RAS v Commissioner of Police

"The finding of guilt was unsafe and unsatisfactory and against the weight of the evidence."

[3] The appellant's Outline of Submissions raised a further ground of appeal, namely:-

"The learned magistrate exhibited bias in her approach to the appellant and this was reflected in her finding of guilt against him."

[4] The appellant's grounds of appeal in respect of the sentence are as follows:-

"The sentence imposed was manifestly excessive particularly the recording of a conviction."

"That on the 31st day of January 2001 at Kingston in the Magistrates Court, District of Logan in the State of Queensland one [RAS] being a respondent under the provisions of the Domestic & Family Violence Protection Act 1989 contravened a Protection Order made under the said Act on 11 May 2010 in the Magistrates Court at Beenleigh and [RAS] was served with a copy of the said Order."

[6] Mr RAS appeared self represented at the trial before the learned magistrate at Beenleigh on 24 May 2011.

[7] Evidence was called for the prosecution from the complainant MME and her friend LKJ.

[8] Ms MME, who was the aggrieved in relation to the DVO to which the appellant was subject, gave evidence that on Sunday, 30 January 2011 she had plans to go swimming with her daughter and her friend, LKJ, and LKJ's little brother. The appellant attended at Ms MME's house, uninvited, and was yelling at her and stating "You're a liar. You said you weren't coming home".[1]

[9] Ms MME gave evidence that she walked towards her bedroom and was trying to get a bag from the top of her walk-in wardrobe when the appellant pushed her with his body into the wall, grabbed her by the jaw and the back of her head and started hitting her head into the wall. The appellant screamed out to her friend Ms LKJ, who came in and pushed the appellant out of the cupboard, with the appellant yelling and trying to grab Ms MME over the top of Ms LKJ. Ms LKJ pushed the appellant towards the door with her body and the appellant left.

[10] The appellant, while conducting an extensive cross-examination, ended up in a robust exchange with the learned magistrate as the learned magistrate sought to have the appellant put to Ms MME the appellant's version of the relevant events said to constitute the breach of the DVO. The appellant, however, appeared very reluctant to proceed in the orthodox fashion, but eventually[2] put his version of events to Ms MME. The appellant suggested to Ms MME that he (the appellant) was rubbishing her mothering, that Ms MME had taken a swing at him and he had restrained her and put her face down on the bed while she was screaming out to Ms LKJ, and that he had then left giving Ms LKJ "a mouthful". Ms MME was adamant in cross-examination that she had never taken a swing at the appellant, and that she had her arms up above her head reaching for a bag when the appellant body-slammed her into the back wall. It was put to Ms MME that there should have been injuries but Ms MME responded that the appellant had not left any marks on her.[3]

[11] Ms LKJ gave evidence of hearing Ms MME call out Ms LKJ's name, that she had run into Ms MME's room and had seen the appellant smashing Ms MME's head against the back of the walk-in wardrobe. Ms LKJ gave evidence that she got between them, pushed the appellant away, said she was going to call police and that the appellant then left.[4]

[12] The appellant sought vigorously to put to Ms LKJ, essentially, that he disputed her version of events, although during the course of that cross-examination, there was again a robust exchange between the appellant and the learned magistrate and (as best as can be ascertained), Ms LKJ maintained her version that she had intervened in the physical confrontation between the appellant and Ms MME.

[13] The appellant gave evidence on his own behalf, which he utilised primarily as an opportunity to "vent" in respect of Ms MME and various irrelevant aspects of her lifestyle, including how she earned a living. The efforts of the learned magistrate to keep the appellant focused on the relevant trial issues resulted again in a number of robust exchanges during the course of that part of the hearing.

[14] Eventually, the appellant gave evidence that during the course of a verbal argument, Ms MME had taken a swing at him, that he had grabbed her arm, swung her around and put her face down on the bed. At this stage he then said in evidence "and she was screaming out to [Ms LKJ] by that time but as soon as I control her because, you know, like she hates - she hates the fact that like I can control her so ... easily."[5]

[15] There then followed an exchange between the learned magistrate and the appellant as follows[6]:-

Appellant: Well yeah if - if she's trying to attack me I can - I can - I can, you know stop her from attacking me.

Appellant: No, I don't feel good about it. But - I mean if - I've got to - if I've got to stop myself - if I've got to stop her from hurting me, you know, that's what I've got to do. All I did was defend myself. She screamed - she was shouting to [LKJ]."

[16] In cross-examination, the prosecutor confirmed with the appellant that the appellant was aware that a Domestic Violence Order was in place and that it included a condition that the appellant remain "of good behaviour".[7] During the course of the cross-examination, the appellant vehemently denied having grabbed Ms MME and smashed her head against the wall.

