R v Clewes [2008] QCA 46 | Case summary | Zoe

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R v Clewes [2008] QCA 46 | Case summary | Zoe

SUPREME COURT OF QUEENSLAND

CITATION: R v Clewes [2008] QCA 46

PARTIES: R v CLEWES, Terry (applicant/ appellant)

FILE NO/S: CA No 242 of 2007 / DC No 100 of 2007

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction and Sentence

ORIGINATING COURT: District Court at Mt Isa

DELIVERED ON: 7 March 2008

DELIVERED AT: Brisbane

HEARING DATE: 21 February 2008

JUDGES: Keane and Holmes JJA and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Appeal against conviction dismissed****Application for leave to appeal against sentence dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL –where appellant argues he was not given sufficient opportunity to present his account at trial – where appellant attempts to put a more favourable account of events on appeal / CRIMINAL LAW – PARTICULAR OFFENCES – where appellant convicted of deprivation of liberty – where appellant restrained and confined wife in her unit – where appellant prevented wife from telephoning police / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where appellant had a relevant criminal history – whether appellant’s sentence of 308 days for deprivation of liberty manifestly excessive

COUNSEL: The applicant/appellant appeared on his own behalf / S G Bain for the respondent

SOLICITORS: The applicant/appellant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent

[1] KEANE JA: I agree with the reasons of Holmes JA and with the orders proposed by her Honour.

[2] HOLMES JA: Mr Clewes appeals against conviction and sentence. After a trial on one count of assault occasioning bodily harm and one of deprivation of liberty, he was acquitted of the former and convicted of the latter. He did not articulate any recognisable grounds of appeal but complained that he was not given sufficient opportunity either in his police record of interview or at trial to present his account. No ground at all was specified in relation to the application for leave to appeal against sentence.

The appeal against conviction

[3] The complainant in relation to both counts was the appellant’s wife. She gave evidence that from about 10.00 pm on the evening of 21 December 2005 until about 9.00 am the following morning the appellant had restrained her and confined her in her unit. In particular, she said, every time she tried to use the telephone the appellant would take her arms and make her sit on the sofa and refused to allow her to use the telephone to ring the police. In the morning she had managed to get outside her unit but the appellant had pulled her back inside and said he would not let her go to the police.

[4] The appellant was interviewed by police officers on 22 December 2005. He said he had been endeavouring to persuade his wife to discuss any problems with him. At one stage she had bitten his finger and at another stage punched him. The police officer asked the question “Whereabouts did she punch you?”, in response to which the appellant gave the following answer which, in the part italicised below, contained his account of the incident in which his wife attempted to use the telephone:

“Oh several times, head, body. I thought if I stood there and let her hit me that she would get it out of her system, so I stood and just let her throw punches at me. She hit me several times in the head, body; yeah she must have hit me probably 15 - 20 times. Now this is sort of over a period of time as well. When I couldn’t take anymore I tried to wrap her up and just put my arms around the body. To do that we ended up, we tripped and fell back onto the bed, this time I’d followed her into the bedroom and this was actually taking place in the bedroom, so we fell back onto the bed and bed actually collapsed, the foot of the bed actually fell off. But all I was trying to do was to wrap her arms up to stop her from hitting. When I tried to stand back up again she kicked me with both legs into the stomach and rib area. It was quite painful and really took my breath away so I knocked her legs away. She then stood up and started hitting me again, so again I thought if I just stand and let her work the anger out that it’d be fine, so I stood and let her punch at me, again you can only take so much so I tried to wrap her up again to prevent her from hitting me. So much went on I was. At that stage I think she headed for the telephone and I said please Cora please sit and talk instead of doing something silly, sit and talk. So I was holding her in my arms and I said please come on please come and talk so I walked her over to the lounge chair and we sat down again, but I actually kneeled down in front of where she was sitting on the chair and I said something, I don’t know what, she didn’t like or something so she started to scratch at my face again, so I knocked her hands away from my face again. Then I think she decided that, all this time I was asking her to stop, calm down and talk. We had in the past made a decision that we weren’t to go to sleep on a problem, never go to sleep on a problem, never go to bed on a problem, sort it out before you go to bed, it’s an agreement we had and that’s what I wanted to do. She decided that she wanted to lay down and not answering so that was fine, so I was talking to her while she was laying on the lounge suite. She started to nod off to sleep so I shook her and said please sit up so I pulled her by the hands till she sat up. She at that stage I think she asked me to go home, I said please can we before I go can, can we keep talking until we’ve reached a resolution, until we’ve reached a solution to the problem. She just didn’t want to, she just won’t talk, when she’s knows she’s done something wrong she won’t talk to me. There was never any reason for her to accuse me of having affairs, it’s not that, there’s always something that I’ve done, like taking an extra hour at CHR or something, there’s always something underneath what she’s accusing me of, until you can find that out and address that problem it just keeps going on and on and on for days, weeks, it can last up to months. Eventually we were sitting there talking, by then it was morning. We had a shower, put the bed back together again, put the foot of the bed back on, had a shower. She tried to, I was bleeding quite profusely from the cut on my eye, she’d punched my eye several times and it just opened, opened, opened, each time she hit it, it was bleeding quite profusely. She tried to stop it from bleeding. She had some bruises on her body and I went and got a cloth and put some ice in it and gave it to her, she was attending her bruises as well as trying to stop the bleeding of my eye. It never at any time did I want to hurt Cora, all I wanted to do was to sit down, talk to her, find out what her problem was and solve it.”

