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DISTRICT COURT OF QUEENSLAND
HKY v Queensland Police Service  QDC 218
QUEENSLAND POLICE SERVICE
Section 222 Appeal
Magistrates Court, Ipswich
6 November 2019
11 October 2019
Horneman-Wren SC DCJ
MAGISTRATES – APPEAL AGAINST VERDICT – s 222 JUSTICES ACT 1886 – where the appellant was found guilty after trial of one count of Assault Occasioning Bodily Harm – where the appellant appeals on the basis that learned magistrate erred in finding the appellant guilty – whether the verdict was unsafe and unsound having regard to the evidence – whether the magistrate erred by imposing an onus on the defendant to explain the complainant’s injury – whether the magistrate erred by imposing an onus on the defendant to observe the complainant’s injury – whether the magistrate erred by finding that the failure to explain the injury to the complainant and/or observe it was relevant and/or decisive in determining the cause of the injury – whether the magistrate erred insofar as his consideration that the defendant’s evidence lacked reliability and/or should not be accepted – whether the magistrate erred in finding that an essential element of the offence had been proved beyond reasonable doubt, being that bodily harm had occurred
Allesch v Maunz (2000) 203 CLR 172;
Brown v Blake  WASCA 132;
CDJ v VAJ (1998) 197 CLR 172;
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194;
Cramer v R, (unreported); CCA Supreme Court of Western Australia; Library No. 98062;
Fox v Percy (2003) 214 CLR 118;
McIntyre v R (2009) 198 ACrim R 549;
R v Cameron  2 NSWLR 66;
R v De Marchi  VR 619;
Robinson v Smith  WASC 99;
Scatchard v R (1987) 27 ACrim R 136;
Smejlis v Matthews  WASCA 158;
Stevenson v Yass  2 Qd R 150;
Warren v Coombes (1979) 142 CLR 531;
Wayne v R (1992) 62 ACrim R 1
Justices Act 1886;
Criminal Code 1899
G J Seaholme for the appellant
J Beckman (Legal Officer) for the respondent
Power Legal for the appellant
Office of the Director of Public Prosecutions for the respondent
- On 1 May 2019 the appellant, HKY, was summarily tried in the Ipswich Magistrates Court on a charge that on 31 January 2018 at Ripley, he unlawfully assaulted KAK and did her bodily harm, and the offence was a domestic violence offence. He was convicted and the offence was found to be a domestic violence offence. The appellant has appealed his conviction pursuant to s 222 of the Justices Act 1886.
Timing of the appeal
- The appellant has not been sentenced. A sentencing hearing is currently listed for 7 November 2019. It was not immediately apparent as to how the appeal against conviction came to be heard prior to the sentencing proceeding. It seems that the sentencing itself was delayed to allow for other matters concerning the appellant to be dealt with.
- The respondent takes no point as to the appeal against conviction proceeding before the proceedings below were complete. It should be observed, however, that it is generally undesirable for the criminal process to be fragmented by appeals against conviction being heard before sentence is passed and the proceedings in the Magistrates Court completed. In R v De Marchi it was observed:
“Ordinarily, therefore, all considerations of convenience point to the Court entertaining an application for leave to appeal against conviction only after sentence has been passed. But there may be exceptional cases where an applicant who challenges the sufficiency of the evidence to warrant a conviction is held in custody pending sentence for a substantial time and entertains a feeling of injustice at being so held when he contends and desires to contend to [the appellate court] that the conviction was wrong in law in that there was no case to go to the jury or that the case should have been withdrawn from the jury.”
The nature of the appeal
- The nature of an appeal under s 222 of the Justices Act 1886, being an appeal by way of re-hearing, is that the appellate powers of the court are to be exercised only for correction of error. The court is required to conduct a real review of the trial and the learned magistrate’s reasons. In doing so, the court must give due deference to and attach a good deal of weight to, the views of the learned magistrate; but it remains for this court to draw its own conclusions on the evidence.
- In Fox v Percy at , Gleeson CJ, Gummow and Kirby JJ observed:
“If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.”
- Further on, at , Their Honours said:
“But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law.”
- It is of note that in this case the learned magistrate noted in his reasons that he did not find the demeanour of the witness to be particularly relevant or helpful. Therefore, any advantage enjoyed by the court of first instance is diminished.
