R v Shepherd[2006] QCA 233

SUPREME COURT OF QUEENSLAND

KEANE JA:  On 16 February 2006 the appellant was convicted upon the verdict of a jury of assault occasioning bodily harm.  He was subsequently fined $500 and ordered to pay $500 compensation.

The appellant seeks to set aside the conviction on the grounds that "the verdict of the jury was unsafe and unsatisfactory".  This ground of appeal must be understood as asserting that on all the evidence the jury could not reasonably have been satisfied beyond reasonable doubt of the appellant's guilt.  See s 668E(1) of the Criminal Code.

I shall discuss this contention further after first setting out the evidence at trial. 

The Crown case was that on 1 August 2002 the appellant unlawfully assaulted Leah-Ann Jones and did her bodily harm.  It was formally admitted at trial, by counsel for the appellant, that Ms Jones had sustained bodily harm in the incident in question on that date.

The complainant, Ms Jones, gave evidence that at about 5 pm on the day in question she was working as a bar attendant at the Bellevue Hotel in Townsville.  She said that she had refused to allow the appellant to drink a beer that he had ordered because he could not pay for it.

After she attended to a poker machine she then walked past the appellant.  He called her name.  She stopped.  He said, "You can shove the pub up your arse."  She said, "That's your choice, Paul.  You could have just stayed and had a couple of drinks."

The appellant came towards her with an empty beer glass and said, "You're a smart arse bitch.  I'll fix you."  Ms Jones said the appellant raised the glass to the level of her eyes.  She thought that he was going to smash it into her face so she struck out to knock the glass out of his hand.

The appellant then punched her in the jaw and chest four to six times.  The complainant was cross-examined by reference to the hotel's surveillance video recording which captured most, but not all, of the incident.  She conceded that the film did not show a raised glass.  She disagreed with the suggestion that the appellant only had the glass at waist height as he approached her.

It was put to her that there was no threat by the appellant in words to the effect that he was going to "fix" her.  She rejected that suggestion.  It was also put to her that she was the aggressor in the incident and had struck him first.  She rejected that suggestion, maintaining that she struck at the appellant in fear of being struck in the face by the glass. That the complainant had been punched four to six times by the appellant was not challenged in cross-examination of the complainant.

Constable Michael Harms was called to give evidence.  He spoke to the appellant at about 5.35 pm on the day of the incident.  At this time the appellant showed no sign of any injury.  The appellant did not give evidence.

As to the issue on appeal, there can be no doubt that the appellant struck the complainant.  The appellant's argument, both at trial and on the appeal, was that on the evidence his assault on the complainant was not unlawful.

The jury were directed by the learned trial judge that the appellant's assault on the complainant was unlawful if the appellant had provoked the complainant's assault on him or if the complainant's assault was lawful.  No complaint is made concerning this direction.

The jury were able to assess the complainant's evidence in the light of such benefit as they could derive from the surveillance video.  The video may have provided only limited assistance.  Having seen the video I can say that the video does not show the appellant holding a glass up to the level of the complainant's eyes, but it does show the appellant's hand in the vicinity of the glass before he approached her and that the appellant seemed to be holding the glass when the appellant approached the complainant.

The complainant's evidence that the appellant came towards her and said to her, "You're a smart arse bitch.  I'll fix you", was uncontradicted.

On all this evidence it was reasonably open to the jury to conclude beyond reasonable doubt that the appellant had provoked the complainant's pre-emptive strike, equally the jury were entitled to conclude that the complainant's assault was a lawful act of self-defence on her part.

Accordingly, the jury were entitled to conclude that the appellant's assault on the complainant was unlawful.  The appellant's challenge to the verdict must therefore fail.  The appeal should be dismissed.

WILLIAMS JA:  I agree.

HOLMES JA:  I agree.

WILLIAMS JA:  The order of the Court is appeal dismissed.

THE COURT ADJOURNED AT 11.20 A.M.