Conway v The Queen

[2005] HCATrans 791

[2005] HCATrans 791

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B56 of 2005

B e t w e e n -

SAMUEL JOSEPH CONWAY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 SEPTEMBER 2005, AT 1.10 PM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC:   With my learned friend, MR A.W. MOYNIHAN, I appear for the applicant.  (instructed by Legal Aid Queensland)

MRS L.J. CLARE:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

KIRBY J:   Yes, Mr Callaghan.

MR CALLAGHAN:   The error in this case appears at page 71 of the application book in paragraph [22] of the judgment of the Court of Appeal.  The error was made when it was held that an offence which was comprised by the failure to report to a police station within a specified time continued beyond the expiration of that period.

HEYDON J:   But even if that is so, was your client not rightly convicted under section 198(1)(i)?

MR CALLAGHAN:   No.

HEYDON J:   Why not?

MR CALLAGHAN:   Well, he may have been.  That path was open.  I accept that.

HEYDON J:   Not only open but one that the mind would irresistibly force him down. 

MR CALLAGHAN:   The mind might not.

HEYDON J:   Why not?  He had committed the offence of not complying with the notice of direction, and that was an arrestable offence.  It might be a hard piece of legislation, but it is clear legislation.

MR CALLAGHAN:   Not arrestable by its very nature, not ipso facto arrestable if it was reasonably necessary because it was such an offence. 

HEYDON J:   Your client did not really display any very co‑operative attitude towards the police officer.

MR CALLAGHAN:   No, he did not but, having said that, he was taken by surprise by the whole visit.  He, as far as he was concerned, was going to court the next day, expressed what appears to be views which could lead to the conclusion he was mistaken as to the obligation imposed by the notice that he had received.

KIRBY J:   Justice McMurdo expressed some hesitations about possible heavy handedness of the police action here but we are not really concerned with that.  We are only concerned with whether or not, by the avenue of 198(1)(i) we bypass the issues that seem to concern the Court of Appeal and that you want to agitate before us because if so, the mind rushes to that solution.

MR CALLAGHAN:   I understand.  For a start can we look at the way the Crown Prosecutor put it.  He did not refer ‑ ‑ ‑

KIRBY J:   That does not matter.

MR CALLAGHAN:   It does to this extent because it would appear that the jury would have convicted on the basis that it was a continuing offence.  The Crown Prosecutor did not ask them to convict any other way.

KIRBY J:   Section 198(1)(i) was before the jury.

MR CALLAGHAN:   Section 198(1)(i) was before the jury in general terms in the summing‑up, yes, but it was not the way the Crown ran the case.  The Crown Prosecutor ran it under 1(a).

KIRBY J:   Are we going to be the High Court of Australia peering through transcript as to how a case was actually run when it is accepted that (a) 198(1)(i) leads to a proper conviction and (b), it was before the jury.

MR CALLAGHAN:   It could lead to a proper conviction, I accept that, if the circumstances of it being reasonably necessary were made out.  Those words govern all of the subsections of 198(1).

KIRBY J:   But as Justice McMurdo said, that is really a jury question.

MR CALLAGHAN:   That is right and that is why I am saying ‑ ‑ ‑

KIRBY J:   So your complaint ultimately comes down to the fact that the issue was not addressed to the specific decision of the jury in the case.

MR CALLAGHAN:   At the risk of repeating myself, my complaint in this context is that the jury were steered by the Crown down the path of (1)(a) and there is every reason to suppose that that was the basis for the conviction.  I accept that the Crown could have run it another way but they did not and, as a result, we have this very peculiar, in our respectful submission, statement by the Court of Appeal that the offence was a continuing one and whether or not it was a continuing offence was a question of fact for the jury. 

We have cited two decisions from the courts of New South Wales which, we submit, are on point and which make it clear that an offence of this nature is not a continuing offence.  Those decisions have not been distinguished by the respondent and we submit the reasoning in them is apposite.  If that is so, if that reasoning is applicable to an offence under 198(1)(a), then it was not open for the police officer to proceed on that basis, it was not open to arrest without warrant, and is not open and that gives it the general importance because, as things stand, failure to comply with a notice of the kind we are talking about is a continuing offence which gives the police power to arrest without warrant and that is a question of general importance.

KIRBY J:   Do you accept that your client was in breach of the obligation imposed by section 445?

MR CALLAGHAN:   He had committed the offence, yes, and the offence was complete.  We accept that an offence had been committed.

KIRBY J:   So really it comes down to the fact that although the issue was before the jury, you say the case was not run and the jury did not therefore focus its attention specifically on the provisions of section 198(1)(i).

MR CALLAGHAN:   And indeed, not only would not have because the Crown did not run it that way.  But very different considerations apply in the mind of a jury whether an offence is continuing.  It might make a real difference to whether it was thought to be reasonably necessary to arrest if an offence is going on as opposed to the situation where an offence is complete, done and dusted, and ready to be proceeded against at any time but not in such a way as to authorise entry into a dwelling house at night‑time by a police officer. 

To take another example of something more trivial, an offence such as riding a bicycle without a helmet, one could see that there would be a very real concern by an average juror that a police officer should be allowed to intervene in something like that, an offence which is continuing, which is a danger to the offender and others.  Someone might authorise physical intervention at that stage, but if someone had ridden a bicycle without a helmet last week, the juror might think it is not reasonably necessary to enter their house and arrest them for that offence.  Very different considerations if the offence is continuing, considerations bearing upon the reasonableness and we come back to the requirement that it be reasonably necessary for the reason be it (a) or (i), there is still a requirement that it be reasonably necessary.

