R v Conway [2005] QCA 194

SUPREME COURT OF QUEENSLAND

CITATION: R v Conway [2005] QCA 194

PARTIES: R v CONWAY, Samuel Joseph (appellant)

FILE NO/S: CA No 121 of 2005 / DC No 4 of 2005

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction & Sentence

ORIGINATING COURT: District Court at Ipswich

DELIVERED ON: 10 June 2005

DELIVERED AT: Brisbane

HEARING DATE: 24 May 2005

JUDGES: McMurdo P, Atkinson and Mullins JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: **1.**Appeal against conviction dismissed / **2.**Application for leave to appeal against sentence granted / **3.**Appeal allowed / **4.**Order that the sentence of 12 months imprisonment be suspended after the applicant has served three months imprisonment with an operational period of 12 months

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTEFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL DISMISSED – appellant convicted after trial of assaulting a police officer in execution of duty – police officer attended appellant's home – arrested appellant – gave appellant a chance to collect a shirt and shoes from inside house – followed appellant up steps and onto verandah – appellant's sister objected to police officer's entry through front door – appellant emerged from house and assaulted police officer on verandah – trial judge rejected appellant's no case submission and did not direct the jury to return a not guilty verdict – whether open to jury to find the police officer was acting in execution of his duty at the time of the assault / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – appellant given identifying particulars notice – failed to comply within seven days – arrested by police officer without warrant under s 198(1)(a) Police Powers and Responsibilities Act 2000 (Qld) for offence of contravening a requirement or direction given by a police officer – trial judge directed jury the Crown case was that police officer's arrest was lawful to prevent continuation or repetition of offence – whether offence complete after the passing of seven days a question of fact for the jury – whether any error in direction of trial judge / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – whether trial judge sufficiently identified issues in the case for the jury – whether trial judge outlined the main arguments of defence counsel to the jury / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – whether in review of the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt the police officer was acting in execution of his duty at the time of the assault / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANSIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – appellant did not give or call evidence – trial judge directed jury that although they had been deprived of the opportunity of hearing his story tested in cross-examination they must not assume he was guilty – whether appellant deprived of a real chance of acquittal through misdirection – whether miscarriage of justice warranting allowing of appeal / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANSIAL – OTHER IRREGULARITIES – taking of verdict – option of "not guilty" not presented to jury – whether appellant denied a chance of acquittal due to procedural error – whether miscarriage of justice warranting allowing of appeal / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – applicant convicted after trial of assaulting a police officer acting in execution of duty – sentenced to 12 months imprisonment – 36 years old – criminal history of two assaults – admitted responsibility for offence but went to trial on point of law – attempts made to address anger management problem – good work history – otherwise significant contribution to community – whether sentence manifestly excessive / Criminal Code 1899 (Qld), s 668E(1A) / Police Powers and Responsibilities Act 2000 (Qld), s 4, s 19, s 198, s 224, s 297, s 445 / Azzopardi v The Queen (2001) 205 CLR 50, considered / Coco v The Queen (1994) 179 CLR 427, cited / Davis v The Queen (2001) 205 CLR 50, cited / Driscoll v The Queen (1977) 137 CLR 517, cited / Halliday v Nevill (1984) 155 CLR 1, considered / Lewis v Chief Constable [1991] 1 All ER 206, applied / Michaels v The Queen (1995) 184 CLR 117, cited / Milgate v The Queen (1964) 38 ALJR 162, considered / M v The Queen (1994) 181 CLR 487, applied / Plenty v Dillon (1991) 171 CLR 635, considered / R v Hytch [2000] QCA 315; CA No 389 of 1999, CA No 434 of 1999, 4 August 2000, cited / R v Lock [2001] QCA 84; CA No 151 of 2000, 13 March 2001, cited / R v McDonald [1992] 2 Qd R 634, applied / R v Mogg [2000] QCA 244; 112 A Crim R 417, cited / RPS v The Queen (2000) 199 CLR 620, cited / R v Wotton & Bourne; ex parte A-G (Qld) [1999] QCA 382; CA No 215 of 1999, CA No 216 of 1999, 9 September 1999, considered / Southam v Smout [1964] 1 QB 308, considered / Weissensteiner v The Queen (1993) 178 CLR 217, cited

COUNSEL: P J Callaghan SC for the appellant / B Campbell for the respondent

SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The appellant, Mr Conway, was convicted after a one day trial in the Ipswich District Court on 9 May 2005 of assaulting a police officer acting in the execution of his duty on 14 June 2004. He was sentenced to 12 months imprisonment. He appeals against his conviction on a number of grounds and applies for leave to appeal against his sentence, which he contends was manifestly excessive.

The appeal against conviction

Mr Callaghan SC, who appears for Mr Conway on this appeal, contends that the trial judge erred in failing to accept the defence submission at trial that there was no case to answer and in failing to direct the jury to return a verdict of not guilty; in failing to adequately direct the jury as to the defence case and the basis at law that a police officer may enter a person's dwelling; in directing the jury that it was open to find that the complainant police officer was authorised to enter Mr Conway's dwelling; and in allowing the jury to consider the applicability of s 198(1)(a) Police Powers and Responsibilities Act 2000 (Qld) ("the Act"). He also contends that the verdict was unsafe and unsatisfactory. During the course of the appeal, Mr Callaghan was given leave to argue two further grounds of appeal: that the learned primary judge erred, in telling the jury that they had been deprived of the opportunity of hearing Mr Conway's story tested in cross-examination and in allowing the verdict to be taken in response to questions which did not advert to the possibility that the verdict might be "not guilty".

