R v D'Arcy[2001] QCA 20

COURT OF APPEAL

McPHERSON JA

THOMAS JA

MULLINS J

CA No 214 of 2000

THE QUEEN

v.

RODNEY JAMES D'ARCY Appellant

BRISBANE

DATE 07/02/2001

JUDGMENT

THOMAS JA:  The appellant was convicted by a jury of doing grievous bodily harm.  He was acquitted on a further count of aggravated burglary.  The basis of the appeal is that the acquittal on the latter count is inconsistent with conviction on the former and that it should be inferred that the jury's verdict was unreasonable. 

At the relevant time three men were living in the house of a fisherman, Mr Prudnicki, who was absent at sea.  The complainant had permission to sleep in Prudnicki's room.  The evidence shows that a day or so before the relevant events, the complainant had flirted with the next door female resident, resulting in the appellant telling the complainant that he was very jealous and that the complainant should stay away from her.  The three men had been drinking during the day when the warning was given.  There had also been an argument concerning whether the complainant should remain in the premises.  The appellant had told the complainant to leave but the complainant had said it was up to Prudnicki to decide if he should go.

Eventually the complainant went to sleep in his bedroom at some time between seven and nine p.m.  He saw fit to put a wooden wedge underneath the door.  Sometime later, probably around 11 p.m., he heard some loud bangs on the bedroom door.  On the third bang the door opened and the appellant ran into the room. 

According to the complainant's evidence, the appellant had a pinch bar in his hand.  The complainant said that he partly got up from the mattress and raised his right forearm.  He was then struck by the pinch bar in the forearm and also on the back of the head.  He suffered a fractured ulna and a laceration to the skull.  The injury to the ulna was described by the medical witness as a classic injury consistent with a defensive manoeuvre by someone being struck a direct blow. 

A struggle ensued.  The two men moved out onto the balcony and after a time the complainant, by which time he was in possession of the pinch bar, pushed the appellant over the front balcony.  The struggle on the landing was witnessed by neighbours. 

The defence put at trial by the appellant's counsel, by means of cross-examination, was that there had been an argument about whether the complainant should stay at the house; that the complainant, at all times, had the pinch bar; that during an argument the complainant had pushed the appellant off the balcony; that nothing had happened in the bedroom at all; and that the appellant had never had possession of the pinch bar.

The appellant did not give or call evidence. 

The ingredients of the aggravated burglary count were explained by the learned trial judge to the jury as consisting of intent, entry of a dwelling (which includes a room), assault, breaking, night-time and use of an offensive instrument.

The learned trial judge gave directions unnecessarily favourable to the defence to the effect that the jury had to be satisfied of all the elements of the offence and all of the circumstances of aggravation, and that if not satisfied on all such matters, they should acquit.  The jury in fact sought re-directions on the circumstances of aggravation and it was again emphasised that unless the jury was satisfied of all of these matters, there should be an acquittal.

On the count of grievous bodily harm his Honour directed the jury that if they were not satisfied beyond reasonable doubt of the complainant's account as to how he sustained the fractured ulna, they should acquit on that count.  However his Honour also directed that the jury could accept part of the evidence of any witness and reject another part. 

Mr McLennan, on behalf of the appellant, submits that on the complainant's account the appellant swung a blow at the complainant while he was still lying on the mattress and that too little time had elapsed between the entry into the room and the engagement in violence for a jury to conclude other than that he had intended such violence at or before the time of coming through the door.

He submitted that no jury acting reasonably, which accepted that version, could entertain any reasonable doubt about the appellant's intent.  It follows, on the appellant's submission, that there was no rational basis for the apparently inconsistent verdicts and that in accordance with Maddox, CA 299 of 1998 (4 December 1998) and MacKenzie v. Queen (1996) 190 C.L.R. 348, 368, the verdicts represent an affront to logic and common sense and suggest compromise or failure in the jury's duty. 

Mr McLennan submitted that too ready a recourse to the explanation of "merciful verdict" has the tendency to undermine the fundamental assumptions underpinning criminal trial by jury.  He referred to Gilbert, 109 A.Crim.R. 580, 584.  However, this is not the occasion to consider whether courts do too readily take such recourse, as I do not understand counsel for the Crown to attempt to explain the jury's verdict on this footing. 

