Crompton v Queensland Police Service [2010] QDC 394

1-1 [2010] QDC 394 DISTRICT COURT APPELLATE JURISDICTION JUDGE ROBIN QC No 210 of 2009 RICCARDO RONALD PEDRO FRANCISCO CROMPTON Appellant and QUEENSLAND POLICE SERVICE Respondent TOWNSVILLE ..DATE 30/09/2010 JUDGMENT CATCHWORDS Justices Act 1886, s 222 Appeal against conviction for common assault - Magistrate critical of parts of complainant's evidence, but accepted him on key issues - whether Magistrate provided appropriate assistance to self-represented defendant - appeal dismissed -- 1 of 17 -- 1-2 JUDGMENT HIS HONOUR: I've had the advantage of reading the transcript of the complainant's evidence, which extended over six hours or so at the trial in recent days, and reading today the evidence of the defendant at trial and his witness, Mr Perkov. The other witness called in the prosecution case at trial was a police officer, Jackson, whose evidence I haven't read. Parts of it were alluded to during the hearing of this appeal against a conviction under section 222 of the Justices Act 1886. Neither side suggested there was anything particularly helpful in it. It is incumbent on an appeal court such as this, at least in circumstances such as the present ones, to conduct a rehearing based on the whole of the evidence and form its own view as to the strength of the prosecution case. My awareness of that, which may have been somewhat belated, appears from Leach v Commissioner of Police [2009] QDC 066, where some helpfuling binding authorities were discussed. In particular at paragraphs 30 and elsewhere it's made clear that an appeal court is not entitled to say that it "must be satisfied that the trial Judge was wrong”, and if not persuaded that the trial Judge was wrong might dismiss an appeal. I might note that Mr Collins of Counsel in the appellant's supplementary outline of submissions in paragraph 23 has attributed to me two paragraphs that in fact come from the High Court. ... The conviction the subject of the appeal is of an alleged -- 2 of 17 -- 1-3 JUDGMENT common assault at a workplace by one employee of another on the 19th of December 2008. It's the sort of offence which should be taken seriously. The appellant/defendant considered that the complainant should not have been driving a forklift. He described himself as having reached a state of "controlled anger". The trial involved three days of evidence, widely separated, followed by a decision on the 14th of August 2009 supported by 20 pages of pertinent reasoning. The substituted grounds of appeal in Mr Collins' outline were the following: “Ground 1: The primary Magistrate failed to properly take into account his doubts concerning the truthfulness and accuracy of the complainant's evidence in related areas and the complainant's demeanour when giving evidence when accepting his evidence in relation to "those matters which were relevant". Ground 2: That the Magistrate improperly limited the cross-examination of the complainant by the appellant, particularly on the consumption of cannabis sativa prior to the commission of the offence. Ground 3: That a miscarriage of justice occurred due to failure of the primary Magistrate to give proper assistance to the appellant, who was a self-represented litigant. -- 3 of 17 -- 1-4 JUDGMENT Ground 4: That the conviction was unreasonable and could not be supported, having regard to the evidence.” Inevitably, submissions regarding the grounds overlapped, for example, the asserted failure of the Magistrate to give proper assistance was tied in with questioning about the drugs aspect been precluded, as Mr Crompton appeared to accept after the third or fourth challenge by the Prosecutor to questioning along those lines. The matter seems not to have been raised further with the complainant, Mr Wiltshire, although it was kept very much alive by the appellant in exchanges with the Magistrate, often when the complainant had been sent out of court. Further, the drugs aspect featured when the appellant gave evidence himself. See the transcript for day 3 at page 5. As I understood, what Mr Crompton was attempting to convey was that on some earlier occasion or occasions, he had observed Mr Wiltshire to be involved with drugs, and indeed on the very day of the incident, which occurred around 3 p.m., he had witnessed the complainant indulging in a drug called “marijuana" at morning break between 9.30 and 10 a.m. Mr Crompton hardly helped his case by using the description “poison", which I'm given to understand is the relevant one for the drug in question in certain quarters rather than something less inflammatory such as "marijuana" or the description in Mr Collins' grounds. It seemed to me that Mr -- 4 of 17 -- 1-5 JUDGMENT Crompton's choice of language was a calculated one, adopted for the purpose of running down Mr Wiltshire in the court's eyes. I suppose all is fair in love, war and litigation. As providing substance to the concept of a judicial officer's obligation to provide due assistance to a self-represented litigant, Mr Collins relied on Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at page 112 and page 121 and following. That was supported by reference to comments of Holmes JA in Zurek [2006] QCA 543 at paragraph 29 and following in passages which have particular relevance in that they relate to his submission that the Magistrate here became interventionist and combative against Mr Crompton's interests. While not so willing as Mr Collins to be critical of his Honour, I think that he's correct in suggesting that his Honour's interventions emboldened the complainant, Mr Wiltshire, to misbehave. That witness's performance fell far short of the meek, respectful display which is usually expected of witnesses, whatever the provocation coming