Grounds of appeal
- By this notice of appeal the appellant raises the following grounds:
- (a)The verdict was unsafe and unsound having regard to the evidence;
- (b)The judge [sic] erred by imposing an onus on the defendant to explain the complainant’s injury;
- (c)The judge [sic] erred by imposing an onus on the defendant to observe the complainant’s injury;
- (d)The judge [sic] erred by finding that the failure to explain the injury to the complainant and/or observe it was relevant and/or decisive in determining the cause of the injury;
- (e)The judge [sic] erred insofar as his consideration that the defendant’s evidence lacked reliability and/or should not be accepted (as to the observations of the injury of the complainant) in circumstances where the basis of same was that the defendant had not observed the injury the subject of the charge, where there was no evidence he was in consistent [sic] and/or constant observation of the complainant at or about the time of the alleged injury or at all.
- In supplementary written submissions the appellant sought to raise as a further ground of appeal the following:
- (a)The learned magistrate erred in finding that an essential element of the offence had been proved beyond reasonable doubt, being that bodily harm had occurred.
- At the hearing of the appeal counsel for the appellant whilst not abandoning the grounds of appeal raised in the notice of appeal did not advance them vigorously, relying on written submissions previously filed in respect of them, and focused upon the further ground raised.
The proceedings below
- The complainant gave evidence that the appellant was her ex-partner of 5 years. On the day of the alleged offence she and the appellant had been arguing in the lounge room. He had yelled at her saying, “Shut the fuck up, you pathetic slut”. She was holding one of their children on her hip and walked to the bedroom where she sat on the bed. She said this was when the appellant attacked her.
- Her evidence of the attack was as follows:
“He went and shoved me onto the bed. My shoulders hit the bed head. Felt instant pain. I was scared at that point, and then he just laid his hands on my neck and he wouldn’t let go. I was terrified that I could have died.
Well, what happened next was, I could lose– I was losing breath and I tried to get him off me, so the only way I could was to kick him off. So I tried to kick him off and yelling at him to ‘get the fuck off me’. And that’s when he got off me and he just left the scratch marks on my neck, and that’s– I grabbed my phone, I tried the car keys and I said, ‘I’m leaving. I want to go’, and he said, ‘No. I’m taking the car keys’. And you refused me to go. I wanted to go to my mum’s, which was an hour and a half away but he refused that. I couldn’t call or text anyone without him looking over my phone or trying to look over to make sure I’m not calling the police or talking to anyone about it or talking to my mum about it. And then when things sort of calmed down, or he left me alone, that’s when I took the photo. I did try to take other photos but they didn’t turn out okay.”
- The complainant gave evidence that – she had left the relationship on 15 or 16 May 2018 stating that she managed to “escape”.
- The appellant’s case as put to the complainant was that he had never strangled her. As to the photograph, it was put to her that it was not related to anything the appellant did to her. It was put to her that her allegations were simply untrue.
- Earlier, a motive for her to lie in her complaint had been put to her. That motive was that she had been able to use the proceedings so that their sons were not able to spend time with their father. She denied that motive.
- The police officer to whom the complainant made her formal complaint was also called in the prosecution case. He said that the complaint had been made on 17 May 2018. In the course of the complaint the complainant had shown him some photographs on her mobile phone in which there were numerous injuries to her, being some scratch marks and redness to her neck with bruising and swelling and what looked like bleeding under the skin. He took a statement from her. He obtained copies of those photographs, he said by downloading them onto the computer system, however agreed that it was possible that she may have emailed the photographs to him. He agreed that he did not really recall how he got the photographs.
- He confirmed that there was a date of 31 January on the photographs. He agreed that no investigation was carried out into the accuracy of that date stamp.
- The appellant gave evidence. He said that he had no recollection of an incident on 31 January 2018, saying that he and the complainant “argued all the time so who knows what date that was”.
- He denied ever having committed an act of physical violence against the complainant on 31 January 2018 or otherwise. He had never placed a hand around her throat, strangled her, scratched or otherwise caused an injury to her neck.
- He stated that their relationship came to an end ‘probably’ on 14 May 2018. He said that on that occasion they had been arguing. He had stepped out to the front of the house to cool off and when he came back in the complainant was holding a fingernail which she had ripped off. The next thing he knew police were at the door. He says that she was taken to hospital and that he stayed at the house with the boys. She messaged him the following day wanting him to pick her up from Springfield Lakes where she had stayed. He said that on 14 May his mother came to their place and she spoke to them about what they were going to do with their relationship. They both said that it was going nowhere and “this is it”. He said that he was just as concerned about what they were going to do with their two boys and when he would see them. They discussed a few scenarios with his mother because he wasn’t working full-time at the time. He said that they agreed to share parenting of their sons whereby he was to have them on the weekends and she was to have them during the week. He then packed his things and left at the suggestion of his mother. He packed enough clothes for a few days but the following day his mother had to return to the house to collect his resumé as he had a job interview.
