R v Edwards[2025] QCA 123

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  The appellant appeals against his convictions for sexual assault and contempt of court and seeks leave to appeal against the sentences imposed for each.
2. [2]
   He and the sexual assault complainant, a 19 year old student from China, travelled in the same carriage of a train in the early evening of 22 March 2018.  They alighted from the train at the same station.  The appellant struck up a conversation with the complainant and walked with her towards her homestay residence.  The complainant alleged that, during their walk, the appellant grabbed her on the buttocks and, once they reached her residence, tried to kiss her.  She immediately complained to her homestay parents and their daughter, and police were called.  Ultimately, the appellant was charged on indictment with two counts of sexual assault.
3. [3]
   After a trial before Allen KC DCJ and a jury, in June 2022, the appellant was acquitted of count 1 (grabbing the complainant’s buttocks) and convicted of count 2 (trying to kiss her).  He was sentenced to three months’ imprisonment, wholly suspended for an operational period of 18 months, with nine days of pre-sentence custody declared as time already served under the sentence imposed. 
4. [4]
   The appellant was represented at trial but repeatedly asked direct questions of the trial judge; interjected; commented; and made derogatory statements about the prosecutor.  His questions and interjections et cetera commenced upon his arraignment and persisted up to and including his sentencing, at which time he was at his worst.  After sentencing the appellant for sexual assault, the trial judge dealt with him summarily for contempt of court and sentenced him to 14 days’ imprisonment.^[1] 
5. [5]
   On 5 July 2022, the appellant filed a notice of appeal against his convictions and sentences.
6. [6]
   For the reasons which follow, the Court makes the following orders and direction:

   1. The appeal against the conviction for sexual assault is dismissed.
   2. The application for leave to appeal against the sentence imposed for sexual assault is refused.
   3. The appeal against the conviction for contempt is dismissed.
   4. Leave to appeal against the sentence imposed for contempt is granted, but the appeal is dismissed.
   5. The Registrar of the District Court is to amend the Verdict and Judgment Record so that in relation to the sentence imposed for the charge of contempt, the word “No” is added before the phrase “Conviction Recorded”.

Grounds of appeal

7. [7]
   The appellant represented himself at the appeal.  His notice of appeal contained grounds which may be taken as asserting that the verdicts were unreasonable, as well as factual assertions, framed as grounds, which were not based upon the evidence at trial.  Those factual assertions concerned (among other things) the conduct of the appellant’s barrister at trial and, as relevant to his conviction for contempt, an assertion that he was medically unfit during the trial.^[2] 
8. [8]
   The appellant did little to advance his appeal after he filed his notice in July 2022.  Mullins P reviewed the matter on 29 October 2024.  After confirming with the appellant that he wished to pursue his appeal, her Honour told him that, if he wished to pursue an argument that his barrister had not followed his instructions or an argument that he was medically unfit during the trial, then he would require supporting evidence.  The appellant was made aware that supporting evidence was to be on affidavit and that any claim that he was ill during the trial had to be supported by an expert medical report to that effect: a medical certificate would not suffice. 
9. [9]
   The appellant filed no additional evidence.  Therefore, his grounds which depended on additional evidence will not be considered further. 
10. [10]
    In support of his argument that his conviction for sexual assault was unreasonable, the appellant submitted that inconsistencies between the complainant’s evidence and the evidence of one of the preliminary complaint witnesses, Ms [Y], rendered the complainant an unreliable or incredible witness whose evidence could not support his conviction.  In addition to that inconsistency, he relied upon alleged inconsistencies in the complainant’s evidence about whether they hugged; and the state of the DNA evidence.  He submitted, in effect, that the prosecution could not have negated, beyond reasonable doubt, his version of events.  He also argued that the verdicts on counts 1 and 2 were unreasonably inconsistent. 
11. [11]
    The only argument the appellant made about the sentence imposed for the sexual assault was that it ought to be “overturned” upon the quashing of his conviction. 
12. [12]
    The appellant submitted, in effect, that his conviction for contempt was unreasonable.  He also contended that his sentence for contempt was manifestly excessive because:

    1. he had no prior convictions;
    2. the recorded conviction would interfere with his ability to invest in casinos in other countries; and
    3. he was affected by sleep deprivation at the time.
13. [13]
    The appellant produced no evidence in support of (b).  He produced no suitable evidence in support of (c).  However, as to (c), the appellant tendered two medical certificates at the hearing of the appeal.  The first stated that he was “unfit” to attend court on 8 June 2022, which was after the trial had concluded.  The second referred to his recent bereavement and requested a delay in his “upcoming court date” of 14 July 2022, which apparently concerned another matter.  At the hearing of this appeal, the Court recognised that the reference to the appellant’s recent bereavement was a reference to his mother’s death. 

Was the appellant’s conviction for sexual assault unreasonable?

14. [14]
    When an appellant contends that a jury’s verdict is unreasonable, the appellate court is required to undertake its own independent assessment of the record to determine whether it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt.  The appellate court must consider the whole of the evidence and pay attention to the competing evidence – in this case, the evidence of the appellant.  Further, as reinforced recently in R v Brennan; R v Sipple,^[3] quoting from R v Thrupp; R v Taiao; R v Walker; R v Daniels,^[4] an appellate court must pay full regard to the benefit enjoyed by the jury:

“A further important principle in considering this ground of appeal is that:

‘[t]he appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, “must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the (tribunal of fact) has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations”: M v The Queen at 493; and Dansie v The Queen at [16]’.”

15. [15]
    However, if the appellate court’s independent assessment of the evidence reveals inconsistencies, discrepancies, or any other matter of such a nature that, even allowing for the advantage enjoyed by the jury, a reasonable doubt ought to have been entertained, then the jury’s verdict should be set aside as unreasonable.^[5]
16. [16]
    With respect to the inconsistency in the verdicts in this case, and whether it rendered the verdict on count 2 unreasonable, as R v CCX explained, an appellate court is to determine whether, viewed logically and reasonably, and respecting the role of the jury, there is a proper way to reconcile the verdicts.^[6] 
17. [17]
    It is necessary to first conduct an independent assessment of the record, and then to consider the appellant’s arguments.