Shortly after the police officer returned to the attempted telephone call:

“When she went for the phone, who do you think she was going to call?

She was going to call the Police.

She was going to call the Police, and how come you stopped her from doing that?

Because it was the wrong thing to do and I wanted her to talk, I just wanted to sit with her and talk the problem out.”

That line of questioning was resumed subsequently:

“To you, you feel as if getting the Police involved’s not the answer to the problem, what do you think Cora would have thought? You said she went to the phone and you thought she was going to call the Police. Do you not think that she would of wanted the Police there?

No, no it’s all a power thing. It’s a way to make me tow the line. It’s, look I’m struggling for words here.

Take your time.

It’s a very long and involved story. If you don’t know the past history it’s a long, long story that, it’s a way of punishing, calling the Police is a way of punishment. When she’s angry, when she’s depressed she has to hurt, physically and mentally and calling the Police is just another way of striking me.”

[5] The interview also canvassed the complainant’s attempt to leave the unit:

“Okay. Did at any time Cora run for the door or walk to the door and go outside?

Yeah she did.

She did? What was that incident about, what happened then?

Well then it was morning and she went outside. I went and grabbed her by the hand and said please come back inside and talk. So I led her back inside the house, closed the door and that was it.

Was there any reason why she would have gone outside?

I think she was trying to get one of the neighbours to call the Police or something.

Did she say this to you, or that’s just what you feel?

That’s just what I felt.

What made you feel that way?

She’s done it before you know.

And what did she do when you grabbed her hand to bring her back inside?

She came back inside.”

[6] The police officer later returned to the issue of the complainant’s freedom of action:

“Do you feel that she was free to use the phone when she wanted?

At the time that she wanted to no.

Do you feel that she was free to go outside when she wanted to?

If she’d have wanted to go outside for some reason apart from trying to attract attention to get the Police there. If she’d gone outside to water the plants or whatever it wasn’t a problem. I was trying to stop her from to stop this idea of getting the Police. All I wanted her to do was to sit with me and talk.

So all in all do you still think she was free to do whatever she was free to do whatever she wanted?

Yeah.

Even calling the Police?

No, no I did prevent her from calling the Police, but not by beating it

into her or something like that.”

[7] Here the appellant said that his explanation had not properly been put before the Court. That was because the questions the police asked in the interview were leading and did not allow him to explain completely what had happened. While his replies were not incorrect, they did not tell the full story. In fact, the appellant said, his wife did not dial 000 but instead began to dial a private number from her address book. She desisted and replaced the handset of her own accord. As to her account of trying to leave the following morning, he had watched her for about 10 minutes standing outside the unit. When he approached her she said that she would wake a neighbour but permitted him, after some conversation, to take her hand and lead her inside. He had not given evidence to that effect because he relied on his barrister and solicitor when they told him it was unnecessary, and he now considered they had given him poor advice.

[8] The passages set out above from the record of interview reveal firstly, in my view, that there was remarkably little constraint on the appellant’s opportunity to explain himself to the police. Indeed, in submissions here, the appellant complained that the police asked questions “which gave me the opportunity to talk my way into a conviction”; which about sums it up. Secondly, the answers he gave in the interview are at odds with what he now wishes to put to this Court as the true state of affairs. It is not difficult to envisage counsel’s advice to him not to give evidence as a very appropriate forensic choice. In any event, it was advice that the appellant accepted. He cannot now repent of it and attempt belatedly to put what he perceives to be a more favourable version of events before the Court. The jury’s verdict was entirely open in view of the evidence of the appellant’s wife and his own corroboration of it in the record of interview. There is no substance to the appeal against conviction.

The appeal against sentence

[9] The appellant had a criminal history which was relevant in more than one respect to sentencing. In 2004, he had been placed on probation without any conviction recorded for three breaches of a domestic violence protection order. In August 2005, he was convicted of breaching a bail condition and was convicted and not further punished. In October 2005, he was sentenced in the District Court to imprisonment for four months, wholly suspended for two years, in respect of an assault occasioning bodily harm, and eight months imprisonment also suspended for two years in respect of two further charges of assault occasioning bodily harm. On the following day in the Magistrates Court he was sentenced for eight breaches of a domestic violence protection order and one breach of a bail condition to sentences including one month’s imprisonment suspended for two years. The deprivation of liberty offence breached those orders as well as the District Court’s sentence.

[10] The appellant had spent 308 days on remand. The learned sentencing judge imposed a term of imprisonment of 308 days and declared that time already served. In respect of the breaches of suspended sentence, she found the breaches proved and sentenced the appellant to the rising of the Court. Approaching the breaches and the deprivation of liberty offence on a totality basis and against the background of the appellant’s criminal history, I do not discern any error in the way her Honour went about sentencing, nor do I consider that the sentence was manifestly excessive.

Orders

[11] I would dismiss the appeal against conviction and the application for leave to appeal against sentence.

[12] MULLINS J: I agree with Holmes JA.