The Queen v Walker[1997] QCA 140

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 60 of 1997

Brisbane

Before  Fitzgerald P

Davies JA

McPherson JA

THE QUEEN

v.

SCOTT WALKER

(Applicant) Appellant

Fitzgerald P

Davies JA

McPherson JA

Judgment delivered 30 May 1997

Separate reasons for judgment of Fitzgerald P.; joint reasons for judgment of Davies and McPherson JJ.A., concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.

APPEAL ALLOWED.  THE SENTENCES OF IMPRISONMENT FOR TWO AND A HALF YEARS AND 18 MONTHS IMPOSED BELOW ARE SET ASIDE, SUBSTITUTING IN RESPECT OF EACH OF THE MATERIAL OFFENCES A SENTENCE OF IMPRISONMENT FOR 12 MONTHS.

REASONS FOR JUDGMENT - FITZGERALD P

Judgment delivered 30 May 1997

The appellant has appealed against his conviction in the District Court at Southport on 31 January 1997 of two offences of unlawful assault occasioning bodily harm, one offence of unlawful assault occasioning bodily harm in company and one offence of wilfully and unlawfully damaging a door.  He was sentenced to imprisonment for two and a half years in respect of the unlawful assault occasioning bodily harm in company, to 18 months in respect of one of the unlawful assaults occasioning bodily harm, and to one year in respect of each of the other offences.  He has also applied for leave to appeal against sentence. 

On 22 November 1995, the appellant and a companion were drunk and disorderly at a hotel on the Gold Coast and were requested by the publican, Mr Nation, to leave.  As was acknowledged for the appellant, the jury must have accepted that the publican removed a pool cue from the appellant and rejected the appellant’s evidence that the publican, Mr Nation, then swung the pool cue like a baseball bat.  As the publican turned away after taking the pool cue, the appellant punched him in the face.  That blow led to the conviction for the offence of unlawful assault occasioning bodily harm which attracted the sentence of imprisonment for 18 months. 

An employee at the hotel, Mr Finch, placed a headlock on the appellant to prevent him from hitting Mr Nation again.  Finch was then himself placed in a headlock by the appellant’s companion and, while he was so held, the appellant bit him in the side.  That bite was the basis of the conviction of the appellant for the offence of unlawful assault occasioning bodily harm in company.

The scuffle continued, and the applicant also bit Mr Nation, on the upper arm.  After the appellant and his companion were ejected from the hotel, the appellant kicked at the glass doors with his work boots on a number of occasions, damaging the hinges.

Although there were imperfections in the judge’s directions to the jury, it is not proposed to discuss the grounds of appeal in detail.  With one exception, they were effectively disposed of in the course of extensive oral argument.

Thus, for example, complaint was made of the trial judge’s directions in respect of the appellant’s attempt to rely upon self-defence.  This was the one matter in respect of which a re-direction was requested at trial, but the re-direction asked was unrelated to the point now sought to be raised, which is confined to the count on which the appellant was convicted of unlawful assault occasioning bodily harm in company.  On the basis on which this point was argued, it was acknowledged that the appellant had initiated the altercation by his punch to Mr Nation’s face and did so without provocation and that, by s. 273 of the Code, it was lawful for Mr Finch to use such force as was reasonably necessary for the purpose of defending Mr Nation, provided that the force used was not intended and not such as was likely to cause death or grievous bodily harm (sub-s. 271(1)).

Accordingly, as the appellant accepted, self-defence was irrelevant to his biting Mr Finch in the side unless Mr Finch’s headlock on the appellant caused reasonable apprehension of the appellant’s death or grievous bodily harm and induced him to believe on reasonable grounds that it was necessary for his preservation from death or grievous bodily harm to use force in self-defence and the force which he used was reasonably necessary for his preservation from death or grievous bodily harm.^[1]  There was nothing in the evidence at trial to raise such a possibility, and the trial judge was not asked to give a direction raising the point for the jury’s consideration.

Other grounds of appeal concerned the element of bodily harm in the unlawful assault charges.  It was submitted that the trial judge “misdirected the jury as to what bodily harm was”, and that in respect of the two assaults by biting, there was not sufficient evidence “to establish the element of ‘bodily harm’” .  In fact, there was more than sufficient evidence in the testimony of Mr Finch and Mr Nation and photographs of the results of the bites which they respectively received.  Further, the judge instructed the jury, in accordance with the definition of “bodily harm” in s. 1 of the Code, that injury which interfered with health or comfort was required.  In the circumstances, in which bodily harm seems not to have been in contest and no re-direction was sought, a more elaborate direction was not essential.

Similarly, in circumstances in which the jury could only convict the appellant of wilfully and unlawfully damaging a door if it accepted the evidence that he repeatedly kicked at the glass, damaging the hinges, the ground of appeal that the trial judge “failed to direct the jury as to the law pertaining to ‘wilful damage’ is without substance.  The appellant’s manifest intention was not a matter in dispute at the trial.

