Hurley v The Commissioner of the Queensland Police Service [2017] QDC 297

Justices Act 1886, s 222, 223(1),

Penalties and Sentences Act 1992 (Qld) s 12

Commissioner of Police v Al Shakarji [2013] QCA 319, cited

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, considered

Gartner v Brennan [2016] WASC 89, considered

Hickey v Chief Executive Officer of Customs; Hickey v Commissioner of Police [2017] QDC 27, considered

Jackson v Gamble [1983] VicRp 51; [1983] 1 VR 552, considered

Marshall v Queensland Police Service [2015] QDC 261, considered

McIntosh v Webster & Anor (1980) 43 FLR 112, considered

R v Anderson [2000] VSCA 16; [2000] 1 VR 1, considered

R v Bain [1997] QCA 035, cited

R v Bowley [2016] QCA 254, cited

R v Boyes [1861] EngR 626; (1861) 121 ER 730, considered

R v Brown: Ex-parte Attorney-General [1993] QCA 271; [1994] 2 Qd R 182, considered

R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467, cited

R v CBQ [2016] QCA 125, followed

R v Ford [2006] QCA 142, followed

R v GAW [2015] QCA 166, considered

R v Goodger [2009] QCA 377, cited

R v Jackson [2011] QCA 103, considered

R v Lawley [2007] QCA 243, followed

R v Masters [1987] 2 Qd R 272, cited

R v Price ex parte A-G (Qld) [2011] QCA 87, considered

R v Rix [2014] QCA 278, followed

R v Sanders [2007] QCA 165, considered

R v Smith [2000] QCA 390, considered

R v Thomas [1997] QCA 370, considered

R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398, considered

R v Verdins [2007] VSCA 102, considered

R v Wilson [2008] QCA 349; [2009] 1 Qd R 476, considered

R v Yarwood [2011] QCA 367, followed

Rank Film Distributors Ltd & Ors v Video Information Centre (A firm) & Ors [1982] AC 380, cited

Re Knowles [1984] VicRp 67; [1984] VR 751, cited

Rowe v Kemper [2008] QCA 175; [2009] 1 Qd R 247, cited

Rowley v Commissioner of Police [2017] QDC 88, considered

Teelo v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489, considered

White v Commissioner of Police [2014] QCA 121, cited

Queensland Police Union Legal Group for the appellant

Office of the Director of Public Prosecutions for the respondent

[1] The appellant, Mr Christopher Hurley, appeals under s 222 of the Justices Act 1886 (Qld) against his conviction and sentence in the Southport Magistrates Court on 2 December 2016 of two offences of unlawful assault.

[2] The trial was heard over two days on 5 and 6 October 2016. The appellant, who was a senior sergeant of police at the relevant time, was charged with four offences of unlawful assault occurring on 15 November 2013. Essentially, the case against him was that he mistakenly believed that a person in an old EB Falcon that drove past a traffic incident that he was attending in his role as a police officer called out the word "cunt" at him. The appellant left the accident and pursued and intercepted the Falcon in his police vehicle. The appellant approached the stationary Falcon and leaned in the driver's side window demanding to know from the passengers who was responsible for calling out to him back at the traffic accident.[1] As events transpired, the complainant, Mr Luke Cole, a back seat passenger in the Falcon, was asked by the appellant to get out of the vehicle. As the complainant complied with this request, the appellant came around from the other side of the Falcon and placed his hands around the throat of the complainant (charge 1) and allegedly punched him in the face (charge 2). The complainant then pushed the appellant, causing him to fall over. The appellant drew his taser and pointed it at the complainant thereby threatening to use it (charge 4). The complainant ran away and the appellant chased and caught up with him, kicking at the complainant's legs and causing him to fall over (charge 3).

[3] It was not in issue at trial that the appellant had assaulted the complainant by placing his hand around his throat. The punch and kick were denied by the appellant. There was a concession by defence counsel at trial, that if the Crown negatived self-defence and the s 24 defence of honest and reasonable but mistaken belief (which was raised on the facts of count 1), and the appellant was found guilty of charge 1, then the drawing and pointing of the taser at the complainant would not have been justified. In these circumstances, it was accepted by the defence at trial that the Magistrate ought to find the appellant guilty of charge 4. For reasons discussed below, the effect and consequences of this concession were contentious on appeal.

[4] Against this background, the learned Magistrate identified four issues for his determination at the end of the trial:

(a) Was the complainant assaulting the appellant when he alighted from the vehicle?

(b) Has the Crown satisfied him beyond reasonable doubt that the appellant was not acting under an honest and reasonable but mistaken belief that that complainant was unlawfully assaulting him at the time?

(c) Has the Crown satisfied him beyond reasonable doubt that the appellant punched the complainant in the face?

(d) Has the Crown satisfied him beyond reasonable doubt that the appellant kicked the complainant in the legs?[2]

[5] On 2 December 2016, the Magistrate delivered his verdicts orally and provided written reasons (Reasons),[3] finding the appellant guilty in relation to two charges of unlawful assault (charges 1 and 4) and not guilty of the other two charges of unlawful assault (charges 2 and 3). Immediately upon conviction, the Magistrate proceeded to sentence the appellant, fining him $900 and recording convictions on both charges.

[6] In relation to the first issue, the Magistrate found that the complainant got out of the Falcon reasonably quickly and this action may have seen him appear to be getting out quicker than what he did. He also found that, when the complainant placed his feet on the ground, he did not move significantly from the rear door and he did not by any bodily act or gesture, attempt to apply force or threaten to apply force of any kind to the appellant, nor did he strike, touch, move or otherwise apply force of any kind to the appellant. Accordingly, the Magistrate found that the complainant did not unlawfully assault the appellant.

[7] In relation to the second issue, the Magistrate found beyond all reasonable doubt that the appellant was not acting under an honest and reasonable, but mistaken, belief that the complainant was either assaulting or about to assault him.

[8] In relation to the third and fourth issues, the Magistrate was not satisfied beyond reasonable doubt that the appellant had punched the complainant in the face nor that the appellant had kicked the complainant in the legs.

[9] By his notice of appeal filed 9 January 2017, the appellant raised six grounds of appeal in relation to his convictions.[4] The appellant's written outline sought leave to rely on a further ground of appeal. [5] At the hearing of the appeal, leave was not opposed and was granted by me.

[10] All seven grounds of appeal on conviction remained in issue at the hearing and fall to be determined by me.

[11] The appellant also appeals against his sentence on the basis that to the extent the Magistrate recorded convictions for each offence, the sentences are manifestly excessive.

[12] The appeal is by way of re-hearing on the evidence given in the proceeding before the Magistrate.[6] The appeal involves a "re-hearing" in the technical sense of a review of the record of proceedings below, rather than a completely fresh hearing.[7] This court is required to conduct a real review of the trial, and the Reasons. It must make its own determination of the relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate's view.[8] Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.[9]

[13] The charges of unlawful assault were made pursuant to s 335 of the Criminal Code 1899. The short title of the offence is common assault. Section 335 provides relevantly as follows:

Any person who unlawfully assaults another is guilty of a misdemeanour, and is liable, if no greater punishment is provided, to imprisonment for 3 years."

[14] Section 245 of the Criminal Code defines assault relevantly as follows:

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 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."

[15] Under the Criminal Code all assaults are unlawful unless justified or excused by law. One such justification or excuse is when a person acts in self-defence.

[16] Section 271(1) of the Criminal Code provides relevantly as follows:

(1) When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm."

[17] Also relevant to the facts in this case is s 24 of the Criminal Code which provides as follows:

(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."

[18] To satisfy the defence of mistake of fact under s 24 of the Criminal Code, the appellant's belief must be subjectively honest and objectively reasonable. An accused may hold an honest and reasonable but mistaken belief even though some other ordinary, reasonable person would not have been so mistaken. It is the accused person's belief which is of essential relevance.[10] This requires an assessment of the appellant's mistaken belief within the context of the circumstances as perceived by the appellant. Of course, the appellant's impression of the reasonableness of his own belief cannot logically be part of that consideration, let alone a decisive factor.[11]

[19] As stated above, in relation to charge 1, it was not in issue at the trial that the appellant had grabbed the complainant by the throat. The issue was whether the assault was unlawful and if it was not, was the appellant acting under an honest and reasonable but mistaken belief that the complainant was unlawfully assaulting him at the time.

[20] The reasoning of the Magistrate and the conclusion that the assault was unlawful is set out in paragraphs [24]-[37] of the Reasons as follows:

"[24] The complainant gave evidence that as soon as he got out of the car, the defendant who had come from the other side of the car, grabbed the complainant by the throat and slammed his head straight over the roof of the car by the throat. He said he could hear his neck creaking and he couldn't breathe. He could feel his massive pressure of weight on his neck (1-49).

[25] Ms Lecky didn't see the origin of the throat grabbing, saying that she saw the complainant getting out of the car and the defendant going from the driver's side to the other side of the car and that by the time she got out of the car and got to the back of the car the defendant had the complainant by the throat with his right hand (1-95).

[26] Mr Bray gave evidence that when the complainant and defendant first came together they were at the passenger side of the car with the complainant up against the side of the car and the defendant directly in front of him. He said the complainant was getting pushed over the actual car above him (in the rear passenger seat) but he couldn't see where the defendant was holding the complainant (1-115,116).

[27] Mr Chivers said that when the complainant got out of the car the defendant grabbed him in a way that the defendant's fingers of his left hand were at the shoulder of the complainant and the defendant's left thumb was at the throat of the complainant (2-5). He described seeing the defendant using his left hand which is different to that described by Ms Lecky but he was viewing this interaction through a rear-vision mirror (2-12).

[28] The defendant said in his evidence that having made the decision that the complainant was a high threat, he immediately went to push him backwards, his arm reached out and it was straightaway at the bottom of his neck, the top of his chest, but straightaway it was instantaneous at the bottom of his neck and then he pushed him back in to the side of the car (2-19). In cross-examination he said that he placed his hand towards the top part of the complainant's chest around the collar bone area (2-40). He said that after he pinned the complainant down he told him he was under arrest (2-19).

[29] The defendant was the District Duty Officer (DDO) at the relevant time. At the conclusion of the incident he completed the Gold Coast District Duty Officer Activity Log. A copy of it is exhibit 1 in these proceedings. Item 32 concerns this incident. Paragraphs 2 and 3 of item 32 are as follows:

'The DDO approached the drivers side of the vehicle due to his height he leant down at the window to ask who called out to him whilst at the traffic incident. Nobody within the vehicle initially responded. The DDO then pointed at the male in the front passenger seat and asked if it was him, at this time the older male seated in the middle of the rear seat instantly became aggressive. He responded by saying, 'no it wasn't fucking him, it was fucking me, what of it?'

This male was told to get out of the vehicle, he did so quickly and with what appeared to be an aggressive demeanour. The other occupants of the vehicle all remained in the vehicle at this time. The male was told he was under arrest, he immediately started resisting. The DDO grabbed him by the throat and attempted to hold him against the vehicle whilst getting his handcuffs out. The male overpowered the DDO and he could not get the handcuffs on....'

[30] When questioned about this in cross-examination and in particular about that part of the entry which said "the DDO grabbed him by the throat" the defendant said (2-43) that his evidence given in court (about how he went to push at the chest and his hand slipped up to the throat) was no different to what was stated in the log. He explained that the log was a briefing for the Chief Superintendent who does not wish to know every single detail of what happened throughout the shift. Whilst the actual position of where the two came together is not mentioned in the log the rest of it seems to be a rather detailed rendition of what occurred.

