SUPREME COURT OF QUEENSLAND

[1]  McPHERSON JA:  I agree with the reasons of Williams JA for dismissing the appeal against conviction.

[2]  WILLIAMS JA:  The appellant appeals against his conviction on two counts of assault occasioning bodily harm.  He defended himself at trial and appeared in person (by video link) on the hearing of the appeal.  He attached to the Notice of Appeal a four page document which contains various complaints about the trial but does not contain precisely defined grounds of appeal.  He also faxed to the court 16 pages of written outline in support of his appeal; again it is difficult to extract from that document precise grounds of appeal.

[3] There were 10 counts on the indictment before the jury.  In each count the woman who had previously been in a relationship with the appellant was named as the complainant.  The relevant events occurred on three separate dates: 25 August 2002, 7 November 2002, and 14 November 2002.  The charges can be summarised as follows:

1. 25 August 2002 - assault occasioning bodily harm.
2. 7 November 2002:
   1. unlawful assault;
   2. threatening to do an injury with intent to prevent the victim from giving evidence.
3. 14 November 2002:
   1. burglary;
   2. assault occasioning bodily harm;
   3. wilful damage one towel rack;
   4. wilful damage one curtain rod;
   5. unlawful assault occasioning bodily harm whilst armed with an offensive instrument;
   6. unlawful assault occasioning bodily harm;
   7. threatening to do an injury with intent to prevent the victim from giving evidence.

[4] At the end of the prosecution case a nolle prosequi was entered with respect to the two counts of threatening to do injury with intent to prevent the victim from giving evidence.  The jury returned verdicts of not guilty on all remaining counts except the two counts of assault occasioning bodily harm on 14 November 2002. 

[5] The material relied on by the appellant in support of his appeal makes numerous allegations that the complainant lied in the course of giving her evidence and that the learned trial judge unduly interfered with her cross-examination.  A perusal of the record does not support the appellant’s contention with regard to the latter.  Indeed it could be said that the learned trial judge was sympathetic and helpful to the appellant throughout the trial.  Further, the appellant conducted what appears to be a reasonable cross-examination of the complainant.  The credibility of the complainant was a matter for the jury.

[6] The appellant also submitted that the prosecutor made false and outrageous remarks with respect to various issues raised at the trial.  Again a perusal of the record does not support that submission.

[7] The complaints made by the appellant with respect to the summing up are also misconceived.  The summing up appears to have been balanced and there are no errors of law apparent therein. 

[8] The appellant raised a concern that after the committal hearing he was committed for trial on nine counts, whereas the indictment contained 10.  That is because the prosecution chose to allege two separate assaults on 14 November 2002, though each assault occurred during the course of the one occasion the appellant was in the complainant’s premises on that day.  The prosecution were, of course, entitled to do that. 

[9] But that gave rise to another issue which the appellant referred to.  He said in his latest written submissions that counts 5 and 9 were identical and no distinction was drawn in the course of the trial.  It is true that a reading of the record does not show that the counts were precisely particularised.  But the record does not contain the opening address of the Crown Prosecutor nor his final address.  It seems clear, at least by implication, from the summing up that the jury had been told what acts of the appellant were referable to each of those charges. 

[10]  On the complainant’s evidence, shortly after the appellant had entered her residence he punched her in the head while she was wedged up against the bathroom wall, and while punching her he booted her (wearing thongs) on her left side.  She said as a result she experienced headaches and felt really sore.  That constituted count 5.  After that, according to the complainant, the appellant damaged the towel rack and curtain rod (counts 6 and 7) and then hit her with a stick he grabbed from behind the door and threatened to stab her with it (count 8).

[11]  After that the appellant grabbed her in the region of the right jaw with part of his hand in her mouth and “just ripped me up and twisted my head around”.  According to the complainant he was “yanking me up.  Like, trying to pull me up.”  Apparently he was trying to drag her out of the bathroom.  As a result she said she had swelling, bruising, and a “ripped cheek”.  That was count 9.

[12]  The summing up makes it clear what the particulars of counts 5 and 9 were.  It is of real significance that independent witnesses were called who saw the complainant very shortly after the incidents and were able to confirm the existence of recent injuries of the type to which the complainant referred in evidence as resulting from those two assaults.

[13]  In the circumstances there was no confusion as to what constituted the charges on which the appellant was found guilty.

[14]  There is also no inconsistency in the jury verdict.  The complainant’s evidence as to the assault on 25 August 2002 was rather vague and the jury could well have had a reasonable doubt as to what occurred on that date.  On 7 November 2002 there was no actual physical assault, only a threat which in law constituted an assault.  Again on the evidence, particularly given the absence of an actual assault, a reasonable jury could have had a doubt as to the incident. 

[15]  There was some conflict on the evidence as to how the appellant gained entry to the complainant’s dwelling on 14 November 2002.  He was charged with burglary on the basis that he entered by means of a break with intent to commit an indictable offence.   The jury could well have had a reasonable doubt on the evidence as to his means of entry and whether at the time of entry he had the requisite intent.

