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R v Drier[2007] QCA 129

 

SUPREME COURT OF QUEENSLAND 

 

PARTIES:

FILE NO/S:

DC No 39 of 2005

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

DELIVERED ON:

20 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2007

JUDGES:

Williams JA, Wilson and Lyons JJ

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTER – OTHER MATTERS – where Crown prosecutor in closing made submissions about appellant's motive to lie – where trial judge gave instructions to jury about issue in summing up – whether direction sufficient – whether jury should have been discharged

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – WHETHER JURY WOULD HAVE RETURNED SAME VERDICT – where doctor who examined complainant's injuries was not called or made available for cross-examination – where evidence went to whether complainant suffered bodily harm – whether failure to call witness led to miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – POWER TO DISMISS APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – where alleged assault followed traffic incident – where police officer gave evidence of damage to appellant's car – where photos not available – where some inconsistencies in evidence of prosecution witnesses – where self-defence, provocation and consent left to jury – whether verdict supported by weight of evidence

Criminal Code Act 1899 (Qld), s 269, s 271(1)

Gilbert v The Queen (2000) 201 CLR 414, applied

R v G [1994] 1 Qd R 540, distinguished

COUNSEL:

The appellant appeared on his own behalf

M J Copley for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

[1]  WILLIAMS JA: The appellant was convicted after a re-trial of the offence of unlawful assault occasioning bodily harm.  The complainant was one Dionysius, and the offence was alleged to have taken place on 26 March 2004.  The re-trial commenced in the District Court at Townsville on 29 November 2006.

[2] The appellant appealed against his conviction upon the following stated grounds:

"(a)The learned trial judge erred in failing to discharge the jury following the learned crown prosecutor's comments during his closing address concerning the accused's motivation to lie;

(b) The appellant was denied a fair trial as a result of the failure by the learned crown prosecutor to:-

(i) call Dr Catriona Balfour; or

(ii) make Dr Catriona Balfour available for cross-examination or available to be called by the defence; or

(iii) call any other medical evidence.

(c)The verdict was unsafe, unsatisfactory or otherwise unreasonable as against the weight of the evidence."

[3] The appellant appeared on his own behalf on the hearing, which took place by way of telephone link to Townsville.  The appellant submitted a written outline of argument which, in addition to the matters raised in the notice of appeal, referred to inconsistencies in the evidence of the witnesses Wright and Nolen which it was submitted made them unreliable witnesses, to a number of matters associated with the evidence of Detective Price, and to the failure of the prosecution to call all relevant evidence.

[4] At trial the appellant was represented by counsel.  He did not give evidence, and his record of interview with the police was relied upon as his version of events.  As already noted the incident occurred on 26 March 2004, but the record of interview was not tape-recorded until 8 August 2004 in the presence of Detective Price.  The appellant's account of relevant events so recorded differed in a number of significant respects from the evidence given by the complainant and two eyewitnesses.  In so saying, it should also be noted that there were inconsistencies between the version of events given by the complainant and that coming from the eyewitnesses.

[5] The incident in question happened between 8 am and 8.30 am in the vicinity of the intersection of Railway Avenue, Putt Road and Queens Road in Townsville; that intersection is controlled by traffic lights.  What happened there was the culmination of some events which had occurred over the preceding approximately 15 minutes.

[6] Shortly after 8.00 am the complainant was travelling in his four wheel drive on the Bruce Highway inbound towards Townsville when he came to the crossroads adjacent to the Alligator Creek Roadhouse.  According to his evidence a red car pulled in front of him from the right, causing him to break heavily and swerve to the left in order to miss that car.  The speed limit at that point was 100 kilometres per hour.  On the complainant's evidence the red vehicle then travelled along the highway at about 40 kilometres per hour.  The complainant flashed his headlights, and in response the driver of the red car put his arm out of the window, shook his fist, and made a gesture with his finger.  The complainant said he was unable to overtake the red vehicle because as he attempted to do so it swerved to the right.  On the third attempt the complainant succeeded in passing the vehicle; on that occasion the complainant had to pull in front of the red vehicle in order to avoid a collision with oncoming traffic.  The complainant drove on towards Townsville, and lost sight of the red vehicle.

