_Smith v Woodward_

District Court of Queensland|2007-12-07

Aboriginal & Torres Strait Islander Legal Service (Qld Sth) for respondent

**[1] On 12 January 2006 the learned Magistrate at Maryborough imposed a Peace & Good Behaviour Order upon the appellant Cleeve Raymond Smith after a complaint was made under the Peace & Good Behaviour Act 1982 by the respondent, Christian John Woodward. The Order was made after a day-long contested hearing before the Magistrate during which Mr Smith, representing himself, cross examined witnesses called on behalf of the complainant and made lengthy submissions to the Court.

[3] On that day I heard Mr Smith's application to adduce fresh evidence and reserved my decision. I signified that if leave was refused I would proceed to determine the appeal and, for that purpose, gave each party liberty to deliver a further outline according to a timetable. That subsequently occurred.

[4] Mr Smith's Notice of Appeal asserts that both the Magistrate's decisions to make the order, and award costs, were in error. The grounds are as follows:-**

The Magistrate erred by failing to consider all the evidence presented or which could have been required to be made available by Ryan the police prosecutor at such Hearing. This file in its entirety would clearly show that Raymond Smith was the victim of the serious assault on 30.06.05. Magistrate also granted costs against the defendant which are unsubstantiated in part or total.

**[5] After the hearing on 2 November Mr Smith sent another eight page outline containing a variety of allegations against both the complainant and the investigating police officer, Craig Ryan. The gist of these complaints, as I understand them, is that the evidence of these persons before the Magistrate was untruthful; and, that evidence which might have been adduced by the appellant before the Magistrate was unavailable, or concealed by the complainant or the police officer.

[6] The proceedings concern events which occurred at a house in Tiaro on 30 June 2005. The transcript of the proceedings before the Magistrate and parts of the appellant's material are in accord about some of those events, which are in relatively small compass. It seems Mr Smith and the complainant's mother had been drinking together. The complainant came to his mother's home and some kind of altercation between the appellant and the respondent ensued, in which both were injured. Each blamed the other for the occurrence of the altercation. The investigating police officer apparently preferred the version of the respondent Mr Woodward, as did the learned Magistrate.

[7] The matter has, however, in the appellant's mind a much more complex history involving other events, and persons. An apparent consequence is, unfortunately, that much of what he says and writes is extraordinarily long, diffuse and difficult to comprehend, and has the effect of impeding efforts to understand his complaints in this appeal. Paragraph 17 of his further Outline of Argument, delivered to the Court on about 16 November 2007, exemplifies the problem:**

