Cameron v Commissioner of Police [2010] QDC 127

DISTRICT COURT OF QUEENSLAND CITATION: Cameron v Commissioner of Police [2010] QDC 127 PARTIES: JASON ADRIAN CAMERON (Appellant) v COMMISSIONER OF POLICE (Respondent) FILE NO/S: 391/2008 District Court Southport DIVISION: Civil PROCEEDING: Section 222 Appeal ORIGINATING COURT: Southport Magistrates Court DELIVERED ON: 1 April 2010 DELIVERED AT: Brisbane HEARING DATE: 23 October 2009 JUDGE: Tutt DCJ ORDER: The Appeal is dismissed. CATCHWORDS: APPEAL - Justices Act 1886 section 222 – appeal against conviction – where appellant was convicted of three counts of “obstructing a police officer in the performance of the officer’s duty” and one count of “assaulting a police officer in the performance of the officer’s duty” (section 790(1) Police Powers and Responsibilities Act 2000) –application to adduce additional evidence - where appellant adduced “additional evidence” (s 233(2)) - where appellant did not appeal against sentence imposed. Justices Act 1886 ss 222, 233 Police Powers and Responsibilities Act 2000 s 790(1) Aldrich v Ross [2001] 2 Qd R 235 -- 1 of 18 -- 2 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Stevenson v Yasso (2006) 2 Qd R 150 Warren v Coombes (1979) 142 CLR 531 Whisprun Pty Limited v Dixon [2003] HCA 48 COUNSEL: Mr M Mitchell for the Director of Public Prosecutions Appellant appeared on own behalf. Introduction: [1] This is an appeal pursuant to s 222 of the Justices Act 1886 (“the Act”) against the decision of the learned magistrate at Southport on 24 June 2008 whereby Jason Adrian Cameron (“the Appellant”) was convicted in the Magistrates Court of three counts of obstructing a police officer in the performance of the officer’s duties and one count of assaulting a police officer in the performance of the officer’s duty contrary to the provisions of s 790(1) of the Police Powers and Responsibilities Act 2000. [2] The appellant pleaded not guilty to the four charges and the summary hearing proceeded before the magistrate on 24 June 2008 in the Southport Magistrates Court. [3] The offences relate to a series of events which occurred on 9 December 2007 in or about Ada Bell Way, Southport when the motor vehicle in which the appellant was a passenger was stopped by police for a suspected traffic infringement. -- 2 of 18 -- 3 Background Facts: [4] The circumstances of the appellant appearing before the Magistrates Court on 24 June 2008 were: (a) On Sunday, 9 December 2007 at approximately 11.30 pm police officers on routine traffic patrol in Southport stopped a motor vehicle driven by a Matthew Lindsay Whiting in which the appellant was a front seat passenger; (b) the appellant exhibited signs of intoxication by his demeanour and abusive behaviour and was instructed to remain in the vehicle; (c) he failed to obey this direction; exited the vehicle and continued to disobey various directions given to him by the police officers in attendance; continued to be “abusive and aggressive” after arrest which constituted the three “obstruct police” charges before the court; (d) the fourth offence of “assault a police officer” occurred when the appellant “kicked out” at one of the police officers, a constable Andrew striking him in his “lower right leg” after the appellant was instructed to sit on the ground during the course of the confrontation. [5] The four charges were the subject of a summary hearing before the Magistrate who heard evidence from four police witnesses and ultimately was satisfied beyond reasonable doubt that all elements of each of the offences had been proved and found the appellant guilty of all four charges. [6] The defendant was sentenced to a probation order for a period of 12 months in respect of each offence and convictions were recorded. -- 3 of 18 -- 4 Grounds of Appeal: [7] The appellant appeared in person at the appeal hearing as he did in the proceedings before the magistrate and his grounds of appeal as they appear in his notice of appeal are: “That the conviction goes against the weight of the evidence and is unsupportable on the evidence before the court. Lack of legal representation and inability to summons witnesses.” Therefore, there is no appeal to this court against the sentence imposed upon him by the magistrate and this issue was clarified in the course of an exchange between the appellant and the court at the commencement of the hearing. 1 [8] Following the appellant filing his notice of appeal on 11 July 2008 there were a number of attempts by the Registrar at Southport to progress the hearing of the appeal and to obtain the appellant’s outline of argument. Extensions of time were granted for this purpose and ultimately an “Outline of Argument” was submitted by the appellant on or about 16 April 2009. On 14 July 2009 the appeal came on for hearing before His Honour Judge Newton of this court when the appellant indicated that there were two witnesses “that he felt should have been called at the original proceedings in the Magistrates Court”. Newton DCJ gave the appellant the “opportunity to serve subpoenas on those witnesses”. Ultimately those witnesses were served with subpoenae and were available to give evidence at the appeal hearing date if the court granted leave for their evidence to be given. 