_R v Kingston_

Judgment (99 paragraphs)

[1]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - where evidence of an admission by the appellant to two police officers was led at the trial - where the admission was not tape-recorded - where the police officers did not administer any warning prior to the admission - whether the evidence was admissible under s 436(3) of the Police Powers and Responsibilities Act 2000 (Qld)

[2]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - where evidence of prior acts of violence allegedly committed by the appellant against the complainant was led at the trial - whether this evidence was "relevant evidence" within the terms of s 132B of the Evidence Act 1977 (Qld)

[3]

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 REFUSED - where the appellant was sentenced to 10 months imprisonment for one count of assault occasioning bodily harm committed against a 63 year old woman - whether the sentence imposed was in the circumstances manifestly excessive

[4]

Evidence Act 1977 (Qld), s 132B

[5]

Police Powers and Responsibilities Act 2000 (Qld), s 415, s 431, s 436(3), s 437

[6]

HML v The Queen (2008) 82 ALJR 723; [2008] HCA 16, applied

[7]

R v Chevathen & Dorrick (2001) 122 A Crim R 441; [2001] QCA 337, cited

[8]

R v Etherington (1982) 32 SASR 230, cited

[9]

R v Garner (1963) 81 WN (Pt 1) (NSW) 120, cited

[10]

R v LR [2006] 1 Qd R 435; [2005] QCA 368, cited

[11]

R v Ward [1998] QCA 329, distinguished

[12]

Director of Public Prosecutions (Queensland) for the respondent

[13]

**[1] de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Keane JA. I agree with the orders proposed by His Honour, and with his reasons.

[14]

[2] KEANE JA: On 21 March 2007, the appellant was convicted upon the verdict of a jury of one count of assault occasioning bodily harm in contravention of s 339(1) of the Criminal Code 1899 (Qld). He was sentenced to 10 months imprisonment with 21 August 2007 being fixed as his parole release date, ie after five months of that sentence had been served. The learned sentencing judge also made an order that the appellant have no contact with the complainant for a period of two years after

[15]

[3] The appellant appealed against his conviction. The grounds stated in the appellant's notice of appeal were:**

[16]

"1. That the Court erred in law in finding that the evidence of the police officers regarding alleged statements against interest made by the Appellant was not excluded by operation of section 463 (3) [sic] of the Police Powers and Responsibilities Act 2000.

[17]

That the Court erred in law in finding that the evidence of previous domestic violence between the Complainant and the Appellant was admissible as relationship evidence."

[18]

**[4] The appellant also sought leave to appeal against the sentence which was imposed on him, contending that the sentence was manifestly excessive. No challenge is made to the non-contact order. It is contended that the sentence which should have been imposed was a period of six months imprisonment wholly suspended.

[19]

[5] These matters were listed for hearing by this Court on 24 July 2007. On this occasion the appellant had the benefit of legal representation in respect of his application for leave to appeal against sentence. This representation was provided by Counsel instructed by Legal Aid Queensland. Legal Aid was not willing to provide representation in support of the appeal against conviction. At the appellant's request, the hearing of both matters was adjourned to enable him to seek legal representation. The appellant was released from custody on 21 August 2007.

[20]

[6] These matters were again listed for hearing on 22 October 2007, on which date they were adjourned again at the appellant's request to enable him to seek legal representation in relation to his appeal against conviction. They were again listed for hearing on 15 February 2008, on which date the appellant was, at his request, given a further opportunity to arrange legal representation. On that occasion, the following exchange occurred between the appellant and the Court:**

[21]

"APPELLANT: ... Your Honour, if the Court would be gracious enough to grant another extension, another adjournment, would it be - would I be wrong in undertaking to you, giving you an undertaking, that if you grant any adjournment, not necessarily three or four months, but whenever, just time so I can instruct a barrister which I now have the funds to pay for, and if something goes pear shaped this time, then can I give you the undertaking that I will appear for myself and represent myself and do the best I can next time, if I give that assurance?

[22]

KEANE JA: We hear that assurance, and I can give you the assurance that if an adjournment were to be granted today, it would certainly be on the footing that on the next occasion, the absence of representation would not be a ground for a further adjournment.

[23]

[7] The order of the Court on 15 February 2008 was as follows:

[24]

"The order of the Court will be that the appeal and application be adjourned to a date to be fixed, and that it be noted that the Court has expressed the view that the absence of legal representation for the appellant will not be regarded, or should not be regarded as an occasion for a further adjournment."

[25]

**[8] When the matters came on for hearing on 9 July 2008, the appellant was still without representation. The appellant expressly acknowledged that he did not expect a further adjournment to be granted, but nevertheless sought a further indulgence in that regard.

