Charrington v Korac [2008] QDC 328

1-1 DISTRICT COURT OF QUEENSLAND CITATION: Charrington v Korac [2008] QDC 328 PARTIES: CHARRINGTON, BRADLEY RAYMOND (Appellant) v KORAC, TODD (Respondent) FILE NO/S: DC 2115 / 2008 DIVISION: Appellate PROCEEDING: Appeal under s222 of the Justices Act 1886 (Qld) ORIGINATING COURT: Delivered on: 2 December 2008 (ex tempore) DELIVERED ON: DELIVERED AT: Brisbane HEARING DATE: 2 December 2008 JUDGE: Andrews SC DCJ ORDER: Appeal dismissed CATCHWORDS: APPEAL – REHEARING – REVIEW OF FINDINGS OF FACT BASED ON MAGISTRATES ASSESSMENT OF CREDIBILITY OF WITNESSES – where appeal pursuant to s222 of the Justices Act 1886 (Qld) – where appellate court able to assess audio tape recording – whether appellate court can draw conclusions of fact different from the magistrate’s. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SEARCH WARRANTS – VALIDITY – where a warrant to search premises in relation to offences named an offender – where by time of search the offender no longer resided at the premises – where lawful occupant had no connection with the offender – whether the search warrant was invalid – whether police officers purporting to execute the warrant were acting in the performance of the officers’ duties. CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST PEACE AND PUBLIC ORDER – ASSAULTING, RESISTING, HINDERING OR OBSTRUCTING POLICE OFFICER – OFFICER EXECUTING SEARCH WARRANT – whether there was intent to hinder or obstruct police officer by standing and reaching for a mobile phone – whether there was intent to -- 1 of 32 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 hinder or obstruct police officer by reaching for tools – whether there was intent to hinder or obstruct police officer when actions caused police officer to believe defendant was reaching for a weapon – whether there was intent to hinder or obstruct police officer when refusing to open the front door. CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST PEACE AND PUBLIC ORDER – ASSAULTING, RESISTING, HINDERING OR OBSTRUCTING POLICE OFFICER – OFFICER ACTING IN EXECUTION OF A SEARCH WARRANT – where police officers were not in uniform – whether the defendant’s concern whether there were persons impersonating police officers was an honest and reasonable but mistaken belief that the persons were not police officers – whether the defendant held the belief when hindering or obstructing the police officers. CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST PEACE AND PUBLIC ORDER – ASSAULTING, RESISTING, HINDERING OR OBSTRUCTING POLICE OFFICER – OFFICER ACTING IN EXECUTION OF A SEARCH WARRANT – where the defendant’s honest and mistaken belief that the police officers’ proposed entry would not be in the performance of their duties because the offender named in the warrant to search the premises no longer resided at the premises and the lawful occupant had no connection with the offender – whether the belief was reasonable – whether the mistake was a mistake of fact within s24 of the Criminal Code Act 1899 (Qld) or a mistake of law. CRIMINAL LAW – TRIAL – FAIR TRIAL – where prosecution supplied a witness statement immediately prior to the hearing – where the defendant did not apply for an adjournment – where the statement reflected the contents of a tape-recording supplied earlier to the defendant – where the late delivery meant the defendant did not have opportunity to take the full brief to Legal Aid – where the prosecutor did not call two witnesses – where the prosecutor offered to call the witnesses if the appellant requested – where a transcript of an audio tape recording contained errors – whether the trial was unfair. Criminal Code Act 1899 (Qld), s24 Justices Act 1886 (Qld), s222 Police Powers and Responsibilities Act 2000 (Qld), s790 Fox v Percy (2003) 214 CLR 118 applied Rowe v Kemper [2008] QCA 175 applied -- 2 of 32 -- 1-3 JUDGMENT 1 10 20 30 40 50 60 Mbuzi v Torcetti [2008] QCA 231 applied Towse v Bradley (1985) 14 ACrimR 408 followed Dietrich v R (1992) 177 CLR292 followed COUNSEL: Appellant for himself K Overell for the respondent SOLICITORS: -- 3 of 32 -- 1-4 JUDGMENT 1 10 20 30 40 50 60 DISTRICT COURT APPELLATE JURISDICTION JUDGE ANDREWS SC No 2115 of 2008 BRADLEY RAYMOND CHARRINGTON Appellant and TODD KORAC Respondent BRISBANE ..DATE 2/12/2008 JUDGMENT -- 4 of 32 -- 1-5 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: Now, Bradley Raymond Charrington is the appellant. He was convicted on 5 August 2008 after a summary trial at the Redcliffe Magistrates Court on 16 June 2008, of the charge of obstructing a police officer on the 12th of March 2008 at Woody Point. He was sentenced to a fine of $500 and a conviction was recorded. He has appealed against that conviction by notice of appeal filed in this Court on the 6th of August 2008. The offence with which Mr Charrington was convicted was an offence against section 790 of the Police Powers and Responsibilities Act of 2000. That section provides, so far as is relevant: 790 (1) A person must not...obstruct a police officer in the performance of the officer's duties... (3) In this section - obstruct includes hinder, resist and attempt to obstruct. The appeal is brought before me pursuant to section 222 of the Justices Act 1886. On such an appeal, section 223 of that Act provides: 223 Appeal generally a rehearing on the evidence (1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices. One piece of further evidence was tendered before me without objection from the respondent. I am required to review the evidence which was before the Magistrate, to weigh conflicting evidence and to draw my own conclusions. See Fox v Percy (2003) 214 CLR 118 at paragraph 25 and Rowe v Kemper [2008] QCA 175 at paragraphs 3 and 5, and Mbuzi v Torcetti [2008] QCA at paragraphs 17, 1 and 2. I should afford respect -- 5 of 32 -- 1-6 JUDGMENT 1 10 20 30 40 50 60 to the decision of the Magistrate and bear in mind any advantage the Magistrate had in seeing and hearing witnesses give evidence. See Mbuzi at paragraphs 17, 1 and 2. Because the events the subject of the charge were, to a considerable extent, the subject of a recording on a tape recorder and many parts of that recording are audible, the advantages which the Magistrate might have had are not so great for I am able to listen to the recording myself. I am able to draw conclusions from it as well as the Magistrate might have though it is possible that having regard to the other evidence before the Magistrate there may be some slight advantage enjoyed by the court below. The uncontentious circumstances surrounding the charge are that on the 12th of March 2008 at about 10.50 a.m. police from the Redcliffe Police Station attended at 10 Inglis Street Woody Point to execute a search warrant. There were four officers present in plain clothes. They were officers Connie and Korac, K-O-R-A-C, Garland and Angus. Mr Charrington's former partner and his child by that former partner were the two residents of 10 Inglis Street. They had moved in days before. Mr Charrington was not a resident at that address. He was there on that day assisting with the moving in. At some stage he had assisted with the assembly of furniture. When police came to the front of the dwelling which was secured, Mr Charrington came to the front door. -- 6 of 32 -- 2122008 D.1 T(3)03/MBP(BRIS) M/T BRIS22 (Andrews DCJ) 1-7 JUDGMENT 1 10 20 30 40 50 60 The warrant is Exhibit 1 in the proceeding below. So far as is relevant, that warrant to Officer Korac provided: "I, a Justice...am satisfied that there are reasonable grounds for suspecting that evidence of the commission of the offence is at the place. Details of place: 10 Inglis Street, Woody Point. This warrant is issued in relation to an offence. That on the 21st day of January 2008 at Clontarf in the State of Queensland, one...Rishworth entered the premises of the Bramble Bay Bowls Club and stole an amount of alcohol...and, further, that on the 23rd day of January 2008...Rishworth entered the premises of the Bramble Bay Bowls Club and stole an amount of alcohol...details of evidence that may be seized under this warrant. A large quantity of alcohol: 15 by 700 millilitre bottle of scotch, 2 by 700 millilitre vodka, a quantity of tequila, a quantity of Kahlua." I note in particular from the warrant matters that will become relevant. The warrant to Police Officer Korac is to seize evidence at 10 Inglis Street Woody Point in relation to an offence committed by Rishworth, but there is no requirement that Rishworth be the owner of the place, nor that he be present on the place, nor that he have any right to occupy the place. The Magistrate having heard the evidence, made findings in relation to the obstruction limited to one paragraph. They were: "His refusal to open the front door and his behaviour up to the point he was arrested by Sergeant Connie delayed, impeded and hindered the police in the execution of the performance of their duty, namely to execute -- 7 of 32 -- 2122008 D.1 T(3)03/MBP(BRIS) M/T BRIS22 (Andrews DCJ) 1-8 JUDGMENT 1 10 20 30 40 50 60 the search warrant pursuant to the Police Powers and Responsibilities Act." Apart from the recording which was made by the police during the execution of their search warrant at 10 Inglis Street, there was some other evidence to be assessed in determining whether there was obstruction. The respondent helpfully drew my attention to certain evidence relating to Mr Charrington's running away from police. Because I am not satisfied beyond reasonable doubt that there was running sufficient to amount to obstruction, I should refer to the evidence and explain why it has failed to satisfy me. The respondent drew my attention to the transcript of the evidence before the Magistrate at page 15, lines 23 to 27, and from the evidence of Officer Korac. But before getting to that passage, to make sense of it, it becomes necessary firstly to refer to the transcript, page 12, lines 50 to 55 and page 13, lines 8 to 10. At page 12 Officer Korac said: "When he disappears out of sight I've got concerns for my own safety, other police officer's safety. I don’t know who the defendant was at that time. I don't know if he's going back inside to arm himself with something, barricade himself in, or basically destroy or conceal anything that might be a commission of an offence or a crime." Then at page 13, about line 7, Officer Korac continued: "Grant Connie has run inside the house after the defendant and then I've followed Grant Connie in." -- 8 of 32 -- 2122008 D.1 T(3)04/MBP(BRIS) M/T BRIS22 (Andrews DCJ) 1-9 JUDGMENT 1 10 20 30 40 50 60 Then at page 15 the Prosecutor asked: "He's run inside followed, closely pursued by Sergeant Grant Connie, you came sometime later, observed him on the bed, he was then led outside and sat down in the lounge room?