SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  On 19 November 2007 the appellant was convicted upon the verdict of a jury of one count of burglary with circumstances of aggravation and one count of unlawfully doing grievous bodily harm with intent to do grievous bodily harm.  On 11 December 2007 he was sentenced to six and a half years imprisonment in respect of each offence.  A period of 67 days pre-sentence custody was declared to be time served under the sentence.

[2] The appellant conducted his own defence at trial, save that Mr Green of Counsel appeared on the appellant's behalf to cross-examine the complainant.  Further, the appellant was represented by Counsel at the hearing in respect of sentence. 

[3] The appellant commenced proceedings to appeal against both conviction and sentence.  In the appellant's notice of appeal, evidently prepared without legal assistance, he complained of bias on the part of the learned trial judge, and mendacity on the part of the witnesses who gave evidence against him. 

[4] Mr P E Smith of Counsel appeared for the appellant in this Court.  Mr Smith did not pursue the complaints raised by the appellant in his notice of appeal.  The arguments which Mr Smith advanced on the appellant's behalf related to the wrongful reception of evidence and the sufficiency of the learned trial judge's directions to the jury. 

[5] At the hearing in this Court, Mr Smith also advanced argument in support of the application for leave to appeal in relation to the severity of his sentence.  The appellant's complaints of bias on the part of the learned sentencing judge were not pursued.  The argument advanced on the appellant's behalf was essentially that the sentence imposed on the appellant was manifestly excessive.  I shall revert to the question of the appellant's sentence after dealing with the challenge to his conviction.

The Crown case at trial

[6] At trial the Crown alleged that at about 5.30 am on 6 April 2005, the appellant drove to the Cleveland home of the complainant, Mr Harrington.  The appellant entered the house by cutting through a wire screen window.  He was armed with a hammer.  Mr Harrington was asleep in his bed.  The appellant attacked Mr Harrington with the hammer. 

[7] According to Mr Harrington's evidence, he was awakened when the appellant struck him on the leg.  This blow broke Mr Harrington's knee-cap.  The appellant then paused, waiting for Mr Harrington to wake up.  The appellant spoke to him and then struck at Mr Harrington's head four times with the hammer. 

[8] According to Mr Harrington, when he woke up after being struck the first time, his assailant said to him:  "I told you I'd get you."  Mr Harrington said that he recognised the appellant's face in the light coming through his bedroom blinds.  It was put to Mr Harrington in the course of cross-examination that he was mistaken in this regard, but Mr Harrington's evidence on this point was unshaken.  Mr Harrington also selected the appellant from a photo board shown to him by police on 12 April 2005. 

[9] After these assaults, Mr Harrington crawled out of his house, naked but for a bloodied singlet, to his son's house.  There, assistance was called.

[10]  The Crown case was that the appellant's attack on Mr Harrington was motivated by a desire for revenge arising out of Mr Harrington's association with Ms Imelda Khoo with whom the appellant had previously been in a relationship. Mr Harrington had taken up dancing with Ms Khoo, and the appellant had voiced his displeasure about that to Mr Harrington, as well as to Mr William Stoddart and Ms Naomi Williams both of whom gave evidence.

[11]  Ms Khoo was called to give evidence.  She said that she had been trying to end her relationship with the appellant for some time.  She said that she ended her relationship with the appellant in about August 2004; the relationship recommenced in October 2004, but had ended completely by February 2005.

[12]  According to Mr Harrington, on several occasions in October 2004, March 2005 and April 2005, the appellant had threatened Mr Harrington with violence if he did not stay away from Ms Khoo.  Mr Harrington said that at a dance on 22 October 2004, the appellant said to him:  "I'm going to kill you, throw your body off a boat. Stop dancing with Imelda … I know where you live … Keep away from Imelda." 

[13]  Mr Harrington also said that he received a total of "about 10" telephone calls from the appellant in which the appellant said that Mr Harrington's legs would be broken if he did not stop dancing with Ms Khoo.  The first of these calls was received on 19 March 2005.  Mr Harrington was cross-examined in relation to his telephone records, and accepted that almost all the recorded calls for the relevant period were from callers other than the appellant.  The only telephone call that Mr Harrington could not account for was a call from the Easts Leagues Club public telephone on 19 March 2005. 

