Wilson (A Pseudonym) v Commissioner of Police [2022] QDC 269 (1 December 2022)

Last Updated: 1 December 2022

DISTRICT COURT OF QUEENSLAND

CITATION:	Wilson (A Pseudonym) v Commissioner of Police [2022] QDC 269
PARTIES:	DAVID WILSON (A PSEUDONYM) (Appellant)
	v
	COMMISSIONER OF POLICE (Respondent)
FILE NO/S:	BD 914/2022
DIVISION:	Appeals
DELIVERED ON:	1 December 2022
DELIVERED AT:	Brisbane
HEARING DATE:	21 November 2022
JUDGE:	Barlow KC, DCJ
ORDERS:	The appeal be allowed to the extent that the sentence imposed by the magistrate on 8 April 2022 be varied by: (a) setting aside the parole eligibility date of 20 May 2023; and (b) in lieu thereof, ordering that the appellant be eligible for parole on 1 December 2022. The appeal otherwise be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL– MISCARRIAGE OF JUSTICE – GENERALLY - the aggrieved was declared a hostile witness and the magistrate relied on unsworn prior inconsistent statements in the determination of facts – whether that course was improper or resulted in a miscarriage of justice - whether the conviction was unsupported by the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL– APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the appellant was sentenced to a cumulative sentence with parole eligibility half way through that sentence was excessive –whether the date for parole eligibility meant that the sentence imposed was manifestly excessive Domestic and Family Violence Protection Act 2012, s 177(2) Evidence Act 1977, s 101 Penalties and Sentences Act 1992, s 160F(2) R v Anderson [1995] 1 Qd R 49, considered R v Booth [1998] 1 Qd R 656, considered R v Hall [1986] 1 Qd R 462, applied R v Nguyen [1989] 2 Qd R 72, referred to R v Parkinson [1990] 1 Qd R 382, distinguished R v Siedofsky [1989] 1 Qd R 655, referred to
COUNSEL:	T S Carlos, for the appellant J E Marxson, for the respondent
SOLICITORS:	Legal Aid Queensland, for the appellant Commissioner of Police, for the respondent

Contents

Introduction

• [1] On 8 April 2022, the appellant was convicted in the Richlands Magistrates Court on one charge of contravention of a domestic violence order, contrary to s 177(2) of the Domestic and Family Violence Protection Act 2012 (DFV Act). The offence had occurred on 6 October 2021. He was sentenced to imprisonment for 6 months. That sentence was cumulative on a sentence of 2 years and 6 months that he was then serving in custody,^[1] the full time expiry of which will be on 10 February 2023. The magistrate ordered that he be eligible for parole after serving half of the cumulative sentence, namely on 10 May 2023.
• [2] The appellant now appeals his conviction on four grounds and also appeals the sentence on the ground that it is manifestly excessive. The Commissioner seeks to uphold the conviction, but concedes that the sentence is manifestly excessive. If I reject the appeal against conviction but I accept that concession, then I would allow the appeal in part and reconsider the sentence imposed on the appellant.
• [3] The grounds of the appeal against conviction, as stated in an amended notice of appeal filed by leave on the day of the appeal hearing, are:

(a) the verdict is unreasonable and cannot be supported having regard to the evidence;

(b) the prosecution acted improperly by calling a witness who was known to be hostile, for the purpose of the admission of a prior inconsistent statement which was inadmissible to prove the facts against the accused, resulting in a miscarriage of justice;

(c) the magistrate erred by having regard to inadmissible evidence contained within evidence tendered under s 101 of the Evidence Act 1977, resulting in a miscarriage of justice; and

(d) the appellant’s solicitor at the trial did not object to the admission of evidence under s 101 of the Evidence Act, resulting in a miscarriage of justice.

• [4] The appellant submitted, and the respondent agreed that, if I allow the appeal on the first ground, it will be unnecessary to consider the other grounds of appeal against his conviction.

