The Queen v Thomas[1997] QCA 370

COURT OF APPEAL

PINCUS JA

DERRINGTON J

de JERSEY J

CA No 239 of 1997

CA No 243 of 1997

THE QUEEN

v

DAVID CHARLES THOMAS Appellant

BRISBANE

DATE 04/09/97

JUDGMENT

DERRINGTON J:  On a charge of assault occasioning bodily harm the appellant was convicted of assault.  The contest at the trial as to the possibility of accident in respect of the element of bodily harm means that there is nothing irreconcilable in the jury's verdict.

The applicant was a police officer who was about to commence duty at the Fortitude Valley Police Station, to which the complainant Boland and his friend Testa had been taken because of some minor misbehaviour.  In the appellant's presence someone made an insulting remark about the two men, suggesting that they could be homosexual; and when Boland responded that that was not so and that he had a girlfriend to whom he was engaged, the appellant made some gratuitously insulting remarks about her.

After Boland and the appellant glared at each other for a short while, the appellant walked over to where Boland was sitting and pushed him off the chair to the floor and struck him twice in the face.

A female police officer named Leigh gave evidence in the prosecution case to the effect that Boland had sworn at her loudly when she entered the room and rose quickly from the chair on which he was seated and advanced on her in a threatening manner, but that the appellant had intervened, tried to warn Boland to stop, and when he continued to advance, pushed him gently on the chest.

She said that this caused Boland to overbalance and fall to the floor and that the appellant then helped him to regain his seat on the chair.  Her evidence was plainly rejected by the jury and rightly so.  It was in grave conflict with the evidence of Boland and Testa, but also seriously in conflict with the evidence of two other police officers who were or came into the room at about that time.

One of them, Senior Constable Hales, was in charge of the complaint against Boland and Testa and he objected when he saw the appellant walk across and appear to strike Boland in the mouth.  He told the appellant he should not be belting a suspect that he, that is Hales, had in his custody.

The other police witness, plain clothes Constable Bristow, came into the room when he heard the noise of violence and saw the appellant standing over Boland, who was on the floor, and holding him by the shirt colour.  He heard Hales protesting at the appellant's conduct towards Boland telling him to leave him alone.  Bristow then took the appellant outside and warned him off.

It is fairly plain that Hales and Bristow were unwilling witnesses in the presentation of their evidence and said the minimum that they could against the appellant, but that it was clearly open to the jury to convict the appellant on their evidence alone.  Indeed on their account it would have been reasonable for the jury to disbelieve Leigh totally.

The grounds of the appellant's appeal against his conviction are as follows:-

"1. The trial of the appellant was not fair as the summing up of the learned trial Judge:-

1. in terms of balance lent too far towards the Crown;

2. put some aspects of the defence case only to be unduly critical of it;

3. put argument in favour of the Crown not put by the learned Crown prosecutor which the defence could neither anticipate nor answer namely:-

That there was the possibility of police morale influencing the evidence of police officers at the trial of a police officer such comment having been made on the day of the public release of the NSW Woods Inquiry report regarding police "culture".

2.  The learned trial Judge erred in law in not directing the jury in terms of s.31(3) of the Code."

There is a complaint of some kind in the appellant's case that in the summing-up the learned trial Judge referred to the substance of Leigh's evidence as "the defence case" on a number of occasions.  Such a compendious description was apt because that was the basis of the cross-examination by learned defence counsel and no doubt was the basis of his address to the jury.

The appellant did not give evidence or call witnesses, but it is not in question that his defence was based on Leigh's evidence as raising a reasonable doubt.  The mode of description used by the learned trial Judge was perfectly reasonably as a convenient means of identifying the evidence and the thrust of the argument adopted by the defence in opposing the prosecution case.

In no way did this throw any onus on the defence, nor did it disadvantage its case.  The summing up was very temperate and clear.  The onus of proof was properly directed.  More particularly it was made abundantly clear that the appellant had no onus of proof of the defence of aiding Leigh in self-defence, and that in that respect the onus of excluding it lay on the prosecution.

