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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v SDJ  QCA 157
CA No 125 of 2019
Court of Appeal
Appeal against Conviction
District Court at Brisbane – Date of Conviction: 30 April 2019 (Rosengren DCJ)
24 July 2020
15 July 2020
Sofronoff P, Mullins JA and Davis J
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of common assault (domestic violence offence) and one count of choking, suffocation or strangulation in a domestic setting which was also recorded as a conviction for a domestic violence offence – where the appellant was the stepfather of the child complainant – where the complainant and two adult witnesses gave evidence regarding the assault and choking – where aspects of the evidence of the complainant and the adult witnesses were inconsistent with each other – where the appellant gave evidence and denied being violent – where the appellant claimed to have only tried to lift the complainant up by placing his arms under the complainant’s armpits – where there was expert evidence from a doctor who saw the complainant on the day of the incident that the complainant’s injuries of redness and abrasions in the chest area were inconsistent with being lifted – whether the verdicts were unreasonable
Criminal Code (Qld), s 280
Pell v The Queen (2020) 94 ALJR 394;  HCA 12, followed
The appellant appeared on his own behalf
The appellant appeared on his own behalf
- SOFRONOFF P: I agree with Mullins JA.
- MULLINS JA: The appellant was convicted after trial before a jury in the District Court of one count of common assault (domestic violence offence) and one count of choking, suffocation or strangulation in a domestic setting which was also recorded as a conviction for a domestic violence offence. The offences were committed on Saturday 25 November 2017. The complainant was the appellant’s stepson. At the time of the relevant offence, the appellant was in a relationship with the complainant’s mother. Apart from the complainant, the household also included the two children from the relationship between the appellant and his partner. Although the appellant was legally represented at the trial, he appears for himself on the appeal. There is one ground of appeal which is the verdicts are unreasonable or cannot be supported having regard to the evidence.
Evidence at the trial
- The complainant had participated in a video recorded interview with the police on 14 December 2017 that was admitted as a statement pursuant to s 93A of the Evidence Act 1977 (Qld). The complainant was then 10 and one-half years old. He had just finished year 4. The complainant’s evidence in this interview was as follows. It was about 12 noon. He was in the lounge room. His father’s friend had arrived and that was why his father had woken up. He used some of his father’s body wash to have a shower and his father got really angry because it was half a bottle and there was only about a quarter left. His father kicked him on his left leg. It was a straight kick and it hurt a little bit. His father said “Why did you use my body wash?” and the complainant replied “Because there was no other soap or body wash in the bathroom”. His father then hit him on the side of the face two or three times with an open hand and it hurt like the kick to his leg did. His father then choked him and “It was just like a neck lock or something”. The complainant could not breathe for about 20 seconds. His mother was saying “stop” and then his father let him go. The complainant left with his mother, and as he was walking out the door, the appellant was pushing him. He did not fall over, but walked down the stairs. His mother took him to the hospital. They stayed at a hotel that night. (It was only the complainant who referred to the male visitor to the house at the time of the incident at his father’s friend. His mother described the man as a friend of the family and her friend. Consistent with how the complainant described him, I will continue to refer to him as the appellant’s friend.)
- The jury was also played the pre-recording of the complainant’s evidence that had taken place about a month before the trial. During the cross-examination, the appellant’s counsel put the appellant’s version of the events, but the complainant did not remember those things happening. When it was put to him that he was “a little bit unclear about what happened that day”, the complainant responded affirmatively. He did not remember going that day to a hospital with his mother. When it was put to him that the appellant never kicked him that day, the complainant stated: “I don’t think he kicked me or anything. I don’t remember”. When it was put to him that the appellant never put his arm or hand around his neck that day, the complainant responded that he did not remember. He gave the same response when it was suggested that the appellant never hit him with his hand that day and never pushed him.
