Condon v Queensland Police Service [2002] QDC 163

DISTRICT COURT OF QUEENSLAND CITATION: Peter Sydney Condon v Queensland Police Service [2002] QDC 163 PARTIES: PETER SYDNEY CONDON Appellant v QUEENSLAND POLICE SERVICE Respondent FILE NO/S: 1070/ 2001 DIVISION: District Court PROCEEDING: Appeal ORIGINATING COURT: District Court Southport DELIVERED ON: 19 Feb 2002 12 March 2002 DELIVERED AT: Southport HEARING DATE: 15 Jan 2002 JUDGE: Alan Wilson SC, DCJ ORDER: Appeal dismissed CATCHWORDS: APPEAL AND NEW TRIAL – DISCRETION – SELF REPRESENTED LITIGANTS Court’s obligation to self represented litigants. Dietrich v R (1992) 177 CLR 292, considered. Morton v Mitchell Products (1996) 828 FCA 1, discussed. APPEAL AND NEW TRIAL – FRESH EVIDENCE Fresh evidence – whether allowed. JUSTICES – APPEAL FROM Appeal from Magistrate – whether fair trial before Magistrate. Schneider v Curtis (1967) Qd R 301, followed. COUNSEL: Appellant in person Mr G Churchill for the Respondent SOLICITORS: Appellant for himself Director of Public Prosecutions -- 1 of 14 -- -- 2 of 14 -- DISTRICT COURT OF QUEENSLAND SOUTHPORT No: 1070 of 2001 PETER SYDNEY CONDON Appellant v QUEENSLAND POLICE SERVICE Respondent REASONS FOR JUDGMENT – ALAN WILSON SC DCJ (Delivered the 19th of February 2002) [1] This is an appeal against the appellant’s conviction before a Magistrate at Southport on 27 September 2001 of two offences of failing to provide a specimen for breath analysis brought under s80, Transport Operations (Road Use Management) Act 1995. Initially Mr Condon was also charged with driving under the influence of liquor, but the prosecution offered no evidence on that charge. A summary trial was conducted before Mr Wilkie, Stipendiary Magistrate, on 27 September. A police officer appeared for the prosecution, and the defendant conducted his own case. [2] The appeal record consists of the transcript of proceedings before the Magistrate; the appellant’s three (3) Notices of Appeal; his two (2) “Outlines of Argument”; and, the respondent’s Outline of Argument. The appellant’s documents are diffuse, and -- 3 of 14 -- 2 confusing. The three documents filed as Notices of Appeal contain a variety of allegations which can be summarised as contentions that: (a) The police witnesses lied under oath and the Magistrate erred in accepting the credibility of those witnesses; and, their evidence was contradictory and illogical; (b) The Magistrate wrongly refused to accept as relevant videotape evidence the appellant said would show he was assaulted by police while in custody at Southport; (c) Crown witnesses should have been subjected to lie detector tests. At an early time in the appeal hearing the appellant was asked to state his grounds of appeal. He agreed that he relied upon the first two, and said he would now prefer that a more modern form of polygraph testing, of which he had now heard, be used upon police witnesses. Upon being invited to nominate any other grounds of appeal, he applied for leave to tender additional documents. Despite prolonged discussion with him, it was difficult to determine the nature of his argument for receipt of this further evidence. He said the documents were comprised of diary notes of phone conversations, and correspondence, with officers of the Premier’s Department, the Police Department, the CJC, and the Governor General. The appellant said these documents would indicate how his every avenue of enquiry had been blocked and thwarted, and implied a conspiracy against him. He initially appeared to concede these documents were available for production to the Magistrate and that he had determined not to tender them for tactical -- 4 of 14 -- 3 reasons because, at the hearing, he formed the view at the end of the police evidence that the Magistrate must disbelieve the police witnesses but, later, he seemed to resile from that concession and to suggest he was, rather, confused at the end of the Crown case and concluded that, although the police had lied, it would be hopeless for him to call evidence to prove those lies, or rebut the police witnesses. [3] The police case was, in summary, that at about 11 p.m. on 14 July 2001 a marked police vehicle containing Senior Sergeant Charles Sanders and Sergeant Giles intercepted a white Honda Prelude driven by the appellant on the north-bound lanes of the Pacific Motorway in the Nerang/Mudgeeraba area. Sergeant Sanders gave evidence that he approached the appellant’s vehicle, noted he was the sole occupant, and he appeared to be intoxicated. Further assistance was called for and about 10 minutes later another vehicle containing Constable Di Pietra and Sergeant Glaister arrived. Their evidence was that Constable Di Pietra assembled the road-side breath test unit and gave a direction to the appellant to supply a specimen of his breath. They said that instead of blowing on the instrument, he sucked it. He was provided with further