Commissioner of Police v Stehbens [2013] QCA 81

SUPREME COURT OF QUEENSLAND

CITATION: Commissioner of Police v Stehbens [2013] QCA 81

PARTIES: COMMISSIONER OF POLICE (applicant) v STEHBENS, Kym Maree (respondent)

FILE NO: CA No 168 of 2012 DC No 21 of 2011

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 16 April 2013

DELIVERED AT: Brisbane

HEARING DATE: 21 March 2013

JUDGES: Gotterson JA, Margaret Wilson and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: **Application for leave to appeal granted.****Appeal allowed.****Set aside the orders of the District Court of 4 June 2012.**Substitute order that the appeal to the District Court is dismissed.

CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST PEACE AND PUBLIC ORDER – ASSAULTING, RESISTING, HINDERING OR OBSTRUCTING POLICE OFFICER – GENERALLY – where the respondent was charged with assaulting a police officer acting in the execution of his duty – where the respondent raised honest and reasonable mistake of fact – where the applicant alleged that he identified himself as a police officer verbally and by producing his police badge – where the Acting Magistrate dismissed the defence of honest and reasonable mistake – where the decision was overturned on appeal by a District Court Judge – where the District Court Judge held that the Acting Magistrate could not have been satisfied that mistake of fact had been excluded beyond reasonable doubt – whether the defence of honest and reasonable mistake had been excluded beyond reasonable doubt / APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHTS OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – where the respondent was charged with assaulting a police officer acting in the execution of his duty – whether honest and reasonable mistake of fact that applicant was not a police officer excluded – where the respondent was convicted by an Acting Magistrate – where the decision was overturned on appeal by a District Court Judge – where the District Court Judge held that the Acting Magistrate could not have been satisfied that mistake of fact had been excluded beyond reasonable doubt – where the District Court Judge quashed the conviction and entered a verdict of acquittal – adequacy of reasons given by District Court Judge / Criminal Code 1899 (Qld), s 24, s 245, s 246, s 340(1)(b) District Court of Queensland Act 1967 (Qld), s 118, s 119 Justices Act 1886 (Qld), s 222(1), s 223, s 225, s 226 / Aubertin v Western Australia (2006) 33 WAR 87; [2006] WASCA 229, considered Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136, cited Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462; [1995] QCA 187, cited Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78, considered Larson v G J Coles & Co Ltd; Ex parte G J Coles & Co Ltd (1984) 13 A Crim R 109, cited New Zealand v Johnston (2011) 274 ALR 509; [2011] FCAFC 2, cited Pettitt v Dunkley [1971] 1 NSWLR 376, cited R v O'Loughlin [2011] QCA 123, cited R v Reynhoudt (1962) 107 CLR 381; [1962] HCA 23, considered R v Wilson [2009] 1 Qd R 476; [2008] QCA 349, considered Sancoff v Holford, ex parte Holford [1973] Qd R 25, cited Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, cited Sun Alliance Insurance Ltd v Massoud [1989] VR 8; [1989] VicRp 2, cited Tsigounis v Medical Board of Qld [2006] QCA 295, cited

COUNSEL: E S Wilson for the applicant No appearance for the respondent

SOLICITORS: Queensland Police Service for the applicant No appearance for the respondent

1. GOTTERSON JA: I agree with the orders proposed by Margaret Wilson J and with the reasons given by her Honour.

2. MARGARET WILSON J: The respondent was convicted summarily of assaulting a police officer whilst he was acting in the execution of his duty.¹ She appealed against the conviction to a District Court Judge,² who quashed the conviction and ordered that a verdict of acquittal be entered.

3. This is an application for leave to appeal against the decision of the District Court Judge.³ On the hearing of the leave application, the applicant was represented by senior counsel. There was no appearance by or on behalf of the respondent, whose solicitors had written to the Deputy Registrar advising that she would abide the order of the Court.

