The Queen v Silvester[1998] QCA 194

COURT OF APPEAL

McPHERSON JA

AMBROSE J

LEE J

CA No 101 of 1998

THE QUEEN

v.

DESMOND PATRICK SILVESTER

   (Applicant) Appellant

BRISBANE

DATE 05/06/98

JUDGMENT

McPHERSON JA:   The appellant, Desmond Silvester, was convicted after a trial in the District Court of the offence of doing grievous bodily harm to the complainant Adele Johnston on 14 May 1996. The injury she sustained was a jaw broken in two places on either side of the chin. She underwent a surgical operation to fix the jawbone but that was only some days later. At the date of the trial in 1998 she continued to suffer paraesthesia to her lower face and lip and that condition, on the evidence, is going to be permanent.

The prosecution case was that the injury she sustained on the date mentioned was caused by two punches inflicted by the appellant. She is, it appears, about 58 years of age and the consequences are, from what one can see of the medical evidence, that she will bear this disability for the rest of her life.

At the time in question the appellant lived with a woman who was then his de facto wife. Her name is Jill Vea and they lived in a unit in a block of units, another of which was  occupied by the complainant, and yet another by a further witness in this case.

On the evening of May 14, 1996 the appellant and his wife invited the complainant to share their dinner with them in their unit. Mrs Vea was cooking a roast. They were sitting on the balcony, which adjoins the kitchen. The appellant and the complainant had a good deal to drink. He was telling the complainant about his exploits as a boxer many years before.

She evidently became tired of hearing about it, and made some not very polite remark before going into the kitchen, as she said, to get herself another glass of wine. In evidence she said that he followed her in and punched her in the jaw. She was knocked to the floor, banging the back of her head on the tiles, and when she got to her feet he struck her again in the jaw. She left the unit in some distress and went to the unit of another occupier in the building, a Mr Delaney, who was a prosecution witness at the trial.

The police were called and arrived at some time, it would seem, after 11 p.m. that evening. It was only after that that the complainant was taken to hospital; but, because of the number of patients who were waiting there to be looked after, she went away and came back again later, with the result that she was not treated until early on the following morning.

Jill Vea gave evidence at the trial which confirmed, but also differed in some respects from, the evidence given by the complainant. She agreed that, when the complainant came into the kitchen, the witness had just taken the roast out of the oven and put it on the kitchen bench. According to Mrs Vea's account, the complainant came up to the roast, picked it up in her hands and began eating it in that ungainly fashion. The complainant denied that she had done any such thing. However that may be, it was then, according to Mrs Vea's account, that the appellant launched himself from the balcony into the kitchen and began punching and slapping the complainant delivering, as Mrs Vea said, up to six such hits and slaps to the face of the complainant.

Mrs Vea, it should be noted, had originally given a different version of events, in which she said the complainant had either deliberately or perhaps accidentally struck or knocked into her, and so, it was said, Mrs Vea had suffered a black eye as a result. When the police came to interview her it was evident that she had a black eye.

Some time after she had given this account to police, Mrs Vea separated from the appellant, and it was in about February 1997, which was well after that, that she gave a fresh statement to the police in which she recounted the version to which she later testified at the trial. It was that the appellant had in fact slapped and punched the complainant as described. Mrs Vea explained her earlier statement as the consequence of having been forced by the appellant to tell the police a fabricated story. It was, she said, he who had punched her and caused her black eye.

The appellant did not himself give evidence at the trial. The jury were therefore left with the evidence of the complainant and Mrs Vea, both of whom had testified that the appellant had punched the complainant and so caused the injuries described. Their verdict shows that they were satisfied beyond reasonable doubt that that was what had happened. Although there were some evident differences between the two versions they corresponded with respect to the critical or essential element in the case, that is to say, what it was that had caused the grievous bodily harm sustained by the complainant. Mrs Vea was not influenced by drink on the evening in question, and the jury were, in the circumstances, entitled to regard her as a reliable and disinterested witness so far as concerned the central question at the trial. There is therefore no foundation for a submission that the verdict should be treated as unsafe or unsatisfactory.

The appellant, who appeared in person on the appeal, referred to a series of points in a written outline which he had prepared and at which we have all looked. None of the points in issue directly impinges on the validity of the verdict appealed against. The first point is that the complainant was not correct in saying that she had not previously broken her jaw. The appellant seems to have been confused about this. A question was raised in evidence at the trial concerning an earlier occasion when she had suffered an injury to her jaw; but the incident on that occasion had happened in 1995, and it has no bearing on the question whether the appellant hit the complainant in May 1996.

The second point concerns the precise sequence of events after what was alleged in the Crown case to have been the punching of the complainant. There are discrepancies in the times given by various individuals who were witnesses in the prosecution case. It is right to say that the police didn't arrive until about 11.00 at night. The complainant seems, on one version of events, to have left the unit at about 8 o'clock. On the other hand, it seems likely that at least one of the witnesses who was summoned to attend to the complainant after her injuries was called at some time between 10 o'clock and 10.30 at night. My own impression is that there had been enough drinking in the flat in which the incident occurred to make it rather unclear to people who were there what the time was when events took place.

Mr Delaney, to whose flat the complainant went, said it was about 11.20 p.m. when the complainant rang the doorbell. That must obviously be a mistake, because it was at about that time that the police arrived and, according to Mr Partridge who had been summoned to the unit, he had arrived there at about 10.30 p.m.