Any evidence relating to this matter involving the member of the Queensland Police Service Craig John Ryan, Registered Number 6459, must be brought into question now that he has brought up a matter that was dismissed on 10 November 2004 against the appellant in the Maryborough Magistrates Court. In this matter Craig John Ryan was the prosecutor involved and it was terminated on day three of the committal proceedings after Ryan was unable to proceed with the matter further, seeing that the appellant in this matter was again, the victim outside his own residence in Smith Avenue Tiaro on 18 February 2004. The appellant was confronted with a 15 year next door neighbour whilst returning from checking his steer, which was grazing at the most northern block of land in Smith Avenue Tiaro owned by a local undertaker. Livestock is permitted to perform this task providing no bulls are involved. This date was the close of nomination date for the local council elections for the Tiaro Shire. Both the appellant and ... (name deleted) were nominated by residents to run for these local government elections. The next door neighbour of the appellant in this matter had formed an unusual relationship with ... (name deleted) considering since moving into Smith Avenue Tiaro, the neighbour had an unusual amount of vehicles that visited the location of his front door. The vehicles and occupants only went ... (passage deleted). This occurred between the hours of darkness and such behaviour had never been encountered by the appellant in this matter in the street, who had been in the district for decades even though leaving through work commitments throughout the State of Queensland. This next door neighbour and these unusual occurrences was reported to ... (name deleted) by the appellant, a retired police officer himself, that this was happening in this dead end road that had maybe a mere vehicle on the odd occasion during the hours of darkness until the next door neighbours took up residence about the turn of the century. The next door neighbour then set about on a 'neighbour from hell' campaign that involved the killing of the appellant's children's hens with a firearm and when police attended such a matter he claimed the neighbour did not have a weapon. This was in spite of the fact that the appellant in this matter had witnessed the use of the firearm and the projectile remains being available with the dead poultry for examination, if the police would have been interested. This neighbour continued his business ... (passage deleted)... with no interest by the local police officer (name deleted), apart from him calling in from time to time. This neighbour (name deleted) resided next door with his spouse and ... (name deleted), who approached the appellant on that evening of 18 February 2004 with a knife drawn threatening the appellant in this matter on the public roadway outside the appellant's premises that he had built in the town decades before. In this encounter where the appellant was in fear of his life when confronted by the adult in stature, 15 year old, renowned for being a druggie and chromer who had a criminal history involving the same knife pulling incidents in the local district known to the police, called the local police officer after he claimed receiving an injury to his head from the appellant in this matter. (Name deleted) arrived and once again the police were not interested in what the appellant in this matter had to say about the events of the evening. The police officer refused to search for the knife concerned in the area and by this time the 15 year old and father, had concocted a story that the son had been hit over the head with an iron bar, even though the only injury to the 15 year old was little indeed, to what he could have sustained quite legally by any person who he drew the weapon concerned on. Any victim such as the appellant. (Name deleted) arrested the appellant in this matter and was not interested in what he had to say, only the version from his acquaintances. He charged the appellant with assault and whilst at the Watchhouse placed a further charge of assault on the father on the appellant. The appellant was bailed later that evening after having the restriction placed as a bail condition that he was not to walk on the western side of Smith Avenue Tiaro. There were no houses located on the eastern side of Smith Avenue Tiaro. All three residences in Smith Avenue Tiaro are located on the western side overlooking the Mary River with the appellant in this matter and the next door neighbour's property only having access from the roadway on the western side of Smith Avenue Tiaro. The appellant in this matter then walked the twenty five kilometres from Maryborough to Tiaro overnight as he was bailed at 2300 on the 18th February after having his mobile phone broken whilst in police custody. He had no other property in his possession or money and when he arrived at his residence after daylight on the 19th February 2004, the media interviewed him in relation to this matter and it appeared on the channel nine network that evening. This arrest matter proceeded to a committal hearing where the prosecution would not produce the extensive criminal histories of the complainants involved and this resulted with the termination of the matter against the appellant. This history is not submitted by the appellant to be self serving and has been brought about by the Affidavit of the witness in this matter, Craig John Ryan sworn at Maryborough on 13 January 2006 and attached hereto that clearly demonstrates that Ryan is unable to accept that the previous matter he was involved in had to be terminated as a retired police, who retired in good standing, don't usually go around being involved in criminal activities and if involved are being subjected to being a victim, caused it seems in both instances and outlined due to their community input or advise which has been evidenced in both the appealed matter and this previous matter that Ryan is unable to let go of the fact that this court case that was so highly reported in the Fraser Coast Chronicle had to be withdrawn. This court case of 2004 was reported after its withdrawal, on the front page of the paper mentioned as "POLE ATTACK TURNS INTO COURT BULL". Following on from this court case was the soliciting of a complaint by Ryan on the day of the Peace and Good Behaviour Order application by the respondent in this appealed matter, 12 January 2006, Ryan then furnished an unreliable Objection to Bail, Annexure, in relation to his arrest of the appellant after the Peace and Good Behaviour Matter on the 13th day of January 2006. This objection to bail by Ryan was well known within the police culture as being the payback for him having to lose face over the last court case where he was the prosecutor in 2004. Now we have the situation where all charges by Ryan in 2006 were either thrown out by Magistrate Barrett on 14 December 2006 or the subject of the no true bill on 09 March 2007. It is disgraceful to consider that this police officer Craig John Ryan, barrister, as he has given in evidence would stoop so low within the police service to use his position to falsely arrest the victim after this appealed matter was heard in the Maryborough Magistrates court on 12 January 2006. Considering that this person was the person with possession of the file in relation to Smith's complaint of grievous bodily harm on the night of 30 June 2005 makes this situation even more despicable. The withholding of evidence in this scenario is not to be tolerated by any Court and was commented on by all legal representatives for the appellant in this matter."

**[8] Much of the balance of Mr Smith's written and oral submissions is in a similar vein. The summary of the issues set out in paragraph [5] above is my attempt to distil the matters which might sensibly underpin the appeal he has brought.