-- That's correct." The evidence of the running inside seems inconsistent with the tape recording exhibit 2. While the transcript of the tape recording is not in all respects identical with the tape recording - both because sometimes the words don't seem to me to match and sometimes words heard on the tape aren't clear on the tape recording and because sometimes inaudible mutterings on the tape don't appear at all on the transcript - the transcript is reasonably useful as an aid for understanding the inconsistency, for nothing in the first few pages of the transcript which covers the period where the police entered the house via breaking through the screen on the front door, tends to suggest that Mr Charrington ran away at that time. Later in the tape recorded evidence there were exchanges between Mr Charrington and a police officer about the police officer's suspicion that Mr Charrington may have been reaching for a weapon, but I'm not satisfied to the reasonable standard that that is what happened. It seems more likely that Mr Charrington was reaching for a mobile phone even though the police officer may have suspected honestly that perhaps a weapon was being reached for. The fear that officer Korac had that Mr Charrington may -- 9 of 32 -- 2122008 D.1 T(3)04/MBP(BRIS) M/T BRIS22 (Andrews DCJ) 1-10 JUDGMENT 1 10 20 30 40 50 60 perhaps have been running inside to look for a weapon, isn't matched by any evidence that that's what Mr Charrington at any stage did. In fact, there doesn't appear to be any evidence that Mr Charrington ran anywhere, quite apart from the fact that there does not appear to be any evidence that Mr Charrington was reaching at any stage for a weapon or for anything that might have been used as a weapon. The suggestion that he'd been running is also, it seems to me, inconsistent with the tape in the section that can be seen in the transcript of the tape recording at about page 11, starting at about lines 547 and progressing to line 565. It also seems to me to be inconsistent with the evidence of Officer Connie in the transcript of the proceedings before the Magistrate at lines 22 to 35. At transcript of the proceedings below, page 35, there are passages which seem to me to be inconsistent with the notion that police officer Connie ran after Mr Charrington. He said at page 35: "The Defendant was placed into a lounge chair...in the lounge room...a short time later the Defendant has stood up from that chair and approached a bench in the kitchen area which was from where he was sitting to the right of where he was and picked up a mobile phone and commenced ringing somebody. I then made a decision that he was obstructing us and that he needed to be arrested and I arrested the Defendant." Officer Connie was then asked to explain why he came to that conclusion, that is that Mr Charrington was obstructing police, and he answered: "From his demeanour and actions -- 10 of 32 -- 2122008 D.1 T(3)04/MBP(BRIS) M/T BRIS22 (Andrews DCJ) 1-11 JUDGMENT 1 10 20 30 40 50 60 throughout the moment we arrived at the location to the point where he had actually approached the bed and, in my opinion, was going to retrieve some form of weapon. He then again moved about the house and then grabbed his mobile phone which was making - hindering us in the execution of our search warrant." The Prosecutor asked: "You've told the Court that you let him, directed him to sit down on a lounge chair, on a chair somewhere? That's right. Do you recall the words that you used in directing him there? I recall when I tackled him on the rear of the bed that I said 'You're detained. We're executing a search warrant. You need to sit down and cooperate.' Okay? Words to that effect. Okay. So you've - we'll move forward again. You've stated that you arrested him after he - that he stood up and he went to get his phone?-- That's right." The evidence of tackling Mr Charrington raises the reasonable possibility that it was prompted by some conduct on his part that could have been obstruction, but I must be satisfied beyond reasonable doubt and the evidence of Police Officer Connie in that respect does not seem to be linked satisfactorily with any provocative conduct by Mr Charrington. -- 11 of 32 -- 02122008 D.1 T(3)8-9/IRK(BNE) M/T BRIS22 (Andrews DCJ) 1-12 JUDGMENT 1 10 20 30 40 50 60 It is entirely possible that Mr Charrington was tackled by Officer Connie when Officer Connie formed a belief that Mr Charrington may have been reaching for tools on the bed. But about that, I remain insufficiently certain, and the fact that Officer Connie believed that Mr Charrington was reaching for tools on the bed does not establish satisfactorily to my mind that Mr Charrington was in fact was reaching for anything other than his mobile phone, and it does not satisfy me that at the time Mr Charrington had the right intent to hinder or obstruct. I note that the final act which caused Officer Connie to arrest Mr Charrington was Mr Charrington standing and reaching for his mobile phone and note that the phone was not one of the items named in the warrant as an item necessary to be seized. The Magistrate below, having found obstruction, referred to one specific matter and then general matters. The specific matter was the refusal to open the front door. The general matters were Mr Charrington's, "Behaviour