The Queen v Craig[1998] QCA 277

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.  139 of 1998

Brisbane

[R. v.  Craig]

THE QUEEN

v.

DOUGLAS KEITH CRAIG

(Applicant) Appellant

de Jersey C.J.

Pincus J.A.

Thomas J.A.

Judgment delivered 15 September 1998

Separate reasons for judgment of each member of the Court;  each concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.  APPEAL AGAINST SENTENCE ALLOWED.  SENTENCE IMPOSED BELOW VARIED BY SETTING ASIDE THE ORDER FOR IMPRISONMENT OF EIGHTEEN MONTHS IN RESPECT OF THE SUSPENDED SENTENCE AND IN LIEU THEREOF IMPOSE A SENTENCE OF NINE MONTHS IMPRISONMENT.  SENTENCE IMPOSED BELOW OTHERWISE CONFIRMED.

CATCHWORDS: CRIMINAL - Appeal against conviction and sentence - accident, self-defence - whether Trial Judge properly directed on accident - self-defence - whether separate defences of self-defence under ss. 271(1), 271(2) and 272 should have been put to jury - responsibility of defence counsel to indicate if more than one of such sections are relied on - inherent undesirability of obscuring a viable defence of self-defence with other theoretical possibilities - failure of Crown to call witness subsequently called by the defence - Whitehorn v The Queen (1983) 152 CLR 657 distinguished - sentencing - totality principle.

Criminal Code ss 23, 271(1), 271(2) and 272

Penalties & Sentences Act  1992 s. 147(3)(a)(2)

Counsel:  Mr S Hamlyn-Harris for the applicant/appellant

Mr C Chowdury for the respondent

Solicitors:  Legal Aid Queensland for the applicant/appellant

Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 23 July 1998

REASONS FOR JUDGMENT - de JERSEY CJ

Judgment delivered 15 September 1998

1. I agree with the orders proposed by Thomas JA and with his reasons. I also agree with the additional observations of Pincus JA.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 15 September 1998

1. I have read the reasons of Thomas J.A. One of the points pressed by Mr Hamlyn-Harris on behalf of the appellant was that, he contended, the verdict was unsafe. Counsel referred us to the treatment of this topic in Jones (1997) 72 A.L.J.R. 78, wherein the principal judgment, one finds discussion of the tests for determining whether a verdict is unsafe or unsatisfactory. The judges referred at 85 to M (1994) 181 C.L.R. 487 at 493, in which it was said that the test was whether the court thought that it was open to the jury to be satisfied of guilt beyond reasonable doubt. In Jones, the New South Wales Court of Criminal Appeal had misapprehended the test, saying (for example) that the question is whether "the court has or the jury must have had . . . a reasonable doubt as to the accused’s guilt" (Jones at 86). It appears that nothing other than adherence to the precise test enunciated will do; that is, to repeat, whether it was open to the jury to be satisfied, beyond reasonable doubt, of guilt. If it was so open then, according to Jones and earlier cases, the convictions are generally classified as neither unsafe nor unsatisfactory.
2. The issue of what has to be determined in such a case was, more recently, discussed in Gipp (1998) 72 A.L.J.R. 1012. It was said at [167], that use of the expression "unsafe and unsatisfactory" as a ground of appeal should be discouraged and that was taken further in Farrell (1998) H.C.A. 50 at [18], where one finds authority for the view that arguments should never be expressed in terms that the verdicts were unsafe or unsatisfactory. Instead, it was said, the question to be asked is whether the verdicts were unreasonable.
3. It does not appear, however, that these observations are intended to have any practical effect on the way appellate courts proceed; that is, whatever it is that is being tested, the test is still that laid down in Jones. I share the view that the principles there expressed "pose rather than solve the problem which arises in case of word against word" (Jones at 85). I note the explanation of the "open to the jury" test set out in M and reaffirmed in Jones (85). In part, this is to the effect that in most cases a doubt experienced by the appellate court will be a doubt which the jury ought to have experienced too and that where the record shows discrepancies, and the like, in such a way as to lead the appellate court to conclude that "even making full allowance for the advantages enjoyed by the jury, there is a significant possibility" (emphasis added) that the verdict is wrong, it must be set aside.
4. In the present case, there were three witnesses to the events in issue, none of the three versions being entirely reconcilable with either of the others. But two of the witnesses, Mrs Joseph and the appellant, told rather similar stories, sharply at variance with the account given by the complainant Mr Peters; the jury must have preferred Mr Peters’ version. On the whole, Mr Peters’ evidence seems to me more probable than that given by the other two; but experience shows that improbable things do happen.
5. To approach an argument advanced on appeal, that a verdict was not one which was open to the jury, by considering whether one as a member of the appellate court experiences a doubt, or whether there is a "significant possibility" of a wrong conviction, seems to me to have difficulties. The proposition underlying the sanctity of the verdict of the jury is that the jury’s collective wisdom and experience and its advantage in seeing and hearing the witnesses will generally provide a correct answer - not as a matter of mere probability, but as a matter of satisfaction beyond reasonable doubt - to such questions as: which of two conflicting accounts of an event, each of which could possibly be true, is true? The extent to which people can reliably detect false evidence is of course testable: see for example Kapardis, "Psychology and Law" 1997, Cambridge University Press, pp. 211-215. Applying what I understand to be the effect of the "open to the jury" test, I agree that the verdict should stand, as one which satisfied that test. I also agree, substantially for the reasons given by Thomas J.A., that the other issues raised with respect to conviction should be decided against the appellant. I also agree with his Honour’s views about sentence.
6. I agree with the orders proposed by Thomas J.A.

