R v Sheret[2002] QCA 162

SUPREME COURT OF QUEENSLAND 

1. McMURDO P:  I agree with the reasons for judgment of Mullins J and wish only to add the following brief comments.

2. I emphasise my agreement with the observations of Mullins J as to the practice of advertising for witnesses after the completion of a trial. The community interest is in bringing finality to criminal proceedings and requires that witnesses should be sought out before the trial, not after conviction.

3. As to the adequacy of the learned primary judge's directions on the evidence of Mr Woosnam, it would have been preferable had his Honour additionally drawn the jury's attention to Mr Woosnam's relevant answer in cross-examination and warned them to treat his answer to the prosecutor's leading question with care. But his Honour's reading of Mr Woosnam's evidence in chief on this point was sufficient to alert the jury to the weakness in the passage relied upon by the prosecution. Any shortcomings in the directions on this point did not amount to a miscarriage of justice.

4. I agree with the orders proposed by Mullins J.

5. HELMAN J:  I agree with the orders proposed by Mullins J. and with her reasons.

6. MULLINS J:  The applicant was convicted on 31 October 2001 after trial in the District Court at Townsville of one count of assault occasioning bodily harm in company.  He was sentenced on that day to 12 months’ imprisonment.  Within time the applicant filed an application for leave to appeal against sentence.  The applicant was granted bail pending appeal on 7 November 2001.  He therefore spent 8 days in custody.

7. On 24 November 2001 the applicant’s father advertised in the Townsville Bulletin for information relating to an incident at a Flinders Street East nightclub at approximately 11.30 pm on Saturday 3 March 2001 which was described in the advertisement as:

“… when one man severely pushed another man that he lost his balance and fell over backwards then some other person attacked his assailant.”

8. Mr Peter Hasenkamp responded to the advertisement in early December 2001 advising the appellant’s father what he had seen on the occasion.

9. The applicant engaged his current solicitors to act on the sentence application on 30 January 2002. When detailed instructions were taken on 18 February 2002, the applicant informed his solicitors about the advertisement and the response from Mr Hasenkamp. The applicant’s solicitors then obtained the affidavit from Mr Hasenkamp sworn on 19 February 2002. On 21 February 2002 the applicant filed an application for extension of time within which to appeal against his conviction, based on the new evidence from Mr Hasenkamp.

10. The application for extension of time within which to appeal against conviction was heard at the same time as the application for leave to appeal against the sentence.

Facts

11. The complainant, Mr Colin Kenna, was an off-duty police officer who was acquainted with the applicant. The complainant stated in evidence that he saw the applicant when he walked into the Mad Cow Tavern late in the evening of Friday 2 March 2001. The complainant said that the applicant was talking with another man whom he described as having darker hair than the applicant. It is convenient to refer to that other man as “the dark-haired man”. The complainant said that he noticed both the applicant and the dark-haired man staring at him. The complainant moved upstairs with his party, but he was then approached by the applicant.

12. The complainant said that the applicant raised a grievance which he had with the complainant arising from the complainant’s work as a police officer. The complainant said that he told the applicant to see him at the station next day, but that the applicant persisted in airing his grievance. The complainant said that he threatened to have management remove the applicant and that as he started to move off looking for security officers, the applicant knocked his glass of drink from his hand.

13. During this confrontation with the applicant, the complainant said that he noticed the dark-haired man standing close by and, as the glass was knocked from his hand, he saw the dark-haired man step towards him, swinging his fist. The complainant said that he grabbed the front of the applicant’s shirt and pushed him and he then felt about 5 blows from the dark-haired man.

14. The complainant suffered injuries to his head and face which he described as abrasions to the left side of his face and swelling to the lower part of his jaw. During the trial an admission was made by the applicant that the injury suffered by the complainant amounted to bodily harm.

15. After the blows from the dark-haired man had stopped and he was being held by the complainant’s friend, Mr James Banaghan, the complainant stated that he referred to the dark-haired man’s having “king hit” him and recalled that the applicant stated “No, I hit him, I hit him”.

