R v Crane

[2001] QCA 363

[2001] QCA 363

COURT OF APPEAL

McPHERSON JA
WHITE J
WILSON J

CA No 123 of 2001

THE QUEEN

v.

JAMES CLAPHAM CRANE

BRISBANE

..DATE 04/09/2001

JUDGMENT

McPHERSON JA:  The appellant is James Clapham Crane, who was convicted after a trial by jury in the District Court at Cairns of having, on 21 February 2000, assaulted a police officer acting in the execution of his duty.

He was sentenced to a period of community service with the conviction being recorded.  He now appeals against that conviction. 

On the date in question the complainant, who is Constable Altenburg, was alone in a marked police car travelling along Riverstone Road at Gordonvale when he saw the appellant, who was walking along the bitumen seal of the road, in an area outside the cycle lane.

The appellant, Constable Altenburg noticed, was walking backwards.  The complainant Constable passed the appellant and, looking in the rear vision mirror of his vehicle, he saw the appellant doing what is described as a star jump.  He carried out a u-turn and stopped opposite the appellant and said to him, "I hope you're not hitchhiking."  Hitchhiking is an offence under regulation 147(2) of the Traffic Regulations 1962.

The complainant stopped the vehicle, alighted, and went round to the side of the vehicle next to the appellant.  The appellant, by now, was sitting on the ground and the complainant asked him if he was a local person who lived in the neighbourhood.  To that the appellant replied, "Yes, but it's none of your business".  The appellant then observed, "Your lips are shaking.  It's a sign of the four dogs and you're a small one".  He was then still sitting on the ground but he suddenly rose up and pushed his face into the complainant's face until their noses were touching.  The complainant said he felt himself being pushed against the car.  He placed a hand on the appellant's right shoulder preparatory to arresting him for assault and, it would seem from what he said in his examination-in-chief, that his arm went over the back or shoulder of the appellant. 

At that the appellant picked him up and dumped him on the ground.  A struggle ensued, in the course of which the complainant's head was banged against a tree.  The struggle continued for some time, described by one of the witnesses as some minutes, with the participants wrestling each other on the ground. 

When it was over and the participants had exhausted themselves in the course of it, the appellant voluntarily entered the car and was driven to the police station.  An arrangement was made with him to come back later and he was interviewed some three days after the incident.  The complainant sustained injuries which are detailed in a medical report to which I will refer.

The appellant gave evidence at the trial.  There are differences between his testimony and that of the complainant, but they are not of much moment for present purposes, except in one respect.  The appellant said that the complainant punched him on the jaw before the struggle on the ground ensued.  As to that, the incident was witnessed by a Mr Benjamin, a computer technologist, who happened to be waiting at a nearby bus stop.  Essentially, he confirmed the complainant's evidence of the events, but it is right to say that there was a tree which partly obscured his vision of events.  He was asked about whether the complainant had punched the appellant and he said he was sure he had seen nothing like that.

The jury were, of course, entitled to accept the complainant's testimony and to reject that of the appellant.  The appellant's explanation of his walking backwards is that it relieved or released tension in his calf muscles, and that, when doing so, he usually brought his hands together and open in the manner of a lotus blossom.  That was, one might infer, the star dancing or jumping that had been seen by the constable.  His reference to "four dogs" or, as he later put it, "four horsemen", was that it was a physiological statement from Confucius, which was designed by him to settle the complainant down and that he, the appellant, had deliberately adopted a sitting position as an attitude of humility in order to avoid further provoking the complainant.

The jury were not bound to accept this explanation, especially in the light of Mr Benjamin's evidence.  There is, on that account, no legitimate basis for complaint that their verdict was perverse and against the evidence, or against the weight of the evidence, or unsafe or unsatisfactory, except possibly in the particular on which Mr Wrenn now relies in this appeal.  That is, that there is uncontradicted evidence from the medical practitioner which Mr Wrenn submits went to undermine the basis of the complainant's evidence and to render the jury verdict  unsatisfactory and incapable of being sustained on appeal.

The evidence in question was in the form of a report from a Dr McLellan who treated the complainant after the incident and reported that the knuckle of the complainant's left hand was injured.  This, it was said, corroborated the appellant's claim that the complainant had punched him in the face before the physical confrontation or struggle began.  In consequence, it was submitted that the complainant was not acting in the execution of his duty when the appellant assaulted or is supposed to have assaulted him.  This, as the trial Judge pointed out to the jury, made the question whether or not the complainant punched the appellant a central issue in the case; but, says the appellant, his Honour failed to direct the jury that the expert medical evidence was uncontested and that they could take it into account in reaching a conclusion on whether the punch had been delivered by the complainant police constable.

In fact, the medical evidence is by no means decisive of the point argued by the appellant, which is, as he claimed at the trial, that it was the complainant who had punched the appellant.   What Dr McLellan said was that the injury to the complainant's hand could have resulted from either one of two causes, that is, his falling with a closed fist or his striking something with a closed fist.  The complainant is right-handed and the injury was to his left hand or knuckle, which makes it less likely that he would have used it to throw a punch at the appellant, or so the jury might reasonably have concluded.

The fact is that on either version of the expert evidence about the cause of the injury, the fact that "the fist was clenched" does not signify, in the context of a struggle of some duration taking place on the ground, that the fist must have been clenched for the purpose of a blow or, even if it was, that it was not a blow that was landed or attempted in self-defence in the course of the wrestling on the ground.

In addition, there was no application for a redirection on this point and, in fact, I am not personally satisfied that the Judge would have been bound to direct the jury in matters of detail like that.  The trial took place within a comparatively short span of time and they would have been well aware of the evidence and the competing contentions on each side.  In addition, as I have already said, Mr Benjamin was emphatic that he saw no punch by the complainant and his observation of events at that time appears to me, on a reading of his evidence, to have been fairly detailed and clear.

The jury were entitled to be satisfied beyond reasonable doubt that there was no punch by the complainant, and the proper way of viewing it in this Court is simply to ask whether the evidence is such that they ought to have entertained such a reasonable doubt.

In my view, on the material in the record, there was no reason why the jury should not have arrived at the conclusion they did, having regard in particular to the extent to which Mr Benjamin's evidence corroborated or confirmed, in some fairly critical respects, the evidence of the police constable himself.  I would therefore dismiss the appeal against conviction.

WHITE J:  I agree

WILSON J:  For the reasons given by the presiding Judge, I, too, would dismiss the appeal against conviction. 

The medical evidence, although uncontradicted, was not necessarily inconsistent with the complainant's account.  The resolution of that matter was one for the jury. 

In so far as the appellant has complained of the failure of the trial Judge expressly to refer to this medical evidence in his summing-up, it seems to me that he adequately summarised the competing cases at pages 90 to 91 of the record and that he was not under an obligation to refer to all of the evidence. In my view the duty of a trial Judge, as explained by the majority of the High Court in RPS v. The Queen (2000) 199 CLR 620 at 637-8 was met in this case. I would dismiss the appeal.

McPHERSON JA:  The appeal against conviction is dismissed.

-----