Background

• [5] In order to understand the issues in the appeal, it is necessary to set out some background facts.
• [6] The appellant and the aggrieved were partners who lived together with the appellant’s 10 year old daughter and the couple’s two year old daughter.
• [7] On 22 February 2021, the Magistrates Court at Ipswich made a protection order under s 91 of the DFV Act, requiring the appellant to be of good behaviour toward the aggrieved and not to commit domestic violence against her. The appellant was also prohibited from approaching within 500 metres of the aggrieved’s home, or entering it, without the prior written consent of the aggrieved.^[2]
• [8] On 9 April 2021, the appellant was convicted in this Court on two counts of assault occasioning bodily harm (a domestic violence offence) that had occurred on 22 February and 1 March 2020 respectively. He was sentenced to 2 years and 6 months’ imprisonment, effective from the date he had been taken into custody (31 July 2020), with a court ordered parole release date of 9 April 2021. In accordance with that order, the appellant was released on parole that day.
• [9] On 6 October 2021, police responded to a call to 000 emergency services and attended at the aggrieved’s home. She reported that the appellant had assaulted her that evening. That report led to the appellant being charged with the offence the subject of this appeal. His parole under the earlier sentence was suspended on 8 October 2021 and he was taken into custody on 19 October 2021, with his full time release date extended by the 11 days between those two events, to 10 February 2023.
• [10] The charge was heard before the magistrate on 8 April 2022. On that day the aggrieved was called to give evidence. She denied that she had been assaulted by the appellant on 6 October 2021. At the prosecutor’s request, the magistrate gave the prosecutor leave to cross-examine her, putting to her the statements that she had made during the 000 call and to the officers who had attended at her home. The call had been recorded and the police attendance had been recorded on a body worn camera of one of the officers. Parts of the 000 recording and of the camera recording were put to the aggrieved and the two recordings were then tendered at the hearing. The aggrieved continued to deny that she had been assaulted and said that she had lied on the evening in question.

Ground 1 – verdict unreasonable and unsupported by evidence

• [11] The appellant’s counsel, Mr Carlos, submitted that the magistrate could not have been satisfied beyond reasonable doubt that the alleged assault occurred, because the evidence on which she relied comprised two unsworn out of court statements made by the aggrieved that she had comprehensively disavowed in her sworn evidence. To accept the truth of the prior statements meant that the magistrate did not accept the sworn evidence of the aggrieved. Therefore the aggrieved must have been considered to be an unreliable witness. An unsworn statement of an unreliable witness, even if suspected to be true, could not be accepted as true beyond reasonable doubt. This was particularly so where, as here, the prior statements were made at a time when the aggrieved had consumed alcohol and they were not corroborated by evidence of any injury to the aggrieved.
• [12] Mr Carlos relied on the following passage from the reasons of Macrossan CJ in R v Parkinson:^[3]

It will almost inevitably be the case (I find it hard to visualise an exception) that a conviction cannot safely be entered when the only real evidence to support it consists of a prior statement of a prosecution witness which is steadfastly contradicted and declared to be false by that witness on oath at the trial. It is one thing to entertain doubts about the veracity of a purported withdrawal of an earlier statement and to entertain suspicions that the earlier account may be the truthful one yet have been withdrawn from motives which may be detectable, but it is another thing to say that the repudiated version, usually unsupported by oath, can safely be taken, beyond reasonable doubt, to establish guilt. After all, the jury, although it might be entitled to be convinced of the truth of the suggestion that the witness in question has actually made the alleged prior statement it will nevertheless not be in a position to pass judgment on the credibility of the matters contained in the statement. It can never, for example, have the advantage of observing the demeanour of the witness at the time in the past when he made that statement and it is likely that when he made it he would not have been challenged as to its accuracy.

• [13] Mr Carlos submitted that the Chief Justice’s expressions apply here, so it was unsafe to rely on the unsworn prior statements. He sought to distinguish this case from others relied on by counsel for the respondent, Mr Marxson,^[4] on the basis that, in the first, there was other corroborating material (including the complainant’s demeanour and other statements) that made it safe to rely on the prior statement to police and, in the latter, there was no other corroborating evidence and the appellate court decided that the jury could not have been satisfied beyond reasonable doubt in the circumstances.
• [14] Mr Marxson submitted that there is no inflexible rule that an unsworn out of court statement denied in the witness’s sworn evidence should be considered unreliable and insufficient to support a conviction. Here, the aggrieved’s statements in the 000 call appeared genuine and, together with her demeanour and statements shown in the camera footage, were sufficient to enable the magistrate to conclude, beyond reasonable doubt, that she was telling the truth on those occasions. Also, the fact that she remains in a relationship with the appellant is a reason why she might not tell the truth in court. It was therefore open to the magistrate to accept the truth of her prior statements.
• [15] The evidence available to the magistrate in this case was not a prior written but unsworn statement of the aggrieved. In contrast with the position in R v Parkinson, here the magistrate was able, not only to hear the prior statements, but also to hear and (in the case of the camera footage) see and assess the demeanour of the aggrieved when she made the statements. I have listened to the 000 call and I have seen the camera footage. I consider that it was properly open to the magistrate to conclude, beyond reasonable doubt, that the aggrieved was telling the truth on the earlier occasions and her denial in evidence was untrue.
• [16] Therefore, I do not uphold ground 1 of the appeal.

