DISTRICT COURT OF QUEENSLAND

CITATION:	Cox v Commissioner of Police [2015] QDC 220	
PARTIES:	DAVID COX 
(Appellant) 
v 
COMMISSIONER OF POLICE 
(Respondent) 	
FILE NO/S:	22/15	
DIVISION:	Appellate 	
PROCEEDING:	Appeal	
ORIGINATING COURT:	Maroochydore Magistrates Court 	
DELIVERED ON:	7th August 2015; ex tempore	
DELIVERED AT:	Maroochydore District Court 	
HEARING DATE:	7th August 2015 	
JUDGE:	Robertson DCJ	
ORDER:	1.	Appeal against conviction dismissed 
2.	Appeal against sentence dismissed 
3.	Order the appellant to pay the respondent’s costs fixed at $600	
CATCHWORDS:	CRIMINAL LAW: appeal against sentence; appeal against conviction; where the Appellant was convicted and sentenced for two counts of common assault and fined $600 in respect of both offences and convictions recorded.
APPEAL AGAINST FINDING OF FACT: where the Appellant challenges the assessment of reliability and credibility of the evidence of the complainant by her Honour; where her Honour found the non-police witnesses to be credible and the evidence to be reliable in relation to the commission of the offences; where on a real review of the evidence before her Honour there is no error of a factual kind; where her Honour concluded that the prosecution had proved beyond a reasonable doubt that, at the relevant time, the Appellant was not deprived of the power of self-control and that the force used by the Appellant was out of proportion to the provocation. 
APPEAL AGAINST CONVICTION: where her Honour did not view a video recording made by the Appellant; where her Honour was satisfied that the Appellant had sufficiently described the video recording; where her Honour concluded that the complainant’s behaviour towards the Appellant were not relevant to the witness’ credit in relation to the present matters; where her Honour ruled that the video was inadmissible evidence; where the Appellant was not permitted to cross-examine the complainant on the video. 	
	APPEAL AGAINST SENTENCE: where her Honour showed considerable leniency by taking into account the psychiatrist report; where there is no error in recording convictions; where the complainant’s behaviour was taken into account when determining sentencing. 	
	Legislation 
Criminal Code 1899
Justices Act 1886
Penalties and Sentences Act 1992 
Cases 
Browne v Dunn (1893) 6 R 67
Cox v Queensland Police Service [2015] QDC 183
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 188
NWJ v R (2005) 80 ALJR 329
R v Foley [2000] 1 Qd. R 290
R v Lawrence [2002] 2 Qd. R. 400
Shambayati v Commissioner of Police [2013] QCA 57	
COUNSEL: 	Stark, A. for the Respondent
Appellant in person 
	
