R v Sobey[2001] QCA 367

COURT OF APPEAL

DAVIES JA

WILLIAMS JA

WILSON J

CA No 111 of 2001

THE QUEEN

v.

ADAM JAMES SOBEY Appellant

BRISBANE

DATE 05/09/2001

JUDGMENT

DAVIES JA:  I will ask Wilson J to deliver her reasons first.

WILSON J:  On 19 April 2001 the appellant, Adam James Sobey, was convicted of assault occasioning bodily harm.  He was placed on a $500/two year good behaviour bond and ordered to pay $2,000 compensation.  The conviction was not recorded.

He had been charged with a single count of unlawful assault occasioning bodily harm.  The Crown particularised the charge as encompassing the entirety of his actions on that occasion.  On the evidence two blows were inflicted on the complainant, Adam Baillie, one to the mouth which resulted in the loss of a tooth and one to the forehead.

The appellant appeals against conviction on the ground that the single count indictment was latently duplicitous in that it charged more than one offence and he was consequently deprived of a fair trial.  The issue on the appeal, then, is whether the blows were so separate and distinct in time or circumstance that they should have been the subject of separate counts.  This is to be decided by the application of commonsense and consideration of what is fair in the circumstances.  Director of Public Prosecutions v. Merriman [1973] A.C. 584 at 593 per Lord Morris; The Queen v. Morris and Flynn [1991] 2 Qd.R 309 at 312 per Connolly J.

At about 2.30 a.m. on New Years Day 2000 the complainant, Adam Baillie, a youth aged 16, and a group of one other male and five females of similar age were walking down Dogwood Drive, Palm Beach.  All had consumed alcohol although they claimed not to have been affected by it.  The appellant, Adam Sobey, and his friend, Joel Franklin, were sitting on the footpath in front of the appellant's parent's house in Dogwood Drive.  Baillie picked up an empty stubby and threw it on the roadway.  It smashed in front of the appellant and Franklin.  They claimed that some glass hit them.  They asked Baillie and his group to clean up the broken glass but they did not do so.  The appellant and Franklin pursued Baillie and his group and caught up with them on Nineteenth Avenue.

According to Baillie after they got into Nineteenth Avenue someone yelled out, "They're coming."  He turned around and was hit in the mouth.  He went to the ground then tried to get up intending to grab hold of his assailant - that is the appellant - in order to restrain him, when he was hit again in the top of the head.  Brewer, the other male member of Baillie's group, gave evidence to similar effect.  The five girls gave evidence, but four of them had the wrong person as the assailant.  The fifth gave evidence that Baillie turned around and was head butted, he fell to the ground and was punched as he was trying to get up.

The appellant did not give evidence at trial although he gave a statement to the police.  The tape of the record of interview was played to the jury.  He said:

"They started running and they split up the group.  I followed after Adam-----" -

I assume he means Baillie.

"-----I think it was and as I closed the distance between us, would have been about three to five metres, I think between us, he abruptly came to a stop, did an about-face and as I stopped right - well, came up to him and stopped, he then struck out with his hands and struck me in the face and neck.  As a result within a split instant I retaliated thinking, well, this person wants to fight.  I don't really want to fight.  I just want him to clean up the glass, but if you're going to smack me in the head, well, then I guess I had to defend myself, so I struck out and in doing so I hit the individual in the face.  He stumbled backwards and fell over, and that's where I asked him to remain.  The look in his eyes and the fact that he didn't remain still and started coming up at me sort of had me thinking, well, this guy doesn't want to stop here at the present time to escalate and continue into a-----"

Then the tape became indistinct.

"-----in this group had then started to - or they stopped running and started to proceed back to where we were.  He came back up at me and I hit him again.  This time he stayed down."

Franklin, the appellant's friend, gave evidence that as the appellant approached Baillie, Baillie smacked him in the face with the palms of his hands.  The appellant responded by striking Baillie in the face with his fist.  Baillie got up and came towards the appellant with clenched fists.  The appellant hit him in the face again. 

At the conclusion of the Crown case counsel for the appellant submitted that the Crown ought to be required to elect which of the two blows it said constituted the assault.  He submitted that the two blows were quite separate and distinct and that they raised separate and distinct issues for the jury.  The trial Judge refused to so order.

In his summing-up the trial Judge told the jury that the Crown case was that there were two blows in quick succession.  He directed them that there was no question there was an assault and that it caused bodily harm.  The principal question was whether the assault was unlawful.  He directed them in relation to provocation and self defence without distinguishing between the infliction of the two blows.  This was favourable to the appellant; if there were a defence to one blow there was also a defence to the other.

These were the facts in the context of which the trial Judge directed the jury to consider provocation:  the breaking of the bottle which the appellant claimed was deliberately thrown at him and his companion; the appellant's anger at Baillie's failure to heed requests to return to clean up the broken glass; the appellant's statement to police that he put on his shoes, walked over to Baillie's group and politely repeated his request; and that the group scattered in all directions except for Baillie who lunged at him.

With respect to self defence the trial Judge told the jury:

"The Crown may rebut the claim of self defence by firstly establishing beyond reasonable doubt that Baillie did not assault the accused; or, secondly, if Baillie assaulted the accused, or threatened to do so by lunging towards him, that assault was provoked by the accused, by his own conduct in pursuing Baillie and abusing him, as it was alleged in the Crown case; or, if Baillie acted in self-defence, himself."

Counsel for the appellant submitted to this Court that defences of self defence and provocation were open on both blows but to varying degrees. 

Counsel for the respondent submitted that the two blows were inflicted within a very short space of time and should be regarded as continuing conduct even if interrupted by the complainant falling down and attempting to get back on his feet.

The facts of this case are quite different from those of The Queen v. Morrow and Flynn where the Court of Criminal Appeal held that there was a latent ambiguity in the indictment.  There, the two accused were tried upon an indictment containing one count of unlawful assault occasioning bodily harm.  The evidence established at least seven separate incidents which could have been the subject of the indictment.  Some of the incidents involved only one or the other of the two accused while others related to both of them whilst in company with each other.  The particular assault the subject of the charge was not identified.

In the present case, the two blows were properly treated as composite parts of the one assault.  It would be artificial to dissect the conduct into two assaults.  There is, in my view, no substance in the submission that the defences of provocation and self defence were open in respect to the two blows but to varying degrees.  There was no latent duplicity in the indictment.  I would dismiss the appeal.

DAVIES JA:  I agree.

WILLIAMS JA:  I agree.  I would merely add that in my view it was favourable to the appellant for the learned trial Judge in the summing-up to treat the two blows as one assault for purposes of considering the defences of self defence and provocation.

DAVIES JA:  The appeal is dismissed.