MacDonald v Queensland Police Service

DISTRICT COURT OF QUEENSLAND

CITATION:	MacDonald v Queensland Police Service [2017] QDC 86
PARTIES:	CLINTON SOMMERLAND MACDONALD (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	198/16
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Southport
DELIVERED ON:	13 April 2017
DELIVERED AT:	Southport
HEARING DATE:	13 February 2017
JUDGE:	Kent QC DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – where the appeal against conviction was brought pursuant to s 222 of the Justices Act 1896 (Qld) – where it was submitted the Magistrate erred in making finding of facts not available to her Honour – whether the appeal should be allowed CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS – where the appeal against conviction was brought pursuant to s 222 of the Justices Act 1896 (Qld) – where it was submitted the learned Magistrate failed to consider, and, in the alternative, erred in rejecting, the defence of accident, which was raised in material and by the appellant – whether the appeal should be allowed CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS – where the appeal against conviction was brought pursuant to s 222 of the Justices Act 1896 (Qld) – where it was submitted the conviction was unsafe and unsatisfactory – whether the appeal should be allowed Evidence Act 1977 (Qld), s 118 Justices Act 1886 (Qld), s 222, s 223 Criminal Code (Qld), s 668E Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78, cited Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited M v R (1994) 181 CLR 487; [1994] HCA 63, cited Makita (Australia) v Sprowles (2001)52 NSWLR 705, cited MFA v R (2002) 213 CLR 606; [2002] HCA 53, cited R v Banhelyi [2012] QCA 357, considered
COUNSEL:	A Nelson for the appellant K Christopherson (sol) for the respondent
SOLICITORS:	Senior Legal for the appellant Office of the Director of Public Prosecutions for the respondent

1. In this matter the appellant appeals, pursuant to s 222 of the Justices Act 1896 (Qld), against his conviction in the Magistrates Court at Southport after a trial on 26 July 2015 on a charge of serious assault of a police officer by biting or spitting.  Following his conviction he was sentenced to imprisonment. However, the severity of the sentence is not challenged on the appeal.  There was also a conviction of obstructing police which is not challenged and a third charge of public nuisance was dismissed for lack of evidence.

Grounds of appeal

2. The grounds of appeal are:

(a) The learned Magistrate erred in making a finding of fact not available to her that the appellant turned his head immediately preceding the allegation of blowing/spitting on the officer;

(b) The learned Magistrate erred in finding that the appellant blew/spat at the officer;

(c) The conviction was unsafe and unsatisfactory; and

(d) The learned Magistrate failed to consider and, in the alternative, erred in rejecting the defence of accident which was raised in material and by the appellant. 

Background and factual matrix

3. It is common ground that the appellant was on Cavill Avenue at the Gold Coast at about 2.00 am on 1 January 2016.  CCTV footage in Exhibit 1 at the trial shows the footpath crowded with people celebrating New Year’s Eve.  The footage does not record sound from the scene.  It is submitted an inference ought to be easily drawn that it was a noisy location at the time and I accept this proposition.  It was also conceded in evidence that there was noise and music.[1] 

   [1]See, for example, T1-10, L32-40. 

4. The CCTV footage shows the important interactions giving rise to the offence.  It is not in issue that the appellant had been struck (as described in some of the evidence as “sucker punched”) by another man in the period leading up to the offence.  He retaliated in some way, including kicking or attempted kicking.  At that stage, police intervened; they had not seen the details of the previous altercation. Detective Senior Constable Boddy was on the scene and his attention was drawn to the tail end of the altercation; he noticed a kicking motion.  He identified himself as a plain clothes police officer and directed them (the two apparent protagonists) apart.[2]  He said he announced this in a loud voice and the appellant looked at him, whereupon he gestured to the appellant to walk away and the appellant did so.  He noticed that the appellant had a large amount of blood on his mouth and chin area.  This is consistent with the serious injury the appellant had suffered, where a front tooth had been broken off at the gum line.  The large amount of blood is evident in a police photograph taken shortly thereafter. 

   [2]T1-44, L5.

5. Boddy asked the appellant for identification, however he did not respond and started to move away.  This resulted in the conviction for an offence of obstructing police which is not challenged on appeal. 