[1]	This is my judgment in the matter of David Cox and Commissioner of Police, appeal number D22 of 2015.  Mr Cox has appealed to this Court against his conviction and sentence in the Maroochydore Magistrates Court on the 21st of January 2015 for two counts of common assault, both committed on 24th of September 2013 at an apartment building in Caloundra where he lived at the time.  He was fined $600 in respect of both offences, and convictions were recorded.
[2]	The appeal pursuant to section 222 of the Justices Act 1886 is by way of re-hearing in a technical sense, in that it is a re-hearing on the basis of the evidence before her Honour.  For reasons that will be apparent from the record, I permitted Mr Cox to tender, in the form of a USB stick, a series of recordings which were the subject of a ruling made by her Honour at pages 1-72 to 1-73 of the record, which is the subject of a ground of appeal which I will consider later.
[3]	At its heart, the appeal challenges the factual findings made by her Honour, which in turn were based on her assessment of the reliability and credibility of the evidence of the complainant, and Ms Flood, who witnessed part of the second incident, and Mr Cox, who gave evidence in his own defence.  It is necessary, therefore, for me to keep in mind what was said by members of the High Court in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, quoted with approval by Margaret Wilson J in Shambayati v Commissioner of Police [2013] QCA 57 at [24]:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial Judge, based on the credibility of a witness, is not to be set aside because an appellate Court thinks that the probabilities of the case are against – even strongly against – that finding of fact.  If the trial Judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his [or her] advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”
[4]	As her Honour said in Shambayati at [25]:
“As I understand what the High Court said in Fox v Percy, the District Court Judge was obliged to conduct a “real review” of the evidence and, while according due respect to the advantages had by the magistrate, to weigh conflicting evidence and draw his own conclusions in order to ascertain whether there had been an error of the type described in Devries.   He was neither obliged nor entitled to do so merely with a view to substituting his own conclusions for those of the magistrate’s.”
[5]	In accordance with Fox v Percy (2003) 214 CLR 188, I have conducted a real review of the evidence before her Honour, in the sense that I have read the transcript and her Honour’s decision, and I have seen the photographs in exhibit 1 and viewed the CCTV footage in exhibit 2 on at least two occasions
The proceedings
[6]	The trial proceeded over two days.  The Prosecution called a number of witnesses but, in reality, the crucial evidence was that of the complainant Cosimo Ronconi, who, at the time, was general manager of the company that undertook the management of the Grand Pacific Hotel at 100 Bulcock St, Caloundra.  Mr Cox owned and resided in a unit in the complex and has done so for many years.  It was common ground that the complainant was aware, prior to the 24th of September 2013, of many complaints against Mr Cox made by residents and staff at the complex, and, to put it neutrally, they did not have a friendly relationship.  I will refer to some of this evidence later in dealing with the ground relating to her Honour’s ruling to which I have referred earlier.
[7]	The Prosecution case was that on the morning of the 24th of September 2013, Mr Cox assaulted Mr Ronconi on two occasions.  The first was alleged to have been in the games room/gym area where Mr Ronconi, while doing his morning rounds, unexpectedly came across Mr Cox, who called him a “fucking bastard piece of shit”, at which the complainant walked away and said, “You’re pathetic”.  It was alleged that Mr Cox then hit Mr Ronconi in the jaw with an open hand in the manner of a cuff.  Mr Ronconi informed Cox that he would call police and did so and apparently dialled 000.  He told her Honour in his evidence-in-chief that he said, after he was assaulted, to Mr Cox, “You’re fucked – you’re going to pay for the assault”.
[8]	The prosecution case was that Mr Ronconi, while still on the phone to 000, went to the reception area of the resort intending to go to the toilets.  As he rounded a corner in a corridor leading to the toilet area, he encountered Mr Cox, who was awaiting the arrival of the lift.  It was alleged that Mr Ronconi endeavoured to stop Mr Cox going up in the lift by repeatedly placing his left leg in the door of the lift, all the time being on the phone to 000.  His justification was that he believed the police were on their way and that he wanted to hold Mr Cox there until the police arrived.  He told her Honour that while this occurred, Mr Cox kicked his leg approximately 20 times whilst in the lift and pushed him.  He finally fell, and the lift doors closed.  Much of this second incident is captured on exhibit 2, although because of the camera angle there is no view into the lift.  A witness, Ms Flood, who was a staff member, told her Honour that she heard yelling and peeked out of her door on two occasions.  She only had a glimpse of what was going on each occasion.  The first time, she said she saw pulling between the complainant and Mr Cox, and heard yelling, but she could not hear what was being said.  On the second occasion, she said she saw Mr Cox kick the complainant once in the leg.  
[9]	The complainant and Mrs Flood gave evidence and were extensively cross-examined by Mr Cox.  Having read that cross-examination, they were not substantially shaken in their recollection of their evidence by that cross-examination.  Mrs Flood had not come forward as a witness until her presence was detected upon viewing of the closed-circuit television, and she was cross-examined about the reasons for not coming forward earlier.  Mr Cox gave evidence in his own defence.  In relation to the first incident, he accepted that he saw the complainant in the games room area but that nothing was said between them, and he categorically denied that there was any assault.  As to the second incident, he denied any kicking, and essentially raised the defence of provocation, in that Mr Ronconi was detaining him against his will and preventing him from leaving in the lift, and any contact that he had with Mr Ronconi was to prevent Mr Ronconi acting unlawfully in this way.
Her Honour’s reasons
[10]	Her Honour gave an ex tempore decision.  From page 2, lines 12, to page 4, line 5, of her reasons she succinctly, but in much more detail than the summary above, set out the evidence placed before her.
[11]	She correctly identified the credit of the complainant as being “at the crux of the Prosecution case”.  She said at 5, line 18-6, line 30, by way of findings the following:
“Certainly when one looks at Mr Ronconi’s evidence and his evidence regarding his behaviour at the time of the second alleged assault, being effectively corroborated by the CCTV footage, who (sic) were independently verified in relation to what he could not hear what was being said – but certainly, in my opinion, Mr Ronconi’s behaviour after the first assault is consistent with the first assault happening.  He gave quite clear evidence about how the first assault did happen.  The Defendant’s evidence was that it did not happen, so, as has been referred to in the submissions, it is a word on word situation in relation to whether or not the assault occurred.  It seems to me, looking at Mr Ronconi’s behaviour at the time of the second assault, that none of what he did would make sense but for the first assault occurring, as he said it did.  For instance, why else would he be on a 000 phone call, which has not been contested at all, and why else would he, in his own words, be wanting to keep the defendant there until the police arrived so that the police could speak to him and take action in relation to the first assault?  That motivation also has not been contested or challenged in any affected degree.