The complainant’s evidence

18. [18]
    The complainant is a Chinese national.  In 2018, she was studying in Brisbane and residing with her homestay family in a Brisbane suburb.
19. [19]
    On 22 March 2018, the complainant was travelling by train from the city to her homestay house.  She first noticed the appellant (whom she did not know) on the train when he sat near her on a seat vacated by a woman with a guide dog.  The appellant stared at the complainant and made faces towards her by “raising his eyebrows in a really funny way”.^[7]  He said nothing to her whilst they were on the train.
20. [20]
    The complainant alighted from the train at her station.  The appellant alighted at the same station.  He said “ni hao”^[8] to the complainant and they had a brief conversation about China.  From the station, together they crossed the train track safety crossing and walked along the footpath in the direction of the complainant’s house.
21. [21]
    The appellant told the complainant his name was Luke.  He asked the complainant for her name, her age and, twice, for her phone number.  On the second occasion the complainant gave him her number.  She said that she was worried that he would “do something”^[9] if she did not.  The appellant called the number immediately, thus providing her with his number.  The appellant asked the complainant to save his number, which she did, under the name “Luke”.^[10]
22. [22]
    As they were stopped at traffic lights, the appellant started to touch the complainant on the side of her body.  She moved away and tried to find another topic to discuss.  She asked the appellant what his “purpose”^[11] was.  The appellant said he was on his way to visit relatives at a Thai takeaway which was in the vicinity.  They crossed the road and walked together along the footpath.
23. [23]
    During their conversation, the appellant asked the complainant whether she would like to go out with him on the weekend; whether she had a boyfriend; and whether she would like him to be her Australian boyfriend.  The complainant replied, “no thank you”.^[12]  She told the appellant she had an ex-boyfriend back in China.  During that conversation, the appellant brushed the complainant’s thighs with his hand “a couple of times” and grabbed her buttocks once (count 1).^[13]
24. [24]
    When the complainant and the appellant were across the road from the complainant’s house, the complainant announced that she was home.  The appellant grabbed the complainant’s wrist; pulled her towards him; put his hands around the complainant’s waist; and hugged her once.  She “pushed him away”.^[14]  The appellant hugged her a second time and lifted her up until her feet were off the ground.  The appellant and complainant were face to face; she could feel his breath.  The complainant saw the appellant “poke his lips”^[15] and try to kiss her (count 2).
25. [25]
    As the complainant pushed the appellant away she yelled, “It’s not safe”.^[16]  This reflected an earlier conversation they’d had, during which the appellant said that Australia was safe at night but China was not.^[17]  The complainant yelled “Archie”^[18] (the name of the homestay family’s dog) and ran across the road and into the yard of her homestay house.
26. [26]
    The complainant entered the house.  She ran upstairs, crying.  She told her host family parents (Mrs [Z] and Mr [Z]) what had occurred.  She said one of them called the police.  Their daughter Ms [Y], who lived next door, and was on the phone to her mother at the time, came over and the complainant discussed with her what had happened.  The preliminary complaint evidence is outlined below.^[19]
27. [27]
    It was put to the complainant in cross-examination that there was a third hug (after the two she described) during which she hugged the appellant and ran her hands up and down his back and over his groin.  The complainant denied that suggestion and said she “didn’t give permission or consent to any hugs”^[20] she “only open hand and push him away.  Tried to get rid of him”.^[21]  In re-examination the complainant said she made contact with the appellant’s “shoulder part”^[22] when she pushed him away.
28. [28]
    Under cross-examination, the complainant agreed that she told a police officer that “Maybe [the appellant] misunderstood that I am friendly”.  Cross-examination continued:^[23]

“Why did you say that? --- Because I didn’t tell Mr Edward to leave me alone directly.  So probably I just trying to show that I’m friendly but he thought I’d like to go out with him.

Okay.  You mean you were smiling at him as well? --- Yes.

Okay.  So you’re being polite and friendly towards him; is that right? --- Yes.

Okay.  And when did you stop being polite and friendly to him? --- Through the [indistinct] where he started to touch me.

…

Okay.  Now when you got on the train, was there – were you in a happy mood or what mood were you in? --- I was – I had a good day.

Okay? --- So yep.

So you were generally just smiling at people.  Is that correct? --- Yes.”

29. [29]
    The trial proceeded on the basis that the complainant’s evidence raised the defence of mistake of fact as to consent. 
30. [30]
    Under cross-examination, the complainant accepted that it was possible that she accidentally brushed up against the appellant as they were walking because the footpath was really narrow.^[24]  She conceded that she “probably accidentally, you know, yep, [had] contact with him”.^[25]  Her concession was taken as raising the possibility that any contact between the appellant and the complainant as they walked along, including the assault the subject of count 1, was not of a sexual nature. 

Preliminary complaint evidence

31. [31]
    The Crown tendered preliminary complaint evidence from Mr [Z] and Mrs [Z], their daughter Ms [Y], and the two police officers, Senior Constable Scott Pettersen and Detective Senior Constable Callum Saunders, who separately attended at the complainant’s house on the night of 22 March 2018 and took brief versions of events from her.
32. [32]
    Mrs [Z] was on the phone to Ms [Y] when the complainant arrived home, crying and distraught.^[26]  The complainant told Mrs [Z] that a man had followed her home from the station^[27] and touched her “on the bottom and on the top of the leg”.^[28]  The complainant said that he “picked her up, tried to kiss her” and that she had “pushed him away”.^[29]  Mrs [Z] asked the complainant whether the man touched her anywhere else and she said “no”.^[30]  This conversation occurred sometime between 6.45 pm and 7.00 pm.
33. [33]
    Ms [Y] was on the phone to her mother when the complainant returned home.  She heard the complainant crying in the background of the phone call and decided to go to her parents’ house.  She took notes whilst the complainant explained to her the events of the evening.  With leave, she refreshed her memory from those notes during her examination in chief.^[31]  Her evidence included the detail which had been included in her contemporaneous notes, as well as additional detail, which was not recorded in her notes, which came from her memory.
34. [34]
    Ms [Y] said that the complainant told her that the appellant kept touching her and that she was worried, because he was following her, that he knew where she lived. 
35. [35]
    Ms [Y] was asked whether the complainant said how the appellant was touching her, and Ms [Y] said (emphasis added):^[32]

“…Yeah, he said that he was – she was – she said that he was kissing her all over, that she had – he had held her – her hair and held her down.  He – she said that he also said that he was asking how old she was, and it didn’t matter how old – like, that it didn’t matter that she was old enough.  She said that there was a big – like, a struggle.  I’ve just written the word “struggle”.  And she also mentioned that at the train station, she did feel a little more comfortable when he was talking Chinese to her, so - - -

You spoke before about kissing her?---Yes.

Was there anything in the notes that helped you refresh that?---All that I’ve got here is he’s tried to kiss her and hold her head down.  But from what I can remember as well is that he was kissing her all over.  I had asked if he had touched or kissed her private parts, her vagina, but he – she said that he had not.

And so was that you were told about the touching, what you just described to us?---There was also that – like, from all I can remember that night was that it seemed like there was a struggle, like he was - - -

That’s okay. I just want to be clear - - -?---Sorry.

That’s okay.  Just if you can limit your evidence to what she told you?---No, that’s probably all there was, is that he was kissing her - - -

Okay, thank you - - -?--- - - - all over and held her down.”

36. [36]
    During cross-examination, Ms [Y] said she made the notes in the first 10 or so minutes of speaking with the complainant.  She confirmed (among other things) that the complainant told her that the appellant tried to touch her hair.  She said that she was not 100 per cent certain whether the complainant said that the appellant held her or pushed her to the ground.  But she agreed that she told police in 2018 that the complainant said the appellant pushed her to the ground; tried to hold her hair down; kissed her all over and not just on the mouth; tried to touch her; and that she kicked him off.  She agreed that the complainant did not tell her that the appellant tried to, or did, touch her on the bottom.  She said that her notes did not indicate that the complainant said anything about the appellant touching her on her leg.^[33]
37. [37]
    It was put to the complainant in cross-examination that she told Ms [Y] that the appellant tried to hold her head down and kiss her.  The complainant denied that she said that.^[34]  It was put to the complainant that she told Ms [Y] that the appellant was kissing her all over, not just on the mouth.  The complainant denied that she said that.^[35] 
38. [38]
    In re-examination, the Crown confirmed with Ms [Y] that “the part about kissing [the complainant] all over” did not appear in her notes.^[36]
39. [39]
    Mr [Z] was out, collecting takeaway, when the complainant came home.  He returned sometime after 7.00 pm to find his wife, his daughter and the complainant in conversation on the verandah of his house.  Mr [Z] kept his distance from them at first, but when he had an opportunity to speak to the complainant, she told him that “someone had touched her and tried to kiss her when she didn’t want them to”.^[37]  He said she was extremely teary and shaking.
40. [40]
    Senior Constable Petterson arrived at the complainant’s house at about 10.00 pm to take an initial report from her.  The complainant told him that she caught the 6.17 pm train from Central Station.  She saw the appellant get on at [X] Station.  They exited at her station and walked towards a major road.  She told the officer that the appellant said something to her about her dress being nice and “continued to touch [her] upper leg and bottom”.^[38]
41. [41]
    Refreshing his memory from his contemporaneous notes, Petterson recounted the complainant’s count 2 complaint:^[39]