[7] On reaching the intersection where the incident subsequently occurred the complainant had to stop because of the traffic lights.  According to the complainant's evidence he heard a horn sound behind him, and looking in his mirror saw the red vehicle directly behind him.  The driver's hand protruded from the window, shook the fist, and gestured with a finger.  An object was then thrown from the red vehicle at the complainant's vehicle and hit the rear of it.

[8] The complainant, according to his evidence, alighted from his vehicle and went to see if any damage has been caused to it.  Under cross-examination the complainant conceded his car may have rolled back and made contact with the red car, but he believed it did not.  He approached the driver's side of the red car and asked the driver why he was "throwing shit" at his vehicle.  The driver of the red vehicle was the appellant.

[9] There was an exchange of words between the two persons and, according to the complainant, the appellant opened the door of his vehicle, lunged at the complainant, and started to punch him.  He was seen to be wearing a black or dark coloured object around his right hand.  The complainant said that before he was punched his hands were at his side. 

[10]  The complainant described in evidence being struck a number of blows to the face, shoulder and body.  His left eyebrow began to bleed.  He did not strike back.  He went down on one knee but the appellant kept on punching him around the head, shoulder and back.  He fell to the ground and the appellant kicked and punched him whilst he was on the ground.  The appellant said he was going to kill the complainant.  Other people arrived at the scene and called upon the appellant to desist.

[11]  The complainant then got off the ground and the appellant continued to punch him.  A woman said she was going to call the police and the appellant said "Good, good, call the police".  After a short pause the appellant again punched the complainant a number of times.  The complainant then tried to protect his face by holding his hands up.  He was bleeding and feeling dizzy.  The appellant then, according to the complainant, got into his vehicle and drove off.  The complainant's evidence was that he did not consent to the fight. 

[12]  The witness Wright did not know either the appellant or the complainant.  He drove up to the intersection where the incident occurred. He saw a man alight from the small red car and approach a four wheel drive.  He did not see the driver of the latter vehicle get out of it, but he saw the two men come together on the median strip.  Wright drove around the stationery vehicles and parked in front of the protagonist's vehicle.  When he next looked there was a fight going on.  He saw the appellant punch the complainant numerous times.  He said it was a "prolonged and vicious attack".  Most of the punching was to the head and the complainant did not retaliate.  The initial attack comprised 10 to15 punches.  There was a pause and then the appellant resumed the attack.  He said that the appellant wore something akin to fingerless black glove on his right hand.  He saw the complainant fall to the ground and the appellant continued to punch him.  Wright told the appellant that the police had been called and that he should stop.  The appellant then stopped and the complainant stood up.  Wright looked away, and when he looked back the appellant was again punching the complainant mainly to the head.  He saw gashes to the complainant's head, and the complainant fell down.  Wright told the appellant to stop or the complainant will be killed or hurt, and then the appellant left the scene.

[13]  Mrs Nolen was acquainted with the complainant but it would appear they were not close associates.  She did not know the appellant.  She came to the intersection in her vehicle and noticed the complainant in his vehicle.  She subsequently noticed that the complainant was out of his vehicle and the appellant was punching him around the face.  She could not see what the complainant was doing with his hands.  She got out of her vehicle and ran across to the traffic island.  The complainant was on the ground by then and the appellant was hitting him around the face with his fists.  She thought 20 to 40 blows were delivered.  She noticed that the appellant had a black object across the back of his hand.  In her evidence she said there was a pause in the attack before the appellant resumed it whilst the complainant was on the ground.  She did not see the complainant hit the appellant. 

[14]  Over opposition from counsel for the appellant the Crown prosecutor did not call Dr Balfour as a witness.  Dr Balfour had examined the complainant at the Emergency Department of the Townsville Hospital on 26 March 2004 at about 9.30 am.  The prosecutor made an admission as to the findings made by Dr Balfour and read the relevant findings into the record.  The complainant stated to the doctor that he had been hit around the head and trunk for two to three minutes by a person wearing knuckledusters.  The injuries noted by Dr Balfour were as follows:

(i)swelling approximately three centimetres above the right elbow;

(ii)2.5 centimetre jagged laceration to the left eyebrow.  The laceration was closed with four sutures;

(iii) one centimetre diameter abrasion on the right side of the jawline;

(iv) tenderness over the third and fourth ribs on the chest.  X-rays revealed no fractures. 