[31] When further questioned about this in cross-examination he accepted that his version there recorded by him in the log, where it is recorded the he told the male he was under arrest and the male immediately started resisting was not consistent with the evidence he had given in court about what occurred (which was that he told the complainant he was under arrest when he had him on the vehicle after he had a hold of him). The evidence he said that he had given in court was the correct evidence (2-42).

[32] The defendant also accepted that he completed the "Queensland Police Service Significant Event Message". It is exhibit 2 in the proceedings.

'At about 3:50pm on incident date the Gold Coast DDO (South) intercepted a motor vehicle to question its occupants regarding an earlier incident they were involved in. In doing so, a male passenger seated in the rear of the vehicle became aggressive and used obscenities to the officer. The male was asked to exit the vehicle, he did so and his aggression escalated at which time he was advised he was under arrest. This male immediately resisted the officer who was unable to apply handcuffs....'

[34] It is remarkably similar to exhibit 1 in that it recorded that the man was informed he was arrested and then he resisted arrest. That sequence of events is different to the evidence the defendant has given in court in this hearing. Here he maintains that either the complainant was assaulting him or he mistakenly believed that the complainant was about to assault him and he acted in self-defence. In both of the documents, exhibits 1 and 2, given to officers higher in rank than himself he advised that the complainant was arrested or told he was under arrest and then he resisted. There are some similarities in that in both documents he is stating that the complainant was acting with an aggressive demeanour or becoming aggressive. That is similar to the evidence he gave in this hearing but, it is quite different to him reporting that the man was either told he was under arrest or arrested and that he was resisting arrest. On all of the evidence I find that the complainant was never told by the defendant before the defendant grabbed him by the throat that he was under arrest.

[35] The defendant tended to minimize his actions in his evidence stating that he went to push the complainant in the chest but his hand slipped up to the complainant's throat. I am of the view that the more correct version of the throat grabbing is that which is recorded by the defendant in Exhibit 1, the DDO Activity Log which corroborates the complainant's version. I reject his explanation that the Log was never meant to expose every detail of what occurred and that is why he didn't put into it the push with his hand slipping up to the complainant's throat. Grabbing someone by the throat as a first response may be seen by an independent person as excessive use of force. Attempting to push a person and having the pushing hand slip up to the throat may not be seen by the same person to be an excessive use of force. Reasonableness of use of force and details of the origins of a physical altercation, especially in a situation such as this are always going to be matters to be carefully considered. Surely then, a DDO who was engaged in an altercation with a member of the public, when reporting the origins of that altercation to his superior officer would place sufficient detail in the report as to the correct version of the origin of the altercation rather than a version short on detail so much so that someone reading it may conclude that excessive force was used. This attempt at minimizing his actions detracts from the creditworthiness of the defendant's evidence as a whole.

[36] Having viewed all of the witnesses in the matter I find that the complainant got out of the vehicle reasonably quickly by climbing over the legs of Matthew Bray and that this action may have seen him appear to be getting out of the car quicker that what he did. I am also satisfied on the evidence that I have seen that when the complainant placed his feet on the ground having got out of the vehicle he did not move significantly from the rear door. It is obvious that he had to step out of its arc to close it. I find that he did not go around to the back of the car and I prefer the evidence of all of the occupants of the car, over that of the defendant that the complainant did not rush towards the defendant.

[37] As the complainant did not strike touch move or otherwise apply force of any kind to the defendant and as he did not by any bodily act or gesture, attempt to apply force or threaten to apply force of any kind to the defendant, I am satisfied beyond reasonable doubt, that the complainant did not unlawfully assault the defendant." [emphasis added]

[21] Having found that the complainant did not rush towards the appellant and therefore did not unlawfully assault the appellant, the Magistrate considered that the issue of whether the appellant was acting under an honest and reasonable, but mistaken, belief that the appellant was either assaulting him or about to assault him, turned on three matters. First, the quickness of the complainant alighting the vehicle as he was instructed to do so by the appellant; second who rushed at who; and finally, where the parties came together.[12]

[22] The Magistrate's reasoning in finding that the s 24 defence did not apply is set out at paragraph [40] of the Reasons, as follows:

"[40] As I have said before the defendant first took hold of the complainant at the side of the car in a position just towards the rear of the car from the rear passenger side door. As I have also said before, the complainant did not rush towards the defendant. This issue of honest and reasonable but mistaken belief turns on whether the defendant upon seeing the complainant land with his feet on the ground outside the vehicle and move towards the rear of the vehicle thereby allowing him the space to shut the rear passenger door, whether that could have been considered by the defendant as being preliminary to an unlawful assault upon the defendant by the complainant. If on the facts, the complainant's actions went beyond what he has said I would not be satisfied beyond reasonable doubt that the defendant was not acting under and honest and reasonable but mistaken belief that the complainant was in the process of or preliminary to, unlawfully assaulting him but as I have found on the facts the complainant simply got out of the car albeit quickly, and had to move slightly to the side to allow space to shut the door. He shut the door and he was then set upon by the defendant. I find beyond all reasonable doubt that the defendant was not acting under an honest and reasonable but mistaken belief that the complainant was either assaulting, or about to assault the defendant."[emphasis added]

[23] By this appeal, the appellant challenges the Magistrate's findings in relation to the first assault and that a conviction for count 4 automatically followed, for a myriad of reasons, as set out below:

(a) First, on the general basis that the findings of guilt are unreasonable, in that it was not open to the Magistrate on the whole of the evidence, to be satisfied of the appellant's guilt of the two offences beyond a reasonable doubt (Ground 1);

(b) Second, by "preferring the evidence of prosecution witnesses over that of the appellant", the Magistrate failed to properly apply the onus of proof. In other words, the Magistrate failed to approach the matter correctly, namely putting the evidence of the appellant to one side, and then considering whether, independently of the appellant's evidence, the evidence called by the prosecution was capable of proving the offences beyond reasonable doubt, thereby occasioning a miscarriage of justice (Ground 2);

(c) Third, the Magistrate failed to direct himself in accordance with R v Markuleski, in that, despite experiencing a reasonable doubt about the truthfulness or reliability of the complainant's account with respect to charges 2 and 3, he failed to have regard to that doubt when considering the complainant's account with respect to charges 1 and 4, thereby occasioning a miscarriage of justice (Ground 3);

(d) Fourth, the Magistrate erred in failing to give proper reasons for accepting the evidence of the complainant in relation to charges 1 and 4 despite rejecting his evidence in relation to charges 2 and 3, thereby occasioning a miscarriage of justice (Ground 4);

(e) Fifth, the Magistrate erred in allowing a claim of privilege against self-incrimination by the complainant concerning an assault by him on one of the witnesses in the Falcon, in circumstances where there was no real or appreciable risk of criminal proceedings being taken against him, thereby occasioning a miscarriage of justice (Ground 5);

(f) Sixth, the Magistrate erred in failing to have regard for the demonstrated violent and excitable propensities of the complainant in determining:

(ii) whether on the date of the alleged offence the complainant had conducted himself in a way that either:

A. manifested a threat to apply force to the person of the appellant that in the circumstances amounted to an unlawful assault; or

B. gave rise to the honest and reasonable but mistaken belief on the part of the appellant that the complainant was threatening to apply force to him which in the circumstances amounted to an unlawful assault (Ground 6); and

(g) Lastly, the Magistrate erred in failing to have regard to the evidence of the complainant's demeanour in determining whether on the date of the alleged offences, the complainant had conducted himself in a way that either:

(i) manifested a threat to apply force to the person of the appellant that in the circumstances amounted to an unlawful assault; or

(ii) gave rise to the honest and reasonable but mistaken belief on the part of the appellant that the complainant was threatening to apply force to him which in the circumstances amounted to an unlawful assault (Ground 7).

[24] Detective Sergeant Paul James Browne, the investigating officer attached to the Ethical Standards Command at the Crime and Corruption Commission, was the first witness to give evidence in the trial. Through him the following documents were tendered or marked for identification:

1. Five photographs he had been given by the driver of the Falcon.[13]

2. The District Duty Officer Activity Log (DDO) and significant event message allegedly completed by the appellant.

3. A registration document for a Mercedes Benz Kompressor that had been involved in the traffic accident.

4. Two photographs taken at Ms Lecky's direction to show the roadside worthy incident had happened and the guardrail.

5. A map of the area marked with post-it notes as to relevant matters.

6. The recording of the evidence given by the appellant in the hearing of serious assault charges against the complainant.[14]

[25] There was also evidence at trial from the appellant and all of the other adults in the Falcon at the time: Ms Sheree Lecky, Mr Paul Chivers and Mr Mathew Bray. Mr Michael Barnao who was driving past with his wife at the time gave short evidence.[15] The appellant also gave evidence.

[26] On 15 November 2013, the complainant left home in the Falcon which was owned by his house mate, Mr Chivers. The vehicle was being driven by the complainant's partner, Ms Lecky. Mr Chivers was in the front passenger seat. The complainant's friend, Mr Bray, was seated in the rear passenger side seat. Ms Lecky and the complainant have a three year old son together. He was in a child restraint seat on the rear driver's side. The complainant was sitting in the back seat between Mr Bray and his son. The group had been for a drive to the casino where Mr Chivers had collected some winnings. They were returning home along Robina Parkway when they saw a motor vehicle accident involving a Mercedes Benz Kompressor. It was a hot day, the air-conditioning in the Falcon was not on, so the windows were down and music was blaring. As they drove past the accident the complainant said to Ms Lecky "your favourite car, a Mercedes Benz Kompressor", being a reference to a previous accident she had had with the same make of car. He then said to Mr Bray "she's compressed that". He said this louder than normal because the stereo was on.

[27] The appellant who was attending the motor vehicle accident, thought he heard the word "cunt" coming from the Falcon. He asked a female involved in the car accident who was standing in front of him at the time whether she had heard what had been called out. She said "no". The appellant then left the accident to take up with the Falcon because "I was going to take action about calling out the word, especially when there's a female there".[16] The appellant's pursuit entailed him activating the siren on his police vehicle; driving fairly quickly; changing lanes in and out of the heavy traffic; driving past the Falcon and pulling over on the left hand side of the highway. After the Falcon went past the stationary police car, the appellant pulled out again and drove closely behind the Falcon. At that point, the complainant said "this guy's pretty aggressive" and told Ms Lecky to pull over. Ms Lecky pulled the Falcon over to the left hand side of the road and the appellant's police vehicle pulled in closely behind it.

[28] The complainant did not think the vehicle was being pulled over because of the "compressor" comment, although he accepted that in his later police interview, he told police he thought "maybe he thinks I've yelled something to him". Under cross-examination at trial, he said that there were many things running through his mind as to why they were pulled over such as: because of the tattoos on Mr Chivers' arms he was thought to be a bikie; the VLAD laws; and they were driving an outdated old car typically - the type of car pulled over by the police.

[29] The appellant walked over to the driver side window of the Falcon and asked "who has called out something to me back at the traffic accident" or "who's yelling out of the car', pointing at Mr Chivers. Under cross-examination the complainant said that the appellant said "who fuckin said that". The appellant accepted that he may have sworn.[17] Ms Lecky heard the appellant say to Mr Chivers "It was fucking you, wasn't it?" The complainant said "I said something mate. What did I say?" Under cross-examination the complainant accepted he responded along the lines of "it wasn't fucking him, it was me mate". Ms Lecky heard this response from the complainant. The complainant agreed that in an interview with the police at the time he was arrested he had described himself as being "a mouth" by this response. Under cross-examination at trial he said he responded in the manner he had been spoken to.