16. According to the complainant, the security officers who worked at the tavern then arrived and the applicant and the dark-haired man walked downstairs with those security officers. The dark-haired man left the tavern without his identity being ascertained. The complainant spoke to Senior Constable Carnes who was in the vicinity of the tavern who took the applicant into custody and charged the applicant with being drunk in a public place.

17. The complainant stated that immediately after the incident when he asked the applicant the name of his mate, the applicant said “I don’t know, I don’t remember”, and that when he asked the applicant the same question a little later when the applicant was with Constable Carnes, the applicant stated “I can’t remember”.

18. Mr Banaghan gave evidence of seeing the applicant and the complainant speaking together, hearing the sound of glass breaking and then looking up and seeing the dark-haired man strike at the complainant. Mr Banaghan said that after the incident ceased, the applicant said “I hit him, I hit him”.

19. Another witness, Mr Brett Woosnam, claimed a passing acquaintance with the applicant and an acquaintanceship of 10 years through playing football against him with the complainant. When giving evidence in chief Mr Woosnam said that when he was downstairs in the Mad Cow on the evening of 2 March 2001, that the applicant said to him, “G’day” followed by “Oh, stick around, I’m going to have a go at this copper”, and that the applicant indicated over across Mr Woosnam’s shoulder. Mr Woosnam stated that he then looked over and saw it was the complainant to whom the applicant was indicating. After Mr Woosnam had responded in evidence in chief for the second time with the words that he said the applicant had said “Oh, stick around, I’m going to have a go at this copper”, the Crown Prosecutor immediately asked the question, “We’re going to have a go at this copper?” to which Mr Woosnam responded, “Yeah”, without objection being taken on behalf of the applicant.

20. In cross-examination the following exchange occurred:

“You’ve given evidence before, he said something about having a go at a copper? … Yep.

Had he spoken to you earlier that night? … On the way I did, just before we went up the stairs to the Cow.

Yes? … Just telling me that he’s going to have a go at the copper.

21. Mr Woosnam stated that when he was upstairs, he heard the complainant and the applicant having a discussion which he described as a “bit of an argument” and then he saw the dark-haired man punching the complainant.

22. Detective Senior Constable Brett McLucas attended on the applicant on 7 March 2001, in order to speak about the complaint made by the complainant. Detective McLucas said that:

“Alan admitted to speaking to Col on the night.  Had been in a verbal argument with him at the Mad Cow.  He stated to me or claimed to me that Col had punched him first.  He stated that he had knocked a drink out of his hand and basically, he was arrested and taken back to the station.”

23. Despite the statements made by the applicant immediately after the complainant was punched to the effect that he (the applicant) had hit him, the Crown case was conducted on the basis that the applicant did not strike the complainant, but that the applicant and the dark-haired man were acting in concert.

Evidence of Mr Hasenkamp

24. Mr Hasenkamp’s description of the incident in his affidavit sworn on 19 February 2002 was:

“I state that on the night in question, I arrived at the Mad Cow Tavern at approximately 10.00 pm and proceeded upstairs and then out onto the balcony.  I had gotten myself a drink and returned to the railing when I heard raised voices between two male persons, talking about going downstairs to sort the issue they were arguing over out.  The argument appeared to be quite loud (shouting going on) and I thought it was going to end up in a fight.  I saw the person I now know to be Alan Sheret start to walk off balcony (the door to the left of the verandah bar) and he had at that time his hands in his pockets.  The other party (the complainant) was about 10 feet away from me.  He was following Mr Sheret and the complainant ran into the back of Mr Sheret and the glass he was holding in his right hand fell to the floor.  At that point Mr Sheret spun around.  The complainant then pushed Mr Sheret over, which made Mr Sheret scatter some chairs and fall to the floor.  At that point I noticed a person standing near the balcony doorway (to the complainant’s right front) came over and hit the complainant a couple of times.”