Ground 2 – Improper to call hostile witness in order to make prior inconsistent statements admissible

• [17] The second ground of appeal is that the prosecutor acted improperly in calling the aggrieved when the prosecutor knew she would be hostile and would deny the truth of her statements on the occasion of the alleged offence: evidence that would enable the prosecutor to tender and rely on her prior inconsistent statements.
• [18] The respondent accepts that, before calling the aggrieved to give evidence, the prosecutor knew that it was likely (or inevitable) that she would deny the truth of what she had said on the relevant occasions. The prosecutor even indicated to the magistrate that “there may be an application [under] the Evidence Act, depending on what the witness says,” apparently meaning an application for leave to cross-examine her. The only other witness was the police officer, who effectively only identified the camera footage, which was then admitted into evidence.
• [19] The appellant submitted that, in those circumstances (where the prosecutor had even told the appellant’s solicitor, before the trial, that the aggrieved intended to give evidence denying that the appellant had assaulted her), the prosecutor’s conduct was improper. Although the appellant’s solicitor did not object to the evidence, the magistrate ought not have allowed the prior statements to be tendered in the circumstances. Alternatively, this court, knowing clearly that the prosecutor knew that the aggrieved would effectively be a hostile witness and that the only reason to call the police officer was to prove the camera footage, ought find that the conduct has led to a miscarriage of justice.
• [20] The appellant’s counsel relied in particular on the following passage from the reasons of de Jersey J in R v Hall, especially the underlined portion:^[5]

I for my part do not think that there should now be any rule to the effect that where a prosecutor expects a witness to prove adverse, he should not call the witness in the hope that his prior inconsistent statement might become evidence by means of ss. 17 or 18 and 101. I do not exclude the possibility that in particular circumstances it may be inappropriate for him to call the witness where he has a firm view that the witness will prove adverse, and where he would seek to prove, through the witness, only a prior statement admissible because of those sections. But I would not be prepared to fetter a prosecutor’s discretion by laying down any immutable rule about this matter. Prima facie, a Crown Prosecutor is entitled to adduce admissible evidence, and ss. 17 and 18 provide means by which evidence may become admissible. Section 101 has the further effect of making such statements admissible as evidence of the facts stated. The legislature has so provided, in respect of criminal as well as civil proceedings. A prosecutor clearly has a discretion not to adduce evidence which he considers to be “unfair” in the sense in which that word is used in s. 130 of the Evidence Act. I do not consider that the exercise of that discretion should be subject to a definitive limitation of the nature of that which I have just expressed. How a prosecutor should in a particular case exercise his discretion is primarily a matter for him, subject of course to the trial Judge’s overriding discretion earlier mentioned. If defence counsel doubts the appropriateness of the course being taken by the prosecutor, he should raise the matter with the trial Judge.

• [21] Mr Carlos submitted that, although prior inconsistent statements are admissible as evidence of the facts stated in them (because of ss 17 and 101 of the Evidence Act), the circumstances in this case were such the underlined proviso applied and it was, in this case, inappropriate for the prosecutor to call either the aggrieved or the police officer.
• [22] Mr Marxson submitted that there is nothing unusual or particular in this case that would make it inappropriate or improper for the prosecutor to call the aggrieved and the police officer. He agreed that it would be improper, and may give rise to a miscarriage of justice, for a prosecutor to call a witness known to be hostile for the sole purpose of putting into evidence a prior inconsistent statement that is not admissible as evidence of the truth of the matters asserted, but that was not the case here. A written or oral statement is admissible to prove the facts stated in it, under s 101. It is up to the prosecutor to decide whether or not to call a witness known or suspected to be hostile. As McPherson J said in R v Hall:^[6]

It is difficult to see how it can be said to be “improper” to adopt a course leading to the reception of evidence that is affirmatively declared by statute to be admissible.