[14]  It may be noted here that, after the attack on Mr Harrington, the appellant was located on 6 April 2005 at the Easts Leagues Club. 

[15]  The most relevant of the threats said by Mr Harrington to have been made by the appellant was on 1 April 2005:  when Mr Harrington was going to a dance at a hall in Cornwall Street, the appellant drew up in his car and said to him:  "I'm going to kill you.  Stop dancing with Imelda." 

[16]  Ms Naomi Williams gave evidence that, at a time before she had learned of the allegations against the appellant, she recalled a conversation with the appellant in which he had complained of Mr Harrington "dancing with Imelda".  The appellant said:  "A man ought to take him out fishing and make sure he doesn't return."  According to Ms Williams, the appellant also said to her that he would make sure that Mr Harrington never danced again.

[17]  Dr Christopher May was called to give evidence of the effect of the injuries suffered by Mr Harrington.  Dr May was not the doctor who had treated Mr Harrington. Dr May referred to the hospital records relating to Mr Harrington's treatment which were admitted into evidence pursuant to s 93 of the Evidence Act 1977 (Qld).[1]  On the basis of Dr May's evidence, it was clear that Mr Harrington suffered grievous bodily harm in the attack of 6 April 2005. 

[18]  There was no DNA on clothing and tools found by police in the appellant's car after the assault on Mr Harrington.  The only DNA found in Mr Harrington's house belonged to Mr Harrington.

The appellant's case at trial

[19]  The appellant gave evidence at his trial.  He said that he was asleep at his home in Greenslopes at the time of the alleged offence.  He denied making any threats against Mr Harrington, save that he did admit telling Mr Harrington to stay away from the Princess Street address where Ms Khoo lived.  The appellant denied that the conversation about which Ms Williams testified had occurred. 

[20]  The appellant said that he had suffered a bad accident in New Zealand which left him with a permanent disability in his ankles, knees and lower back.  He admitted in cross-examination that he was a qualified diesel fitter and had driven earthmoving equipment, including a grader in recent years; but he maintained that he would have had huge problems climbing into the complainant's window.

[21]  The appellant called evidence from two witnesses who sought, in essence, to impugn Ms Khoo's credibility generally.  The relevance of this evidence to the issues in the case is not readily apparent, and it may be said, in this regard, that the appellant was treated with undue generosity in the course of the trial in recognition of the difficulties he experienced in attempting to represent himself.

[22]  When Mr Harrington was cross-examined by Counsel on the appellant's behalf, Counsel carefully avoided suggesting to Mr Harrington that he was deliberately lying when he said that he recognised the appellant as his assailant.  Counsel suggested to Mr Harrington that it was too dark in his bedroom to see his assailant clearly.  Mr Harrington rejected this suggestion.  When it came time for the appellant to address the jury, he argued that Mr Harrington was either mistaken or deliberately lying.

The appeal against the convictions

[23]  It will be apparent from this summary of the evidence adduced at trial that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.  The jury were entitled to prefer the evidence of Mr Harrington and Ms Williams to the evidence of the appellant.  Mr Smith has not sought to suggest that the jury could not reasonably have come to the verdict against the appellant.  In my respectful opinion, any attempt to take such a course would have been doomed to fail.

[24]  Nor did Mr Smith persist with the appellant's original complaints of bias against the learned trial judge.  These complaints stem, in large part, from the appellant's failure to understand the nature of a trial judge's functions and the considerable difficulty he experienced in grappling with legal issues which confronted him in representing himself.  It is not surprising that Mr Smith did not seek to make any criticism of the learned trial judge's integrity:  there was simply no legitimate basis for such criticism.  I turn then to the four contentions advanced by Mr Smith in support of the appeal against the convictions.  I will deal with these in turn.

Tools in the appellant's car

[25]  The first contention advanced by Mr Smith on the appellant's behalf is that the evidence of tools found in the boot of the appellant's car, especially a hammer and a Stanley knife, was wrongly admitted.  The appellant had objected to this evidence at trial; he said they were normal tools and that no blood or DNA had been found on them.  This contention must be rejected. 

