SUPREME COURT OF QUEENSLAND 

[1]  McMURDO P:  The appeal against conviction should be dismissed and the application for leave to appeal against sentence refused for the reasons given by Keane JA.

[2]  KEANE JA:  On 4 May 2007 the appellant was convicted upon the verdict of a jury of one count of burglary and one count of assault occasioning bodily harm.  He was acquitted of one count of common assault and one count of sexual assault.

[3] On 11 May 2007 the appellant was sentenced to two years imprisonment in respect of each offence to be served concurrently with a parole release date fixed at 22 March 2008.  The learned sentencing judge declared 51 days of pre-sentence custody as time already served.

[4] The appellant seeks to appeal against the convictions on the ground that they are "unsafe and unsatisfactory and contrary to law". 

[5] The appellant also seeks to appeal against his sentence on the ground that it was "manifestly excessive in all the circumstances".

The case at trial

[6] The complainant was Ms Kerry Waldie.  The appellant and Ms Waldie had been in a domestic relationship which ended in 2002.  They continued to see each other, and in 2005 a domestic violence order was made against the appellant at Ms Waldie's instigation.  Even after this order had been made, the complainant and the appellant continued to see each other.

[7] The incidents which led to the appellant's trial all occurred on 18 March 2006.  In the morning the appellant called at Ms Waldie's house.  According to her, the appellant assaulted her in her front yard, spitting in her face.  This incident was the subject of the count of common assault on which the appellant was acquitted.

[8] It was common ground at trial that, at about 6.00 pm to 7.00 pm that evening, the appellant returned to the complainant's house and drove her to the house of a mutual friend at Coorparoo.  She went inside and drank some alcohol.  The appellant stayed in the car.

[9] The complainant gave evidence that the appellant fell asleep in the car outside the friend's house; he gave the same account to the police.  She said that she went home in a taxi.

[10]  According to the complainant's evidence, she was getting ready for bed when she heard a knock at the door.  On seeing the appellant through the glass panel she told him to go away.  She returned to her bedroom where she undressed to her bra and panties.  She then saw the appellant in her bedroom.  She gave evidence that he said:  "No-one's going to see you looking like that" and ripped her bra and panties off tearing them in the process.  This incident was the subject of the count of sexual assault of which the appellant was acquitted. 

[11]  The complainant recalled standing in the hallway, looking back and seeing the appellant in her bedroom.  She had no further recollection of the evening, and particularly of the incidents the subject of the counts of assault occasioning bodily harm.  The principal evidence in support of the Crown case in relation to this offence came from Mrs Cahill who lived next door.

[12]  Mrs Cahill had known the complainant and the appellant for about three years, and knew that they used to live together.  At about 10.00 pm she heard the complainant return home, and 10 minutes later she heard yelling and screaming from the complainant's house.  She heard the complainant telling the appellant to get out, and she heard the appellant's voice.  She said she was able to recognise the appellant's voice.  She heard things being thrown around.  She looked out from her bedroom and saw the complainant and the appellant in the kitchen of Ms Waldie's house. 

[13]  A few minutes later, she looked out again and saw the appellant trying to climb into the complainant's house through a bedroom window.  Mrs Cahill saw the complainant shut the window.  Mrs Cahill then called the police.  She thought she heard a car drive off.  She said that she did not see any vehicle outside the complainant's house.

[14]  Constables Hughes and Symons were in a police vehicle at Carindale.  At 11.00 pm they were given instructions over their radio to attend at the complainant's address.  As they were driving along the complainant's street, they saw the appellant in his motor vehicle.

[15]  At the complainant's house, the police officers found the complainant in a distressed state:  she was holding her jaw on the right side and there appeared to be blood near her mouth and eye.  There were broken vases and pots on the floor of her lounge room.  The complainant showed police an unlocked window in her daughter's bedroom.  She did not complain of having her underwear torn off, nor did she show police any torn underwear.  Her first complaint that the appellant had stripped her underwear was made two days later.

[16]  The complainant was taken to hospital by ambulance, but she discharged herself some hours later.