4. The Judge found that the Acting Magistrate could not have been satisfied beyond reasonable doubt that the respondent (who was the appellant in the District Court) did not have an honest and reasonable but mistaken belief that the complainant was not a police officer.⁴ The applicant contends that the Judge erred in not giving reasons, or adequate reasons, for that conclusion.

Leave to appeal to this Court

5. In Tsigounis v Medical Board of Qld⁵ Keane JA (as his Honour then was) said –

“Leave to appeal to this Court from the District Court will usually be granted under s 118(3) of the District Court of Queensland Act 1967 (Qld) only where the decision below has occasioned a substantial injustice to the applicant for leave, and where there is a reasonable argument in support of the applicant's claim to relief.⁶ Because of the limited function of this Court on appeal in the strict sense applicable here, the latter requirement means that the applicant must be able to identify an arguable error of law in the decision below which, if corrected, would result in the correction of the substantial injustice.”

6. I accept the submission of counsel for the applicant that a failure to give adequate reasons (if established) would be an appealable error of law.⁷ I accept, too, that inadequacy of reasons in a case such as this, which involved an alleged assault on a police officer, would warrant the giving of leave to appeal in order to maintain public confidence in the criminal justice system.

The incident

7. The incident occurred on 1 April 2010 in the Isa Hotel at Mt Isa.

8. The complainant was Matthew John Udovicich, an off duty police officer. He and his wife and another off duty police officer, Anthony Dean Steers, had dinner at the hotel that evening.

9. The respondent was a 43 year old child safety officer and former teacher. She and her partner Graham Hilton were part of a group of people who had met at the hotel to farewell someone who was leaving Mt Isa. They had been drinking for some time when they decided to leave at about 11.30 pm.

10. Rudi Pecchiar was an employee of the hotel. He and the respondent had formerly been in a relationship which had ended acrimoniously.

11. There was a scuffle between Mr Pecchiar and Mr Hilton at or in the vicinity of the doorway to the hotel. The complainant and Constable Steers intervened, restraining Mr Hilton on the floor. The respondent grabbed the complainant several times, attempting to get him off Mr Hilton. Subsequently she struck him in the lip area with her right hand twice.

The applicable law

12. “Assault” is defined in s 245 of the Criminal Code (Qld) and made unlawful in s 246. Those sections provide –

“245 Definition of assault

(1)A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.

(2)In this section—

applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.

246 Assaults unlawful

(1)An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.

(2)The application of force by one person to the person of another may be unlawful, although it is done with the consent of that other person.”

13. The respondent was charged under s 340(1)(b) of the Criminal Code (Qld), which provides –

“340 Serious assaults

(1)Any person who –

…

(b)assaults, resists, or wilfully obstructs, a police officer while acting in the execution of the officer’s duty, or any person acting in aid of a police officer while so acting;…

is guilty of a crime.” (emphasis added)

14. The prosecution had to prove that the respondent assaulted the complainant, that the complainant was a police officer, and that he was acting in the execution of his duty. It did not have to prove that the respondent knew the complainant was a police officer.⁸

15. In The Queen v Reynhoudt⁹ the High Court considered s 40 of the Crimes Act 1958 (Vic), which was in terms that were relevantly similar to, although not identical with, s 340(1)(b) of the Criminal Code (Qld). It held (by majority) that knowledge that the victim of the offence was a police officer was not an element of the offence, and that it was open to an accused person to raise a defence based on a reasonable and honest belief in the existence of facts which, if they had existed, would have made his act a lawful one. In Queensland that would be in terms of s 24 of the Criminal Code, that he or she had an honest and reasonable but mistaken belief about the status or actions of the person assaulted. Thus an accused may assert a mistaken belief that the person assaulted was not a police officer, or that although the person assaulted was a police officer, he or she was not acting as such.¹⁰

16. Section 24 of the Criminal Code provides –

“24 Mistake of fact

(1)A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.