“They’ve crossed the road and then approximately where bus stop [Y] … is, the male person has picked up the victim by putting his hands around her back and waist area and tried to kiss her on the face.  [The complainant] has pushed her face away and pushed the male away whilst he has held onto her hand.  [The complainant] has stated that – stated to me that it wasn’t safe.  The male has replied that it was safe and that it was safe to stay with him.  Then [the complainant] has then ran away from him towards her home whilst calling out a dog’s name to try and deter the male from following.”^[40]

42. [42]
    Detective Saunders arrived at the complainant’s house between 10.30 pm and
    11.00 pm and spoke to the complainant after she had spoken to Pettersen.  The complainant told Saunders that the appellant touched her on the upper leg near the buttocks and asked her out on the weekend.  She said “when they approached her address, he had tried to hug her and pulled her head closer to his face”.^[41]

Distressed condition evidence

43. [43]
    The parties agreed that the evidence of the complainant’s distressed condition immediately after the alleged assaults could be left to the jury as supporting the prosecution case. 

Inconclusive DNA evidence

44. [44]
    An attempt was made to retrieve identifiable DNA from the complainant by way of a tape lift from her clothing.  However, the sample was complex, because it involved more than three contributors, and was unsuitable for comparison with the appellant’s (or anyone’s) DNA. 
45. [45]
    The Crown’s DNA expert explained that there were many ways in which DNA might find itself on clothing – including by way of primary transfer (that is, direct contact between the DNA depositor and the clothing) and secondary transfer (that is, from the depositor to another person/item, and from that other person/item to the clothing).  Many DNA transfer events might occur when a person has been sitting on a train seat. 

The appellant’s evidence

46. [46]
    The appellant’s evidence (in chief and under cross-examination) was to the following effect:

    1. The complainant spotted him in the train carriage; smiled at him and sat on the seat to his left.  She looked at him and smiled.  She was flirtatious.  Her behaviour – which included her “bouncing up the train” – was surprising.^[42]
    2. The complainant approached him as they both stood to exit the train at the same station.  She stood really close to him, in his personal space. 
    3. They had a discussion and got off the train together. 
    4. He asked her whether she would like him to accompany her home.  She said yes. 
    5. His intention was to get to know her “a bit further”^[43] to see if she could assist him in his business.  He was not really interested in a date with her.  He was interested in “her translator”^[44] (or perhaps for her to be his translator) because he sourced products from China. 
    6. They exchanged phone numbers and continued to walk and talk. 
    7. When they approached a house near a charity shop, she patted him on the buttocks, twice.  They were laughing and chatting at the time.  The buttocks pat was “playful”.^[45]  He did not ask her what she was doing because he did not regard it as a sexual assault.  He said many women touched his bottom.^[46]  He said “Chinese people do smack people on the bottom a lot … they’re very touchy … A bottom’s not a private part … in other countries, it’s very common … for women to hit a man on the bottom ...”^[47]
    8. When they arrived at the complainant’s house there were three “consensual hugs”.^[48]  (He knew she was living with a homestay family.)  As the complainant approached him for the third hug, she had to step over a concrete ramp to reach the footpath and, as she did so, she almost fell over.  He tried to steady her but he did not make contact with her.  Then they had their third hug. 
    9. The complainant was enthusiastic about the hugs. 
    10. During the third hug, the complainant had her hands on his buttocks, over his pants.  Then she formed her right hand into the shape of the head of a cobra and touched his crotch area.  “[T]here was a bit of traction on [his] penis”.^[49]  He was shocked.  Under cross-examination, he described the touch as “one rub” and said she “ducked down” and “homed in on it”.^[50]  He said his strength was reduced at the time, because of pain in his hands and that she was stronger than he was.^[51]  He seemed to suggest that she was attempting to obtain his DNA.^[52]
    11. They continued to walk – now holding hands.  He said he held the complainant’s hand, although she had sexually assaulted him, because it took him a while to “process” it.^[53] 
    12. He moved to hold her by the wrist.  He looked her in the eye and asked her what she was up to.  He told her not to scam people – she could get in a lot of trouble.  Then they said goodbye. 
47. [47]
    The appellant denied the complainant’s version of events.  He said he did not touch the complainant on the bottom.  Nor did he try to kiss her.  He denied a sexual interest in her.  He said she was the one who sexually assaulted him. 
48. [48]
    When he was being cross-examined about the complainant’s evidence that he had complimented her dress, he said she was actually wearing a skirt and a top; he had a history in fashion and design; and it was ridiculous to suggest he said, “that’s a nice dress” because it was not a dress.^[54]  (For what it is worth, the complainant confirmed in her evidence that she was wearing a dress – not a skirt and top.)^[55]
49. [49]
    The appellant made various complaints about the way in which the complainant’s allegations had been investigated.  He accused the prosecution of hiding CCTV of their interaction on the train.  He said there were holes in the investigation and that it was “a big stitch-up”.^[56]  He said he recorded his interactions with the complainant but was not able to produce the recording because he inadvertently failed to save it.^[57]
50. [50]
    He said he told the complainant not to scam people because he had been scammed before by women in China.^[58]  Alleging a motive for the complainant to lie about the assaults, he said:^[59]

“I thought it could have been some sort of scam where the woman makes a false, sort of, allegation at that point, and I thought she might be trying to get some money from compensation from said (sic) Queensland, which is a fraud.” 

51. [51]
    He suggested as another motive for a false complaint that the complainant was concerned that her host father, whom the appellant said she described as “very controlling”, had seen them together, so she “made up all this crap”.^[60] 
52. [52]
    The complainant denied the appellant’s version of events.  Among other things, when it was put to her that she voluntarily gave the appellant a hug, she said, “I won’t give stranger a hug”.^[61] 

The summing up

53. [53]
    The appellant made no complaint about his Honour’s summing up.  Relevant to this appeal, his Honour’s directions included directions in relation to the following matters:

    1. in great detail, the preliminary complaint evidence and the significance of any consistencies or inconsistencies between it and the complainant’s trial evidence: 

His Honour directed the jury that any inconsistencies between the complainant’s evidence and the evidence of the preliminary complaint witness may cause them to have doubts about the complainant’s credibility or reliability;

2. assault, as a touching without consent:

His Honour reminded the jury that the appellant contended that he did not touch the complainant as she alleged.  His Honour also directed the jury that an accidental touching would be excused by law and that the prosecution had to prove that any touching of the complainant by the appellant was deliberate;

3. indecency:

His Honour directed the jury that they had to be satisfied that any assault by the appellant was motivated by sexual interest;

and

4. mistake of fact as to consent.

54. [54]
    In reminding the jury of the arguments made by counsel during their addresses, his Honour emphasised the arguments made by the appellant’s counsel about the inconsistencies between the complainant’s evidence and the preliminary complaint evidence of Ms [Y].
55. [55]
    Neither counsel sought re-directions.  The jury retired at 12.16 pm on day 3 of the trial.  The jury returned their unanimous verdicts at 2.10 pm on day 4. 

