an element of the offences charged. To prove -- 2 of 13 -- 1-3 JUDGMENT 1 10 20 30 40 50 60 the offence, the prosecution simply needed to prove beyond reasonable doubt that Mr Bale was a prisoner, that the particular complainant was a working Corrective Services officer, and that Mr Bale unlawfully assaulted him. The evidence of those three elements came from the four Corrective Services officers and closed circuit television footage. Mr Bale elected not to testify at his trial. He conceded the first two elements. That left the element of an unlawful assault. At the trial the Magistrate referred him to the definition of assault in section 245 of the Code. That definition does not require the infliction of injury, or even actual contact. It extends to non consensual violence in the form of threatened or attempted application of force against the other person, when the offender has the apparent means of carrying it out. It follows that a swing directed at an officer but avoided by the officer through evasive action may itself constitute an assault. The security footage of the incident suffers in quality. Mr Bale can be seen swinging towards towards Officer Austin at the commencement of the violence. Three of the officers, the two complainants, and officer Moody swore to being hit and injured by Mr Bale's punches. No defence beyond the absence of blows was raised on the -- 3 of 13 -- 1-4 JUDGMENT 1 10 20 30 40 50 60 evidence. The uncontested evidence was that Mr Bale's aggression had immediately followed the officers' approach to take him to the Detention Unit. He did not want to go. The evidence did not raise any claim to lawful self defence or provocation. Therefore, if Mr Bale did commit an assault on a complainant, it must have been unlawful. As Mr Bale pointed out, he was never charged with an assault on officer Moody. That, however, is irrelevant. The issue is whether the evidence proved the offences that were charged, namely, an assault on officer Austin and assault on officer Fisher. The decision about charging was one for the police. Their opinion about the case, and the discretion that they exercised in laying two, not three, charges, was irrelevant to an assessment of the sufficiency of the evidence presented at trial. The Magistrate was bound to act on the evidence before him. Unsurprisingly, none of the witnesses claimed to have had a clear view of the whole of Mr Bale's actions, because they all became preoccupied with the struggle to restrain him. Each of them only purported to detail a portion of the episode, and could only speak of it from the individual vantage. Whilst there was some vacillation about which hand was used to rain particular blows, officers Austin, Fisher and Moody maintained that they had been hit by punches from Mr Bale. -- 4 of 13 -- 1-5 JUDGMENT 1 10 20 30 40 50 60 Dealing with the evidence in turn, officer Fisher recalled that on the officers' approach, Mr Bale had called them dogs and launched himself at them with fists. Officer Fisher was the only witness to recall being called dogs. Mr Bale challenged him on that. Officer Fisher recalled that Mr Bale swung first at Austin and probably Moody, “because they were closest”. From that point, all of the officers moved in to restrain Mr Bale. Officer Fisher's evidence was that he suffered a punch to the left side of his face. This was the basis of one of the charges. He said that he thought it was a left handed punch, but after being shown the footage identified it as a right hook. He conceded that the contact was "Not one hundred percent clear" on the footage. He conceded it was possible that some of the officers may have had some injury from a later scuffle with Mr Bale. But officers Fisher's firm evidence was that the particular injury to his eye was caused by Mr Bale's punch. He said at page 27, "But my recollection is that you connected with the punch". And again at page 29, rejecting the possibility of the face being injured in the scuffle, he said, "No, it definitely happened beforehand". Officer Moody didn't give definitive evidence on the point, but he said he thought Mr Bale had hit Fisher. That was at page 45. -- 5 of 13 -- 1-6 JUDGMENT 1 10 20 30 40 50 60 I have viewed the tape and it has been helpful to have Mr Bale taking me through it. Before me, Mr Bale accepted that he swung punches at officer Austin and at officer Moody. It is apparent from the viewing that officers converged, surrounded Mr Bale, and at the same time ducked and weaved whilst seeking to restrain him. The footage is quickly crowded with bodies and the struggle is over in a short time. As I said, the picture is not particularly clear. Mr Bale pointed out officer Fisher who was out of Mr Bale's reach at the start of the violence. That was at the top of the picture. Within a short time the group had moved to the bottom of the screen, and by that stage it appears that