Banks v Wilmink [2011] QDC 344

1-1 [2011] QDC 344 DISTRICT COURT APPELLATE JURISDICTION JUDGE JONES No 3942 of 2010 KAREN ANNE BANKS Appellant and DEAN WILMINK Respondent BRISBANE ..DATE 17/10/2011 ORDER -- 1 of 8 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act 1886. The circumstances of the appeal are that the respondent was the defendant in criminal proceedings before the Magistrates Court on 11 November 2010. The appellants are two police officers. Relevantly, the respondent was charged and dealt with for the offence of obstructing police officers. There was an issue concerning the filing one of the appeals out of time. No objection was raised to dealing with both appeals together, and insofar as it is necessary to give leave, leave is granted and the two appeals will be dealt with simultaneously. Essentially the appellant asks that I set aside a not guilty decision made by the learned acting Magistrate below and substitute a verdict of guilty. I initially raised some concerns about whether section 222 of the Justices Act would in fact authorise or give jurisdiction for me to take that course.Notwithstanding the reservations I had about the authority or jurisdiction of the Court to deal with the appeal in the manner advocated by the appellants, Ms Gilbert who appeared for the respondent, conceded that I did have the jurisdiction. While s222(2)(b) of the Act excludes appeals against aquittals in respect of indictable offences dealt with summarily, no such exception or prohibition exists concerning summary offences dealt with in on a complaint. In circumstances where I feel I can deal with the appeal by reference to the appeal record material I will proceed on the basis advocated by the legal representatives. I note that I -- 2 of 8 -- 1-3 ORDER 1 10 20 30 40 50 60 would tend to endorse Ms Gilbert's view or submission to the effect that for this Court to substitute a verdict of guilty. In the face of an acquittal by the Court below, the circumstances would be expected to be rare, if not exceptional. In saying that I in no way consider that I should proceed on the basis that exceptional circumstances have to be shown for the appellants to suceed. The grounds of appeal are short and to the point, namely, that the learned Acting Magistrate erred in law and erred in fact in finding the elements of the charges were not made out. It seems quite clear that the Magistrate accepted that the witnesses that were called on behalf of the prosecution were all attempting to give evidence in an honest and forthright way. This does not appear to be one of those cases where the Magistrate had some significant and distinct advantage in being able to observe the demeanour of the witnesses. By that I mean that there is no suggestion that by reference to his observation of the witnesses the learned Magistrate formed an adverse view about their honesty. Therefore, I agree with Ms Marks' submission that I can proceed in dealing with the appeal by reference to the transcript of the proceedings below. At the heart of the appellant's submissions is the following, and I am quoting here from page 7 of the appellant's -- 3 of 8 -- 1-4 ORDER 1 10 20 30 40 50 60 submissions. "It is submitted in the circumstances that all three prosecution witnesses gave evidence of actions performed by the respondent which would impede the appellant's entry into the house and resisting arrest. Even though the witnesses, Mr Walker and appellant O'Mara described differing actions performed by the respondent, on either versions the appellant's progress was hindered or obstructed. The learned Acting Magistrate found that both these men (Walker and O'Mara) were honest. "Additionally, it would seem that the learned Acting Magistrate did not turn his mind to the continued obstruction as the respondent resisted arrest, struggling with both appellant officers as they tried to handcuff him. Accordingly, it may be the case that a tribunal of fact is able to conclude that a witness was honest, but is left in a state of doubt such that an acquittal nevertheless results. "However, in this matter the evidence led by the police prosecutor was not contradicted by evidence from the respondent's legal representative. It is difficult to understand why the learned Acting Magistrate acquitted when both appellant O'Mara and Mr Walker's evidence was that the respondent hindered or impeded the appellant's entry into the house." Similar submissions apply in respect of the other appellant, Banks. In dealing with this matter the Magistrate gave reasons which extend over some 20 pages. It is quite clear -- 4 of 8 -- 1-5 ORDER 1 10 20 30 40 50 60 that the learned Acting Magistrate properly directed himself as to where the burden of proof lay and what the onus of proof was. It also seems tolerably clear to me that the learned Acting Magistrate