REASONS FOR JUDGMENT - THOMAS J.A.

Judgment delivered 15 September 1998

Appeal Against Conviction

1. It was common ground that on the morning of 15 July 1997 the appellant, accompanied by his friend Mrs Elaine Joseph with whom he had recently renewed an association, went to Mrs Joseph’s former matrimonial home at the Gold Coast. The appellant took with him a sickle (also described as a brush hook or slasher) which had a curved metal blade at the end of a substantial wooden handle several feet long. It was described as “exceptionally sharp”. The visit had been preceded by some hostility between Mr Joseph and his wife, and the stated purpose of this visit was to enable Mrs Joseph to obtain some of her property and some possessions relating to her deceased son.
2. They arrived at about 9am. Mr Joseph was not at home. The only occupant of the house was Mr Joseph’s cousin, Noel Peters. The house was locked and Mr Peters refused them access. The appellant then smashed the glass in a french door and he and Mrs Joseph entered the house through the broken door. They were then confronted by Mr Peters who had obtained a pick handle from a bedroom or storeroom. A fight ensued during which the two men used their respective weapons. In the result Mr Peters sustained four separate lacerations, one of them very serious. A laceration across the left forearm cut the ulnar nerve and also it would seem an artery. There was extensive blood loss and at the time of trial there remained a claw hand disability with substantial disability in the use of the arm. The defence admitted at trial that grievous bodily harm had been caused.
3. Not surprisingly, different accounts were given in relation to the confrontation and fight. The defences were accident or alternatively self defence. The learned Trial Judge allowed each of these defences to go to the jury. After a relatively short retirement the jury found the appellant guilty of grievous bodily harm.
4. The appeal is brought on a number of grounds. It will be possible to group some of these for the purposes of discussion.

Grounds of Appeal

[5]  “Ground 1 ‘The verdict of guilty...was against the weight of the evidence.’

  Ground 2 ‘The verdict of guilty...was unsafe and unsatisfactory.’

  Ground 3 ‘The Honourable Trial Judge erred in law in entering into the factual area in commenting to the jury adversely as to the credibility of the defence witness, Mrs Elaine Joseph.’

  Ground 3A The failure of the Crown Prosecutor to call Mrs Elaine Joseph as a witness gave rise to a miscarriage of justice.”

Mrs Joseph had been a witness at the committal, but at the commencement of the trial the Crown Prosecutor intimated to defence counsel that he did not propose to call her as a witness on the ground that she had changed her evidence from that at the committal proceedings.  Defence counsel invited the Crown Prosecutor to consider the matter at greater length, but in the event the Crown Prosecutor adhered to his decision.  In due course the accused gave evidence and also called Mrs Joseph as a supporting witness.  Her evidence was therefore given to the Court, and although there may have been some forensic disadvantage in this, her account was certainly before the jury.  In the event, no reason was advanced to indicate that the Crown Prosecutor erred in declining to call Mrs Joseph or that his failure to do so contributed to any lack of safety in the verdict.  The present circumstances do not approach those where it could be held that the failure of the prosecutor to call her or provide some acceptable explanation for not calling her resulted in the denial of a fair trial.^[1]  The wide discretion possessed by a prosecutor in determining which persons will be called as witnesses is well established.^[2]  There is no reason to think that this discretion was improperly exercised in this instance.  Although I will bear in mind the circumstance that Mrs Joseph was not called as a prosecution witness, it is fair to indicate at this stage that this ground does not appear to raise any valid concern in relation to the safety of the verdict.