25. Mr Hasenkamp described the dark-haired man as having a ponytail. He also stated in his affidavit that he knew the applicant’s father during the 1980s when both had businesses on Magnetic Island.

26. During the hearing of the applications, Mr Hasenkamp gave evidence. He estimated that he was about 2 to 3 metres from the two men who were shouting. He stated that he did not take any notice of them, until he heard the shouting. He estimated that they were about 5 or 6 metres away from him when the glass fell. Mr Hasenkamp’s oral evidence generally confirmed what he had stated in his affidavit about the incident.

27. Mr Hasenkamp’s evidence is not only in direct conflict with the complainant’s evidence about how his glass was knocked from his hand by the applicant, but is inconsistent with the admission made by the applicant to Detective McLucas that the applicant had knocked the complainant’s drink out of his hand (which was not challenged in the cross-examination of Detective McLucas) and with the applicant’s case at the trial that he had accidentally knocked the glass out of the complainant’s hand. The cross-examination of the complainant by the applicant’s counsel proceeded expressly on the basis that the applicant had accidentally knocked the glass out of the complainant’s hand.

Advertising for witnesses post-trial

28. The advertisement undertaken by the applicant’s father after the applicant’s conviction was an unusual step and is not a practice which should be encouraged in any way whatsoever. The issue of whether the police or prosecutor have located all relevant witnesses is one which must be considered on behalf of an accused prior to trial. It is at that point that those acting in the interests of the accused should take such a step as advertising for relevant witnesses, if they are not satisfied that all relevant witnesses have been located.

Miscarriage of justice

29. The applicant could succeed on an appeal on the ground of miscarriage of justice on the basis of new evidence only if the new evidence of Mr Hasenkamp were admitted on the appeal and the relevant test for showing miscarriage of justice were satisfied. Both counsel submitted that the relevant test was whether there was a significant possibility that the jury, acting reasonably, would have acquitted the applicant, if the fresh evidence had been before it at trial: Mickelberg v The Queen (1989) 167 CLR 259, 273, R v Condren, ex parte Attorney-General [1991] 1 QdR 574, 576-577.  Another formulation of the test is whether the jury, if the fresh evidence had been given at trial, would have been likely to have entertained a reasonable doubt about the guilt of the applicant:  Mickelberg at 275, 301-302, Main (1999) 105 A Crim R 412, 415-416, 418.  As in Main, this is a case in which the application of either test will lead to the same result.

30. In determining the admissibility of the new evidence, it is relevant to consider whether the new evidence could, with reasonable diligence, have been produced at the trial. Mr Glynn SC on behalf of the applicant submitted that that was no longer a significant issue, because the substantive issue must be whether there has been or is likely to have been a miscarriage of justice and, if there has been, the fact that the evidence could have been produced at trial would not prevent a successful appeal. Where the fresh evidence is strong, that submission accords with what was stated by Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392, 395:

“The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial.”

31. The evidence of Mr Hasenkamp could not be described as particularly strong, in the light of how it conflicts with the other evidence at the trial relating to how the glass fell from the complainant’s hand and, particularly, in view of its direct conflict with the applicant’s case at the trial. That therefore makes the issue of the availability of the evidence at the trial relevant.

32. It could not be submitted on behalf of the applicant that Mr Hasenkamp’s evidence could not, with reasonable diligence, have been produced at the trial. On that basis the evidence would not be admitted on the appeal and the miscarriage of justice ground would fail.

33. Even if the evidence were admitted, the applicant would fail at the next stage, as the same conflicts which afflict Mr Hasenkamp’s evidence would preclude a conclusion that there was either a significant possibility or it was likely that a jury hearing all the evidence would have a reasonable doubt as to the guilt of the applicant.

Summing up by trial judge

34. The applicant sought to raise a second ground of appeal, if the extension of time within which to appeal were granted, in the following terms:

“The jury were misled as to the effect of an alleged conversation critical to the issue of whether the Applicant was acting “in concert” with the complainant’s assailant, the effect of which was reinforced, and exacerbated, by the submission made by the Crown Prosecutor to the jury and comments made by the Trial Judge in the course of the summing up.”