instructions about supplying a sample but continued to suck on the instrument. He was issued three requests but refused to cooperate with the police. He was then taken to Broadbeach Police Station where a series of questions were asked of him which he answered in an uncooperative, and occasionally aggressive and abusive manner. He was then required to provide a sample of breath for a breath analysing machine and refused, twice, to comply with that direction. That incident is recorded as the second charge. He was then taken to -- 5 of 14 -- 4 Southport watch-house and placed in a padded cell. He alleges he was assaulted by police there. [4] The transcript shows the evidence adduced by the Crown at trial was consistent with this outline of facts. The appellant, despite an attempted close analysis of the transcript contained in the second document of his called an “Outline of Argument”, has not illustrated any significant or troubling discrepancy in the evidence of the three police officers who appeared in the Crown case. He was offered the opportunity to, and did cross-examine each of them at the hearing. [5] The Magistrate acknowledged, as the transcripts show, that the appellant had put the credibility of the Crown witnesses in issue at the trial, but he accepted those witnesses as truthful and honest. He was obliged to make an assessment of their credibility: Purcell v Vernados (1997) 1 Qd R 317. The appellant was allowed considerable leeway in cross- examination and, on the face of it, ample opportunity to put his case to the Crown witnesses in whatever manner he chose - including, as the transcript shows, direct accusations that they had lied and/or were lying, and/or were guilty of perjury, or treason. [6] I am not persuaded anything in the police evidence, or the appellant’s case illustrates any error on the learned Magistrate’s part in the conclusions he reached about credit. [7] As to the second ground, the appellant said (transcript, p 25, l 40): -- 6 of 14 -- 5 “I would like an opportunity to extract out of the CJC, or whoever has got it, at this point in time, the tape from the watch-house and have that undergo forensics because I can guarantee it’s been doctored.” The Magistrate replied to this request in terms that the appellant knew the matter had been set down for hearing before him that day, and if he had wished to subpoena document or videos he should have done so earlier, and an adjournment would not be allowed. Later, at about p 25, l 57, the Magistrate said: “Anything that happened in the police watch-house is subsequent to the offences that you’re committed here today. They’re issues that can be heard and determined by the CJC if there is a problem in the watch-house. I am not concerned about it..” The balance of the transcript, and statements the appellant made at the hearing of the appeal suggest he wished to locate and produce evidence which would show an actual assault upon him and, hence, that police witnesses had lied in denying he was assaulted by Constable Di Pietra at Southport watch-house. The alleged assault was denied by Di Pietra, and also by Sergeant Glaister. There was no evidence before the Magistrate that any film of the appellant, or the police officers at either Broadbeach Police Station or Southport existed. [8] Sections 4 and 222 of the Justices Act 1886 define the term “Order” to mean an order disposing of a complaint itself, and not an order upon an application made during the course of proceedings (e.g., a ruling about evidence, or an interim application): Schneider v Curtis (1967) Qd R 301; The Commissioners of the State Savings Bank of Victoria v Rogers Bros Motor Cycle Agency Pty Ltd (1954) VLR 149. It appears the learned Magistrate’s ruling is not, then, a competent ground of appeal. -- 7 of 14 -- 6 [9] As to the third ground, all of the Crown witnesses, during cross-examination, signified their willingness to be subjected to lie detector tests. The appellant says these (or, he submits, more modern and reliable tests) should have been carried out and their results admitted as fresh evidence in this appeal. Putting aside, for the moment, the provisions of s 223(2) of the Justices Act (which permits a party to adduce fresh, additional or substantiated evidence only if the Court is satisfied there are special grounds for permitting that course) evidence of tests of these kinds is, generally, inadmissible: Raymond George Murray (1982) 7 A Crim R 48, on the basis that the scientific premise upon which they are said to be based has not been proven in any Court in Australia. The appellant also contends that he made an application to the Court to introduce lie detector evidence (p 6, 11 30-41) but that passage does not reveal such an application. The appellant encounters the same difficulty in appealing the ruling as he does in respect of the previous grounds, in light of the authorities cited earlier. In