Beeche v Trapnell [2005] QDC 288

DISTRICT COURT OF QUEENSLAND CITATION: Beeche - v – Trapnell [2005] QDC 288 PARTIES: BEECHE, Phillip James Appellant Against TRAPNELL, Michael Leo Respondent FILE NO: 29/05 PROCEEDINGS: Appeal from Magistrates court. DELIVERED ON: 4 October 2005 DELIVERED AT: Townsville HEARING DATES: 27 & 29 September 2005 JUDGE: C.F Wall Q.C ORDERS: Appeal allowed with costs. Conviction and sentence set aside. Matter remitted to the Townsville Magistrates Court for re-hearing before a different Magistrate. CATCHWORDS: APPEAL – character evidence – trial - failure by the magistrate to consider or properly consider evidence of appl’s good character. Legislation referred to: Police Service Administration Act 1990 s.10.19 (d)(i) Cases referred to: Attwood v The Queen (1960) 102 CLR 353 (CON) Crowley v Wills (1992) 110 FLR 194 (FAA) Melbourne v The Queen (1999) 198 CLR 1 (FAA) Simic v The Queen (1980) 144 CLR 319 (CON) The Queen v Falealili (1996) 3 NZLR 664 (CON) Properjohn v Gaughan (1998) ACTSC 26 (FAA) COUNSEL: Mr H. Walters for the Appellant Mr A. Lowrie for the Respondent SOLICITORS: Arthur Browne and Associates for the Appellant Queensland Director of Public Prosecutions for the Respondent -- 1 of 12 -- 2 JUDGMENT HIS HONOUR: This is an appeal by the appellant against his conviction in the Magistrates Court at Townsville on the 5th of January 2005 of an offence against section 10.19(d)(i) of the Police Service Administration Act 1990. The charge alleged that on the 5th of September 2003 at Townsville the appellant, not being an officer entitled to do so, assumed the designation of an officer, namely senior sergeant of police. The case against the appellant was summarised in the following way by the Magistrate at the commencement of her decision: "It is alleged that on 5 September 2003 the defendant, Philip Beeche, informed Murray Harrison, a MacCaffertys Greyhound coach booking staff person, that he was a senior sergeant of police from Charters Towers, and at the same time flipped open a black leather wallet to display what appeared to be a police badge. The purpose of the assumption of rank is alleged to have been to obtain a benefit, namely to put pressure on the booking staff to provide preferential seating on the coach. The defendant is in fact a senior police liaison officer. He has been a PLO for 8 years. He is undergoing treatment for cancer, and was travelling to Brisbane for this purpose. Travel arrangements had been made for him by staff at the Charters Towers Hospital. When he arrived at the bus terminal, with his ticket, he was told that the bus company had no booking for him and that he had not been allocated a seat on the bus. This case is about a single issue: did the defendant say he was a senior sergeant of police. The only person who says he heard the words spoken is Mr Harrison. Mr Beeche denies saying he was a senior sergeant, and denies that he had on his person, or displayed, a police identification badge in a folding wallet." The prosecution called the respondent (who interviewed the appellant upon his return to Townsville on the 11th of September 2003 and recorded the interview on a video tape), Murray Harrison (to whom the appellant was alleged to have -- 2 of 12 -- 3 JUDGMENT identified himself as a senior sergeant of police from Charters Towers), Caroline Massey (a bus company employee to whom the appellant first spoke at the bus terminal), Leslie Byles (who drove the bus carrying the appellant from Townsville to Rockhampton and said he saw a flip-over wallet with a badge tucked into the appellant's belt), and Robert Dare (who drove the bus from Rockhampton and said the appellant produced a wallet with a badge, south of Gympie). The appellant gave evidence and denied telling Harrison he was a senior sergeant of police from Charters Towers and denied having a wallet such as was described by Harrison, Byles and Dare. He said he probably said to Harrison, "I'm Phil Beeche. I'm a senior police liaison officer at Charter Towers Police Station." He said he had a Police Credit Union key ring. In his video-taped interview with the respondent he said that when speaking to Harrison and perhaps because Harrison saw his key ring and asked if he was with the police, he said, "Yeah, Charters Towers police, Police Liaison Officer." In the interview he said he did not say anything about being a senior sergeant from Charters Towers. He said he never mentioned anything about that. The appellant also called two witnesses. The first was Violet Thompson, who drove him from Charters Towers to Townsville so he could catch the bus. She did not add much as she did not hear the conversation between the appellant and Harrison. The second witness called by the appellant was Dennis Wheildon (referred to by the Magistrate as "Wheedon"). He retired from -- 3 of 12 -- 4 JUDGMENT the Queensland Police Service about four years earlier when he was officer in charge, as a senior sergeant, of the Charters Towers Police Station. He gave this evidence: "Do you know Phillip Beeche?-- I do. How long have you known Phillip Beeche?-- It'd be nine or 10 years. In what capacity have you known him?-- Firstly as a - he was a - a police liaison officer - a PLO at Boulia and then he transferred to Charters Towers as a PLO and he was later promoted to senior PLO. When you say, 'Senior PLO', is that a senior police liaison officer?-- Yeah. That is correct, Mr Bassett. Now, do you know other people who know Mr Beeche?-- Oh yes, many. Amongst those other people that you know who know Mr Beeche, what is his reputation?