[17]  She saw her doctor on 20 March 2006.  He observed that her jaw was stiff, and she was bruised inside her lip, on the inside of her left forearm, on the right forearm and on the top of her pelvic bone.  Her right cheek was red, and there was a small bump on the right side of the front of her scalp.  These injuries were consistent with blows from fists or a blunt object.  They interfered with her health and comfort so as to constitute bodily harm.  The possibility that she had suffered concussion might have accounted for an incomplete memory of the incident in which she had been injured.

[18]  The appellant did not give or call evidence.

The appeal against convictions

[19]  The issue raised by the only ground of appeal against the conviction is whether it was open to the jury to be reasonably satisfied on all of the evidence of the appellant's guilt beyond reasonable doubt.[1]

[20]  If the Crown case were limited to the evidence of the complainant, there might well have been a basis on which it could be said that the jury were bound to entertain a reasonable doubt as to the appellant's guilt of the offences of which he was convicted.  The jury evidently entertained a doubt about the reliability of her evidence in relation to the offences of which the appellant was acquitted.  But the complainant's evidence that the appellant broke into her house and assaulted her causing her bodily harm does not depend on the evidence of the complainant alone.

[21]  The evidence of Mrs Cahill and the police officers places the appellant in the vicinity of the complainant's house at the time in question.  The evidence of Mrs Cahill places the appellant inside the complainant's house in circumstances where he was plainly not welcome by the complainant.  The medical evidence supports the conclusion that the complainant was assaulted.  The conclusion that the appellant was, indeed, the culprit in relation to the assault lends support to the inference that the appellant broke into the complainant's house with the intent to commit an indictable offence required to establish the offence of burglary.  It can reasonably be inferred that, at the time he entered the house, the appellant had formed the intent to act as he subsequently did. 

[22]  The case put by the defence at trial was that the complainant may have imagined the attack altogether or suffered her injuries when she fell over.  The evidence of Mrs Cahill, the evidence of the police officers as to the state of the house, and the medical evidence as to the nature of the complainant's injuries meant that it was open to the jury to reject these suggestions beyond reasonable doubt.

[23]  On the appeal, the appellant represented himself.  He had told the police that he had stayed the night at an address in Ross Street near Annerley.  Constable Hughes gave evidence at trial that there was no Ross Street at Annerley, Greenslopes or Tarragindi.  On the appeal, he sought to prove that there was a Ross Street at Woolloongabba.

[24]  But proof that Ross Street exists does not mean that there should be a reasonable doubt about the truth of the evidence which located him at the complainant's house at the time of the incidents in question.  That evidence was uncontradicted.

[25]  The appellant seeks to argue that there were no witnesses to the assault.  That contention cannot be maintained in light of Mrs Cahill's evidence.

Leave to appeal against sentence

[26]  The appellant was 41 years old at the time of the offences.  He has a history of offending which goes back many years.

[27]  Most relevantly for present purposes, he breached a domestic violence order relating to the complainant on 19 September 2002 for which he was placed on 12 months probation.  While on probation, he breached the domestic violence order again on 7 November 2002 for which he was convicted and not further punished.  He breached his probation for which he was given a one month wholly suspended sentence in June 2003.  In February 2004, he was given a two months wholly suspended sentence for assault.  The terms of the suspended sentence were breached by an offence of unlawful possession of a dangerous drug in January 2006 for which he was fined.

[28]  In New South Wales, the appellant was sentenced on 4 February 2003 to nine months imprisonment, suspended after one month, for assault occasioning bodily harm to the complainant, and a shorter concurrent term was imposed in respect of his assault upon a person who intervened to protect the complainant.

[29]  In R v Fitzgerald,[2] this Court upheld a sentence of 21 months suspended after six months for a period of three years imposed on an offender who committed an assault after breaking into a dwelling.  The offender in that case had no previous convictions and had pleaded guilty.  The sentences in the present case were imposed after a trial.  For an offender with the appellant's record, they were distinctly moderate.

Conclusion and orders

[30]  The verdicts were reasonably open to the jury.

[31]  The appeal against the convictions should be dismissed.

[32]  The sentences which were imposed were not excessive, much less manifestly so.

[33]  The application for leave to appeal against sentence should be refused.

[34]  DAUBNEY J:  I have had the benefit of reading the reasons for judgment of Keane JA, with which I respectfully agree, and concur in the orders he proposes.