Further, in relation to the second assault, the CCTV footage, as I said, clearly shows the Defendant pushing the complainant out of the way of the lift doors.  I will come to the defence shortly, but pushing is shown.  As I said, that is sufficient to constitute a common assault.  In relation to the Complainant’s allegations that the Defendant, Mr Cox, was kicking him in the leg, Ms Flood corroborates seeing at least one kick from the Defendant to the Complainant while they were in that position, with the Defendant in the lift and the Complainant standing, effectively straddling the lift doors.  So in my view, those pieces of other evidence do corroborate Mr Ronconi’s version of events in relation to the second offence. 

In relation to general matters related to credibility, certainly there were some gaps in Mr Ronconi’s memory, and Mrs Flood’s, as well, although, really, her role in the whole matter was very small.  She is quite clear and specific about what she saw and how she saw it, but other details of the day which ordinarily would not stick in one’s mind, one would not think, for a long period of time she was unable to remember.

In relation to Mr Ronconi, as I said, there were gaps in his memory.  He did make some admissions, effectively, against his own interest, particularly in relation to his motivation to blocking the lift door in wanting the police to come and deal with Mr Cox to the extent that he was hoping that the police would come and take him to jail.  That is certainly a fairly significant admission against interest, and that combined with the gaps in the memory, certainly counteract the vendetta theory at least to the extent that, as the Prosecutor has submitted, if that theory was correct, then surely Mr Ronconi would have made a more complete and more difficult [sic] to controvert version of events with all of the particulars.

In relation to the demeanour of the witnesses generally, as I said, it was obvious that there has been a clash between Mr Ronconi and Mr Cox in the past, and certainly on this day, it did not take long for matters to escalate quite quickly, but I found his evidence and to the same extent Mrs Flood’s, to be reasonably consistent, straightforward, and, as I said, there were various other points of corroboration for different parts of the evidence as it went along.