[15]  Photographs taken of the complainant on 29 March 2004 were admitted into evidence.  They clearly show the sutured laceration above the left eye and some bruising on his body, particularly to the region just above his left hip.  There was also some bruising to an arm and legs. 

[16]  In his evidence the complainant said that more bruising came out over "three to five to seven days after the incident".  He said: "The bruising got much more - well got much darker and much more exaggerated and it covered a bigger area of my torso, my body, my head, my shoulder, my ribcage."

[17]  As already noted the appellant's version of events was contained in his record of interview given some months after the incident.  In that statement he said that he was driving a little red Hyundai.  He conceded that at about 8.00 am he pulled out onto the Bruce Highway at Alligator Creek.  Relevantly his statement went on:

"I pulled out of a give way sign.  He was - I thought it had plenty of time clear but obviously he was speeding and so he's run right up my arse, stayed up behind me being smart and then he'd overtaked me, swerved his car at me pretending to try and run me off the road.  Next I've encountered him on Railway Avenue… He was looking in the side mirror.  I was looking at him, pointing at him. …Cause I've intended to have a few words with him.  He's reversed into me and then I've done something and then he's jumped out of the car, raced towards me and what I anticipated would have been an assault.  So I've jumped out my car and met him right beside my front door and we've had a punch up, ended up on the ground.  He's grabbed my left arm, I've given him a couple more. …And then I hopped back in my car and drove away. …But also when he reversed into me, he broke my left hand light and left a dint on the bonnet which is still there now."

[18]  Under further questioning the appellant said that when he pointed at the complainant from his car "I've mouthed some words at him I don't want to repeat…in case I incriminate myself."  He then reiterated that the complainant reversed his car deliberately into the red car and the appellant again said: "I've done something that I don't want to put on record. …in case I incriminate myself…"  He said they shaped up and he made the complainant miss his first punch and his, the appellant's, first punch "went into his ribs".  According to the statement there was then some boxing until both went to the ground.  After the scuffle they got up and he drove away.

[19]  The learned trial judge in his summing up left for the jury's consideration issues of consent, self-defence to unprovoked assault and provocation.  No challenge has been made to the directions given in that regard.  The jury was properly directed as to the onus of proof with respect to each of those issues, and indeed it could be said that the summing up was very fair to the appellant in the way in which the jury was asked to consider those issues in the light of the content of his record of interview with the police of 8 August 2004. 

[20]  In my view it was clearly open on the evidence for the jury to conclude that the complainant did not consent to a fight with the appellant.  As already noted he expressly denied consenting to that.  The matter was left to the jury in the light of the appellant's statement that what happened was in response to the complainant approaching him in an aggressive manner, adopting a fighting stance.  In my view it could not be said that the jury's decision to find against the appellant on that issue was in any way unsafe and unsatisfactory. 

[21]  The critical question for the jury when considering self-defence would undoubtedly have been whether the force used by the appellant was greater than was reasonably necessary to make effectual defence against any assault emanating from the complainant (s 271(1) of the Criminal Code).  Having regard to the evidence of Wright and Nolen there was a clear basis for the jury concluding that the appellant had used greater force than was necessary to defend himself.  That is particularly so when regard is had to the evidence of both Wright and Nolen that there was a resumption of an attack by the appellant after there had been a significant break during which no blows were struck.

[22]  Again when considering provocation the critical issue for the jury would have been whether or not the force used by the appellant was disproportionate to the provocation (s 269 of the Criminal Code).  Again if the jury accepted the evidence of Wright that the attack was "prolonged and vicious" that would provide a clear basis for rejecting the defence of provocation.  Again it could not be said that rejection of the defence of provocation made the verdict unsafe or unsatisfactory.

[23]  The defence at trial contended that the complainant had greatly exaggerated the extent of the injuries sustained in the incident.  That may well be so.  That is why the defence at trial wanted Dr Balfour called; that would have enabled defence counsel to have cross-examined the doctor about the nature of the complainant's injuries with a view to establishing that fewer blows were struck and with less force than was alleged by the complainant.  As was virtually conceded by counsel for the respondent on the hearing of the appeal the doctor ought to have been called.  Counsel for the prosecution at trial considered calling the doctor was unnecessary because bodily harm was clearly established by the fact that the laceration near the complainant's eye had been sutured.  That may well be so, but nevertheless the defence should have been entitled to cross-examine the doctor.