[26]

[9] The history of the appellant's failure to arrange legal representation despite several opportunities is such that the Court could have no confidence that the appellant would arrange legal representation if a further adjournment were granted. For these reasons, the appellant's application for a further adjournment was refused.

[27]

[10] The appellant proceeded to present his own arguments in support of his appeal against his conviction. I will discuss the appellant's grounds of appeal against his conviction after first summarising the case at trial.**

[28]

**[11] The offence was alleged to have occurred on 25 January 2005. The appellant was 50 years of age at that date. The complainant was a 63 year old woman. The appellant had been residing more or less permanently with the complainant in her house during the period of three or four months prior to the offence. The appellant and the complainant had once enjoyed an intimate relationship, but that had ceased some years before. Although they had remained friends, some time before the incident of 25 January 2005 the complainant had asked the appellant to move out of her house, but he had not done so.

[29]

[12] According to the complainant, a few days before 25 January, the appellant had asked the complainant if he could borrow her car. She refused this request. On

[30]

25 January, there was a further discussion in the complainant's lounge room about the car, in which, according to the complainant, the appellant told her that she was making him angry. The complainant got up to leave the room, and he pushed her from behind, causing her to fall landing on her face and knees.

[31]

[13] The complainant said that she suffered a carpet burn across her forehead, scarring on her nose, two black eyes and badly bruised knees. Her evidence was that her knees hurt for about three weeks.

[32]

[14] The following day the complainant contacted the police to have the appellant remove himself from her house. Constable Anemaat and Senior Constable Dugdale met the complainant near her home. They observed her injuries and asked how they had been caused. She told them that the appellant had pushed her over but said that she did not wish to make a complaint. When the police officers spoke to the appellant, they did not administer any warning or tape-record their conversation. Constable Anemaat later made some notes of the conversation in her police notebook. According to the police officers, the appellant showed them how he had pushed the complainant and how she had fallen over.

[33]

[15] At a pre-trial hearing, the evidence of the police officers was held not to have been excluded by the provisions of s 436(3) of the Police Powers and Responsibilities Act 2000 (Qld) ("the Act") because the police were not investigating the commission of an offence by the appellant at the time they spoke to him for the purpose of ensuring that he left the complainant's home.

[34]

[16] The complainant made a formal complaint to police about the appellant on

[35]

[17] The complainant's sister also gave evidence that the appellant had admitted that he had pushed the complainant over.

[36]

[18] At trial, the appellant gave evidence that the complainant had stumbled as a result of the adverse effects of excessive alcohol consumption while he was attempting to guide her out of his room in an effort to defuse the argument.

[37]

[19] The appellant denied making any admission to the police or to the complainant's sister that he had pushed the complainant over.

[38]

[20] The complainant also gave evidence that the appellant had been violent towards her in the past: on several occasions, the appellant slapped her face. In June 2003, he threw the TV remote control at her and gave her a black eye.

[39]

[21] The admissibility of this evidence was challenged at a pre-trial hearing. The evidence was ruled to be admissible on the basis that it tended to negative the suggestion that the complainant stumbled while being assisted by the appellant.

[40]

[22] The jury were directed by the learned trial judge that this evidence could not be relied upon to establish that the appellant was the sort of person who might attack elderly ladies, but that they could have regard to that evidence to counter the improbability that the appellant would have attacked the complainant without reason and "out of the blue", as might otherwise appear to be the case, after a relationship of friendship of some 20 years.**

[41]

The appellant's arguments concerning the conviction

[42]

The Act

[43]

**[23] The appellant's first argument is that the evidence of the police officers was excluded by operation of s 436(3) of the Act.

[44]

[24] Section 436 of the Act provides:**

[45]

"(1) This section applies to the questioning of a relevant person.

[46]

(2) The questioning must, if practicable, be electronically recorded.

[47]

It may be impracticable to electronically record a confession or admission of a murderer who telephones police about the murder and immediately confesses to it when a police officer arrives at the scene of the murder.
It may be impracticable to electronically record a confession or admission of someone who has committed an armed hold-up, is apprehended after pursuit, and makes a confession or admission immediately after being apprehended.
Electronically recording a confession or admission may be impracticable because the confession or admission is made to a police officer when it is not reasonably practicable to use recording facilities.

[48]

(3) If the person makes a confession or admission to a police officer during the questioning, the confession or admission is admissible in evidence against the person in a proceeding only if it is recorded as required by subsection (4) or section 437.

[49]

(4) If the confession or admission is electronically recorded, the confession or admission must be part of a recording of the questioning of the person and anything said by the person during questioning of the person."

[50]

[25] Section 437 of the Act provides:

[51]

"(1) This section applies if a record of a confession or admission is written.

[52]

(2) The way the written record of the confession or admission is made must comply with subsections (3) to (7).