[30] The appellant then asked the complainant to get out of the Falcon.

[31] A close scrutiny of the evidence of the events that unfolded, as the complainant complied with the appellant's request to get out of the Falcon, is crucial to a consideration of all seven grounds of the appeal.

[32] Before undertaking such a task, it is apposite to note that in his Reasons[18] the Magistrate referred to the comments of Connor J in McIntosh v Webster & Anor that:[19]

"Arrests are frequently made in circumstances of excitement, turmoil and panic. I think it would be altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances."

[33] In the present context, the subsequent observations of the Magistrate are, in my view, both instructive and fair:

"Each situation turns on its own facts though. Here there were only 2 people outside of the car, the defendant and the complainant. Whilst [sic] there may have been some elevated sense of excitement at the time the complainant alighted from the vehicle, it was hardly what could be described as turmoil and panic. Turmoil and panic was to follow."

Controversial facts: what transpired when the complainant first got out of the Falcon?

[34] The complainant's evidence-in-chief was that he was asked by the appellant to "get out of the car now" and he responded by saying "I'll get out of the car". Although in cross-examination he said his only response to the request was that he asked "why" and was told again by the appellant to "get out of the vehicle". It was suggested to Mr Bray under cross-examination that the complainant had a "tone" when he said "I'll get out of the car". Mr Bray said "there was no real tone", and that he did not think the complainant said anything at all. The appellant recalled his words to the complainant at this point were "well, get out, because I want to speak to you". At the same time, the complainant was told by Ms Lecky not to get out of the car. Ms Lecky said that the complainant told her he had to because he had been told to - but she told him it didn't matter and not to get out. Mr Bray who was seated beside him, did not want the complainant to get out either and refused to open the door. The complainant said to Mr Bray "....let me out of the car. He wants me to get out of the car". The complainant then leant over and opened the door himself, stepping over Mr Bray's legs to get out. Ms Lecky saw him climb over the top of Mr Bray and open the door as he was trying to climb over him. She then panicked, thinking it was all crazy, so she hopped out straight away and followed the appellant who had walked "to the rear of the Falcon and around".[20]

[35] By the time Ms Lecky got to the back of the Falcon the appellant had the complainant by the throat with his right hand. She went back to the driver's door to grab her phone but it was nearly flat, so she returned to where the complainant and the appellant were. She recalled the complainant saying to the appellant "what have I done?" as the appellant was holding him by the throat and pushing into him with his body.

[36] The complainant's evidence was that by the time he got out of the Falcon, the appellant was already around the other [passenger] side of the Falcon. His evidence was that "And as soon as I got out of the car, he grabbed me by the throat and slammed me head straight above the roof of the car by the throat". The appellant's evidence was that he saw how the complainant got out of the vehicle and that concerned him straight away. He was asked about what he saw and he said "I saw him get out of the vehicle over Mr Bray very quickly." The following extract from the exchange between the appellant and his counsel during the appellant's evidence in chief is relevant:[21]

"All right. So he was getting out in the manner you've described? ...Yes

Did you remain at the driver's side window or not? .. No.

Where did you go? ....I walked around to the back of the vehicle.

All right. Did you rush to the ---? - I didn't run, but when I saw the manner he was getting out of the vehicle, I did - I did walk briskly around to the back of the vehicle.

All right. Well, you went around the - to the area of the rear of the vehicle? ...Yes.

And he was, in that time, getting out of - also getting out of the other side; is that right? ------By the time that I made the rear of the vehicle, at approximately the back left point of the vehicle, he had already exited the car, and that's when he was coming at me in the manner that made me feel unsafe.

Well, just tell us about that. What was his manner? ---Well, he - I could tell by his - by his body language, by his body movement, by his facial expression, that he was aggressive towards me.

All right? ...he's - his - the fact that he just didn't get out of the vehicle and stand right beside the vehicle, He came towards me, towards the back of the vehicle. There's two levels of threat as a police officer. One is an unknown, and one is a high level threat. Had he just got out of the vehicle and stood at the back of the car, I would have treated that as an unknown level. But because he came rushing towards me, I considered that a high threat.

...... I immediately went to push him backwards, but he instantaneously, from my height to Mr Cole's height and my arm reached out, was straightway at the bottom of his neck anyway, on the top of his chest. But straightaway, it was instantaneous onto the bottom of his neck, and then I pushed him back into the side of the car."[emphasis added]

[37] It was uncontroversial that the complainant was 170cm tall and weighed 86kgs at the time. The appellant was 200cm and approximately 110kgs at the time.

[38] Under cross-examination, the appellant described having never pulled out his taser because he would rather speak to people and use his presence - his height and weight - as a show of force. But on this occasion, the evidence of the appellant was that given the way the complainant got out of the Falcon and came at him, and with his experience in policing, he knew he was in trouble - "a bloke even of my size." He expanded on this as follows, shortly afterwards under cross-examination:[22]

"Luke Cole came out of that back, rear passenger door, I was coming around. Now, the reason why I walked briskly around is because, as a police officer, you obviously keep your eyes on your person of interest then, because that person of interest then becomes a threat, as I've said- an unknown threat or a high threat. I determined he was a high threat, even when he was in the vehicle from how quick he got out of that vehicle. He was determined to get out of that vehicle. And he came from that back door. He'd already shut the door by the time I was around there. And he'd come at me and we met at that - and I just thought, nope, I'm in trouble here." [emphasis added]

[39] The appellant denied that he was going toward where the complainant was exiting the Falcon. Rather, it was the complainant coming toward the back corner [of the Falcon]. The appellant accepted "he [the appellant] was going around there" but explained that as the complainant did not just get out and stand there, "... I came around and I held him, because there wouldn't have been any need for that." It is unclear what the appellant means by "that" but I assume that it was the actions of the complainant in not remaining at the car door or apparently moving towards the appellant after he got out.

[40] Under cross-examination the appellant agreed that his perception of what was going to happen was from what he observed. Initially, it was the way the complainant got out of the Falcon so quickly that he felt was a threat to him. But more relevant was his evidence that it was when he saw the complainant's face. The appellant found it hard to articulate but said "... there was certainly aggression and anger in his face". He was also asked about his evidence that the complainant's body language was a reason and his response was "Well, his body language was that he was coming to the back of that car". He was also asked about the word "arced" and whether the complainant raised his fists. He responded "no, he didn't raise his fists up". He also accepted that [at that point] the complainant did not swear at him.

[41] Under cross-examination, the complainant was asked whether he got out in a hurry. He explained that he could not because he had a "gangly six foot -plus guy" sitting next to him "insistent that I didn't get out of the car". The complainant was then asked whether he was arced up or pumped up. And he answered "no" to both questions. He said he was "more stressed than anything". Mr Bray agreed that the complainant had to get over him to get out of the Falcon and described the complainant's exit as not in a hurry but very awkward as the complainant was trying to get over his legs. He said:[23]

"Well, the easiest way for him to get out would have been to put one leg directly over both my legs, not to put a leg in the middle and a leg over, because that's basically double handling. So yeah, he would have jumped, basically, directly over me to try and get out."

[42] In the course of cross-examination, the complainant was taken to part of the transcript of the police interview given at the time he was subsequently arrested on 26 November 2013. In particular that he had stated "I jumped out. I don't know if he's taken it as aggressive or not". It was suggested to him that by these words he was trying to convey that he had gotten out of the Falcon in such a manner that it was conceivable that the appellant took it as aggressive. The complainant responded "I don't know how he took it. But he was certainly the biggest, most aggressive officer I've ever seen, just in his whole conduct coming to the car". Mr Bray described the first contact between the appellant and the complainant as "pretty intimidating".

[43] The complainant was then asked what he was trying to convey by the words "and so I don't know if he's taken it as aggressive or not". His response was:[24]

"...I was just stating that I was getting out of the vehicle. "Jumping out of the vehicle" maybe is my poor grammar. But when you're trying to force you way past somebody that's trying to stop you from getting out, and I've been instructed by a police officer to get out, I was quite anxious to just get out and sort the situation out rather than have him trying to manhandle me out of the car, with my child present and with my partner in the car who's got fibromyalgia and seriously already stressed."[emphasis added]

[44] The complainant was asked again what he meant by the use of the expression "I don't know if he's taken it as aggressive or not" to which he replied "well, he was clearly aggressive to me". The complainant was not sure when asked under cross-examination, but he thought that he did not have time to shut the door, "as it happened that fast."

[45] I now turn to consider the appeal grounds in the context of the facts and the transcript of the proceedings of the trial.

Ground 1 - Insufficiency of the evidence on charges 1 and 4

[46] The appellant submits that the guilt of the appellant on charges 1 and 4 turns on whether the Crown can exclude that the appellant was actually either assaulted, or mistakenly thought he was assaulted by the complainant, as the complainant was exiting the Falcon.[25]

Was the evidence from the complainant about his exit of the Falcon corroborated?

[47] The appellant submits that the complainant's evidence about how he exited the Falcon is "largely" uncorroborated by the evidence of Ms Lecky, Mr Bray or Mr Chivers. The Magistrate referred to the relevant evidence of the witnesses as to how the complainant alighted from the motor vehicle at paragraphs [16]-[23] of his Reasons. He recognised that the appellant was the only witness who said that the appellant and the complainant came together at the back of the car. [26]

Ms Lecky's evidence about the complainant's exiting of the Falcon

[47] It is true that Ms Lecky did not see the appellant and complainant approach each other. By the time she got to the back of the Falcon, the appellant had already grabbed the complainant by the throat. But, in my view, it is not correct that Ms Lecky's evidence does not corroborate the complainant's on this issue. Her evidence was that the appellant went around to the passenger side where the complainant had gotten out of the Falcon. She was at the back of the Falcon and had nothing obstructing her view of the appellant who, at that time, had his hand around the throat of the complainant. Ms Lecky's evidence supports the complainant's version, that the appellant was at the passenger side of the vehicle by the time the complainant was out of the vehicle. Ms Lecky's evidence that she was at the back of the Falcon when the appellant had the complainant in a throat hold, is in direct conflict with that of the appellant, who says that he was at the rear of the vehicle with the complainant coming at him towards the back of the vehicle. Although, I note the appellant's evidence was that he pushed the complainant back into the side of the car as he came towards him towards the back of the vehicle. As discussed below, curiously it was suggested to Mr Chivers under cross-examination that the two came together "towards the gap between the two vehicles". This proposition was not put to Ms Lecky.