[9] In oral submissions on 2 November 2007 and in his subsequent further written Outline the he also sought to adduce particular further items of evidence, some of which he was allowed to present to the Court at the hearing. The Court has power to admit further evidence[1]. The discretion will be exercised within the parameters discussed by Thomas J in Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, at 408: that the evidence could not have been obtained with reasonable diligence at the time of trial; that if the evidence had been given it would have had an important influence on the result (although it need not be decisive); and, that the evidence is apparently credible, although not necessarily incontrovertible[2].

[10] The appellant's application is to be considered in the particular context that he elected not to give evidence before the Magistrate (in circumstances where, as the transcript shows, he appeared to understand that he had a right to do so). Even if that circumstance is ignored, however, none of the additional evidence upon which he now seeks to rely meets these tests.

[11] The photographic evidence of his injuries after the events on 30 June 2005, which he presented to the Court on 2 November 2007, has to be considered in context of evidence from the transcript of proceedings before the Magistrate. It is clear from the transcript that all parties agreed a fight had taken place and the appellant sustained injuries in it. Mr Smith put the nature and severity of the injuries to the witnesses. He did not, otherwise, attempt to adduce evidence about the matter. Once these things are appreciated, it cannot be said that the photographic evidence is probative; it is nothing more than evidence of a known fact, in another form.

[12] The appellant has also sought to tender some material from the Police file including records of interview of the complainant, and his witness William Purcell and a juvenile, Saan Lincolne. The appellant cross examined Woodward and Purcell at length at the hearing on 12 January 2006. It is impossible to see how their statements affect the evidence adduced then, or might have affected the outcome.

[13] During his evidence Ryan, the police officer, referred to the record of interview of Saan Lincolne, but did not tender it. The Magistrate determined that the child need not give evidence and that his record of interview need not be provided to the appellant. The child was only eleven at the date of the subject events and these orders align with provisions of the Evidence Act 1977 regarding the evidence of vulnerable child witnesses[3]. In any event, on its face it tends to support the evidence of the complainant and Purcell, and not the appellant.

[14] The appellant also alleges evidence from the complainant's mother would have been helpful to him, and he now wishes to subpoena her to that end. This action must, also, be denied because she had provided an affidavit in the proceedings and was present in the Court on the day of the hearing - the appellant did not, apparently, attempt to call her.

[15] The appellant has also provided the Court with documents from the Tiaro police files concerning official investigations of the incident which led to the proceedings. Had that material been provided to the Magistrate at the hearing, it would simply have shown that investigations took place and that, in the result, police officers had determined not to bring any charges against the complainant, resolving instead to proceed with a charge against the appellant. Subsequently, the appellant was committed for trial after a hearing in respect of charges against him relating to the event. I understood from the appellant's own submissions the matter did not actually proceed to Trial.

[16] None of the additional evidence sought to be adduced by the appellant satisfies, then, the tests in Clarke v Japan Machines. In particular, some of it was available and could plainly have been obtained with reasonable diligence at the hearing. Any material which was not, would not have had any material effect on the result. The appellant's application for leave to adduce further evidence must, then, be refused.

[17] The appeal also fails for want of any discernable error. The Magistrate gave plain and readily understandable reasons for his decision. They show no error of reasoning, or mistake in understanding the evidence which had been adduced before him.

[18] For the sake of completeness, even if the additional evidence presented by the appellant had been admitted the Appeal is nevertheless bound, in my view, to fail. The hearing before the Magistrate took most of a day and the appellant cross examined witnesses vigorously and at great length. All the material issues were exposed and explored. There is simply no plausible suggestion from any of the extra material that any error, or miscarriage of justice, occurred.

[19] As to allegation of "unsubstantiated" costs, the Magistrate exercised the discretion open to him in a judicial manner. There is, again, no reason to interfere with his Order in that respect.

[20] For these reasons the Appeal is in all respects dismissed, with an Order that the appellant pay the respondent's costs of and incidental to it, assessed on the standard basis.**

[2] And see Warry v PB Pty Ltd [1999] QCA 154 at par [18]

Good Behaviour Act 1982

At a glance

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Catchwords

Judgment (25 paragraphs)

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Legislation Cited (1)