[26]  The evidence that the appellant was in possession of tools which included a hammer and a knife was relevant and admissible to prove that the appellant had the means to gain access to Mr Harrington's house and to attack Mr Harrington in the manner alleged.[2]

[27]  That there was no DNA on the tools in question did not render the evidence inadmissible.  This circumstance might have been explicable by reason of the tools and knife having been cleaned in the 13 hours which had elapsed since the commission of the offence; but whether or not that occurred, the relevance of the appellant's possession of the hammer and knife, and their presence in his car, cannot be doubted.

A statement in the hospital records

[28]  The second contention advanced by Mr Smith in this Court was that a statement by Dr Hunt in the hospital file which was produced on the third day of the trial contained hearsay statements relating to the occurrence of Mr Harrington's injury which were prejudicial to the accused and which should not have been allowed into evidence or taken into the jury room.  This statement was contained in the hospital records tendered pursuant to s 93 of the Evidence Act. 

[29]  At an early stage in the trial, when it was foreshadowed that Dr Hunt would give evidence that Mr Harrington had suffered grievous bodily harm as a result of the attack of 6 April 2005, the appellant indicated that he would object to Dr Hunt's evidence on the basis that Dr Hunt was not the medical practitioner who actually treated Mr Harrington.  This foreshadowed objection prompted the learned trial judge to suggest that the hospital records relating to Mr Hunt's treatment should be produced to ensure that there could be no legitimate objection to the medical evidence relating to the nature and extent of Mr Harrington's injuries.

[30]  When the hospital records were tendered, the appellant raised no objection to the tender of this material.  The statements by Dr Hunt contained in this material were not referred to by either party.  They did not identify the appellant as Mr Harrington's assailant:  at most they confirmed that Mr Harrington had identified his assailant.  It was never suggested to Mr Harrington that he had ever identified anyone other than the appellant as his assailant, and it was no part of the appellant's case that Mr Harrington had not actually suffered the injuries described by Dr Hunt.  It is impossible to see how this material could have prejudiced the appellant's case even if the jury actually read Dr Hunt's statements. 

[31]  The appellant did not object to the tender of the hospital records into evidence.  Nor did he object to these materials being with the jury while they considered their verdict.  Notwithstanding the absence of objection by the appellant, he was entitled to a fair trial, so that if there was any prospect that these materials might have prejudiced the appellant's prospects of an acquittal in any way, the circumstance that the appellant did not object to these matters would not preclude this Court from intervening to prevent a miscarriage of justice.  But there is no reason to suppose that the appellant was in any way prejudiced by the presence of Dr Hunt's statements in the hospital records.  This contention must be rejected. 

A circumstantial case?

[32]  The third contention advanced by Mr Smith was that the learned trial judge's direction in relation to the drawing of inferences from circumstantial evidence was deficient, in that the jury were not told that if there was an inference reasonably open on the evidence consistent with innocence then that is the inference that the jury were obliged to draw.[3]

[33]  The learned trial judge directed the jury relevantly as follows:

"Before you may bring in a verdict of guilty based on circumstantial evidence it is necessary not only that guilt should be a reasonable inference but that it should be the only rational inference the whole of the evidence would enable you to draw." (emphasis added)

[34]  His Honour went on to say:

"This, as I explained, simply follows from the requirement that guilt must be established beyond reasonable doubt. Therefore, in looking at the facts of this case as you consider them to be if there is any reasonable explanation of those facts consistent with innocence it would be your duty to return a verdict of not guilty.

For the purpose of considering whether there is a reasonable explanation consistent with innocence you should look at all of the evidence. You are therefore in this case required to make assessments of the evidence given by the various witnesses. After you have made those assessments you should consider whether you are satisfied the case has been proved against the accused man to the standard of beyond reasonable doubt." (emphasis added)

[35]  There can be no doubt that these directions were sufficient to ensure that the jury understood that they were not to find the appellant guilty on the basis of circumstantial evidence unless they were satisfied that inferences from that evidence adverse to the appellant were the only rational inferences to be drawn, and unless they were satisfied by the Crown on the whole of the evidence of his guilt beyond reasonable doubt. 