35. In summing up the evidence, the learned trial judge referred to Mr Woosnam’s evidence on what had been said to him by the applicant. The learned trial judge referred to the 2 passages of evidence where Mr Woosnam said that the applicant stated to him “Oh, stick around, I’m going to have a go at this copper”. The learned trial judge then stated:

“Members of the jury, you will note that up to now, the words used “I’m going to have a go at this copper.”  Then the Prosecutor asked him this question, “We’re going to have a go at this copper” and Mr Woosnam says, “Yeah.”  But you will note there is a change, that up till then it had been, “I’m going to have a go at this copper.”  The Prosecutor asked the question, “We’re going to have a go at this copper” and the answer was “Yeah.”

36. It was submitted on behalf of the applicant that the learned trial judge did not suggest that the jury should treat the answer elicited by the prosecutor with the leading question “We’re going to have a go at this copper?” with caution, nor did he draw attention to the effect of Mr Woosnam’s evidence in cross-examination where his evidence reverted to the singular again, when he stated in respect of what the applicant told him that “Just telling me that he’s going to have a go at the copper”.

37. The learned trial judge then proceeded to sum up the submissions made by each of the prosecutor and the applicant’s counsel. When referring to the address of the Crown Prosecutor, the learned trial judge stated:

“He suggested you could look at matters that happened before and after the assault to come to this conclusion and he drew a number of matters to your attention.  He suggested that Mr Kenna said he saw both men talking together when he walked into the Mad Cow Tavern.  Mr Kenna noticed both men were staring at him.  He reminded you of what was said to Mr Woosnam as he was going up the stairs.  He suggested that it was along the lines, “To stick around, we’re going to have a go at this copper,” and that the accused seemed to be looking at someone over his shoulder and Mr Woosnam saw Mr Kenna at that stage and he suggested that was a powerful piece of evidence in the case.”

38. It was submitted on behalf of the applicant that the learned trial judge repeated without criticism the submission of the Crown Prosecutor that the answer which he had improperly elicited with a leading question from Mr Woosnam, was “a powerful piece of evidence” of the applicant and the assailant acting in concert.

39. Although not determinative, it is relevant that the applicant’s counsel at trial did not require any redirection in respect of these passages in the summing up which are now challenged. As there was no objection to the leading question of the Crown Prosecutor which suggested that the applicant spoke in terms of “we” rather than “I”, when speaking to Mr Woosnam, Mr Woosnam’s concurrence with that question meant that there was evidence to the effect of that referred to by the Crown Prosecutor in his address. The first passage in the learned trial judge’s summing up which deals with Mr Woosnam’s evidence clearly draws the distinction between the answers which Mr Woosnam gave, unprompted, and the answer which he gave when prompted by the Prosecutor. It was not necessary for the learned trial judge to refer to Mr Woosnam’s further evidence in cross-examination which was consistent with his unprompted answers.

40. The second passage in the summing up which is under challenge merely recites the Crown Prosecutor’s address for which there was evidence to support. In addition, the description of the Prosecutor of “a powerful piece of evidence”, as used by the learned trial judge, qualifies both what Mr Woosnam was said to have been told by the applicant, as well as Mr Woosnam’s evidence that at the same time the applicant seemed to be looking at the complainant. The attack on these passages in the learned trial judge’s summing up does not raise a viable ground of appeal.

41. As an appeal against conviction based on either ground of appeal advanced on behalf of the applicant will not succeed, the application for extension of time in which to appeal should be refused.

Sentence

42. The applicant was born on 28 June 1971 and was therefore 30 years old at the date of the offence.

43. His prior criminal history was minor. He was convicted of offences under the Weapons Act 1990 on 5 May 1999 for which he was fined $1,500, but no conviction was recorded.  On 21 May 1999 the applicant was convicted of possession of tainted property for which he was fined $500 and for which no conviction was recorded.  The applicant therefore had no prior convictions for offences involving violence.

