Exit Distraction Free Reading Mode
- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
 QCA 100
SUPREME COURT OF QUEENSLAND
R v Shambayati  QCA 100
CA No 127 of 2015
DC No 960 of 2014
Court of Appeal
Appeal against Conviction & Sentence
District Court at Brisbane – Date of Conviction & Sentence: 3 June 2015
19 April 2016
3 November 2015
Fraser and Morrison JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURIES – OTHER CASES – where the appellant was found guilty of assault occasioning bodily harm following a trial by a jury – where during the empanelling of the jury the appellant allegedly called out ‘challenge’ but the juror was subsequently empanelled – where the appellant alleged that the jury had not been empanelled according to law – where the recording of the empanelment of the relevant potential juror was played – where in that recording the word ‘challenge’ is heard as a whisper – where defence counsel heard this and subsequently spoke with the appellant – where the trial judge did not hear the appellant – whether the word ‘challenge’ was audible to the court – whether the jury was empanelled according to law
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – OTHER MATTERS – where the evidence of the appellant was supported by independent witnesses and the evidence of the alleged co-offender – where the complainant’s evidence derived support from the evidence of other independent witnesses – whether the verdict was unreasonable or insupportable having regard to the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES – where the trial judge did not direct on the issues of self-defence or consensual fight – where the appellant submitted that it was possible that self-defence or a consensual fight was raised on the evidence – where the appellant did not rely upon either of those defences – whether either issue arose on the evidence – whether direction on these issues would have obfuscated the real issue – whether the appellant was denied a fair chance of acquittal
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to eight months imprisonment with a parole date fixed on 3 October 2015 – where the appellant was sentenced on the basis that there was no provocation, that it was not a premeditated assault and that it was a protracted assault – where the appellant had a relevant criminal history – whether the sentence was manifestly excessive
Criminal Code (Qld), s 245, s 271, s 668E(1)
Jury Act 1995 (Qld), s 39, s 41, s 44
Hopestill Tyndal’s Case (1663) Cro Car 291; 79 ER 855;  EngR 1150, cited
James v The Queen (2014) 253 CLR 475; (2014) 88 ALJR 427;  HCA 6, cited
Johns v The Queen (1979) 141 CLR 409;  HCA 33, cited
M v The Queen (1994) 181 CLR 487;  HCA 63, cited
R v Harrington and Hanlon (1976) 64 Cr App R 1, followed
R v Hilton  QCA 12, cited
R v Raabe  1 Qd R 115;  CCA 109, cited
R v Willersdorf  QCA 183, cited
Stevens v The Queen (2005) 227 CLR 319;  HCA 65, cited
Wilde v The Queen (1988) 164 CLR 365;  HCA 6, cited
The appellant/applicant appeared on his own behalf for grounds 1 and 2
J A Fraser for the appellant/applicant for grounds 3 and 4
D C Boyle with B M White for the respondent
The appellant/applicant appeared on his own behalf for grounds 1 and 2
Legal Aid Queensland for the appellant/applicant for grounds 3 and 4
Director of Public Prosecutions (Queensland) for the respondent
- FRASER JA: The appellant and an alleged co-offender were charged on indictment with an unlawful assault occasioning bodily harm, with the circumstance of aggravation that he was in company with another person. The alleged co-offender was found not guilty and was discharged. The appellant was found guilty of assault occasioning bodily harm and not guilty of the circumstance of aggravation. He was sentenced to eight months imprisonment with a parole release date fixed on 3 October 2015 (after serving four months of the sentence).
- The appellant has appealed against conviction and has applied for leave to appeal against sentence. The grounds of the application and appeal are:
- The sentence was manifestly excessive.
- The conviction cannot be supported having regard to the whole of the evidence.
- The jury was not empanelled according to law.
- The learned trial judge erred in not directing the jury as to either the matter of a consensual fight was self-defence.
- Counsel for the appellant argued grounds 3 and 4. The appellant himself argued grounds 1 and 2. It is convenient to commence consideration of the appeal by discussing the contention in ground 3 that the jury was not empanelled according to law.
Ground 3: The jury was not empanelled according to law
- Section 39 of the Jury Act 1995 provides:
“Before the selection of a jury for a criminal trial begins, the court must inform the defendant that–
- the persons whose names are to be called may be sworn as jurors for the defendant’s trial; and
- if the defendant wants to challenge any of them, the defendant, or the defendant’s lawyer or other representative, must make the challenge before the person is sworn as a juror.”