- As to any discussion which they had as to how he would move out, his evidence was that he had said that he would find a new place to live because if the complainant was going to have the boys full-time during the week then she needed somewhere. He said that he could sleep on the couch until he found somewhere but later in the week he received text messages from her saying that she would leave and asking whether he wanted the house and that she would be taking her name off the lease. He said “and I ended up breaking the lease anyway”.
- He said that notwithstanding their agreement concerning the boys, he had not seen them since 15 May 2018.
- In cross-examination he agreed that the mark on the complainant’s neck as depicted in the photograph was fairly obvious, but stated that he had never seen that mark on her. He agreed that had it been there he would have seen it easily. He said that he had seen a “hickey” on her neck in the past, but no scratch marks like that.
- He agreed that when shown a photograph by police he had suggested that it was just a hickey. He agreed that what was depicted in exhibit 2 did not look like a hickey, but explained that the first photo he was shown was black and white and, in that, it looked like a hickey.
- The appellant also called evidence from his mother. Her evidence was that on 14 May 2018 she attended the home of the appellant and the complainant and asked them both if they felt that they should continue their relationship. She said that they both decided that they should not so they “touched briefly on KAK having the children during the week and staying at the house and HKY having the children on the weekends”. She said that on that day she was basically there as a mediator. She said that she told her son to pack a bag and leave that afternoon and as far as she was aware he was just going to a friend’s house and that the complainant would be at the house.
The submissions below
- Counsel for the appellant submitted that it was telling that the complainant continued to reside with the appellant for some months but made no complaint. He suggested, consistently with the motive to lie put to the complainant, that any allegations such as those which she had made were likely to strengthen her position in any family law proceedings and to weaken the position of the appellant.
- Counsel submitted that there was no forensic evidence linking the photograph to the time and date upon which it was taken. Although the photograph bore a date, the police officer had said that there had been no examination conducted to determine whether the date was accurate or not. Counsel noted that the date on the photograph did not include a year. It was then submitted that whether or not it was taken on that date was not a matter that reflected on who was responsible for the injury, which was the key to the appellant’s case.
- Counsel submitted:
“Well, your Honour, in my submission, it must flow that if my client didn’t cause it then however it was caused, it wasn’t by him. My client can’t run a positive case as to how the injury was caused unless he knows the answer and your Honour has heard him give evidence that he was not responsible for it and that he confirmed in cross-examination by my friend that he had not seen that injury on her. So he couldn’t run a positive case in respect of how she obtained the injury in the photograph or if she in fact did or did not.”
- It was further submitted that even if the learned magistrate found the complainant to be a compelling witness of truth, he would likewise find the appellant to be so, drawing attention to those features of his evidence upon which his Honour would base that conclusion. It was submitted that his Honour could not simply choose between the two witnesses and he would, therefore, always be left with a doubt as to the appellant’s guilt.
- Counsel for the appellant also addressed on aspects of the complainant’s evidence which he submitted demonstrated inconsistencies or which the magistrate may find lacked credibility, but that in any event his Honour would be left with a reasonable doubt.
- In the course of addresses, the learned magistrate raised with the appellant’s counsel that as the appellant’s evidence was that he had at no stage caused or ever seen an injury of the nature depicted in the photograph that it must follow that the injury occurred between 14 May (being the day the appellant left the residence) and 17 May (being the date she reported the matter to police). The appellant’s counsel’s response was that the ‘genesis’ of the photograph was not something that the court could establish on the state of the evidence. He submitted that the evidence was simply that the complainant and the appellant had been in a relationship for 5 years, not that they had lived together for 5 years or that there were not occasions when they spent time apart.
- Counsel emphasised that his client would not know the circumstances of the creation of the photograph and could not run a positive case. The learned magistrate observed that the appellant had no onus to establish anything.
- When asked by the magistrate what conclusion he was asking his Honour to draw about the photograph, counsel for the appellant submitted:
“Your Honour, in my submission, the conclusion that your Honour can draw is if the photograph is of an injury to the neck of the complainant, it’s not one that my client caused.”
- In addressing the learned magistrate’s question to the appellant’s counsel on that issue, the prosecutor submitted that it would be a stretch for his Honour to conclude that the photograph had been taken on 31 January in the years preceding. The prosecutor said:
“As your Honour’s indicated, they were in a relationship for 5 years, and that injury certainly– I obviously can’t give any medical evidence, but it doesn’t appear on the face of it to be one which would heal up in a very quick period of time.”
- The magistrate then said:
“Well you can’t make an presumptions [sic] about that.”
The magistrate’s decision
- At the commencement of his reasons, the learned magistrate, having addressed the charge, the burden and standard of proof and that any evidence called in the defence case, if accepted, was to be considered in the determination of the ultimate question, but that the verdict was not to be reached by selecting one version as preferable to the competing version, said that the only question was whether the prosecution had established each element of the offence.
