R v Lawrence

Case [2017] QCA 106

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lawrence [2017] QCA 106

PARTIES:

R
v
LAWRENCE, Michael Jason
(appellant/applicant)

FILE NO/S:

CA No 301 of 2016
CA No 21 of 2017
DC No 166 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Rockhampton – Date of Conviction & Sentence: 14 October 2016

DELIVERED ON:

Orders delivered ex tempore 19 May 2017
Reasons delivered 30 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

10 March 2017

JUDGES:

Fraser and Philippides JJA and Boddice J
Joint reasons for judgment of Fraser JA and Boddice J; separate reasons of Philippides JA, concurring as to the orders made

ORDERS:

Delivered ex tempore on 19 May 2017:

1.   The appeal against conviction is dismissed.

2.   An extension of time in which to seek leave to appeal the sentence is granted.

3.   Leave to appeal against the sentence is granted.

4.   The sentence imposed is altered to the extent that the word “eligibility” is deleted and the word “release” inserted in lieu thereof.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted after trial by jury of one count of serious assault – where the appellant spat on a police officer – where the appellant had been acting violently and verbally abused ambulance and police officers – where the complainant officer, two additional police officers and one ambulance officer gave evidence – where the only evidence of the appellant spitting came from the complainant officer – whether there were significant discrepancies in the evidence – whether on the evidence as a whole it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted after trial of one count of serious assault – where the appellant spat on a police officer – where the appellant submitted that the police officer was not acting in the execution of his duty as he had consented to a fight with the appellant – where the trial judge directed the jury as to the absence of consent being an element of an assault – where the trial judge directed that the jury must be satisfied beyond reasonable doubt that the complainant officer was acting lawfully in the execution of his duty – where the trial judge did not specifically direct the jury as to consent in relation to whether the complainant officer was acting in the execution of his duty – whether the trial judge erred in not directing the jury on consent

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was restrained on the ground during an altercation with police – where a police officer gave evidence that the appellant was not arrested but…

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Details
AGLC
R v Lawrence [2017] QCA 106
Case
[2017] QCA 106
Decision Date

CaseChat Overview and Summary

The case of R v Lawrence involved an appeal against conviction and sentence by the appellant, who had been convicted of one count of serious assault after trial by jury. The conviction arose from an incident where the appellant spat on a police officer during an altercation. The evidence presented at trial included testimonies from the complainant officer, two additional police officers, and one ambulance officer. The appellant did not provide any evidence in his defence. The appeal against conviction raised issues concerning the reasonableness of the verdict, potential misdirections by the trial judge, and the adequacy of the evidence to support the conviction. The appeal against sentence focused on the manner in which the parole eligibility date was set.

The court had to determine whether the evidence was sufficient to sustain the conviction, whether the trial judge appropriately directed the jury on the concept of consent in the context of the alleged assault, and whether the trial judge correctly instructed the jury on the application of section 365 of the Police Powers and Responsibilities Act 2000 (Qld). Additionally, the court examined whether the sentencing judge erred in setting a parole eligibility date instead of a parole release date. The court assessed the evidence presented, including the testimonies of the officers and the arguments from both parties, to determine the validity of the conviction and the appropriateness of the sentence.

The court found that the jury was entitled to believe the complainant officer's account of the events, particularly given the appellant's aggressive behaviour and the limited opportunity for other officers to observe the alleged spitting. The court held that the trial judge's directions to the jury were sufficient and did not result in a miscarriage of justice. Regarding the sentence, the court accepted that the imposition of a parole eligibility date was incorrect and should have been a parole release date. The appeal against conviction was dismissed, but the court granted an extension of time to seek leave to appeal the sentence and allowed the appeal against the sentence, altering the sentence by changing "eligibility" to "release".

ORDERS:
1. The appeal against conviction is dismissed.
2. An extension of time in which to seek leave to appeal the sentence is granted.
3. Leave to appeal against the sentence is granted.
4. The sentence imposed is altered to the extent that the word “eligibility” is deleted and the word “release” inserted in lieu thereof.