[17] The learned magistrate found that the appellant "did commit domestic violence" stating in these terms:-

"Even on your own words [a reference to the appellant] I am satisfied that you committed domestic violence, but I go even further and make findings that what happened was in accordance with what Ms [MME] and Ms [LKJ] said."[8]

[18] During the course of submissions on sentence, the appellant confirmed that two previous entries on the appellant's criminal history for breach of DVOs were (in the appellant's words) "absolutely...the same stuff ."[9]

[19] The learned magistrate in sentencing stated:-

"So, you're convicted and fined $1,200. That fine can be referred to SPER. You can pay it off through SPER, and a conviction is recorded. But Mr [RAS], I just - if you - if this sort of thing happens again, you walk away, OK? You've been taught that in your lessons, do it. All right. OK."[10]

[20] In Tierney v Commissioner of Police [2011] QCA 327, Wilson AJA set out the approach in respect of an appeal against conviction under Justices Act (Qld) 1886 as follows:-

"An appeal from a Magistrates Court to the District Court pursuant to s. 222 of the Justices Act (Qld) 1886 is a rehearing on the evidence given at trial and any new evidence adduced by leave. In other words, it involves a review of the record of proceedings below, subject to the District Court's power to admit new evidence. To succeed, an appellant needs to show some legal, factual or discretionary error."[11]

The obligation of a judge of the District Court on such an appeal has been described by McMurdo P in the following terms:-

"The District Court Judge [is] required to make his own determination of relevant facts and issues from the evidence, giving due deference and attaching a good deal of weight to the Magistrate's view."[12]

[21] In respect of the appeal ground of bias, Mr Ide pointed to a number of passages in the transcript which he submitted demonstrated that the response of the learned magistrate reflected more than just exasperation with the appellant and extended to the level of bias.

[22] With all due respect to Mr Ide's submissions, it is clear that the learned magistrate had the benefit of seeing and hearing the witnesses, and was faced with two diametrically opposed versions (that put forward by Ms MME, supported by the prosecution witness Ms LKJ, and the version given by the appellant). The learned magistrate, of course, was required to be satisfied beyond reasonable doubt that the appellant was guilty of a breach of domestic violence. Upon my review of the entirety of the trial transcript, the learned magistrate's conclusion that she accepted the versions of events given by Ms MME and Ms LKJ, and rejected the appellant's denial of any physical interaction (other than to protect himself) was the only rational assessment of the evidence which the learned magistrate could have taken. It could not be said that a conviction in those circumstances was "unsafe and unsatisfactory". On the contrary, the learned magistrate was clearly entitled to reject the evidence of the appellant and prefer the evidence of Ms MME and Ms LKJ.

[23] I note further that the learned magistrate did, at times, become rather exasperated with and engage in robust dialogue with the appellant, but none of those exchanges, in my view, could be said to amount to "bias", and most certainly did not amount to "legal, factual or discretionary error".[13]

[25] The learned magistrate imposed a fine of $1,200, clearly not at all unreasonable in the context of the appellant's two previous breaches of the Domestic & Family Violence Protection Act on 20 February 2010 and 27 April 2010.

[26] However, the learned magistrate also recorded a conviction, without seeking submissions from the appellant as to whether or not a conviction should be recorded, and the potential effect of such a conviction. It is submitted in the appellant's Notice of Appeal that the appellant "is the holder of a security licence and the recording of any conviction against him will have a detrimental effect on his ability to retain his security licence." In my view, exercising a judicial discretion to record a conviction, without calling for submissions from or on behalf of the person directly affected, is unfair to the person concerned and amounts to a breach of natural justice. It may well be, given the previous entries on the appellant's criminal history, that it was appropriate for a conviction to be recorded as a result of the appellant's conviction, but the appellant should have been given the opportunity of making submissions on the effect of the recording of a conviction upon him, so that the court could appropriately exercise the discretion whether or not to record a conviction as set out in s. 12 of the Penalties & Sentences Act 1992, with the benefit of submissions from prosecution and defence.

[27] Such an obligation to call for submissions on the recording of a conviction is, of course, even further heightened where the defendant in the proceedings is unrepresented (as the appellant was in this trial).

[28] Accordingly, I grant the appeal in respect of sentence only in respect of the issue as to whether or not a conviction should have been recorded. I will hear submissions confined to that issue, when these reasons for judgment are delivered, or at some suitable future date.

[11] Tierney v Commissioner of Police [2011] QCA 327 per Wilson AJA, para 26. See also Osgood v Queensland Police Service [2010] QCA 242 per White JA, para 20;

[12] Rowe v Kemper [2008] QCA 175 per McMurdo P, para 3; Stevenson v Yasso [2006] 2 Qd R 150 per McMurdo P, p. 162, para 36.

[13] Tierney v Commissioner of Police [2011] QCA 327, para 26.