(2)The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”

17. In R v Wilson¹¹ McMurdo P said –

“It is clear from its terms that s 24 requires a consideration of whether there were reasonable grounds for the accused person’s belief as to a state of things, not … whether a theoretical, ordinary, reasonable person would or should have made the mistake. The belief must be both subjectively honest and objectively reasonable but it is the accused person’s belief which is of central relevance. An accused person may hold an honest and reasonable but mistaken belief as to a state of things even though another ordinary, reasonable person may not have made that mistake. This distinction, which is admittedly subtle, was noted by this Court in R v Julian¹² when discussing self defence under s 271 Criminal Code and more recently in R v Mrzljak¹³ when discussing s 24.”

18. As McLure JA said of the equivalent provision in the Criminal Code (WA) in Aubertin v Western Australia,¹⁴ while the ambit of the relevant personal attributes and circumstances of a particular accused has not been exhaustively identified, they are essentially matters over which the accused has no control, including age and gender, and any physical, intellectual or other disability. Self-induced intoxication may be relevant to whether the belief was honestly held, but it is not relevant to the reasonableness of the belief. ¹⁵

19. Once there is evidence from which it could reasonably be inferred that the accused person held an honest and reasonable belief in an appropriate state of affairs, as opposed to mere inadvertence,¹⁶ the prosecution bears the onus of negativing the existence of such a belief.¹⁷

The Acting Magistrate’s decision

20. The witnesses called by the prosecution included Mr Pecchiar, the complainant, Mrs Udovicich, and Constable Steers. The prosecution also relied on CCTV footage of the incident. The respondent gave evidence.

21. The Acting Magistrate accepted the evidence of those prosecution witnesses where it was in conflict with that of the respondent. His Honour made the following findings of fact –

“…firstly, that Mr Pecchiar and Mr Hilton were involved in a scuffle at or in the vicinity of the doorway to The Isa Hotel at approximately 11.30 p.m. on the 1st of April 2011;

secondly, that Officers Udovivich [sic] and Steers, who were off duty at the time and sitting at a table with Mrs Udovivich [sic] in the hotel dining area, observed the scuffle and walked towards the scuffle;

thirdly, that Officer Udovicich in the process of walking towards the scuffle verbally identified himself as a police officer;

fourthly, that both officers, upon intervening in the scuffle, verbally identified themselves as police officers on numerous occasions whilst in the process of restraining Mr Hilton;

fifthly, that during the process of restraining Mr Hilton both officers and Mr Hilton ended up in the doorway and predominantly outside of the licensed premises;

sixthly, whilst Officer Udovivich [sic] and Officer Steers restrained Mr Hilton on the floor, the defendant has come towards Officer Udovivich [sic] and attempted to get Officer Udovivich [sic] off of the top of Mr Hilton by grabbing the officer on several occasions;

seventhly, that Officer Udovivich [sic] has advised the defendant verbally that he is a police officer and at some point whilst restraining Mr Hilton he has placed his right hand into the back pocket of his trousers and removed a black wallet with his police badge and identification in it and presented it in the direction of the defendant;

eighthly, that the defendant then approached Officer Udovivich [sic] and struck him twice to the face with her right hand; and,

finally, that the blow struck Officer Udovivich [sic] in the lip area.”¹⁸

22. His Honour was satisfied that the complainant was acting in the execution of his duty when the alleged assault occurred. He went on –

“The final issue for consideration is whether the defence of mistake of fact applied. It is submitted by Mr Hibble [defence counsel] that his client was under an honest and reasonable belief that the two persons restraining Mr Hilton were not police officers and that on that basis – that belief – she cannot be held criminally responsible for her actions.”¹⁹