Consideration of verdict on count 2

56. [56]
    The complainant was a measured witness who made reasonable concessions under cross-examination.  Her evidence included an internally consistent and inherently credible account of the appellant’s conduct.  Her account included believable detail, such as her evidence that the appellant picked her up in his attempt to kiss her; her evidence that in rejecting the appellant’s attempt to kiss her she made a statement about it not being “safe” which reflected their earlier conversation; and her evidence that she called out to the homestay family’s dog after the assault the subject of count 2. 
57. [57]
    The complainant’s allegations that she had been sexually assaulted were supported by her distressed condition. 
58. [58]
    Although there was inconsistency between the complainant’s evidence and the evidence of Ms [Y], the complainant otherwise gave a consistent account of the appellant’s conduct towards her to the four other preliminary complaint witnesses. 
59. [59]
    It was for the appellant to identify what he said were the weaknesses in the prosecution case and to demonstrate how those weaknesses reduced the probative value of the evidence to such an extent that, even making full allowance for the jury’s advantage, there existed a significant possibility that an innocent person had been convicted.^[62]  The weaknesses relied upon by the appellant included the inconsistency between the complainant’s evidence and Ms [Y]’s evidence of her complaint; and the absence of DNA evidence.  The appellant’s contention that the complainant gave inconsistent evidence about the number of times she was hugged was not correct.^[63] 
60. [60]
    The jury’s attention was drawn to the significance of the inconsistency between the complainant and Ms [Y].  It assumed prominence in the summing up and in defence counsel’s address.  It would have been reasonable for the jury to have concluded that Ms [Y] was mistaken in her recollection of the detail of the complainant’s complaint, particularly when one compared her written notes to her recollection; or to have concluded that the inconsistency did not detract from the complainant’s credibility or reliability overall. 
61. [61]
    The absence of any DNA evidence to support the complainant’s evidence was readily explicable and could not reasonably have detracted from the prosecution case.
62. [62]
    The appellant’s account was incredible and unreal.  It contained obvious exaggeration and oddities, including in his statements about his treatment, sexual or fraudulent, by other women, and in his assertion that he had qualifications in fashion.  His version of events did not accord with common sense or life experience.  The jury rejected completely his evidence that it was the complainant who sexually assaulted him.  To have done so was wholly reasonable – that suggestion was, on the face of the record, fanciful.  Further, in deciding to reject the appellant’s account, the jury had the advantage of being able to compare the presentation and demeanour of the complainant with the presentation and demeanour of the appellant. 
63. [63]
    It was not at all unreasonable for the jury to wholly dismiss the asserted motives for the complainant to lie.  They simply did not hold up to scrutiny. 
64. [64]
    To succeed in his argument that the verdicts were unreasonably inconsistent, the appellant had to persuade this Court that the verdicts of acquittal and conviction for counts 1 and 2 respectively were an unacceptable affront to common sense and strongly suggested that the jury compromised its duty; or was confused; or misunderstood its function.
65. [65]
    The inconsistency between the verdicts was reasonable, rational, and logically explicable.  The complainant’s concession as to the possibility of an accidental touching rather than an intentionally indecent touching when it came to count 1 provided a logical basis for the inconsistent verdicts.  By contrast, there was no room for an “accidental” attempt to kiss in relation to count 2.  (The complainant’s concession about an accidental touching did not detract from her credibility or reliability overall.  If anything, it was a concession reasonably made, which added to her credibility and reliability.)
66. [66]
    It was also possible that the jury had a reasonable doubt about whether the touching the subject of count 1 was indecent/sexually motivated because of what they found to be the location of the touch (the appellant’s counsel argued it was her hip, not her buttock/s, that was touched).^[64]  Or they gave the appellant the benefit of a defence of mistake of fact as to consent for count 1.  It would have been reasonable for them to have done either. 
67. [67]
    By way of contrast, it was well open to the jury to characterise the appellant’s attempt to kiss the complainant as indecent and there was no scope for the operation of mistake of fact in relation to count 2 in the complainant’s or the appellant’s evidence.  It will be recalled that the appellant said he did not attempt to kiss the complainant at all.
68. [68]
    Further, the verdict of acquittal on count 1 was consistent with the jury adhering to its duty, including in giving the appellant the benefit of any defence open to him; and its duty not to use the appellant’s inappropriate behaviour at trial in a way adverse to him.
69. [69]
    The contention that the verdict on count 2 was unreasonable is not made out and the appellant fails in his appeal against his conviction for sexual assault.

Application for leave to appeal against the sentence imposed for count 2

70. [70]
    The only argument the appellant made about the sentence imposed for sexual assault was that it should be set aside if his conviction were quashed.  The conviction has not been quashed.  Therefore, leave to appeal against the sentence imposed for sexual assault is refused.

Contempt of court

71. [71]
    The appellant’s arguments about his conviction for contempt included an argument that his Honour erred in convicting him of that offence.  His arguments as to error may be taken as a challenge to the adoption of the summary procedure by his Honour; as well as a challenge to his conviction on the basis that he was not acting intentionally in contempt of court but rather out of his frustration and concern about the prospect of criminal convictions on the basis of what he asserted was deliberately false evidence. 

Evidence of contempt and the trial judge’s warnings to the appellant

72. [72]
    The appellant behaved inappropriately throughout the trial.  Defence counsel did what he could to control him, but the appellant proved to be uncontrollable – see, for example, AB 366, AB 370 and AB 373.  The trial judge showed considerable restraint in the face of the appellant’s behaviour and ignored much of it.  However, more than once, the trial judge informed the appellant that he was at risk of being dealt with for contempt of court and identified for the appellant his behaviours of concern.
73. [73]
    After the first adjournment on day 1 of the trial (2 June 2022), at 10.48 am, in the absence of the jury, his Honour summarised the appellant’s conduct to that point and warned him about the risk of his being dealt with for contempt for it:^[65]

“Now [defence counsel], your client from the commencement of the proceeding today has been making statements from the dock.  They commenced by (sic) my welcoming the jury panel making surplusage comments during the arraignment despite being told not to, protesting by way of a belated challenge to the empanelment of the juror and then continued interjections some of them addressed to me by way of questions, all of which are entirely inappropriate.  Liable to prejudice his defence in the way (sic) of the jury and also liable to place him at the risk of being dealt with for contempt of court.”

74. [74]
    Notwithstanding that warning, the appellant’s interjections immediately continued, prompting the trial judge to say, “he’s continuing to make comments which place him at the risk of being dealt with for contempt of court”. 
75. [75]
    The court adjourned briefly to allow the appellant’s counsel to speak to him about contempt.  However, within moments of the court’s resuming, the appellant again addressed the trial judge directly – leading to another warning from his Honour:^[66]

“No, I’m not – you’re represented by counsel.  Counsel will speak on your behalf and if you continue to make statements from the dock, you’ll place yourself at risk of being dealt with for contempt of court.  Be seated …”

76. [76]
    Within no more than a minute of that third warning (which was given at about
    10.58 am) the appellant’s improper behaviour continued.^[67]
77. [77]
    At about 11.33 am, in the absence of the jury, after more interjections by the appellant, the trial judge directed him again not to address him directly and told the appellant that a failure to comply with the direction may have consequences.  His Honour said:^[68]

“I’ve told you before that you’re represented by counsel and counsel will speak on your behalf.  I direct you that you are not to address me directly.  Failure to comply with that direction may have consequences for you.  No doubt your legal representatives can give you more advice about that …” 