up to the point he was arrested by Sergeant Connie". With respect to the general matter of behaviour up to the point he was arrested, I separate that from the refusal to open the front door. As to that general behaviour, I'm not satisfied on the evidence beyond reasonable doubt that there was obstruction with the relevant intent that the respondent concedes was required. The concession by the respondent was not that there was no -- 12 of 32 -- 02122008 D.1 T(3)8-9/IRK(BNE) M/T BRIS22 (Andrews DCJ) 1-13 JUDGMENT 1 10 20 30 40 50 60 obstruction, the concession was that a degree of mens rea was required when hindering. I'm not satisfied about matters after the failure to open the front door. That leads me, however, to the issue of whether there was an offence committed at an earlier time up until about the period where the police forced entry by Officer Connie's shouldering his way through the screen front door. With respect to that I have the advantage of the tape recording which has been played, at least of that incident, at least twice, and a copy of that recording which it was thought might have been better or fuller from the possession of Mr Charrington was also played. I've thus effectively listened about three times. It has been useful. The transcript of that tape recording does have potentially a relevant omission at about line 42. It was submitted to me that at about line 42 on page 2; submitted by Mr Charrington that he said some cooperative words such as, "Just pass it through there", inviting the police officer Korac to pass the search warrant that Mr Korac was holding through some appropriate space. There may have been some other inaudible sections, but the transcript on pages 1, 2 and 3 is so sufficiently close to what I have heard that I regard it as reliable. I should say, however, that at about line 107 it seemed to me that a police officer said, "Okay, call someone", and I see that the Magistrate below has written in: "Voice: call someone", at that point. I've written in the words: "break-in" opposite -- 13 of 32 -- 02122008 D.1 T(3)8-9/IRK(BNE) M/T BRIS22 (Andrews DCJ) 1-14 JUDGMENT 1 10 20 30 40 50 60 line 121 to indicate my impression that I heard the door being, or the screen rather, being forced at about line 120. The words attributed to an unidentified male at lines 56, 60, 64 and 69 and 73 appear to me, beyond reasonable doubt, to be words which would more appropriately have been attributed to Mr Charrington. The transcript relevantly provides relating to this first incident from about page 1 line 27: Korac: "Todd Korac from Redcliffe Crime Unit." Male, who I identify to be Mr Charrington: "Yeah, what do you want?" Korac: "I'm executing a search warrant on your house today mate." Charrington: "What?" Korac: "Just want to open the door for me? I'll explain in a sec. Can you open the door for me, mate?" Charrington: "Can I have a look at that warrant, please?" Korac: "Certainly can, mate. I can't pass it through a screen door, so-----" Charrington said something unidentified which he submitted was, or were words to the effect: "Just pass it through there -- 14 of 32 -- 02122008 D.1 T(3)8-9/IRK(BNE) M/T BRIS22 (Andrews DCJ) 1-15 JUDGMENT 1 10 20 30 40 50 60 then." Korac: "Mate, you open the door or I'll bash the door down, do you understand?" Charrington: "I'm just asking to have a look." Korac: "There is the search warrant, 10 Inglis Street." Officer Connie: "We don't have to show you, just open it, all right? We'll give you a copy." Korac: "10 Inglis Street, Woody Point, mate. There's my badge." Charrington: "Whose name's on the warrant?" Charrington: "I want to know whose name's on the warrant." Korac: "His name is Jared Michael Rishworth." Charrington: "Well, he's moved out." Korac: "Doesn't matter mate, open the door now. Do you understand if you do not open-----" Charrington: "It's the wrong person, kick the door down." Korac: "If I don't-----" -- 15 of 32 -- 02122008 D.1 T(3)8-9/IRK(BNE) M/T BRIS22 (Andrews DCJ) 1-16 JUDGMENT 1 10 20 30 40 50 60 Charrington: "It's - I'm Bradley Raymond Charrington." Korac: "Okay. Then open the door mate so we can come-----" Charrington: "It's - umm, Chloe Windsor lives here." Korac: "Right." Charrington: "They moved out." Korac: "When did they move out?" Charrington: "Umm - we - ah - probably moved in here on Friday just gone." Korac: "No worries." Charrington: "Would you like me to go get the lease? You are not walking in here." Korac: "No, we are walking in here, sir." Then at line 105, Mr Charrington: "Does not live here. You cannot search this place." Korac: "That's not correct at all..." Charrington: "I'm calling someone." -- 16 of 32 -- 02122008 D.1 T(3)8-9/IRK(BNE) M/T BRIS22 (Andrews DCJ) 1-17 JUDGMENT 1 10 20 30 40 50 60 And an unidentifiable police officer said, "Okay, call someone." Another unidentifiable police officer said, "Just break it in." Korac: "Call someone. Can you open the door man, or I'm going to smash your door in." Charrington: "It's - it's for someone else." Unidentified police officer says, "It's about for the house." Korac: "If you're not going to listen then too bad." And it's at about this stage that I deduce the break-in through the screen occurred. HIS HONOUR: In considering whether the offence occurred, I must also consider the possibility of a defence under Section 24 of the Criminal Code; that is, the defence