23. His Honour referred to R v Reynhoudt,²⁰ and continued –

“…a defence of mistake of fact would only be successful on the grounds that Ms Stehbens had not known that the two persons were police officers and that her actions would not have constituted an assault on that basis. Although Ms Stehbens indicated in her evidence that she had not known that the two men were police officers, she would have acted - no, my apologies. Although Ms Stehbens indicated in her evidence that had she known that the men restraining Mr Hilton were police officers, she would not have acted as she did, when one views the video footage and her own evidence it is clear that she was taken away from where the officers and Mr Hilton were located on several occasions by a friend. Each time she was taken away she returned. Based on her oral evidence, her thoughts were that the men were hurting Graham and that she wanted to get them off of him. The evidence in my view makes it abundantly clear that her actions were that of someone who was determined to get those two men off of Mr Hilton. Knowledge that the two persons were police officers would, in my opinion, have no impact on Ms Stehbens’ behaviour given her own oral evidence and the video evidence before the Court.”²¹

24. His Honour said he was satisfied that the prosecution had proved all elements of the charge beyond reasonable doubt, and that he found the respondent guilty of the charge. Defence counsel then made further submissions to the effect that his Honour had not fully appreciated his submissions about the definition of assault and the effect of s 24 of the Criminal Code. The Acting Magistrate indicated he would not alter his findings of fact, but set aside his finding of guilt pending consideration of the further submissions. When the Court resumed, his Honour said –

“I have given consideration to those further submissions which Mr Hibble made and also the response which was made from the prosecution regarding the issue of mistake of fact. I understand Mr Hibble’s submissions to be that, based on my finding of fact, the evidence pointed to the defendant, Ms Stehbens, holding an honest and reasonable but mistaken belief that at the time the two officers were restraining Mr Hilton outside the doorway of the Isa Hotel, there was consent or, more particularly, implied consent for the defendant to assault Officer Udovicich.

After giving this matter further consideration and with respect, I cannot agree with Mr Hibble’s submission. I have reviewed my finding of facts, and in my view the evidence and the finding of fact which resulted from my determination, of the evidence lead me to conclude that any defence of mistake of fact, based on the grounds which Mr Hibble submitted on, has been negatived beyond reasonable doubt by the prosecution. It therefore follows that I do find Ms Stehbens guilty of the charge before the Court.”²²

The appeal to the District Court

25. The appeal to the District Court was pursuant to s 222 of the Justices Act 1886 (Qld). Sections 222(1), 223, 225 and 226 of that Act provide –

“222 Appeal to a single judge

(1)If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.

Notes—

1Under the Criminal Code, section 669A(6), an appeal against a decision by a person under this section to a District Court judge is removed directly to the Court of Appeal if the Attorney-General also appeals against the decision under section 669A.

2This division applies in relation to an order made by justices dealing summarily with a child charged with an offence, but appeals must be made to a Childrens Court judge—see the Youth Justice Act 1992, section 117.

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.

(2)However, 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.

(3)If the court gives leave under subsection (2), the appeal is—

(a)by way of rehearing on the original evidence; and

(b)on the new evidence adduced.

225 Powers of judge on hearing appeal

(1)On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.

(2)If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.

(3)For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.

(4)An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.

226 Costs

The judge may make such order as to costs to be paid by either party as the judge may think just.”

26. There was no further evidence led on the appeal, which was by way of rehearing in the technical sense. To succeed, the appellant had to establish some legal, factual or discretionary error.

27. In his oral submissions counsel for the appellant had identified the ground of appeal relied on as –

“that the learned acting magistrate failed to find that the prosecution had persuaded him, beyond reasonable doubt, that the appellant did not have a [sic] honest and reasonable but mistaken belief that the person she assaulted was [not] a police officer.”²³

28. Counsel for the appellant (the respondent in this Court) did not challenge the finding that the police officers had identified themselves as such and that a police badge had been produced. He continued -

“The real dispute was that Ms Stebhens didn’t see it nor hear it. And she effectively gave that evidence.”