- Section 41 prescribes the procedure for jury selection in a civil or criminal trial. Section 41(1)(a) provides that, “a selection must be made as directed by the judge from among the members of the jury panel by random selection of cards bearing the names of, or numbers representing, the members of the jury panel…” Section 41(1)(b) provides that, “as each person is selected an officer of the court must call aloud the name of the person selected.” Section 42(3) provides that the prosecution and defence are each entitled to 8 peremptory challenges in a criminal trial. (The suggested challenge in this case was a peremptory challenge). Section 44 provides, both in relation to a peremptory challenge and a challenge for cause, that the challenge “must be made before the officer assigned by the court to administer the oath begins to recite the words of the oath to the person challenged.”
- In this case, the Court order sheet relevantly records only that the jury was empanelled. The transcript records that, before the jury was empanelled, the appellant was informed of his right of challenge. The transcript of the empanelment records only that the jury was empanelled. The transcript does not record that the appellant personally challenged the empanelment of any juror.
- The appellant’s argument upon ground 3 depended upon fresh evidence. An application by the appellant for leave to adduce that evidence was not opposed by the respondent. The evidence was contained in two affidavits. Defence counsel deposed that in the later stages of the process of empanelling the jury, whilst a potential juror approached the bailiff the appellant “called out ‘challenge’ or a word or words to that effect.” Defence counsel deposed that the word or words were loud enough for him to hear them, “and, to the best of my recollection, I expect loud enough for someone seated in the position of the learned trial judge to hear them.” He deposed that he advised the appellant to the effect that as he, defence counsel, was the appellant’s spokesperson he would challenge jurors on the appellant’s behalf; he might have advised the trial judge that he had indicated to the appellant that he was his “mouthpiece”. During the first adjournment after the jury was empanelled the appellant told defence counsel that the reason the appellant did not want the juror empanelled was that the appellant believed that the juror would be sympathetic to the complainant because the complainant and the juror suffered from hair loss. Defence counsel decided that this did not disclose a proper basis for seeking discharge of the juror.
- The appellant deposed that whilst the potential juror approached the bailiff and before the bailiff started to recite the words of the oath or affirmation the appellant “called out ‘challenge’.” The appellant deposed that he had been trying to get defence counsel’s attention before that time but guards seated on either side of the dock kept telling him to be quiet. He said that defence counsel asked the trial judge whether he could approach the appellant and then he did approach the appellant in the dock. Defence counsel told the appellant to be quiet. Either then or at a later time the appellant told defence counsel that the potential juror looked like the complainant. The appellant did not want that juror on the jury and did not withdraw his challenge. The appellant deposed that he was “especially convinced that at that point the juror should not be on the jury because I was sure that the juror had heard me challenge him”. The appellant recalled that after defence counsel had approached him in the dock and before the first adjournment defence counsel told the trial judge that he (defence counsel) had told the appellant that it was defence counsel who challenged jurors. During the first adjournment defence counsel told the appellant that it was defence counsel’s job to challenge jurors and the appellant should trust him. The appellant continued to insist that he did not want the juror on the jury. He thought that the juror very much resembled the complainant. The appellant thought he had no choice to do anything about the fact that the juror was empanelled although the appellant did not want the trial to continue “because I was concerned that not only did that juror hear my challenge but so did the others”.
- The recording of the relevant part of the empanelment process was played during the hearing of the appeal. During the empanelment process before the relevant juror was empanelled, many jurors were called (by number), some were empanelled, and in relation to others the word “challenge” or the word “stand by” is clearly audible. When the relevant potential juror was called, the word “challenge” is heard as a whisper, or at least in a far softer voice than the previously spoken words “challenge” and “stand by”. That is followed very closely by a conversation (during the taking of the oath by the relevant juror) which is difficult to hear (consistently with it being a conversation between the appellant and someone nearby) but which includes the word “challenge”. About 20 seconds later defence counsel can be heard asking the trial judge for permission to speak briefly to his client. The trial judge stated, “yes, we’ll just pause for the moment”. What follows is a sound which may be the sound of the dock microphone being covered. Next it is possible to hear defence counsel saying, “Thank you, your Honour”. There follows the calling of another 12 numbers and the words “challenge” and “standby” are very clearly audible in relation to those people who are not empanelled as jurors. What I have described as the whispering of the word “challenge” was no louder than the immediately following quiet conversations, which was presumably between the appellant and defence counsel.
- The transcript records an exchange which occurred about five minutes after the jury empanelment process concluded (when the jury was not present):
“[Defence Counsel]: Your Honour, just for the record, I thought I had made myself plain but I’ll remind Mr Shambayati during the course of the break that unless he’s called upon directly, I am his mouthpiece in this trial.
Her Honour: Thank you, Mr Ackerman. Perhaps if you’re instructing solicitor can assist by from time to time checking whether there is something that your client is wishing to raise.
[Defence Counsel]: Thank you Your Honour.
Her Honour: So that if you do need to get instructions from him, you can.