[16]  There was evidence that the towel rack and curtain rod in the bathroom were broken but that could have occurred during the general struggle and not as a result of wilful conduct on the part of the appellant.  Though the complainant gave evidence of being hit with a stick there was no injury that could be specifically associated with such an assault, and that may well have caused the jury to have a doubt about the specific incident. 

[17]  As already noted there was independent evidence that the complainant suffered injuries to her face and head on 14 November 2002 and the jury had overwhelming evidence on which they could be satisfied beyond reasonable doubt that the appellant assaulted her on that date.

[18]  In all of those circumstances it has to be said that the jury appears to have been very discerning and to have returned verdicts of not guilty where there was some uncertainty on the evidence.

[19]  I am not persuaded that there is anything in the issues raised by the appellant in his written material which renders the verdicts unsafe and unsatisfactory or otherwise establishes that there was a miscarriage of justice.

[20]  There is, however, a matter raised by counsel for the respondent on the hearing of the appeal which must be addressed.

[21]  When called upon at the conclusion of the prosecution case the appellant replied: “I’m prepared to give evidence.  I would also like to put the Prosecutor on the stand as well.”  The learned trial judge then sent the jury out and queried what the appellant meant by saying he wanted to put the prosecutor on the stand.  The judge indicated he would not allow the prosecutor to be called.  There then followed some legal argument which resulted in the prosecutor entering a nolle prosequi on the two counts as referred to above.  After that, when the jury returned the trial judge said to the appellant: “You’ve indicated that you intend to give evidence.”  That then led the appellant to question the trial judge as to what that involved; he appeared to be confused between giving evidence and addressing the jury.  The learned trial judge explained the difference between those two courses and on being told that in any event he could address the jury the accused said: “Oh well I don’t – I don’t’ [sic] need to give evidence then.”  The learned trial judge then sent the jury out and gave a more detailed explanation to the appellant as to the difference between giving evidence and addressing the jury, and also as to the consequences on the order of addresses of his giving or not giving evidence.  The appellant then requested an adjournment to think the matter over and decide whether or not he wanted to give evidence.  On the court resuming in the presence of the jury the appellant said he was not going to give evidence.

[22]  Thereafter the Crown Prosecutor addressed the jury for about 22 minutes and the appellant addressed the jury for about 10 minutes.  Then the learned trial judge summed up.

[23]  Unfortunately in explaining the order of addresses to the appellant the learned trial judge did not advert to s 619 of the Criminal Code, and the Prosecutor did not draw that provision to his attention.  It is now well established that a consequence of that provision is that where an accused is not defended by counsel and does not adduce evidence the prosecutor (unless he be a Crown Law Officer) has no right of reply: R v Walsh & Bunting [1902] St R Qd 6, R v Meehan [1919] St R Qd 119 and R v Bellino & Conte [1993] 1 Qd R 521.  But it has recently been held by this court that where the section had not been adverted to at trial and the prosecutor was permitted to address the jury where a self-represented accused had not adduced evidence, there would only be an entitlement to a new trial if the court considered that a substantial miscarriage of justice had actually occurred: R v Wilkie CA No 255 of 1997, 30 September 1997.  As the court there said, the appellate court must be satisfied that, absent the prosecutor’s address, the jury would inevitably have reached the same verdict.

[24]  In the present case there was a state of confusion after the end of the prosecution case because of the appellant’s indecision as to whether or not he wished to give evidence.  It seems clear that the learned trial judge was at pains to explain to the appellant his right to give evidence, how he would go about that, and the consequences of his so doing.  But in that state of confusion everyone at the trial overlooked the consequence that the prosecutor should not make a final address to the jury if the appellant did not give evidence.

[25]  But as I have already pointed out the jury appears to have approached all the evidence in a very careful way and given the appellant the benefit of any doubt which existed on the evidence.  The jury asked for a number of redirections and it is clear that they approached their task in a very meticulous way. 

[26]  It is important again to note there was independent evidence from neighbours confirming that the complainant had sustained facial and head injuries on 14 November 2002.  The case against the appellant that he was responsible for those injuries was overwhelming and in my view there was no miscarriage of justice occasioned by the fact that the prosecutor was permitted to make a final address.  A reading of the record demonstrates that without the prosecutor’s final address the jury would inevitably have returned guilty verdicts on counts 5 and 9.

[27]  It follows that there has been no miscarriage of justice and the verdicts of guilty on counts 5 and 9 are not unsafe and unsatisfactory. 

[28]  The appeal against convictions should be dismissed.

[29]  JERRARD JA:  In this matter I have had the advantage of reading the reasons for judgment and order proposed by Williams JA.  I respectfully agree with the conclusions reached by His Honour, but add the following comments.