Mr Bale had been restrained and therefore unable to punch. There is a point in-between however, when all of the officers seemed to be around Mr Bale, with movement, but without an effective restraint on Mr Bale. From the footage I cannot tell whether or not, punches were thrown, or continue to be thrown, while officer Fisher was nearby. But the footage itself simply doesn't seem to take the matter one way or the other. From my viewing of it, it doesn't exclude a punch to Fisher before Mr Bale was restrained at the bottom of the picture. It follows that, on the whole of the evidence, it was open to -- 6 of 13 -- 1-7 JUDGMENT 1 10 20 30 40 50 60 the Magistrate to accept the evidence of Fisher as to how he got the injury to his face. Moving now to Officer Austin's evidence. He said that Mr Bale swung at him first, and got him. He said, at page 36, "He didn't get a full crack at me. That's where he struck me". And there is a photo with some slight redness under his eye and on his cheek area. He can be seen on the video footage, hunching over and covering his face. He said that it was in that way that he avoided the full blow, but maintained "You got me", page 37. Officer Austin, cross-examined by Mr Bale, denied that his facial injury was caused in the scuffle that followed, although he accepted the possibility of some injury in that way. He also accepted that the footage was not clear about the contact. He continued to maintain that his facial injury was caused by Mr Bale. He said, at page 38, "I remember you just getting me". It is apparent from the commencement of the activity on the footage, that Mr Bale moved towards Officer Austin, swinging punches. It isn't possible from the footage to identify if any blows landed, but it does seem clear from that footage that it was directed at Austin, and at least came close to getting him. Today Mr Bale conceded that he at least threw a punch at Austin. Austin's evidence is direct evidence of the charge. -- 7 of 13 -- 1-8 JUDGMENT 1 10 20 30 40 50 60 It is corroborated by Officer Moody, who recalled Mr Bale hitting Officer Austin first, at page 40. Mr Moody's evidence was that he saw Mr Bale hit Austin first, and then go for Moody himself, which of course is consistent with the evidence of Fisher at page 24 and partially supported by Mr Bale’s confirmation today that he had swung out at Moody. Mr Moody's evidence is that he felt a blow as Bale came towards him. Page 41, he said, "I certainly felt it hit. It was quite a good punch". At page 43, he said, "When he came to me, I got a bit of a hit to one side. I think the left side. I had blood coming out of my left side of my ear. At the end of it I noticed that." Officer Moody was asked in general terms about the possibility that officers may have been injured in the scuffle. He described it as possible, but very doubtful. And the reason for that, he said, was because the subsequent scuffle was very minor. There was no charge concerning Officer Moody. Mr Bale accepts that he threw punches in the direction of both Austin and Moody. That is consistent with the footage, and the evidence at trial. The footage shows that he did those things at a time when his swings had an apparent ability to hit the officers. Such conduct, therefore, was an attempt or at least a threat, an implied threat, to hit the officers. As such, Mr Bale's conduct amounted in law to an assault on those -- 8 of 13 -- 1-9 JUDGMENT 1 10 20 30 40 50 60 two officers, Moody and Fisher. Without a defence, the assaults were unlawful. As already noted, there was no charge concerning Fisher. The direct evidence of the Corrective Services officers went further than the threat shown on the video tape, by describing blows landing on the complainants. The Magistrate accepted that evidence. It was open to him to do so. His finding of credit is unimpeachable. He correctly identified the burden of proof on the prosecution as proof beyond reasonable doubt. There has been no material error of law identified. There is no basis to overturn the convictions. Before I conclude, however, I need to directly address concerns of Mr Bale in relation to other aspects of the evidence, as they relate to the credibility of the witnesses. Mr Bale emphasized inconsistencies in the evidence of the witnesses, and argued that the officers kept changing their accounts. Inconsistencies and contradictions are relevant considerations that may undermine the credibility of a witness, but they do not necessarily mean that all of the witness's evidence ought to be rejected. It is not a black and white matter. It requires an evaluation of, firstly, whether there was a real inconsistency, and if so, the nature of that inconsistency and any explanation for it. A lie or deliberate untruth by a witness about a significant -- 9 of 13 -- 1-10 JUDGMENT 1 10 20 30 40 50 60 matter would call for caution, and may ultimately mean