- The magistrate recited the complainant’s evidence, including that in relation to her taking the photograph of the injury she claimed to have sustained and said:
“I’m satisfied beyond reasonable doubt the injury itself amounts to bodily harm as defined in the Criminal Code; that issue was not really in contest.”
- His Honour went on further to summarise the evidence of the complainant and that of the appellant. At one point he observed:
“There’s been no medical evidence given in the trial about the injury. And the defendant has said he does not know how or when, if that is the complainant, that injury was received. The only evidence with respect to this photograph essentially, is that which comes from the complainant, which says that she took the photograph at a time later on the 31st of January, once things had ‘calmed down’.”
- The competing submissions were also summarised, including that of the prosecutor that the photograph was strongly supportive evidence of the complainant’s claim. His Honour then said:
“The defendant has no obligation or onus to establish how or when the injury to the complainant happened. I accept that Exhibit 2 however, depicts an injury to the complainant’s neck and that the photograph was taken on the 31st of January 2018. The lack of forensic or technical evidence establishing the accuracy of the date stamp does not prove that it was inaccurate. The only real evidence about that point is the complainant’s evidence.”
- His Honour identified that the appellant’s evidence and submissions necessarily suggested that the complainant had manufactured a complaint, with the suggested motive to avoid or restrict his access to the children. Later, his Honour continued:
“The defendant, as I have said earlier, is not bound to prove anything and in this case, says he is essentially hamstrung because he cannot explain the injury. The injury depicted is very noticeable and appears fresh. There is no medical evidence about it, however. Unless it occurred and was photographed a very long time before the 31st of January 2018, his evidence that he’d never seen such an injury, in my view, is unacceptable. The only evidence as to when it occurred comes from the complainant. I accept the evidence of the complainant and the cause and timing of the injury and reject the denials of the defendant in this regard.”
Submissions on the appeal
The primary grounds
(i) Grounds 2, 3, 4 and 5
- The appellant’s written submissions contend that even though the learned magistrate noted that there was no onus upon him, he nonetheless placed such an onus on the applicant to observe the injury, to explain it, and to explain particularly why it was that he had not observed it. The effect of this, it was submitted, was “not to place an onus upon the appellant to prove something which was neither an element of the offence or any defence, but rather to be an observant individual 14 months earlier”. This, together with what was said to be his Honour’s focus upon the relationship between the parties and that given that they were living together there must have been an opportunity to observe the injury, placed the appellant in the position that a failure to observe the injury led to his conviction. This occurred, it was submitted, in the absence of any evidence from the complainant as to: the duration over which the injury was observable; whether she applied makeup or ointment; whether it was covered with a band aid or something similar; whether or not she wore scarves; or whether she attempted to hide the injury. Further, it was submitted that there was no evidence that established whether or not the injury was easily observable for any particular period. Further, there was no evidence other than that they were living together, but that it was known that the complainant was working part time and was in and out of the home. It was submitted that on that evidence it was not possible to know whether the complainant was regularly viewed by the appellant at the time immediately surrounding the charge date.
- The appellant repeated his submission below that the court was left with competing versions, repeating also matters which were said to reflect poorly on the complainant’s credit and reliability.
- As to the complainant’s credibility, it was contended that it was not until she was under pressure in the witness box that she began to make allegations of the appellant being a drug user, notwithstanding having made two earlier statements to police. No mention was made to police when she gave her statement to them that the appellant had threatened to kill her (a fact which she accepted) but that when cross-examined about that she said that she had remembered it:
“Not later on, but probably when I was like, going through – when I was talking to people, probably like six or so months, after the thing, when I was recurring the event, trying to think what the best thing and like, trying to reoccur and like, trying to rethink of what happened in the event of the time.”
- She also said her memory of the day improved with time.
- The appellant also pointed to the complainant’s account of how she came to leave the residence and the relationship as a matter affecting her credibility. It was submitted that in her evidence she had described having enlisted the assistance of a domestic violence worker to arrange a “scenario” where she could “just go and grab all your things, what you can get and just go. And that’s what I’ve done”, yet she had agreed that the appellant’s mother had acted as an intermediary between she and the appellant on the day of separation and that the mother has liaised between them and had conceded to being not too sure as to whether or not the appellant may have been moving out. This was said to be contrasted with her evidence of her fleeing. It was said that her evidence about this issue was contrary to that of both the appellant and his mother.
- By comparison, it was said that the appellant’s evidence was never undermined, his remaining resolute in his denials of responsibility for the injury and that he therefore could not, and did not attempt to explain it. The competing versions would also leave this court on the appeal with doubt about the circumstances in which the offence is alleged to have occurred and the appellant’s involvement.