The relevant evidence

Before dealing with the grounds of appeal, it is useful to set out the relevant evidence, none of which is disputed.

The complainant, Const James Bromley, investigated Mr Conway's role in a traffic accident and a subsequent assault on 5 May 2004. He issued Mr Conway a notice to appear in respect of the assault and an identifying particulars notice under s 297 of the Act, which required Mr Conway to report to a police officer at a stated police station within seven days of issue of the notice to enable a police officer to take or photograph all of Mr Conway's identifying particulars. Const Bromley explained the effect and requirements of the s 297 notice to Mr Conway, who had requested that it issue because he had time constraints that made it inconvenient for him to provide the particulars at that time.

Towards the end of May 2004, Const Bromley realised that Mr Conway had not complied with the s 297 notice and decided that he should proceed against Mr Conway under s 445 of the Act for the offence of contravening the notice. He twice attended at Mr Conway's home in relation to the matter but on both occasions no-one was present. He attended Mr Conway's address again on 14 June 2004 at 6.15 pm, in company with Const Angela Clarke. They were both in police uniform. He did not have a warrant. He introduced himself to a woman, Mr Conway's sister, who stood at the front gate. She went away and returned with Mr Conway. Const Bromley explained to Mr Conway that he was investigating the contravention of the s 297 notice given at the time of the traffic accident. He asked Mr Conway why he did not present himself at the station as required under the notice. Mr Conway said, "You already charged me, I don't need to go." Const Bromley said, "No, it's a separate matter. You need to go to the station. Was there a lawful reason why you didn't attend?" Mr Conway said, "No, you charged me." Const Bromley then formed the view that Mr Conway had committed an offence against s 445 of the Act. He told Mr Conway that he was under arrest for contravening his direction and that he was required to come to the watch house with Const Bromley to have his fingerprints and photographs taken; it would take about an hour and he offered to drop him home afterwards. Mr Conway appeared to submit to the arrest but said he would find his own way home. Some children were present in the household and they were crying and distressed. Mr Conway said, "You fucking police think you have all the power under the sun. You come here and arrest me in front of my kids and the night before the court case." Const Bromley said that until then he did not know the matter was being mentioned in court the next day.

Because Mr Conway was dressed only in a pair of shorts, Const Bromley gave him the opportunity to collect a shirt and shoes from his home. Mr Conway took up that offer and walked into his house, apparently for that purpose. Const Bromley followed him up the stairs, through a gate and onto the verandah. Mr Conway entered the house. When Const Bromley reached the front door, Mr Conway's sister blocked him from entering the house, chanted religious phrases and rebuked him. She repeated words to the effect of "You're not coming in here. You've got no right to come in here." He lost sight of Mr Conway and was concerned "because he was under arrest and sometimes … people try to flee". Shortly afterwards, Mr Conway came into the lounge room area where Const Bromley could see him from the verandah. Const Bromley asked him what he was looking for. Mr Conway said, "… looking for your piece of paper." Const Bromley told him he would not need it and to come with him. Mr Conway walked towards the front door and his sister stood aside to allow him to pass. Const Bromley also stepped backwards to allow Mr Conway to walk past him towards the stairs and then followed behind Mr Conway.

When they got to the top of the stairs, Mr Conway turned around and pushed Const Bromley in the chest with his open palms. He fell backwards losing his balance. Mr Conway grabbed him around the right arm and held him up against the verandah. Const Bromley felt about six blows to his face. He feared he was going to be thrown over the verandah. He unsuccessfully tried to pull out his capsicum spray. Mr Conway continually punched him around the face. Const Bromley was finally successful in using his capsicum spray which effectively subdued Mr Conway. Const Bromley was in pain with blood running out of his nose, concussed, could not see clearly and was also affected by the spray. He called for help on his police radio. By the time police assistance arrived, Const Bromley was in the process of subduing and securing Mr Conway.

Was it open to the jury to conclude on the evidence that Const Bromley was acting in the execution of his duty as a police officer when Mr Conway assaulted him?

Mr Callaghan contends that, because the Act gave power to Const Bromley only to enter Mr Conway's premises "to arrest" and Const Bromley exercised that power in arresting Mr Conway, Const Bromley had no further authority, either at common law or under the Act, to subsequently enter onto Mr Conway's verandah, a part of his dwelling.

It is necessary to review the relevant sections of the Act and case law in addressing that submission. The Act's purposes include the consolidation and rationalisation of the powers and responsibilities police officers have for investigating offences and enforcing the law;¹ to provide powers necessary for effective modern policing and law enforcement;² to provide consistency in the nature and extent of the powers and responsibilities of police officers;³ to standardise the way the powers and responsibilities of police officers are to be exercised;⁴ to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Act;⁵ and to enable the public to better understand the nature and extent of the powers and responsibilities of police officers.⁶ Unless the Act provides otherwise, it does not affect the powers, obligations and liabilities a constable has at common law.⁷

The relevant portions of the provisions of the Act to this case are as follows. Chapter 2 of the Act deals with General Enforcement Powers and Pt 1 of that Chapter with Entry Inquiries and Inspection. It contains:

"19General power to enter to arrest or detain someone or enforce warrant

(1) A police officer may enter a place and stay for a reasonable time on the place—

(a) to arrest a person without warrant; or

…

(2) If the place contains a dwelling, a police officer may enter the dwelling without the consent of the occupier to arrest or detain a person only if the police officer reasonably suspects the person to be arrested or detained is at the dwelling.