[53]

(3) While questioning the relevant person, or as soon as reasonably practicable afterwards, a police officer must make a written record in English of the things said by or to the person during questioning, whether or not through an interpreter.

[54]

(4) As soon as practicable after making the record-

[55]

(a) it must be read to the person in English and, if the person used another language during questioning, the language the person used; and

[56]

(5) Before reading the record to the person, an explanation, complying with the responsibilities code, must be given to the person of the procedure to be followed to comply with this section.

[57]

(6) The person must be given the opportunity, during and after the reading, to draw attention to any error in or omission from the record he or she claims were made in the written record.

[58]

(7) An electronic recording must be made of the reading mentioned in subsection (4) and everything said by or to the person during the reading, and anything else done to comply with this section."

[59]

**[26] Section 431 of the Act provides that "[a] police officer must, before a relevant person is questioned, caution the person in the way required under the responsibilities code." It should be noted that s 431 does not expressly render inadmissible in evidence a confession or admission made by a relevant person who has not been cautioned as required by the section.

[60]

[27] It was not suggested that the police complied with either s 436 or s 431 of the Act. The argument which was upheld below was that, when the appellant spoke to the police, he was not a "relevant person" and so s 436 of the Act was not engaged.

[61]

[28] The concept of a "relevant person" is explained in s 415 of the Act. It provides:**

[62]

"(1) This part applies to a person (relevant person) if the person is in the company of a police officer for the purpose of being questioned as a suspect about his or her involvement in the commission of an indictable offence.

[63]

(2) However, this part does not apply to a person only if the police officer is exercising any of the following powers-

[64]

(a) power conferred under any Act or law to detain the person for a search;

[65]

(b) power conferred under any Act to require the person to give information or answer questions."

[66]

**[29] The appellant was not "in the company" of the police officers for the purpose of being questioned as a suspect about his involvement in the commission of an indictable offence. The ruling below was based on the view that the appellant was in the company of police officers because they were aiding the complainant to resume possession of her own home peacefully after the appellant had failed to act upon her request that he should leave. That ruling was clearly correct.

[67]

[30] Even if a caution were required by s 431 of the Act, a failure to comply with s 431 would not automatically render the appellant's admission inadmissible. The exclusion of the evidence would only occur in the exercise of judicial discretion in order to ensure a fair trial. There is no reason in terms of fairness to exclude the appellant's statement.[1] The appellant either made the statement or he did not. If the statement was made, it was a perfectly voluntary statement made without any suggestion of pressure by the police.

[68]

[31] There is no substance in this ground of appeal.**

[69]

**[32] As to the second ground of appeal, I am of the opinion that the evidence of the appellant's previous acts of violence towards the complainant was admissible.

[70]

[33] By virtue of s 132B of the Evidence Act 1977 (Qld) "[r]elevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding."

[71]

[34] The evidence in question is "relevant evidence" within the meaning of s 132B of the Evidence Act. That is because it was relevant, as Kiefel J said in HML v The Queen:[2]**

[72]

"to answer questions which ... may fairly be expected to arise in the minds of the jury were they limited to a consideration of evidence of the offences charged ... It is relevant to answer questions and thereby rebut or negative an inference which might otherwise be drawn by the jury."

[73]

**[35] It would have been quite wrong, and distinctly unfair to the complainant, if the jury had been allowed to proceed to a verdict on the footing that the relationship between the appellant and the complainant was such as might make her allegation of a deliberate physical attack by the appellant seem unlikely to be true.[3]

[74]

[36] I would reject the second ground of challenge to the conviction.**

[75]

**[37] The appellant argued that the sentence which was imposed on him was manifestly excessive. In consequence of the delays which have attended the hearing of these matters, the issue as to the severity of the appellant's sentence is now of no practical significance. Subject to one matter, leave to appeal could properly be refused simply on the basis that, as a result of the adjournments given to the appellant at his request, there is now no utility in his application for leave to appeal against sentence. The appellant sought to argue that his application for leave to appeal against sentence had some utility in that this Court should uphold that appeal and set aside the learned sentencing judge's order recording a conviction.

[76]

[38] In my respectful opinion, this Court should not interfere with the learned sentencing judge's decision to record a conviction; and the application for leave to appeal against sentence should be refused on the merits. I will now proceed to explain why I have reached this conclusion.

[77]

[39] At the outset, it should be noted that the learned sentencing judge took account of the points that tend to mitigate the seriousness of the appellant's offence. The learned sentencing judge acknowledged that the appellant had no criminal history, and a good employment record.

[78]

[40] His Honour also noted that the appellant suffers from depression for which he receives medical treatment, but his Honour expressed the view that the appellant's condition was not such as to suggest that imprisonment would be a more severe punishment for the appellant than would otherwise be the case.