also properly directed himself as to what the relevant elements of the offence were. His Honour at pages 3 and 4 of the transcript appears to have directed himself properly in that regard. It is quite clear that his Honour considered there were some significant difficulties in the case for the prosecution, and in particular the inconsistencies in the evidence given by its witnesses. At page 17 of his reasons his Honour said, "It was troubling to the Court that there appeared to be a number of, in my view, quite significant inconsistencies between the three prosecution witnesses' versions of evidence in relation to a number of the more important issues in the trial here today. In the Court's view the issues in dispute were not simply collateral issues, but issues going to specific elements of the offence with which the defendant has been charged. For example, in relation to the nub of both charges against the defendant here today, in relation to the issue of what is alleged to have amounted to an assault on Constable O'Mara and what followed from that assault on Constable O'Mara. The first witness gave specific evidence and his Worship then continued. -- 5 of 8 -- 1-6 ORDER 1 10 20 30 40 50 60 Significant inconsistencies between the prosecution witnesses was also referred to by his Honour at page 18 at or about line 30, and then at page 19 at line 40 his Honour said, "In my view the inconsistencies between the various versions of events are not simply collateral or incidental matters in relation to the proceedings before the Court today, but rather they are in relation to the simple fact relating to the specific elements of the charges against Mr Wilmink both in respect of Constable Karen Banks and also Constable Brendan O'Mara. "It is because of these inconsistencies that have been identified by the Court here today and the fact that they do not relate to a peripheral matter, but go specifically to the issues of whether or not there has been an obstruct by the defendant, Mr Wilmink, that the Court is not prepared to make findings of fact in favour of the prosecution beyond reasonable doubt." Then later, "It is because of this principal inconsistency that it follows from what I have said that if the Court is not prepared to make the findings of fact beyond reasonable doubt here today in favour of the prosecution, that the prosecution have not proved each of the essential elements of the charge against the defendant both in respect of Constable Banks and Constable O'Mara beyond reasonable doubt. It follows from what I have said then that the defendant must be found not guilty here today." -- 6 of 8 -- 1-7 ORDER 1 10 20 30 40 50 60 In light of the largely uncontested and essentially unchallenged evidence of the prosecution, I have a degree of sympathy for the submission made on behalf of the appellants, namely that there is some difficulty in understanding how the learned Acting Magistrate acquitted the appellants given that, notwithstanding inconsistencies in their evidence, the evidence of the witnesses viewed generally might lead inevitably to the conclusion that the respondent had impeded in a physical way the appellants' entry into the house. In their submissions the appellant rely, at least in part, on the well known reference or quote from The King v. House [1936] 55 CLR 499 at 504. That case was concerned with the exercise of a sentencing discretion and certainly not with determination by a Court of guilt beyond reasonable doubt. That aside it was not specifically identified, and I have been unable to identify any example of where the learned Acting Magistrate had acted upon a wrong principle or had allowed extraneous or irrelevant material to affect his decision, nor on balance that he had failed to take into account some material consideration. It seems to me that the heart of the learned Magistrate's decision to acquit were what his Honour described as significant inconsistencies in the evidence given by the prosecution witnesses. It was not disputed that such inconsistencies exist. Rather it was submitted that notwithstanding those inconsistencies the evidence in general was such as to inevitably lead to a finding of guilt, namely -- 7 of 8 -- 1-8 ORDER 1 10 20 30 40 50 60 that beyond reasonable doubt the defendant committed all of the elements constituting the offence of obstructing police. After reviewing the evidence and the case law to which I have referred, whilst I might have some reservations about the way his Honour dealt with the matter, it certainly appears to me that it would be inappropriate to disturb his Honour's decision. I am not satisfied on the material before me beyond reasonable doubt of the guilt of the respondent and that I should substitute a verdict of guilty instead of an acquittal. For these reasons the appeal is dismissed. ... ----- -- 8 of 8 --