…"

The dictionary is contained in Sch 4 of the Act where "place" is defined to include: "(a) premises ; …" and "premises" is defined to include "(a) a building or structure, or part of a building or structure of any type; …". It follows that under the Act the wider concept, "place" includes the narrower concept "a dwelling", which in turn is defined in Sch 4 to include a "… part of the dwelling if it is connected to the dwelling …" so that Mr Conway's verandah was both a dwelling and a place under the Act.

Chapter 6 of the Act deals with Arrest and Custody Powers and Pt 1 of that Chapter deals with Arrest Without Warrant.

"198Arrest without warrant

(1) It is lawful for a police officer, without warrant, to arrest an adult the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1 or more of the following reasons—

(a) to prevent the continuation or repetition of an offence or the commission of another offence;

…

(i) because the offence is an offence against section … 445;

…"

Part 4 of that Chapter deals with Discontinuing Arrest and contains s 208–s 213.

Part 6 of that Chapter is headed Duties After Arrest and includes:

"224Duty of police officer after arrest etc. of person

(1) If a police officer does any of the following, the police officer must, as soon as reasonably practicable, take the person before a court to be dealt with according to law—

(a)arrests a person, without warrant, for an offence;

…"

Chapter 8A of the Act is headed Forensic Procedures and Pt 4 – Identifying Particulars includes:

"297Identifying particulars notice may be given

(1) A police officer may, by written notice (identifying particulars notice) given to the person, require the person—

(a)to report to a police officer at a stated police station or police establishment within 7 days after the issue of the notice to enable a police officer to take or photograph all or any of the person’s identifying particulars; and

(b)to stay at the police station or police establishment for the time reasonably necessary to enable the identifying particulars to be taken or photographed.

(2) The identifying particulars notice—

…

(b)must state—

(i) it is an offence to fail to comply with the notice;

…"

Chapter 12 of the Act is titled General and Pt 1 – Offences includes

"445Offence to contravene direction or requirement of police officer

…

(2) A person must not contravene a requirement or direction given by a police officer, including a requirement or direction contained in a notice given by a police officer, under this Act, unless the person has a reasonable excuse.

Maximum penalty—

…

(b) otherwise—40 penalty units.

…"

Nothing in the Act diminishes the long-established common law principle that every unauthorised entry upon private property is a trespass and a person in possession or entitled to possession of premises has the right to exclude others from those premises. A police officer who enters or remains on private property without leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorised or excused by law: Coco v The Queen.⁸ As Lord Denning MR said in Southam v Smout⁹ adopting a quotation from the Earl of Chatham:

" 'The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter - all his force dares not cross the threshold of the ruined tenement.' So be it - unless he has justification by law."¹⁰

The occupier of a dwelling house gives an implied licence, however, to any member of the public to come through his gate, up the steps and to knock on the door of the house; that licence may be withdrawn by giving notice of its withdrawal so that a person who then enters or remains on property becomes a trespasser.¹¹

Nor has the Act affected the self-evident legal principle that arrest is a continuing act which merely starts with the initial lawful taking of a person into custody and continues whilst the person is kept in custody and deprived of liberty. Even when a person is unlawfully taken into custody and has not been informed of the ground of the arrest at the moment of or as soon as practicable after the arrest, because the arrest is a continuing act, the arrest or the deprivation of liberty becomes lawful at the point the person is informed of the ground of the arrest: Lewis v Chief Constable.¹² Although s 19 and s 198 of the Act use the expression "to arrest", the power conferred by those sections does not end at the moment a lawful arrest of a person is made but continues throughout the lawful detention or arrest of the person.

It was not suggested that Const Bromley did not believe that Mr Conway had committed an offence against s 445 of the Act. It is surprising that Const Bromley's practice was apparently to routinely arrest those who breached s 297 and s 445 of the Act instead of using less drastic alternatives, for example, here reminding Mr Conway of his obligations at his first court appearance. It nevertheless followed from s 198(1)(i) that, if the jury were satisfied that Const Bromley reasonably suspected Mr Conway had committed an offence against s 445 and it was reasonably necessary, Const Bromley had lawful authority to arrest Mr Conway without a warrant. The power to enter Mr Bromley's premises without a warrant under s 19(1)(a) of the Act to arrest Mr Conway did not end with Const Bromley's communication to Mr Conway that he was under arrest for contravening s 297 and s 445 of the Act and Mr Conway submitting to that arrest. Section 224(1)(a) of the Act required Const Bromley, having arrested Mr Conway without warrant for an offence against s 445, to take Mr Conway as soon as reasonably practicable before a court to be dealt with according to law. Const Bromley knew Mr Conway was in his dwelling and under s 19 Const Bromley was entitled to enter and stay on Mr Conway's premises to effect the arrest "for a reasonable time", a concept which here must have extended to allowing Mr Conway a few minutes to put on suitable clothes to attend the police station. Const Bromley, having arrested Mr Conway, wished to keep him in sight and in that sense in custody and under arrest to ensure he did not abscond; his actions in following Mr Conway onto the verandah of his home whilst he obtained suitable clothing was consistent with Const Bromley's powers of arrest under s 19(1)(a) and s 198(1)(i) and his obligations under s 224 of the Act. This is also consistent with the provisions of Ch 6, Pt 4 of the Act (s 208–s 213) which set out the procedure for discontinuing an arrest; there is no evidence that Mr Conway's arrest was discontinued before the assault on Const Bromley.