He submitted that the Acting Magistrate had not rejected her evidence in that regard, and ought therefore to have acquitted her.²⁴

29. Counsel for the respondent to the appeal (the present applicant) submitted to the Judge that, since the Acting Magistrate’s findings of fact were based on credibility, his Honour was not entitled to substitute his own view of the facts unless the findings were such that they could not have been made.²⁵ He cited Devries v Australian National Railways Commission²⁶ where Brennan, Gaudron and McHugh JJ said –

“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his [or her] advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.” (footnotes omitted)²⁷

The Judge summarised the Acting Magistrate’s findings and the course the proceeding took before him.

The duty to give reasons

30. In Cypressvale Pty Ltd v Retail Shop Leases Tribunal²⁸ Fitzgerald P said –

“The nature and extent of the obligation to give reasons varies according to the circumstances; the obligation is, after all, an aspect of the duty to act fairly in the particular circumstances. The broad principle deducible from the cases is that the decision-maker is required to give reasons which disclose what was taken into account and in what manner, and thus whether an error has been made: cf. the reference by McHugh J. in Soulemezis at 279²⁹ to a statement of reasons which ‘enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the ... decision’. See also, ibid, at 269 per Mahoney J.A.; Sun Alliance at 19.³⁰”

31. That obligation extended to the Judge, who was sitting as an intermediate appellate court.

32. As Jacobson, Foster and Katzmann JJ observed in New Zealand v Johnston – ³¹

“[107]There is a difference between a failure to articulate one’s reasoning process, on the one hand, and the articulation of an erroneous reasoning process, on the other hand.”

The Judge’s reasons for judgment

33. After outlining the law relating to appeals pursuant to s 222 of the Justices Act 1886 (Qld), his Honour set out the structure of the Acting Magistrate’s decision -

“Discussion

[17]The decision of the learned acting magistrate in this matter is somewhat confusing, in that having stated ‘knowledge that the two persons were police officers would, in my opinion, have no impact on Ms Stehbens’ behaviour given her own oral evidence in the video evidence before the court’, he went on to state ‘It therefore follows that I am satisfied the prosecution had proven all elements of the charge to the standard required, that being beyond a reasonable doubt, and I therefore find Ms Stehbens guilty of the charge before the court’.

[18]There then follows some five pages in the decision transcript of an exchange between Mr Hibble (who was both the trial counsel and appellate counsel) and the learned acting magistrate, essentially on the issue as to whether the prosecution had excluded a consensual fight beyond reasonable doubt, a matter not addressed by the learned acting magistrate in his reasons for decision.

[19]The learned acting magistrate, having adjourned to consider the matter, returned and indicated that his previous ‘finding of guilt was revoked’ or ‘set … aside’ pending the consideration of the further matters which Mr Hibble had brought to his attention.

[20]The learned acting magistrate made it clear that he did not ‘intend in any way to alter the finding of fact which [he had] made out’. The learned acting magistrate then stated ‘In my view the evidence and the finding of fact which resulted from my determination of the evidence led me to conclude that any defence of mistake of fact, based on the grounds which Mr Hibble submitted on, has been negatived beyond reasonable doubt by the prosecution’ and again found Ms Stehbens guilty of the charge.” (footnotes omitted)

His Honour summarised the submissions on behalf of the appellant –

“[21]Mr Hibble’s submission on appeal is that the learned acting magistrate did not reject the evidence of the appellant to the effect that she had an honest reasonable but mistaken belief that the complainant was not a police officer. The appellant’s evidence on this in her evidence-in-chief was clear, that she did not know until later in the night after she was arrested that the two persons concerned were police officers, and the appellant was not shifted on the issue despite determined cross-examination by the trial prosecutor.” (footnotes omitted)

His Honour considered that the Acting Magistrate had not appreciated that he had to be satisfied beyond reasonable doubt that the defence of mistake in accordance with s 24 of the Criminal Code had been excluded beyond reasonable doubt before he could convict. He said –

“[22]Although the learned acting magistrate’s reasons for decision were somewhat equivocal, his statement that ‘knowledge that the two persons were police officers would, in my opinion, have no impact on Ms Stehbens behaviour given her own oral evidence and the video evidence before the court’ does not, either in its own terms or in conjunction with the learned acting magistrate’s previous detailed reasons, amount to a finding that the prosecution had negatived, beyond reasonable doubt, the s 24 defence. To some extent, this conclusion is supported by the terms of the learned acting magistrate’s finding ‘that I am satisfied the prosecution have proven all elements of the charge to the standard required, that being beyond a reasonable doubt’ without going on then to exclude, beyond reasonable doubt, the defence raised pursuant to s 24.