[Defence Counsel]: I’m confident that…
Her Honour: But I appreciate that. It’s important that – it can be difficult, I know, for defendants to obtain the attention of their lawyers who have their back to them, but it is important that the defendants understand that they have chosen representatives who will speak for them.”
- After the hearing of the appeal the Court obtained a report from the trial judge upon ground 3 (which had been added by amendment after the trial judge had reported upon the original grounds of appeal) and received further submissions from the parties. The trial judge did not hear the appellant challenge the juror but recalled the appellant being agitated in the dock; the audio recording accorded with the trial judge’s recollection that defence counsel sought and was afforded the opportunity to speak to the appellant and, having done so, did not raise any issue about the juror.
- The appellant argued that the jury was not empanelled according to law because during the course of the empanelling and selection process the appellant personally exercised the right of peremptory challenge to a juror. The appellant argued that defence counsel had no authority to withdraw a challenge validly made by the appellant personally. The appellant contended that the swearing in of the juror by the bailiff notwithstanding the appellant’s personal challenge to that juror was an irregularity which resulted in the conviction being tainted by a miscarriage of justice. The appellant relied upon Johns v The Queen and decisions in which an irregularity in the empanelling of a jury resulted in orders setting aside convictions and ordering retrials. The appellant cited Wilde v The Queen for the proposition that the proviso in s 668E(1)A of Criminal Code cannot be applied in such a case so as to avoid an order for a retrial. In a supplementary submission made after the recording had been played and the trial judge’s report had been obtained, the appellant argued that an inference that defence counsel believed that the appellant had challenged the relevant juror at the appropriate time might be drawn from the facts that defence counsel heard the appellant make a challenge, defence counsel subsequently asked for the proceedings to be delayed so that defence counsel could speak to the appellant, defence counsel informed the appellant that it was defence counsel’s role to challenge jurors and the appellant should remain quiet during the jury selection process, but defence counsel nevertheless discussed the appellant’s challenge at a subsequent conference.
- In the respondent’s initial written outline of submissions the respondent observed that an audio recording was available and that, although it was a question for the Court, it would seem that the recording showed that the appellant did make a challenge to the juror so that the juror was sworn notwithstanding the appellant’s challenge. The respondent acknowledged that an accused always retains a personal right of challenge notwithstanding that the accused has delegated to defence counsel an authority to challenge on behalf of the accused. The respondent referred to statements in Johns v The Queen that defence counsel has no authority to withdraw a challenge made by an accused without first obtaining instructions to do so. The respondent argued that the appellant’s counsel did obtain such instructions, which defence counsel confirmed by making no attempt to apply for the discharge of the juror and by indicating that defence counsel, rather than the appellant, would make any challenges to jurors on behalf of the accused. The respondent conceded that if the jury was not empanelled according to law there was a fundamental error such that the proviso would not apply and a retrial should be ordered. In a supplementary submission made after the recording had been played and the trial judge’s report had been obtained, the respondent argued that the appellant had not made an effective challenge because what the appellant said was not audible to the court.
- It is not in issue that the appellant was entitled to make a peremptory challenge to the juror. It is not in issue that a challenge may effectively be made by speaking aloud the word “challenge”; that is the conventional way of making a challenge. It is not in issue that, if the appellant spoke that word, he did so before the juror commenced to take the oath as a juror. Nor is it in issue that a challenge may be made by a defendant personally, regardless of whether the defendant has authorised counsel to make challenges on his or her behalf. The issue is whether or not the appellant made any effective challenge to the juror in question. Defence counsel did not do so at any time so ground 3 stands or falls upon the question whether the appellant did so.
- The statement in s 39(b) of the Jury Act that the defendant or the defendant’s lawyer “must make the challenge before the person is sworn as a juror” necessarily implies that the intended challenge is to be made in a way which is sufficient to bring to the Court’s attention before the juror is sworn that the appellant challenges the juror. That is implicit in the word “challenge”. Other than in exceptional cases (for example, where a disability might prevent it) it is to be expected that any challenge will be voiced by the defendant or by his or her counsel. That is the usual procedure and it was adopted in this case.