• [23] I agree with the submissions of counsel for the respondent. The evidence of the prior statements made by the aggrieved was admissible as evidence of the facts stated in them, under s 101. It was then a matter for the magistrate to give that evidence the weight she considered appropriate, having regard to all the circumstances from which an inference could be drawn as to their accuracy or otherwise: s 102.
• [24] In my view, the prosecutor did not act improperly or inappropriately in calling the aggrieved and then calling the police officer to prove the prior statements of the aggrieved. Ground 2 therefore fails.

Ground 3 – The magistrate relied on inadmissible statements by the aggrieved and her step-daughter that were made in the 000 call and the camera footage.

• [25] The third ground of appeal is that, in making her decision (and particularly in deciding whether to accept the truth of the statements by the aggrieved about what had happened), the magistrate relied, not only on the aggrieved’s statements, but also on statements made by other people and the overall circumstances (including that the aggrieved apparently understood that her complaint to the police may lead to the appellant being placed into custody, given that he was then on parole). The statements of other people and the circumstances of the call, as well as the aggrieved’s understanding of the consequences for the appellant, were inadmissible and irrelevant. Therefore, the verdict should be set aside.
• [26] The 000 call was made by the appellant’s daughter, who was then 10 years old. She gave the operator the address, then the appellant took over the call. He gave the operator a version that the aggrieved was drunk and had attacked him. While he was doing so, the aggrieved could be heard screaming and shouting. She shouted out that he had attacked her and had smashed her head into the ground. The call was then terminated.
• [27] In written submissions, Mr Carlos submitted that the 000 call contained inadmissible statements by the child and by the appellant. However, apart from saying that the call was distressing and referring to the statement by the aggrieved, the magistrate did not appear to take into account the balance of the call. In his address, Mr Carlos submitted that the references to the other parts of the call were more by way of background and he appeared to resile from any complaint about the call. With respect, he was correct to do so, as nothing the child or the appellant said could possibly have been harmful to the appellant’s case. They were also part of the circumstances in which the aggrieved made her statement about the relevant event.
• [28] Early in the course of her interview recorded in the camera footage, the appellant said to the police officers, “So he’s on parole. So this is going to get him locked up, isn’t it?” The magistrate appears to have taken this comment into account as one of the reasons why the aggrieved appeared to be telling the truth. In this respect, her Honour referred to the aggrieved’s “resigned and realistic composure and understanding about what it might mean for the defendant.” Mr Carlos submitted that that statement by the aggrieved was inadmissible and, by having regard to the state of mind of the aggrieved as to the appellant’s parole status in assessing the weight to be given to her statements about the events on that occasion, the magistrate erred.
• [29] Mr Marxson submitted that the reference to the aggrieved’s understanding was simply acknowledging that the aggrieved was conscious of the gravity of the potential consequences for the appellant of the aggrieved’s complaint. It was part of the background to the magistrate’s reasons for accepting her version given on that occasion. The magistrate did not take into account inadmissible evidence.
• [30] Obviously, if the trial had been before a jury, that sentence should not have been played to the jury, as it indicated a prior conviction and that the defendant was on parole. But there was no need to edit it from the camera footage where it was only to be played to a magistrate, who is no doubt regularly required to ignore prejudicial information about an accused. But here the magistrate did not take it into account in that sort of prejudicial manner. Rather, she was referring to the comment as part of assessing the aggrieved’s demeanour at the time and the likelihood of the truth of what she was saying. Put another way, the magistrate did not refer to the comment as evidence of the truth of what the aggrieved was saying about the consequences for the appellant and the fact that he was on parole, but rather as evidence of her belief and her state of mind overall: a state of mind that her Honour needed properly to assess in the course of determining whether or not to accept the version of relevant events that she gave to the police on that occasion.
• [31] In my view, the magistrate did not take into account any inadmissible evidence in her determination of the facts. She weighed up the aggrieved’s conflicting versions, made in their respective contexts, and preferred the versions given contemporaneously with or shortly after the events in issue.