[24]  However, as submitted by counsel for the respondent on the hearing of the appeal, the medical evidence ultimately would only have been relevant to the issue whether or not the complainant suffered bodily harm.  The doctor's evidence would not have been of assistance to the jury in determining whether the force used by the appellant was greater than was reasonably necessary to make effectual self-defence, or whether the force used by the appellant was disproportionate to the provocation.  Ultimately the critical evidence when considering those matters was that of the complainant, Wright and Nolen. 

[25]  It follows that the failure to call Dr Balfour did not deprive the appellant of a fair trial and did not occasion any miscarriage of justice.

[26]  In his address to the jury the Crown prosecutor referred to the fact that the cross-examination of the complainant, Nolen and Wright suggested that each of them was lying and advanced arguments why the jury should reject that inference.  He then went on to say: "…I invite [you] to conclude there's only one person that's lying, and he's sitting in the dock.  Because he's the only person who has got a motive to lie because he's charged with a criminal offence to that extent.  But that's entirely an inference for yourselves to draw."

[27]  Defence counsel at the conclusion of the Crown prosecutor's address asked that the jury be discharged because he contended that it was improper for the Crown prosecutor to have referred to the fact that the appellant had a motive to lie.  After hearing submissions the learned trial judge ruled that what was said was "an inappropriate submission", but nevertheless the jury should not be discharged because he could deal with the matter adequately in his summing up.  In his summing up the learned trial judge then directed the jury as follows:

"At one point in [the Crown prosecutor's] address he suggested the defendant may have a motive to be untruthful.  He invited you to consider that he might have an interest in the outcome of the trial.  I am directing you that you must put any such notions aside.  The onus of proof is upon the Crown, and if a verdict adverse to the accused is ultimately your conclusion in relation to the matter it will be based upon your assessment of the honesty and reliability of the Crown witnesses, and nothing else.  People who are accused of offences do not start with any form of handicap.  Each at the outset of the trial is entitled to a presumption of innocence.  It is only if the weight of evidence removes that presumption that there can be a conviction.  It can be seen, therefore, that nothing is to be gained by comparing the accused's interest in the outcome with the interest that one or more of the other witnesses might have in the outcome of the trial.  In essence, it is certainly not the case that the accused's account, as given in the record of interview, should be discounted in any way simply because he is on trial."

[28]  The first ground of appeal raised by the appellant is that the learned trial judge erred in not discharging the jury.  The appellant again referred to G [1994] 1 Qd R 540, a case cited by defence counsel to the trial judge.  The reasoning in G is hardly apposite here; that case was primarily concerned with a direction given by the trial judge to the jury.  Counsel for the respondent on the hearing of the appeal asked the Court to assume, without deciding, that the submission by the Crown prosecutor to the jury was inappropriate.  This Court has not heard specific submissions as to the appropriateness of the remark and has proceeded on the basis of an assumption that the remark was inappropriate. 

[29]  As contended for by counsel for the respondent, the question then becomes whether or not the matter was redressed by what was said by the trial judge in his summing up to the jury.  The direction given was in very clear and precise terms and undoubtedly would have been readily understood by the jury.  It was clearly sufficient to dissuade the jury from placing any reliance on the remark in question made by the Crown prosecutor.  As was said by Gleeson CJ and Gummow J in Gilbert v The Queen (2000) 201 CLR 414 at 420: "The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges."  There is no reason to doubt that in this case the jury applied the direction which was so clearly given to them.

[30]  It follows that, on the assumption that the remark of the Crown prosecutor was inappropriate, the matter was clearly redressed by what was said to the jury in the course of the summing up.  It follows there is no substance in the first ground of appeal. 

