The Queen v Houston[1997] QCA 205

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 61 of 1997

Brisbane

[R. v. Houston]

THE QUEEN

v.

KENNETH LAURIMER HOUSTON

(Applicant) Appellant

Macrossan CJ

Davies JA

Thomas J

Judgment delivered 15 July 1997

Judgment of the Court

APPEAL DISMISSED AND APPLICATION FOR LEAVE TO APPEAL SENTENCE REFUSED

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 15 July 1997

This is an appeal against a conviction of assault occasioning bodily harm.  The ground is that the decision of the stipendiary magistrate was unsafe and unsatisfactory.

The incident occurred on the property of one Mills who was a neighbour of the complainant (Ross).  They and others including one Hunt had been assisting Mills to perform a burn-off on his property.  A permit had been obtained and the fire was under control.  The appellant, who is a fourth officer and secretary of the Buxton Rural Fire Brigade, went with his wife and son to investigate the fire, having received a telephone call from a person who indicated some concern about it.  Some hostility emerged in the discussion that ensued, when the conversation turned to the circumstances surrounding a fire on New Year's Eve on another property some 12 months previously.  The appellant claimed that the fire had jumped the road and Ross called him a liar.  The appellant's evidence was that Ross had described the fire-fighters at the previous fire as "pissed" and that Ross had called him a "lying bastard".  On any version there was plainly verbal hostility preceding the physical combat that ensued.

The essential point of departure between the appellant on the one hand and Ross and the witness Mills on the other, concerns the initiation of physical contact.  The prosecution case is that following the verbal abuse, without prior warning, the appellant head-butted the complainant to the ground.  The stipendiary magistrate expressly made the following findings:

"(5)That the defendant, either with or without prior contact with his hands, to the upper body of Ross, subjected him to a sudden head-butt, knocking Ross to the ground, before proceeding to further attack the head and face of Ross, with blows from his fists.

7. That after Houston was pulled off Ross, the situation calmed, and Houston after being released by Mills, turned, as if to leave.

8. That with a sudden movement, Houston turned back, again head-butting Ross, and again proceeded to turn upon him.

9. That Ross again ended up on the ground, and that he hit out with a leg or possibly legs, directed at the body of Houston, in an effort to push or kick him away.

10. That Ross was successful, in that some kicks to the body of Houston were sustained, with the result that he was forced backwards on to the nearby, four-strand wire fence (2 of which were barbed wire), catching or pinning him momentarily by his clothes, to the fence.  That he ripped both his shirt and pants, and sustained some lacerations to his back and buttocks, and upper legs, in the process, as outlined by the defendant, and as shown in the photographic exhibits.

11. That shortly after, the son of the defendant arrived, and was successful in encouraging the defendant to leave the vicinity."

The appellant admits that he head-butted Ross, but alleges that this was done after he was punched once in the jaw by Ross, and had been grabbed by Mills.  On his case this was a justifiable act of self-defence.  Unfortunately for the appellant no other witness was able to confirm this version.

There was certainly evidence upon which the magistrate could make the first of the quoted findings, namely the evidence of Mr Ross and that of Mr Mills.

The medical evidence shows that the complainant suffered two black eyes, "busted" top and bottom lips, painful teeth and gums, bruised cheek-bone and a very badly bruised nose.  He was unable to work for a month.  The appellant also suffered injuries, mainly in the abdominal area, consistently with having been sustained in the later part of the fight.  The appellant's son, who saw only the later part of the events, described the appellant as "getting kicked in the stomach by a man on the ground" and as being against a barbed wire fence.  He was described as "bouncing - coming forward, he was getting kicked back onto it so he was like pinned.  He was just bouncing back and forwards."  The appellant, unknown to the complainant and his supporters, at the time wore a peritoneal dialysis catheter.  His injuries are described as bruising and tenderness to the anterior abdominal wall, oozing blood from the catheter site, and an umbilical hernia which developed two days after the incident.  The hernia could have been caused by a blow or by heavy exertion.  Some time after the altercation he required a kidney transplant.  He also sustained lacerations in an "S" shape down his back consistent with pressure from the barbed wire fence.  He also had lacerations to his forehead and chin.

The appellant who conducted his appeal in person raised a number of points which will now be dealt with.

1. After the incident, the complainant made a complaint to the police, shortly before the appellant did so.  In the event the police did not investigate the appellant's complaint as a separate incident and did not take a statement from the appellant's son.  Whilst one may detect some element of a lack of even-handedness in the police investigation, the stipendiary magistrate was made aware of this, recognised the possible disadvantage to the appellant and expressed qualified criticism of the police approach.  There is no reason to think that this factor led to any unfairness in the conduct of the trial, or that any relevant evidence was not adduced.

2. The appellant also referred to what he called "fabrication of evidence by witnesses" and contradiction in evidence.  One of these points is based on the premise that a statement attributed by police to Mr Hunt during their record of interview with the appellant, which was denied during the interview by the appellant, was accepted as evidence in the case.  That is simply not correct.  

3. Another point concerns the evidence as to the second head-butt.  Here there was an inconsistency between the evidence of the complainant and that of Mr Mills.  The complainant initially stated that after the first head-butt, when he was about half way up, the appellant "came in and head-butted me again".  Mr Mills gave evidence that he took hold of the appellant after the initial head-butt, that when matters seemed to have settled down he let him go, that the appellant looked as if he would walk away, but then suddenly head-butted Mr Ross again.  Ross admitted under cross-examination that he could not personally confirm that the second blow was a head-butt, because he was almost blind without his glasses, he was in a reduced state of consciousness, and that Mr Mills had told him that it had been a head-butt.  It is not surprising then that in finding that a second head-butt occurred, the stipendiary magistrate chose to act upon the description of it given by Mr Mills.  The discrepancy in recollection of sequence between the two witnesses was however not of such a character as to require disbelief of the whole of the evidence of either or both these witnesses.

It is not necessary to go through the other points of criticism listed in the appellant's outlines of submissions.  They draw attention to discrepancies in estimates of distance from which Mr Mills first saw the appellant, and include a criticism of Mr Ross describing his teeth as "fractured" when they had only been loosened and other matters.  Suffice it to say that none of them is of sufficient moment to suggest that the stipendiary magistrate erred in reaching the conclusions he did.

Authoritative decisions suggest that the appeal which is governed by ss. 673, 668D and 668E of the Criminal Code can succeed only if no reasonable magistrate could have reached the conclusion to which the magistrate came or if there was no evidence to support that conclusion (Bailey v. Costin CA 261 of 1993, 18 October 1993);  or if there is demonstrable error in the reasoning which appears to have been an influential factor in the finding of credibility (R v. Free [1983] 2 Qd R 183, 192).

In the present matter the appellant conceded that the critical question was who struck the first blow, and that if the stipendiary magistrate's finding that the appellant did so by means of a head-butt was sustained, he, the appellant, could not complain about the result.  The stipendiary magistrate had the advantage of hearing and seeing the witnesses and it has not been shown that this advantage was abused or that any error of substance occurred in the determination.  There is evidence to support his conclusion and there is nothing unreasonable in that conclusion, or any reason to think that the conviction was unsafe or unsatisfactory.

The appeal must be dismissed.

The appeal includes an application for leave to appeal against sentence.  The sentence was a fine of $500 and a $1000 compensation order, in default of payment 60 days' imprisonment, with one month to pay.  No conviction was recorded.  This application was not pursued in argument.  There is no reason to interfere with the sentence and the application for leave to appeal against it will also be refused.