The learned trial Judge said this on at least four occasions without departing from that explanation, and he said these on relevant and strategic occasions, always making clear that what he was referring to as the defence case was merely the submission that the prosecution had not excluded aiding Leigh and self-defence.  And he properly indicated that the defence submission was based on Leigh's evidence.

Because of the stark contrast between Leigh's account of events and the accounts of the other witnesses who could speak of the matter, it was logical and correct to compare and contrast her account with that of the others.  Her evidence may have been deliberately false as a means of protecting the appellant and as it was the basis of the defence submissions, it was quite appropriate to discuss it on one side in terms of its relation to the conflicting evidence on the other.  It would have been strange and unsatisfactory to have done it in any other fashion.

Complaint is also made of a few mild observations by His Honour reflecting on the quality of Leigh's evidence in the light of that of the other police officers.  Those observations were perfectly fair and legitimate, the principal harm to the appellant being that they properly, if restrainably, reflected the strength of the prosecution case in showing that Leigh was not telling the truth.

The criticism of the summing-up on this on other grounds was quite unfair and not valid.  His Honour was doing no more than comparing the evidence that might have raised a reasonable doubt as relied upon by the defence side with conflicting evidence on the prosecution side.  That the former suffered badly under a fair comparison seems to be the stimulus for the complaint.  There was no basis for any misunderstanding by the jury of the onus of proof or of the proper issues.

There was a further ground of appeal relating to the summing-up concerning Leigh's evidence.  It complains that the summing-up made reference to the police culture which took defence counsel by surprise.  His Honour said:-

"A large number of witnesses have been members of the police service and of course the accused is a member of the police service.  That is, as you have heard, a disciplined service.  No doubt it requires the maintenance of a certain degree of morale, a certain ethic amongst its members and you might think - this being very much a matter for your judgment of course - that some members of the police service may find it difficult to give evidence against one of their colleagues.  They may feel some constraints or some distaste for doing so."

The first thing to note is that the statement was general and not expressly directed at Leigh's evidence.  Indeed it is more likely to have been directed at the evidence of Hales and Bristow who, even on the record, manifested a strong disinclination to say any adverse to the appellant that they could avoid.  Some of their evidence was almost foolish in this respect.

The second thing to notice is that there is nothing surprising in this reference, even to the extent that it may have referred to Leigh.  The danger was notorious and its effect was patent in the police evidence; and it deserved reference in the summing-up.  It is impossible to believe that this was not recognised by learned defence counsel who is very experienced and competent.  He would not have been misled into avoiding the issue if the prosecutor had failed to raise it.  There may be several reasons for that.

No complaint was made by learned defence counsel at the time and the point is not taken up in the written submissions except as part of the complaint that the summing-up distinguished Leigh's evidence from the evidence conflicting with it.

Finally, the appellant complains that the learned trial Judge did not direct the jury in terms of section 31.1(c) of the Criminal Code.  It would not matter that it had not been raised by the defence at the trial except that the reason for that failure explains why it escaped judicial attention in the directions of law given to the jury.  It also explains why its absence has no effect in this matter.

To the extent that it has application to this case that section was identical in effect with the defence of aiding in self defence which was fully put to the jury.  The section reads as follows:

31.1 A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say -

3. When the act is reasonably necessary in order to resist actual or unlawful violence threatened to the person, or to another person in the person's presence;

Because the substance of this defence was fully left with the jury it does not matter that it was not informed of the technical basis for it.  The appellant's written submission does not argue that a direction in accordance with direction 31 would, in the circumstances of this case, have been in any way different in kind from that which was given.  There is no substance in the point.

There was a cross appeal by the Attorney-General on sentence, which was a fine of $1500 without the recording of a conviction.  It is argued that His Honour paid too much attention to the disciplinary consequences that might follow from the result of the trial and not enough to the aspect of deterrence.

As short sentence of imprisonment is sought but this was not strongly pursued by learned counsel on behalf of the Attorney, the principal point of discussion being the question as to whether a conviction should have been recorded.

