R v Francisco[1999] QCA 212

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 59 of 1999

Brisbane

THE QUEEN

v

LYLE HENRY FRANCISCO

(Applicant)Appellant

de Jersey CJ

Thomas JA

Demack J

Judgment delivered 8 June 1999.

Judgment of the Court.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED, APPEAL ALLOWED, SENTENCE BELOW SET ASIDE AND REPLACED WITH SENTENCE OF TWO YEARS IMPRISONMENT FOR OPERATIONAL PERIOD OF THREE YEARS, SENTENCE TO BE SUSPENDED IMMEDIATELY UPON THE DELIVERY OF THIS JUDGMENT.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 8 June 1999

1. [1]
   The appellant was convicted by a District Court jury of unlawfully doing grievous bodily harm.  He was sentenced to two years imprisonment.  He appeals against the conviction and seeks leave to appeal against the sentence.

1. [2]
   The complainant, who was drunk at the time, was injured in a confrontation with the appellant at a nightclub at the Mooloolaba Hotel in the early hours of 28 March 1998.  The complainant was a patron and the appellant a security officer employed at the hotel.  The complainant had previously been evicted and was apparently attempting to re-enter the premises.

1. [3]
   The entry to the hotel consists of a fairly wide opening with two brick steps leading from the pavement into an open area which might be described as a foyer.  The appellant was in the foyer, and his attention seems to have been directed to another person or persons when he was approached from behind by the complainant.  He saw the complainant when they were a short distance apart, turned and struck the complainant in the face.  The complainant was knocked backwards down the two steps that have been mentioned and it would seem that the back of his head struck the pavement resulting in an extra-dural haematoma.  It was admitted that the injuries amounted to grievous bodily harm.

1. [4]
   Variations in the above details can be found in the evidence, but we understand both counsel on the appeal to accept the above sequence as the effect of the evidence, which probably attained a reasonable consistency by virtue of the fact that video-tape evidence is available of the incident itself and of an earlier incident involving the complainant.

1. [5]
   In his evidence, the appellant admitted seeing the complainant approach "out of the corner of my eye" and forming the view that the complainant was approaching in an intimidating manner.  He said that he then just flung his hand back at the complainant and that this connected.  The video-tape shows a blow with sideways movement of the forearm in the general direction of the front of the complainant's head and it would seem that the complainant was propelled backwards.

1. [6]
   The defence which was left to the jury, in accordance with the request of defence counsel, was self-defence.

Accident

1. [7]
   The first ground of appeal is that his Honour should have left a further defence to the jury, namely that of accident under the second limb of s 23.

1. [8]
   On the first day of trial the Crown prosecutor stated to the judge that both counsel had discussed the matter, that the issue in the trial was self-defence and that accident in the circumstances was not open.  No change of approach was suggested by either counsel during the trial.

1. [9]
   It was submitted that notwithstanding this, the trial judge was under a duty to instruct the jury that they could convict the appellant only if the Crown proved either:

1. that the appellant intended to cause the head injury suffered by the complainant; or

2. that he foresaw it as a possible outcome; or

3. that an ordinary person in his position would reasonably have foreseen that result as a possible outcome.

1. [10]
   Such directions are derived from R v Taiters, ex parte Attorney-General.^[1]  However such directions are appropriate only if such an issue properly arises on the evidence.  If it does properly arise, then a trial may miscarry notwithstanding that counsel has not taken the point below.  But such an issue does not properly arise for a jury's consideration when there is nothing in the evidence to suggest that there was a reasonable possibility that the event (the complainant's injury) occurred by accident.  On any view of the evidence, the appellant's blow was a willed act and it is not suggested that the first limb of s 23 can apply.  So far as the second limb is concerned, plainly an ordinary person in the position of the appellant must have been reasonably able to foresee as a possible outcome that such a blow at that time and place might result in the complainant falling backwards down the stairs and suffering an injury such as that which he in fact received.