(ii) Ground 6
- The appellant also relied upon the matters asserted as affecting the complainant’s credibility and reliability in support of the unsafe, unsound or unsatisfactory verdict ground of appeal. In this context the appellant also raised the further matter of the complainant’s earlier opportunity to complain, she having waited approximately four months to do so.
- The appellant submitted that those matters, when taken with the resolute nature of his evidence, again left the court in a position in which it could not be satisfied of his guilt.
Conclusions on primary grounds
- I do not accept the appellant’s submission that the learned magistrate imposed an onus upon him to observe and/or explain the injury to the complaint. His Honour correctly identified and expressed in his reasons that there was no onus upon the appellant to prove anything and that the case was to be determined on the whole of the evidence.
- The appellant’s failure to have observed the injury did not lead to his conviction.
- His Honour accepted the appellant’s evidence that the photograph was of an injury to her neck and that it was taken by her on 31 January 2018. The learned magistrate had the date of 31 January which appeared on the photograph and the complainant’s evidence that she took it on 31 January “last year” upon which to reach that conclusion. As his Honour observed, the only real evidence as to when it occurred came from the complainant. That observation does not demonstrate that his Honour was suggesting that the appellant failed to give evidence as to when it occurred; it merely correctly identifies the extent of the evidence upon which the issue was to be determined.
- The ultimate issue for the learned magistrate to determine was whether the appellant assaulted the complainant on 31 January 2018 in the manner in which she alleged. The magistrate had the direct evidence of the complainant that she was assaulted in that manner and on the date alleged, and by the defendant. Against that the magistrate had the direct evidence of the appellant denying any assault on any occasion by him. It was not, however, as the appellant submits, that the magistrate must therefore have been left in a state of doubt. The evidence of injury to the complainant’s neck as depicted in the photograph supported the complainant’s allegation that she had been assaulted. The date stamp on the photograph supported her evidence that she had an injury on her neck on 31 January 2018. Her evidence that the photograph was taken on the day of the assault, together with the date stamp, supported her evidence that she had been assaulted on that day.
- The learned magistrate had all that evidence available. It was upon that evidence that he accepted the complainant’s account of what occurred and rejected the appellant’s denial. His Honour had correctly directed himself that “even if the defendant’s evidence is rejected, the court has to be satisfied beyond reasonable doubt on that evidence which it accepts, before the defendant can be convicted.”
- It was not the learned Magistrate’s rejection of the appellant’s denials but his acceptance of the complainant’s evidence which resulted in his conviction.
- In my view, the learned magistrate’s conclusions on these issues were correct, for the reasons I have set out.
- The photograph of the complainant’s neck showing scratch marks which she attributed to the appellant’s assault upon her and her evidence of the contemporaneity of it, provide a sound basis for the acceptance of her evidence. The appellant’s submission below invited the finding that even if the photograph is of an injury to the complainant’s neck, it was not one caused by him. For that conclusion to be reached required the acceptance of the appellant’s denials. The photograph and the complainant’s evidence concerning it provide reasons for the rejection of those denials. Having rejected the appellant’s denials that he caused the marks depicted in the photograph, and having accepted the complainant’s evidence that he did, it is unnecessary to consider his evidence as to whether he saw such marks at any time.
- In concluding that the complainant’s evidence is to be accepted concerning the marks on her neck, and therefore her allegation that the appellant caused them, I am not persuaded by the appellant’s submission as to the complainant’s credibility.
- As the appellant submits, the complainant had not made any allegation to police in either of her statements that he was a drug user. However, to characterise her evidence of that given in the course of the trial as not being given “until she was under pressure in the witness box” unfairly characterises the circumstances in which that evidence was given. The complainant was being cross-examined about her statement to police in which she had said “I’m fearful that he will lose control and something very serious will happen.” She was asked if she remembered saying that and she said “I was saying that. I was saying that because – he’s a drug user so he - - - .”
- The exchange continued:
“Well - - - ? - - - No, no. He– If he runs out, he will– I have no money or he has no money, he’ll be like, ‘can you get money? Can you get your mum to get money? Say that you need fuel or something. Get money so I can get some weed’, and then if I can’t get money he will lose his shit and he will start going out– going angry, saying, ‘I’ll punch you in the head, put a hole in the wall’. He will hurt the boys or something. He would tell me to go get the money to get weed for him for his drug use.
So madam, when you said to the police, ‘I’m fearful that he’ll lose control and something very serious will happen’, do you tell this court that what you meant is, I’m fearful that when he runs out of drugs and we don’t have enough money to buy more drugs, then he will do one of these serious violent offences or wilful damage type offences that I’m going to tell you about. ? - - - Yeah, because he loses control, he can’t hold his– he can’t hold– he doesn’t have patience he can’t hold his will, he can’t hold himself back. He just loses it and just like that, he’s angry he’ll just turn like that.”