So generally in relation to the prosecution case, I do find these two non-police witnesses to be credible and the evidence to be reliable in relation to the commission of the offences.”
[12]	Having undertaken my own review, I cannot detect any error of the Devries kind in her Honour’s findings.  Indeed, her own conclusions accord with my own conclusions about the evidence.  Mrs Flood’s evidence confirmed, at least in relation to one kick, that Mr Cox did kick the Complainant which Mr Cox strenuously denied.  Exhibit 2 does support to a significant extent the evidence of the complainant in relation to count 2.  Her Honour’s reasoning is both logical and consistent with the evidence of the complainant and Mrs Flood’s.  Exhibit 2 supports Mrs Flood’s evidence of her looking out twice quickly on each occasion and the reaction of the complainant when he encounters Mr Cox unexpectedly in the corridor also supports her Honour’s reasoning.
[13]	Her Honour inferentially did not accept Mr Cox’s evidence that he did not assault Mr Ronconi on the first occasion and that he had not kicked him in the lift.  Although no complaint is made about it on appeal, I would urge caution about applying the rule in Browne v Dunne to unrepresented defendants as her Honour did when dealing with Mr Cox’s credibility in this case.  She did explain at the start very carefully to him the need to put contrary versions to witnesses and she explained the consequences of not doing so.  Both the High Court and the Court of Appeal have urged caution in drawing adverse inferences as to credit or, in the case of trials with juries, in directing juries that they can; and in some of the cases, it is said to be appropriate only in an exceptional case:  NWJ v R (2005) 80 ALJR 329;  R v Foley [2000] 1 Qd. R 290.  This caution must be intensified when the defendant is self-represented.
[14]	In this case, although I think it constituted an error in taking into account an adverse inference that her Honour drew arising out of the failure of Mr Cox to cross-examine both the Complainant and Mrs Flood about contrary versions, it is clear from her reasoning that this affected her assessment of the credibility only of the Defendant.  There is other evidence to which she referred which detracted from Mr Cox’s credit.  Having undertaken my own review of the evidence, it leads me to the same conclusion as her Honour, in any event, without the need to draw any adverse inference against him as to his credit because of his failure to put his case to the complainant and Mrs Flood.
[15]	The evidence of Mr Ronconi alone was sufficient, in my view, to raise the issue of provocation, but it was certainly raised in Mr Cox’s evidence.  To negative provocation, the prosecution had to satisfy her Honour beyond a reasonable doubt of one or more of the following:
1.  That Mr Cox was not the subject of a wrongful act or insult by the complainant; or