- That being so, it was necessary for an effective challenge (whether by the appellant or by his counsel) that the challenge be audible to the court. It does not seem to me to be necessary to cite authority for that conclusion, but there is authority for it. The Court was referred to Johns v The Queen, in which Barwick CJ referred to the accused in that case as having duly challenged the jury and observed that, “[t]he challenge must have been heard by the presiding judge” and Gibbs J observed that “[t]he traditional manner of indicating that a juror is challenged is to use the word “challenge”, as the applicant did.” Those remarks merely recorded the facts and the point was not there in issue. More relevantly, in Hopestill Tyndal’s Case the headnote records that, “[a] challenge not heard till the juror was sworn and marked, cannot be admitted without the consent of the Attorney General”. The report states that the relevant juror “was sworn and marked sworn by the clerk, before the challenge was heard by the Court; and therefore without the assent of the Attorney General, then present, they would not alter the record; and because he would not assent to alter the record, the challenge was disallowed.” Similarly, in R v Harrington and Hanlon, when one of the jurors came to be sworn the appellant said “challenge” but the word was not audible beyond the confines of the dock. Junior counsel for the appellant repeated the challenge audibly, but not until after the juror had commenced to take the oath. The trial judge’s decision that this was too late to be an effective challenge was affirmed.
- The question then is whether the word “challenge” spoken by the appellant was audible to the court. The recording does not support the opinion expressed by defence counsel in his affidavit that what the appellant said was loud enough for someone seated in the trial judge’s position to hear. Nor does it support the appellant’s opinion that it was heard by the juror concerned. The circumstance that defence counsel heard the appellant say the word “challenge” is consistent with the appellant having said that word loudly enough for defence counsel to hear it but too softly for it to be heard by the relevant juror or any other juror, the trial judge, or any court officer. That defence counsel heard the appellant say the word and sought an opportunity to speak to his client does not justify a conclusion that the appellant voiced the word “challenge” loudly enough for it to be heard by the court. The subsequent interaction between the appellant and defence counsel does not advance the appellant’s argument.
- The evidence filed by the appellant is an insufficient basis for the Court to refrain from acting upon the report of the trial judge and the consistent evidence of the transcript and the recording. Although the appellant deposes that he “called out ‘challenge’”, his affidavit does not directly address the question whether he did so sufficiently loudly such as to be audible to the court, rather than merely within the confines of the dock and to defence counsel. To the extent that the appellant’s affidavits convey the impression that the word “challenge” was said in a sufficiently loud voice to make it audible to the court as a challenge to the juror, that seems improbable in circumstances in which the bailiff did not advert to any such challenge but swore in the juror without comment, defence counsel did not then object to the juror being sworn or bring the matter to the trial judge’s attention, and the trial judge did not intervene. The absence of any reference to a challenge by the appellant in the transcript or the court order sheet confirms that what the appellant said was not audible to the judge or the judge’s associate.
- The audio recording clearly conveys that the appellant spoke the word “challenge” in a whisper, far more quietly than the spoken words recorded on the transcript (including defence counsel’s challenges to other jurors). That the suggested challenge was not heard by the trial judge is established by the trial judge’s report. The proper conclusion is that the appellant said “challenge” too quietly for it to be audible to the trial judge, any court officer, or any juror. The evidence suggests that the appellant said that word as an instruction or suggestion to defence counsel to challenge the juror. That is consistent with the appellant’s conduct in whispering the word rather than speaking it aloud, the trial judge’s reference in the report to the appellant being agitated at the time (presumably because he disagreed with defence counsel’s decision not to challenge the juror), and the exchange after the relevant events in which the trial judge referred to the difficulty which defendants may encounter in obtaining the attention of their lawyers.
- For these reasons the appellant did not make an effective challenge to the juror. Ground 3 fails for that reason.
Ground 2: The conviction cannot be supported having regard to the whole of the evidence
- Ground 2 in the notice of appeal invokes the ground in s 668E(1) of the Criminal Code, “that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence…” That ground raises the question whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt.
Summary of the evidence
- The complainant gave evidence in the Crown case that he sustained injuries in a fight with his wife on the day before the day when the appellant assaulted him. The police arrived at his home and photographs were taken of him. The complainant was taken to hospital that night, 26 May 2013. Photographs of those injuries were in evidence at the trial. A doctor gave evidence in the Crown case, identified injuries shown on photographs taken on 28 May which were not shown on the photographs taken on 26 May, and expressed the opinion that those injuries were not present on 26 May.
- The complainant gave evidence that on the morning after he returned from hospital he opened the door of his house after he heard knocking and he saw the appellant, who he knew. The appellant took the complainant for a drive. The alleged co-offender was also in the car. The appellant and the alleged co-offender demanded money from him. The appellant became angry and started swearing at the complainant. The appellant drove back to the front of the complainant’s house. The complainant opened the car door and started to walk back to his house. The appellant got out of the car, ran to the complainant and threatened to slap him or put his head into the complainant’s face. The complainant responded that he did not want to fight the appellant and would call the police. The appellant said that he did not care and punched the complainant in his mouth, on his lip. The complainant spun around. The appellant pushed him and he fell down in the middle of the street. The appellant kicked the complainant in his face, head and neck. The appellant continued kicking the complainant, who lost consciousness. The complainant said that when he and the appellant got out of the car and the appellant came towards him the alleged co-offender was still in the car, but when the complainant fell down the alleged co-offender was close to his back. The complainant heard the appellant asking the alleged co-offender to take the complainant’s pants off, and the complainant heard the appellant making a threat. After a few minutes the appellant and the alleged co-offender left the complainant where he was. They went to the car and drove away. The complainant then called the police. When the police arrived the complainant’s lip was bleeding, he had an injury to his chin, his neck and the back of his head were bruised and painful, and he had more bruises.