6. Mr Peters’ evidence was to the following effect. At about 9am when he was alone in the house he heard a noise and saw Mrs Joseph at the back door. She called out to be let in and he refused. He then heard an enormous crash and noticed that the appellant was smashing the french glass window with a sickle. He went to a room and obtained a pick handle. He was confronted by the appellant and said to him “Listen, stop that”. The appellant then “took a swipe at me with the sickle. I put the pick handle up and defended myself with it at the same time saying to him ‘Listen, cut that out’”. He then said that the appellant “sort of flicked it and my arm opened up”. He also described one of the blows as a “wriggle” of the sickle. He realised he had a problem with his arm and succeeded in striking his adversary with the pick and also with his fist. The appellant went to the ground and Mr Peters sat on top of him. Mr Peters was bleeding extensively and he got up in order to attend to his wound. Both parties seem to have desisted from further violence from that point on. His description includes the appellant swinging the sickle a number of times, the fact that he suffered four incisions in his arms. He also said that the sickle hit his pick handle a number of times during the fight.
7. When Mr Peters was holding the appellant on the floor Mrs Joseph picked up the sickle and the appellant told her to “take his f-ing head off now”. However she walked away with the sickle.
8. The appellant’s account was that he believed from conversations he and Mrs Joseph had had by telephone with a police officer the previous night that she had a right to break into the premises. He took the sickle with him in the car so that he would be able to cut through the glass panel on the door. After they arrived he heard Mrs Joseph talking to a male person and thought that he heard him calling her a whore. Mrs Joseph came around the side and indicated to him that she wanted him to cut the door open for her to enter. So he “cut the glass door out”, around the top and around the sides and then pushed the centre piece in with his foot. He stepped inside and was trimming jagged pieces of glass off the door when he was poked in the head with a raised pick handle. That was only a poke, but the other man then aimed it at him “with absolutely tremendous force”. The appellant thereupon put the brush hook up and blocked the blow. Both he and Mrs Joseph asked Mr Peters not to continue. Peters continued making strokes accompanied by statements such as “Kill you little man”. He said there were between four and seven or even more such strokes and that one of them struck a “partial” blow to his head. The appellant started to suffer blurred vision and leapt for the body of the other man clinging to his shirt upon which the other man wrapped his arm around the appellant in a bear hug. They slid across the floor. The appellant applied a headlock to Mr Peters and that was how they finished up. The brush hook, he says, finished up underneath them. He saw Mrs Joseph remove the brush hook from “underneath my body, but Peters had his arm crammed around my body, of course”. He at no stage saw Mr Peters get cut and did not know how the cutting injuries happened.
9. Mrs Joseph’s account was that she called out to Mr Peters “I want in” but that he had replied “No, not letting you in - nothing to do with me” and abused her and called her a “f-ing whore”. She then told the appellant to break in the door. She heard a loud noise as the door was broken. The appellant went through the opening before she did. When she looked up after entering she saw Mr Peters with a big stick in his hand in a position “that would be about to attack Doug and myself”. She did not identify any actual blows but heard the sound of wood banging against wood. It ended up with the appellant lying on the floor and the other man “all over him”. After they got up from the floor she saw the gash on Mr Peters’ arm with blood spurting out, and she wondered if, when she pulled the brush hook from underneath them, he might somehow have caught his arm on it. She thought “somehow he’s caught himself on the brush hook”.
10. More extensive accounts of the three witnesses might be given, but the above summary serves to expose the essential differences.
11. Counsel for the appellant submitted that it was not possible for the jury on such evidence to be satisfied beyond reasonable doubt that the injury did not occur accidentally or unintentionally.
12. This case reveals a fairly typical conflict of evidence where the jury was free to prefer one version to another. On Mr Peters’ account there was a fight in which the appellant was plainly the aggressor, and in which the appellant plainly chose to use an extremely dangerous weapon which undoubtedly caused the serious injury which he suffered. There is nothing unsafe in the jury’s rejection of accident if they were prepared to act on that evidence. A reading of Mr Peters’ evidence indicates that he was prepared to make what seem to be fair concessions to the cross-examiner.
13. The evidence as a whole suggests that the appellant and Mrs Joseph came to the premises in a highly excited state, prepared for violence, broke into the premises after knowing that access was denied, brought the sickle inside and then engaged in a fight causing injury to the occupant of the house. Other features of the evidence include an arguably unconvincing account by the appellant of a clinical cutting by him of the laminated glass by means of this sickle, which was belied by photographic evidence. The appellant also chose during cross-examination to make largely unsolicited allegations of deliberate lies on the part of the police in relation to the conversations that had occurred the previous night.
14. Having read the evidence it is not at all surprising that the jury acted on the evidence of Mr Peters, and there was nothing unsafe or unsatisfactory in their doing so. There is no merit in grounds 1 to 3A inclusive.