[79]

[41] The learned sentencing judge was told that the appellant provides care for his elderly mother who would be adversely affected by the imprisonment of the appellant.

[80]

[42] The learned sentencing judge imposed the sentence of 10 months imprisonment because of his view that this example of domestic violence to a woman of 63 years of age had to be regarded seriously, and was not unprecedented in the relationship between the complainant and the appellant. It was also regarded as a matter of significant concern that the assault occurred in the complainant's own home and after she had asked the appellant to leave. There was an aspect of intimidation to the appellant's conduct which is disturbing. His Honour was understandably concerned that the appellant had shown no remorse for his offence.

[81]

[43] An argument put in written submissions by Counsel engaged by Legal Aid on behalf of the appellant was that a sentence of 10 months imprisonment can be seen to be manifestly excessive when one has regard to the following circumstances:

[82]

• the complainant's injuries were unintended and relatively minor in that the complainant did not require medical assistance;

[83]

• the evidence of previous domestic violence by the appellant related to incidents some of which had occurred some years previously; and

[84]

• the offence was an example of a momentary loss of control brought about by frustration or anger.

[85]

[44] The written submissions provided by Counsel engaged by Legal Aid relied upon the decision of this Court in R v Ward.[4] In that case, the offender, a 49 year old man with no criminal history, had assaulted the woman from whom he had recently separated after a seven year relationship. He struck her several blows to her hands and arms and one or more on her face. The assault caused a pre-existing back injury of the complainant to flare up. A sentence of nine months imprisonment, suspended after three months, was set aside on the basis that the sentence should have been fully suspended. In that case, though, the offender had pleaded guilty part way through the trial, and, importantly, there was no history of prior domestic violence.

[86]

[45] The circumstances that, in R v Ward, the offender had pleaded guilty, and there had been no history of domestic violence, differentiate it from the present case, as does the circumstance that, in this case, the assault occurred in the complainant's own home as a consequence of the complainant's refusal to allow the appellant to use her car and after she had asked him to leave her property. These are important circumstances which the learned trial judge was entitled to take into account adversely to the appellant.

[87]

[46] It should also be noted that in R v Ward, each member of the Court of Appeal emphasised that the offence was a serious one, with McMurdo P stating that:**

[88]

"The community regards seriously incidents of domestic violence like this, and the Courts will impose significant deterrent penalties to show the disapprobation of the Courts and the community."

[89]

**[47] It is true that, in this case, the complainant's injuries were not especially serious. They could easily have been much worse, but the fact that they were not is a circumstance which, of course, lessens the seriousness of the offence. There is no reason, however, to think that the learned sentencing judge misunderstood the nature of the complainant's injuries. In this respect also, the present case is to be distinguished from the decision in R v Ward where the sentencing judge had proceeded to sentence the offender on the mistaken view that the injuries sustained by the complainant amounted to grievous bodily harm.

[90]

[48] Having regard to the differences between the present case and R v Ward, I do not consider that the decision in that case demonstrates that the sentence imposed in this case was outside the range of a sound exercise of the sentencing discretion. Further, notwithstanding the matters referred to on the appellant's behalf, the aggravating circumstances of this offence to which I have referred were such that I am not persuaded either that the sentence imposed on the appellant was excessive, much less manifestly so, or that the learned sentencing judge erred in deciding to record a conviction.**

[91]

**[49] The grounds of appeal against the appellant's conviction having been rejected, the appeal against conviction should be dismissed.

[92]

[50] For the reasons I have given, the application for leave to appeal against sentence should also be refused.

[93]

[51] LYONS J: I have had the advantage of reading the reasons for judgment of

[94]

Keane JA. I agree with the reasons and the orders proposed by his Honour.**

[95]

[1] Cf R v LR [2005] QCA 368; [2006] 1 Qd R 435 at 451 - 452 [51] - [52].

[96]

[2] [2008] HCA 16; (2008) 82 ALJR 723 at 821 - 822 [500]; [2008] HCA 16; (2008) 245 ALR 204 at 329 - 330 [500].

[97]

[3] R v Garner (1963) 81 WN (Pt 1) (NSW) 120 at 122; R v Etherington (1982) 32 SASR 230 at 235;

[98]

R v Chevathen & Dorrick [2001] QCA 337 at [36] - [37]. See also O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566 at 577. Cf in cases of sexual assault: HML v The Queen [2008] HCA 16; (2008) 82 ALJR 723 at 736 [24]; 751 - 752 [103] - [109]; 809 [424] - [427]; 820 - 822 [496] - [501]; [2008] HCA 16; (2008) 245 ALR 204 at 212 [22], 233 - 235 [103] - [109], 312 - 313 [424] - [427], 328 - 330 [496] - [501].

[99]

[4] [1998] QCA 329.

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Judgment (99 paragraphs)

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