There were arguments to be made against it being reasonably necessary for (i).  We do not know whether the jury considered those, in fact, the likelihood is they did not and they slipped down the easier and quite compelling route of (a) which was that the offence was continuing.  Why not, why should arrest not be authorised in those circumstances, and that is why it is not open, in effect, to say that they would have found that it was authorised under (i) in any event. 

KIRBY J:   That is it, is it not?

MR CALLAGHAN:   That is pretty well it.

KIRBY J:   It is quite a small point. 

MR CALLAGHAN:   It is a narrow point but one which does have a general importance to the notion of police powers in Queensland and to the prospect of police entering dwelling houses as a result.

HEYDON J:   Has your client left gaol?

MR CALLAGHAN:   Yes.

HEYDON J:   He has served his three months, which is the reduced sentence?

MR CALLAGHAN:   Yes.  Thank you.

KIRBY J:   Thank you, Mr Callaghan.  Mrs Clare, what do you say about 198(1)(i)?  Was that actually in play in the trial, or not?

MRS CLARE:   Yes, it was.  In fact, whilst it is correct to say that the Crown Prosecutor addressed on 198(a), what needs to be said is that the focus of the defence address was on that second category, 198(i), as was the focus of the summing‑up.  In my submission, this point about continuing offence, whether or not there was a continuing offence, is no more than a distraction in the context of this case.

I say that because, although a judgment in the Court of Appeal commented on it, it was not necessary for the determination of the decision.  This is more important, it was not the way in which the case was left to the jury because even referring to the Crown Prosecutor’s argument which was the 198(a) point, it was not an argument that it was reasonably necessary to prevent a continuing offence.  It has to be read in its whole context and it was to prevent the continuation or the repetition of the offence.  For example, the Crown Prosecutor, at page 6 of the record, line 40 simply quoted from the section:

The very first subsection says, “To prevent the continuation or repetition of an offence or the commission of another offence”.

That really cannot be complained of because the defence in this case was that it was not reasonably necessary to effect an arrest because the police officer had another option and that was to simply issue a fresh notice of particulars.  Of course, if there was non-compliance with that there would be another offence.  The Crown’s argument, as presented in the closing address and by her Honour in her summary to the jury, was that the applicant had already demonstrated that he was unwilling to comply and would not comply so further action like a second notice was futile.

KIRBY J:   Where is the paragraph, that is to say (i), left to the jury in the charge?

HEYDON J:   I do not know if this helps – page 20, line 50.

MRS CLARE:   Thank you, your Honour.

HEYDON J:   That refers to the paragraph.  It may not answer Justice Kirby’s question but it does seem to answer it because if you go to line 20 on page 21:

Constable Bromley, was of the view that Mr Conway had committed an offence because of the fact that he had failed to follow his direction or requirement pursuant to the notice he had issued.

That is, what the prosecution says to you; there is a power to arrest under that section.

MRS CLARE:   This is at 21 at about line 40:

the prosecution say, in circumstances where he had not complied with the direction  . . . snubbed his nose ‑ ‑ ‑

KIRBY J:   Yes, that appears to be a reference to paragraph (i).

MRS CLARE:   Over the page, page 22, the first paragraph:

because the offence was an offence against that section 445 ‑ ‑ ‑

KIRBY J:   We do not need any further assistance, Ms Clare.

MRS CLARE:   Thank you.

KIRBY J:   Yes, Mr Callaghan.

MR CALLAGHAN:   If the Court of Appeal observation as regards 198(1)(a) is a distraction, it is a distraction which will continue to distract until it is corrected.

KIRBY J:   But the Court of Appeal in paragraph [33] said that her Honour left to the jury paragraph (i) and that that was a further basis on which the conviction would be upheld and that is very likely to be the view that this Court would reach at the end of a matter and would restrain itself from saying things about (a).

MR CALLAGHAN:   And, as I say, that leaves what the Court of Appeal has said about (a) as the law and we submit that that is a question of general importance which ought be corrected.

KIRBY J:   I understand that and in another case that may have to be considered but in this case it does not.  The difficulty then is we are engaging in a precious appellate exercise in a matter where we may not even get to that point.

MR CALLAGHAN:   I understand it is a fine point, your Honour.  I baulk at the proposition that it is “precious” because of the importance of the consequences.

KIRBY J:   I read what Lord Denning said and I understand the potential significance.  It is a question of, is it a necessary significance in this case.

MR CALLAGHAN:   I understand.

KIRBY J:   Yes, thank you very much. 

This application seeks special leave to appeal from orders of the Court of Appeal of Queensland.  That court dismissed the applicant’s appeal against conviction while substantially reducing the sentence imposed on him for the offence of assaulting a police officer acting in the course of his duty.  The challenge in this Court is to the legality of the conviction.  The applicant says that the trial judge and the Court of Appeal misinterpreted the provisions of the Police Powers and Responsibilities Act 2000 (Qld).

We are not convinced that there are reasonable prospects of success in an appeal, were special leave granted. The issue is whether the courts below erred in concluding that the preconditions for a lawful arrest were established, sufficient to permit the jury to find the applicant guilty of the crime charged against section 340(b) of the Criminal Code (Qld). Even if the applicant could establish error in some of the reasoning below as to section 198(1)(a) of the Act (a matter that we do not, in this application, need to decide) section 198(1)(i) of the Act authorised a police arrest if the police constable reasonably suspected that the applicant had committed an offence against section 445 of the Act. There is no dispute that the applicant was in breach of the obligation imposed by section 445.

On this basis, the prospects of the applicant succeeding in the challenge to his conviction appear to us be very slim.  We are not convinced that a miscarriage of justice has occurred.  Special leave is accordingly refused.

AT 1.27 PM THE MATTER WAS CONCLUDED