of a mistake of fact. If Mr Charrington obstructed Officer Kovac - Korac rather, in the performance of his duties under an honest and reasonable but mistaken belief that the officer was not a police officer, that is, that he was an impostor or was not acting in the performance of his duties, Mr Charrington would not be criminally responsible for obstructing Officer Korac. A mere mistake is not enough. The mistaken belief must have been both honest and reasonable. An honest belief is one which is genuinely held by Mr Charrington. A reasonable -- 17 of 32 -- 02122008 D.1 T(3)8-9/IRK(BNE) M/T BRIS22 (Andrews DCJ) 1-18 JUDGMENT 1 10 20 30 40 50 60 belief is one that in the circumstances in which Mr Charrington found himself, a reasonable person could also have held. There's no burden on Mr Charrington to prove that he made a mistake of fact. I must be satisfied by the Prosecution beyond reasonable doubt that Mr Charrington did not do so. If the evidence has failed to satisfy me that Mr Charrington did not act under an honest and reasonable mistake of fact, I should find him not guilty. So, if I am satisfied beyond reasonable doubt that: 1) Mr Charrington did not honestly hold the mistaken belief that the police officers were impostors or were not acting in the performance of their duties or, 2) that belief was not reasonable in the circumstances, then I should find the defence of mistake of fact did not apply. The Magistrate found: "The defendant gave evidence that he was being cautious because these people may have been impersonating police. In my opinion there is no honest or reasonable grounds for the defendant to have this belief." I am conscious that the Magistrate has had the advantage of having heard Mr Charrington give evidence before him; I've not had that advantage. I have had, however, the advantage of having Mr Charrington make submissions to me, and his submissions have not been inconsistent with the Magistrate's finding. -- 18 of 32 -- 02122008 D.1 T(3)8-9/IRK(BNE) M/T BRIS22 (Andrews DCJ) 1-19 JUDGMENT 1 10 20 30 40 50 60 It seems to me that a concern by a person with the possibility that there may have been persons impersonating police officers can be distinguished from a belief that there are persons impersonating police officers. Thus it seems to me possible that a person might, upon seeing plain clothes officers, entertain a degree of doubt, at least momentarily or even indeed for quite a time, as to whether they are police officers, and yet still not believe that they are impostors. Of course the burden of excluding honest and reasonable belief remains on the Crown and Mr Charrington bears no burden. The relevant time for having a belief about impostors, if Mr Charrington had one, it seems to me is not when they approached the door or begin to speak, but the relevant necessary time would be at the time of the commission of the acts which are said to constitute the offence. To my mind the relevant acts for me to consider are Mr Charrington's conduct reflected at about lines 69, 89 and 102 of the transcript of the tape recording made by the police officers at the time when they came to execute the warrant. At line 66 Korac said: "Doesn't matter, mate, open the door now. Do you understand, if you do not open-----" and Mr Charrington replied: "It's the wrong person, kick the door down." Then at line 89 Mr Charrington said: "Would you like me to go get the lease? You are not walking in here." Mr Charrington said those things after the police officers had made it clear to him that they wished to walk in in the execution of the warrant. And then at line 102, after an -- 19 of 32 -- 02122008 D.1 T(3)8-9/IRK(BNE) M/T BRIS22 (Andrews DCJ) 1-20 JUDGMENT 1 10 20 30 40 50 60 exchange of views about what the law was, Mr Charrington said: "Does not live here, you cannot search this place." I am persuaded beyond reasonable doubt that at the time when those exchanges occurred Mr Charrington did not honestly believe that the four persons were impostors, and I am persuaded that a reasonable person having been shown the badge, and shown the warrant and having listened to the conversations to that stage would not have reasonably believed that the persons were impostors. A defence of honest and reasonable but mistaken belief requires me to consider a further point. Not simply the issue of whether Mr Charrington believed the officers were impostors at the relevant time, but another element of the offence, that is, whether he believed they were then acting in the performance of their duties for section 790 subsection (1) provides that: "A person must not assault or obstruct a police officer in the performance of the officer's duties." It seems to me that it is conceivable that on the evidence I should consider the issue of with whether Mr Charrington honestly and reasonably believed that while the officers were police officers, they were not then acting in the performance of their duties. I must consider this because I am satisfied that Mr Charrington believed the police officers had no right to exercise or execute the search warrant because Mr Rishworth was named in the warrant. -- 20 of 32 -- 02122008 D.1 T(3)8-9/IRK(BNE) M/T BRIS22 (Andrews DCJ) 1-21 JUDGMENT 1 10 20 30 40 50 60 It seems that Mr Rishworth had been a former occupant of this dwelling, but had certainly not been an occupant of the dwelling since Mr