- The complainant was cross-examined extensively by counsel for the appellant and by counsel for the alleged co-offender upon a range of matters, notably including the details of his evidence of the assault, his injuries, the previous assault by the complainant’s wife, and earlier evidence he had given. The appellant maintained his account. The cross-examination revealed some differences in matter of detail. The complainant denied the following version of events put by the appellant’s counsel: the complainant asked the appellant to drive the complainant to a different address, the complainant got out at that address and went into a house whilst the appellant and the alleged co-offender stayed in the car, the complainant returned to the car with cannabis, took out a bong and started to smoke cannabis, the appellant did not insult the complainant, there was an argument during which the complainant assaulted the appellant by kicking and punching him, the complainant ran after the appellant when the appellant tried to get away from the complainant, the complainant continued to throw punches at the appellant, the complainant slipped and fell, the appellant did not punch, kick, or threaten the complainant, none of the injuries suffered by the complainant were caused by the appellant, and the complainant did not lose consciousness at any time.
- A police officer gave evidence that at about 9 pm on 27 May he arrived at the complainant’s address and saw the complainant sitting in the gutter in a distressed and emotional condition. The complainant appeared to be in shock and he had wounds on parts of his body which were still bleeding.
- The appellant gave evidence in his defence. His evidence was that on the car journey the complainant directed the appellant to a house where the complainant left the car and returned with cannabis. The complainant started to smoke a cigarette and the appellant asked him not to smoke. After having some beer the complainant started to smoke marijuana using a bong. The appellant and the alleged co-offender asked him to stop. The complainant became agitated after parking outside the complainant’s house the complainant continued to smoke and became rude. Eventually the complainant opened the door, went around to the driver’s side door, opened it, and kicked the appellant in the shoulder. The appellant gave evidence that the alleged co-offender got out of the car, at which time the appellant ran to the other side of the road to get away from the complainant. The complainant followed the appellant, throwing punches. The complainant punched the appellant twice in the head on the left and right temples. The complainant slipped and fell down, and blood came out of his mouth. The appellant said that he then ran away back across the road to his car. The appellant and the alleged co-offender ran to the car and drove away. After a bit of time they returned and the complainant was no longer there. The appellant denied that he punched or kicked the complainant. The appellant said that he sustained injuries including a swollen head, an injury to his shoulder, and excruciating pain in his left-hand side.
- The appellant called a doctor who was consulted by the appellant on 31 May. The doctor found that the appellant had a haematoma on his head (he later said that this was on the left and right temples), his neck was painful and stiff, and his right shoulder could not move in its full range and had pain, but was otherwise normal. The diagnosis was multiple soft tissue injuries. The doctor was unaware why it took four days for the appellant to consult the doctor (if the appellant suffered these injuries on 27 May).
- The alleged co-offender gave evidence in his defence. He said that the complainant gave directions to the appellant where to drive. Upon arrival the complainant went to an address and returned with cannabis. The complainant smoked cannabis using a bong. The alleged co-offender told the complainant to dispose of the bong and not to smoke in his car. The complainant responded with a swear word and that he was smoking where he wanted to. The complainant became agitated and swore a lot. He yelled and shouted. Upon returning to the complainant’s house, the complainant got out of the car, opened the appellant’s door, and kicked him in the right shoulder. The appellant tried to run away to the other side of the street. The complainant ran to the appellant, punched the appellant three times on his mouth, and then fell to the ground (a grassed area). The alleged co-offender and the appellant then left.
- The appellant argued that the jury’s verdict was unreasonable because the appellant’s evidence was supported by the evidence of the doctor called in his case, a witness who was independent, and it was also supported by the evidence of the alleged co-offender. That did raise a real issue for the jury’s consideration. However, whilst the evidence of the doctor was generally consistent with the evidence of the appellant, the doctor’s evidence concerned his consultation with the appellant some days after the event; the jury was not bound to accept that the injuries seen by the doctor were or might have been inflicted by the complainant; and whilst the appellant’s account was generally consistent with the alleged co-offender’s account, there were some differences. The jury could also take into account that the complainant’s evidence derived some support from the evidence of the police officer who found him in a distressed state and the evidence of the doctor who examined him that (consistently with the photographs) the complainant had recently received injuries in addition to the injuries he suffered in the fight with his wife, and the jury could consider that the appellant’s explanation for those additional injuries (that the complainant fell when attempting to assault the appellant) did not in truth explain them. In any event, it does not follow from the matters relied upon by the appellant that it was unreasonable for the jury to accept the general accuracy of the complainant’s account and to reject altogether the appellant’s different account.