All of this might matter a little if it had any real significance in the case; but it does not. Counsel who appeared in the case do not appear to have thought it sufficiently important to clear up, and the jury do not seem to have placed any importance upon the particular times at which some of these events occurred. There were, as I have said, discrepancies in the witnesses impressions of the precise times, but nothing was made of them at the trial, and they do not really affect the reliability of the witnesses on the central issue, which was whether the complainant had been punched as she and Mrs Vea said she had.

Much the same remark holds good for other matters raised by the appellant in his written outlines. He says - this is in points 3 and 6 - that he was not arrested until two weeks after the incident. One may speculate as to the reason for the delay. It might have been due to the fact that the full effect of the complainant's injuries was not known until some time after 22 May 1996 when she underwent an operation with respect to the plates which were being used to stabilise her jaw. Once again, however, the precise date on which the appellant was arrested or charged is not a matter that affects credibility or the principal issue in the case, which is whether the appellant punched the complainant.

Other matters raised by the appellant in his written outline do not merit detailed consideration. The difference between the two women as to how many times the complainant was punched is a matter that has already been adverted to. The jury were entitled if they chose to act on Mrs Vea's evidence which was, if anything, less favourable to the appellant on this point than was the evidence of the complainant herself.

The complaint in paragraph 8 of the appellant's notes of submissions is not borne out by the record. That complaint was "that the jury were quite rushed" into arriving at their verdict. In fact they deliberated for at least some five to six hours before reaching the verdict, and on several occasions asked for redirections. Having retired initially at 1 p.m. on the last day of the trial, they brought in a verdict at 9.30 p.m. or a little after. The learned judge pointed out to them if they needed more time, she would arrange to ensure that they had hotel accommodation, so that they could continue their deliberations on the following day. They chose instead to return their verdict on the evening in question. There is no possible basis on which a mistrial can be derived from that series of events.

Another matter of complaint was the sequence in which the prosecution witnesses were called. It, too, is not a matter about which any justifiable complaint can be, or, indeed, was made at the trial. It was almost certainly the result of efforts on the part of both counsel to accommodate witnesses such as the medical practitioner, who had surgical operations to perform which he could not readily put aside.

The other complaint to be found in paragraph 10 of the written notes is that the trial judge invited counsel to join her in a cup of coffee, while it was said, the jury were deciding the fate of the appellant. The complaint only needs to be stated to demonstrate its fatuity. Judges must maintain proper decorum in Court, but they are not required to appear relentlessly gloomy and solemn.

The jury were the ones who were deciding the appellant's fate and there was no reason to suppose that the judge's having coffee while the jury were considering their verdict would have affected the result in any way. The appellant was, in any event, not able to point to a place in the record where the alleged invitation was issued, but one would have expected it to have been done in the absence of the jury.

There is no merit in any of these complaints, nor in that referred to in paragraph 7 of those notes, which is that the prosecutor made an improper remark in the course of his address to the jury. That point was withdrawn after the appellant was provided with a copy of the relevant part of the transcript (which he had noted previously was not included) in the record. It shows no evidence of any such remark being made.

When all these matters are gone through, there is not one of them that merits further consideration. The appeal against conviction should in my opinion be dismissed.

As to the matter of sentence, the appellant was sentenced to imprisonment for 18 months for the injury to the complainant's jaw and face (which has permanently affected her appearance). A sentence of that order is plainly within the range and cannot be considered excessive.

The appellant is some 58 years old with an extensive history of offences dating back to 1959. Most of the offences are, however, minor, involving incidents of disorder such as resisting police or drink driving, and so on. There is a recorded conviction in 1992 for an aggravated assault on a female, which attracted 18 months probation. However before the subject offence now under review was committed in 1996, the appellant had not offended for some years.

His major complaint, it appears, is that his health is not good. He suffers from emphysema, which might make a prison sentence harder for him to bear than it is for others. But her Honour specifically took this into account in fixing the sentence. The prison authorities will, no doubt, treat the appellant accordingly, bearing this complaint in mind if it needs special attention.

Her Honour also accepted that no element of premeditation was involved in the offence, but nevertheless considered that the offence was made more serious because more than one blow was inflicted on the victim. That was plainly a correct approach. There is no suggestion, it might be said, of any remorse on the part of the appellant for what he did to the complainant. His attempt to suborn Mrs Vea to give a false story in order to protect him is an indication of his lack of remorse.

My impression from having read the record is that the complainant was more intoxicated at the time this incident occurred than she was prepared to admit. Certainly, if Mrs Vea's account of what happened is accepted in full, the complainant behaved most impolitely in attempting to eat their roast dinner by taking it in her hands and munching at it.

But if that was the reason why she was assaulted by the appellant on the occasion in question, it was certainly no justification for his doing so, and none at all for his inflicting on her the permanent injury from which she now suffers.

In conclusion therefore, it is my opinion that the appeal against conviction should be dismissed, and that the application for leave to appeal against sentence should be refused. I would so order.

AMBROSE J:  I agree.

LEE J:  I agree.

McPHERSON JA:  The orders will be that the appeal against conviction is dismissed, and the application for leave to appeal against sentence is refused.