R v Kruezi[2005] QCA 301

SUPREME COURT OF QUEENSLAND

JERRARD JA:  On 23 March 2005, Mr Kruezi was convicted by a jury of the offence of unlawfully doing grievous bodily harm to Nuredin Xhemajlaj on 17 December 2003.  He was sentenced to nine months imprisonment.  He has appealed against that conviction and the amended ground of appeal on which his counsel specifically relies is that the learned judge erred in failing to direct the jury as to the existence and application of s 271(2) and s 272 of the Criminal Code.

As that ground of appeal suggests, Mr Kruezi relied on a defence of self-defence and the learned trial judge instructed the jurors only in respect of self-defence against an unprovoked assault and only in terms of s 271(1) of the Criminal Code.

Those provisions apply when a person defending herself or himself against an unlawful and unprovoked assault does not use force in self-defence which is likely to cause grievous bodily harm.  As it happened, Mr Kruezi did use force on the complainant which did do grievous bodily harm to Nuredin Xhemajlaj.  That grievous bodily harm consisted of a severe dislocation of left ring finger and a broken bone in his right hand. 

The events giving rise to the charge happened at a house in Sunnybank.  The complainant was visiting his nephew, Bekim Xhemajlaj and Bekim's wife, Behije, she is Mr Kruezi's daughter.  Rosario Kruezi, Mr Kruezi's wife, was also at the house.  It is unnecessary to describe what happened other than to say that all four of the other people at that house were called as witnesses for the prosecution at the trial and none of the accounts they gave raised any defence of self-defence for Mr Kruezi. 

His version of events did raise that, although as Mr Ross Martin of Senior Counsel submitted for the Crown in his written outline of argument, Mr Kruezi's account was not at all convincing and it is not surprising that the jury rejected it.  Significant parts of it appear to differ from the instructions given to Mr Kruezi's counsel who I observed, appears to have put Mr Kruezi's case with care to all of the other witnesses.

The account Mr Kruezi swore to in evidence included the claim that he was being attacked by both the complainant and by Bekim Xhemajlaj, each of whom was armed with a chair and one of whom had a rake.  This happened outside the residence.  In defence of himself against that combined attack, Mr Kruezi, on his account, picked up an iron bar and swung it, striking at the chair carried by the complainant.  In so doing, he injured the complainant's hand. 

Mr Martin accepted in his written submission that that account in which Mr Kruezi swore that he foresaw the potential for serious injuries to himself as a result of that attack, raised for the jury's consideration, a defence under s 271(2).  That was the defence of self-defence against an unlawful and unprovoked assault in which Mr Kruezi, the person using force in self-defence, used such force as was necessary for that self-defence even though that force might have caused the grievous bodily harm, as it in fact did.

Mr Martin accepted that the decision of this Court in R v Pangilinan [2001] 1 Qd R 56, meant that the absence of specific evidence from Mr Kruezi to the effect that he had a reasonable apprehension of death or grievous bodily harm in either those or similar terms, was not fatal to the proposition that the defence should have been left to the jury.  Mr Martin accepted that it should have been and that in the circumstances there was no room for the application or the proviso notwithstanding his earlier submission about the implausibility of what Mr Kruezi had said.

The learned trial judge was not asked to direct the jury on s 271(2) and accordingly did not make a wrong decision on any question of law in the trial.  It is therefore necessary for Mr Kruezi to establish that the failure to direct the jury on that subsection constituted a miscarriage of justice which in turn requires that Mr Kruezi show both that a direction in those terms should have been given and that it is reasonably possible that the failure so to direct the jury may have affected the verdict.

The prosecution agree that the direction should have been given since the defence was raised for the jury's consideration on the evidence.  It is reasonably possible that the verdict might have been different had the jurors learned of a defence of lawful defence in which force was used which might cause grievous bodily harm.  The only issue raised on the hearing of the appeal itself was whether or not this Court should make an order for a retrial.  The only orders available to the Court are for either a verdict of acquittal or an order of retrial.

In the circumstances in which there is a substantial body of conflicting evidence, most of which supported the Crown case, the appropriate order is that which Mr Martin suggested, namely, that the Court should order that the conviction be set aside and a retrial ordered.  I observe that there seems little point in the Director actually conducting a retrial since Mr Kruezi has now served four months imprisonment and in all likelihood would have gained conditional release pursuant to s 76 of the Corrective Services Act 2000 after serving six months of that sentence.  In addition, he has also subjected himself to quite a prolonged assault by others present at the residence after he had caused the grievous bodily harm to the complainant.  So he has therefore suffered some de facto punishment as well.

I would order that the appeal against conviction be allowed and the conviction set aside and order a retrial.

McPHERSON JA:  I agree.

DUTNEY J:  I agree.

McPHERSON JA:  The order will be as it was stated by Justice Jerrard.