78. [78]
    This was the appellant’s fourth warning. 
79. [79]
    The appellant’s inappropriate behaviour for the next half an hour was limited to a remark during the evidence of Ms [Y].^[69] 
80. [80]
    At 12.02 pm, after the evidence of Mrs [Z] concluded, the prosecutor asked to raise a matter in the absence of the jury.  The jury retired and the prosecutor complained that the appellant had been communicating with them and asked that a screen be placed between the appellant and the jury.  His Honour took no action in response to the prosecutor’s complaint but noted that the appellant’s alleged conduct might be interpreted in a prejudicial way by the jury.  Just before the jury were brought back into court, his Honour again directed the appellant not to address him directly (but to go through his counsel) and directed him not to make any comments which were audible to the jury.^[70]  This may be taken as his fifth warning.  The transcript suggests that the appellant restrained himself for the balance of the day. 
81. [81]
    The Crown case closed at the end of day 1.  The appellant was called upon at the beginning of day 2.  He elected to give evidence.  He was not an easy witness, even for his own counsel.^[71]  He was particularly difficult and argumentative during cross-examination. 
82. [82]
    Cross-examination of the appellant ended at 1.13 pm on day 2.  Defence counsel asked for an adjournment to speak to his client before re-examining him.  His Honour adjourned for lunch, providing counsel with that opportunity. 
83. [83]
    After lunch, the trial judge was informed that a juror had complained about the appellant “eyeballing” him during his evidence.^[72]  While his Honour was receiving submissions from counsel about what to do, the appellant repeatedly addressed his Honour directly.  His Honour observed that the appellant insisted on ignoring his direction not to address his Honour directly.^[73] 
84. [84]
    The appellant was re-examined from 2.56 pm until 3 pm, at which time the appellant’s case was closed.  The jury then returned to the jury room to allow the trial judge to discuss directions with counsel.  During that discussion, the appellant repeatedly interjected.^[74]  His Honour observed implicitly that the appellant was unable to control himself and stated that the appellant continued to act contrary to his own interest.^[75]
85. [85]
    Counsels’ addresses commenced at 3.31 pm and ended at about 4.15 pm.  The appellant said nothing during his own counsel’s address, but he interrupted the prosecutor twice.
86. [86]
    After the jury were sent home for the day, the appellant directly addressed the trial judge about a juror.  The trial judge ignored him. 
87. [87]
    The trial judge asked counsel whether there were any matters they wished to raise before he adjourned.  The appellant then accused the prosecutor of presenting false charges, bringing a false prosecution, and lying.^[76]  He interrupted while his Honour was trying to talk to counsel.  At one point, his Honour told the appellant that he was not listening to him.^[77]  The appellant’s comments about the prosecutor became personal.^[78]  The trial judge and the prosecutor ignored them. 
88. [88]
    Discussions then turned to the appellant’s bail status.  
89. [89]
    The appellant was on bail prior to the commencement of the trial and the trial judge granted him bail when the trial commenced.  However, the appellant was not in court at 11.35 am on day 2 as he should have been after an adjournment during his cross-examination.  At about 11.44 am, the trial judge revoked the appellant’s bail and issued a warrant for his arrest.^[79]  The appellant returned to court of his own accord by 12.15 pm and his cross-examination continued. 
90. [90]
    The appellant’s counsel made an application for the appellant’s bail when the court adjourned for lunch on day 2.  The appellant addressed his Honour directly whilst his Honour was considering the application.^[80]  His Honour did not grant the appellant bail at that time, and he was remanded in custody.  His Honour said:^[81]

“Given the defendant’s inability to follow directions I’ve made during the course of the trial and the impression I formed generally as to his demeanour and behaviour, I’m concerned that the trial be further interrupted by delays at this stage.”

91. [91]
    At the end of day 2 (after addresses) defence counsel made another application for the appellant’s bail.  Defence counsel told the court that the appellant’s mother had been diagnosed with pancreatic cancer, in the context of a submission that the appellant was not at risk of failing to appear because his mother required his assistance.  His Honour ultimately granted the appellant bail. 
92. [92]
    His Honour’s summing up commenced at 10.12 am on day 3 of the trial.  The appellant interjected during it.  His Honour stopped his summing up because of the appellant’s interjections at 10.36 am and asked the jury to retire.  His Honour revoked the appellant’s bail, remanded him in custody and considered whether the trial ought to proceed in his absence, in accordance with section 671(2) of the Criminal Code.  Ultimately, his Honour allowed the appellant to remain in the dock, but warned him that if he interrupted again, the trial would proceed in his absence.  His Honour said:^[82]

“If there is a further interruption to my summing up by way of any statement by the defendant from the dock, I expect that I will be obliged to rule that continuance of the proceedings in the defendant’s presence is impracticable and that he be removed so that the trial be conducted in his absence.”

93. [93]
    The jury were brought back into court and his Honour resumed his summing up at 11.26 am.  The appellant did not interject any further.  It concluded at 12.16 pm. 
94. [94]
    After the jury returned their verdict on day 4 of the trial, the matter proceeded immediately to sentence. 
95. [95]
    Having been called upon, the appellant claimed that there had been a “gross miscarriage of justice”.  He continued to interject throughout the sentence hearing.  During the first part of his Honour’s sentencing remarks, which commenced at
    2.38 pm, the appellant barely let his Honour say more than a sentence without interrupting.  He accused the police of corruption, and the prosecutor of withholding information.  He said, for example, that the trial was a sham; the charges had been “cooked up”; the complaint was a fabrication; and that that which was alleged was minor.  He insulted the prosecutor, calling him a “fat fuck” and a liar and threatening to take him before “a higher court”.^[83]  He made incredible claims about “a clandestine operation running in the background involving British intelligence, Australian Military and ASIO” – their aim being to secure the appellant behind bars.^[84]  He claimed he was threatened by Queensland Corrective Services (or someone impersonating Queensland Corrective Services) and suggested he would be at risk if he were sentenced to imprisonment. 
96. [96]
    After he called the prosecutor a “crooked fuck”, his Honour warned the appellant of his risk of being sentenced for contempt:^[85]

“If the defendant continues to make interjections and, in particular, if he makes offensive statements, he will find himself being sentenced for contempt of court in addition to this offence.”

97. [97]
    This may be taken as the appellant’s sixth warning.
98. [98]
    The appellant continued to interject as before.  He asserted repeatedly that he had been set up; the police cooked up the charge; a detective was “crooked”; the complainant cooked up the charge, and the prosecutor misled the jury.  He said the trial was a sham and that the judge had been duped.  He called the police “fucking aiders and abettors”.  He called the prosecutor a “bit (sic) fat fucking liar”.  He said the complaint was unbelievable bullshit and that the complainant was “bunging it on” (in her victim impact statement which described the serious psychiatric consequences of the offending which she had suffered). 
99. [99]
    He said that his Honour would be making a huge mistake were he to sentence the appellant: it was “an abomination to even consider putting someone in jail for a ‘try to kiss’”.  He referred to his mother’s illness and said the “false charges” had taken years from her life.  At one point, he threatened his Honour, and others, in terms which included an insult to the prosecutor.^[86]  A little later, the appellant referred to the prosecutor as a “scumbag” and continued to insult him. 

Dealing with the appellant for contempt

100. [100]
     After imposing a sentence for the sexual assault, his Honour moved immediately to the issue of contempt of court.  His Honour said:^[87] 

“All right.  Could you stand up, please, Defendant.  You are in contempt of this Court by reason of your continued failure throughout the course of the trial and these sentence proceedings to refrain from interjections ---

…

--- and statements from the dock, including in the presence of the jury and in the absence of the jury during the course of the trial, and during the course of these sentence proceedings.

…

You have made insulting and ---

…

You have made grossly insulting statements to and regarding the prosecutor.  You have made statements demeaning the authority of this Court ---

…

--- including during my remarks as I address you ---

…

--- concerning contempt.