-- Well, he enjoys very high standing in the community. Excellent conduct and character. High integrity and honesty." Mr Wheildon was not cross-examined at all on this evidence, rather cross-examination was limited to the extent of his own dealings with the appellant at work and his own integrity as officer in charge of the Charters Towers Police Station. Mr Lowrie, who appeared for the respondent, agreed that this was so and was not able to "point to anything where that suggestion about his character in the general community is specifically challenged". The importance of such evidence is twofold: it bolsters the defendant's credibility as a man of good character is entitled to claim; and it is relevant that, as a man of good character, he is less likely to commit a crime. In this latter sense it is evidence in the cause; it is put before the Court to induce the Magistrate to consider whether the Magistrate thinks it is -- 4 of 12 -- 5 JUDGMENT likely that a person with such a character would have committed the offence. See Cross on Evidence (Australian edition) paragraphs 19125, 19130 and 19135, Attwood v. The Queen (1960) 102 CLR 353 at 359, Crowley v. Wills (1992) 110 FLR 194 at 200 to 201, and Melbourne v. The Queen (1999) 198 CLR 1. In the latter case, which involved directions to a jury, McHugh J said at page 14: "In my opinion, notwithstanding the rules laid down in these English and New Zealand cases, this Court should not depart from the rule that a judge is not obliged to direct the jury concerning the accused's good character. The preferable position is that the trial judge must retain a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both (a) the accused's propensity to commit the crime charged; and (b) the accused's credibility." Gummow and Hayne JJ agreed with this approach. The majority in Melbourne followed an earlier decision of the High Court of Australia, Simic v. The Queen (1980) 144 CLR 319 at 333, where it was said, "No doubt, speaking generally, if such a direction is asked for it would be wise to give it." The judgment of Thomas J in The Queen v. Falealili (1996) 3 NZLR 664, adopted by Gummow J at pages 29 to 30, describes the nature and extent of the discretion to give a direction on evidence of good character. It is clear from the judgments in Melbourne that in the present case the Magistrate first had a discretion to exercise. In exercising that discretion it was incumbent upon the Magistrate to evaluate the probative significance of the evidence of good character given by Mr Wheildon in relation to -- 5 of 12 -- 6 JUDGMENT both (a) the appellant's propensity to commit the offence charged; and (b) the appellant's credibility. In the circumstances of this case the evidence was clearly relevant to both of these issues. Both the prosecution and the defence in their final addresses emphasised the importance of credibility in deciding the case. The Prosecutor said: "In relation to this matter it's clear that credibility is the main issue that your Honour is here to make a decision on. And it is my submission these ongoing consistent statements by the witnesses certainly brings strength to the prosecution case and weakens the defendant's credibility. So it's certainly my submission the prosecution witnesses certainly bring the defendant's credibility into question." Mr Bassett of counsel, who appeared for the appellant at trial, squarely raised for consideration by the Magistrate the evidence of the appellant's good character. He submitted: "The importance of the evidence of good character in my submission, is that it goes to two things: it goes to first whether Mr Beeche - it goes to his credit so that - and it can be used this way that Mr Beeche, when he swore to tell the truth, is a man who is likely to have told the truth. But secondly it is also evidence, if your Honour chooses to act on it, that he is a man who is unlikely to have committed the offence and it can have particular significance in a case such as this one where everything depends upon a very short statement or representation made to a person who was asked to recall what had happened some days after that event and that person not making any complaint, that event occurring during a very short time frame." The Prosecutor responded as follows: -- 6 of 12 -- 7 JUDGMENT "In relation to the character evidence given by Mr Wheildon. Mr Wheildon's retired some four year ago, so it's certainly some time ago since he has seen the defendant working. Furthermore, my learned friend has said the character evidence shows the defendant's likelihood to tell the truth and his likelihood to have committed the offence, but your Honour has also heard in cross-examination that whilst he was officer in charge of that station, there were a number of issues at that station involving an inspector to which the witness has agreed had attended the station and a number of staff were transferred. Yet even as OC the character witness couldn't even state what that was all about. So, it's certainly my submission, if he doesn't know what's going on in the station, it's a long bow to draw that this character witness has any real weight in assessing the defendant's truthfulness or likeliness to commit offences." Whilst conceding that the evidence should be considered by the Magistrate, the Prosecutor does not really appear to have understood its significance and seems to have approached the evidence as if it was the personal opinion of Mr Wheildon (to which he submitted little weight should be attached) rather than the opinion of other members of the community. Unfortunately the Magistrate does not appear to have given any consideration at all to the evidence of good character. Her decision consists of three parts - introduction, evidence and findings. I have already set out most of the introductory part of the decision. In the part dealing with the evidence she first summarises the evidence of the prosecution witnesses, but does not refer at all to the video-taped interview between the respondent and the appellant. She then said: "The defence called two witnesses, the defendant Mr Beeche and the