[36]  The Crown case was not, strictly speaking, a circumstantial one.  It included a number of circumstantial components, but none of these was a fact indispensable to the proof of the appellant's guilt.  The jury would have been entitled to convict the appellant on the evidence of Mr Harrington.  It was, therefore, not necessary that the jury be directed that any or all of the circumstantial components of the Crown case needed to be proved beyond reasonable doubt.[4]  Accordingly, I consider that there is no substance in the third contention advanced by Mr Smith on the appellant's behalf.

A Domican direction

[37]  Mr Smith's fourth complaint is that the directions given by the learned trial judge were deficient in relation to the issue of Mr Harrington's identification of the appellant.  The complaint is that the learned trial judge was obliged to warn the jury that it would be dangerous to convict the appellant because of weaknesses in Mr Harrington's identification of the appellant.  Mr Smith contended that nothing less was required by the principles stated by the High Court in Domican v The Queen.[5]

[38]  The learned trial judge directed the jury relevantly as follows:

"In identification cases it is important to know whether the identifying witness is familiar with the appearance of the person identified. Recognition of a person known to the identifying witness may be more reliable than the attempted identification of a stranger or at least of a person the identifying witness has seldom seen before. You should bear in mind, however, that even in a case of close friends or relatives that sometimes mistakes of identification can be made.

The case we have is a case not of identification of a person previously unknown to the identifying witness but of recognition by the witness of someone he already knew. Harrington knew the accused man and he had been involved in, on his evidence, two confrontations with him on the 22nd of October 2004 and the 1st of April 2005.

He said that he recognised the accused in his bedroom when he looked up at his attacker and later when he turned and looked at his attacker standing in the doorway inside the house. He again saw [sic] the man standing there looking at him was the accused.

In those circumstances, the relevant act of identification is the act or acts of recognition by Harrington of the accused as his attacker in the house. The subsequent selection by Harrington of the accused man's photograph from the photoboard shown to him by the police on 12 April 2005 adds nothing to his evidence of identification because he was at that time in reality only selecting a photograph of someone he knew from the group of photographs shown to him. The act of identification you should scrutinise is the act or acts of recognition in the house, initially in the bedroom and then in the kitchen.

The sorts of questions you should keep in mind when attempting to gauge the strength of the identification evidence in this case are these: what was the extent of the identifying witness' familiarity with the accused man's appearance? On this point you have Harrington's evidence of seeing the accused man over a period of time at dances. He said he first saw the accused at dancing lessons at Kelvin Grove in 2003 or 2004 and his evidence of the two conversations between them, the one on the 22nd of October '04 at a dance he attended with Dawn and Shirley Warbuton.

On that occasion you recall he said he was conscious of the accused in the hall. He thought the accused was looking at him, watching him. He said at one point when he was – he himself was sitting at a chair, the accused moved the chair the accused was sitting on beside Harrington's. He took Harrington by the wrist and spoke to him, threatening him, warning him to keep away from Imelda.

The second meeting he said occurred when he went to a dance at the Cornwall Street hall on 1st April 2005. This was after Imelda had terminated her relationship with the accused and, as we've heard, locked him out of the house. Harrington said the accused drew up in his gold coloured Audi and again threatened him, warning him not to dance with Imelda.

Another important question to consider is this: what opportunity did Harrington have to observe his assailant in the house? What was the lighting like? Harrington said the man's face was caught in the light which was coming in through the blinds facing Ralph Street. What was the lighting like in the kitchen? How far was he from his assailant at those times? Did he have sufficient time to recognise his assailant? Was his view of the assailant obstructed in any way?

Now, those are the types of questions you should ask and consider when assessing the identification evidence in this case. In considering the identification evidence I ask you to scrutinise that evidence carefully, conscious of the possibility of error in identification cases and mindful of the different aspects of the evidence I have discussed."