Mr Bray's evidence about the complainant's exiting of the Falcon

[48] It is correct to state that Mr Bray too did not see how the complainant and the appellant came together. But like Ms Lecky, Mr Bray saw the complainant was pushed up against the side of the Falcon by the appellant. His evidence was that they came together above the rear left hand side passenger seat of the Falcon which is where the complainant exited the Falcon. It was not suggested to him [as it was to Mr Chivers] that the complainant and the appellant came together "towards the gap between the two vehicles". It is correct that Mr Bray described the complainant as very excitable. At trial he said there was nothing in the complainant's actions that he would have found threatening. Under cross-examination, he was referred to an earlier police interview he gave on 23 February 2016 and his response to the question "was there any reason or was there anything that the complainant had done that would cause him to be arrested at that time?" which was:

"I probably just - as I was saying before, just his sort of mannerisms, the way he sort of acts. He's really excitable. He could have just - the way he could have jumped out of the car, even. He could have been - like he was - yeah, just like really trying to rush out of the car. But there was nothing really said from Luke. Like, Luke didn't say anything at all. Yeah. So it was obviously just like - yeah. All that I can recall he would have said - it was obviously just the way he could have jumped out of the car could have been - he could have found that sort of threatening". [emphasis added]

[49] In my view, this evidence needs to be put in context. It is really Mr Bray guessing "why the appellant may have acted in the way he did". More relevantly, he was taken to his statement and his evidence in the statement that:

"I don't recall seeing or hearing anything that would cause Luke and Sergeant Hurley to come together like that. Other than his mannerisms and the way he rushed out of the car, I'm not aware of anything Luke did that would have caused him to be arrested like that. He didn't say anything I heard or am aware of, and the only thing I can recall is the way he jumped out of the car, and if Sergeant Hurley found that threatening. Luke did get out of the car quickly, but I know he didn't run over to Hurley." [emphasis added]

Mr Chivers' evidence about the complainant exiting of the Falcon

[50] The appellant challenges the evidence of Mr Chivers that the complainant did not approach the appellant in the way suggested by the appellant. The challenge is based on Mr Chivers' evidence that he observed the incident through the side mirror only and that he only turned around once he saw the appellant had his hand on the complainant's throat. In my view, the way in which Mr Chivers observed what he said he saw is not diminished by the fact he was looking through the side mirror. He still saw what he saw. More importantly was his evidence of where he saw the two come together.

[51] Mr Chivers evidence supports that of Ms Lecky and Mr Bray in this respect. His evidence was that the complainant got out of the Falcon and the appellant was on top of him. It was suggested to him that he did not see them actually come together. His response was "I actually seen Luke get - end up against the car". His evidence was that the complainant had just got out of the car and had only just shut the door. It was suggested to him that the complainant had taken some steps and that the appellant and complainant met towards the rear of the car. The suggestion was that they came together "towards the gap between the two vehicles". Mr Chivers' evidence was that they came together at the rear passenger side door, where the quarter is at the fender, above the wheel. His evidence was "pretty well as soon as [indistinct] got out of the door - like, your right on the rear quarter as soon as the back door is opened. It wasn't actually at the back of the vehicle".

[52] In my view, all but the appellant were crucially consistent in their evidence that the complainant and the appellant came together at the side of the Falcon almost immediately upon the complaint exiting the vehicle; and not at the back or rear of the vehicle as the appellant contended. There was some confusion in my view as to exactly what the appellant's case was in relation to where he and the complainant first came into physical contact. In his evidence, the appellant referred to the "rear" and the "back" of the Falcon, but he also referred to pushing the complainant into the "side" of the Falcon. But in the DDO, the appellant's version was that after the complainant was told to get out of the vehicle, he did so quickly and with what appeared to be an aggressive demeanour. This document recorded that the complainant was told he was under arrest and immediately started resisting, and at that point, the appellant grabbed him by the throat and attempted to hold him against the Falcon whilst getting his handcuffs out. This is a different version to what the appellant gave at trial.

[53] In my view there is no merit to the appellant's argument on this issue. There was a clear basis for the Magistrate to reject the appellant's evidence on this issue and to consider, as he did, the evidence of all of the other witnesses. In my view it was open on all of the evidence to find that the complainant upon exiting the Falcon, came into almost immediate physical contact with the appellant at the rear passenger door.

The complainant being arced up, matters going to his credit and negativing mistake

[54] The appellant also points to other evidence to support the contention that the guilty verdicts were unreasonable.

[55] First, the appellant refers to the complainant's evidence that he was not pumped or arced up when he got out of the car being contradicted by:

(a) his own statement in an interview with police that he had "jumped out of the car and he did not know whether the appellant took it as aggressive or not"; and

(b) the evidence of Mr Chivers that he was arcing up to a certain degree and pumped up.

[56] The appellant argued that there were a number of matters affecting the complainant's credit that were not taken into account by the Magistrate. These were that the complainant:

(a) had been convicted of assaulting police on a number of occasions and that whilst the complainant claimed they were only verbal assaults, one of the offences included physical assault; and

(b) had assaulted Mr Chivers the day prior to the offence and at least on one other occasion.

[57] The appellant also argued that the acquittals on the other two counts of common assault amounted to findings of fact that the punch and kick described by the complainant did not occur and this reflects on both the credibility and reliability of the complainant's evidence.

[58] The appellant alleged that the Crown cannot negative mistake given:

(a) His [the appellant's] evidence that he had an honest belief that the complainant was coming at him in a manner that made him feel unsafe with aggressive body language, body movement and an aggressive facial expression; and

(b) his unchallenged evidence that "I knew I was in trouble - a bloke even of my size".

[59] Finally, the appellant submitted that there was a reasonable belief, given the speed at which the complainant exited the car, with reference to Mr Bray's evidence that when he spoke to the police he said that "the only thing I can recall is the way he jumped out of the car and if Sergeant Hurley found that threatening".

[60] The complainant was 17 years of age when the entries on his criminal history relating to assault or obstructing police were committed and he received undertakings to be of good behaviour. The complainant conceded he had been involved in a verbal assault on police on an occasion in 2001. He denied it was physical assault. These offences were dated, occurring between 11 and 17 years ago. The complainant did accept he was arced up at the time, but he commented he was always excitable.

[61] Whilst it was uncontroversial that there were previous occasions where the complainant had been dealt with for conduct against police, I accept the respondent's submissions that they do not assume particular significance in this case. In my view, when all of the evidence is considered, a previous conviction of the complainant for violence, does not demonstrate a miscarriage of justice has occurred and/or that the verdicts were unreasonable. It was just one factor to take into account in assessing the complainant's credibility.

[62] The evidence at its highest, was that the appellant jumped out of the car and was arced up and excitable. But this evidence must be seen in the context of all of the other evidence including:

1. He was doing what he had been asked to do by a police officer, that is, to get out of the Falcon;

2. The corroborated evidence of the location where the appellant and the complainant came together was at the rear passenger side door;

3. The appellant had left a car accident to pursue the Falcon because he thought someone had sworn at him (in the presence of a female who did not hear the word the appellant thought he had heard);

4. The appellant did not call in or notify other officers of his pursuit (until later); and

5. Consistent with the evidence of a number of the other passengers in the Falcon, the appellant admitted that he may have sworn when he first spoke to them.

[63] In his Reasons, the Magistrate noted the appellant's denial of punching the complainant and kicking the complainant. He also referred to the inconsistency in the evidence of the complainant and Ms Lecky, in respect of the nature of the punch and the different versions provided by the complainant in relation to the kicking incident. The Magistrate quite properly and not surprisingly, could not be satisfied beyond reasonable doubt, to convict the appellant on these charges. Separate to this issue, there was, in my view, independent cogent evidence to support the version of the complainant in relation to charge 1 and that the appellant acted unlawfully in assaulting him when he exited the Falcon.

[64] As discussed above, there was evidence from other passengers in the Falcon who saw the complainant exit the Falcon and come together with the appellant at the side of the car. This location is important because it does not support the appellant's case that it was the complainant coming to the back of the car that caused him to act in self-defence or to have an honest and reasonable but mistaken belief that he was going to be attacked.

[65] In circumstances where there was independent evidence supporting the account of the complainant, there is no basis to support a conclusion that all of these matters ought to have given some doubt as to the complainant's reliability and credibility in relation to what he says occurred when he exited the Falcon.

[66] The appellant contends that the prosecution could not negate the defence of "mistake". The Reasons show that the Magistrate carefully considered such a defence.[27] The Magistrate found from independent evidence that, after the complainant exited the Falcon, he and the appellant came together at the side of the car near the passenger side door. That evidence included that the complainant was not at that point saying anything to the appellant, the appellant did not have his fists raised and the appellant could not point to any physical action by the complainant except to say he was "arced" and there was aggression and anger in his face.

[67] In these circumstances, the complainant's actions could not and did not provide the appellant with an honest and reasonable but mistaken belief that the complainant was going to assault him. In my view, the Magistrate correctly considered the defence available to the appellant and excluded it based on all the evidence.

Was there reasonable doubt in relation to charge 4?

[68] The appellant contends that the court ought to have a reasonable doubt as to whether count 4 "as particularised by the prosecution, namely a common assault constituted by the presentation of the Taser and the words spoken" occurred.

[69] In support of this contention, the appellant referred to the concession by the prosecutor during the trial,[28] that to convict the appellant, the court would need to be satisfied that the following exchange of words, as described by the complainant, occurred:

"The complainant What are you doing mate? Are you going to taser me now? What's going on?

[70] During his closing address the prosecutor stated as follows[29]:

"The issue of the taser, in my submission, is relevant because it's accepted by Mr Hurley that he did draw the taser. To convict Mr Hurley of the taser incident, your Honour would have to be satisfied with the evidence of Mr Cole on that point. That in producing the taser, Mr Cole had asked him if he was going to taser him, to which the defendant, on Mr Cole's account, answered in the affirmative, so in my submission, to accept - to find Mr Hurley guilty of the taser offence, your Honour would have to be satisfied of the evidence of Mr Cole on that point, because the bodily act of gesture in presenting the taser towards Cole with an indication he wished to taser him would amount to a common assault, which would require the acceptance of Mr Cole's evidence on that point."

[71] The appellant complained that that the Reasons do not make any reference to this evidence when considering whether the appellant was guilty of charge 4, and therefore, this court cannot be satisfied that the exchange of words occurred because:

(a) Ms Lecky did not give evidence that this exchange of words occurred and instead said that the complainant said he was not going to let the appellant taser him because he had done nothing wrong;

(b) Mr Bray gave evidence that there was a verbal altercation after the taser was drawn but not that the words stated by the complainant were said;

(c) Mr Chivers gave evidence that after the taser was drawn, the complainant was arguing with the appellant and the appellant was commenting to the complainant about him being a cat - but he did not give any evidence of the words said by the complainant; and

(d) The appellant denied the exchange of words had occurred.

[72] This issue needs to be considered in light of three matters.

[73] First, at the end of the Crown case at trial, the prosecutor referred to the particulars for charge 4 to be:

"Drawing his Taser and pointing it at the complainant thereby threatening to use it and saying words to the effect, "I'm going to taser you."

[74] The prosecutor then asked for the deletion of the words "and saying words to the effect of "I'm going to taser you". The reason for the amendment was explained by him as follows:

"The evidence that came out in the trial was that Mr Cole had said words to the effect, "Are you going to taser me? And his evidence was that Mr Hurley said yes. So in my submission, the amendment or deleting those words is not prejudicial to the defendant, who relates the same incident, and is a matter of evidence in terms of whether the evidence satisfies a tribunal".[30]

[75] The particulars of court 4 were then amended to be: "Drawing his Taser and pointing it at the complainant thereby threatening to use it".

[76] This amendment was made with no objection by defence counsel. There was no submission by the defence that the particulars needed to be amended to replace the deleted phrase with words to the effect that the appellant had said "yes" after being asked by the complainant "Are you going to taser me?"

[77] Second, it was not suggested to the complainant under cross-examination that his version of what had occurred, that is that the appellant had said "yes" when the complainant had said to him words the effect of "Are you going to taser me" had not taken place .[31] The appellant's evidence in chief was that after he had fallen off over the guardrail, he was on his back and he drew his taser as he still felt the threat because the complainant was on top of the guardrail verbally abusing him. So he merely pointed the taser.[32] His evidence was that he was not saying anything at that time but the complainant was "saying things". The appellant then got back on his feet and jumped over the guardrail and had a conversation with the complainant and found it necessary to draw the taser again because the complaint was moving towards him and he felt threatened. The appellant said he had the taser up and said to the complainant "this is a taser, get on your knees". He recalled the complainant responded by saying "you're not going to taser me. I've done nothing wrong".[33]

[78] Finally in my view, the concession made by defence counsel at the outset of his address at the end of the trial bolsters the view that this ground is unmeritorious.[34] The appellant's written submissions do not identify this concession which was referred to at paragraph [41] of the Reasons as follows:

"[41] As conceded by the defendant's counsel having found that the defendant was not acting in self-defence either to ward off an actual assault nor to ward off an assault he honestly and reasonably believed was happening or about to happen it follows that the drawing of the Taser, pointing it at the complainant and thereby threatening to use it was not lawful and constitutes an assault on the complainant."