[15] Ground 4:  “The Honourable Trial Judge erred in law in directing the jury that they must consider whether the appellant was truthful regarding his evidence, when considering his credibility on vital, not peripheral matters, in light of the appellant’s accusations against investigating Police Officers.”

Reference was made to the following directions of the learned trial judge:

 “Now, the police officers are of court (sic) not on trial here, only the accused is on trial.  That is the only person whose guilt or innocence is the subject of your deliberations.  But if you conclude that the allegations made against the police officers are false, then that is a matter that you may take into account.  In fact, it is a matter which you must take into account on the question of credit.  Serious allegations have been made against police officers.  Although they need not be established here, if you find that they are false, then you may take that into account in assessing questions of credit.”

There is nothing exceptionable in those directions.  Counsel for the appellant conceded that it was difficult to maintain this ground, and it need not be further discussed.

[16] Ground 5:  “The Honourable Trial Judge erred in law by failing to explain the full ambit of the defence of accident as it related to the facts of this case.”

On the question of accident, the learned trial judge’s directions included the following:

“If you accept the accused’s account as possibly true, you must find him not guilty.  On that account he was not responsible for the injuries suffered by Mr Peters.  It is for the Crown to prove that the injury to Peters was caused wilfully, deliberately by the accused.  If it was suffered as the two men scuffled on the floor, lying on top of the brush hook where it had fallen, then the accused did not in law cause that injury.  If it was caused by Mrs Joseph when she pulled the hook out from beneath the two men, then again it was not done by the accused, and again he would have to be found not guilty.  Your decision depends on your findings of fact.”

That was a favourable direction from the defence point of view, and if there is any error it is against the Crown.  Counsel for the appellant submitted that His Honour should have directed specifically on the elements of s. 23, including both the “willed act” limb and the “the event by accident” limb so that the jury could apply for itself the appropriate tests whether the defence was made out.  He further submitted that the application of the defence did not necessarily depend upon acceptance of the accused’s account as possibly true.

17. Both submissions should be rejected. No redirection was sought on any of these points. The defence of accident was not raised by the account of the complainant but rather by the accounts of the defence witnesses. In the circumstances the directions were simple, practical and appropriate.

[18] Ground 6:  “The Honourable Trial Judge erred in law by failing to explain the full ambit of the defence of self-defence as it related to the facts of this case.”

On this issue, the learned trial judge, without objection from defence counsel, put to the jury the defence that is mentioned in s. 272(2) of the Code.  There was no request for redirection.  Counsel for the appellant now submits that His Honour should also have put to the jury the question of self-defence under s. 271(1) and also defence of self-defence against provoked assault under s. 272.

19. Presentation of the multiple strands of s. 271(1), 271(2) and 272 is an extremely difficult task and prone to lead to confusion. In this area defence counsel has a considerable responsibility to indicate which line or lines of defence is or are considered to be appropriate. The presentation of complex alternatives tends more often than not to obscure the viable or arguably meritorious line of defence. In the present case it would seem that the defence under s. 271(2) was the only defence that could be seriously considered, notwithstanding that other possibilities might theoretically be argued. It is to be inferred that defence counsel considered s. 271(2) to be the most appropriate way for this issue to be dealt with.
20. It may be observed that serious difficulties lay in the way of any other approach. In the first instance, the appellant at no stage claimed to have applied any force at all to Mr Peters by way of repelling an unprovoked assault. Self defence came into the picture only as an alternative to accident, the essential defence story being that no injury had been intentionally inflicted, but that certain defensive manoeuvres had been deployed which must have inadvertently resulted in injury. Furthermore, considering the nature of the weapon which the appellant was using and the infliction of actual grievous bodily harm, the putting to the jury of a defence under s. 271(1) would seem to have been a somewhat fanciful exercise.
21. This ground is without merit.
22. Ground 7 and Ground 8 were not argued and there is no basis for allowing an appeal on those grounds.
23. The appeal against conviction should be dismissed.