6. At that stage, Detective Sergeant Shannon (the complainant) stood in front of the appellant, again identifying herself as police and asking for his identification.  She said she moved slightly to his left, so that she would not be in front of his face, given that there was some blood on his lip; and he appeared to be quite intoxicated and his eyes were glassy.  When she made her request, her evidence was that he did not respond verbally but turned his head towards her and blew “blood/spit in my face”.[3]  She said it landed “all over my face”.[4]

   [3]T1-26, L36. 

   [4]T1-28, L3. 

7. This evidence, if accepted, supports the charge of serious assault which is challenged on appeal. Her description is of a deliberate spitting or blowing of the fluid.

8. The grounds of appeal are as outlined above. They chiefly or solely concern factual findings.

Nature of appeal

9. Pursuant to s 223(1) of the Justices Act 1886, an appeal under s 222 is by way of rehearing of the original evidence given in the proceeding at first instance before the Magistrate. The nature of this process means that this court “must, of necessity, observe the ‘natural limitations’ that exist” in such a procedure, such as the handicaps in evaluating witness credibility and not having heard, or been directed to, the whole of the evidence.[5]

   [5]Fox v Percy (2003) 214 CLR 118, [23].

Thus, it has been held that:

“More than once in recent years, this Court has pointed out that a
finding of fact by a trial judge (or magistrate), based on the credibility of a witness, is not to be set aside because an appellate court thinks that the

probabilities of the case are against – even strongly against – that

finding of fact . If the trial judge's finding depends to any

substantial degree on the credibility of the witness, the finding must

stand unless it can be shown that the trial judge "has failed to use or

has palpably misused his (or her) advantage" or has acted on evidence

which was "inconsistent with facts incontrovertibly established by

the evidence" or which was "glaringly improbable."[6]

In this case, the Magistrate referred to her observations of witnesses’ demeanour.[7]

Appellant’s submissions

Inadmissible opinion

10. In his challenge to the fact finding of the Magistrate, the appellant submits that at T1-50 the complainant officer gave her “opinion” of what the video footage showed:

“You can see he’s actually motioned his lips.  You can actually zoom in further, tighter on his face and you can see…”

And

“When you play it in normal motion, zoomed in, you can definitely see him blow the blood.” 

In fact, the passage referred to was in the evidence of Boddy rather than that of the complainant.  In any case, the appellant submits the passage objected to amounted to an opinion which should have been excluded, and further, that zoomed in images should also have been excluded.  Authority for these propositions is said to be found in R v Banhelyi [2012] QCA 357 at [3].

11. However, in my view the cited authority does not establish the proposition contended for.  The passage is a comment from Fryberg J about still images produced from video footage.  His Honour expressed disquiet about the way in which these images had been produced, with little examination in the evidence of exactly what that process was.  His Honour did not opine in terms that zoomed in footage is inadmissible per se.  Further, his Honour’s concern in relation to this topic was not shared by the other two members of the court.  It is understandable that proper proof of how such still images were produced should be led. However, in this case, the footage was played which the court was able to view. No point was taken at the trial about the procedure. The objection to “zoomed in” footage must be seen in the light of the broader body of legal principles as to copies of documents.[8] Complete precision is not always essential.

    [8]Compare s 118 of the Evidence Act 1977 (Qld).

12. To the extent that the passage that is objected to amounts to an opinion as to Boddy’s observation of what can be seen on the video footage, the passage may be objectionable.  It may well be that it can be styled as an unqualified statement of opinion which is impermissible; there is certainly no suggestion that Boddy was giving evidence in a field of specialised knowledge, for which he was qualified by specified training, study or experience.[9]  However in my view there is no real suggestion that the learned Magistrate placed any weight on such an observation.  Rather, she was able to view the video footage herself.  Her comment on the relevant passage is set out at p 6, L 40-42 of the decision.  The defendant had said that he was endeavouring to speak to Shannon, saying “What for?” in response to the request for identification.  Her Honour continued, “And, in my opinion, the CCTV footage of that particular incident, being blown-up, was more consistent with Detective Senior Constable Boddy’s than Detective Sergeant Shannon’s evidence and the defendant’s.”  Her Honour’s fact finding process is not shown to have depended on inadmissible evidence.