2 1 See pp 3 and 4 of the Appeal Transcript “A.T”. 2 “AT” p 5 lines 47 to 55. -- 4 of 18 -- 5 Application to lead fresh evidence: [9] Pursuant to s 223(2) of the Act “the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.” Further pursuant to s 223(3) “If the court gives leave under subsection (2) the appeal is – (a) by way of re-hearing on the original evidence; and (b) on the new evidence adduced.” [10] The thrust of the appellant’s submission that “new evidence” should be allowed from the proposed two witnesses, was that he expected them to have been called at the Magistrates Court hearing by the respondent as he considered they witnessed the incident and if he had been able to obtain legal representation those witnesses would have been called. In any event no objection was taken by Mr Mitchell on behalf of the respondent to this additional evidence and in the exercise of the court’s discretion the appellant was given leave to adduce further evidence from the subpoenaed witnesses on the basis that the appellant had established “special grounds for giving leave”. [11] The appeal hearing then proceeded with the two further witnesses namely Matthew Lindsay Whiting and Christopher Michael Woods providing additional evidence. Evidence to be considered at appeal hearing: [12] In the circumstances the evidence which this court has to consider in this appeal is the evidence before the Magistrates Court on 24 June 2008 and the further evidence adduced before this court on 23 October 2009.3 3 S 223(3) of the Act. -- 5 of 18 -- 6 Whiting’s evidence: [13] The witness Whiting’s evidence included the following: • he was the driver of the motor vehicle in which the appellant was a passenger on 9 December 2007 in the vicinity of Ada Bell Way, Southport; • he conceded that he “was just being silly” when he was stopped by police officers that evening; 4 • he “didn’t notice or (sic) any verbal abuse or threatening”5 when it was put to him by the appellant what the police officer had said in her evidence before the Magistrates Court; • agreed that the police officer told both himself and the appellant “to stay in the car” when she approached the vehicle; • stated that the appellant was asked “to get back in the car” after he had got out of the car when the police officer was at the vehicle; 6 • stated that the appellant “had had too much to drink” that evening; • that there was a struggle with the male police officer – the struggle being described as “between pushed and wrestled to the ground”;7 • that the appellant was not handcuffed “straight away”;8 • stated when he was asked by the appellant “did you witness myself assaulting a police officer either verbally or by assaulting, kicking, punching, hitting, pushing with my shoulder?” – “the only one thing I saw you do as I say I can’t 4 Police Officer, Sharon Rieger had given evidence before the Magistrates Court that this vehicle had “started revving its engine” with another vehicle when they were stopped at traffic lights and when “the lights turned green” both vehicles moved forward spinning their wheels as if “they were going to do a drag race” (Magistrates Court Transcript (“M.C.T”) p 15 lines 50 to 55.) 5 “A.T” p 10 line 25. 6 Ibid p 12 lines 5 to 15. 7 Ibid p 13 line 27. 8 Ibid p 13 line 25. -- 6 of 18 -- 7 lie and I don’t like the situation that happens between both side but there was one scene I didn’t think it was fit for you to do was you were trying – you tried to trip one police officer and that was it. But he was laying – he was sort of more – he was doing most of all the wrestling and rough man handled”;9 • agreed that the appellant said “a couple of smart things” but not “threats on life or doing anything like that”; 10 • agreed that he told the appellant “all you had to was just to keep your mouth shut, stay in the car and that was it. That’s all I remember and nothing would have happened”. 11 [14] Whiting’s cross examination included the following: • his vehicle was pulled over “about 11.30 pm”; • the police “might have” pulled over or stopped two vehicles that evening; • the female police officer (Rieger) “approached me ….. she went to the driver’s side door”; • he was “in the driver’s seat”; • He was asked: “and she was talking to you and she told you and Mr Cameron to stay in the vehicle? ….. yeah”;12 • agreed that “she told both of you to stay in the vehicle is that right?”; • agreed that Mr Cameron made “some smart comments” to the police officer “but not threatening or life threatening”; • could not recall the appellant saying to the police officer “you fucking bitch” but stated “he may have, might have but I didn’t hear anything”; 9 “A.T” p 16 lines 10 to 17. 10 Ibid p 16 line 35. 