On the undisputed facts at trial the jury were well entitled to conclude that when Mr Conway assaulted Const Bromley on the verandah of Mr Conway's home, the constable was acting in the execution of his duty as a police officer. The judge was right to reject Mr Conway's contention that he had no case to answer in not directing the jury to return a not guilty verdict. These grounds of appeal are without substance.

The direction as to s 198(1)(a) of the Act

Her Honour repeated for the jury the prosecution submission that Const Bromley was entitled to arrest Mr Conway under s 198(1)(a) of the Act to prevent the continuation or repetition of the offence against s 445 of the Act (failing to comply with Const Bromley's earlier notice). Mr Callaghan contends that direction was wrong in law and resulted in a miscarriage of justice because the offence against s 445 of the Act was complete after seven days and was not continuing at the time of the arrest.

Under s 297 of the Act Mr Conway was required to comply with the notice issued under that section within seven days. That notice stated that Mr Conway had to report to a police officer within seven days and that it was an offence to fail to comply with the notice.¹³ Mr Conway did not comply with that notice within seven days. Once Mr Conway failed to report to a police officer at the stated police station in the notice within seven days, he had committed an offence against s 445(2) of the Act unless he had a reasonable excuse for his failure to comply. Whether the offence was complete after the passing of seven days from the issue of the notice so that it was not a continuing offence at the time of Mr Conway's arrest was a question of fact for the jury: R v McDonald.¹⁴ Her Honour's direction to the jury (that the prosecution case was that under s 198(1)(a) Const Bromley's subsequent arrest of Mr Conway without warrant was lawful because it was to prevent the continuation or repetition of an offence) was not wrong in law. Her Honour could have given more helpful guidance to the jury but she rightly left for their consideration the factual question of whether they thought the offence against s 445(2) of the Act was continuing at the time of the arrest.

Did the primary judge sufficiently identify the issues in the case for the jury and outline the main arguments of defence counsel?

Mr Callaghan contends that the learned trial judge erred in not summarising for the jury the essential defence submission that the prosecution had not proved on the evidence beyond reasonable doubt that Const Bromley was acting in the execution of his duty at the time of the assault.

A judge in a criminal trial ordinarily has an obligation to summarise the respective cases of both the prosecution and the defence and to remind the jury of the arguments of counsel after identifying the issues and relating these issues to the relevant law and the facts of the case: RPS v The Queen,¹⁵ R v Mogg,¹⁶ R v Hytch¹⁷ and R v Lock.¹⁸

In explaining the elements of the offence, her Honour uncontroversially told the jury that it was not in dispute that Mr Conway assaulted Const Bromley, a police officer, at Silkstone on 14 June 2004; the sole contentious issue was whether at that time Const Bromley was acting in the execution of his duty as a police officer. Her Honour explained, again uncontroversially, that the defence case was not whether Mr Conway had acted badly but whether or not Const Bromley had exercised his powers properly under the Act. The defence case was, her Honour explained, that it was not reasonably necessary for Const Bromley to have arrested Mr Conway that evening without a warrant; the police could have issued a further notice for failing to comply with the original notice; if the jury were not satisfied beyond reasonable doubt that Const Bromley acted reasonably in arresting Mr Conway, they should acquit him.

Her Honour then referred the jury to the evidence that Const Bromley believed that Mr Conway had committed an offence against s 445 of the Act and that he was attending Mr Bromley's home to arrest him for that offence. Acting on that belief, Const Bromley arrested Mr Conway, explaining the nature of his offence and that he was under arrest. Const Bromley then offered Mr Conway the opportunity of obtaining further clothing and when Mr Conway entered his home to take up that opportunity, Const Bromley followed him without any opposition from Mr Conway, although Mr Conway's sister verbally objected to Const Bromley coming inside the home.

Her Honour next told the jury that the prosecution case was that Const Bromley arrested Mr Conway when he first arrived at the premises; Const Bromley then had a reasonable belief that Mr Conway had committed an offence in circumstances where it was reasonable for Const Bromley to arrest him; Const Bromley was entitled to keep Mr Conway in his custody by following him, entering Mr Conway's premises and keeping an eye on him whilst he got his clothing. Her Honour pointed out that Mr Conway did not object to Const Bromley following him onto the verandah of the house whilst Mr Conway entered the house to get his clothing, although the woman present expressed objections. Her Honour then reminded the jury that the defence case was, "quite properly", that if they were not satisfied that Const Bromley at that stage was acting within his power under the Act, they must acquit.

In a redirection, her Honour referred to the evidence that Const Bromley knew where Mr Conway lived and that the defence contended that Mr Conway's offence under s 445 was so minor that it was not reasonably necessary for Const Bromley to arrest him on it without a warrant.