2.  That there was no provocation in terms of how an ordinary person would be likely to react; or

3.  That the defendant was, in fact, not deprived by the provocation of the power of self-control; or

4.  The defendant did not act upon the sudden and there was time for his passion to cool; or

5.  That the force used by the defendant was out of proportion to the provocation.
[16]	In her reasons, her Honour did not consider whether the complainant’s actions in putting his leg into the doorway of the lift was a wrongful act, or, to put it correctly, whether the prosecution had proved beyond a reasonable doubt that the defendant was not the subject of a wrongful act.  I have proceeded on the basis that the prosecution had not excluded beyond a reasonable doubt that Mr Cox was not the subject of a wrongful act and it is unnecessary to take that matter any further.  In my view, her Honour’s failure to consider this aspect of provocation did not prejudice the defendant or render his trial unfair.
[17]	In light of her findings of fact based on her considered acceptance of the evidence of Mr Ronconi and Mrs Flood, she concluded, correctly, in my view, that the prosecution had succeeded in proving beyond a reasonable doubt that, at the relevant time, Mr Cox was not deprived of the power of self-control and that the force used by him, ie., at least one kick, was out of proportion to the provocation.  Although at times her ex‑tempore reasoning appears to be couched in terms that might be read as reversing the onus of proof, eg, page 8, line 40 to page 9, line 10; she states clearly and correctly on a number of occasions that it is for the prosecution to negative provocation beyond a reasonable doubt, eg, page 8, lines 19 to 21.
Grounds of Appeal
(a) Appeal Against Conviction
[18]	Mr Cox again raises the report of the psychiatrist, Dr Wade, dated the 11th of May 2011.  It has no relevance to any issue as to criminal liability and was, in any event, before her Honour.  It is relevant only to the question of sentence, but its date mitigates against it having much relevance to that issue, in any event. 
[19]	 In my opinion, the record reveals a man well aware of his rights, who cross-examined the complainant for many hours.  He refers in his grounds to time in custody, which is in relation to other matters, because the uncontested evidence before her Honour was that he was arrested on the 19th of December 2013 for these offences and he did not appear to spend any time in pre-sentence custody in relation to that arrest.
[20]	Mr Cox referred in his submissions to her Honour and again to me to the injury depicted in exhibit 1.  He also refers to the unlikelihood of the complainant sustaining no injuries if he was being truthful about being kicked in the leg 20 times.  Her Honour considered all those factors and certainly there was no evidence that Mr Cox pushed or struck the complainant in the area depicted in exhibit 1.  The evidence as to how it was caused is quite equivocal.  My viewing of exhibit 2 suggests it could only have occurred when he fell, but that is speculation.  It is not a point that causes me to doubt her Honour’s credibility findings.
[21]	He raises section 23(1) (b) of the Criminal Code, but that defence is not raised on the evidence.  On the evidence, both assaults were deliberate acts.  The only defence properly raised was in relation to count 2, and that is the defence of provocation.  Although not raised by the appellant, I did consider whether section 271(1) was raised, but it clearly is not, as the actions of the complainant in trying to hold the lift door with his leg could not fall within even the wider definition of assault in section 245 of the Criminal Code.
[22]	The main area of concern on the appeal relates to ground 4 in Mr Cox’s outline of argument.  At the conclusion of the evidence of the complainant on day 1, a discussion ensued with the witness absent between Mr Cox and her Honour about some video recordings that he wished to show to the complainant during his cross-examination.  He told her Honour that, since his arrest on the 19th of December 2013, a condition of his bail was that he have no contact, directly or indirectly, with Mr Ronconi, except for contact in writing, and, for that reason, he had armed himself with a video camera.  The evidence that he wanted to show to her Honour was the evidence which is contained in exhibit 1 in these proceedings.  He told her Honour on the record that the video recordings, would show that on the 2nd of January 2014 Mr Cox was coming from the shops and at the front of the resort, the complainant came out and confronted him.  Another video taken on the 20th of February 2014, which I viewed this afternoon, Mr Cox told her Honour would show him coming up Bulcock Street to the resort coming back from court and the complainant preventing him having access to the complex.
[23]	The third recording would show a number of incidents which Mr Cox said occurred on the 8th of May 2014; and the video recording would show him coming down in a lift with his flatmate and the complainant coming at him, grabbing his camera, taking it off him, him taking it back, him gripping it again and throwing it on the road.  There was a second incident which would show him chasing Mr Cox out onto the main road yelling abuse at him and his flatmate; and there was another film of the complainant abusing Mr Cox.  
[24]	Mr Cox wanted her Honour to view the video but she refused to do this, being satisfied that she could rule based on the description of the exhibit given by Mr Cox.  Her Honour was not assisted by the submissions made by the police prosecutor.  He misunderstood the purpose for which Mr Cox intended to use the video recording.  The Prosecutor made submissions on the basis that he thought it was a question of admissibility and essentially submitted that the evidence was not relevant.  No question of admissibility or relevance had come up at that stage; and it seemed to have been conceded that such evidence was relevant to the witness’ credibility as, if accurate, it would tend to show, albeit some months later, animus and bias which might reflect on his credibility in relation to the September charges.  Of course, as  I have noted, there was evidence of pre-existing animus between both the appellant and the complainant of which her Honour was well aware.  She was concerned enough to warn the complainant prior to him giving evidence that in light of the previous conflict between Mr Cox and himself that he should keep in mind the decorum of the court; which he clearly did during the course of his evidence.  
[25]	As I noted in argument, it would have been preferable for her Honour to consider the evidence before making a ruling.  Her ruling was a considered one in that she adjourned to consider the matter and returned and gave a considered ruling commencing at 1-72 line 34 and proceeding over to 1-73 line 25.  As she noted in her reasons:
“The complainant’s behaviour on the day of these particular charges and also, perhaps, leading up to that day in relation to his dealings with Mr Cox is relevant to the witness’ credit in relation to his version of events regarding the charges before me, particularly the one offence for which it seems that the complainant’s evidence is the sole evidence in relation to the particular assault.  