any event, for reasons which follow, I was not persuaded these rulings were, in the circumstances unjust, or so procedurally unfair as to cast doubt upon the propriety of the trial proceedings, or the result. [10] At the appeal hearing the appellant again sought to adjourn the matter on two occasions, for different reasons. The first was to enable him to seek legal advice because, he said, he thought the hearing (on 15 January 2002) was simply another mention. However, the transcript of proceedings on 14 December 2001 before his Honour Judge Newton shows (at pp 3-4) that his Honour clearly told the appellant the matter would be set down for hearing on 15 January and the appellant himself said (p 4, l 7): -- 8 of 14 -- 7 “So the procedure then is that the argument for appeal is then heard…before the Judge.” His Honour replied in the affirmative. On 7 January 2002 the Crown Prosecutor wrote to the appellant, sending out a copy of the respondent’s Outline of Argument and list of authorities, in a letter which said: “The matter has been listed for hearing in the District Court at Southport not before 11.30 a.m. on Tuesday 15 January 2002.” In those circumstances the first application was refused. [11] The second arose from the appellant’s claim that he had only discovered, on 11 January 2002, that the Pacific Motorway might be monitored by video cameras, and he wished to obtain film of his detention on the highway which would show, he said, that it occurred at a place different from that alleged by the police, and in quite different circumstances. He was unable, however, to say whether or not a camera was located or operative in the area where he said he was detained, or whether film existed. He had not made any inquiries about those matters, he said, before the appeal hearing. [12] The transcript of the proceedings before the learned Magistrate, the three Notices of Appeal and two “Outlines of Argument”, and submissions and statements made by the appellant on appeal all show that he consistently fails, or refuses, to direct his attention to the nature of the evidence presented in support of the charges against him, and the evidence he might attempt to obtain to rebut those charges; and, that rather than take steps to identify and obtain evidence he, instead, embarks upon wide and diffuse communications with a variety of persons and authorities alleging injustice and improper -- 9 of 14 -- 8 police behaviour, and demanding the charges be dropped, or his conviction quashed. When he does not receive what he believes to be a satisfactory response or outcome, he alleges (either directly or by inference) a conspiracy against him. [13] He did not have legal representation before the Magistrate, or at the appeal. He said, at the appeal hearing, that he had applied for legal aid, but been refused because aid is not granted for “traffic matters”. Ultimately, I was concerned only that the learned Magistrate had not, apparently, offered him the opportunity to apply for an adjournment on the combined grounds that he wished to issue subpoenas for, e.g., the watch-house surveillance tape and, perhaps, medical evidence which he implied could be obtained from doctors he had seen after the alleged assault. Arguably, a self-represented litigant exhibiting, as the appellant did before the Magistrate, only a limited ability to cross- examine and a limited comprehension of things he ought prudently do in conducting his own defence should have every opportunity to take all necessary steps to prepare his case. His application at the appeal hearing, however, for an adjournment to pursue possible film of the Pacific Motorway is redolent, I think, of the same diffuse and undirected conduct he manifested before the Magistrate. The appellant claims he was not guilty of the offences with which he was charged, and the charges were concocted by the police, who also assaulted him. He has produced no evidence to rebut the charges, or prove the allegation of assault. He is quite literate (as the Court documents show) and keen to argue on his own behalf which he does with vigor but, when pressed to an occasion of resolution (the original, and appeal hearings) he adopts stratagems apparently designed to postpone an outcome. He speaks, repeatedly, of the failure of others to produce evidence -- 10 of 14 -- 9 which would, he says, absolve him but takes no actual steps on his own behalf. Appreciating that the business of obtaining and issuing subpoenas might be novel, or even alarming to the ordinary citizen he, however, does nothing except write to and telephone persons who, he says, should be doing things for him. [14] If this analysis suggests a measure of self interest in his conduct, his motives have to be suspect when he spoke, at an early stage in the appeal hearing, of demands he had made upon the Premier of Queensland and others to “drop these proceedings” (i.e., presumably, quash