Other grounds of appeal were that his Honour “failed to direct the jury as to the law pertaining to ‘in company with other persons’”, that there was insufficient evidence to support a finding that the appellant was “in company”.  The evidence established that, while his associate held Mr Finch in a headlock, the appellant bit him.  No suggestion was made at the trial that the appellant was unaware of the presence and activity of his associate when he bit Mr Finch, and no direction was sought requiring the jury to consider the possibility that the appellant was not aware of his associate’s presence and conduct.  Indeed, there was no request for any re-direction on this part of the case.  Since his associate had already placed a headlock on Mr Finch when the appellant bit him, it is difficult to see how, as raised by the appellant in argument, it could be concluded that the appellant and his associate did not have the common purpose of assaulting Mr Finch.  Contrary to the appellant’s argument, there was, in my opinion, more than sufficient evidence to establish that the appellant and his associate were acting “in company”, and there was no material misdirection which led to a miscarriage of justice in the trial judge failing to give some direction elaborating upon the concept of “in company” in circumstances in which the prosecution evidence presented an uncomplicated factual situation which required no elaboration for the jury’s proper understanding.

The remaining matter raised by the appellant in support of his appeal against conviction related to a passage in his cross-examination by the prosecutor.

The cross-examination started off by asking the appellant whether what he had stated in evidence had always been his version of events and not something which he had “made up in the last couple of months”.  That led to questioning concerning whether he would have been “afraid of telling anyone” what he said had occurred, that is, that he was defending himself, and the appellant agreed that he would not have been “afraid of telling anyone” that that was the case.  Questions then established that police had asked the appellant to “[w]alk through Cavill Mall and let the police  film [him], for identification purposes”.  That acknowledgement became the basis for questions concerning why the appellant did not tell the police that that course was unnecessary because he admitted that he was “involved in the brawl”, so that the “video lineup” was “a waste of time”, and a “charade”.  The appellant answered that he had been advised “not to say anything to them, actually”.  A pointless debate then developed between the prosecutor and the appellant concerning whether or not the “video lineup” was a “charade”.  The appellant was asked why he did not tell police that there was no need to identify him, and it was put to him that the reason for his not doing so was that he “... thought, look, I can get away with this.  I’ll go through this video lineup, no one will be able to recognise me because it was late and everyone was drunk, then all of a sudden when people did identify you, you thought, look, I better change my defence to, yeah, I was there but it wasn’t really my fault”.  The appellant’s reply was that it was not true.  The questioning then continued:

“You know it’s not true, but you didn’t want to share that with anyone back a month after this happened?-- I was just doing what I was advised to do.

It’s not a manufactured defence, you’re saying?-- No.

No, okay, all right.  All right, did you tell police before today that you were with Peter Treffis this night?-- I was - I was advised not to speak to the police.

And that is your right.  I’m not criticising you for exercising your right to silence.  I’m not criticising you for going through a video lineup.  All I’m saying is you didn’t think that it was an absolute charade at all?-- No.”

In my opinion, questions were asked in the course of that cross-examination which should not have been asked.  The appellant was under no obligation to explain why he had responded favourably to a police request for his cooperation, why he had not admitted that he was involved in the altercation or what advice he had received, and he should not have been asked questions which suggested that, by doing so, he had acted deceptively or otherwise improperly or that the fact that he had done so provided a basis for an inference that his evidence claiming self-defence was a recent fabrication.

However, no objection was taken at the trial to the appellant’s cross-examination, no request was made to the trial judge to direct the jury in relation to what had been asked and answered, and there is nothing to indicate that that passage of evidence was of any significance, especially having regard to the observation with which the prosecutor concluded the line of questioning.  I do not think that what occurred is sufficient in the circumstances of this case to constitute a miscarriage of justice.

Accordingly, I would dismiss the appellant’s appeal against his convictions.As was conceded in this Court by the prosecution, correctly in my view, the effective sentence of imprisonment for two and a half years was manifestly excessive.  Even having regard to the appellant’s criminal history, an appropriate sentence would have been imprisonment for 12 months, as was again conceded before this Court.

I would therefore dismiss the appeal against conviction but allow the application for leave to appeal and the appeal against sentence and set aside the sentences of imprisonment for two and a half years and 18 months imposed below, substituting in respect of each of the material offences a sentence of imprisonment for 12 months.

JOINT REASONS FOR JUDGMENT - DAVIES AND McPHERSON JJ A

Judgment delivered 30 May 1997

We agree with the President that the appeal against conviction must be dismissed and, save in one respect, with his reasons for dismissing it.  Our difference in opinion relates only to the ground that the prosecutor's cross-examination of the appellant about his agreement to participate in and his participation in a video line-up infringed his right to silence.

The cross-examination relied on for this ground, to which the President has referred, did not, in our view, invite any adverse inference to be drawn from the appellant's failure to answer questions.  What it sought to do was to invite the drawing of an adverse inference from the appellant's agreement to participate in and his participation in a video line-up when at trial he admitted that he was involved in the incidents giving rise to the charges against him.

In our view it was open to the prosecutor, by his cross-examination, to invite the jury to draw an adverse inference because, in the light of his evidence that he was involved in the incidents, it could be inferred that his agreement and participation were a subterfuge to avoid detection.  That inference was relevant at least to the appellant's credit which was plainly in issue.

In any event the cross-examination was ineffectual and, in our view, could have had no real bearing on the result of the case.  It may be noted that the appellant's counsel, who was very experienced in such matters, did not object to the questioning or seek any direction in respect of it.

We agree with the orders proposed by the President in the application for leave to appeal against sentence and with his reasons.