Ground 4 – Failure of appellant’s solicitor to object to the admission of the prior statements

• [32] The fourth ground of appeal is that the appellant’s counsel did not object to the admission of the recordings or to the inadmissible parts of the evidence in the recordings containing the prior statements of the aggrieved. As I understand the submission, it is that that failure has led to a miscarriage of justice because the evidence should have been excluded as overly prejudicial to the appellant. If the objection had been made and the evidence had been excluded, then there would have been no evidence capable of proving the charge.
• [33] This ground was relied on only if grounds 1 and 3 failed on the ground that no objection was taken to the admissibility of the evidence.^[7] Those grounds have in fact failed for other reasons, so there is no need to consider this ground.

Ground 5 – Sentence manifestly excessive

• [34] The magistrate reduced the sentence from 12 months to 6 months to take into account that the appellant had been in custody for about 6 months as a consequence of committing this offence. As the offence had been committed while the appellant was on parole for other offences, it was necessary that the sentence for this offence be cumulative on the existing sentence. Her Honour fixed the date on which he would be eligible for parole at the half way mark of that sentence: that is, after serving 3 months of the cumulative sentence.
• [35] The appellant concedes that the cumulative sentence of 6 months was not itself excessive, but contends that the magistrate did not take into account the time already served in setting the date of eligibility for parole.
• [36] The appellant submits that the effect of the sentence is that he will be required to serve at least 18 months and 21 days of continuous imprisonment from the date of being placed into custody before he becomes eligible for parole. While that period is slightly more than one half of the total period of imprisonment of 3 years under all sentences, it is in fact more than 80% of continuous imprisonment from the date of his original sentence to the full time expiry of that period.^[8] The proper approach would have been to reduce the non-parole period by about the same number of days as he had already served and that were taken into account in reducing the head sentence. That was an error that did not correctly apply the principle of totality.
• [37] The appellant submitted that a parole eligibility date 171 days before the half way mark of the cumulative sentence (that is, 20 November 2022) would be appropriate.
• [38] The respondent conceded (correctly, with respect) that the sentence was manifestly excessive having regard to the parole eligibility date fixed. Counsel agreed that that date should be about now.
• [39] I agree that a head sentence of six months’ imprisonment was and remains appropriate, taking into account all the factors and the time that the appellant had served when the original sentence was imposed. However, the magistrate did fail to take into account the time already served in imposing a parole eligibility date. Also, she appears to have overlooked that a parole date (whether release or eligibility) always relates to the overall period of incarceration, not to individual sentences.^[9]
• [40] Both counsel submitted that it would be open to me now to suspend the sentence wholly. That would leave it for the Parole Board to determine whether to grant the appellant parole, but he would not in any circumstances (subject to complying with the conditions of suspension of course) be imprisoned for more than the original sentence. Suspending the sentence would mean that it is not necessary to give a parole eligibility date because his parole would not then be cancelled under s 209 of the Corrective Services Act 2006 (because, as I understood the submissions, having suspended the sentence, the appellant will not have been sentenced to another period of imprisonment).
• [41] I do not necessarily consider that these submissions are correct, as a sentence of imprisonment may be a sentence of imprisonment, whether suspended or not.^[10] Furthermore, it is not clear to me that the court has power to suspend a sentence that is not yet due to commence. But it is unnecessary for me to determine these issues, as I consider that the appropriate sentence would have been to give a parole eligibility date of 20 November 2022 and, that date now having passed only shortly before the delivery of these reasons, an immediate eligibility date is now appropriate.
• [42] I shall therefore vary the sentence imposed by the magistrate, by ordering that the appellant be eligible for parole today.

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^[1] He had originally been released on parole on 9 April 2021, but that parole was suspended on 8 October 2021 and he has been in custody under that sentence since 19 October 2021.

^[2] The latter condition is not relevant to this appeal, as the aggrieved gave the appellant written permission to live in her home.

^[3] [1990] 1 Qd R 382, 384.

^[4] R v Siedofsky [1989] 1 Qd R 655; R v Nguyen [1989] 2 Qd R 72.

^[5] [1986] 1 Qd R 462, 473-474. Underlining in the appellant’s written submission.

^[6] [1986] 1 Qd R 462, 465.

^[7] Appellant’s outline of submissions, [98].

^[8] Appellant’s outline of submissions, [126].

^[9] Penalties and Sentences Act 1992, s160F(2).

^[10] This seems to be undecided, two members of the Court of Appeal reaching different conclusions in R v Anderson [1995] 1 Qd R 49, per McPherson JA, 53; per Mackenzie J, 54. The Court later declined to determine the issue, although noting the difference of opinions, in R v Booth [1998] 1 Qd R 656, 657.