R v Charles[2001] QCA 320

SUPREME COURT OF QUEENSLAND

1. THE COURT:   As a result of events at a nightclub in Bundaberg in the early hours of the morning of 3 October 1999 the appellant (the proprietor of the nightclub) was charged with the following offences:

1. Assault P C Gayton and thereby did him bodily harm;

2. Did grievous bodily harm to A I Gayton;

3. Alternatively,assault A I Gayton and thereby did her bodily harm;

4. Assault A I Gayton and thereby did her bodily harm.

2. The appellant pleaded guilty to the charge involving P C Gayton but pleaded not guilty to the charges involving A I Gayton ("the complainant"). The charge of doing grievous bodily harm related to a disc herniation at the C5/6 level which on the prosecution case was caused by the appellant pushing the complainant on several occasions into a wall; as already noted the indictment included an alternative count of assault occasioning bodily harm with respect to that incident. The other count (bodily harm to A I Gayton) related to an injury to her left elbow which on the prosecution case was caused when she was pushed into fire escape doors by the appellant.

3. It is sufficient to say that the complainant's account of the appellant pushing her into the fire escape doors and subsequently on several occasions pushing her into the wall was supported by evidence from other witnesses, including at least one employee of the appellant. The appellant did not give evidence at the trial, but in a record of interview with the police, which was before the jury, he said that he did not push the complainant against the wall; he said he did not go into the alleyway at all where that incident was said to have occurred.

4. The jury convicted the appellant of the charges of grievous bodily harm and assault occasioning bodily harm (the offence relating to the elbow injury).

5. The appellant has appealed against his conviction for grievous bodily harm; no challenge was made to the other conviction. His counsel quite properly acknowledged that the jury obviously accepted the evidence of the complainant and in consequence it was conceded that the appeal must proceed upon the basis that the appellant's account of the events at the nightclub was rejected and that the complainant's account was accepted. The notice of appeal against conviction as filed simply alleged that the verdict was unreasonable, but leave was given to add specific grounds which became the focus of submissions to this Court. The added grounds were as follows:

"(a)Her Honour the Learned Trial Judge erred in the fashion in which she directed, and failed to direct, the jury on the provisions of s 23 of the Criminal Code;

2. That the verdict of guilty on the count of grievous bodily harm is unsafe in that:

(i)It could not be accepted beyond reasonable doubt that the Appellant had caused the complainant's disc herniation;

(ii)It could not be accepted beyond reasonable doubt that the disc herniation was an injury of such a kind as would be likely to cause permanent injury to health".

6. In the course of giving his evidence Dr P F McCombe, an orthopaedic surgeon, was asked what degree of force would be necessary to cause disc herniation at C5/6. In giving his answer he stated that the "degree of force required to tear the disc is less with the advancing degrees of degeneration". He then went on:

"The degree of force required to disrupt the disc depends on its strength and it depends on whether it's degenerative.  So, I'm not entirely certain how much degeneration was present in her disc.  There was evidence of some and all I can say is it probably required a moderate degree of force to do this.  Something such as a forced movement of the head, either to the side or backwards or forwards of that nature".

That passage in the evidence was obviously of concern both to the prosecutor and to the solicitor who appeared for the appellant at trial.

7. At the conclusion of the prosecution case the solicitor made a submission of "no case" on the count of grievous bodily harm based on the contention that there was insufficient evidence to establish that the disc herniation was caused by the events of 3 October 1999. The argument largely focused on the fact that the complainant made no specific complaint of pain in the C5/6 region for some time after the incident. The learned trial judge ruled against that submission and in the course of doing so said:

"I agree with him that there are some problems with the evidence and certainly I feel an obligation to direct fully and carefully on this issue".

8. Immediately after that ruling the prosecutor raised what he described as the "egg shell skull section" – undoubtedly a reference to s 23(1A) of the Code. He went on to say that the jury "might need to be redirected about any inherent defect, weakness or abnormality that – that the doctor has given evidence of in relation to the disc degeneration". The solicitor for the appellant in response pointed out that the doctor had not indicated the extent of the degeneration. The learned trial judge made a general observation that she would "give them evidence such as it was". That prompted the prosecutor to ask whether she intended to "specifically refer to that section". He then expressly asked that the section – undoubtedly a reference to s 23(1A) – be referred to. There followed an extensive exchange between the prosecutor, the solicitor for the appellant, and the trial judge; it is sufficient to say that at the end of it the learned trial judge apparently agreed to refer specifically to s 23(1A).  Surprisingly, in the whole of that exchange there appears to have been no reference by any of the participants to the principal provision, that stated in s 23(1).