Charrington's former partner had moved in some days before. I am satisfied that Mr Charrington held this belief because he tried, unsuccessfully, to persuade the police officers that they had no entitlement to enter and was trying to convince them that Mr Rishworth was no longer a person who was a lessee. He was trying to convince them that it was his former partner, and that is the mother of his child who was now entitled to occupy the premises, and trying to convince them that they were mistaken. This defence hasn't been raised by Mr Charrington specifically, but he argues this matter without the advantage of a lawyer, and it seems to me that it's an issue that needs to be considered because it's open on the evidence. It wasn't raised by the Magistrate below, but still, it seems proper to consider it. -- 21 of 32 -- 02122008 D.1 T(3)8-9/IRK(BNE) M/T BRIS22 (Andrews DCJ) 1-22 JUDGMENT 1 10 20 30 40 50 60 The respondent submits that Mr Charrington was mistaken at law, that is, that the police officers were entitled to execute the warrant because it was a warrant related to the place, 10 Inglis Street, and I accept that that is so. The respondent submits further that a mistake as to a matter of law is not a mistake as to a matter of fact and the defence at section 24 of the Criminal Code cannot assist Mr Charrington here. I've been referred to Towse -v- Bradley [1985] 14 Australian Criminal Reports 408 and I accept, with respect, that that case, a decision of Chief Justice Blackburn of the Supreme Court of the Australian Capital Territory is authority for the proposition that a mistake as to the powers of police under a warrant is a mistake of law not a mistake of fact. It seems to me that that is the proper way to characterise Mr Charrington's view about the police officer's conduct. Mr Charrington had made a mistake of law. He believed that unless Mr Rishworth resided there the police were powerless to execute the warrant. For another reason I don't regard this defence as applying here, I must consider not simply Mr Charrington's honest belief about the police officer's inability to execute the warrant. If it were to be a defence it must be a reasonable belief in the circumstances. Mr Charrington's belief was one formed without a perusal of the warrant. He simply was told that the warrant did relate to Mr Rishworth. -- 22 of 32 -- 02122008 D.1 T(3)8-9/IRK(BNE) M/T BRIS22 (Andrews DCJ) 1-23 JUDGMENT 1 10 20 30 40 50 60 A reading of the warrant would reveal that neither Mr Rishworth's presence in the dwelling nor his right to occupy it were preconditions for the exercise of the powers given to the police officers. There was no evidence to suggest it was reasonable to hold the hypothetical belief. I do accept, however, that Mr Charrington held the belief that the police officers were not empowered to execute the warrant. I find that Mr Charrington, on three occasions, by his conduct, identified by the conversations I've referred to, did not open the door when he knew that was what was required of him. I find that it was a deliberate decision by him. His deliberate decision not to open the door, it seems to me, did obstruct the police in the performance of their duties. More particularly, it obstructed Officer Korac in the performance of the duty he had to execute the warrant to search 10 Inglis Street. Mr Charrington had a number of other bases for appealing. I have before me a paraphrasing of Mr Charrington's grounds of appeal. The paraphrasing emerges in the outline of the respondents. It seems to me that it does no injustice to Mr Charrington for abbreviating his grounds of appeal and it's a useful paraphrasing because it groups Mr Charrington's complaints into logical groupings. One was a series of complaints relating to procedural unfairness. Mr Charrington appealed on the ground that the -- 23 of 32 -- 02122008 D.1 T(3)8-9/IRK(BNE) M/T BRIS22 (Andrews DCJ) 1-24 JUDGMENT 1 10 20 30 40 50 60 Magistrate did not allow him to cross-examine all the police witnesses. In particular, one witness, who was alleged by Mr Charrington, to have been carrying a large green duffel bag. Another ground was that the Magistrate should not have allowed the transcript of the tape-recording to be used at the trial as it contains errors and, in Mr Charrington's view, the errors tended to favour the police and to create the impression that Mr Charrington may have been lacking credibility. Another was that the Magistrate would not allow Mr Charrington to question police procedure. That the Magistrate did not allow Mr Charrington to call his landlord to prove that Mr Charrington did not live at 10 Inglis Street. Another that the Magistrate should not have permitted the trial to proceed when Mr Charrington had received the brief of evidence only shortly before the hearing and was not able to obtain proper legal advice on that recently received brief of evidence. With respect to evidentiary matters, Mr Charrington appealed on the ground that the Magistrate should have taken into account that he didn't live at the house and that he couldn't have granted access to the police because he didn't possess the keys and that he didn't prevent the resident, that is, his former partner, from opening the door and that the resident of the house was not charged as well. He relied on the Magistrate's overlooking the fact that the police didn't give him