…

By doing so, I consider that you have wilfully insulted me ---

…

--- wilfully insulting the ---

…

--- Crown Prosecutor ---

…

--- wilfully interrupting the Court proceedings ---

…

--- all of which was ---

…

All of which was in disobedience of a direction I gave you at about 11.33 am on the 2^nd of June 2022 …”

101. [101]
     The appellant repeatedly interrupted this part of the proceedings as well, including by threatening his Honour with “huge ramifications” that his Honour could not imagine^[88] and asserting that –

     1. He had no contempt for his Honour – but his Honour was knowingly assisting the Crown in extorting information from the appellant;
     2. The Court proceedings were a sham (which was why he interrupted them);
     3. Criminal offences had been committed upon the appellant;
     4. He’d been threatened whilst he was traveling overseas;
     5. He was the victim of a big extortion racket which included the police working with the Chinese national (which was how he referred to the complainant); and
     6. His Honour was a party to the extortion.
102. [102]
     After tolerating the interjections, his Honour asked the appellant whether he had anything else to say as to why he should not be dealt with for contempt.  His Honour allowed the appellant the opportunity to engage his trial counsel in relation to contempt.^[89]  The appellant chose to appear for himself, although he did back down a little.  He said:^[90]

“Well, I respect the Queen, your Honour.  I will say – I will say that one thing, your Honour.  I respect the Queen.

…

Fully respect the Queen, and I apologise to your Honour if you’ve misunderstood any of the information that I’ve relayed to you today as having any sort of contempt for yourself or the actual – the actual Court building, but it is a – well, I don’t need to repeat about the sham.  But I do respect your Honour, and I do respect the Queen, so it’s a shame that the Queen’s Court has had to sort of be a party to what’s really happening …

… because I’m under threat and duress, your Honour.  I’ve received many death threats and I’ve had these scumbags from ASIO and the Australian Defence Department constantly following me around like a fucking swarm all around the city, including when I come to and from Court, and I received a threat from the other team as I was coming from this – from the Court precinct recently.  It was reported to police.  So – about what I could say in Court, so tampering – tampering with the witness.  So I was tampered with before I even got to this Court and received many death threats, your Honour.

I’ll give you some examples. “How about I put a bullet through your brain?”  There was many of them.  What’s some other – some other threats.  Yeah.  There was many of them.  I’ve reported some of them to the police, so those sorts of threats, and received some threats by a person working for Queensland Corrective Services and/or a person impersonating a person working for Queensland Corrective Services.  Received that electronic – via electronic means, and received many –  many threats, your Honour.  Yeah.  So there’s some other sort of harm that was done to me that I can’t really go into right now, but I’ve received medical treatment for that harm that was done.”

103. [103]
     After hearing that response, his Honour sentenced the appellant for contempt in the face of the court to 14 days imprisonment, to be wholly served in a correctional facility, or until such time as he purged his contempt.
104. [104]
     On the face of the record, the appellant’s conduct throughout the course of the trial, the sentence hearing, and the contempt hearing raises concerns about his mental health.  But defence counsel did not suggest to the trial judge that he was worried about the appellant’s fitness for trial in the R v Presser^[91] sense.  Nor did the appellant argue that he was unfit in that sense at this appeal (although it is accepted that he was emotionally affected by his mother’s ill health at the time). 

The appellant purged his contempt

105. [105]
     His Honour’s sentencing remarks concluded at 3.16 pm. 
106. [106]
     At 4.18 pm that day, the appellant was returned to court at his request.  He apologised to the trial judge for his conduct in the court.  His relatively long apology amounted to an admission of contempt.  It included (among other things) his recognising that it was inappropriate to make a personal comment about the prosecutor; to speak over his Honour; or to interrupt him.  He apologised for interrupting the process and for saying anything offensive.  He recognised that any issue he had with the verdict ought to be pursued via the appeal process, rather than by making statements during proceedings.  He apologised for the “perception of contempt from [his] comments”.  He said that he was “disagreeable with the outcome rather than the contempt for the whole court” (sic) and he apologised for his comments which led to that “obvious perception”.^[92]
107. [107]
     His Honour then discharged the appellant as follows:^[93]

“I convicted the defendant of contempt of Court, contrary to section 129(1) of the District Court of Queensland Act 1967.  Pursuant to subsection (2) of section 129, a District Court Judge has the same power to punish for contempt as a Supreme Court Judge would have of a contempt of the Supreme Court.  The provisions of part 7 of the Uniform Civil Procedure Rules 1999 govern the process for the Supreme Court’s dealing with contempt.  Rule 930(2) provides that the court may punish an individual by making an order that may be made under the Penalties and Sentences Act and I did so by ordering that the defendant be imprisoned for 14 days.  Rule 931(2) provides, if a respondent is imprisoned for a term, the court may order the respondent’s discharge from prison before the end of the term.  Given the efforts by the defendant to purge his contempt by way of apology, I do order, pursuant to rule 931(2), that the defendant be discharged from prison today.

All right.  So, you are discharged, and you are free to go.”

Consideration of conviction for contempt

108. [108]
     The underlying rationale for every exercise of the contempt power is the necessity to uphold and protect the effective administration of justice and to establish and maintain the authority of the law as administered by the Courts.^[94] 

The procedure adopted by the trial judge

109. [109]
     In dealing with the appellant for contempt, the trial judge proceeded under section 129 of the District Court of Queensland Act 1967 (the DCA), which states:

“129 Contempt

1. A person is in contempt of the District Court if the person—

1. without lawful excuse, fails to comply with an order of the court (other than an order mentioned in paragraph (e)), or an undertaking given to the court; or

2. wilfully insults a judge or juror, or a registrar, bailiff, or other court officer during the person’s sitting or attendance in court, or in going to or returning from the court; or

3. wilfully interrupts the proceedings of the court or otherwise misbehaves himself or herself in court; or

4. unlawfully obstructs or assaults someone in attendance in court; or

5. without lawful excuse, disobeys a lawful order or direction of the court at the hearing of any proceeding; or

6. commits any other contempt of the court.

2. A District Court judge has the same power to punish for a contempt mentioned in subsection (1) as a Supreme Court judge would have if the contempt were a contempt of the Supreme Court.

3. If the contempt is in the face of the court, a bailiff or other court officer acting under the court’s order may, using necessary and reasonable help and force, take the person committing the contempt into custody and detain the person until the court rises.

4. Before the court rises, the court may—

1. ask the person to explain why the person should not be punished; or

2. adjourn the matter to be dealt with on a stated date.

5. If the court acts under subsection 4(a), the court may deal with the person immediately.”

110. [110]
     Although it has been said that a court should exercise caution before proceeding summarily, section 129 DCA plainly contemplates the adoption of a summary procedure by a District Court judge faced with contempt in the face of the court.^[95]

The elements of contempt under section 129 DCA

111. [111]
     Section 105 DCA, the earlier version of section 129 DCA which is identical in relevant respects, was considered by the High Court in MacGroarty v Clauson,^[96] a judgment of the Court which proceeded on the “clearly justified basis” that the provisions of section 105 were exhaustive of the powers of a District Court judge to punish summarily for contempt.  The High Court explained that the contempt offences created by the section differed from the common law, especially in the element of “wilfulness” (citations omitted):^[97]

“Those provisions create a number of specific statutory offences [sections 129(1)(b), (c), (d), (e) and (f)]).  Some of the specific offences which s. 105(1) creates contain elements which would have been unnecessary for conduct, of the kind to which they refer, to constitute a common law contempt.  In particular, [paras (b) and (c)] introduce ‘wilfully’ as an element of the offences which they create.  As this Court pointed out in Lewis v Judge Ogden, when speaking of the comparable provisions of s 54A(1) of the County Court Act 1958 (Vict.):

‘At common law words or conduct in the face of the court or in the course of proceedings, in order to constitute contempt, “must be such as would interfere, or tend to interfere, with the course of justice” (Parashuram Detaram Shamdasani v King-Emperor).  Instead of making interference, or tendency to interfere, with the course of justice an element in the offences which it created, sub-s. (1) introduces the new element of conduct which is wilful in pars. (a) and (c).  In these two paragraphs the word “wilfully” means “intentionally”, or “deliberately”, in the sense that what is said or done is intended as an insult, threat, etc.  Its presence does more than negative the notion of “inadvertently” or “unconsciously” (Bell v Stewart).  The mere voluntary utterance of words is not enough.  “Wilfully” imports the notion of purpose’.