from a cross-examiner. I acknowledge that my own tendency has been, over the years, to tolerate a certain amount of combativeness in response to oppressive or sarcastic questioning. The two protagonists here clearly saw themselves as in a contest in which much might be gained from scoring points, however small, against the other. It started at transcript 1- 16 when Mr Crompton, having asked the common trap introductory question whether a witness has read his statement carefully and whether there's anything that ought to be changed, -- 5 of 17 -- 1-6 JUDGMENT identified that apparently Mr Wiltshire's statement had got the date of the alleged assault wrong as the 15th rather than the 19th. When the witness volunteered that “Being dyslexic I went over it to the best of my abilities," Mr Crompton responded by, "We're not asking for smartness, that - that may have been your problems (sic)" there was an objection and an observation from the Bench that there was no need for Mr Crompton's comment. Mr Crompton defended himself. The witness announced he hadn't come to court to be picked on, and it went on from there after the Magistrate's injunction to the two men to be civil to each other. By page 28, after the Magistrate had indicated Mr Crompton ought not to pursue the issue of Mr Wiltshire's having a ticket entitling him to drive a forklift in further questioning but reserve the issue for comment about inconsistency in evidence and the like at a later stage, we have the witness describing what's going on as "a joke" and "a circus". The cross-examination went on for hours; to page 168. On my reading of it, with the exception of the drugs aspect, Mr Crompton was no wit deterred and kept returning to pursue points which he considered relevant. The unpleasantness which arose between the two protagonists, as I am calling them, on 19 December 2008 was acknowledged by both, although in the details of how it arose and developed, there were differences. At page 3-15 immediately prior to the alleged assault Mr Crompton said he didn't know the exact words that he had used -- 6 of 17 -- 1-7 JUDGMENT to Mr Wiltshire as the latter alighted from the forklift which he had driven after being given the keys by the supervisor, Mr Perkov. Contrary to Mr Crompton's admonition; he said that he didn't know the exact words that he would have used but would say that he could have used words such as (given by Mr Wiltshire), "you dog", whereupon on his account Mr Crompton described the complainant as having just tried to run over him as he operated the forklift, something which when he first spoke of it in his evidence Mr Crompton said was intentional. The evidence at 3-15 goes on: “He then hopped off or dismounted the forklift to the right saying to me to “piss off”, with his arms raised, pushed me to one side and said to me that “I'm not worth it.” They were the exact words, “You're not worth it.” I then responded to him, “Do you want to fight?" On Mr Wiltshire's account there was no fight. He describes himself as alighting from the forklift and becoming aware of a movement out of the "left-hand corner" of his eye, leading him to throw up his hands as a defence. He says he noticed there was a fist coming at him which "sort of hit my arm and just basically hit me in the ear, bounced off my head". He does not claim to have seen Mr Crompton strike any blow, but he describes seeing Mr Crompton nearby with a fist raised, taking a few steps back and verbally abusing him. For what it's worth, there was no suggestion that anybody else was in the vicinity to strike the blow, on the theory that there was -- 7 of 17 -- 1-8 JUDGMENT a blow. Essentially, the prosecution had only to prove a striking of the complainant by Mr Crompton without the complainant's consent. The Magistrate, having correctly stated the elements of the offence, the onus of proof and the like, expressed himself satisfied that the prosecution had proved what it had to. The appellant's arguments today, quoting from Mr Collins' helpful outline, commence with a submission that in a case such as this where the evidence was essentially word against word, there was "insufficient evidence for the primary Magistrate to be satisfied beyond a reasonable doubt of the appellant's guilt". I cannot accept that submission. It's common in our criminal justice system for people to be convicted on the basis of word against word. Indeed, in sexual offences in particular, it's notorious that the former requirement of corroboration has been done away with. One would assume the Magistrate was cautious in the circumstances about finding the charge proved, as indeed this court ought to be. Mr Collins provides a helpful summary of serious criticisms that the Magistrate made of Mr Wiltshire's evidence, set out as dot points: “. The complainant was "evasive and uncooperative" when questioned about "what has occurred after he left the job site", "whom he contacted", "where he went to", and "whom -- 8 of 17 -- 1-9 JUDGMENT he spoke to on the evening of the alleged assault". . That the complainant's demeanour was poor and "seems to be primarily focused on frustrating Mr Crompton rather than answering questions in a timely manner on these points". . That the complainant's evidence about his and his family's distress and the pain he suffered were exaggerated.” The submission was that those matters should have weighed against accepting the complainant's evidence concerning the commission of the offence. No doubt they should have. It's another thing entirely to say that those matters ought to have prevailed. In a case such as the present it's important not to miss the wood by focusing too much on the trees. The appellant cross- examined Mr Wiltshire at length about matters which on