sufficient time to read the warrant and refused to show it to him when they were required to provide him with a copy. -- 24 of 32 -- 02122008 D.1 T(3)8-9/IRK(BNE) M/T BRIS22 (Andrews DCJ) 1-25 JUDGMENT 1 10 20 30 40 50 60 He argues, he was justified in not allowing them entry when he had to consider the safety of his family as they may have been impersonating police. He said that the Magistrate overlooked that the previous tenants were criminals in prison and the police should have known that. He submitted that the Magistrate found that his witness was untruthful but there was no evidence of that produced by the police. With respect to matters of procedural fairness the respondent has submitted to me and the appellant does not dispute that the prosecution supplied a brief of evidence in relation to a related but different charge two weeks before the hearing. That brief was substantially the same in that it had four police statements. It did, however, omit a statement of Officer Korac and the respondent concedes that was provided just prior to the hearing. However, the statement of Korac reflects the contents of the tape-recording which was supplied to Mr Charrington with the rest of the brief two weeks prior to the hearing. The issue, of course, is whether these delays caused such prejudice to Mr Charrington as to render it unfair. The transcript of the proceedings below, at page 5, lines 32 to 40, have a bearing. The Magistrate asked, "Do you want me to stand down so you can read it now?" and Mr Charrington said, "No". At about line 45, Mr Charrington was asked by the Bench, "Are you making an application for an adjournment then?" and he said, "No". -- 25 of 32 -- 02122008 D.1 T(3)8-9/IRK(BNE) M/T BRIS22 (Andrews DCJ) 1-26 JUDGMENT 1 10 20 30 40 50 60 I'm not persuaded that such disadvantage as Mr Charrington had for not receiving all of the evidence at one time two weeks prior to the hearing was such a disadvantage as to cause unfairness of the kind which would persuade me that the verdict was unsafe or to persuade me that the trial was unfair. Mr Charrington submitted he was not able to obtain legal advice as he didn't have the full brief of evidence. I don't accept that he has a right to legal representation. I've been referred to Dietrich -v- The Queen [1992] 177 Commonwealth Law Reports 292 at 311. The issue seems to be whether Mr Charrington's trial was unfair and his lack of representation and his lack of an opportunity to take his brief to Legal Aid at Caboolture and have it considered by them are relevant matters to consider but having regard to the offence Mr Charrington's own intelligence and confidence I do not regard there to have been unfairness in this case. It's been submitted to me and I accept that a relevant matter is that Mr Charrington did not make an application to adjourn and it was open to the Magistrate to proceed there being no apparent prejudice to Mr Charrington. Mr Charrington was concerned the two police officers were not called. Only Officers Connie and Korac were called by the prosecution. Mr Charrington was surprised by this failure and the circumstances relating to it appear on page 51 of the transcript of the proceedings below. The Prosecutor mentioned -- 26 of 32 -- 02122008 D.1 T(3)8-9/IRK(BNE) M/T BRIS22 (Andrews DCJ) 1-27 JUDGMENT 1 10 20 30 40 50 60 that there were two remaining witnesses but mentioned in open Court his view that unless Mr Charring ton had an issue he didn't feel it necessary to call them and that it would save the Court time. He expressed the view they'd simply be repeating evidence and nothing on that page would have alerted either the Court or Sergeant Heasley, the Prosecutor, that Mr Charrington wanted the Prosecutor to call those witnesses. Reading that page it seems clear to me that the Prosecutor was indicating that he would call them if Mr Charrington asked him to. Mr Charrington submitted to me today that during the luncheon adjournment which followed immediately after this he had no conversation with the Prosecutor. If there was any unfairness to Mr Charrington it was not unfairness of which he complained at the time. It would be inappropriate for him, after conviction, to raise this for the first time on appeal. However, I am not satisfied that there was unfairness as a result for this reason; that Mr Charrington wished to cross- examine those police officers for the purpose of showing that the police evidence was not credible because there were inconsistencies between the evidence of police officers and between their statements and what appears in the transcript. -- 27 of 32 -- 02122008 D.1 T(3)10-11/RAH(BNE) M/T BRIS22 (Andrews DCJ) 1-28 1 10 20 30 40 50 60 However, it seems to me that the evidence that supports a conviction is confined to the evidence of what appears on the tape-recording and the evidence of the police officers has not in fact been the basis upon which I find the offence established. There is a complaint that the Magistrate would not allow Mr Charrington to question police procedure. At one point the Magistrate did tell Mr Charrington, "Keep your comments to yourself, Mr Charrington. Unless you're an expert on police procedure, then keep them to yourself and just make - ask questions please." This appears in the transcript at page 44, lines 35 to 38. It is common practice for advocates, including self- represented persons, to