[23]When the learned acting magistrate then returned subsequently to re-deliver his decision, although again finding the appellant guilty, he still failed to identify that in order to do so, he would have to conclude, beyond reasonable doubt, that he had rejected the appellant’s honest and reasonable albeit mistaken belief that the complainant was not a police officer.” (footnotes omitted)

His Honour’s reasons ended –

“Conclusion

[24]It follows that the learned acting magistrate fell into legal error in failing to find beyond reasonable doubt that the defence under s 24 was excluded. In my view, given the state of the evidence before the learned acting magistrate, he could not have been persuaded beyond reasonable doubt that the appellant did not have a [sic] honest and reasonable but mistaken belief of fact that the complainant was [not] a police officer. On the evidence before the learned acting magistrate, the defendant should have been acquitted.” (footnotes omitted)

Discussion

34. Counsel for the applicant submitted that the Judge erred in not identifying the evidence he relied on for his conclusion and in not giving reasons for that conclusion. As I understood the submission, it was that his Honour had failed to expose the process of reasoning that led him to his conclusion.

35. In paragraph [23] of his reasons the Judge found that the Acting Magistrate had failed to identify the relevant issue in relation to s 24. The process by which he came to that conclusion is adequately explained in the preceding paragraphs of his reasons.

36. However, the Judge did not explain why the Acting Magistrate could not have been persuaded beyond reasonable doubt that the appellant did not have an honest and reasonable belief that the complainant was not a police officer. Merely referring to “the state of the evidence” before the Acting Magistrate, without any analysis of that evidence, did not satisfy his Honour’s obligation to give reasons for allowing the appeal, quashing the conviction and entering a verdict of acquittal.³²

37. Accordingly, the application for leave to appeal should be granted, the appeal should be allowed, and the Judge’s orders should be set aside.

Remitter or determination?

38. The next question is whether this Court ought to remit the matter to the District Court for determination of the appeal according to law (which is frequently done when an appeal is allowed on the ground of inadequacy of reasons), or whether it ought to determine it itself.

39. Section 119 of the District Court of Queensland Act 1967 (Qld) provides –

“119 Jurisdiction of Court of Appeal

(1) On the hearing of an appeal the Court of Appeal shall have power to draw inferences of fact from facts found by the judge or jury, or from admitted facts or facts not disputed provided that where the appeal is not by way of rehearing such inferences shall not be inconsistent with the findings of the judge or jury.

(2) On the hearing of any appeal the Court of Appeal—

may order a new trial on such terms as the court thinks just; and

may order judgment to be entered for any party, or may make any other order, on such terms as the Court of Appeal thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties; and

may make such order with respect to the costs of the appeal as it thinks proper;

and every such order shall be final.”

40. This Court is as well placed to decide the matter as the District Court. The appeal record contains a full transcript of the evidence and submissions before the Acting Magistrate and the written and oral submissions before the District Court Judge. It has heard further submissions from counsel for the applicant as to why the Acting Magistrate could have been satisfied that the prosecution had excluded beyond reasonable doubt the possibility that the respondent had an honest and reasonable but mistaken belief that the complainant was not a police officer.