[79] This reference to a concession is to the exchange between defence counsel and the Magistrate at trial.[35] During this exchange, the experienced defence counsel accepted that if the prosecution had proved beyond reasonable doubt that the appellant was acting unlawfully at the point when the complainant got out of the car, then the later presentation of the taser "more than likely would not have been justified at that point". Shortly afterwards, the concession was more unequivocal. The Magistrate said "The taser's not in dispute". Counsel said "That's right" to which the Magistrate said "and I thank you for your concession that if the other one falls against your client then the taser should probably fall against your client as well". Defence counsel said again "That's right".

[80] During the hearing before me, counsel for the appellant (who did not appear at the trial) when taken to this passage, quite properly accepted this was a very clear concession and said without conceding the point, "I don't really think I can take that ground any further, or that particular complaint any further".[36]

[81] On the above analysis, I do not consider this argument by the appellant has any merit.

[82] On a review of the whole of the evidence before the Magistrate, I find no error in the Magistrate's reasoning. It was open, in my view, for the Magistrate to find the appellant guilty of counts 1 and 4 and reject the defence of s 24 acting in conjunction with s 271 of the Criminal Code.

[83] Before I turn to address the remaining grounds of appeal, it is instructive to note at this juncture, that there is a considerable degree of overlap between these grounds and the various issues raised and discussed above under ground 1.

Ground 2 - failure to properly apply the onus of proof

[84] In my view, there is no basis to the appellant's complaint that the Magistrate, in stating that he preferred the evidence of the prosecution witnesses' over the appellant's, failed to properly apply the onus of proof. This criticism, once the evidence and the Reasons are considered, does not bear scrutiny.

[85] The Magistrate was, in my view, correct in his method of analysing the evidence in relation to each of the charges. He particularised the case against the appellant in respect of each of the charges, identified the defences that had been raised and the onus on the prosecution to negate the defences beyond reasonable doubt. The Magistrate quite obviously, in my view, carefully considered each charge separately on the admissible evidence that related to that charge. The Magistrate, upon being satisfied that the prosecution had proved the elements of charges 1 and 4 beyond reasonable doubt, did not take a broad brush approach in relation to charges 2 and 3. He quite correctly returned to the elements and to the defences and considered all of the evidence in relation to the charges.

[86] There is, in my view, no basis to this ground of appeal.

Ground 3 - failure to apply the Markuleski principle

[87] The appellant contends that the Magistrate failed to direct himself in accordance with the Markuleski principle.[37] Whilst no direction was asked for by the appellant's counsel at hearing, the appellant submits there was an obligation on the Magistrate to direct himself in accordance with Markuleski and that a failure to do so was crucial to the complainant's credibility and reliability, which was the central issue in the trial. The appellant submits a miscarriage of justice was occasioned by that failure.

[88] The Magistrate's reasoning in finding that he was not satisfied beyond reasonable doubt that the punch had occurred is set out at paragraphs [42]-[48] of the Reasons as follows:

"[42] When being shown the set of five photographs which ultimately became exhibit 7 in this proceeding the complainant, on viewing photograph #2 indicated that the mark on his chin was as a result of being punched in the face with the defendant's handcuff when he pushed the defendant away from him (1-51, 52). This occurred, he said, when he hit the defendant's arm away from him and he was pushing him backwards before the defendant fell back over the railing (1-56).

[43] Ms Lecky describes the punch a little differently. She said that when the complainant was getting out of the car she also got out of the car and followed the police officer around to the passenger side of the car. She said by the time she had got to the back of the car the defendant had the complainant up by the throat with his right hand (1-95). She said that the defendant, whilst holding the complainant around the throat was pushing his body into him. She says that the defendant then took his hand away and pushed the complainant up with his left hand and he was trying to get his handcuffs out with his right hand and he sorted started losing grip of the complainant and he "quickly did like this little jab to his face with his right hand".

[44] By this stage, with the defendant and the complainant grappling each other, one could describe the situation as being excitement, turmoil and panic and witnesses recollections of what precisely took place may be amiss.

[45] Neither Mr Bray nor Mr Chivers saw the punch. If it occurred, that is understandable as they remained in the vehicle.

[46] The defendant denies punching the complainant.

[47] It is obvious that the complainant suffered some sort of trauma to his chin but I am not satisfied beyond a reasonable doubt that it occurred in the manner stated by the complainant nor in the manner stated by Ms Lecky. As I have said, in these circumstances their recollections may not be entirely correct. This doesn't detract from their credit as witnesses to what occurred previously when the complainant alighted from the vehicle.

[48] The defendant's counsel argues that it's conceivable that the defendant's hand or some other part of his body came into contact to cause the injury depicted in photograph 2 of exhibit 7. This quite conceivably could explain the injury depicted. I simply can't be satisfied beyond a reasonable doubt that the defendant punched the complainant in the face." [emphasis added]

[89] The Magistrate's reasoning for not being satisfied of the kick occurring as the complainant had stated are set out in paragraphs [49]-[54] of the Reasons as follows:

"[49] The complainant gave evidence that when he was running away from the scene he observed the defendant get back into the police car and was driving towards him. Then he pulled up the car and started running after him. He said that the defendant was quicker than he expected and he was able to get close enough to him to kick the complainant in the legs and nearly trip him up (1-50). The defendant denies catching the complainant and kicking him in the legs. When cross examined the complainant admitted that when questioned about this on an earlier occasion by an investigating officer he said;

[50] '.... I've gotten over the bridge and then he come flying up again and sort of parked at the median strip. And then I just went I'm outa here. I've run up the road and he's tried to kick me. He kicked me in the leg twice and I went over......'

[51] When questioned about this further (1-83) in trying to explain the difference the complainant said

[52] 'Well when he's kicked me I was obviously tripping and he's possibly tried again. But I gathered my feet - and ran off.'

[53] Given the differences in versions between the complainant's evidence and what he had said to an earlier investigator about the matter, and the defendant's denial that he ever kicked the complainant in the manner alleged and the fact that there is no other witness to the event, I cannot be satisfied beyond a reasonable doubt that the defendant kicked the complainant as alleged.

[54] By the stage of the complainant running away from the defendant one could properly describe the situation as one of excitement, turmoil and panic. The complainant's different recollections about the alleged kick, and my finding that I couldn't be satisfied of them beyond a reasonable doubt do not detract from the credit of his recollections and evidence of the first grabbing of his throat." (emphasis added)

[90] A Markuleski direction addresses the unfairness to a defendant that can follow if, given the state of evidence, an acquittal on all counts reasonably follows if any part of the complainant's evidence is rejected. As identified in the appellant's written submissions, in its usual form, it requires a jury to consider why they have a reasonable doubt about some aspect of the complainant's evidence and whether that causes doubt about the complainant's evidence relative to any other count.

[91] Such a direction is not always necessary but depends on the circumstances of the case.[38]

[92] In R v Ford [2006] QCA 142, Keane JA discussed the relevant considerations as follows:[39]

"[127] In my view, the risk identified in Markuleski did not arise in this case for three reasons. First, this was not a case of 'word against word' based on the evidence of a single complainant about a number of offences arising out of one episode of wrongdoing by a single accused.

[128] Secondly, there were in the present case aspects of the evidence which could logically have led the jury to acquit the appellant on some counts without that acquittal necessarily implying that such a conclusion damaged that complainant's credibility or reliability in relation to his account of the events which were said to give rise to the counts upon which the appellant was convicted.

[136] Thirdly, the learned trial judge's directions to the jury were sufficient to obviate any risk that the jury might not appreciate that they should convict the appellant on a particular count only if they were satisfied beyond reasonable doubt of the reliability of the complainant's evidence relating to that count." [my emphasis added]

[93] With the principles in Ford in mind, the appellant submits the present situation was a word against word case in respect to the complainant's conduct after he exited the car. The appellant contends that the complainant's evidence that he did not rush at the defendant is uncorroborated except in a limited way by Mr Chivers.[40] For the reasons discussed above, I do not accept this submission.

[94] The appellant also submits that it is a single episode of wrongdoing (suggesting that even though the kick is not as proximate - it is still part of the same exchange) and submits that contrary to the Magistrate's reasoning, there was no aspect of the complainant's evidence that logically allowed for an acquittal on some charges without damage being done to the complainant's credibility or reliability. To support this contention, the appellant referred to the acquittals on charges 2 and 3 which amounted to a finding that the punch and kick described by the complainant did not occur and argued that such a finding reflected on the reliability and credibility of Ms Lecky. Ultimately, the appellant's submission was that the Magistrate was in error in considering that this did not "detract from their credit as witnesses."

[95] In my view, the appellant's arguments on this point do not have any force for a number of reasons.

[96] First, the Magistrate's finding was that he was not satisfied beyond reasonable doubt of the kick and the punch as they were alleged to have occurred. It is clear that the Magistrate's reasoning in finding the appellant not guilty of charge 2 flowed from inconsistencies in the nature of the punch as identified by the complainant and Ms Lecky. In relation to charge 3, it was a denial by the appellant as to kicking the complainant and the complainant giving two previous inconsistent versions identified by the Magistrate, which resulted in him concluding that he could not be satisfied beyond reasonable doubt that the offence had been committed.

[97] Second, as discussed earlier, I consider that the evidence of the complainant is corroborated insofar as it concerns where he and the complainant came together.

[98] Finally, the Supreme and District Court Queensland Bench book sets out an appropriate Markuleski direction as follows:

"If you have a reasonable doubt concerning the truthfulness or reliability of the complainant's evidence in relation to one or more counts, whether by reference to her demeanour or for any other reasons, that must be taken into account in assessing the truthfulness or reliability of her evidence generally."[41]

[99] The crux of the appellant's argument was that the Magistrate did not properly consider what, if any, impact the rejection of both the evidence of the complainant and Ms Lecky in relation to counts 2 and 3 should have in terms of count 1 and 4. During the course of oral argument before me, counsel for the appellant referred to the very bland statement of the Magistrate that his rejection of the evidence did not detract from their credit as witnesses as to what occurred previously. And that the Magistrate ought to have explained why it was that the finding about the kick did not translate to a reasonable doubt about other aspects of the evidence.

[100] In my view, a review of the Reasons reveals that the Magistrate quite clearly turned his mind to and considered the consequences of having reasonable doubt concerning the truthfulness or reliability of the complainant's evidence in relation to charge 2 and 3 and the impact of the rejection of the complainant's evidence on these counts in terms of counts 1 and 4. He specifically referred to having to consider their credit as witnesses in relation to the other counts and, in my view, explained the reasons for his doubts on counts 2 and 3 in terms of there being excitement, turmoil and panic such that in relation to the punch, the recollections may not be entirely correct. In relation to the kick he also noted there was excitement, turmoil and panic and referred to the complainant's differing and uncorroborated recollections in that context.