Counsel for the Crown advanced a number of premises upon which the jury may have acted in reaching these particular verdicts.  Firstly, he submitted that the jury may have had a reasonable doubt as to whether the appellant had the specific intention to commit an indictable offence when he effected his entry.  The jury might, he submitted, have entertained a doubt as to whether the appellant intended initially to simply continue the argument.   The possession of the pinch bar may have been for the purpose of forcing the door open rather than for the purpose of physical violence upon the appellant. 

Secondly, and alternatively, counsel for the Crown submitted that on the evidence there were three bangs upon which the door came open.   

It is possible, according to this submission, that the appellant may have banged on the door to rouse the complainant's attention and that in the result the door opened.  On this footing there may have been a doubt about whether the appellant actually broke into the house;  that is to say, the room.

It was submitted that it is therefore not impossible that a jury might have given an accused person the benefit of the doubt on this score.  This explanation is, I think, a little fatuous, and I would not rest my judgment on this particular suggestion.  I would observe, however, that from a lay person's point of view, a charge of burglary in a house that the applicant was entitled to be in seems a little odd, and the acquittal on this count is not really surprising.

The explanation suggested by the learned trial Judge who candidly expressed surprise after the verdicts had been taken, was that the jury had had a doubt about the appellant's intention when he entered the room.  It may be noted that defence counsel at that time suggested a slightly different hypothesis, namely that the jury may have found that the fact of the broken arm speaks for itself, particularly in the light of the medical evidence, and that if they accepted that the appellant had the bar, the jury may have concluded that he must have unjustifiably assaulted the complainant with the bar at some stage during the hostilities.

It may be noted that no justification for an assault of that kind was ever suggested.  The defence was a suggestion in cross-examination that the appellant had not had possession of the bar.  On analysis there was a stronger case that the appellant had unjustifiably caused the grievous bodily harm than the case concerning his intent when entering the room.

It seems to me that and note the possible explanations suggested by the learned trial Judge by defence counsel (as I have amplified it) are at least feasible suggestions consistent with the jury having reasonably discharged its obligations.  I would add that the inference of a particular intention is often something that presents a difficulty to a jury and that the inference of intention is essentially a jury question. 

Having regard to the rolled-up combination of circumstances as put to the jury in the learned Judge's charge, in which doubt upon any one of them would justify an acquittal, I do not think that it can be inferred that there is no rational basis for distinguishing between the verdicts.  That is the test suggested in Maddox above (CA 118 of 2000) and in P. [2000] 2 QdR 401. 

The appeal against a conviction should therefore be dismissed.

There is also an application for leave to appeal against sentence.  The learned Judge imposed a sentence of three and a half years' imprisonment. 

The applicant, who is 34 years old has a substantial record of offences of violence, commencing in 1981 when he was convicted of manslaughter and sentenced to five years' imprisonment.  Since 1986 there have been a further 14 offences of violence and one of threatening violence.  Not all of these were serious, but five of them attracted custodial sentences and one a suspended sentence. 

I do not propose to discuss this application at any length.  The submission of the applicant's counsel was that the range within which the sentence should have been imposed was between two and four years' imprisonment and a sentence that should have been imposed was three years.  The submission hardly reaches the threshold of a submission that the sentence of three and a half years was manifestly excessive.

Having regard to Anderson CA434 of 1995 and to some other cases which have been mentioned in submissions, I think that the concession of the range of possible imprisonment is a reasonable one.  Counsel for the Crown also pointed out that this sentence is to be served concurrently in part with a sentence of one year and three months, which the applicant was then serving, and it seems to me that that does have a slightly tempering effect upon the effect of the two sentences in combination.

In all the circumstances, without further discussion, I can see no merit in the application for leave to appeal against sentence and I would refuse it.

McPHERSON JA:  I agree.  I would only add that, whatever may be said of the action of the jury in acquitting on count one and convicting on count two, it would have been not merely irrational but perverse of the jury to have acquitted on count two in view of the evidence before them.

MULLINS J:  I agree.

McPHERSON JA:  The order of the Court is that the appeal against conviction is dismissed and the application for leave to appeal against sentence is refused.

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