41. I consider that this Court should itself determine the appeal from the Acting Magistrate.

The evidence

42. Despite his somewhat muddled reasons, I think the Acting Magistrate always appreciated that the mistake of fact the respondent relied on was that the complainant was not a police officer. And I think his Honour appreciated that the prosecution bore the onus of excluding beyond reasonable doubt the possibility that the respondent held an honest and reasonable belief that he was not a police officer. Whether the onus was found to have been satisfied in this case depended on whether the respondent’s evidence that she neither heard nor saw the complainant identify himself as a police officer was accepted.

43. Assessment of a witness’s credibility involves assessment of the witness’s honesty and reliability. In this case the Acting Magistrate formed an adverse view of the respondent’s reliability. His Honour said –

“Given Ms Stehbens’ alcohol consumption and her admitted state of mind at the time the alleged offence took place, I have little difficulty in accepting the evidence of the prosecution witnesses, Pecchiar, Officer Udovivich [sic], Mrs Udovivich [sic] and Officer Steers, where it conflicts with Ms Stehbens.”³³

44. None of the nine findings of fact set out in paragraph [21] was challenged on the appeal.

45. There was unchallenged evidence of another fact – that the complainant produced his police badge after the respondent demanded to see it. Those four witnesses for the prosecution gave consistent evidence to this effect,³⁴ and it was not put to any of them in cross-examination that she did not demand to see it before it was actually produced.

46. The respondent did not admit the assault: as senior counsel for the applicant submitted, the Acting Magistrate had to distil the evidence to make that finding. She said that she did not hear the officers identify themselves as policemen, and that she did not see anyone produce police identification. She did not give evidence in chief of requesting police identification, and it was not put to her in cross-examination that she did so. She gave the following evidence-in-chief –

“Did you know those officers at all?-- No, ‘cause at that point I think I'd started to go out the door and then as I turned around I've realised that these two officers had come – they came running in and I don't know who that – like, at that point I didn't know who they were. They were just to me just two thugs, probably friends of Rudi's that he'd organised to come and - and, you know, intervene very-----

When did you become aware that those officers were in fact off duty officers?-- Oh, I didn't know until a while later on that night when I was arrested for-----

Is that the first time you became aware they were in fact officers?-- Yes.

At any stage during the struggle did you hear any of them identify themselves as police-----?-- No.

-----officers? Can you just describe the - the noise as the struggle was unfolding?-- Well, I know there was a lot of background noise. There was a lot going on. People were coming over and - and looking what was happening. Yeah, people yelling out and I spoke - Graham was screaming out because I think they were trying to choke him at one stage. There was - there was a lot of commotion at the time, and a lot of people gathering around.

At any stage during that struggle did you see anyone produce identification?-- No.

At any stage during that struggle did you make contact with anyone in relation to either the - of the two off duty officers?-- I was telling them to get off, and I was screaming at them to get off, and I didn't actually push, yes.

Do you recall where you applied force?-- I think it was around the shoulder/chest area.

Do you know for certain where it was?-- Not exactly, no.

And I take it - what were you trying to do at that time?-- I was just trying to get the guy that was on top off Graham so he could get up. He was, like at one stage he'd turned blue and purple because someone had him by the throat and he was choking. And, like he was screaming outside, you know - well, I - I felt that he was in a lot of trouble.

What was your - what was your emotional state at that time?-- Oh, I was hysterical at that point.”

In cross-examination she said –

“I'd had quite a few drinks and hadn't eaten so I was feeling the effects, but-----

But not so much so that you didn't - didn't know what you were doing?-- I felt - at the time I felt like I - I knew what I was doing, yes.”

She agreed that others became involved in the scuffle between Mr Hilton and Mr Pecchiar.

“Well, I'd suggest that there were two other males that became involved. Would you agree with that?-- Yes.

And that that [sic] were saying continually that they were police officers?-- I can't recollect - recall that at all, no.

I'd suggest to you that - that there was a - even though the gentleman in the - I'll suggest to you that one of the gentlemen was wearing a white shirt. He'd - he'd declared himself as a police officer. But you struck him in the face anyway. That's right, isn't it?-- No. I did not assault anyone.”