[30]  The appellant made clear to the learned trial judge, in response to questions asked of him in which that learned judge was attempting to clarify the issues, that his case was that the assaults the complainant alleged he committed upon her on 14 November 2002 had simply not happened.[1]  Mr Bell cross-examined the complainant on many topics, such cross-examination serving to challenge her credibility, but conducted very little cross-examination, if any, challenging her account of the offences of which he was convicted.  He did in cross-examination specifically challenge the contention that a piece of wood had been used to attack her,[2] focusing in that cross-examination upon whether the complainant alleged (as she appeared to) that the investigating police officer had taken that item into the officer’s possession.  In fact no such weapon was observed by those police officers or taken into their possession.[3]  That point is sufficient to explain the acquittal on that count.

[31]  Mr Bell also extensively cross-examined the complainant about the manner in which he gained entry into the premises.  She acknowledged contradicting herself as to whether she had locked or unlocked a screen door.  Mr Bell asked many questions about this; the jury could have been in genuine doubt as to whether a “break-in” happened.  Mr Bell also cross-examined the complainant to good effect on the two counts on which a nolle prosequi was finally entered by the Crown.  That cross-examination repeatedly emphasised the point that the complainant said he had asked her to tell the truth (in evidence she had apparently given in proceedings about the custody of children).  He specifically suggested in cross-examination that one of a number of other persons, whom he contended had assaulted the complainant in the past, was responsible for the assaults of which he was accused,[4] and that the complainant was making the allegation specifically against him because it was a good opportunity to ensure that he did not obtain custody of his son, their child.   He did not identify which other person was the one he was suggesting had assaulted the complainant, or how that person came to be at the premises on 14 November 2002.

[32]  Regarding that day, a neighbour Helen Griffin, to whom the complainant swore she had gone for assistance immediately after the commission of the two assaults upon her, gave evidence of having heard the complainant screaming the neighbour’s name, and having found the complainant shaking the witness’s security screen door.  Helen Griffin described the complainant as looking absolutely terrified, and she saw “the back of a man getting into a white Subaru, that I knew to belong to the accused, and the back suggested to me that it was the accused.”[5]  Ms Griffin said the complainant was having trouble breathing, really traumatised, and that within minutes her face had started to swell up.  “The left-hand side here just kept coming bigger and bigger and bigger under the – under the cold pack and the other side was coming up as well”.[6]  That witness also noticed a degree of blood on the hand towels in which she had wrapped the ice-packs she provided to the complainant.  She had specifically noticed some blood coming from the complainant’s mouth.

[33]  The evidence of that witness, particularly in cross-examination, established that she was quite familiar with the appellant’s motor car.  Although Mr Bell also cross-examined her quite extensively, and although the learned trial judge reminded him towards the end of the cross-examination that he had not put to her that what the witness was saying “about this, that or the other is incorrect”,[7]  Mr Bell did not suggest to the witness that it was not his car (or him) that she saw that day.

[34]  The jury thus heard evidence which was actually unchallenged identifying Mr Bell as a person present at the complainant’s premises on 14 November.  The evidence also showed that the complainant had received injuries very recently that same day and just before she appeared at her neighbour’s home, at which point that male person, apparently Mr Bell, was seen getting into Mr Bell’s car.  There was no evidence, or any suggestion from Mr Bell made at any time, that any other person had had possession of his vehicle that day, or that it was not the one seen by Helen Griffin.  Nor did he suggest in cross-examination that if he was there that day, as demonstrated by the evidence of both the complainant and Helen Griffin, he had not assaulted the complainant as she alleged, or that anyone else was there, other than the complainant.

[35]  When the learned trial judge explained to Mr Bell what the consequences of his giving evidence would be before Mr Bell made his election not to do so, the explanation given was based on the judge’s incorrect assumption that the prosecutor would be entitled to address the jury if Mr Bell did not give evidence; and Mr Bell was wrongly informed that a decision to give evidence would accordingly change the order of addresses.  He was told that if he did not give evidence he could “sum up” to the jury after the prosecutor had[8], and that if he gave evidence he would lose the right of last address.[9]  In law, if he gave evidence he would both lose the right to make the only address, and he would address the jury first.  That wrong advice he was given could not actually have affected the choice Mr Bell made, because he was correctly advised by the learned judge that a consequence of giving evidence was that if he did the prosecutor would address the jury after Mr Bell did.  What Mr Bell lost was a benefit to which he was entitled resulting from his decision not to give evidence, and which was not explained to him, namely that he alone should have addressed the jury.  The question is whether that lost benefit occasioned any miscarriage of justice.

[36]  The case against him on each of those two assaults was a very strong one.  He was at the complainant’s premises that day, established by the evidence of Helen Griffin and the complainant, who was injured while he was there; her conduct immediately afterwards, in seeking help and in complaining of his assaults, was consistent with his having done as she alleged.  I respectfully agree with Williams JA that those convictions were inevitable, irrespective of whether the prosecutor addressed the jury.