However, I am not of the opinion that any behaviour by the complainant towards Mr Cox after these particular charges on the day that these alleged charges are said to have occurred is relevant to the witness’ credit in relation to the matters before me today.  For that reason, I do not consider the videos to be admissible evidence and so Mr Cox is denied from showing them to the complainant.”
[26]	As can be seen, her Honour had been led into error by the Prosecutor in that she regarded it as a question of admissibility at that stage whereas it was really a question of fairness.  As I have indicated, it would have been appropriate for her Honour to view the videos as I have done this afternoon; and it would have been appropriate to permit Mr Cox to cross-examine the witness on the basis of those videos.  If that course had been adopted, Mr Cox would have been fixed with the answers that he received in cross-examination, because evidence to the contrary would have been clearly collateral and not admissible as a consequence of the finality rule: see R v Lawrence [2002] 2 Qd. R. 400 and particularly the judgment of McPherson JA at page 405.  
[27]	In these proceedings, as I am permitted to do, I have allowed Mr Cox to tender the videos and I have viewed them and I have received submissions from the parties in relation to them.  In my view, a fair and impartial viewing of the videos does not support at all the version Mr Cox gave to her Honour prior to the debate on whether he could cross-examine the complainant about them.  In my view, a fair and proper assessment of the evidence does not show animus or bias, and there is only one occasion where the complainant acts aggressively, and in my view that was reasonable.  That occurred in the first video of the incidents on the 8th of May 2014 where Mr Cox had the camera on when he was coming down in the lift and immediately the doors opened, he had the camera in the face of the complainant who, not surprisingly, reacted aggressively.  
[28]	Having viewed the evidence, in my opinion, had Mr Cox been permitted to cross-examine the complainant about it, it probably would have had the tendency to strengthen rather than undermine the findings that her Honour ultimately made in relation to the complainant’s credibility.
[29]	In his grounds of appeal, he also makes other complaints about her Honour’s conduct none of which are made out.  He was persistently asked to concentrate and to ask relevant questions and he persistently did not.  He complains about her not permitting him to check dates from his laptop when he was giving evidence.  As she carefully explained to him, a witness usually is not permitted to have his or her statement in front of them when they give evidence.  In any event, he was also told that he could apply for leave to refresh his memory if he so desired.  
[30]	A fair reading of the way in which he conducted himself leads me to the conclusion that he was quite able to properly present his case and that her Honour afforded him all proper courtesy and fairness given the provocative way in which he behaved on occasions.  He was able to present his case, which essentially at its heart was that the first assault did not occur, and in relation to the second assault, he did not kick the complainant and that any force used by him had been provoked by the complainant.  Her Honour dealt with those issues in some detail.  The appeal against conviction is dismissed.  
Sentence Appeal
[31]	I have referred to the report from Dr Wade, the psychiatrist.  Her Honour showed considerable leniency by taking into account both the contents of the report and, as she said, she moderated the penalty accordingly.  Mr Cox’s previous history was relevant, particularly the entry on the 8th of October 2014 which her Honour noted was on appeal.  That appeal has since been dismissed:  Cox v Queensland Police Service [2015] QDC 183.  That was another assault in the same complex in which, similar to count 1 in this case, Mr Cox started the incident by being abusive.  It is clear that her Honour had regard to section 12 and I do not detect any error in her decision to record convictions.  She also took into account that in relation to count 2, the complainant inflamed the situation and that Mr Cox’s response was disproportionate; and on her findings, it was he who started the aggression just prior to count 2 when he abused the complainant and assaulted him in a way which was described in the evidence.  It follows that the appeal against sentence is also dismissed.  
[32]	I will order the Appellant to pay the Respondent’s costs fixed at $600.