- The acquittal of the alleged co-offender was explicable on the basis that the jury may have doubted that his presence or anything done by him aided the appellant by encouragement (which was the Crown case). The appellant’s acquittal of the circumstance of aggravation that he was in company was a logical consequence of the acquittal of the alleged co-offender. That does not reflect adversely upon the complainant’s credibility or the reliability of his evidence; or at least such a view was reasonably open to the jury.
- The appellant’s arguments raise issues which it was for the jury to consider. There is every reason to think that the jury did consider them. Despite those issues, the jury must have accepted the evidence of the complainant, rejected the inconsistent evidence of the appellant and the alleged co-offender, and been persuaded beyond reasonable doubt of the appellant’s guilt notwithstanding the evidence adduced in the defence cases. In those respects, the jury had the advantage, denied to this Court, of seeing and hearing that evidence as it was given. The manner in which that evidence was given may well have been significant for the jury’s verdicts.
- My conclusion is that it was reasonably open to the jury to find that the Crown had proved the offence alleged against the appellant beyond reasonable doubt.
Ground 4: the learned trial judge erred in not directing the jury as to either the matter of a consensual fight or self-defence
- Under ground 4, the appellant submitted that, whilst the Crown case was that the appellant assaulted the complainant who had not assaulted the appellant and the defence case was to opposite effect, “a jury is entitled to refuse the accepted cases of the parties” and “work out for themselves a view of the case which did not exactly represent what either party said”. The appellant submitted that, depending upon what facts were accepted by the jury, it was possible that self-defence or a consensual fight was raised on the evidence. It was submitted that the trial judge was not absolved from putting a defence to the jury which arose upon the evidence even though it was not relied upon by defence, and that, by failing properly to direct the jury upon those issues, the appellant was denied a fair chance of an acquittal.
- The respondent relied upon the High Court’s re-statement of the applicable principles in James v The Queen that the trial judge is obliged “to identify the real issues in the case and to instruct the jury on so much of the law as is necessary to decide those issues”, and:
“Discharge of the trial judge’s role in ensuring fairness to the accused requires that the jury receives instruction on any defence or partial defence, provided there is material raising it, regardless of the tactical decisions of counsel. Among other things, this recognises the forensic difficulty of relying on inconsistent defences. The tactical decision not to rely on a defence or partial defence, whether objectively sound or otherwise, does not relieve the trial judge of the obligation to instruct the jury on how on a view of the facts a defence or partial defence arises.
Where there is evidence to support a defence or partial defence, it is incumbent on the prosecution to negative it. Satisfaction that the defence or partial defence has been negatived will be an issue in the trial and almost always will require the trial judge to so direct the jury.”
- The respondent argued that in a footnote the High Court endorsed the statement by Thomas JA (McPherson JA and Chesterman J agreeing) in R v Willersdorf that, “[t]he proper discharge of that duty does not require the presentation of every conceivable defence. To do so might tend to obfuscate the true defence.”
- The respondent argued that the matter of a consensual fight was addressed in the summing up but that was not necessary. The respondent pointed out that defence counsel did not seek directions from the trial judge on self-defence even though the trial judge afforded defence counsel and prosecution an opportunity to seek particular directions both before and after summing up. The respondent argued that there was no evidence from which a jury could conclude that the appellant might have been acting in self-defence. The evidence of the appellant and the alleged co-offender was that the appellant did not punch or kick the complainant at all. Furthermore, the Crown case, as reflected in a direction by the trial judge, was that the jury must find the appellant not guilty unless the jury was satisfied beyond reasonable doubt that the appellant “assaulted [the complainant] by punching him, pushing him, and when [the complainant] was on the ground, kicking him repeatedly around the neck, head and right shoulder or side…”. The respondent argued that there could be no room for self-defence in relation to such an assault.
- Defence counsel did not seek any direction or re-direction about self-defence or consent to a fight. The appellant could succeed on this ground of appeal only if a miscarriage of justice resulted from the absence of such directions.
- The trial judge directed the jury that they could convict the appellant only if they were satisfied beyond a reasonable doubt that the complainant did not consent to a fight with the appellant. The trial judge also told the jury that, “it’s not been really suggested that there was a consensual fight between them…[the complainant] said he didn’t consent to fighting with [the appellant], that he didn’t want to” and the appellant “said that he didn’t start anything or want to fight with [the complainant].”