9. In the summing-up the jury was told that the "only thing that can constitute grievous bodily harm is the disc herniation". Then comes a passage which is of critical importance for present purposes:

"The other thing that I want to say just generally about the grievous bodily harm:  is you need to understand that there is a section of our Criminal Code which is relevant.  It says this, 'A person is not excused from criminal responsibility for grievous bodily harm that results to a victim because of a defect, weakness or abnormality, even though the offender does not intend or foresee or cannot reasonably see the grievous bodily harm'.  The reason I've read that to you is that's relevant to the question of disc degeneration, and I'll read the evidence and explain it to you in a moment.  You recall Mr Burgess asking Dr McCombe whether the disc degeneration fell within defect, weakness or abnormality and he said that it did.  That's Dr McCombe's opinion.  That's not binding on you.  Nothing the doctor says is binding on you.  Appreciate that.  It's a matter for you."

Towards the end of the lengthy summing-up the learned trial judge said:

"You're asking the question what, if anything, did Mr Charles do?  Did he assault Alison and if he did, did he cause grievous bodily harm?"

Thereafter there was a series of references to causation with respect to the bodily harm charge involving the elbow, but nothing more about causation with respect to the grievous bodily harm charge.

10. Given the evidence there are reasons for concluding that it was not necessary for there to be any direction based on s 23 of the Code. If the jury concluded that the appellant forcibly pushed the complainant on several occasions into a wall so that her upper back, neck and head came into contact with the wall, the only question would have been whether or not that conduct caused the grievous bodily harm. It could hardly be contended that a reasonable person in the position of the accused would not reasonably have foreseen an injury to the upper spine as a possible outcome of such conduct (cf. R v Taiters [1997] 1 Qd R 333 at 338).

11. But the contention of counsel for the appellant is that by referring specifically to s 23(1A) the learned trial judge introduced an extraneous consideration which would have been confusing to the jury.  Subsection (1A) is essentially a proviso to s 23(1)(b) and it is only intelligible when read in conjunction with the relevant law on s 23(1)(b).  Referred to in isolation it is clearly misleading.  What in the circumstances were the jury to infer from the use of the expression "even though the offender does not intend or foresee or cannot reasonably foresee the grievous bodily harm"?  Section 23(1A) was only relevant if the jury had to consider the defence of accident (s 23(1)(b)) and they were not directed that accident was open.

12. The matter is further complicated because, as was recognised by the learned trial judge in ruling on the "no case" submission, there were some problems with the evidence relating to the issue of grievous bodily harm.

13. The evidence from Dr McCombe was that most people recover from a disc herniation but the recovery may take some years. In the present case his evidence suggested that the complainant's tolerance to pain was such that she required at a fairly early stage an operation designed to alleviate that pain. The point made on behalf of the appellant was that if in time the injury would have resolved by itself it did not constitute grievous bodily harm for purposes of the criminal law. Further, when the complainant visited doctors shortly after the events in question she made no complaint of pain which could be specifically related to an injury at the C5/6 level. Complaints of such pain were not specifically made until some months later. It was agreed that a possible explanation for that was that the complainant was more concerned with other parts of her body, such as her left arm, which initially were causing her greater pain and discomfort. Against all that background there was a significant issue for the jury to determine, namely, whether the incident on 3 October 1999 caused the grievous bodily harm.

14. Having read the whole of the summing-up, we are of the view that a reasonable jury may well have been confused as to what needed to be established before they could convict of grievous bodily harm. Though they were given the definition of grievous bodily harm, and were referred to much of the relevant evidence, they were not clearly directed on the issue of causation and as to the significance of the evidence that the injury may not have been permanent if left to resolve naturally. The confusion in the mind of the jury on those issues may well have been compounded by the inappropriate reference to s 23(1A).