[39]  In Domican v The Queen, it was emphasised that a warning as to the dangers of convicting on evidence of identification need not follow any formula, but must be cogent and effective and adapted to the circumstances of the case.  Weaknesses such as the unfamiliarity of the witness with the accused and limited opportunity to observe the alleged offender must be drawn to the jury's attention because these weaknesses, appreciated by judges but perhaps not by juries, are what give rise to the occasion for the intrusion by trial judges in the fact finding function of the jury.  It was also said in Domican v The Queen[6] that "the adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case", and, in particular, the nature of the relationship between the parties. 

[40]  In this case, the learned trial judge did remind the jury of the evidence which might be thought to affect the reliability of Mr Harrington's recognition of the appellant, such as the lighting and the limited opportunity he had to see his assailant.  However, on the evidence of Mr Harrington, he knew the appellant by appearance, having seen him on several previous occasions on which he had good reason to give the appellant his undivided attention.  The unpleasant nature of the appellant's confrontations with Mr Harrington was such as to make it unlikely that Mr Harrington did not pay close regard to the appearance of the appellant.  His evidence as to his opportunity to observe his attacker was uncontradicted, and unshaken in cross-examination.  In this state of the evidence, it would have been an unnecessary and, indeed, officious interference by the judge in the role of the jury as the constitutional tribunal of fact to have warned that it would be "dangerous" to convict the appellant on the basis of Mr Harrington's evidence.  In truth, the directions given by his Honour were appropriate to ensure that the appellant received a fair trial in the circumstances of this case.  If any such warning were to be given, balance (not to mention fairness to Mr Harrington) would have obliged the judge to note that the circumstances of the assault on Mr Harrington were such that the jury might consider that the usual reasons to doubt the accuracy of evidence of identification had little scope for operation in this case if the jury accepted that Mr Harrington was an honest witness.

[41]  In summary, I do not consider that there is substance in any of the arguments advanced against the conviction.

Sentence

[42]  The appellant was 64 years of age when he was sentenced.  He was 62 years old at the time he committed the offences in question.  He has a minor criminal history which is largely of no relevance to this case, although he does have a previous conviction for assault in 1987. 

[43]  Of more relevance to this case is the circumstance that on 5 March 2005 the appellant breached a domestic violence order taken out against him by Ms Khoo.  The learned trial judge was entitled to view the appellant's evident tendency to engage in aggressive behaviour, where he feels that he has been slighted, as a matter of real concern.

[44]  The injuries suffered by Mr Harrington were very serious.  They have a continuing adverse effect on the quality of his life.  He has ongoing difficulties with mobility.  The seriousness of the injuries suffered by Mr Harrington was, of itself, such as to call for a heavy sentence reflecting the need for general deterrence of this kind of personal violence.  There were, however, other factors which called for condign punishment in this case.

[45]  The offences in question involved the premeditation of an armed attack upon a defenceless elderly man in his own home.  It was a particularly vicious attack for which the appellant has no remorse.  These are matters of particular concern. 

[46]  These matters, together with the appellant's evident intemperate tendency to engage in aggressive anti-social behaviour, suggest that there is a significant need to protect the community from violence at the appellant's hands.  This consideration and the need for a deterrent sentence provided ample justification for the heavy sentence which was imposed on the appellant.

[47]  At the hearing in relation to sentence, Counsel who then appeared for the appellant suggested that the appropriate range was between five and six years imprisonment. 

[48]  This submission was reiterated in this Court by Mr Smith on behalf of the appellant.  The learned sentencing judge was of the view that the range of appropriate sentences in this case was between five and eight years imprisonment.  The decision of this Court in R v Thompson[7] confirms that the learned sentencing judge did not mistake the range of sentences which was reasonably open to him.  The sentence which he imposed was within the appropriate range, and was distinctly moderate, bearing in mind the circumstances to which I have referred and the circumstance that his Honour did not declare the offence of doing grievous bodily harm to be a serious violent offence.

[49]  In conclusion then, in my respectful opinion, the sentence imposed on the appellant was not excessive, much less manifestly so.

Orders

[50]  I would dismiss the appeal.

[51]  I would refuse the application for leave to appeal against sentence.

[52]  FRASER JA:  I agree with the orders proposed by Keane JA and with his Honour's reasons for those orders.

[53]  JONES J:  I agree with the reasons of Keane JA and the orders that the appeal be dismissed and the application refused.