44. The applicant had a good work history. At the date of sentence, he had been self-employed as an earthmoving contractor since 1997.

45. The learned trial judge referred to the applicant’s lack of remorse at any time. He described the assault as “serious” and stated:

“It was a premeditated attack on a off-duty police officer in a nightclub.  He had given you no provocation whatever on the evening in question, and it was a cowardly attack involving two men against one man.”

46. The learned trial judge referred to the fact that the jury’s verdict was based on a finding that the applicant was in company with another man.

47. The learned trial judge referred to the fact that the penalty for assault occasioning bodily harm in company was increased by Parliament in 1997 from 7 years to 10 years and stated:

“That is a message from Parliament to the Courts as to the seriousness of these offences.  The Courts have often observed that citizens must be able to walk the streets in safety.  Street thuggery cannot be tolerated.  In the same way, thuggery in hotels and nightclubs cannot be tolerated.  Citizens must be able to visit hotels and nightclubs without being set upon by a premeditated act of thuggery.

The serious nature of this attack is that it was a premeditated attack in company with another man carried out on an off-duty police officer at a nightclub, and it was clearly an act of revenge on your part for some grievances you claim to have had arising out of police duties performed by Mr Kenna.”

48. Amongst the matters relied upon by the applicant were that the learned trial judge gave insufficient weight to the antecedents of the applicant and that he failed to properly consider the alternative sentences including a partially or fully suspended sentence or ordering that the sentence be served by way of an intensive correction order.

49. It was further submitted that the learned trial judge gave undue weight to premeditation, as the arrangement between the applicant and the dark-haired man could not have been made prior to the arrival of the complainant at the nightclub. It was also submitted that the learned trial judge gave undue weight to the involvement of 2 men when the applicant played no part in the actual assault.

50. The office of the Director of Public Prosecutions produces a schedule for sentences for assault occasioning bodily harm with a circumstance of aggravation. Mr Kelly of counsel on behalf of the respondent submitted that the schedule shows that the offence is committed in a wide variety of circumstances leading to a wide range of outcomes, but that the sentence imposed in the present case was within the appropriate range.

51. A consideration of the sentences in R v Neivandt (CA No 414 of 1999, 9 June 2000), Tootoo (2000) 115 A Crim R 90 and R v Matamua (CA No 186 of 2000, 28 September 2000) suggests that the sentence imposed on the applicant was manifestly excessive, having regard to the short period of time to which the premeditation applied, the lack of involvement on the applicant’s part in the physical assault, the nature of the actual assault and the relatively good antecedents of the applicant, even allowing for the lack of remorse and that the complainant was an off-duty police officer.  These circumstances relative to the offence and the applicant required that the sentence of imprisonment be modified by a further order, such as a partial suspension or an intensive correction order.

52. During the hearing of the application Mr Glynn indicated that his instructions were such that he had concluded that the applicant would be willing to serve his sentence by way of intensive correction in the community. The order which I propose must be subject to the relevant provisions of the Penalties and Sentences Act 1992 in relation to the making of an intensive correction order being complied with.

Orders

53. It follows that the orders which I would make are:

1. Application for extension of time to appeal against conviction is refused.

2. Application for leave to appeal against sentence is granted.

3. Appeal against sentence is allowed.

4. The sentence of 12 months’ imprisonment is varied by adding an order that the applicant serve the term of imprisonment as an intensive correction order, subject to the solicitors for the applicant within 5 business days notifying the Registrar of the Court of Appeal that an explanation of the intensive correction order has been given to the applicant as required by s 116 of the Penalties and Sentences Act 1992 and the applicant agrees to the intensive correction order being made and, upon that notification being received, the applicant must comply with the requirements set out in s 114(1) of the Penalties and Sentences Act 1992 and report within 5 business days of that notification being given by his solicitors to an authorised corrective services officer at Townsville.