Since the hearing of the appeal, the Court has been provided with copies of both the prosecution and defence addresses. The defence address emphasised that whilst there was no doubt the police officers were on duty, they were not acting in the execution of their duty at the time of Mr Conway's assault on Const Bromley. Mr Boe, who appeared for Mr Conway at first instance, conceded that Mr Conway had not complied with the notice issued under the Act; the only possible basis under which Const Bromley could have arrested Mr Conway was under s 198(1)(i) of the Act for contravening an offence against s 445 but, Mr Boe contended, it was not reasonable to arrest him for such a minor matter after 6.00 pm at night so that the jury would have a reasonable doubt as to whether the arrest was reasonable. If the jury were not satisfied beyond reasonable doubt the arrest was reasonable then they would have a reasonable doubt as to whether he was acting in the execution of his duty at the time of the assault.

In the passage summarised earlier in these reasons,¹⁹ her Honour adequately explained this aspect of the defence case to the jury.

Mr Boe next contended in his jury address that Mr Conway's arrest was complete at the time Const Bromley first effected it, that he was not entitled to subsequently enter Mr Conway's dwelling (which included the verandah) and that they could not be satisfied that Mr Conway consented to Const Bromley entering his premises; there was insufficient evidence to establish beyond reasonable doubt that Const Bromley at the time of the assault on Mr Conway's verandah was acting in the execution of his duty.

For the reasons given earlier, this submission was wrong in law: on the evidence here, Const Bromley was entitled in the continuing arrest of Mr Conway to follow him onto his verandah whilst Mr Conway obtained suitable clothing for the trip to the police station. Had the learned judge placed the contrary defence submission before the jury she would have had to explain that it was wrong in law. Her Honour's silence on this aspect of the defence case was generous to the defence and cannot have caused a miscarriage of justice or deprived him of the chance of an acquittal.

Her Honour left for the jury the effect of s 198(1)(i), to which she said Mr Boe referred and which, she explained gave Const Bromley clear power to arrest Mr Conway without a warrant if he reasonably suspected he had committed an offence against s 445 of the Act. Her Honour also left for the jury the question of fact whether Const Bromley reasonably suspected Mr Conway had committed the offence and whether the arrest was reasonably necessary for the reasons specified in either s 198(1)(a) or s 198(1)(i).

The trial was completed within a day. The prosecution and defence submissions and all the evidence were fresh in the minds of the jury members when they retired to consider their verdict. Her Honour adequately placed before the jury the relevant issues and the prosecution and defence contentions. Importantly, she told the jury if they were not satisfied that Const Bromley acted reasonably in arresting Mr Conway without a warrant, or if they were not satisfied he was acting in the execution of his duty and within his power under the Act, they should acquit. This ground of appeal is also without substance.

Unsafe and unsatisfactory?

Mr Callaghan in his written and oral submissions did not pursue the ground of appeal that the conviction was unsafe and unsatisfactory independently from the grounds already dealt with. It is sufficient to say that the review of the whole of the evidence conducted earlier in these reasons in the light of the legal conclusions I have reached reveals a strong prosecution case against Mr Conway. It was well open to the jury to be satisfied beyond reasonable doubt that Mr Conway assaulted Const Bromley, a police officer then acting in the execution of his duty: M v The Queen.²⁰

Did the judge err in stating to the jury that they had been deprived of the opportunity of hearing Mr Conway's story tested in cross-examination?

Her Honour gave the following direction in the early stages of her summing up:

"Now, Mr Conway hasn't given evidence in this case. He is not obliged to do so and he is not bound to give evidence. He can sit back, for example, and see if the Crown has proved its case against him. While you have been deprived of the opportunity of hearing his story tested in cross-examination you must not assume he is guilty simply because he hasn't gone into the witness box. The fact he hasn't given evidence himself proves nothing one way or the other. It does nothing to establish his guilt, it is for the Crown, as I have said, to prove his guilt to your satisfaction beyond reasonable doubt."

(my italics)

It is concerning that her Honour used the emphasised phrase whilst explaining to the jury that Mr Conway was under no obligation to give evidence and that his silence could not be treated as an admission of guilt. This was not a case like Weissensteiner v The Queen²¹ or Azzopardi v The Queen²² where there were facts which explained or contradicted the evidence against the accused person only within the accused person's knowledge, justifying careful directions as to the accused person not giving evidence. The cases where a judge may comment on the failure of an accused person to give evidence are both rare and exceptional: Azzopardi.²³ This was certainly not one of them. The trial judge should not have used the italicised phrase in the course of her direction to the jury because it suggests that in not making himself available for cross-examination, Mr Conway has deprived the jury of something to which they were entitled. That is plainly contrary to two essential tenets of our criminal justice system: the presumption of innocence and the right to silence. The italicised phrase was particularly inappropriate in this case where Mr Conway did not dispute any prosecution evidence. The learned primary judge erred in the unfortunate use of the italicised phrase.