[101] The appellant was convicted in relation to charge 1 on the complainant's evidence which was supported by Ms Lecky, Mr Bray and Mr Chivers that the appellant and the complainant came together at the side of the car and not at the back of the car as stated by the appellant. There was also other evidence that was available to the Magistrate which he referred to, that supported the complainant's account in terms of the assault. In particular, the DDO Log referred to paragraph [29] of the Reasons which identified that the appellant had grabbed the complainant by the throat.

[102] In my view, the Magistrate had a clear reason for not accepting the evidence of the complainant and Ms Lecky in relation to charge 2 and the evidence of the complainant in relation to charge 3. It follows there was no unfairness given the state of the evidence before the Magistrate and an acquittal on all counts did not reasonably follow upon parts of the complainant's evidence being rejected.

[103] In my view, there is no basis to this ground of appeal. The Magistrate considered why he had reasonable doubts about some aspects of the complainant's evidence and whether that caused him doubt about other aspects of his evidence, in relation to another charge, in accordance with the Markuleski principle.

Ground 4 - lack of reasons in relation to credit findings

[104] The appellant argues that the Reasons given by the Magistrate as to why he considered the credit of the complainant and Ms Lecky was uneffected by his findings on other counts do not properly expose how he arrived at the conclusions he did.

[105] In determining this ground and indeed this appeal, the observations of Pritchard J in Gartner v Brennan [2016] WASC 89 "apply equally in the Queensland context"[42] and are, in my view, most apposite to the present case:[43]

"Many cases have confirmed that magistrates are expected to undertake the work of that busy Court with expedition and with a degree of informality appropriate to the disposition of a large volume of cases. Consequently, appeal courts should not scrutinise the reasons for decision given by magistrates with an eye keenly attuned to the identification of error, and errors should not be inferred from mere infelicities of language. The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached. The adequacy of a magistrate's reasons must be assessed by looking at the reasons as a whole, including not only findings expressly made but findings to be inferred from the findings expressly made, and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced)." [44]

[106] In his Reasons, the Magistrate identified there was a difference in the facts between charges 1 and 4 and the facts in charges 2 and 3. As I concluded earlier, in my view, there was a proper basis and explanation for the decision by the Magistrate to accept the evidence of the complainant and Ms Lecky in relation to how the complainant and the appellant came together at the side of the car.

[107] During oral submissions before me, counsel for the appellant identified that this ground is caught up with ground 3, which I accept. For all of the reasons discussed above, I do not consider that the Magistrate failed to give proper reasons.

[108] In my view, there is no merit to the appellant's complaint on the basis of ground 4.

Ground 5 - wrongly allowing a claim for privilege

[109] The appellant submits that the Magistrate erred in allowing a claim of privilege against self-incrimination by the complainant concerning an assault by him on Mr Chivers, in circumstances where there was no real or appreciable risk of criminal proceedings being taken against him, thereby occasioning a miscarriage of justice. [45]

[110] The complainant was asked by defence counsel at trial whether he was in the habit of bashing Mr Chivers around the time the offences were alleged to have occurred. The complainant answered this question and said "no". He was further asked by defence counsel if he fought with Mr Chivers and assaulted him. The Magistrate suggested to the complainant that he was entitled to claim privilege and the complainant did so.

[111] The Magistrate allowed the claim for privilege against a submission by defence counsel that there was a need to demonstrate a bona fide fear of prosecution. The relevant extract is as follows:[46]

"Mr Zillman: Well, with respect, it's got to go a little beyond that. He's got to be in fear of prosecution also, your Honour.

Mr Zillman: So you're in fear are you that you may be prosecuted with respect to assaulting Mr Chivers?

Complainant: I just - not going to answer the question.

Mr Zillman: You can answer that one. Are you in fear of being prosecuted if you answer-?

Mr Zillman: Well the claim is invalid in my submission, your Honour.

Mr Zillman: I didn't bring any authorities with me in that respect. That's the law so far as I'm aware of it.

His Honour: I only thought that if the answer might tend to incriminate you in the commission of an offence that was the law, Mr Zillman. I wasn't...

His Honour: ...aware of this extra step you're talking about.

Mr Zillman: It has to be a bona fide claim where he is in...

His Honour: Not necessarily."[emphasis added]

[112] The appellant submits that the exchange between the Magistrate and defence counsel demonstrates a misapprehension as to the law on the part of the Magistrate. It is submitted that whilst no authority was provided at the time, defence counsel's submission as to the law was correct; and a proper application of the law would not have upheld the claim. This is because there was no genuine risk that the complainant would be prosecuted for an assault on Mr Chivers committed some time ago and in the absence of any complaint to the police.

[113] Before me, the respondent accepted the authorities relied upon by the appellant but argued there was no ruling because the claim for privilege was not persisted with by counsel. At first blush, this point appears to have substance. But in light of the further exchange set out below, I consider the Magistrate did make a ruling. The ruling being that the complainant did not have to answer the question (albeit at that point in time):[47]

His Honour: I wouldn't have thought that that's - that that's the test. It's never been a test in - in as far as I've been aware.

Mr Zillman: Well, that's always been the test so far as I'm aware, your Honour.

His Honour: Well, where - we differ on - on that then, Mr Zillman. Do you have any - do you want to add to this Mr, Mr Nicholson?

Mr Nicholson: Your Honour - look, my understanding is what your Honour had indicated - tend to incriminate. But I'm happy if Mr Zillman has an authority.

Mr Zillman: While I don't want to waste time trying to drag it up.

Mr Zillman: I've got a Criminal Code with me it's a bit difficult to do on the - on the run.

His Honour: You don't have to answer that question at this point in time. Thankyou"

[114] In my view, a number of considerations arise on the submissions and facts.

[115] The classic test of whether or not a witness can legitimately claim privilege is that espoused by Cockburn J in the English decision of R v Boyes [1861] EngR 626; (1861) 121 ER 730 as follows:[48]

"The danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things - not a danger of an imaginary or unsubstantial character, having reference to some extraordinary an barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct."

[116] This test is referred to as the "real and appreciable danger test".[49] As the exchange shows, the Magistrate allowed the claim for privilege against a submission by defence counsel, that there was a need to demonstrate a bona fide claim (or real fear of prosecution). The exchange suggests that the Magistrate was of the view that all that was required was that the answer might tend to incriminate in the commission of an offence. I accept the appellant's submission that a mere statement by a witness that his answer may tend to incriminate him is insufficient. The court must be able to see that there is a reasonable ground to fear that the answer may have the effect contended for by the witness.[50]

[117] I accept that the Magistrate may have made a ruling which is not supported by the authorities. Authorities he did not have at time. The difficulty in the present case was that the issue of the complainant's claim of privilege was never revisited in the trial. A review of the transcript shows that the Magistrate did not have a closed mind on the issue - he clearly left open to defence counsel to revisit the issue. For one reason or another, this did not happen. If defence counsel had considered that the line of cross-examination was one that ought to have been pursued, he should have taken steps to do so. He did not do so apparently to avoid delaying the proceedings. Given the availability of online technology and resources, such a delay could hardly have been much. It would not have been too difficult to locate the relevant authority.

[118] The respondent also submitted that defence counsel at trial argued there needed to be a real fear of prosecution whereas the authorities referred to the need being for "a reasonable ground to fear that the answer may have the stated effect" [51]. In my view, the reference to real fear as opposed to a reasonable one, makes no discernible difference. If the Magistrate had been given the relevant authorities, he may have made a different decision. However, the Magistrate was not taken to the relevant authorities. As I have said, in my view he made a ruling. But it was a ruling that he was willing to return to should it be re-agitated with the relevant authorities. A forensic decision at that time was made not do this. In these circumstances, I do not consider there was a miscarriage of justice.

[119] The appellant also contends there was a further miscarriage of justice because this was fertile ground for cross-examination, as it went to:

(a) the violent propensities of the complainant, and therefore;

(b) whether he conducted himself aggressively towards the appellant as to commit an assault or at least give rise to a reasonably mistaken belief that one was imminent.

[120] It is instructive to note at this point, the tension between appeal grounds 5 and 6. On the one hand, by ground 5, the appellant contends that he was deprived of a fair trial because he was not able to explore the complainant's propensity for violence, yet by ground 6, the complaint is that the Magistrate did not have regard to the demonstrated and excitable propensity of the complainant.

[121] In the resolve, I do not consider that the appellant was deprived of a fair trial by virtue of not being allowed to pursue this line of questioning. Some evidence of the violent propensities of the complainant was before the Magistrate. Mr Chivers gave evidence of assaults on him by the complainant including the day before (in November 2013) and on a number of other occasions. The complainant admitted to such violent propensities, in particular, in relation to Mr Chivers. He also accepted he was a very excitable person.

[122] I cannot see how further evidence of this kind would have advanced the appellant's argument that the complainant acted aggressively towards him or have given the Magistrate reason to doubt the complainant's version of his exit of the car on the day in question. It was that evidence that the Magistrate accepted did not give rise to a reasonably mistaken belief that an assault was imminent. The Magistrate's enquiry was one that needed to be assessed within the context of the circumstances as perceived by the appellant with the appellant's belief to be subjectively honest and objectively reasonable. On an assessment of the whole of the evidence, the subjective honesty and objective reasonableness of the appellant's belief was negatived.

[123] In my view, there is no merit to this ground of appeal.

Ground 6 - insufficient weight to violent and excitable propensity of the complainant

[124] The appellant submits that the Magistrate did not have regard to the demonstrated violent and excitable propensity of the complainant. It is uncontroversial that evidence of previous violent acts by a complainant or violent tendencies, either towards an accused or another, is admissible if it is relevant to issues in the trial.[52]

[125] The appellant submits that the learned Magistrate failed to have regard to the following evidence in considering, either the general credibility and reliability of the complainant, or in considering the central issue in the trial as to whether there was an actual or perceived assault on the appellant:

(a) the evidence that the complainant had been convicted of numerous other assaults on police and that at least one of those, despite his denials involved physical aggression towards a police officer;

(b) the evidence of Mr Bray that the complainant was a "very excitable" person;

(c) the evidence of Mr Chivers that the complainant was an "aggressive type of person" "a psycho" and "he was hyped up 24/7";

(d) the evidence that the complainant had assaulted Mr Chivers the day before and had given him a black eye; and

(e) the evidence that the complainant had assaulted Mr Chivers on at least one other occasion.

[126] It is worth nothing at this junction that under cross-examination, it was suggested to the complainant that he was excitable and excited on the day, to which he replied, "Well, I think I'm an excitable character at the best of time to be honest."[53]

[127] The appellant submits that the fact the complainant had a propensity towards violence and assaulting police officers was relevant to the issue of whether he had acted in this way on this occasion such that it amounted to an actual or perceived assault on a police officer.

[128] This required assessing all of the relevant evidence in relation to this issue. The appellant said that the complainant was not raising his fists and was not swearing. The facts upon which the appellant relied as forming a basis that the complainant was a threat to him were the nature in which the complainant got out of the car so quickly and what he saw in the complainant's face and his body language. It was the aggression and anger in his face and his body language as he was coming to the back of the car that he considered a threat.

[129] In my view, upon a review of all the evidence, it was open for the Magistrate to accept the evidence of the complainant, Mr Chivers, Mr Bray and Ms Lecky as to where the appellant and the complainant first came together. Having determined this issue as the Magistrate did, it followed in my view that it was not possible for the complainant to have rushed at the appellant as the appellant had contended in the manner that made the appellant feel unsafe.