11 Ibid p 17 lines 9 to 11. -- 7 of 18 -- 8 • agreed that the police officer “might have” asked the appellant “to be quiet or to calm down”; • agreed that the police officer asked the appellant to “stay in the vehicle” when “she was at the driver’s side door”; • agreed he saw the appellant walk to “the front of the car”; • the police officer “encouraged” the appellant “to get back in the car”;13 • stated that “the male constable” handcuffed the appellant at the “back”; • agreed there was “a disagreement” or argument between the appellant and the male police officer; • agreed that he saw the appellant “trying to trip a police officer”; • agreed the appellant “might have touched” the police officer’s legs in the course of the confrontation “but it wouldn’t have done anything”; • agreed the appellant had been “drinking” alcohol for a large part of the day in that he recalls the appellant commencing to drink “about mid-day”;14 • agreed that the appellant “had too much” to drink that day.15 Woods’ evidence: [15] The witness Woods’ evidence included the following: • on 9 December 2007 he “was walking home” and he saw “a car get pulled over by a police car ….. and went over to have a closer look and I seen an officer 12 “A.T” p 18 lines 35 to 50. 13 Ibid p 20 lines 10 to 60. 14 Ibid p 27 line 5. 15 Ibid p 27 line 40. -- 8 of 18 -- 9 grabbing someone with long hair out of the car and riffling (sic) onto the ground and he wasn’t like resisting or anything”; 16 • stated that he saw the police officer “just rip (a person) out of the car and put onto the ground”; • the officer who did this and “who was actually wrestling with him to the ground (was) a female police officer”; 17 • “It was the female officer who had him on the ground? … Yeah” 18 ; [16] Woods’ cross examination included the following: • the male officer went to the driver’s side and the female went to the passenger’s side”; • only one car was “pulled over”; • he had consumed “a six pack of Jim Beam and Cola”; • the incident happened about “12.01 in the morning;19 • confirmed that he “saw a male officer at the driver’s side door and ….. a female officer at the passenger’s side door”; 20 • saw “the female officer like put their hand through the window and like grab the person in the passenger seat and then she opened and liked ripped him out. And I seen the fellow with long hair. I don’t know don’t know who he is but its all I’ve seen. And then she jumped on top of him. And when she pulled him out of the car he was like he had his hands up. He wasn’t trying to cause any danger or anything”; 21 16 “A.T” p 32 lines 35 to 40. 17 Ibid p 33 line 45. 18 Ibid p 34 line 1. 19 Ibid p 36 line 10. 20 Ibid p 36 lines 25 to 35. 21 Ibid p 16 lines 37 to 44. -- 9 of 18 -- 10 • denied “that the male passenger got out of the car and went to the front of the vehicle and the female officer met him at the front of the vehicle or near the front of the vehicle”; • reiterated that there was “no way you (he) can be mistaken about that”22 ; • reaffirmed that it was the female police officer who “chucked him (the appellant) onto the ground and like put his hands behind his back. His head was in the ground and he has his – her knee in his back”. 23 • agreed that the appellant was handcuffed “behind his back” but did not see the handcuffs being placed on him. General Principles: [17] In appeals of this nature the general principles upon which an appellate court must operate are well established. In the ordinary case of an appeal by way of rehearing it is necessary for the appellant to show that the decision appealed against was wrong and the Appeal Court although ultimately making up its own mind on the matter, 24 has due regard to such advantages that the court or tribunal at first instance had because of the opportunity to see and hear witnesses and to have the full consideration of all of the relevant evidence that was presented by the original hearing. This court must give due deference and attach a good deal of weight to the magistrate’s view: Stevenson v Yasso (2006) 2 Qd R 150 at para [36] per McMurdo P. [18] Further to this:25 “An appellate court will not readily overturn a trial judge’s primary findings of fact where those findings are based on his or her assessment of the 22 “A.T” p 36 line 55. 23 Ibid p 37 lines 33 to 35. 24 Aldrich v Ross [2001] 2 Qd R 235 at 257; Warren v Coombes (1979) 142 CLR 531 at 551; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 at 327; Fox v Percy (2003) 214 CLR 118 at [29]. 25 See Walker v Durham & Anor [2003] QCA 531 at paragraph [6]. -- 10 of 18 -- 11 credibility of witnesses. As Kirby J said recently in Whisprun Pty Limited v Dixon [2003] HCA 48 – ‘67. However, normally, to secure reversal of a primary judge’s credibility-based conclusions, it is necessary for the challenger to demonstrate that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony: showing that the primary judge’s decision was erroneous, notwithstanding that it appears to be (or is stated to be) based on credibility findings. Such was the case in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (‘SRA’). There a witness, disbelieved by the primary judge, was supported by contemporaneous documentary evidence and unchallenged testimony of other witnesses that had not been considered and that evidence combined to demonstrate the fragility of the judge’s conclusion. Such was also the case in Fox v Percy where the decision of the primary judge, although based on a credibility assessment, could not be reconciled with other testimony that the primary judge accepted. In particular, it did not accord with a contemporary record that contradicted the judge’s conclusion.’ In Warren v Coombes (1979) 142 CLR 531 at 551 the majority of the High Court said of an appellate court’s role in drawing of inferences from proved or uncontested facts – ‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having -- 11 of 18 -- 12 reached its own conclusion, will not shrink from giving effect to it.’” [19] In 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 of the evidence before the appellate court the order that is the subject of appeal is the result of some legal, factual or discretionary error.26 [20] All of these principles flow from the long established authority of House v The King27 referred to in the following remarks of Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied v AIRC: 28 “Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process.29 And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretion, in House v The King in these terms: ‘If the judge acts upon a wrong principle, if he allows extraneous 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 26 Allesch v Maunz (2000) 203 CLR 172 at 180. 27 (1936) 55 CLR 499 at 505. 28 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others [2000] 203 CLR 194 at [21]. 29 See Norbis v Norbis (1986) 161 CLR 513 at [518]-[519], per Mason and Deane JJ. -- 12 of 18 -- 13 exercise its own discretion in substitution for his if it has the materials for doing so.’ 30 ” [21] In this appeal this court has also the benefit of hearing the evidence from the two further witnesses called by the appellant. Appellant’s Submissions on Appeal: [22] In the appellant’s written “Outline of Argument” filed 16 April 2009 which is in the form of a three page “letter” with numerous attachments including correspondence with: • Legal Aid Queensland; • Crime and Misconduct Commission; • Queensland Police Service; • Members of Parliament; • Councillors; • Gold Coast Hospital (and its records); and • Others. The appellant makes a number of submissions including the following: (a) his convictions for the offences were contributed to by his not being legally represented at the Magistrates Court hearing and because his application for legal aid was refused; (b) he “needed to call witnesses” which did not occur; 30 House v The King (1936) 55 CLR 499 at [505], per Dixon, Evatt and McTiernan JJ. -- 13 of 18 -- 14 (c) “the magistrate did not wish to hear of the injuries I sustained or the events that occurred in the watch house. He did not view the medical records which confirmed the inconsistent stories of the police versions of events.” (d) there were inconsistencies in the police evidence which should have caused the magistrate to have a reasonable doubt and by implication the magistrate should have dismissed the charges. [23] At the appeal hearing the appellant made submissions in similar terms and referred to a number of other issues which allegedly occurred at the Southport watchhouse resulting in the appellant being taken to the Southport hospital for treatment. Respondent’s submissions on appeal: [24] The respondent’s submissions include the following: (a) There is no substance in the appellant’s claims that his being refused legal aid impacted upon the manner in which the hearing was conducted; (b) The appellant was given a full explanation of his rights and reasons for refusal of legal aid as the correspondence and other documentation attached to the appellant’s “letter” of outline of submissions confirmed. (c) “34. The learned Magistrate properly and extensively informed the appellant the position the appellant puts himself in by choosing to self represent. 31 35. The learned Magistrate ensured that the appellant had been supplied the brief and explained the court processes to the appellant. 32 31 “H.C.T” p 4 line 47 to p 7 line 32. 32 Ibid p 5 lines 7 – 18. -- 14 of 18 -- 15 36. The appellant conceded to the learned Magistrate that the chances of finding the two witnesses the appellant wished to call was remote. 33 37. The learned Magistrate handed down the sentence after considering all the evidence provided and was satisfied with Police witness evidence. 38. The appellant was advised by the learned Magistrate that the only medical records that could be considered would have to be from the incident alleged with regard to the first witness.34 39. The learned Magistrate advised the appellant that whatever may have happened at the Southport watch house was not the matter before the court. 35 40. The learned Magistrate indicated that the witness had adequately answered the questions relating to force. 36 41 The learned Magistrate took into account the reference’s provided by the appellant. 37 42. The learned Magistrate took into account the maximum and minimum penalty prescribed for the offences.38 43. The learned Magistrate took into account the principles of the Penalties and Sentences Act 1992. 