- Any such issue would concern the aspect of the definition of “assault” in s 245 of the Criminal Code that the application of force (or the attempted or threatened application of force) occur “without the other person’s consent”. In this case, that would require the focus to be upon the question whether the complainant consented to the particular assault or series of assaults alleged against the appellant, rather than upon the more general expressed question whether the complainant consented to “a fight”. In R v Raabe, Thomas J observed:
“It is erroneous however to refer broadly to the question of “consent to fight”, or of consent to the receiving of a particular degree of injury. The issue, if it arises at all, is one of consent to a particular assault or a particular series of assaults. If the relevant consent is one to receive blows (or some other kind of assault), this necessarily raises the question of the type, nature and extent of the blows that the complainant has consented to receive. This is of course a jury question and the answer has to be inferred from all the circumstances of the case.”
- Nothing in the evidence could justify the jury in finding that the complainant might have consented to being kicked in the way described in the trial judge’s direction quoted in  of these reasons. An issue of that kind does not arise even upon a liberal view of the evidence. The absence of more extensive and precise directions upon this topic could not have resulted in any miscarriage of justice.
- As to self-defence, the footnote in James v The Queen upon which the respondent relies (footnote 51) cites R v Willersdorf for the proposition that, “there may be instances in which the trial judge properly accedes to trial counsel’s request not to leave variants of a defence to avoid obfuscating the real issues…” Defence counsel did not make such a request in terms, but so much was implicit in the way in which defence counsel litigated the case and defence counsel’s omission to ask the trial judge to leave self-defence when the opportunity arose both before and after the summing up. To leave self-defence would have obfuscated the real issues. Upon the complainant’s evidence, the appellant chased the complainant, felled him, and then kicked him in the way described in the trial judge’s direction quoted in  of these reasons. The appellant denied that he assaulted the complainant at all. Upon the appellant’s evidence, the complainant kicked and chased the appellant, punched the appellant, and in the course of that assault the complainant injured himself by falling over and hitting the ground. Both versions are irreconcilable with self-defence.
- As a matter of formal logic, and allowing for the possibility that the jury might take a broad and inexact view of different aspects of the conflicting versions, the jury could theorise that, before the appellant kicked the complainant in or about the head, the complainant assaulted the appellant. But that would require the jury to have doubted the accuracy of the complainant’s evidence that he did not assault the appellant and that he instead ran away from him; if so, the jury must surely have harboured a reasonable doubt about the complainant’s evidence of being assaulted by the appellant, but it is evident that the jury did not harbour such a doubt. In any case, even allowing for a broad view of the evidence, upon no reasonable view of it could the jury find that the appellant might have kicked the complainant in the way described by the trial judge “to make effectual defence against” an earlier assault by the complainant. Even on an inexact and broad view of the evidence, no sensible combination of aspects of the competing versions suggested that the appellant might have acted in self-defence in that way.
- In my opinion, the absence of directions about self-defence did not give rise to any miscarriage of justice.
- The offence of which the appellant was convicted carries a maximum penalty of seven years imprisonment. The sentencing judge sentenced the appellant on the basis that there was no provocation for the appellant’s assault, that it was not a premeditated or planned assault, and that it was a protracted assault in the sense that, after the complainant was on the ground, the appellant proceeded to kick the complainant at least once. The appellant was 48 years old at the time of the offence. He had a prior history of offences involving an element of either intimidation or violence. The first offence was described by the sentencing judge as “very dated”; it occurred in 1998. It involved a verbal exchange with a Commonwealth officer, rather than a physical threat. The sentencing judge observed that what was more concerning was an offence of common assault by the appellant in November 2010, for which the appellant was sentenced to four months imprisonment wholly suspended for a period of 12 months. That sentence expired only four months before the subject offence. The sentencing judge concluded that the sentence required was one which would deter the appellant from further violence and which would also deter other people from this kind of gratuitous street violence.
- The sentencing judge took into account that the appellant had come to Australia as a refugee and had no relatives in Australia or in his country of origin. The appellant had many qualifications and skills, including tertiary qualifications. He was currently on a disability pension because of an obstructed breathing condition but was still able to do some work organising other people in the construction industry. The sentencing judge also took into account information supplied by defence counsel that the appellant supported his daughter and also a community in the Philippines. The sentencing judge noted defence counsel’s submission that immediate release to parole might be imposed. Taking into account that the sentence was to be imposed upon a conviction after a trial in which the complainant was probed extensively about his own conduct in cross-examination, the sentencing judge concluded that a term of imprisonment of between eight and 12 months was appropriate. Upon the footing that the sentencing judge did not accept the complainant’s evidence that there were 50 kicks but acted upon the basis there must have been at least one kick, the sentencing judge imposed a sentence of eight months imprisonment with release on parole after the appellant had served four months in custody
- The appellant argued that the sentence should have been more lenient in circumstances in which the appellant had not been to prison before and the complainant had assaulted him. The second point is not consistent with the sentencing judge’s findings, which were consistent with the jury’s verdict. As to the first point, the sentencing judge did not harbour any misapprehension that the appellant had previously been in prison.