- The complainant’s mother’s evidence was as follows. She woke up between 10.30 am and 11.00 am and the appellant had woken up before 10.30 am. The complainant’s mother was sitting in the lounge room. The appellant yelled and screamed at the complainant about body wash. Both were also in the lounge room. The appellant grabbed the complainant around the neck, head and hair and took him to the bathroom, pushed him over, punched him in the ribs and continued to yell. She could see what happened in the bathroom from where she was seated. The appellant picked the complainant up off the bathroom floor, was yelling abuse at him and grabbed him with both arms around his neck and strangled the complainant. The complainant’s mother tried to get the appellant to calm down, but he would not. She tried to move the appellant’s hands away from the complainant’s neck, but she could not get him to stop. The complainant’s face was red and he had tears coming out of his eyes. The appellant let go of the complainant who walked towards his bedroom. The appellant cornered the complainant in the bedroom and yelled abuse at him. The complainant came out from the bedroom and went down the stairs with his mother and sisters to the car that belonged to the appellant’s friend. The appellant’s friend (who was a friend of the family) had been present, when the abuse and the fight happened. The appellant’s friend drove them to the hospital at Ipswich. The complainant refused to go out of the car to see a doctor. They then went to McDonald’s. The complainant’s mother offered to give him $20 to see a doctor. They went back to the hospital and the complainant saw a doctor, but he refused to speak to the doctor or anyone.
- The complainant’s mother was cross-examined and said the following. The complainant was “a bigger kind of child” and was between 40 and 50 kilograms at that time. The complainant’s mother denied the suggestion that it was she and the complainant who were having an argument about whether or not the complainant should have a shower. She disagreed that the appellant had said to the complainant words to the effect “can you go, please, for a bath so there isn’t a big argument”. The complainant’s mother did not say anything to the appellant about the body wash. The complainant’s mother did see marks under the complainant’s armpit area after they left the house and agreed with the suggestion the appellant had his hands underneath the complainant’s armpit area, because of the marks she saw, but did not remember the appellant’s lifting the complainant up by underneath his arms. The main thing that the complainant’s mother remembered was the strangling. She was very sure that the appellant had both of his arms around the complainant’s neck. The appellant hit the complainant, but the complainant’s mother cannot remember whether the appellant kicked the complainant. The appellant yelled at the complainant and pushed him. The appellant did not throw the complainant into walls, but onto the floor.
- The appellant’s friend had arrived early at the home of the appellant and his partner. It was 8.30 am or something like that. The appellant got up about 8.30 am or 9 am. The appellant’s partner and the children were getting ready to go to Ipswich. The appellant got up and “started carrying on” and came out of the bathroom with a bottle of body wash and started blaming the complainant and attacking him, “throwing him around the lounge room, took him into the bedroom, was smacking him around the bedroom and then [the complainant] came out with a split lip and was bleeding from his lip”. The appellant had thrown the complainant into the wall and had picked him up by the hair and continued to throw him around. The appellant took the complainant into the bathroom from where the appellant’s friend could hear the appellant “smacking” the complainant around and “carrying on about the body wash”. They came out from the bathroom and the appellant continued to attack the complainant and throw him around the lounge room. Before the rest of them could get out of the house, the appellant had the complainant “around the neck”, so his feet were “practically off the ground, where he had him in a choker hold” and the complainant was going red in the face. The appellant was using the “nook” of his arm on the complainant around his neck. The appellant ended up letting the complainant go and they were all able to get out of the house and into the car. The appellant’s friend drove off with the appellant’s partner and the three children. In cross-examination, the appellant’s friend disagreed with the suggestion that all the appellant did to the complainant was to get his hands under the complainant’s armpit area and try to lift him up.
- The emergency physician who saw the complainant at the Ipswich Hospital on 25 November 2017 at 2.11 pm gave the following evidence. The complainant had some redness, together with some abrasion, on the middle part of his chest. The lower portion of it was around the nipple area. The redness was consistent with some trauma, but he had some overlying sort of superficial skin changes which indicated abrasion. The injury was consistent with friction or dragging, but inconsistent with being caused by hand and/or fingers being placed under his armpits. In cross-examination, the doctor had not documented a split lip and would assume that meant she had not observed a split lip. No injury was revealed other than the superficial abrasions on both sides of the complainant’s chest. The doctor could not exclude that the injuries she observed could have been caused by the mechanism of an adult attempting to raise the child by lifting the child under the armpits with the child then struggling, but the doctor considered that mechanism was inconsistent with the injuries.