1. [11]
   It is true that there was some spontaneity in the appellant's action, but it cannot be said that it was a reflex action.  There was no unforeseeable additional fact, and the case is not one where it is suggested that there was any inherent weakness in the victim that would affect the question of the foreseeability.  The circumstances in the present case are perhaps closer to the borderline of raising a proper issue for the consideration of the jury in this respect than the circumstances of some other cases recently raised before this court;^[2] but in our view a deliberate blow to the area of the head with sufficient force to propel a man from the raised level onto the footpath, a consequence such as that which in fact ensued was obviously reasonably foreseeable to an ordinary person in the position of the appellant.  This ground therefore fails.

Witness not called

1. [12]
   Before trial the defence representatives were supplied with statements including one by a Mr Murphy.  This included the allegation that Mr Murphy saw the complainant try to throw a punch towards the appellant's head and that this was followed by an open-hand slap to the face by the appellant.  It may be noted immediately that this would seem to be somewhat in conflict with the video-tape evidence.  In the result, the Crown prosecutor decided that he was not a reliable witness and that he would not be called by the Crown.  Early notice of this was given to the defence representatives.  The defence then made contact with Mr Murphy but did not subpoena him.  The appellant has sworn an affidavit deposing to the fact that he discussed the calling of Mr Murphy with his solicitor and barrister and that he believed that Mr Murphy would be a defence witness.  However on the second day of trial, Monday 15 February, Mr Murphy was not present.  The appellant was the only witness called by the defence.  No application was made for an adjournment for the purpose of calling any other witness.  The appellant has further sworn that he "did not at any time instruct [his solicitor or barrister] not to call Tyrone Murphy" and that he "believed they would ensure he was present to give evidence for the defence".

1. [13]
   The above circumstances do not give any cause for thinking that any miscarriage of justice occurred by reason of the non-calling of Mr Murphy.  The danger of calling someone whose evidence could be contradicted by video-tape evidence must have been apparent to counsel if not to the appellant.  The general rule that a party is bound by the conduct of his or her counsel is discussed in R v Birks.^[3]  Decisions as to what witnesses to call are within the discretion of counsel and involve questions of judgment and tactics.  In the present case there is no criticism of the conduct of the representatives of the Crown.  Adequate notice was given of the fact that he would not be called.  In the event, counsel obviously decided against seeking an adjournment for the purposes of calling Mr Murphy.  That would seem to have been a deliberate decision, and so far as the facts presented to this court permit any judgment on the matter, it seems to have been a reasonable decision.

1. [14]
   There is no merit in this point.

1. [15]
   The appeal against conviction should be dismissed.

Sentence

1. [16]
   At the time of the offence the applicant was a 29 year old man of good character with no previous convictions.  He had worked in his capacity as a security officer for a number of years, which, as the learned sentencing judge observed, required his dealing with obnoxious, violent and intoxicated patrons, and had not previously revealed any tendency toward gratuitous violence.  The circumstances included the fact that the complainant had approached him in circumstances which the applicant interpreted as offering violence upon which he lashed out with a single blow on the spur of the moment.  Unfortunately grievous bodily harm was thereby caused.  The injury was initially life-threatening and the complainant has been left with some loss of balance, although particulars in this latter respect are lacking.

1. [17]
   In the present case it is not necessary to state the details in greater depth, as a concession was made by counsel for the Crown upon this application that the unabated sentence of two years seems inconsistent with a recent decision of this court in R v Camm.^[4]  Counsel conceded that the circumstances in Camm were slightly worse than those in the present case in that Camm displayed more anger and deliberation, and responded with more forceful throwing or pushing than in the present case.  In Camm this court allowed an appeal against a similar sentence of two years that had been imposed for grievous bodily harm.  The head sentence of 2 years was re-imposed, but it was ordered that it be suspended immediately with an operational period of three years.  Camm had by that time served four and a half months in custody.  The present applicant had, at the time of hearing of the appeal, been in custody for 107 days.

1. [18]
   The circumstances relevant to fixing a sentence in a grievous bodily harm case vary enormously.  It must be acknowledged that the circumstances of the present matter fall towards the lower end of seriousness and that the applicant's antecedents are favourable.

1. [19]
   In our view the sentence of two years without any alleviating recommendation or suspension was manifestly excessive.  We would grant leave to appeal, allow the appeal, set aside the sentence below and replace it with a sentence of two years imprisonment for an operational period of three years, and would order that the sentence be suspended immediately upon the delivery of this judgment, by which time it may be noted the applicant will have served 113 days of the sentence.