- The appellant also argued that he had not previously assaulted anyone. That argument is inconsistent with the record of the appellant’s criminal history, with reference to which the appellant was sentenced without any similar objection. That criminal history records that on 31 January 2012 the appellant was convicted of an offence of common assault committed on 20 November 2010, a conviction was recorded, and he was sentenced to imprisonment for four months to be suspended for 12 months. Appeals against that sentence to the District Court and then to the Court of Appeal were dismissed.
- The appellant’s other arguments comprised criticisms of various people involved in the criminal justice system and allegations about his offending which could not be reconciled with the jury’s guilty verdict. None of those matters bear upon the question whether the appellant’s sentence is manifestly excessive. Having regard to the circumstances identified by the sentencing judge, and to the further circumstance that there was no evidence of remorse or insight into the offending by the appellant, it could not be said that the short term of actual imprisonment imposed upon the appellant, a mature adult who had committed an offence which involved the protracted infliction of bodily harm, was manifestly excessive. In such a case, a short period of actual imprisonment is ordinarily within the sentencing discretion: see R v Hilton. The particular sentence in this case was not manifestly excessive.
- I would dismiss the appeal and refuse the application for leave to appeal against sentence.
- MORRISON JA: I have read the reasons of Fraser JA and agree with those reasons and the orders his Honour proposes.
- HENRY J: I have read the reasons of Fraser JA. I agree with those reasons and the orders proposed.
 At 10:37:5.
 The appellant cited Johns v The Queen (1979) 141 CLR 409 at 420 (Barwick CJ) and 426 (Gibbs J).
 (1979) 141 CLR 409 at 419-420 (Barwick CJ), 4-6 (Gibbs J), and 430 (Stephen J).
 Maher v The Queen (1987) 163 CLR 221, R v Panozzo; R v Iaria  8 VR 548, Petroulias v R (2007) 73 NSWLR 134, and R v Brown; R v Tran (2004) 148 A Crim R 268.
 (1988) 164 CLR 365 at 372-373 (Brennan, Dawson and Toohey JJ), 419 (Barwick CJ), and 429 (Gibbs and Mason JJ).
 (1979) 141 CLR 409 at 420 (Barwick CJ), 426 (Gibbs J) and 431 (Murphy J).
 It is unnecessary to decide in this case whether it is sufficient for the challenge to be audible to the juror or whether the challenge must also be audible to the trial judge or court officer(s) responsible for empanelling the jury.
 (1979) 141 CLR 409 at 417.
 (1979) 141 CLR 409 at 424.
 (1663) Cro Car 291; 79 ER 855.
 (1976) 64 Cr App R 1.
 (1976) 64 Cr App R 1 at 3.
 M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606.
 Stevens v The Queen (2005) 227 CLR 319 at 330  (McHugh J).
 (2014) 88 ALJR 427 at 435.
 (2014) 88 ALJR 427 at 435 , 435-6 .
  QCA 183 at .
 RB 361, 421.
 RB 454, with reference to RB 414-415.
 RB 454 with reference to RB 414-415.
 R v Raabe  1 Qd R 115 at 121-122. Connolly J (at 116) and Derrington J (at 124-125) gave reasons to similar effect.
 Criminal Code, s 271(1).
 During the sentencing judge’s sentencing remarks the appellant interjected that, “nothing happened to him, your Honour. He was fine”. And “you believe him your Honour?”, “I will die in prison, your Honour”.
  QCA 12 at .
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC960/14 (No Citation)||03 Jun 2015||Date of Conviction and Sentence.|
|Notice of Appeal Filed||-||17 Jun 2016||DC960/14|
|Appeal Determined (QCA)|| QCA 121||05 May 2016||Bench warrant issued to lie in the registry pending Shambayati's special leave application: Fraser, Morrison JJA and Henry J (per curiam).|
|Appeal Determined (QCA)|| QCA 100  1 Qd R 453||19 Apr 2016||Appeal against conviction dismissed: application for leave to appeal against sentence refused: Fraser, Morrison JJA and Henry J.|
|Application for Special Leave (HCA)||File Number: B32/16||16 May 2016||-|
|Special Leave Refused|| HCASL 255||14 Oct 2016||Special leave refused: Gageler and Gordon JJ.|