- When it was put to the complainant that when she told police she was fearful of him she hadn’t told them he was using drugs, she said that she thought she did and in fact said “I swear I did, in one of the statements. I did so”. She then said that it may have been that it was written in her affidavit. There was evidence of an affidavit having been sworn by her in other proceedings on 4 June 2018. Those were domestic violence proceedings.
- The complainant had told police that she was fearful. Her explanation for saying that when cross-examined about it was responsive to what she had been asked. Counsel for the appellant pursued the issue repeating her evidence that he was a drug user and asking whether it was her evidence as to why she was fearful. Having read the evidence in context, I do not consider it to have been a gratuitous slur given under the pressure of cross-examination such as might reflect poorly upon her credibility. It was not, as the appellant contends, demonstrably to undermine his credit, nor was it irrelevant.
- Nor do I consider her evidence concerning her improvement in memory ought to lead to reservations about her credibility. The inconsistency which counsel for the appellant was attempting to emphasise was that she had included in her affidavit of 4 June 2018 a statement that the appellant had threatened her whereas she had not included evidence of such a threat in her statement to police on 17 May 2018.
- Both statements were made several months after the alleged incident of 31 January 2018. The first, her statement to police, was made in respect of her complaint of having been assaulted. The latter was made in domestic violence proceedings. It is unsurprising that the latter may include a detail perhaps more relevant to a domestic violence application than a complaint of assault. Quite apparently she was including allegations of threats in her affidavit in respect of domestic violence proceedings because the appellant’s counsel went on to cross-examine her about further threats made in February and March also being included in that affidavit.
- The appellant’s criticism of the complainant’s evidence of her departure is also misplaced. The appellant focusses upon her evidence of her “escape” as opposed to other evidence of an agreement to separate. In her evidence in chief she has said:
“I was just so terrified. I just wanted to be safe, and I just thought if I just stay there until I leave, or manage to escape, then I’ll be able to report it and be safe where he cannot harm me or my two kids.”
Later when asked what happened in May that allowed her to go to the police she said:
“I managed to escape the domestic violence. I managed to just pack up one night and just leave, and pack my bags up and just go and live with my mum. And then I went to the court the next day and reported it.”
- The complainant’s evidence concerning any “escape” arose again when she was being cross-examined about her affidavit in the domestic violence proceedings. The exchange was:
“See madam, you’ve said that you separated from HKY by managing to pack your things up and flee; is that right? - - - No, I organised a lady that escaped herself from domestic violence, and she helps people escape. And I got in contact with her and she set up with my mum. She set up an arrangement one night, just to go and grab all your things, what you can get and just go. And that’s what I’ve done.”
- The expression “escape” in the context in which it was used I would take to be a reference to escaping domestic violence, in the sense of removing herself from the situation, rather than a reference to the means of her departure. The expression “flee” was used by the appellant’s counsel. She rejected that description.
- The complainant said that she left on probably the 15th or 16th of May. Immediately following that evidence she went on to agree that the appellant’s mother had come over to see her and the appellant on 14 May and that there had been a conversation about separation and an agreement that they needed to separate and that his mother had acted as an intermediary to make some arrangements for their boys.
- I do not consider her agreement to that having occurred, as was also described by the appellant and his mother in their evidence, to be inconsistent with her having arranged to depart one or two days later in the way she described, or with her having sought assistance from the lady as she also described. The appellant gave evidence that she left on 13 or 14 May after police arrived following an argument but returned the following day. His evidence was that the agreement was that she was to stay in the house but that he had later received text messages saying that she would leave and did he want the house. Her returning to collect her belongings a couple of days later and just leaving as she described is not necessarily inconsistent with that.
- The appellant’s mother’s evidence was that on 14 May she told her son to pack a bag and leave that afternoon. As far as she was aware the appellant was going to go to a friend’s house and the complainant was going to remain at the house. There is, no inconsistency between the evidence of the complainant and the appellant’s mother in that regard.
- There is nothing in any of her evidence in respect of her departure which casts doubt on her credibility.
- For all of these reasons, the primary grounds of appeal have not been made out. No error has been demonstrated.
The additional ground – no bodily harm
- The appellant’s further ground is that the prosecution failed to prove an element of the offence; that any assault of the complainant by the appellant did her bodily harm.
- As is set out above, the learned magistrate stated in his reasons that he was satisfied beyond reasonable doubt that the injury amounted to bodily harm as defined in the Criminal Code, noting that issue was not really in contest.
