R v Conway

[1998] QCA 260

[1998] QCA 260

COURT OF APPEAL

McMURDO P
MACKENZIE J
HELMAN J

CA No 104 of 1998

THE QUEEN

v.

IAN JAMES CONWAY  Appellant

BRISBANE

..DATE 10/08/98

JUDGMENT

THE PRESIDENT:  The appellant was convicted by a jury on
2 March 1998 in the District Court at Ipswich of one count of assault occasioning bodily harm.  The appellant is an Aboriginal man aged 28 years of age.  The sole ground of appeal is that the jury verdict was dangerous and unsafe and that on the evidence the jury could not have been satisfied beyond reasonable doubt that the Crown had negatived the defences of provocation and/or self defence.

Consistent with the ruling of the High Court in Gipp's case this ground of appeal really is that there was insufficient evidence to sustain a verdict of guilty and that on the evidence the jury ought to have entertained a reasonable doubt as to guilt.  This ground of appeal requires an examination of the whole of the evidence. 

The appellant was convicted of assaulting Constable Prickett at the Ipswich Watch-house.  The prosecution case was that the appellant head butted Prickett cutting and fracturing his nose.  The trial was run on the basis that Prickett had suffered bodily harm through the appellant's head butt.  The defence case was that the head butt occurred in direct response to Prickett pulling back the appellant's thumb in a thumb hold or restraint causing the thumb to fracture.  This was denied by Prickett.

Both self defence and provocation were left to the jury.  The jury was told concisely and clearly that the question was whether or not the prosecution had satisfied the jury beyond reasonable doubt that Prickett was not holding and bending the appellant's thumb before the appellant head butted Prickett.  There is no complaint about the Judge's summing-up in this respect.

The facts are as follows.  Prickett and his female partner, Constable Serafim, were performing patrol duties in a police vehicle near the Ipswich Mall at about midnight when the appellant walked in front of their vehicle.  Prickett heard the appellant yelling from behind the vehicle saying, "I'm sick of your fucking kind looking at me as if I've done something wrong," and later, "I'm sick of your people taking my land," or words to that effect.

Interestingly, this latter statement was not mentioned by Prickett in his original Court statement or at the committal proceedings.  The defence made much of this fact in attacking Prickett's credit but otherwise no objection was taken to this evidence at the trial.

Prickett approached and spoke with the appellant and after concluding that he was obviously intoxicated arrested him for being drunk in a public place.  At the trial the appellant admitted drinking 12 stubbies of beer from 3.30 until 9 and then a further three stubbies of beer and two rums and Coke prior to seeing the police.  The appellant denied he was intoxicated.

It seems there was some mild force used by police officers to get the appellant into the police vehicle.  He was then taken to the watch-house where he was asked for identification and again refused.  Police officers physically withdrew the appellant's wallet to ascertain his identify.  He was placed in a holding cell while the police attended to paperwork necessary to process the arrest and at this stage police ascertained the appellant was wanted on a warrant. 

It is most disturbing and regrettable that although the appellant had paid this fine, the warrant had not been deleted from the police computer system.  I request that an inquiry be made to ascertain how this error occurred and to try to ensure something like this does not occur again.  This really was the trigger of the whole unfortunate incident and understandably the appellant felt aggrieved.

Prickett tried to tell the appellant about the warrant but the appellant rightly insisted he did not have any warrants outstanding.  On the police version he was uncooperative.  The video indicates that he tried to explain his position but was not belligerent or loud in doing so.  The appellant was subsequently taken from the holding cell to the charge counter where the video that has been viewed by the Court shows what occurred.

Police officers wanted him to remove change from his pocket and to remove his belt, as they were entitled to do.  At one stage Constable Prickett went towards the appellant's belt and the appellant said, "Don't touch me.  Keep your hands off me."  This occurred a minute or two before the assault the subject of this appeal. 

Prickett said to the appellant that he would use force on him to which the appellant responded, "If you use force on me I will use force on you."  Prickett then said, "This is your last chance.  Put up or we start using force."  Shortly after those words are said Prickett is seen on the video to touch the elbow of the appellant but it is impossible to see whether or not a thumb restraint was used. 

Whilst the touch on the elbow may be a precursor to a thumb restraint or another form of restraint it is also a natural way to take hold of someone who is being uncooperative.  In the end, the video is consistent with either the defence or Crown version as to how this incident occurred and takes the matter no further.

The video next shows the appellant head butting Prickett.  Constable Serafim, who was present, saw the head-butting episode but was unable to say one way or the other whether Prickett had applied a thumb restraint to the appellant.  Another police officer present, Constable Waters, had her back turned at the time of the head-butting episode and immediately prior to it and was unable to assist further.