47. There was no reason for the Acting Magistrate not to find that the complainant produced his badge in response to the respondent’s demand that he do so. While each witness experienced some difficulty in identifying the exact point in the CCTV footage that the badge was produced, a task that was significantly hampered by the low quality of the footage, all four witnesses gave consistent accounts of Officer Udovicich retrieving the badge from his back pocket and showing it in the direction of the respondent. Mr Pecchiar gave evidence that –

“At one point I noticed [the respondent] had struck one of the - the men on the side of the face and then he’s - he’s taken that and then he said, "I’m an" - he’s announced it again and she wanted some sort of proof, so while he’s subdued him, he’s reached back with his right hand to his back pocket and he must have had his badge on him and showed her, put it back and then was still sort of struggling and that sort of thing on the ground.”³⁵

Officer Udovicich gave evidence that –

“At that point she’s requested to see my police identification - police identification [sic], which I’ve removed from my pocket, shown her my police badge and ID card. At that point she’s gone to grab it out of my hand, so I’ve pulled it back, put it back in my pocket. I then observed the defendant walk up to my right side and with a closed fist punch me in the mouth.”³⁶

Mrs Udovicich gave evidence that –

“There was a woman who was trying to pull Matthew off the man and Matthew was saying, "I'm a police officer. Go away." And she asked him to see his badge, which he then pulled out and showed her. She tried to snatch the badge out of his hand but he grabbed - he, you know, kept possession of it and put it away while he was still restraining the man on the ground. At that time the woman moved away.”³⁷

Mrs Udovicich conceded in cross-examination that she did not actually see her husband present his badge, but said she had seen him present the wallet containing the badge in the direction of the respondent. She also conceded that she could not reconcile her observations with the CCTV footage. However, the learned Acting Magistrate was nonetheless “impressed overall with her evidence”, and found that her explanation for her concessions, based on her position in relation to the camera, “accorded with common sense”.

Constable Steers gave evidence that –

‘She approached us. She was shouting, "Get off him.". I said to her, "We're the police. You need to back off", to which she shouted back, "Who are you? Show me your badge.". I then observed Constable Udovicich reach into his back pocket and produce his police identification to the defendant.’³⁸

48. Even given the respondent’s intoxication and highly charged emotional state, it was open to the Acting Magistrate to reject the respondent’s evidence that she did not see the badge. Given what his Honour said about her reliability and his preference for the evidence of the prosecution witnesses where it was in conflict with hers, I think he must be taken to have impliedly rejected her evidence about not seeing the badge.

49. In the circumstances the appeal to the District Court Judge ought to have been dismissed.

Orders

50. I would make the following orders:

51. Application for leave to appeal granted.

52. Appeal allowed.

53. Set aside the orders of the District Court of 4 June 2012.

54. Substitute order that the appeal to the District Court is dismissed.

55. DOUGLAS J: I agree with the reasons of Justice Margaret Wilson and with the orders her Honour proposes.

Footnotes

1. Criminal Code 1899 (Qld) s 340(1)(b). ↩

2. Justices Act 1886 (Qld) s 222. ↩

3. District Court of Queensland Act 1967 (Qld) s 118. ↩

4. Criminal Code 1899 (Qld) s 24. ↩

5. [2006] QCA 295 at [15]. ↩

6. Pickering v McArthur [2005] QCA 294 at [3]. ↩

7. Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18, 19; Pettitt v Dunkley [1971] 1 NSWLR 376 at 388; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270, 279, 280 per McHugh JA; Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 466-7 per Fitzgerald P; Camden v McKenzie [2008] 1 Qd R 39 at 47, [29]. ↩

8. R v Reynhoudt (1962) 107 CLR 381. ↩

9. (1962) 107 CLR 381. ↩

10. See Ian Weldon, Criminal Law Western Australia (LexisNexis Butterworths, 2013) at [s 318.25]. ↩

11. [2009] 1 Qd R 476 at 482-483 [20]. ↩