be asked to keep their comments until address and not to make them at the time that they examine or cross-examine witnesses. I accept that the Magistrate's interventions were only to allow witnesses to answer and to prevent Mr Charrington from interrupting the course of an answer. That is common for Courts to do, even with professional advocates who, through impetuosity, tend to ask another question before a witness's answer is complete. I don't regard it as being a basis for appeal. -- 28 of 32 -- 02122008 D.1 T(3)10-11/RAH(BNE) M/T BRIS22 (Andrews DCJ) 1-29 1 10 20 30 40 50 60 It does not, and has not, affected my conclusions about whether the offence is established by the evidence I heard on the tape-recordings. Another ground was that it was argued by Mr Charrington, early in the proceedings, that the transcript of the tape-recording, made by the police officers, contained errors. The Magistrate appears to have regarded that as correct. It is orthodox for Courts to treat transcripts of a tape-recording simply as an aid, and not as the evidence itself, and the Magistrate appears to have treated the recording as the evidence. In any event I regard the recording as the evidence, rather than the transcript, which is no more than an aid. Mr Charrington complained that he was prevented from calling a witness, namely the landlord. That would be a ground for appeal if it were important. However, the issue became the subject of some exchanges between the prosecutor and the Magistrate and Mr Charrington. It appears, in the transcript below, page 84, about lines 5 to 30. It seems clear to me that Mr Charrington wished to call the landlord so as to have evidence before the Court to make it crystal clear he did not reside at those premises. Such evidence may have assisted him with his other arguments, one of which was that he wasn't the holder of the keys, he wasn't the person able to unlock the front screen door. -- 29 of 32 -- 02122008 D.1 T(3)10-11/RAH(BNE) M/T BRIS22 (Andrews DCJ) 1-30 1 10 20 30 40 50 60 However, that point was one the Magistrate seems to have understood. It was conceded by the prosecutor that Mr Charrington did not indicate 10 Inglis Street as his address. The issue of whether Mr Charrington was the owner of the keys is one I can consider, and indeed have, in determining that the charge was made out. For the direction, "to open the door", was met by conduct from Mr Charrington which was not based upon Mr Charrington's failure to be the possessor of the keys. It seems to me Mr Charrington was deliberately indicating to the police officers that he was seeking to obstruct them in their desire to enter the premises, and that was not because he was physically incapable of doing so, but rather because he was electing to do so based upon his belief that they had no right to enter as Mr Rishworth did not reside there. There was a ground that he did not have sufficient time to read the warrant. When the facts are explored, as emerge in the first minutes of the recording, it can be seen that - or it can be heard that Mr Charrington was requesting to see the warrant and was told he would be given a copy. The ability to - it does not appear that at the time that the offence occurred, that is at the time of the three acts of conduct - any one of which I regard as amounting to obstruction, that there was any desire by Mr Charrington, at the time, to read either the warrant or a copy of it. -- 30 of 32 -- 02122008 D.1 T(3)10-11/RAH(BNE) M/T BRIS22 (Andrews DCJ) 1-31 1 10 20 30 40 50 60 At the time of the three conversations where Mr Charrington indicated that he would not permit entry, it seems to me that the police were then acting in the course of their duty when requesting entry and that an argument, about whether a short time before Mr Charrington had not had an opportunity to read the warrant, does not prevent a finding that the police were acting in the performance of their duty when requesting the door to be opened. There was a submission that the warrant was invalid, or inaccurate. It seems to have complied with formal requirements. It was signed by a Justice of the Peace, provided particulars of an offence and a list of items that might be seized and a date and time; an end date in particular. I don't regard the challenge to the validity of the warrant as having any merit. There was a submission that there was no evidence from the police justifying the Magistrate's finding that the witness, Chloe Windsor, was not truthful. The Magistrate was entitled to make findings as to reliability, with respect to witnesses he heard. He, in fact, did not say that the witness was untruthful, but did say she was not a very reliable witness, that she was vague at times and reluctant and or evasive in answering some questions put to her in cross-examination. -- 31 of 32 -- 02122008 D.1 T(3)10-11/RAH(BNE) M/T BRIS22 (Andrews DCJ) 1-32 1 10 20 30 40 50 60 Her evidence is not evidence that seems to have been relied upon by the Magistrate, and it is not evidence relied upon by me on this re-hearing. That is, I have not needed to have regard to it to be satisfied beyond reasonable doubt of the charge as a result of the tape-recording. In the circumstances, I dismiss the appeal and confirm the order appealed against. Are there any matters arising - any other orders? MS OVERELL: No, your Honour. Thank you. ----- -- 32 of 32 --