    [9]Makita (Australia) v Sprowles (2001)52 NSWLR 705, [85] (Heydon JA).

Consideration of the defence of accident

13. The appellant argues accident was specifically raised by the defence and, further, the Magistrate erred by not considering this. However, the Magistrate, in dealing with the uncontested fact that, after their interaction, blood was on the complainant’s face, continued at p 4, L 2 of the decision: 

“The issue in that respect was whether it came to be on her face as a result of a deliberate act on the part of the defendant or as a result of some fluids merely coming out of his mouth when– as a result of him endeavouring to answer a question.” 

This is an expression of the consideration of a non-deliberate (i.e. accidental) expulsion of fluid. Thus, in my view there is no demonstrated error of failure to consider a defence.

Error as to fact finding on this issue?

14. Her Honour referred in this context specifically to firstly, Shannon’s evidence of a deliberate turning of the head and blowing fluids in her face;[10] and secondly, Boddy’s evidence that, although he was not in a position to directly see the appellant’s actions, he was standing immediately behind the appellant and could hear the appellant blowing out of his mouth at the time when the blood was projected.  Her Honour further refers to this at p 6, L 11 of the decision where she indicates the CCTV footage shows Boddy in that position, such that he was able to hear such a sound.  I have viewed the footage a number of times and, although I was not able to detect what Boddy says he could see about the motioning of the lips, I share the Magistrate’s observation that the footage does indicate Boddy being in the immediate vicinity at the relevant time.  In my view, the evidence of the prosecution, particularly that of Boddy, if accepted, negates an accidental spitting and there is no basis upon which I would overturn the Magistrate’s factual findings on this issue. 

    [10]Decision, P4, L25-45; the evidence was at T1-26, L30-40.

15. The appellant also submits that the photograph of the complainant shows very few, fine droplets of blood, said to be inconsistent with a deliberate spitting.  In my view this proposition does not necessarily follow.  There was no expert or other evidence about different results from deliberate or accidental spitting. 

16. The appellant submits Boddy’s hearing of the appellant blow at the relevant time is unlikely. No doubt the noisy environment made this more difficult. However, Boddy’s evidence was he heard it.[11] The defendant was able to hear both Boddy,[12] and Shannon speaking to him;[13] the environment was noisy but not completely deafening. Thus in my view, there is no basis to overturn the learned Magistrate’s factual finding on this issue, on the evidence available.  As outlined above, Boddy was clearly in close proximity at the time.

    [11]See, for example, T1-56, L13.

    [12]T1-80, L35.

    [13]T1-81, L2.

17. The appellant denied on oath any deliberate spitting or blowing of the fluid. However, the Magistrate was entitled to act on the prosecution evidence and reject the appellant’s.

Turning of the head

18. The appellant also challenges the finding that he turned his head towards Shannon immediately before the offence.  However, the complainant gave this evidence and it was open to the learned Magistrate to accept it.  Moreover, the appellant’s evidence in chief did not contain a specific denial of this action; and it seems to have been accepted by the appellant as having occurred, in cross examination at 1-81, L41 and in re-examination at 1-82, L 17-21. There is thus no basis to overturn this finding.

Unsafe and Unsatisfactory

19. The appellant also argues the conviction is generally unsafe and unsatisfactory. This is not a statutory formula from s 222, but would normally be understood as referring to an unreasonable verdict as proscribed by s 668E of the Criminal Code. Generally, this would require a consideration of whether upon the whole of the evidence it was open to the tribunal of fact to determine beyond reasonable doubt that the appellant was guilty of the offence.[14]

    [14]MFA v R (2002) 213 CLR 606; M v R (1994) 181 CLR 487, 493.

20. No separate submissions were made in support of this ground. Presumably it rests on the other submissions made as to the alleged problems with the evidence and the fact finding process.

21. Having dealt with the other more specific arguments, in my view it was open to the Magistrate to conclude guilt.

Conclusion

22. Having found that none of the grounds of appeal has substance, the conclusion is that the appeal is dismissed.