that other aspects of the witness's evidence could not be accepted without corroboration. Similarly, a mistake about something may also mean that the witness is unreliable, if it is an otherwise inexplicable mistake on a prominent issue. For example, it may suggest that the witness has a totally unreliable memory. But there are other kinds of mistakes that would not necessarily impair general confidence in witness. An example of that would be a mistake on something minor, or peripheral. In this trial the evidence didn't go so far as to identify any deliberate lies by the witnesses. The errors or differences concern things such as which officer spoke to Mr Bale first, what words Mr Bale had used, the hand used for a particular punch, and an initial mistake about the presence of a fifth Corrective Services officer. All of those things were subsidiary to the major action, which was the throwing of punches and any blow struck. Some of the changes made by the officers came after they had been shown the video. All of the errors were reasonably explicable as a peripheral or inconsequential detail to the threat offered by Mr Bale, and the speed of the activity itself. It would be extraordinary if a witness caught up in the melee had picture perfect clarity. It is not reasonable to expect an honest witness to recall all of those matters accurately. -- 10 of 13 -- 1-11 JUDGMENT 1 10 20 30 40 50 60 They are not matters which go to the issue of threatened or actual force. The security footage showed a threatened force, at least against Austin, and in a more general sense, against other officers. It has been accepted by Mr Bale that there was a threatened force in respect of Moody, who was not a complainant. But three of the witnesses went further than all of that to claim that there had been actual contact between a punch and their body. The claim by Austin about his injury, about the blow to him, was supported by both Moody and Fisher. That is one charge. The evidence in respect of that, therefore, must be seen as strong. There were no other witness to the blow Officer Fisher said had landed on him. The absence of any other witnesses, however, was not fatal to the prosecution claim. It is consistent with the speed of the violence and the preoccupation of the witnesses at the time. Mr Bale had made an attack on the credit of arresting officer. The only relevant portions of the arresting officer's evidence, however, were uncontentious, namely the production of the television footage and certificates identifying Bale as a prisoner and the officers at Corrective Services officers. Finally, I will deal with the complaint about the fairness of -- 11 of 13 -- 1-12 JUDGMENT 1 10 20 30 40 50 60 the trial. In his written submissions, Mr Bale pointed out that he was unrepresented, and "Went straight from a mention to a summary trial". He thereby indicated that he was unprepared and deprived of a jury trial. Firstly, there is no right to a trial by jury for a charge under section 340 of the Code. The law provides for summary determination by the Magistrate at the election of the prosecution. A defendant has no right to a jury. See section 552A, sub-section 1(a) of the Code. Secondly, it appears from the transcript that Mr Bale had prepared for trial and was ready that day. He accepts that now. He made no request for adjournment. And further he assured the Magistrate at the outset of the hearing that he was ready. He said, "I'm ready to go. I've got my shit". Asked whether he required witnesses other than the five proposed by the prosecution, he said he did not. He said "This is what I prepared for" at page 3. Asked if he had the witness statements, he said "I'm prepared. Yeah." During the evidence he indicated that he had already gone through the footage, the security footage, frame by frame, and made notes about it, at page 26. At the conclusion of the evidence, he suggested to the Magistrate that there had been some unfairness. This was at pages 57 and 58. He accepted at that stage, again, that he had told the Magistrate earlier that he was ready for trial. -- 12 of 13 -- 1-13 JUDGMENT 1 10 20 30 40 50 60 He said, "I'm trying to say that I've done my best in the time with aren't any legal representation". During the trial, the trial process, Mr Bale's rights, the charges and the law, were all explained to him. Today he said that he had not prepared his own testimony. He said that when the Magistrate told him he could testify, he made a strategic decision not to, because he didn't want to make matters worse. Again, that was a choice he made; it doesn't make the trial unfair. There is nothing in the material or the submissions that suggests unfairness in the trial. I am satisfied that it was conducted fairly and according to law. Accordingly, the ground for the appeal are not made out, and the appeal against conviction is dismissed. ----- -- 13 of 13 --