- His Honour’s observation that the issue was not really in contest reflects that no submissions were made on the issue either by the prosecutor or counsel for the appellant. Equally, however, no admission or concession was made by the appellant. The case run for the appellant was that he had never assaulted the complainant and had never caused her injury. The concession was not made that if the magistrate found that the appellant had assaulted the complainant and had caused the injury depicted in the photograph, such injury satisfied bodily injury as defined. It remained for the prosecution to prove that element of the offence beyond reasonable doubt. The learned magistrate received no assistance from either counsel below on this issue. It went wholly unaddressed.
- “Bodily harm” is defined by s 1 of the Criminal Code to mean “any bodily injury which interferes with health or comfort”. For present purposes it may be accepted that the markings on the complainant’s neck depicted in the photograph constituted bodily injury. Acceptance of the complainants’ evidence that it was the appellant who caused those marks in the course of assaulting her would lead to the conclusion that he caused a bodily injury to her. The complainant, though, gave no direct evidence of any interference with her health or comfort caused by that injury. To the extent that any finding of such interference is able to be reached on the evidence, it is only by inference. On an appeal by way of rehearing this court is in as good a position as that of the learned magistrate to decide the proper inference to be drawn.
- In Scatchard v The Queen it was said:
“To establish the existence of bodily harm as defined, two matters must be made out, the first being the existence of ‘bodily injury’ and the second being the fact that such established bodily injury interfered with health or comfort. On the facts of the present case, the evidence that it was hurting was no more than evidence of interference with health or comfort.”
- That was said in the context of a case in which there was evidence of a sensation of hurt or pain having been experienced, but not of any injury.
- In Wayne v R Mildren J observed:
“In the end result, I consider that the question of whether the injury amounts to ‘bodily harm’ is one of degree, which can only be decided by reference to the facts in each case. In determining this question, it is necessary to focus on the injury and its immediate consequences. The fact that the victim has been left with only a cosmetic disability is irrelevant if the immediate consequences of the injury interfered temporarily with her health. It is relevant also to consider the nature of any treatment received and whether any part of the body was unable to perform its functions fully, either as the result of pain or otherwise and there may well be other relevant matters.”
- In McIntyre v The Queen Johnson J, with whom the other members of the New South Wales Court of Criminal Appeal agreed, observed that “bruises and scratches to a victim are typical examples of injuries that are capable of amounting to actual bodily harm”. The case cited by her Honour as authority for that proposition was R v Cameron. However, the judgment of the New South Wales Court of Criminal Appeal in Cameron suggests that the bruises and scratches seen on the complainant’s arms and back were conceded to amount to bodily injury, the court observing:
“It would seem that there was no dispute that the complainant received those injuries as a result of that assault and that they were capable of amounting to actual bodily harm.”
- Smejlis v Matthews was an appeal from a magistrate’s conviction of the appellant of four charges of assault occasioning bodily harm. In respect of one of the charges there was evidence from the complainant that there was bruising to her face which came out the day following the assault and which lasted for about three days. The complainant had not told the doctor about that injury because she was concussed and concerned about more serious injuries which she had also sustained. Jenkins J, having referred to Scatchard, observed:
“The facts of the present case are that Goodwill’s evidence established a bodily injury, that is a bruise, but there was no express evidence that the bruise interfered with her health or comfort. In my opinion it does not necessarily follow that a bruise interferes with health. Whether a bruise interferes with health because it is an adverse change to the soundness of the body will depend upon the evidence given at the trial. I can also readily contemplate situations where a person receives a bruise but it does not hurt or interfere with the recipient’s comfort. Thus in cases of bruising there must be some direct or circumstantial evidence to support a finding that the bruise interfered with health or comfort. By this I am not suggesting that the evidence must be of a particularly technical or sophisticated nature. For example it may be from a medical practitioner who gives an opinion as to the effect of the bruise on health or it may be from the recipient who gives evidence about the nature of the bruise and its effect: Cramer v The Queen, (unreported); CCA Supreme Court of Western Australia; Library No. 98062; 28 October 1998, is an example of a case where there was sufficient circumstantial evidence to establish the existence of bodily harm. The evidence in this case fell short of being sufficient to establish that the bruise to Goodwill’s face interfered with her health or comfort. The bruise lasted for only 3 days and Goodwill did not give a physical description of it or describe its effect on her. There was no medical evidence relating to this bruise. In my opinion that evidence is incapable of sustaining a finding that she suffered bodily harm.”
- In Cramer, as referred to by her Honour, the case for the defendant being conducted in such a way as to assume, particularly in questioning a medical witness, that the particular injury would have affected the complainant’s health or at least comfort.