The direction did otherwise make very clear that the jury could draw no inference against him for exercising his right not to give evidence so that it seems unlikely the jury was misled by the wrong direction. That conclusion is supported by the fact that neither the prosecutor nor the experienced defence lawyer, Mr Boe, asked for any redirection or correction in respect of it. As I have noted earlier, the prosecution case against Mr Conway was strong. Despite the misdirection, because of the strength of the prosecution case, I am satisfied there has been no resulting miscarriage of justice and that Mr Conway was not deprived of a real chance of acquittal because of it: cf Davis v The Queen.²⁴

The taking of the verdict

As already noted, the trial from arraignment to verdict was completed within one day. The jury initially retired to consider their verdict at 4.21 pm but at 4.28 pm were given some brief further directions, retiring finally to consider their verdict at 4.32 pm. At 5.03 pm the jury, having informed the bailiff they had a verdict, returned to the court room. The following exchange occurred:

"ASSOCIATE: Members of the jury, are you agreed upon your verdict?

JURY: Yes.

ASSOCIATE: Do you find the accused Samuel Joseph Conway guilty of serious assault?

HER HONOUR: You may speak through your foreperson.

SPEAKER: Yes.

ASSOCIATE: Do you find him guilty?

SPEAKER: Yes.

ASSOCIATE: So says your speaker, so say you all?"

Although nothing is recorded in the transcript, it can be inferred that the members of the jury here assented to their unanimity. Neither the judge nor the lawyers present referred to the irregular form of words used in taking the verdict. The undesirability of taking the verdict in this form is patently manifest. It is contrary to the time-honoured format referred to in Chitty's Criminal Law, 2nd ed (1826),²⁵ citing the trial at Oxford of Stephen Colledge for high treason in 1681²⁶ and as adopted and modernised in Queensland and now set out in the Queensland Supreme and District Courts Benchbook:²⁷ "Do you find [the accused] guilty or not guilty of [the charge]?" Instead of following that well-established practice, the associate twice asked the leading question, "Do you find [Mr Conway] guilty?"

Barwick CJ in Milgate v The Queen observed:²⁸

"… great care should be exercised by the Clerk of Arraigns and by the presiding judge as to the manner in which the Clerk of Arraigns expresses to the jury the traditional formula: 'Are you agreed on your verdict?' … 'So says your foreman, so say you all?' … Therefore the Clerk of Arraigns' formula on the taking of a verdict should not be expressed in a perfunctory way nor allowed to appear as a mere statement of an assumed or concluded state of affairs, but should be clearly interrogative of the members of the jury."

The learned primary judge on many occasions during her summing up made it very plain to the jury that they could return a not guilty verdict and that they must do so if they were not satisfied that the prosecution had proved the elements of the offence beyond reasonable doubt. Immediately before the jury returned with their verdict, the bailiff informed the court that the jury had reached their verdict. When the jury returned to the court, they all indicated that they had reached their verdict. It follows that the irregular questions resulting in the delivery of their verdict cannot have had any effect on the verdict. The transcript does not suggest that after the speaker affirmatively answered the leading questions posed by the judge's associate any member of the jury dissented from the verdict the speaker delivered. In those circumstances, it does not seem that Mr Conway can possibly have been deprived of the chance of an acquittal by the procedural errors made. There has been no miscarriage of justice warranting the allowing of the appeal: see s 668E(1A) Criminal Code 1899 (Qld) and the observations of Barwick CJ in Driscoll v The Queen.²⁹ I am conscious that I have now twice relied on the proviso in s 668E(1A) Criminal Code in rejecting grounds of appeal against conviction, but I am satisfied that neither error, alone nor in combination, has caused a miscarriage of justice.

It follows that the appeal against conviction must be refused.

The application for leave to appeal against sentence

Was the sentence of 12 months imprisonment manifestly excessive? Mr Conway was 36 years old at sentence. He had committed one previous criminal offence in Queensland, common assault on 5 May 2004, for which he was fined $200 without conviction in the Ipswich Magistrates Court on 7 October 2004. This offence resulted in the notice to appear, the catalyst for Mr Conway's involvement in the present offence. It occurred after a motor vehicle accident when Mr Conway punched the complainant to the lower abdomen causing him to wince. On 12 March 2001, in Alice Springs, he was also fined $1,000 without conviction for assaulting a female, his then partner, on 27 August 2000.

Const Bromley suffered a fractured nose with a slight depression, ongoing thoracic and lumbar pain, concussion, two black eyes, multiple abrasions, facial and head swelling, soft tissue bruising, a small cut to his forearm and sore eyes from the capsicum spray. His treating psychologist, Ms Susan Drake, also noted that, as a direct result of the assault, he has suffered a post traumatic stress disorder with a secondary co-morbid diagnosis of major depressive order, single episode, severe and without psychotic features. She expects a significant improvement in his condition with ongoing treatment; a further 10 to 14 consultations will probably be needed. Const Bromley's victim impact statement confirmed the very significant detrimental effect this assault has had on him.

Since 1997, the maximum penalty for this offence has been seven years imprisonment. The prosecutor at sentence urged the judge to impose a term of imprisonment at the upper end of the range which he contended was between six and 12 months imprisonment.