The respondent's conduct in this matter was very arrogant, unprovoked, unrestrained and cowardly having regard to the position of the victim.  It is not easy to reconcile the character that is attested to by those who provided references, but it might be accepted that the respondent had an unblemished career in the police service to that time and was a young man of 22 years of age; and it might also be understood that the effect of this matter will be detrimental to his future career.

However, conduct of this nature by a police officer is grave, and for the protection of ordinary people it must be strongly deterred in those cases where it can be established.  Nevertheless, it does not justify the heavy penalty of imprisonment for such a relatively light harm that was inflicted, according to the jury's verdict.

In addition to the consequences of the respondent's career the fine is a heavy one for a first offence relating to a modest assault, as the jury's verdict indicates.  The only real area of doubt lies in the learned sentencing Judge's failure to record a conviction on such a serious matter.

The factors favouring the respondent were all closely examined by the Judge and he paid full attention to the references that were given in his favour.  He also properly paid attention to the fact that the respondent was only 22 years of age at the time and had an unblemished record.  But, as against that, the element of deterrence against conduct of such a nature in a police station, although referred to by the learned sentencing Judge, was not fully applied.  An assault in a police station by a police officer does not necessarily require that a conviction be recorded.  However, having regard to the circumstances of this case, notwithstanding the positive factors favouring the appellant, the element of deterrence was not properly addressed by His Honour or, perhaps, not given sufficient weight, as indicated by his failure to record a conviction.

Accordingly, the sentence should be varied by the recording of a conviction but otherwise the Attorney's appeal against sentence should be dismissed.

PINCUS JA:  As to the appeal against conviction, I have noted that the defence relied below, plainly, on the evidence of the witness Leigh who was a police officer called on behalf of the prosecution.  Where the issue is purely factual and the defence has called no evidence it may be unusual to speak of a defence case.  That is, reference to a defence case commonly implies that the defence has called evidence.

His Honour, in speaking of the defence case, was referring to that part of the evidence particularly relied on by the defence and also to the submissions which the defence based on that.  The learned primary judge repeatedly reminded the jury that the onus of proof lay on the Crown on all issues; this is not a matter in which the reference to the defence case could rationally have been taken by the jury to imply that, in respect of any matter, there was an onus on the defence.

I agree with Mr Justice Derrington's remarks with respect to the summing-up, which seems to me to have been a fair and balanced one.  I do not myself think that the appeal against conviction has any real substance.

A more troubling matter is the Attorney's appeal against sentence.  I am of the opinion that there was no possible basis for interfering with the sentence to the extent of imposing imprisonment and that Mr Martin was right not to press that aspect of the appeal.

As to the recording of a conviction, it seems to me reasonably clear that the case was one in which a conviction should have been recorded and I agree with the reasons that Mr Justice Derrington has given for that view.  It is not in every case, of course, in which one's view differs from that of the Court below as to the recording or non-recording of conviction, that this Court will interfere.  Here, however, I agree with Mr Justice Derrington that the conclusion at which the learned primary judge arrived could only have been reached by insufficient attention to the element of deterrence; I would add that another factor in favour of recording a conviction was the complete absence of any remorse or cooperation with the authorities in respect of the complaint made.

I would therefore make the following orders: with respect to the appeal against conviction that it should be dismissed; with respect to the Attorney's appeal against sentence, I would make the order which is proposed by Mr Justice Derrington.

de JERSEY J:  I agree.  I will add this short observation in relation to the Attorney's appeal because of the need for considerable circumspection in interfering in circumstances like these.  The learned Judge, I believe, conscientiously provided a comprehensive analysis of the factors relevant to the issue of whether or not a conviction should be recorded.

He does appear to have gone about his consideration very carefully.  It does, however, seem to me that although the Judge did avert to the importance of deterrence he did not give appropriate weight to that consideration which I would, in this case, characterise as predominant.  Doing so, in my opinion, necessitated the recording of a conviction in this particular case.

DERRINGTON J:  Might I say, I agree with the orders proposed by the learned Presiding Judge.

PINCUS JA:  Those will be the orders.