R v Hearn[2001] QCA 143

COURT OF APPEAL

McPHERSON JA

WHITE J

HOLMES J

BRISBANE

DATE 17/04/2001

JUDGMENT

HOLMES J:  The appellant was convicted after a jury trial of one count of assault occasioning bodily harm.  He appeals against that conviction on the ground that the verdict was unsafe and unsatisfactory, and against his sentence of two and a half years imprisonment as manifestly excessive.

The circumstances of the offence of which the appellant was convicted were that a Miss Gardner was assaulted in St George on the night of 5 December 1999, causing her head and facial injuries with significant swelling.  According to witnesses she was the girlfriend of the appellant and had been drinking with him at his cousin's house on that day and into the evening. 

At one stage she had run into the kitchen of the house saying that the appellant, who was behind her, was going to hit her.  She then left the house.  According to the cousin, a Mr Cochrane, the two were at a later point arguing in the street outside a machinery centre about a block from the house.  He, Mr Cochrane, pulled the appellant away and the appellant ran away towards the river.

Mr Cochrane gave no evidence of seeing an injury to Miss Gardner or having seen the appellant do more than shout.  However, Mr Ian Parnell, who had also been among the party at the house, said that he heard a yell which caused him and others to go out on to the footpath and start walking in the direction of the machinery centre. He said that he saw the appellant standing over Miss Gardner, saw him punch her more than once and then "stomp" on her head when she fell.  When the group he was with reached Miss Gardner the appellant was standing about 5 metres away.  Mr Cochrane, who had come up behind them, threatened to hit the appellant but was restrained by his son, and the appellant ran off.

An off-duty police officer, Senior Constable Grace, was also in the vicinity at a nearby house.  He saw the appellant running into the yard of the residence he was at, carrying a large bundle which proved to be a swag.  He pursued and apprehended him.  On the following day, in the course of his duties, Senior Constable Grace interviewed the complainant at the local hospital and a day later arranged for photographs to be taken which identified as depicting her condition.

The photographs were tendered in evidence.  One was shown to Mr Parnell who said that it showed the condition of her face as he saw it after the assaults.  The complainant did not herself give evidence.  Senior Constable Grace said she was now somewhere in Victoria, and he had no further information than that.

The appellant's first basis for contending that the verdict was unsafe and unsatisfactory is that Mr Parnell claimed to have heard a yell, but Senior Constable Grace, who was a similar distance away from the area of the assault, did not.  It was also pointed out that Mrs Cochrane said there "probably was" some music playing, whilst Mr Parnell could not recall any music and said that it was quiet. 

Secondly it was said Mr Parnell's memory appeared to have improved since the committal hearing.  There he had been unable to say whether Miss Gardner had been lying down or standing up when the appellant's foot was applied, and could only say that it connected with her upper body.  At trial he was able to give evidence of a "stomp" to the head of a recumbent figure.

As to the differences between Mr Parnell and the other witnesses in relation to whether there was a yell or there was music playing, these are matters of detail, fairly described by counsel for the respondent as peripheral, which will inevitably vary from witness to witness.  In this particular case they may depend on nothing more than the particular vantage point of the witness concerned.

Such variations as there were between Mr Parnell's earlier evidence and his evidence at trial were thoroughly explored in cross-examination and the jury was reminded of them in the learned trial Judge's summing-up.  They were matters the jury was properly placed to assess and nothing suggests they did not do so properly.

I do not, therefore, consider that the inconsistencies, such as they were, in Mr Parnell's evidence, give any proper basis for concluding that the verdict was unsafe and unsatisfactory. 

Next it is complained that no swabs were taken of the appellant's hands, notwithstanding that punches were alleged to have been delivered by him to the complainant.  That was an area in which there was an absence of evidence, not surprisingly when there was in existence direct evidence of the assault.  The absence of such evidence does not per se render the evidence on which the jury chose to act unreliable or the verdict unsafe and unsatisfactory.

It is further said that the learned trial Judge omitted in the first instance to refer to the defence counsel's submissions.  However, he rectified that deficiency before concluding his summing-up.  The placing of this aspect of the summing-up last is unlikely, in my view, to have had any adverse effect.  If anything it gave the advantage of leaving the jury with the defence submissions as the last word, as it were.

Finally, it is said that the learned trial Judge should not have allowed photographs of the complainant to be admitted in evidence when she was not herself called.  The photographs were no more than an illustration of the complainant's appearance as to which Grace and Parnell were properly placed to swear.  It is worth noting that there was no objection taken by experienced counsel to that evidence; in my view, properly so.

Mr Moore is to be congratulated for his willingness to appear pro bono but there is, in my view, no basis for concluding that the verdict was unsafe and unsatisfactory and I would dismiss the appeal against conviction.

There was an application for leave to appeal against sentence which Mr Moore says that he does not wish to persist with.  It appeared at one stage there may have been an error in the factual basis on which his Honour acted, but it is clear now that that is not so. 

In my view the sentence of two and a half years was within the range.  The appellant had a long criminal history commencing in 1981 featuring a number of simple offences and offences of wilful destruction, but more significantly repeated offences of assault occasioning bodily harm.  A glance at the record shows that there was one in 1983, another in 1987, coupled with an unlawful assault, another in 1990.  In 1991, assault occasioning bodily harm and aggravated assault on a female; similarly in 1993 aggravated assault on a female and assault occasioning bodily harm whilst armed with a dangerous weapon in respect of which he received three months imprisonment.  Again in 1994 assault occasioning bodily harm and in 1994 a breach of a domestic violence order.  In 1995 an indecent assault; in 1996 an assault occasioning bodily harm.

In the circumstances there is, in my view, no basis to consider that his Honour's sentence was anything other than appropriate.  I would dismiss the application for leave to appeal against sentence.

McPHERSON JA:  I agree.

WHITE J:  I agree.

McPHERSON JA:  The appeal against conviction is dismissed.  The application for leave to appeal against sentence is refused.