[31]  The next submission by the appellant was that the verdict was unsafe because it was based on the evidence of unreliable witnesses, namely Wright and Nolen.  That submission was based on the fact that under cross-examination each of the witnesses admitted to some variance between evidence given in chief at the retrial and the statement each had initially given to the police.  It is not clear when the statements in question were first made, but the retrial took place some two and a half years after the incident.  In those circumstances it is not surprising that there was some variation in the recall by the witnesses of what had been seen at the time.  Importantly the discrepancies were before the jury, and it is clear from addresses and summing up that the jury was well aware that the reliability of evidence such as that given by Wright and Nolen was of critical importance.  Issues of credibility were entirely for the jury, and I am not persuaded that the inconsistencies in evidence referred to by the appellant are such as to render the verdict of guilty unsafe and unsatisfactory.

[32]  The other major ground of appeal relied on by the appellant was with respect to the evidence of Detective Price.  It appears that immediately after recording the interview with the appellant on 8 August 2004, Detective Price, accompanied by the appellant, took photographs of some damage to the appellant's motor vehicle.  As at that date, as stated in evidence by Detective Price, the vehicle had a broken headlight and a small dent in the bonnet.  However, Detective Price was unable to tender photographs of that damage because he said his camera had been damaged beyond repair.  His evidence was that the camera was in a drawer and a glass of water had been spilt on the camera thereby destroying it.  He said it was a disposable camera.  Whilst one might be a little sceptical about that evidence, the absence of photographs did not mean that the appellant was deprived of a fair trial.  The Detective gave evidence of the damage he saw on 8 August 2004 and the cross-examination would suggest that the damage he described was in accord with the damage which the appellant claimed had been sustained by his vehicle on 26 March 2004.  In the circumstances the absence of the photographs did not establish any defect in the investigation conducted by Detective Price.

[33]  The appellant complains there was not sufficient investigation by Detective Price and other police of his allegation that the complainant rammed his vehicle at the intersection in question immediately before the fight started.  Again the submission does not indicate how that resulted in the appellant being deprived of a fair trial. 

[34]  Finally the appellant alleges that Detective Price committed perjury with respect to his evidence as to the destruction of his disposal camera.  Whilst the Detective's evidence does seem a little improbable there is nothing to suggest that he committed perjury, but more importantly, as already noted, the absence of photographs of the damage to the Hyundai did not in any way prejudice the fair trial of the appellant. 

[35]  Then the appellant submits he was deprived of a fair trial because there was no video tendered of the record of the interview, the first police on the scene of the incident were not called, and the caller to the triple-zero number was not called to give evidence.  It would appear that no video was taken of the interview on 8 August 2004 and it is difficult to see how the appellant's case could have been improved if there was a video taken of his making the statements recorded in the tape.  There was no challenge at the trial to the contents of the tape. 

[36]  No elaboration was given with respect to the assertion that the appellant was denied a fair trial because the initial police on the scene and the triple-zero caller were not called to give evidence.  It is difficult to see that any of those witnesses could have given evidence which would have furthered the defence case before the jury.

[37]  Having considered all of the submissions of the appellant I am not persuaded that the verdict of the jury was unsafe and unsatisfactory.  There was more than ample evidence upon which a verdict of guilty could have been returned, and in particular there was a clear basis upon which the defences of self-defence and provocation could have been negatived by the jury. 

[38]  It follows that the appeal against conviction should be dismissed.

[39]  WILSON J: The appeal against conviction should be dismissed for the reasons given by Williams JA. 

[40]  LYONS J: I have had the advantage of reading the reasons for judgment of Williams JA and I agree with the reasons set out therein and that the appeal against conviction should be dismissed. 

Close

Editorial Notes

  • Published Case Name:

    R v Drier

  • Shortened Case Name:

    R v Drier

  • MNC:

    [2007] QCA 129

  • Court:

    QCA

  • Judge(s):

    Williams JA, Wilson J, Lyons JJ

  • Date:

    20 Apr 2007

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC No 39 of 2005 (no citation)-Defendant found guilty of assault occasioning bodily harm; sentenced to two and a half years' imprisonment
Appeal Determined (QCA)[2006] QCA 23723 Jun 2006Defendant appealed against conviction; whether trial judge erred in not allowing jury to consider defence of provocation; appeal allowed, conviction quashed and new trial ordered: M McMurdo P, Holmes and Mackenzie JJ
Appeal Determined (QCA)[2007] QCA 12920 Apr 2007appeal dismissed: Williams JA, Wilson and Lyons JJ

Appeal Status

Appeal Determined (QCA)

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