If all the elements of a particular statutory offence created by one or other of the paragraphs of s. 105(1) are present, the offence will have been committed regardless of whether the conduct would have constituted contempt at common law.  It is only if the conduct in question does not encompass all the elements of one or other of those specific offences that it will be necessary to consider whether it would, but for the section, have constituted a common law contempt in the face of the District Court.  If it would have constituted such a common law contempt, it will be an offence under [section 129(f)] …”

Procedural fairness issues

112. [112]
     In MacGroarty v Clauson, the High Court emphasised the importance of ensuring that the specific basis of a charge of contempt is distinctly stated.  In the case of a statutory offence, it is necessary for the elements of the statutory offence to be identified.^[98]  That was done sufficiently in this case.  Because they were so numerous, it would not have been reasonable for his Honour to identify in his charge the particular insults or interruptions or behaviours which constituted the contempt under section 129(b) or (c) DCA.  The appellant could not reasonably suggest that he was not aware of his offending conduct – even if his Honour referred to it in general terms.  He had been warned about it contemporaneously on several occasions.  His Honour did refer with precision to the order which the appellant disobeyed (section 129(1)(e)). 
113. [113]
     The High Court also emphasised the need to provide to a person charged with contempt the opportunity to answer the charge.  The appellant was given that opportunity and, indeed, while he chose not to provide his trial barrister with instructions to appear for him in relation to contempt, his barrister stood ready to do so.
114. [114]
     On one view, the learned trial judge rolled into one the charging of the appellant with contempt and the finding that the appellant was guilty of it in beginning his remarks with “you are in contempt of this Court”.  However, in MacGroarty v Clauson the High Court observed that the process of dealing with contempt under section 105 DCA should not be unduly impeded by formal procedural requirements.^[99]  Viewed as a whole, it was plain that the appellant could have challenged his Honour’s finding that he was guilty of the contempt alleged.  Indeed, that is what he attempted to do, and was permitted to do, as his Honour recited the basis for the charge and after he was asked (twice) whether he had anything to say as to why he should not be dealt with for contempt.

The reasonableness of the conviction for contempt

115. [115]
     His Honour proceeded on the basis that the appellant was in contempt in the terms of section 129(1)(b), (c) and (e) DCA.
116. [116]
     The appellant’s conduct, outlined above under the heading “Evidence of contempt and the trial judge’s warnings to the appellant” speaks for itself.  It clearly included insults directed at the prosecutor (section 129(1)(b)); interruptions of the proceedings and misbehaviour (section 129(1)(c)); and disobedience of his Honour’s order that the appellant not address him directly (section 129(1)(e)). 
117. [117]
     The appellant submitted, in effect, that his interjections and interruptions et cetera were justified and that he was not intentionally contemptuous.  But, as the High Court explained, whether the conduct was intentionally contemptuous is beside the point in the case of the contempt charged here. 
118. [118]
     With respect to the appellant’s section 129(b) and (c) conduct, “wilfully” is the relevant mental element.  The appellant did not suggest that he had no control over his insults or his interruptions or that they were in some sense involuntary.  But beyond that – they clearly had purpose.  The repeated insults were intended to be insulting.  They bore no other reasonable complexion.  The interruptions were intended to disrupt proceedings.  They were responsive (often offensively so) to that which was taking place during the trial at the time.  They were designed to challenge the criminal justice process by undermining the authority of the court; or the authority of the prosecutor; or to put across the appellant’s point of view or contrary position; or to undermine evidence; or to, in effect, attempt to mitigate penalty.  The appellant may not have intended his conduct to be contemptuous, but it is beyond reasonable doubt that his conduct was wilful in the sense that it was deliberate and purposeful. 
119. [119]
     With respect to the appellant’s section 129(1)(e) conduct, the appellant offered no lawful excuse for his addressing the trial judge directly.
120. [120]
     There was nothing unreasonable about the appellant’s conviction for contempt.  His appeal against conviction for it is dismissed.

Application for leave to appeal against the sentence imposed for contempt

121. [121]
     For the following reasons, the appellant’s application for leave to appeal against the sentence imposed for contempt is granted, but the appeal is dismissed.
122. [122]
     Section 129(2) of the DCA granted to the trial judge the same power to punish the appellant for contempt as a Supreme Court judge would have if the contempt were a contempt of the Supreme Court. 
123. [123]
     Rule 930 of the Uniform Civil Procedure Rules 1999 (UCPR), “Punishment”, deals with the punishment of contempt, including by a Supreme Court judge.  Rule 930(2) states: “If the respondent [the contemnor] is an individual, the court may punish the individual by making an order that may be made under the Penalties and Sentences Act 1992”.  As the trial judge explained, he acted under that rule and, in discharging the appellant, under rule 931.  Rule 931, “Imprisonment”, states in paragraph 2: “If a respondent is imprisoned for a term, the court may order the respondent’s discharge from prison before the end of the term”. 
124. [124]
     The appellant did not elaborate upon his contention that the sentence imposed upon him for contempt was manifestly excessive. 
125. [125]
     By reference to the recent decision of  Wood v The Registrar for the Supreme Court of Queensland,^[100] the respondent submitted that 14 days imprisonment could not be considered manifestly excessive.  However, the respondent raised some concerns about the way in which the sentence was expressed, having regard to the provisions of the Penalties and Sentences Act 1992 (PSA).  In particular, the respondent was concerned about the rider “or until such time as you purge your contempt”.^[101] 
126. [126]
     Conformity with the provisions of the PSA which govern the conditions of the sentencing orders made for an “offender” under the PSA – that is, a person convicted of an offence, whether or not a conviction is recorded –^[102] is not necessary when a court is punishing a person for contempt.
127. [127]
     As Muir JA^[103] explained in Dubois v Rockhampton Regional Council,^[104] the nature of the power to punish for contempt differs from the nature of the power to punish for criminal conduct.  The punishment imposed for contempt may properly be expressed in conditional terms, designed to coerce or persuade a contemnor to purge their contempt or to comply with an order of the court.^[105] 
128. [128]
     In Dubois, the contemnor was sentenced at first instance to “three months imprisonment, suspended after one month”.  The sentencing judge did not record a conviction or nominate an operational period for the suspended sentence.  Such a sentence could not be imposed upon an offender under the PSA, which requires the recording of a conviction upon the imposition of a suspended sentence of imprisonment (section 143 PSA) and the nomination of an operational period for a suspended sentence (section 144(5) PSA).^[106]
129. [129]
     However, the sentence in Dubois was held to be proper.  It was held that rule 930 UCPR did not limit the ways in which a court might punish for contempt.  It allowed a court to make any order which might be made under the PSA, but it did not require such an order to conform to the requirements of the PSA as if the order were imposed as a sentence upon an offender.  Indeed, paragraph [75] of the following extract from Dubois illustrates the difficulties which may arise if the provisions of the PSA were applied to a person punished for contempt as if that person had been sentenced as an offender under the PSA (footnotes omitted, emphasis added):^[107] 

“[71] … in applying its inherent power to punish for contempt, the Court is able to fashion its orders to meet the circumstances involved.  An indefinite and conditional sentence of imprisonment may be ordered and fines may be imposed.