person who had driven him from Charters Towers to Townsville, Ms Violet Thompson." -- 7 of 12 -- 8 JUDGMENT In fact, the defence called three witnesses, the appellant, Miss Thompson and Mr Wheildon. The Magistrate then summarised the evidence of the appellant and Miss Thompson and concluded the "evidence" part of her decision by saying: "Dennis Wheedon (sic), a former senior sergeant of police at Charters Towers provided a character reference for Mr Beeche." This is the only reference to Mr Wheildon's evidence. His evidence was more than a "character reference" and it seems to me that his evidence was not considered at all, either as to the appellant's propensity to commit the offence charged or as to the appellant's credibility. As in Crowley v. Wills (supra) the appellant's defence was based on his denial to investigating police at the first opportunity, his sworn evidence and his previous good character. Only the second of these issues was considered by the Magistrate here. In Crowley Gallop J said at page 201 that in a case such as this the Magistrate must apply "the principles which must be applied in the case of a person of good character" and it must be "apparent or sufficiently so" from the reasons for judgment that the Magistrate did so. It is not so apparent here; in fact, the principles were not considered at all; the discretion was not exercised and the evidence appears, with respect, to have been relegated to some amorphous reference category. Its status as evidence was -- 8 of 12 -- 9 JUDGMENT clearly not recognised, or if it was it was devalued and not understood as such. Mr Lowrie conceded that the Magistrate seems to have put the evidence of Mr Wheildon "in a different category other than going towards the proof of the matter." That concession was properly made. In Properjohn v. Gaughan, unreported, ACT Supreme Court, 17th of April 1998 (1998) ACTSC 26, Gallop J said at paragraph 21: "This was, as the Magistrate observed, a case about credibility. If the Magistrate did not take account of the appellant's good character which had been raised, and in his reasons he does not say that he did, there was in my opinion, clear error." That, with respect, sums up the position here. The impression I get from reading the Magistrate's decision is that she also ignored completely or overlooked the video-taped interview with the appellant and its relevance to the defence case. I appreciate the submission made by Mr Lowrie that some of the statements made by the appellant during the interview are arguably inconsistent with parts of his evidence and the conduct of his defence, but the fact remains that the Magistrate did not consider at all this part of the evidence or the defence argument that denials consistent with the appellant's evidence which were then made should be considered as supporting his credibility as a witness. -- 9 of 12 -- 10 JUDGMENT The Magistrate recognised that no one other than Harrison heard the appellant say "I'm a senior sergeant of police from Charters Towers" and that it was important, in view of the appellant's evidence that he did not say those words, to consider whether Harrison may have been mistaken and whether in fact the words used were, "I'm a senior Police Liaison Officer from Charters Towers", or words to that effect. She recognised this as a credibility issue. In resolving this issue the Magistrate referred to and relied upon "the consistency of the accounts" by Harrison, Byles and Dare of display by the appellant of a badge contained in a wallet as against the appellant's denial of having, producing or displaying such an item. This, the Magistrate said, brought the appellant's credibility into question. Notwithstanding that the evidence of Byles and Dare about this related to incidents occurring well after the time of the offence involving Harrison, their evidence was clearly relevant to the appellant's credibility. What the Magistrate then failed to do was consider, on the other side of the scales, the evidence as to the appellant's good character and the consistency of his own statements or denials. The character evidence was, as I have said, uncontested, and was relevant to the two issues I have already mentioned. That evidence was also relevant to the conflict between the prosecution witnesses and the appellant in relation to the display of the wallet and badge. -- 10 of 12 -- 11 JUDGMENT The obligation of the Magistrate here was to consider all of the evidence, including the character evidence, in relation in particular to whether the appellant produced or displayed a wallet containing a badge to Harrison (and to Byles and Dare) and even if he did whether he said to Harrison the words attributed to him and which formed the basis of the charge against him. The Magistrate erred in not considering the character evidence at all in relation to these issues. I have not seen or heard the witnesses and accordingly I am unable to conclude that had the character evidence been considered the result would have been the same; it may have been, but I cannot say. In the circumstances the appeal will be allowed and the conviction and sentence of the appellant set aside. The matter will be remitted to the Magistrates Court at Townsville for rehearing before a different Magistrate. ... HIS HONOUR: I give the appellant leave to add as a ground of appeal a ground in the following terms: "The Magistrate failed to consider or properly consider the evidence of good character given by Dennis Wheildon". ... -- 11 of 12 -- 12 JUDGMENT HIS HONOUR: I order that the respondent pay the appellant's costs of the appeal, to be assessed on the standard basis unless agreed. I adjourn for further argument at 10 a.m. on Thursday the 6th of October next the appellant's application that the respondent pay his costs of the hearing in the Magistrates Court. ... ----- -- 12 of 12 --