The issue then is one of credibility between police officer Prickett and the appellant.  The appellant gave evidence that Prickett applied force to his thumb when he was first apprehended near the Mall and was being placed in the police car and that Prickett kept grabbing at his thumb throughout the events that evening culminating in the final incident immediately before he head butted Prickett which he says was the fourth time that Prickett had applied force to his thumb.  The appellant said that episode caused him pain and that he reacted to this pain by head butting Prickett.  Prickett denied applying any thumb restraint or touching the hand of the appellant at all that evening. 

The appellant visited his general practitioner the next day and a subsequent X-ray confirmed he had a small undisplaced fracture involving the lateral aspect of part of the left thumb.  He also had other injuries; a tender and swollen right ankle and a small superficial laceration to his forehead.

The prosecution case was that the injury to the appellant's thumb had occurred in the aftermath of the head-butting incident when a significant number of police were involved in restraining the appellant on the ground.

Unfortunately, defence counsel became ill during the trial and the appellant's general practitioner was examined by the defence solicitor.  The next day the defence address was given by a different defence counsel.  No point is taken about this on appeal and bearing in mind the straightforward nature of the case and the adjournments given by the learned trial Judge I can see no significant disadvantage to the accused in the way his trial was conducted.  The situation was dealt with as well as it could be.

The appellant's case is that there is no evidence from which it could be inferred that the appellant's thumb was broken after he head butted Prickett.  The appellant submits the prosecution did not specifically ask any policeman who gave evidence whether a thumb restraint was applied to the appellant after he had assaulted Prickett and that therefore the jury could not be satisfied beyond reasonable doubt that Prickett did not apply the thumb restraint to the appellant causing the appellant to react under provocation or in self defence.

The appellant has considerable difficulties.  The issue was one of credibility between Prickett and the appellant both of whom gave evidence and were observed by the jury.  Prickett denied applying a thumb restraint at all.  There was ample evidence that considerable force was applied to the appellant after the head butt both by Constables McLucas and Serafim and three or four other police officers.  The appellant was brought to the floor by Prickett after the head butt by Prickett pulling the appellant's legs from under him.

The medical evidence called by the appellant at trial from his general practitioner, Dr Jackson, was that the small fracture to the left thumb was caused by force, "That force can be anything from a fall or whatever but force would need to be applied to cause that bone to break...it would be a significant force but it is hard to quantify."  Transcript 82.

He was asked in cross-examination, "Would it be correct to say this, there would have been any number of ways in which that injury to the thumb occurred provided the force was in the direction you have described?" and the answer given was, "Yes."  Transcript 84.
The appellant denied being intoxicated at trial but admitted drinking 15 stubbies of beer and two rums and Coke between 3.30 and midnight. The appellant denied his thumb was injured after the head butt but during his evidence claimed he was unconscious for a short period when he was restrained by police. The appellant having made imputations on the character of the Crown witness Prickett was cross-examined as to two prior convictions of false pretences in 1990, pursuant to section 15(2) of the Evidence Act.

If the jury rejected the appellant's evidence, which they were entitled to do, there was certainly evidence from which they could be satisfied beyond reasonable doubt that the injury to the thumb did not occur as alleged by the appellant.  Although one obvious explanation for that injury is that it occurred in a fall during the restraint of the appellant after the head butt, it was not for the Crown to have to satisfy the jury beyond reasonable doubt how that injury did occur.  The learned trial Judge was not required to warn the jury of acting upon the unsupported hypothesis that the fracture could have occurred after the head-butting incident as contended by counsel for the appellant.

In short, if the jury rejected the appellant's evidence and accepted Prickett's evidence, as they were quite entitled to do, they would have been satisfied beyond reasonable doubt of the guilt of the accused.  It cannot, therefore, be said that the verdict was unreasonable and cannot be supported by the evidence.  I would dismiss the appeal.

MACKENZIE J:  I agree.  I wish to be associated with the remarks of the President about the warrant.  The failure of the system to disclose that the warrant had been paid was an irritant in the context in which the offence occurred.  However, the appellant was lawfully in custody at the time. 

There is no doubt that he suffered a broken thumb at some period during the evening.  However, the video is to my mind, after viewing it, equivocal.  It did not, as far as I could discern, show any act of a kind distinctly different from those occurring throughout the period when he was at the watch-house desk which actions did not produce any noticeable reaction.  The video was for the jury to interpret. 

Issues relevant to credit which have been referred to by The President were fully canvassed.  There was no complaint about the terms of the summing-up.  In those circumstances I agree that the order should be as proposed.

HELMAN J:  I agree that the appeal should be dismissed.  I agree with the reasons given by The President and Mr Justice Mackenzie, and I agree with what they have said on the subject of the warrant.

THE PRESIDENT:  The order will be that the appeal is dismissed.

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