Orders

Orders of the court

Delivered ex tempore on 19 May 2017:

1. The appeal against conviction is dismissed.

2. An extension of time in which to seek leave to appeal the sentence is granted.

3. Leave to appeal against the sentence is granted.

4. The sentence imposed is altered to the extent that the word “eligibility” is deleted and the word “release” inserted in lieu thereof.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The case against the appellant was that at some point before the appellant was handcuffed, the appellant spat on the complainant officer. Once he was effectively restrained, the appellant was transported by ambulance to the Biloela Hospital. The next day, after he was released from hospital, he was arrested for the offence of which he was convicted.The evidence The appellant’s submissions contained a recital of the evidence, none of which was disputed by the respondent who referred to some additional uncontroversial evidence in its submissions. The appellant neither gave nor called any evidence in his defence.Mr Eaton The ambulance officer, Mr Eaton, gave evidence that the call to the ambulance was coded “drug overdose”. When he and a fellow officer attended, the woman who had called the ambulance gave him a packet which contained antidepressant medication. Mr Eaton went to the back of the house where the appellant was sitting down. The appellant was agitated upon seeing them. He got up immediately and walked towards the ambulance officers “very, very quickly”. This startled Mr Eaton and caused him to drop his equipment and step back. Once the ambulance officers had moved back, the appellant walked past to the front of the property. The appellant was very argumentative. Police officers also arrived at the property. The ambulance officers became concerned about the appellant’s state of agitation and made a decision to administer a drug to calm the appellant and assist in managing him. After initial resistance, the appellant complied and was injected. Mr Eaton gave evidence that, after administering the medication (by intramuscular injection to the left upper arm), he retracted the needle and “moved away hastily” towards the ambulance. He did not recall the appellant saying anything to him or making any action toward him after the injection. Mr Eaton returned to the ambulance to draw up a second dosage. Mr Eaton heard a scuffle and yelling going on behind him, but did not recall any of the words that were said. He walked back to find the appellant handcuffed on the ground. There was a five minute time interval between the first injection and his return with the second injection. The appellant was placed onto a stretcher. He had an insignificant graze on his forehead. He had become calmer and compliant. Mr Eaton could not say whether that was because of the effect of the drug or being handcuffed. In any event, the second injection was not administered and the appellant was put inside the ambulance and transported to hospital. According to Mr Eaton, the appellant became more agitated when the police arrived. He and the police officers were trying to assure the appellant that they were all trying to help him. Mr Eaton’s evidence was that the police officers were trying to calm the situation. Mr Eaton recalled that the appellant did speak to him but he could not recall specifically what was said.Officer Fitzpatrick Officer Fitzpatrick’s evidence was that when he arrived, the appellant was standing in the middle of the road, looking disorientated and was swaying. He was obstructing traffic, with cars swerving to avoid him. Officer Fitzpatrick went towards him and told him to get off the road. It was clear he wanted to escape from police. The appellant was argumentative and confrontational and had to be physically removed from the roadway.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It was submitted that, in the circumstances, the evidence presented, particularly as it related to the threat posed to Mr Eaton, was such that it was insufficient to sustain a conviction.Consideration It is correct that Mr Eaton did not give evidence regarding the “flinching incident” as described by the complainant officer, however, Mr Eaton’s evidence was quite short and focused on the administration of the injection. His evidence regarding his interaction with the appellant was limited. Even so, the complainant officer’s evidence received support from the evidence of Officer Houseman who described the relevant move to Mr Eaton as “aggressive”:“So I watched as the [appellant] did present his arm and the paramedic administered the injection, and then as the paramedic withdrew the injection from the [appellant’s] arm, I noticed that the [appellant] flinched towards the paramedic, and if I could describe that, it would be the top half of his body pivoted and his shoulder came forward, and I took that to be a very aggressive move, and the result was that the paramedic flinched backwards.” Further, as the respondent submitted, the jury did not need to find that Mr Eaton was in fact threatened by a feigned punch. What the jury needed to determine was whether or not, at the time of the assault, the complainant officer was acting in the execution of his duty. In that regard, the trial judge drew the jury’s attention to the sequence of events. But, as the respondent argued, the jury was equally entitled to reason and be satisfied that the complainant officer’s perspective was that the appellant was aggressive which required his intervention. The evidence as to the circumstances of the entire event lead, as the respondent submitted, to the irresistible conclusion that the appellant was uncooperative, aggressive and agitated. The complainant officer’s intervention could not, in those circumstances, result in his acting unlawfully. As to the contention that the jury could not have found the spitting to have occurred in circumstances where the only evidence of that came from the complainant officer, the respondent submitted that it would be quite unlikely that the other officers would have been able to observe the appellant spit at the complainant officer. That submission is persuasive, particularly given that they did not give evidence of completely observing the whole event unfolding between the appellant and the complainant officer. Additionally, I accept the respondent’s argument that, while there may be discrepancies in the evidence as to the circumstances of the complainant officer’s utterance regarding the spit, the jury were entitled to view the statement as reflecting a spontaneity inconsistent with fabrication and thus having credibility. They were entitled also to have strong regard to the utterance and its content to determine the veracity of the spit allegation by the complainant officer. This was a case where the jury’s advantage in seeing and hearing the evidence was particularly significant. However, I am satisfied on my own assessment of the evidence as a whole that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.Ground 2 - The trial judge erred by failing to direct upon consent to fightAppellant’s submissions