15. In the end we have come to the conclusion that a verdict of guilty of grievous bodily harm, given the content of the summing-up, is unsafe and unsatisfactory, and should be set aside.

16. As already noted, it was conceded by counsel for the appellant that the jury accepted the complainant's version of relevant events. The problems relating to grievous bodily harm in no way impacted on the jury's conclusion (which is implicit in the finding of guilty of grievous bodily harm) that the appellant forcibly pushed the complainant into the wall on several occasions.

17. Counsel for the appellant contended that if this Court reached the conclusion that the conviction for grievous bodily harm should be set aside it could substitute a verdict of guilty on the alternative count of assault occasioning bodily harm. As it was put in the written outline:

"If the court agrees with the submissions . . ., it is conceded that it may be open to act under s 668F(2) of the Criminal Code and substitute for the verdict on count 2 a verdict of guilty on count 3.  The court could then proceed to sentence for that offence.  . . . given the nature of the evidence and the length of time for which the appellant has been in custody, the court might in this case act pursuant to s 668F(2), along the lines suggested above."

Counsel for the prosecution on appeal made no submission against that course being adopted.

18. Section 668F(2) is in these terms:

"Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the Court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity".

As is obvious from what has already been said the findings made by this Court satisfy the requirements of that provision. In our view it is appropriate therefore to quash the conviction on the count of grievous bodily harm and substitute a verdict of guilty of the alternative count of occasioning bodily harm.

19. The appellant was sentenced to 3 months imprisonment on the charge of assault occasioning bodily harm to P C Gayton, and 6 months imprisonment on the charge of assault occasioning bodily harm to A I Gayton (the left elbow injury). He has been in custody now for some 5 months with respect to those sentences.

20. The appellant sought leave to appeal against those sentences on the ground that they were manifestly excessive. The appellant is a man of 37 years of age with no criminal history. He was the proprietor of a nightclub and the events in question arose when he sought to eject Mr and Mrs Gayton from the premises. Both Mr and Mrs Gayton had previously been employees of the nightclub and had left in circumstances which generated some animosity between themselves and the appellant. It was against that background that the events occurred. It does appear that the appellant became the aggressor and there is no justification for the force that he used against each complainant. Though the sentences of 3 months and 6 months imprisonment could be regarded as reasonably severe for a first offender where serious injury was not occasioned to either complainant, the sentences are nevertheless within range.

21. In the circumstances leave to appeal against those sentences should be refused.

22. The remaining question is what sentence should this Court impose for the substituted conviction for assault occasioning bodily harm to A I Gayton.

23. The overall incident involving A I Gayton was regarded by the learned trial judge as a cowardly attack on a defenceless woman. That is not an inaccurate description. Pushing her forcibly into the wall on a number of occasions constituted completely inappropriate conduct; it was an unacceptable use of violence against a woman. The overall conduct involved assaulting the female complainant persistently after she had received an injury when forced through the fire escape door. In our opinion a sentence somewhat higher than that imposed for the assault occasioning bodily harm to the elbow is called for. In the circumstances we are of the view that a sentence of 9 months imprisonment would ordinarily be justified.

24. However, this Court is imposing sentence when the appellant has already spent some 5 months in custody for associated offences. As this court is sentencing with respect to a substituted offence it is preferable that the sentence date from the date of this Court's order. In those circumstances we are of the view that it is appropriate to wholly suspend that sentence of 9 months and to fix the operational period as a period of 2 years. That will also ensure that the appellant is subject to some legal constraint over the next 2 years.

25. The orders will therefore be:

1. Allow the appeal against conviction for the offence of doing grievous bodily harm to Alison Imelda Gayton and quash that conviction but record a conviction for the alternative offence of unlawfully assaulting Alison Imelda Gayton and thereby doing her bodily harm.

2.               Order that for the offence of unlawfully assaulting Alison Imelda Gayton and thereby doing her bodily harm (count 3 on the indictment) the appellant be imprisoned for a period of 9 months but order that the whole of that sentence of imprisonment be suspended and that the operational period be fixed at a period of 2 years.

3.               Refuse the application for leave to appeal against the sentences of 3 months and 6 months imprisonment imposed with respect to counts 1 and 4 respectively on the indictment.