Mr Boe conceded that range of imprisonment was appropriate but, because of the many mitigating factors, the imprisonment should be fully suspended. Mr Boe emphasised the following matters. The identifying particulars notice arose out of a traffic incident where Mr Conway believed the other driver was plainly at fault and had caused a dangerous situation; in the ensuing altercation, he lost his temper and assaulted the other driver in a minor way. When Const Bromley approached Mr Conway, the day before the assault was to be mentioned in court, he felt he was being unfairly treated. He was agitated at the arrest in front of his family. His sister and her children had recently come to live with him after she separated from her partner in acrimonious circumstances. She was then in a great deal of personal distress and her heated argument with Const Bromley was particularly distressing and triggered Mr Conway's reaction. Mr Conway had always accepted that he was responsible for the assault on Const Bromley and proceeded to trial only on the limited point of the lawfulness of Const Bromley's presence at his home. His previous conviction in the Northern Territory arose out of an argument with his ex-wife about her treatment of their daughter and did not result in serious injury. Mr Conway has otherwise made a significant contribution to the community. He initially qualified as a carpenter and then worked with troubled youths and in the Indigenous arts community. He is a trained correctional services officer and youth worker and has run cultural workshops at festivals and educational institutions. He has produced television documentaries which have been broadcast nationally. He is a published and successful poet, playwright and author and is presently working on film scripts. He has a tertiary education: a Bachelor of Arts in Drama, a Graduate Diploma of Arts, Film and Television and has almost completed a Graduate Bachelor of Education. The inevitable conviction for this offence will itself punish him by causing hardship and limiting employment opportunities.

A large number of references were tendered which supported Mr Boe's submission that Mr Conway has many worthwhile qualities and that his commission of this offence was an atypical adverse reaction at a time in his life when he had considerable stresses upon him. This was also the view of counsellor and probationary psychologist Ms Muriel Simmons, who had counselled Mr Conway on eight occasions.

The learned primary judge understandably took a serious view of Mr Conway's vicious assault on Const Bromley. The judge was right to note that a salutary deterrent penalty was warranted.

The most useful of the cases of this Court said to be comparable to which we have been referred is R v Wotton & Bourne; ex parte A-G (Qld).³⁰ They each pleaded guilty to one count of assault occasioning bodily harm in company on Const Sodhi; Bourne pleaded guilty to a further charge of serious assault on Const Baade and Wotton to an additional count of assault occasioning bodily harm on Wotton's partner. The offences concerning the police occurred when Constables Sodhi and Baade were stationed on Palm Island and were called to a disturbance at 3.30 am on 17 April 1998. Const Baade was about four months pregnant. There were 30 or 40 intoxicated Indigenous people present. Wotton was fighting and was restrained by Const Sodhi. The crowd then surrounded the two police officers. Wotton had submitted to Const Sodhi's restraint but Bourne incited him to "bash and flog the coppers" and "hit him". Wotton then punched Const Sodhi twice in the face. Const Baade assisted him but was struck a severe blow from behind by Bourne, causing her to fall to the ground and lose consciousness. Wotton broke free from Const Sodhi and continued to punch him to the head. Bourne also threw punches at Const Sodhi and then held him so that he could not defend himself whilst Wotton continued to punch him. Const Sodhi fell to the ground where Wotton kicked him until he, too, lost consciousness. Some members of the crowd assisted the police officers who were eventually able to return to their police car and leave. Const Sodhi suffered grazes to the chin, nose, and upper lip and bruising to the nose, ribs and back; his two front teeth were loosened and he had headaches and pain for about two weeks. Const Baade suffered facial bruising and bleeding to her right eye and was anxious for the wellbeing of her unborn child. She requested a transfer to non-operational duties which reduced her income by about $100 a week. Wotton additionally pleaded guilty to an attack on his partner in May 1998, presumably when on bail: he bit and kicked her causing a 4 cm laceration to her chin requiring stitches, a graze to her right eyelid and a laceration behind her right ear. Wotton was 22 and had no prior convictions. Bourne was 27 and had a prior conviction for assault occasioning bodily harm and other minor offences. For the assault occasioning bodily harm in company to Const Sodhi, each was sentenced to nine months imprisonment wholly suspended for two years. Bourne was sentenced to perform 240 hours community service for the assault on Const Baade. Wotton was ordered to perform 240 hours community service for the assault on his partner.

The Attorney-General appealed, contending that the sentence was manifestly inadequate. This Court found that the judge had failed to give appropriate weight to the principle that penalties imposed on those who assault police officers in the course of their duty should be severe to both deter such conduct and also to reflect the community's intolerance of it. The Court noted that in none of the comparable decisions concerned with broadly similar offences had fully non-custodial sentences been imposed, even where the offenders had been youthful and without prior convictions. Wotton was significantly depressed and this reduced his level of self-control when he committed the offences; he was ordinarily a quiet family man who avoided violence; he was responsible for the care of his young children and an eight year old niece and demonstrated genuine remorse in his plea of guilty and by cooperating with the authorities including surrendering himself to police; he sought out Const Baade and apologised to her for her ordeal and offered to provide a statement to assist in the prosecution of his co-offender. Bourne was older, instigated the assault on the police officer and had previous convictions. It was appropriate to differentiate between them in the penalty imposed. The Court allowed each appeal. Bourne was sentenced to 12 months imprisonment to be suspended after six months with an operational period of two years. Wotton was sentenced to 12 months imprisonment to be suspended after three months with an operational period of two years.

Wotton and Bourne, unlike Mr Conway, each pleaded guilty. Whilst some aspects of their offending were more serious than Mr Conway's, Const Bromley appears to have received more serious injuries than Constables Sodhi and Baade.