his convictions) by 5 p.m. that day failing which he would commence an action claiming, he said, damages in grotesque sums: e.g. from the Premier of Queensland, $1.5 billion. [15] It is, nevertheless, appropriate to ignore these matters and to ask the question whether the hearing before the Magistrate, involving a defendant without legal representation, resulted in an injustice which should be remedied by upholding the appeal. Cases since Dietrich v R (1992) 177 CLR 292 show how Courts have struggled to cope with self-represented persons, and the problems they sometimes create: see, e.g., the decision of the Full Court of the Family Court in Sadjak (1992) 16 Fam LR 280 at 283-284. In Morton v Mitchell Products (1996) 828 FCA 1, Sackville J referred with approval to the following statement of Samuels J A in Rajsky v Scitec Corporation, unreported (NSW Court of Appeal, 16 June 1986): “The advice and assistance which a litigant in person ought to receive from the Court should be limited to that which is necessary to diminish, so far as is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to present destruction from the traps which our adversary procedure offers to the unwary and untutored.” -- 11 of 14 -- 10 At an early stage in the proceedings the appellant had been asked if he was ready to proceed to trial, and replied in the affirmative. It was then explained to him (transcript p 3, l 21) that: “Now, the prosecution will call witnesses to give evidence for - to substantiate these charges. When each of those witnesses having - has given evidence, you’ll be allowed to cross-examine those witnesses, ask questions. When the prosecution’s case is finished, I’ll explain to you in full what your rights are, but it’s the same. You’ll be allowed to give evidence and call witnesses etcetera. You understand? ” The defendant replied, in the affirmative. The three police witnesses were then called, and cross-examined by the appellant. At p 25 of the transcript the learned Magistrate explained to the appellant the courses open to him after the Crown had closed its case. He said, about l 4: “…you can (give) evidence yourself and call witnesses which is what the police have done. You will go into the witness box, you will take oath, and you will give your evidence.” Other options explained to the appellant were an address, to the Court, from the Bar table or to say and do nothing. The appellant chose the second course. [16] It is difficult to see how, in those circumstances, the appellant could reasonably argue that he did not understand his right to both give evidence himself, and call evidence from others if he so desired. The appellant did not, at any time, refer to any other persons he wished to call and his only reference to extra evidence, beyond his own, was the watch-house video. There are limits to the extent to which a Court must or can go in -- 12 of 14 -- 11 advising a self-represented person: see, e.g., Johnson and Johnson (1997) FLC 92-764; and, S v R (1999) FLC 92-834. [17] The transcript shows that while the appellant put a number of questions to the three police witnesses in cross-examination and, in particular, that all of their evidence was lies and that certain specific incidents (for example, the circumstances in which his vehicle was stopped by police, and some conversations shortly thereafter) happened in a different way, he did not suggest or put to any of them that he had cooperated fully either during the road breathalyser test, or when confronted with the breath analysis machine at Broadbeach Police Station (although he did, at p 20, l 31, use the words “…before I blew in the bag”, but not in the context of putting to the police witness that he had followed correct procedures). [18] The alternatives presented to the appellant by the learned Magistrate after the Crown had closed its case (mentioned earlier) included an explanation, from the Bench, that a statement from the Bar table would not be evidence on oath but the appellant could enter the witness box, take an oath, and give evidence. The appellant chose the former course. During that statement (transcript, pp 28-29) he narrated a version of events quite different from that of the three police witnesses, containing a positive assertion that he had blown into the device at the roadside, but not touching on his response to the alleged demand that he blow, too, into a breath analysis machine at Broadbeach Police Station. Although this statement was unsworn the learned Magistrate, then, had a tolerably clear -- 13 of 14 -- 12 version from the appellant before he proceeded to make the findings, and in particular findings on credit, which followed. [19] I do not think it can be said that, in all of those circumstances, any procedural unfairness tainted the trial, so as to make the learned Magistrate’s decision unsafe, or dangerous. [20] The appeal is dismissed. ----- -- 14 of 14 --