any reasonable view are irrelevant. For example, precisely where in a group of three the police officers, after they've been called at Mr Wiltshire's instance, were standing when questioning Mr Wiltshire about what had happened. There was a similar pursuit as to the locations of the protagonists and Mr Perkov in the last-mentioned's office, when Mr Wiltshire collected the key (or keys - much was made of the difference) for the forklift. Much time was spent on getting a description of exactly how it was that Mr Wiltshire -- 9 of 17 -- 1-10 JUDGMENT had alighted from the forklift when he brought it to a halt near a storeroom where he had left his tools, intended to be removed for transport home by use of the forklift to get them to Mr Wiltshire’s vehicle. Much energy went into questioning about exactly how Mr Wiltshire had driven around the block when he absented himself from the workplace for the purpose of summoning police to make a complaint prior to returning to the work site in safety in their company, as to street names and the like. I find it hard to see what these matters have to do with anything relevant. There was questioning about the personnel associated with the workplace who may have been present at a hotel later on where Christmas drinks were being enjoyed and where, notwithstanding the discomfort he said he was in with his ear, Mr Wiltshire was apparently able to go to enjoy himself. The appellant's case relies on the approach of R v Markuleski [2001] NSWCCA 290 for the well-accepted proposition that where there is reason to doubt an important witness's evidence on some important aspect, that ought to be taken into account in determining its reliability so far as other matters are concerned, and in particular proof of the elements of an offence charged. Although his Honour didn't cite authority there is no reason to think that he failed to take the correct approach. Indeed, his having gone out of his way to identify respects in which he would not accept Mr Wiltshire's evidence to my mind demonstrates that he was taking the correct -- 10 of 17 -- 1-11 JUDGMENT approach. He exhibited what I think is the accepted degree of fairness in judging the charge against the appellant by his strong criticisms of Mr Wiltshire’s performance, which, as Mr Collins indicated, may have owed something to the Magistrate's own interventions. That comment is not intended to suggest that any of those interventions were inappropriate. My assessment of the transcript as a whole is that his Honour was taking acceptable steps to establish appropriate order and decorum in his court at the trial. Mr Collins' submission was that the Magistrate ought to have waited for the police prosecutor, Sergeant Killick, to object before interfering in Mr Crompton's questioning of the complainant. While ordinarily that's the case, matters got to a stage in this proceeding where Sergeant Killick's intervention was hardly necessary. Typically, his Honour intervened only where there had previously been an intimation to Mr Crompton of the inappropriateness of particular questioning. The transcript makes clear his Honour’s frustration with Mr Crompton on several occasions. It was hardly necessary to state during argument of the appeal that the prosecution’s case gained nothing from the way in which the appellant may have conducted himself in court. There is no reason to think that the Magistrate proceeded contrary to that principle. Turning again to the grounds of appeal which are framed as a criticism of the Magistrate, I'm not satisfied that that criticism is made out - that his Honour failed to properly take into account the doubts that he had about part of what Mr -- 11 of 17 -- 1-12 JUDGMENT Wiltshire had to say, in particular. Those, in my view, essentially related to peripheral matters. As to the disallowance of cross-examination about drug use, Mr O'Connor for the respondent accepts that his Honour was in error there. It's difficult at this stage to assess the consequences. They may have been that an attack on Mr Wiltshire's general credit as a person who takes drugs was precluded. As to events on the day in question, one may speculate that as a possibility, Mr Wiltshire's ability to competently operate a forklift, assuming that as a general rule he had that competency, was impaired or that his ability to adequately understand and later recount events that occurred while he might have been under the influence of drugs may come into question. There was no evidence, and there's no basis on which I can estimate, what might have been the effect of the unspecified amount of drug ingestion, if that's what it was, at the morning break on the day some five hours later. I think Mr O'Connor is correct to say that what was, on Mr Crompton's account, motivating him, was concern or anger that a person who was not ticketed to operate the forklift was doing so, rather than any concerns about the effect of ingestion of drugs, assuming there was any. At page 1.7 in his evidence-in-chief, Mr Crompton did tell his Honour that he was "greatly concerned about: (1) his state of mind; secondly, there was a previous incident with an elevated work platform that was raised". There was no suggestion any “previous -- 12 of 17 -- 1-13 JUDGMENT incident” involved Mr Wiltshire. It wasn't suggested that Mr Perkov, who was asked for and handed over the key against Mr Crompton's urgings, was told anything about Mr Wiltshire's state of mind, sobriety, etc. One would expect him to have been, if that was at all seen as a serious or even relevant factor in making a judgment, whether Mr Wiltshire should have been provided with the key. In the circumstances I am prepared to approach this appeal on the basis that there may have been some ingestion