[130] In the present case, the evidence of the complainant's prior convictions were before the Magistrate during the hearing, including the previous occasions where the complainant had been dealt with for assaulting or obstructing police. In my view, it cannot be said that the Magistrate erred in his use of this evidence. This is because it did not have any real significance in relation to the crucial issue for determination which was as a matter of fact, what occurred when the complainant got out of the Falcon. It was open on all of the evidence for the appellant to be convicted. In particular, as discussed above, crucially the evidence of the complainant was corroborated by the evidence of others in the Falcon at the time.

[131] In my view, there is no substance to this ground of appeal.

Ground 7 - failure to give sufficient regard to the complainant's demeanour

[132] The final ground of appeal on conviction is that the Magistrate erred in failing to have regard to the evidence of the complainant's demeanour in determining whether or not, on the date of the alleged offence, the complainant had conducted himself in a way that either:

(a) manifested a threat to apply force to the person of the appellant that in the circumstances, amounted to an unlawful assault; or

(b) gave rise to the honest and reasonable but mistaken belief on the part of the appellant, that the complainant was threatening to apply force to him, which in the circumstances, amounted to an unlawful assault.

[133] The Magistrate referred to the evidence of the appellant at paragraph [20] of the Reasons as follows:

"[20] The defendant gave evidence that when he intercepted the vehicle, he went up to it, leant down into the driver's side window and said, "Who called out something to me back at the traffic accident?" He said that when nobody answered he then put his hand in the window in front of the driver pointing towards the front passenger (Mr Chivers, having formed the view that perhaps it was him that said it) and said "was it you?" He admitted perhaps swearing when he said these things. He said then that the complainant said, "It wasn't fucking him, it was fucking me." He said that he then said to the complainant words to the effect of, get out because I want to speak to you. He didn't recall the complainant replying to him. He said he walked around to the back of the vehicle briskly but it wasn't a run. (2-18). He said that by the time he made it to the rear of the vehicle the complainant had already exited the car and was coming at him (the defendant) in a manner that made him feel unsafe (2-18). He said that he could tell by the complainant's body language, by his body movement and by his facial expression that he was aggressive towards the defendant. He said that because the defendant came rushing towards him, he considered it to be a high threat (2-19). He said that he immediately then went to push the complainant backwards but instantaneously, from his height to the complainant's height his arm reached out and was straightaway at the bottom of the complainant's neck on top of his chest. Straightaway, it was instantaneously on to the bottom of his neck. He then said that he pushed him back into the side of the car (2-19)."

[134] The appellant criticises the Magistrate with reference to this evidence, contending it is only a summary of the appellant's evidence. The appellant submits that the Magistrate "conspicuously failed to take this evidence into account in concluding, not only that the complainant had not assaulted the appellant, but also that the defence pursuant to s 24 was excluded.."

[135] The appellant relies on the evidence from the appellant that he could tell by the complainant's body language, body movement and his facial expression that he was aggressive towards him. This evidence was clarified under cross-examination with the focus from the appellant being what he saw in the complainant's face. This of course, must have occurred when the appellant had come around to the side of the car. He was unable to articulate exactly what it was, except to say there was certainly aggression and anger in the complainant's face. This must be seen in the context that there was no raising of fists or any words being used. The body language was that the complainant was coming to the back of the car.

[136] As discussed above, the version provided by the complainant in respect of charge 1 was supported by other witnesses and the contents of the DDO Log compiled by the appellant himself.

[137] As discussed above, it was open on the evidence, in my view, for the Magistrate to find that the complainant was not coming towards the appellant to the back of the car. Having made this finding, it followed in my view, that the appellant could not have had an honest and reasonable but mistaken belief that the complainant was either assaulting or about to assault him.

[138] In these circumstances, I do not consider there was any error by the Magistrate based on this ground of appeal.

[139] Upon the above analysis, none of the grounds of appeal raise any errors by the Magistrate. In my view, on a review of all of the evidence, convictions on charge 1 and 4 were open to the Magistrate. The appeal against conviction ought to be dismissed.

Appeal against sentence - recording of convictions.

[140] The decision to record convictions on each of the offences for which the appellant was found guilty involved the exercise of a discretion, which this court may not interfere with unless an error has been made in exercising the discretion.[54]

[141] The Magistrate reasons for recording convictions are set out in the Sentencing Decision as follows:[55]

"The cases are for and against recording convictions in differing circumstances and I don't need to go through them all. A number of them are pleas of guilt[y] [sic], thereby showing some remorse. Some were not...

I've got to consider or have regard to the nature of the offence pursuant to s 12 ss (two) of the Penalties and Sentences Act when determining whether or not to record a conviction. The nature of this offence, of course is one of common assault. The maximum penalty is three years imprisonment and assaults are of a wide ranging nature. They can be spits. They can be a push. They can be a gesture toward someone, a threat in many and varied circumstances, but the nature of the offence here was that you were a police officer in some position of power. It wasn't in a police station but you were in some position of power. In doing this the complainant complied with your direction to get out of the car. He got out of the car in accordance with your direction, when, as I have found you then set upon him. That sort of behaviour has to be discouraged of course." [emphasis added]

[142] Whilst he did not refer to all of the authorities in detail, the Magistrate specifically referred to the comments of Derrington J in R v Thomas [1997] QCA 370 that:[56]

"The factors favouring the respondent were all closely examined by the Judge and he paid full attention to the references that were given in his favour. He also properly paid attention to the fact that the respondent was only 22 years of age at the time and had an unblemished record. But, as against that, the element of deterrence against conduct of such a nature in a police station, although referred to by the learned sentencing Judge, was not fully applied. An assault in a police station by a police officer does not necessarily require that a conviction be recorded. However, having regard to the circumstances of this case, notwithstanding the positive factors favouring the appellant, the element of deterrence was not properly addressed by His Honour or, perhaps, not given sufficient weight, as indicated by his failure to record a conviction."

[143] The Magistrate also referred to the comments of Pincus JA in R v Smith [2000] QCA 390, as follows:

"The cohesion of our society depends in substantial part on public confidence in the honesty of those who administer justice. Police have extensive power. The activities can ruin reputations, can put citizens in gaol, or can save them from deserved gaol. The courts must focus on these considerations when considering sentences for police corruption."

[144] It is evident from his sentencing remarks that the Magistrate was concerned about retaining public confidence in police, and to that end, he considered general deterrence important in this case. This is apparent from his observations that:[57]

"This is not a police corruption trial but, nevertheless I think the sentence about the cohesion of our society depending on public confidence in police, and the fact that police activities can ruin reputations and put citizens in gaol, must be taken into account and they must be taken into account in respect of issues of general deterrence, as opposed to personal deterrence of you, those matters of which I have already dealt with."

[145] A report by Dr James Dodds, a consultant psychiatrist dated 1 December 2016, was relied upon by defence counsel in mitigation at the sentence. [58] The contents of this report were uncontested. Dr Dodds opinion was that that the Palm Island death in custody inquiry and the subsequent legal cases, contributed to the appellant suffering from post-traumatic stress disorder (PTSD). The report identified that the appellant had been undergoing supportive and cognitive psycho-therapy since January of 2016 and had been taking anti-depressant medication since March 2016. In Dr Dodds' opinion, as a result of this treatment, the appellant had shown some improvement in his depressive symptoms and has undergone and continued to undergo treatment targeting his PTSD. Dr Dodds also opined that the appellant was suffering from undiagnosed PTSD at the time of the offence in 2013 and that given his treatments to date, the appellant was unlikely to offend in the future.

[146] After referring to Dr Dodds' report, the Magistrate accepted that personal and general deterrence and prospects of reoffending had lesser parts to play in the sentencing equation. He also considered that the recording of a conviction would have some adverse effect upon the appellant's chances of finding some employment - but not all employment. He also took into account the appellant's lack of prior convictions, character and age.

[147] After taking all of these matters into account, the Magistrate then reasoned that:[59]

"... in my view police officers have to be deterred from behaving in the way you behaved on that particular day. The public places trust in police officers. They give them an awful lot of power and that can't be abused and at the end of the day, for those reasons and for the reasons stated in those earlier cases for sentence I quoted of Sniff and Price, I'm going to record a conviction or convictions against you." [emphasis added]

[148] The appellant submits that the Magistrate erred in the exercise of his sentencing discretion in that:

(a) despite having earlier accepted in his remarks that general deterrence had less of a role to play in the sentencing process because there was evidence the appellant was suffering from PTSD at the time of the offences, which was now being treated, essentially the Magistrate recorded convictions for reasons of general deterrence;[60]

(b) the Magistrate wrongly permitted considerations of general deterrence and denunciation to overwhelm the exercise of the discretion such that all the other factors which pointed towards not recording convictions were not given proper weight. Those factors were:

• the appellant's psychiatric condition resulting from the ordeal he endured on Palm Island;

• the appellant's long service as a police officer; and

• the impact upon the appellant's chances of finding employment and social wellbeing;

(c) a proper weighing of these factors against the limited role of general deterrence in the sentencing process means convictions ought not be recorded;

(d) this is not a case where the non-recording of a conviction would have the effect of concealing the conviction from the police service.[61]

[149] The crux of the appellant's lament is that the Magistrate did not sufficiently take into account the extent to which the appellant's uncontested diagnosed medical condition of PTSD may have reduced his moral culpability for the offending; thus moderating the need for deterrence.

[150] By way of response, the respondent makes broad and general submissions that the appellant has failed to demonstrate that the sentence imposed was beyond the permissible range; that the Magistrate did not have regard to any irrelevant considerations; and he did not fail to take into account any relevant considerations.

[151] In R v Jackson [2011] QCA 103,[62] Chesterman JA considered what a successful applicant must demonstrate on an appeal against sentence as follows:[63]

"To succeed the applicant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no one 'right' penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of fact or law."

[152] Section 12 of the Penalties and Sentences Act 1992 Qld provides a wide discretion in determining whether or not to record a conviction. This section provides:

"12 Court to consider whether or not to record conviction

(1) A court may exercise a discretion to record or not record a conviction as provided by this Act.

(2) In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including -

(c) the impact that recording a conviction will have on the offender's -

[153] The correct approach to the exercise of the discretion conferred by this section was discussed by Macrossan CJ in R v Brown: Ex-parte Attorney-General as follows:[64]

"Where the recording of a conviction is not compelled by the sentencing legislation, all relevant circumstances must be taken into account by the sentencing court. The opening words of s 12(2) of the Act say so and then there follows certain specified matters which are not exhaustive of all relevant circumstances. In my opinion nothing justifies granting a general predominance to one of those specified features rather to another. They must be kept in balance and none of them overlooked, although in a particular case one, rather than another, may have claim to greater weight."[emphasis added]

[154] In R v Sanders [2007] QCA 165, the Queensland Court of Appeal recognised that a bare possibility that a conviction may affect an offender's economic or social wellbeing or chances of finding employment is insufficient, but made the following relevant comments in relation to the discretion to record a conviction in the context of employment opportunities: [65]

"[14] In Cay, Gersch and Schell, de Jersey CJ at [5] observed that s 12(2)(c)(ii) requires a consideration as to what would, or would be likely to ensue in the particular case at hand, were a conviction recorded and at [8] stated: 'Prudence dictates that where this issue is to arise, Counsel should properly inform the court of the offender's interests in relation to employment, and his relevant educational qualifications and past work experience, etc, so that a conclusion may be drawn as to the fields of endeavour realistically open to him; and provide a proper foundation for any contention a conviction would foreclose or jeopardize a particular avenue of employment. Compare R v Fullalove (1993) 68 A Crim R 486, 492.'

