R v Strasberger[1999] QCA 80

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 457 of 1998

C.A. No. 456 of 1998

Brisbane

[R v Strasberger & Strasberger]

THE QUEEN

v

ERNEST DION STRASBERGER

and

CARY GLEN STRASBERGER

(Applicants)

Appellants

McPherson JA

Thomas JA

Shepherdson J

Judgment delivered 23 March 1999.

Judgment of the Court.

APPEALS AGAINST CONVICTION DISMISSED.  APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 23 March 1999

1. The appellants were arraigned on two counts of assault occasioning bodily harm whilst in company.  With respect to each appellant count 1 included a circumstance of aggravation that he was armed with an offensive weapon namely a piece of wood, and count 2 included a circumstance of aggravation that he was armed with a dangerous weapon namely a firearm. 

2. A jury convicted the appellants on count 1 and acquitted them on count 2.

3. The Crown case, based on evidence of the complainant Robinson, showed that the appellants (who are men in their thirties) resented contact between the complainant and their mother.  On the day in question their mother had collected their children and taken them to her house to spend time with them.  When the appellants arrived they found Robinson there.  The appellants started to argue with their mother, and Robinson retired to the bedroom to put on his shoes.  Whilst doing so the appellants entered the bedroom, Ernest being armed with a wooden object.  They both assaulted Robinson.  The first blow was across his head with the wooden object, and during the ensuing violent incident he was struck repeatedly with fists and the wooden object to the head, body and legs.  He was knocked to the floor and hands were placed around his throat.  When he adopted a foetal position the appellants continued kicking and hitting him for several minutes.  He was then dragged towards the backstairs by the feet.  There was a struggle at the top of the stairwell.  Mr Robinson hung onto the appellants while they attempted to push him down the stairs and all three went to the bottom of the stairs.  They then carried or dragged him across the driveway and over the bitumen road and dropped him on grass on the other side.  Ernest then went to the appellants' vehicle and obtained a shotgun and shoved it into the region of his left temple.  Mr Robinson removed the gun from that position with his hand and pushed it away.  The appellants continued to strike him and he had to let go of the gun which was again pointed at him.  Ernest then pulled the gun to one side and fired it into the ground.

4. Medical evidence showed that the complainant suffered a broken nose, two broken ribs and multiple abrasions and lacerations.  The bruising on his back and the injuries to the ribs were consistent with his having been struck by an object.

5. The defence that was raised (self-defence) depended upon who started the fight.  Ernest Strasberger's evidence was to the effect that he went into his mother's room looking for the children and that a figure (Mr Robinson) came at him and attacked him with a tree branch.  Thereafter the appellants defended themselves.

6. The sole ground raised on the appeal is that the convictions on count 1 are unsafe because of inconsistency with the acquittals on count 2.

7. Particulars were neither requested nor given but it emerged from the conduct of the case that count 1 depended upon blows administered when one of the appellants was armed with a stick, and that count 2 depended upon the incident on the other side of the road when one of them was armed with a firearm.

8. Counsel for the appellants relied upon the following passage in R v Anthony:^[1]

"When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him.  He must satisfy the court that two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their minds properly to the facts in the case, could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.  But the burden is upon the defence to establish that".

This is consistent with statements in more recent cases^[2] and it is not necessary to discuss the applicable principles any further.  The question is whether the verdicts can rationally stand together, noting that the "rational" test is a very wide one which recognises that sometimes a jury's innate sense of fairness and justice may lead to verdicts that are not strictly reconcilable on legal principles.

"[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges.  Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law.  Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number.  This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries.  Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty."^[3]

9. For the appellants Mr Glynn SC submitted that any reasonable jury must either have accepted the whole story of Mr Robinson or have had a reasonable doubt about it; that they could not reasonably accept the first part and reject the latter part.  He submitted that the case was conducted on an "all or nothing" footing, referring to the following passage in the summing-up:

"...the way the evidence has panned out and the way the trial has been conducted, you might think - I emphasise it is a matter for you - that the most obvious result would be that they are both guilty of both offences or they are both not guilty of both offences but I emphasise it is a matter for you."

10. However even that passage emphasises that the choice is the jury's, and of course other parts of the summing-up correctly advised the jury that it was open to them to find either one or both of the appellants guilty or not guilty in respect of either one or both of the offences.  The trial judge also directed the jury that they could accept all, part or none of a particular witness's evidence.  The burden of the submission however is that in the circumstances of this case there is no logical basis for accepting Mr Robinson's evidence of what happened in the bedroom and declining to accept his evidence of what happened subsequently across the road.

11. There are a number of bases which in my view are capable of explaining the acquittal on count 2.  The versions given both by Mr Robinson and the appellant Ernest Strasberger both suggest that the substantial violence occurred during the first incident.    The jury may well have thought that the evidence on count 1 which described specific blows and a level of violence likely to have produced the relevant injuries, was corroborated by the medical evidence, but that such support was lacking in relation to the second count.

12. Again, in the absence of particulars there was room for confusion on the part of the jury as to the extent to which the firearm had to be involved in order to sustain the second count.  The evidence does not suggest that the firearm was used in any way to cause injury whereas of course the wooden object referred to in the first count plainly was the origin of one of the injuries relating to it.  If this is the explanation for the difference in the verdicts plainly the jury erred in favour of the appellants. 

13. Finally, each count had as an element that the assault occasioned bodily harm.  There was however no evidence given of any particular further injury being sustained in consequence of the acts, the subject of count 2.  In other words the jury may well have felt unable to attribute any particular bodily harm to the second assault.  This I think is the most satisfying explanation for the particular verdicts that were given.

14. The further possibility was raised that the jury may not have found Mr Robinson's evidence about the later events as reliable as that concerning the earlier events.  By the latter stages Mr Robinson was somewhat injured, and the second count occurred at a different place and involved different events.  However the reasons already advanced make it unnecessary to consider this further possibility.  Neither is it necessary to consider the less logical possibilities raised in Kirkman.^[4]

15. The submission that the verdicts are not rationally reconcilable is unacceptable.

16. The appeals should be dismissed.

17. There is also an application from each of the appellants for leave to appeal against sentence, but this was not argued and there is no reason to think that the sentences are manifestly excessive.  The applications for leave to appeal against sentence should also be refused.