of cannabis by the appellant, but there's no reason to think that it had any relevant effect on his ability to function by around 3 p.m. The Magistrate's reasons don't say anything about this aspect. Indeed, there's very little in the transcript about it. The situation was probably that the court was concerned about Mr Wiltshire possibly incriminating himself. As it's been said in the appeal, perhaps what ought to have happened was the issuing of a warning to Mr Wiltshire that he had privilege not to incriminate himself by answering the question along the lines that the defendant wished to ask him about "poison". There was some mention as to whether or not the Criminal Code proviso applied in an appeal by way of rehearing such as the present. Mr O'Connor's submissions moved on to ground 3 in respect of this issue and were to the effect that there's no reason to think that any miscarriage of justice occurred because of the Magistrate's error. I think that that is the case, given the way in which the trial proceeded and indeed -- 13 of 17 -- 1-14 JUDGMENT was conducted by Mr Crompton, who, as I read the transcript, had a very good idea of what he was about. The Justices Act does not contain a “proviso” corresponding with that in s 668E of the Criminal Code, since the repeal of the former s 213(1) dealing with orders to review. Turning to ground 3, I'm not persuaded that the Magistrate did fail to give proper assistance to Mr Crompton. At the beginning of the trial the Magistrate gave advice of the kind which is typically given by judges to self-represented defendants facing a jury trial. The transcript sufficiently records that. I accept that whether or not Mr Crompton correctly understood that advice is another question. The Magistrate gave no warnings about relevance but it would be rather dangerous to give any such warning at the beginning of a trial, given the latitude which cross-examiners have been asking questions, answers to which might damage a witness's credibility generally. One should not indicate to a self- represented defendant in advance that there are limits to cross-examination beyond any clearly established by law. As I read the transcript, appropriate warnings were given, rulings made and the like, on the relevance or permissibility of continued pursuit by Mr Crompton of particular issues. No failing of the Magistrate to give appropriate assistance has been demonstrated here, except in respect of that drug issue, which, even making assumptions in favour of Mr Crompton, does not in my view stand in the way of the prosecution here succeeding. While one can understand, on a -- 14 of 17 -- 1-15 JUDGMENT commonsense approach, much of what Mr Crompton was about, he was wide of the mark so far as proper legal analysis is concerned. Despite clear intimations from the prosecutor, endorsed by the court, the appellant clung to the idea that an assault requires some physical injury. Indeed, that is the theme that he was pursuing immediately before what appears to be the sole occasion on which he put to the complainant, at page 1-141 of the transcript, that there was no "assault". I'm not suggesting that Mr Crompton acknowledged any use of physical force at all, even though he told of his understanding, until some enquiries made by him at a late stage of the trial, that as a health and safety officer he would have been entitled to use force to prevent an unauthorised person from driving a forklift. The law is clear that observable injury, pain and discomfort and the like are not required for there to be a common assault, which may attract a conviction for the offence and punishment. Another false issue pursued relentlessly at the trial in the face of repeated intimations from the court below which I would endorse centred on whether or not Mr Wiltshire held a relevant ticket or other authorisation to operate the forklift. Indeed, Mr Crompton's raising of this aspect was the reason for the unpleasantness that developed between the protagonists immediately before the alleged assault. The situation might have been different, having regard to Markuleski, if the complainant had been caught out in a lie in respect of his possession of a certificate. By the time the trial came to its end he had produced evidence that there was -- 15 of 17 -- 1-16 JUDGMENT one. Notwithstanding the Magistrate's criticisms, there was no instance in which Mr Wiltshire was demonstrated to have been dishonest or given false evidence. The court today has the benefit of the Magistrate's views of credibility of the witnesses. His Honour had an advantage that this court lacks, and I should be conscious of that. It's an unusual case in which Mr Collins asks the court to take from the strong criticisms that his Honour made of Mr Wiltshire's evidence that in a contest of word against word, it ought not to be accepted as proof of the commission of the offence charged beyond reasonable doubt. At the end of the day, my conclusion, having reviewed all of the evidence except for that of Jackson, is the same as the Magistrate's. The conclusion is one I reach independently, on the basis of accepting his Honour’s criticisms of Mr Wiltshire’s evidence. It follows that I don't agree with ground 4 that the conviction was unreasonable and couldn't be supported having regard to the evidence. In my opinion this appeal has to be dismissed. That's the court's order. MR O'CONNOR: Just with respect to costs, the respondent does not seek any orders. HIS HONOUR: I didn't hear the last bit? MR O'CONNOR: The respondent does not seek any orders with respect to costs, your Honour. -- 16 of 17 -- 1-17 JUDGMENT HIS HONOUR: You're not? MR O'CONNOR: No. HIS HONOUR: So, the appeal is dismissed, and that's the only order. ----- -- 17 of 17 --