- The appellant gave evidence as follows. He was woken up on that Saturday morning by his partner and the complainant arguing about the complainant having either a bath or a shower. That was when the appellant walked over to the complainant and put his arms underneath the complainant’s armpits to try to get him off the couch. The appellant asked the complainant to stop misbehaving and do as his mother asked him. The complainant refused the appellant’s request, so the appellant let him go and went back to bed. The appellant’s friend was not there at that stage. He arrived later, as the appellant was woken by the friend talking. The appellant did not choke the complainant. He did not grab the complainant around the throat or kick him, hit him, yell at him, push him, throw him into walls or throw him on the floor.
- During cross-examination, the appellant said the following. On that Saturday, he got up at 7.30 am to 8 am. He heard his partner arguing with the complainant about having a bath or a shower and he heard that the complainant had made a mess with the body wash. He said “They were making slime” and, when asked how he knew that, he responded “Because I seen the mess”. He did not remember whether he saw the mess first or heard there was a mess first. The complainant was sitting on the couch next to the appellant’s partner, when the appellant came straight out and tried to pick the complainant up. The appellant did not even “get close” to getting the complainant off the couch. The appellant “was not violent one bit” and did not do “any of those acts”. He was “trying to be a father to a child that wasn’t mine”. The appellant disagreed with the suggestions that he assaulted and choked the complainant. He did not drag him on the ground or throw him into the ground.
Were the verdicts unreasonable?
- The appellant’s outline was prepared with the assistance of a person who was not qualified as a lawyer. It was difficult for the appellant to be his own advocate. Assertions are made in the outline, however, that are not based on the evidence adduced at the trial. No application was made to adduce further evidence on the hearing of this appeal. The question of whether the verdicts were unreasonable or unsupported by the evidence is decided by reference to the evidence that was placed before the jury at the trial.
- The function of this Court where the appeal ground is the unreasonableness of the verdicts was restated by the High Court in Pell v The Queen (2020) 94 ALJR 394 at :
“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.” (footnote omitted)
- In relation to the common assault count, the prosecution had particularised the assault as comprising one or more of the appellant grabbing the complainant by the hair, throwing him on the ground, kicking him and slapping him. The jury was appropriately directed that any one or more of those acts was capable of establishing the assault, but the jury had to be satisfied unanimously beyond reasonable doubt of any particular act on which the verdict was based. The jury was directed, in accordance with s 280 of the Criminal Code (Qld), that in relation to the issue of whether the assault was unlawful, the law permits a step-parent to use by way of correction, discipline, management or control towards a child under that person’s care, such force as was reasonable under the circumstances. The jury was also directed appropriately on the burden on the prosecution to satisfy them beyond reasonable doubt that any of the particular acts which the jury may find proved beyond reasonable doubt were not by way of correction, discipline management or control of the complainant or that the force the appellant used was not reasonable.
- There is no challenge by the appellant to any aspect of the summing up. The question for the court is therefore whether the inconsistencies in the evidence adduced at the trial ought to have resulted in the jury entertaining a reasonable doubt as to the appellant’s guilt of each of the counts.
- The complainant’s s 93A statement was given in a timely way in relation to the incident. It was relevant for the jury to take into account that 16 months later, when there was the pre-recording of the complainant’s cross-examination, the complainant had little recollection of the subject events, but it did not preclude the jury acting on the s 93A statement or parts of it, if the jury were otherwise satisfied about the accuracy and reliability of the relevant parts of the s 93A statement. There was support for the complainant’s version of the choking event given in the s 93A statement in aspects of the evidence of his mother and the appellant’s friend. There was support for an assault otherwise of the complainant in the evidence of his mother, the appellant’s friend and the doctor’s evidence who observed abrasions and redness on both sides of the complainant’s chest. Importantly, the observations made by the doctor who examined the complainant on the day of the incident were inconsistent with the mechanism of the injury asserted by the appellant in his evidence, even though the doctor could not exclude absolutely that the abrasions to the complainant’s chest had occurred in the manner that was described by the appellant. It was therefore not unreasonable for the jury to find the appellant guilty of both counts.
- It follows that the appellant cannot succeed on his appeal. The order which should be made is: Appeal dismissed.
- DAVIS J: I agree with Mullins JA.
- Published Case Name:
R v SDJ
- Shortened Case Name:
R v SDJ
 QCA 157
Sofronoff P, Mullins JA, Davis J
24 Jul 2020