44. The appellant chose not to give evidence. 39 ” [25] Ultimately the respondent submits that the magistrate took into account all relevant matters he was required to do both in respect of his convicting the appellant and the sentence imposed. As a consequence the appeal should be dismissed. 33 “H.C.T” p 11 lines 13-22, 51-52. 34 Ibid p 83 lines 32-37, 84 lines 20-41. 35 Ibid p 34 lines 57-58, p 47 lines 44-48. 36 Ibid p 58 lines 29-31. 37 Penalties and Sentences Act 1992, ss9(2), 4(h)(j). 38 As required by s 9(2)(b) & s 12 of the Penalties and Sentences Act 1992. 39 “H.C.T” p 85 lines 5-6. -- 15 of 18 -- 16 Hearing before Magistrate: [26] I note from the Transcript of Proceedings before the magistrate that he: (a) was at pains to inform the appellant of the importance of his being legally represented if possible in defending the charges before the court because of the potential consequences to the appellant if he was found guilty of the offences; (b) heard extensive evidence from the four police witnesses called by the prosecution and was therefore able to assess their demeanour and credibility in the course of the hearing; (c) provided detailed reasons before setting out the conclusions he reached after comprehensively analysing the evidence of each witness called in respect of each charge and satisfying himself beyond reasonable doubt on that evidence that all elements of each offence had been established before finding the appellant guilty of each offence; (d) heard further submissions on penalty and imposed what could only be described as a reasonable if not lenient penalty in the circumstances from which the appellant does not appeal to this court. Findings on appeal: [27] On a review of all of the evidence in this matter and the submissions made I find that the appellant has failed to establish any basis that the magistrate did not apply all appropriate legal principles in the findings he made with respect to the charges before the court and applying the well-established principles of an appellate tribunal as stated in Stevenson v Yasso referred to above, I am satisfied that the appeal should be dismissed and I order accordingly -- 16 of 18 -- 17 [28] My further reasons for reaching this conclusion are: (a) I have now considered all of the evidence before the court which includes the whole of the evidence before the Magistrate at the summary hearing and the “new evidence” adduced at the appeal hearing and in respect of the latter I find that the evidence of the witness Whiting coincides with much of the evidence of the police witnesses including the fact that Constable Rieger came to the driver’s side of the vehicle; both he and the appellant were instructed to stay in the car; Constable Rieger specifically instructed the appellant to get back in the car when he alighted from it; the appellant and Constable Rieger met in front of the vehicle; the appellant was heavily intoxicated at the time; there was a wrestling between the appellant and police officers; the appellant “tried to trip one police officer” and struck him on the leg; the appellant made “some smart comments to the police officers”; and the appellant may have abused the police officers but he “didn’t hear anything”. (b) I find that the witness Woods lacks all credibility and reliability and I reject his evidence in that it is contrary to the evidence of all other witnesses including the witness Whiting in a number of respects including: (i) he states that Constable Rieger “just ripped” the appellant out of the car and put him on to the ground when all other witnesses including Whiting state that the appellant alighted from the vehicle himself and met Constable Rieger in front of the vehicle; (ii) he states that it was the “female officer” who was “wrestling” with the appellant whereas all other witnesses state that it was the male officer doing so. (iii) he states that it was the “male officer” who went to the driver’s side of the car and the female officer went to the passenger’s side -- 17 of 18 -- 18 whereas all other witnesses agree that it was only police officer Rieger (the female officer) who went to the car in the first place and she went to the driver’s side only; (iv) he stated that it was the female police officer who “slung” the appellant to the ground and “put her knee on his back and his arms behind his back” whereas all other witnesses say it was the male officer (Constable Andrew) who was on the ground with the appellant. (c) While the only inconsistency in the police evidence was in the manner in which the appellant was handcuffed, 40 I do not consider that such an inconsistency is of such a nature that Constable Rieger’s credibility as a whole is affected on the core elements of her evidence which are overwhelmingly supported by all other witnesses. [29] For all of the above reasons the appeal should be dismissed. Order: [30] I order that the appeal be dismissed. 40 Constable Rieger’s evidence was that her recollection was that he was handcuffed “in front” whereas all other witnesses say the appellant was handcuffed “from behind”. -- 18 of 18 --