- In Robinson v Smith Jenkins J found that the complainant’s statement that he had “a bit of numbness, had pain and continues to suffer from a lump in his throat” were complaints “sufficient to constitute an interference with health or comfort”.
“In this case the question to be answered is whether, in the light of the evidence before him and in the absence of expert evidence as to the significance of the pain of which Ms Ward complained, the learned magistrate was entitled to infer that she had suffered damage to part of her body and not merely the sensation of pain. In my opinion the learned magistrate was entitled to draw that inference. The available evidence was meagre, but I am satisfied that as a matter of ordinary human experience one knows that, if pain has lasted, as Ms Ward said, for a couple of days then the body has suffered damage. In such a case the pain originates from the damage and is more than merely ‘a perception activated by a stimulus’, the phrase used by Kennedy J in Scatchard at 138.”
- These authorities make plain that the two matters of bodily injury and an interference with health or comfort from it must be separately proven on the evidence. The existence of one or other those matters may, in an appropriate case, be established to the satisfaction of the tribunal of fact beyond reasonable doubt by inference. It may be that a particular bodily injury having been found, the inevitable inference based upon human experience may be that it must have interfered with the health or comfort of the person who sustained it. It may be that on no view of the evidence would it be possible to conclude that this aspect of bodily harm was not satisfied in such a case.
- In my view, however, this is not such a case.
- The complainant gave evidence of the whole of the episode during which she was assaulted. She gave evidence of having experienced pain when her head hit the bedhead earlier in the physical altercation. She gave no evidence of having experienced any pain, hurt or discomfort associated with the marks on her neck.
- Although the complainant gave evidence of her losing her breath, itself an interference with her comfort, that interference was not caused by the scratches. The particulars provided by the prosecution were that “the defendant has grabbed the aggrieved by the neck and squeezed it and has then caused scratching and bruising to the side of her neck”. Consistently with those particulars, the complainant’s evidence was that following losing her breath, “that’s when he got off me and just left the scratch marks on my neck”.
- On the whole of the evidence I am unable to be satisfied beyond reasonable doubt that the bodily injury constituted by the scratch marks to the complainant’s neck interfered with either her health or comfort. I cannot be satisfied of that by my observation of the photograph alone. The inference which I would draw from that photograph is that it may well have interfered with at least her comfort; but that is not sufficient.
- I therefore have doubt as to whether the assault occasioned bodily harm to her.
- I would allow the appeal and set aside the appellant’s conviction for the offence of assault occasioning bodily harm.
- I am satisfied beyond reasonable doubt though that the appellant assaulted the complainant. In such circumstances, as counsel for each party agreed, on the appeal the appropriate course is to substitute a conviction for common assault.
- The matter will be remitted to the Magistrates Court for sentencing of the appellant for the offence of common assault.
  VR 619 at 620 per McInerney J.
 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204, ; Allesch v Maunz (2000) 203 CLR 172 at 180, ; CDJ v VAJ (1998) 197 CLR 172 at 2001-2002.
Fox v Percy (2003) 214 CLR 118 at 126-127,  per Gleeson CJ, Gummow and Kirby JJ.
 Stevenson v Yass  2 Qd R 150 at 162,  per McMurdo P.
 Prepared by different counsel.
 Transcript 1-5 ll 1-20.
 Transcript 1-19 l 45.
 The photograph became exhibit 2.
 That photograph (or a copy of it) was tendered in re-examination and became exhibit 3.
 Transcript 1-43 ll 22-28.
 Transcript 1-48 ll 35-40.
 Transcript 1-49 l 45 to 1-50 l 4.
 Transcript 1-50, l 5.
 Decision p 4, ll 29-34.
 Decision p 5, ll 14-20.
 Transcript 1-13, ll 19-25.
 “Fleeing” was an expression used by counsel in his submissions. It was not an expression used by the complainant in her evidence.
 I don’t consider his Honour to have been using the expression “real evidence” in the sense of physical or material evidence.
 Transcript 1-11 ll 10-31.
 Transcript 1-11 ll 37.
 Transcript 1-14 ll 1-5.
 Warren v Coombes (1979) 142 CLR 531 at 551; Fox v Percy (2003) 214 CLR 118 at 127 per Gleeson CJ, Gummow and Kirby JJ.
 (1987) 27 ACrim R 136 at 140.
 (1992) 62 ACrim R 1 at 7.
 (2009) 198 ACrim R 549 at 558.
  2 NSWLR 66 at 67.
  WASCA 158.
  WASC 99 at .
  WASCA 132 at 5-6.
- Published Case Name:
HKY v Queensland Police Service
- Shortened Case Name:
HKY v Queensland Police Service
 QDC 218
06 Nov 2019