[15] In the same case Keane JA at [43] expressed the view, which the Chief Justice did not demur from, that:

'... the existence of a criminal record is, as a general rule, likely to impair a person's employment prospects, and the sound exercise of the discretion conferred by s 12 of the Act has never been said to require the identification of specific employment opportunities which will be lost to an offender if a conviction is recorded. While a specific employment opportunity or opportunities should usually be identified if the discretion is to be exercised in favour of an offender, it is not an essential requirement. Such a strict requirement would not, in my respectful opinion, sit well with the discretionary nature of the decision to be made under s 12, nor with the express reference in s 12(2)(c) to 'the impact that recording a conviction will have on the offender's chances of finding employment' (emphasis added). In this latter regard, s 12(2)(c) does not refer to the offender's prospects of obtaining employment with a particular employer or even in a particular field of endeavour.'" [emphasis added]

[155] In R v Tsiaras,[66] the Victorian Court of Appeal made a number of observations concerning the relevance of a serious psychiatric illness not amounting to insanity and its relevance at sentencing as follows:

"Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoners' legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health." [emphasis added]

[156] Later, the Victorian Court of Appeal in R v Verdins [2007] VSCA 102,[67] revisited these principles, specifically noting in relation to general deterrence at sentencing that:

1. Whether general deterrence should be moderated or limited as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both."

[157] The Queensland Court of Appeal in R v CBQ [2016] QCA 125 recently and relevantly observed:

"It may be accepted that, as a matter of principle, impaired mental functioning may reduce the moral culpability of offending conduct. Where that is so, the condition affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective."[68] [emphasis added]

[158] It is uncontroversial that the evidence needs to show that the impaired mental functioning was relevant to the applicant offender.[69] In R v Rix [2014] QCA 278, Gotterson JA made the following observations which are apposite to the present circumstances:[70]

"[55] Secondly, and importantly, in instances in Queensland and comparable jurisdictions where an offender's PTSD, suffered as a result of active military service, has been recognised on sentencing, what has attracted recognition has not been the mere fact of the condition or its origin, but rather the relevance to the offender's culpability for the offending, the need for deterrence and the prospects of rehabilitation, that the condition itself or its symptoms or sequelae may have." [emphasis added]

Analysis of Magistrate's Reasons for recording a conviction

[159] The Magistrate accepted that the appellant's career as a police officer was over due to medical reasons and the proceedings. He reflected on whether the recording of a conviction would have an impact on his chances in finding employment, noting that nothing had been placed before him about that. He accepted that the conviction could "hurt" the appellant in obtaining some employment, for instance, in the security industry, but he was not sure. Ultimately the Magistrate found that the recording of a conviction would have some adverse effect upon the appellant's chances of finding some employment, but not all employment.

[160] The appellant was in his late forties and at the time of sentence, had been a serving police officer for over 29 years, including serving in isolated aboriginal communities. The Magistrate accepted the appellant had distinguished himself quite well, referring to the references from people who spoke highly of him and his work within those communities. He also referred to the appellant's involvement in the 2004 death in custody at Palm Island and to the appellant being charged and acquitted of manslaughter arising from the death. He also referred to there being a coronial finding and an appeal against the appellant and a further coronial finding which cleared the appellant of any responsibility.

[161] Dr Dodds' report referred to the main symptoms reported to him by the appellant to be flashbacks, nightmares, adrenalin rush, panic, anxiety, anger and hypervigilance.[71] His uncontested evidence was that the appellant's actions in November 2013 were strongly influenced by PTSD. In his view, the appellant's his post-traumatic stress disorder was the significant contributing factor to his conduct with respect to all the alleged offences in November 2013".

[162] The Magistrate referred to the opinion of Dr Dodds and accepted that deterrence had a lesser part to play in the sentencing equation. But when it came to the issue of whether or not to record a conviction, in my view, the Magistrate's overriding consideration was the deterrence of police officers behaving in the way that the appellant had on the day of the offences.

[163] It is true that police officers have extensive powers and public confidence depends upon them attending to their duties in adherence to the Rule of Law. Insight and measure are needed to perform such duties, particularly under the immense pressure police officers are faced with on a day to day basis. Dr Dodds identified the appellant's symptoms of PTSD to include panic anxiety, anger and hypervigilance. In my view, these symptoms are well-exhibited on the facts of this case. The appellant's behaviour in leaving a car accident because he thought someone had called him a "cunt", and pursuing the Falcon in the way that he did, was both irrational and erratic.

[164] The entire situation was of the appellant's own doing. It was unacceptable behaviour and revealed a lack of insight and measure by the appellant. His conduct was not fitting of a police officer of his long standing. He was an angry man.[72]

[165] But in my view, the appellant's conduct needs to be considered in the context of a number of relevant factors. First, the uncontroverted medical evidence of a direct causal link between the appellant's conduct on the day and his medical diagnosis of PTSD. Second, Dr Dodds' opinion that with his current and ongoing treatment for this condition, he was at little risk of re-offending. Third, it was uncontroversial that the appellant would not serve as a police officer again. Finally, given the appellant's age (he was 48 at the time of sentence), and his background and profile, I consider it very likely he will find it very difficult to find any employment, particularly with convictions recorded for these types of offences.

[166] In my view, having regard to the decisions placed before the Magistrate and the uncontroversial legal principles, the Magistrate wrongly allowed considerations of general deterrence and denunciation to overwhelm the exercise of his discretion whether or not to record a conviction.

[167] It follows that in the circumstances of this case, the learned Magistrate erred in his sentencing discretion by giving undue weight to issues of general deterrence and denunciation.

[168] Having determined that there has been such an error, it is appropriate for this court to reconsider the issue of whether or not a conviction ought to have been recorded.

Re-consideration of whether or not convictions should be recorded

[169] The appellant was 48 at the time of sentence and 45 at the time of the offences. He is the father of two children and separated from his wife in July 2013. At the time of the offences he had served as a police officer for some 29 years. He had made an application to be discharged as medically unfit from the police force and had been suspended without pay from July 2016.[73] He was living off the generosity of friends and family and sleeping on his parents' floor. Whilst there was no specific evidence of the appellant's future employment goals, I accept that a recording of a conviction will have some impact on his prospects of finding employment out of the police service.

[170] Bearing in mind the medical evidence of the direct link between the appellant's offending and his suffering PTSD, and the relevant authorities discussed above, the moral culpability of the appellant's conduct in this case is, in my view, reduced. And it follows therefore that in considering what penalty is just in all the circumstances, the need for general deterrence and denunciation is less of a relevant sentencing objective.

[171] With this principle in mind, the relevant features in this case are the appellant's lack of criminal history, his long service as a police officer and that there is at least a real possibility that the recording of convictions may have an impact on his prospects of finding employment. In all of the circumstances of this case, I consider that convictions ought not to be recorded.

[172] For the above reasons, I make the following orders:

1. The appeal against conviction is dismissed.

3. The Magistrate's orders at sentence on 2 December 2016, to the extent that they record convictions, are set aside and in lieu I order that no convictions be recorded in relation to charges 1 and 4.

[1] It was uncontroversial that, at any relevant time, the appellant made no mention to any of the passengers that he thought he heard the word "cunt" being called out.

[3] R v Hurley [2016] QMC (unreported).

[6] Justices Act 1886 s 223(1). See summary of relevant principles by her Honour Judge Bowskill QC (as she then was) in Marshall v Queensland Police Service [2015] QDC 261 at [9].

[7] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [22]; Teelo v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489 at [3].

[8] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25]; Rowe v Kemper [2008] QCA 175; [2009] 1 Qd R 247 at 253-4; White v Commissioner of Police [2014] QCA 121 at [6].

[9] Teelo v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489 at [4]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7], [65]: White v Commissioner of Police [2014] QCA 121 at [8].

[10] R v Wilson [2008] QCA 349; [2009] 1 Qd R 476 at [20], [38]-[41].

[11] Rowley v Commissioner of Police [2017] QDC 88 at [17] per Moynihan QC DCJ.

[13] These photographs were only marked for identification.

[14] Exhibit 6 (the transcript of this proceeding was marked as an aid to the court).

[15] Mr Barnao's evidence was of little relevance in this case. He did not see the appellant and the complainant up against the Falcon. He thought that they might have been walking together "in between the cars". As he drove past, he looked in his rear view mirror and saw the complainant grab the appellant and push him over the embankment by way of a shove.

[17] The appellant frankly conceded that his former partner had told him that he didn't even realise sometimes that he was swearing when he was doing so.

[19] (1980) 43 FLR 112 at 123.

[20] In the summary of evidence document exhibit "A" to the appellant's outline, this evidence is summarised at p 9, para 13, to be that Ms Lecky said the appellant walked around to the rear of the car and around to the passenger side.

[25] Paragraph 6.a. of the "Outline of Submissions on Behalf of the Appellant". There is some tension with this submission insofar as it concerns charge 4, given that the appellant also submits that the court cannot be satisfied that charge 4 occurred as particularised by the prosecution (as set out in 6.g. to 6. J. of the appellant's outline).

[27] Paragraphs [38]-[40] of the Reasons.

[28] This "concession" occurred during oral addresses at the end of the trial.

[36] Appeal hearing transcript T1-11 ll 10-14.

[37] R v Markuleski (2001) 52 NSWLR 82.

[38] R v GAW [2015] QCA 166 at [37]- [40].

[39] Although in the facts of that case he did not consider there was a need for such a direction.

[40] The appellant accepts the third reason set out in Ford is not applicable.

[42] As identified by her Honour Judge Bowskill QC (as she then was) in Hickey v Chief Executive Officer of Customs; Hickey v Commissioner of Police [2017] QDC 27 at [28], these principles apply equally in the Queensland context.

[49] As identified by the appellant, an application of that test appears in Rank Film Distributors Ltd & Ors v Video Information Centre (A firm) & Ors [1982] AC 380.

[50] Jackson v Gamble [1983] VicRp 51; [1983] 1 VR 552 at 556.

[51] Such as Jackson v Gamble [1983] VicRp 51; [1983] 1 VR 552 at 556.

[52] R v Anderson [2000] VSCA 16; [2000] 1 VR 1 at 30; Re Knowles [1984] VicRp 67; [1984] VR 751; R v Masters [1987] 2 Qd R 272.

[54] R v Lawley [2007] QCA 243 at [18] per Keane JA (as his Honour then was).

[57] With reference to R v Price ex parte A-G (Qld) [2011] QCA 87 at 43; p 14 of the Sentencing Decision.

[58] Exhibit 8 in the Sentencing Proceedings.

[59] Page 16 of the Sentencing Decision.

[60] Page 14.1-14 of the Sentencing Decision.

[61] C.f. R v Briese; ex parte Attorney-General [1997] QCA 10; [1998] 1 QD R 487 at 491.

[64] [1993] QCA 271; [1994] 2 Qd R 182 at 185: applied in R v Sanders [2007] QCA 165 at [12].

[65] At [13] with reference to R v Bain [1997] QCA 035; R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467 at [7].

[66] [1996] VicRp 26; [1996] 1 VR 398 at p 3.

[67] [2007] VSCA 102 at [32]: see also R v Yarwood [2011] QCA 367 at [24]: R v Bowley [2016] QCA 254 at [34] (where P Lyons J followed the reformulation of principles in Verdins stating that they were the current relevant principles).

[68] R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 at 400: R v Verdins [2007] VSCA 102: (2007) 16 VR 629 at [5], [32].

[69] cf R v Goodger [2009] QCA 377 at 21.

[70] [2014] QCA 278 at [55].

[72] As identified by defence counsel during oral argument at the sentence T1-15.

[73] Although the transcript suggests that it was not only in relation to these charges