Leave to appeal against sentence

24. The applicant was sentenced to imprisonment for three years for the offence of grievous bodily harm. The applicant, a 60 year old man had a criminal history of indecent dealings with girls, and had twice been sentenced to imprisonment for such offences. In 1978 he had been sentenced to 18 months for indecent dealings with girls under 14, and in April 1995 he had been sentenced on further charges of a similar nature. The overall effect of the 1995 sentences was imprisonment for two years, to be suspended after four months, with an operational period of five years.
25. By committing the present offence, he breached the condition of the suspended term of imprisonment and fell to be dealt with on those charges under s. 147 of the Penalties & Sentences Act 1992, as well as to be sentenced for causing grievous bodily harm. It would seem that he was released in August 1995 and re-offended on 15 July 1997, well within the operational period. Under s. 147, the Court must order the offender to serve the whole of the suspended imprisonment (in this case a further one year and eight months) unless it is of the opinion that it would be unjust to do so bearing in mind various criteria set out in s. 147(3). In the event the learned sentencing Judge ordered that he serve eighteen months of the suspended sentence, to be served cumulatively with the three year sentence imposed for grievous bodily harm.
26. It was common ground that insufficient relevant information was supplied to the sentencing Judge in relation to the offences that had produced the subject of the suspended sentences. The only intimations to His Honour in this respect were that they related to child molestation and that they had been committed between 1964 and 1982 and were accordingly very old offences. His Honour was supplied with insufficient information to assess “the seriousness of the original offence” which he was required to do by s. 147(3)(b). There was also an erroneous interpretation of the effect of the suspended sentences which, although dispelled in due course, may have affected the eventual order that His Honour made in this respect. It was accepted that the sentencing discretion should be regarded as having miscarried, and that the Court should either send the matter back to the learned sentencing Judge for re-sentencing, or deal with the matter itself, taking into account further information produced by the parties.
27. In the event, the sentencing remarks of Judge Hoath with respect to the sentences imposed on 27 April 1995 have now been supplied to this Court. This gives sufficient information to enable some assessment to be made of the seriousness of the original offences. They involved the digital penetration of an eleven year old girl, an act of fellatio and various acts of simulated intercourse. There were three separate complainants one of whom was his stepdaughter. Four of the offences occurred prior to his being sentenced to eighteen months imprisonment in 1978, and one was a further offence committed on his stepdaughter after he had been released from custody. Due account seems to have been taken of the fact that he had already served a prison term for part of what can be seen to have been an ongoing series of similar criminal acts.
28. The major submission for the appellant was that the sentence of three years for grievous bodily harm, cumulative upon the activation of a substantial part of the suspended sentence created a total term (four and a half years) which was excessive in all the circumstances.
29. So far as the grievous bodily harm is concerned, the learned sentencing Judge rightly considered that the applicant had committed a savage and vicious attack with an obviously dangerous weapon and serious injury resulted. In my view a sentence of three years was appropriate. The more difficult question is whether the total criminality for the offences in question justified sentences totalling four a half years. In addressing this question, it becomes necessary to look at the combined effect of the offences and sentences imposed on the three separate sentencing occasions, namely 1978, 1995 and 1998. The criminal conduct consists of seven offences of indecent dealing with young girls, involving four separate complainants, over a period between 1964 and 1982; and grievous bodily harm committed in 1997. For the former offences, if the present level of sentence stands, he will have served in relation to those sexual offences (subject of course to parole benefits) eighteen months commencing in 1978, four months in 1995, and now a further eighteen months, totalling in all three years and four months. When the present sentence of three years for grievous bodily harm is added on, the total sentences for his total offences will be six years and four months.
30. While the respective offences are serious, and while a cumulative sentence for the separate offence of grievous bodily harm is reasonable, the overall effect of the sentences would in my view be excessive. Under s. 147(3)(a)(2) of the Penalties & Sentences Act, it would seem that the proportion between the culpability of the offender for the subsequent offence and the consequence of activating [the whole of] the suspended imprisonment calls for a greater reduction in the portion of the suspended imprisonment than the two months reduction granted by the learned sentencing Judge. It remains appropriate that he be required to serve part of the suspended imprisonment, and in my view a proper balance would be achieved by ordering that he serve nine months thereof. The sentences should remain cumulative.
31. Leave should be granted to appeal against the sentence, the appeal should be allowed and the sentence below varied by setting aside the order for imprisonment of eighteen months in respect of the suspended sentence and replaced with a period of nine months. In all other respects the sentences should stand.
32. Since his conviction the appellant and his friend Mrs Joseph have sent a variety of letters and other material to the Trial Judge and to members of this Court. They appear to be in the nature of ex parte submissions containing inter alia protestations of innocence. I assume that these things were done in ignorance of the impropriety of attempts to influence the Court other than by appropriate submission in open court. The documents have been placed in the possession of the registrar. In the circumstances the Court proposes to take no action other than to mention the circumstance that such letters were received and have not been acted on.