Mr Callaghan now contends that if a fully suspended sentence is inappropriate, the 12 month term of imprisonment should be ordered to be served by way of an intensive correction order. That submission was not made at first instance. In any case, it is inconsistent with the principle clearly stated by this Court in Wotton & Bourne that an effective fully non-custodial sentence is ordinarily outside the appropriate range for an offence of this type involving a serious significant assault by a mature person on a police officer acting in the execution of his duty. Whilst an intensive correctional order is notionally a term of imprisonment, it is in practical terms a non-custodial sentence, although a very onerous one.

The concerning aspects of this offence were that Mr Conway, a mature, successful member of the community, viciously assaulted a police officer and caused him significant injury. Mr Conway has some relevant criminal history and he does not have the mitigating benefit of an early plea of guilty. These circumstances require that he must serve a period of actual custody as a deterrent to him and to others who might otherwise think they can with impunity unlawfully and seriously assault police officers acting in the course of their duty; police officers acting properly and reasonably in the execution of their duty must know they have the support of the community and the protection of the courts. On the other hand, Mr Conway had only a limited criminal history and had not previously committed offences of violence against police. His criminal history of two previous assaults suggests that he has an anger management problem that he must curb. To his credit he has made attempts to address that problem by counselling sessions with Ms Simmons. These sessions, his excellent educational achievements, his work history and his very promising prospects all suggest that rehabilitation is realistic. Whilst he does not have the mitigating benefit of a plea of guilty, he went to trial on a narrow point of legal construction: it is not a case where the conduct of his trial indicates an absence of remorse. In the light of these mitigating factors, the sentence imposed of 12 months imprisonment was manifestly excessive; it should have been suspended after about three months.

I would grant the application for leave to appeal against sentence, allow the appeal and order that Mr Conway's sentence be suspended after serving three months imprisonment with an operational period of 12 months.

ORDERS:

1.Appeal against conviction dismissed.

2.Application for leave to appeal against sentence granted; appeal allowed and order that the sentence of 12 months imprisonment be suspended after the applicant has served three months imprisonment with an operational period of 12 months.

ATKINSON J: I agree with the reasons for judgment of McMurdo P and the orders proposed.

MULLINS J: I agree with the reasons for judgment of the President and the orders proposed by her Honour.

Footnotes

¹ The Act, s 4(a).

² The Act, s 4(b).

³The Act, s 4(c).

⁴ The Act, s 4(d).

⁵ The Act, s 4(e).

⁶ The Act, s 4(f).

⁷ The Act, s 7(a).

⁸ (1994) 179 CLR 427, Mason CJ, Brennan J (as he then was), Gaudron and McHugh JJ, 435-436.

⁹ [1964] 1 QB 308, 320.

¹⁰ Quoted with approval by Mason CJ, Brennan J (as he then was) and Toohey J in Plenty v Dillon (1991) 171 CLR 635, 639; see also the observation of Brennan J in Halliday v Nevill (1984) 155 CLR 1, 10.

¹¹ Plenty v Dillon, above, Gaudron and McHugh JJ, 647.

¹² [1991] 1 All ER 206, 210-211, apparently approved by Brennan J (as he then was), Deane, Toohey and McHugh JJ in Michaels v The Queen (1995) 184 CLR 117, 126.

¹³ See s 297(2)(b)(i) of the Act.

¹⁴ [1992] 2 Qd R 634, Williams and Cooper JJ at 643-645.

¹⁵ (2000) 199 CLR 620, 637-638.

¹⁶ [2000] QCA 244; 112 A Crim R 417.

¹⁷ [2000] QCA 315; CA No 389 of 1999, CA No 434 of 1999, 4 August 2000, [10].

¹⁸ [2001] QCA 84; CA No 151 of 2000, 13 March 2001.

¹⁹ These reasons [25].

²⁰ (1994) 181 CLR 487, 493-495.

²¹ (1993) 178 CLR 217.

²² (2001) 205 CLR 50.

²³ Above, Gaudron, Gummow, Kirby and Hayne JJ at 75.

²⁴ (2001) 205 CLR 50, Gaudron, Gummow, Kirby and Hayne JJ at 80.

²⁵ At 635.

²⁶ 3 Harg St Tr 408.

²⁷ At 24.7. See also Criminal Practice Rules 1999 (Qld), r 48 and Jury Act 1995 (Qld), s 51.

²⁸ (1964) 38 ALJR 162, approved by the Privy Council in Nanan v The State [1986] 3 All ER 248.

²⁹ (1977) 137 CLR 517, 526.

³⁰ [1999] QCA 382; CA No 215 of 1999, CA No 216 of 1999, 9 September 1999.

Footnotes

1. The Act, s 4(a). ↩ ↩²

2. The Act, s 4(b). ↩ ↩²

3. The Act, s 4(c). ↩ ↩²

4. The Act, s 4(d). ↩ ↩²

5. The Act, s 4(e). ↩ ↩²

6. The Act, s 4(f). ↩ ↩²

7. The Act, s 7(a). ↩ ↩²

8. (1994) 179 CLR 427, Mason CJ, Brennan J (as he then was), Gaudron and McHugh JJ, 435-436. ↩ ↩²

9. [1964] 1 QB 308, 320. ↩