[72] Rule 930(2) of the UCPR …  is permissive, not mandatory, in terms and facilitative in its purpose.  It does not require the Court to make only an order that may be made under the PSA.  It is significant that r 930(4) provides for ‘punishment on conditions’ without reference to any of the requirements of the PSA.  Rule 931 is also inconsistent with the notion that r 930 implicitly detracts from the inherent jurisdiction and powers of the Court in relation to contempt.  Rule 931(2) implicitly acknowledges that a person found guilty of contempt of court may be imprisoned for a term which is not fixed.  If the applicant’s arguments were to be accepted, r 931(2), although consistent with the common law, would be incompatible with the provisions of the PSA.  Under the PSA, contempt of court is not one of the offences for which an indefinite sentence may be imposed.

[73] However, the most significant point to be made by reference to the above discussion of the authorities is that, in the absence of clear and unequivocal language compelling a contrary conclusion, a statute should not be taken as confining a superior court’s inherent powers to punish for contempt.  In my view, it would be extraordinary if rules of court which did not refer to the court’s inherent jurisdiction or purport to prescribe the only penalties which could be imposed, could be interpreted as confining the court’s inherent powers to punish for contempt of Court.

[74] For the above reasons, the provisions of the PSA have no general application to contempt orders. 

[75] There are difficulties in the way of the applicant’s arguments.  For example, it would not be appropriate in the case of an order punishing a person for contempt, particularly a civil contempt, to have the suspended term of imprisonment activated if the person committed ‘another offence punishable by imprisonment’.  Where the Court imposes a suspended sentence for contempt, it should fashion the operational period by reference to the conduct or orders in respect of which the penalty is being imposed.  Also, particularly in the case of a civil contempt, it would be inappropriate to record a conviction.  In O'Connor v Witness G, Margaret Wilson J concluded that r 930(2), although increasing the range of penalties which may be imposed, did not have the effect that a contemnor is, for all purposes, an “offender” within the meaning of the PSA. I respectfully agree.

[76] … In my view, the respondent’s contention that r 930(2) of the UCPR is concerned to identify that the forms of punishment of an individual for contempt are the forms of punishment available under the PSA and not to apply the conditions which regulate the making of orders under that Act in circumstances unrelated to the punishment of contempt is correct.”

130. [130]
     In accordance with that which is permitted by rule 930 of the UCPR, and obviously designed to encourage the appellant’s apology to the court, his Honour imposed conditional imprisonment – that is, imprisonment until such time as the appellant purged his contempt.  His Honour’s punishment had the desired coercive effect.  It may be inferred that the appellant reflected on his behaviour: he swiftly purged his contempt after about an hour in custody. 
131. [131]
     Whilst 14 days of actual imprisonment might be considered heavy, the High Court said in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd,^[108] from which Muir JA quoted extensively in Dubois, “the underling rationale of every exercise of the contempt power [is that] … it is necessary to uphold and protect the administration of justice”^[109] and “[t]here are ample precedents for strong measures in order to coerce compliance with an order of the court”.^[110]  After considering the wide range of remedies available, which included, for example, suspended fines, the High Court said (citations omitted):^[111]

“These are considerable powers, resort to which imposes a heavy responsibility upon a court confronted with a determined challenge to its authority.  The propriety of their exercise cannot be measured solely by reference to the established procedures attending the prosecution of ordinary breaches of the law.  Contempt of court is a distinctive offence attracting remedies which are sui generis: Morris v Crown Office.  It is required of the chosen remedy that it be effective, no more but no less.  For, if it is not effective, serious and lasting damage to the fabric of the law may result.”   

132. [132]
     The appellant behaved appallingly.  He was repeatedly warned about his conduct.  He showed little regard for his Honour’s authority and little respect for the criminal justice process.  His insults were personal and very offensive.  His Honour was best placed to determine the punishment which was most likely to protect the administration of justice and to demonstrate and restore the court’s authority.  The punishment imposed upon the appellant for contempt was effective. 
133. [133]
     Further, having regard to Wood, it cannot be said that 14 days imprisonment was manifestly excessive punishment.  In Wood, the contemnor committed contempt in the face of the court.  Across two days, he made many accusations including that the court and the judicial officer were corrupt; that the court had conspired against him; that the court was incompetent; and that the judicial officer was abusing the authority of his office.^[112]  The contemnor also threatened the judicial officer “by saying that he would go to prison for the rest of his life”.^[113]  Wood was sentenced for contempt to four months’ imprisonment (for the first day of his contempt) and two months’ imprisonment (for the second day of his contempt) to be served concurrently.  The sentence of four months imprisonment was suspended immediately for an operational period of two years on the condition that Wood be of good behaviour for that time.  On appeal, this Court did not consider the sentence imposed to be “manifestly excessive by reference to comparable cases”.^[114]  However, the primary judged was held to have erred in the structuring of the sentence which permitted this Court to re-exercise its inherent jurisdiction in punishing the appellant for contempt.^[115]  Having served 23 days of imprisonment, the Court discharged Wood from further custody, but continued the good behaviour bond, as there had been a delay in the hearing of the appeal and he had been in the community for some time.^[116] 
134. [134]
     The appellant complained about the recording of a conviction for contempt, but the trial judge did not in fact record one.  Whilst a judge sentencing an offender to imprisonment for a breach of the criminal law would have been required by the PSA to record a conviction, nothing required his Honour to do so here, and his Honour did not do so.  However, the Verdict and Judgment Record (VJR) incorrectly records that his Honour did record a conviction for contempt and it must be corrected. 
135. [135]
     Even in the absence of medical evidence, and in the absence of the appellant’s counsel raising any concerns about his fitness, it was apparent on the face of the record that the appellant was suffering from emotional or mental vulnerability and, at times, paranoia, during the trial.  It may be inferred that, at least to some degree, his emotional or mental state drove – but could not excuse – his very bad behaviour.  In those circumstances it was appropriate for his Honour not to record a conviction for contempt.

Error in the VJR

136. [136]
     As to the error in the VJR: the endorsement on the indictment, reflected (albeit not precisely) the terms in which his Honour punished, and then discharged, the appellant as follows:

Pursuant to section 129 District Court of Queensland Act 1967, the defendant is charged with Contempt of Court, and is sentenced to 14 days imprisonment to be wholly served, or until such time as he has purged his contempt.

Pursuant to rule 931(2) UCPR, the defendant is discharged from prison before the end of his term, that being today 7 June 2022.

137. [137]
     That endorsement may be contrasted with the endorsement of the sentence for count 2 on the indictment, which included the statement, “Conviction recorded”.
138. [138]
     Although his Honour did not state that he recorded a conviction when he sentenced the appellant for contempt, and although the indictment was not endorsed to the effect that a conviction had been recorded in relation to the contempt, the VJR states, in relation to the contempt, “IMPRISONMENT – Conviction recorded”
139. [139]
     It is necessary to amend the VJR so that the first part of the relevant entry states that no conviction was recorded.

Orders

140. [140]
     Accordingly, the Court makes the following orders:

1. The appeal against conviction for sexual assault is dismissed.
2. The application for leave to appeal against the sentence imposed for sexual assault is refused.
3. The appeal against the conviction for contempt is dismissed.
4. Leave to appeal against the sentence imposed for contempt is granted, but the appeal is dismissed. 
5. The Registrar of the District Court is to amend the Verdict and Judgment Record so that in relation to the sentence imposed for the charge of contempt, the word “No” is added before the phrase “Conviction Recorded”.