SUPREME COURT OF QUEENSLAND

1. McMURDO P: The appeal against conviction should be dismissed for the reasons given by White J.

2. WHITE J: The appellant was convicted after a trial in the District Court at Townsville on 16 October 2008 of one count of assault occasioning bodily harm.  The jury returned a verdict of “not guilty” in respect of a count of common assault.  The appellant was sentenced to imprisonment for 18 months wholly suspended with an operational period of two years.  He appeals against his conviction and seeks leave to appeal against the sentence imposed.  At the commencement of the appeal leave was granted to add a further ground of appeal.  The application for leave to appeal against sentence was not pursued and was dismissed.

The Grounds of Appeal

3. The appellant’s grounds of appeal are:

• The verdict was unreasonable in the circumstances and against the weight of evidence.

• There was a miscarriage of justice occasioned by the jury, during deliberations, referring to the “Guide to Jury Deliberations” booklet, the contents of which contradicted directions given to them by the learned trial judge.

• The learned trial judge misdirected the jury with respect to self defence by directing them in the following terms:

“[I]f you don’t accept the complainant or if you have a doubt about that version, and the accused’s version has not been proved by the Crown beyond reasonable doubt not to be the one not to have happened, then the accused is entitled to the benefit of the doubt in relation to self defence.”

Ground One

4. The appellant contends that the complainant’s evidence, both internally and compared with other evidence, contained so many inadequacies and inconsistencies that there is a significant possibility that an innocent person has been convicted.^[1]  Consistently with M v The Queen this ground of appeal requires the court to

“…ask itself … whether … upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty … in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.”^[2]

5. The complainant and the appellant each gave evidence of an unprovoked attack, to which there were no witnesses, with each blaming the other as the instigator. This occurred in the house and on the balcony of the complainant’s house on the complainant’s version, or downstairs in the yard on the applicant’s version.

6. On Saturday evening, 14 January 2006, the complainant hosted a barbeque at his home in suburban Townsville. He collected the appellant and his wife at about 5.00 pm and arrived back home about 5.30 pm.  The first guests to arrive thereafter were his brother and his wife and their young son, at about 6.00 pm.  The three other guests were a female work colleague and two of her friends visiting from overseas. 

7. The complainant’s home was a double storey older-style timber house with external stairs at the front up to the entrance and external stairs off a newly constructed balcony at the back, running down to the backyard containing a gazebo with barbeque facilities. Inside the house the lounge room connected to the kitchen which opened through a sliding door on to the balcony which had been added by the complainant.

8. The complainant was a close friend of the appellant’s wife, having known her for a decade or more. He had come to know the appellant since about August 2004 and had met him on about 10 occasions. The appellant was born in the United States of America (a matter of some relevance at the trial since his distinctive voice was identified by a next door neighbour) and came to Australia in 2002. In his evidence he tended to convey a closer relationship with the complainant than the complainant described.

9. Both men consumed alcoholic beverages during the course of the evening. Each placed his own state of sobriety at ‘four out of ten’ and the complainant assessed the appellant’s sobriety at ‘eight out of ten’. What seems undisputed was that they were both affected by the consumption of alcoholic liquor.^[3]  The meal was eaten around a table in the gazebo.  The work colleague and her visitors left at about 11.00 pm followed soon after by the complainant’s brother, his wife and son.  The brother gave evidence that nothing untoward occurred while he and his family were there.  The complainant said that as the evening progressed the appellant was getting agitated and loud (the brother noted this while he was at the party, as did the next door neighbour who added that the appellant’s tone was “nasty”). 

10. The complainant said that at one point the appellant got angry in the gazebo, picked up one of the green chairs and threw it down forcefully, breaking the chair. It is likely that if this event occurred, which the appellant denied, it was after everyone else had left because the brother did not recall anything of that kind. In the clean up the next day no broken chair was seen by the brother or photographed by police.

11. The complainant said that he decided that the men should have cigars to calm things down a bit. He went to the kitchen to get the cigars. The appellant’s wife was there: he said she was crying. The appellant came up into the house to go to the toilet. According to the complainant he then walked out on to the balcony from the kitchen area slamming the sliding door so forcefully that the door was damaged. The appellant picked up the complainant’s 13 to 14 week old puppy and jiggled it on top of his head. The complainant said in a very commanding voice, quite loudly, “Put the dog down” a couple of times.^[4]  The neighbour reported hearing the complainant say “Put down the gun” twice.  It is possible that she misheard this statement.  There was no question of any gun being involved.

12. The complainant said that he and the appellant smoked the cigars in the gazebo quietly whilst the appellant’s wife was sitting in a chair nearby. When the cigars were finished the complainant called a taxi and the appellant and his wife left.

13. The taxi departed at 1.24 am. The taxi driver gave evidence that the appellant got into the backseat behind his wife who sat in the front passenger seat. He observed that the appellant appeared to be “inebriated, not drunk”.^[5]  The appellant appeared to be aggressive and after they set off the appellant was “abusive” and “insulting” to him directly.  The driver pulled over to the side of the road and told the appellant to get out.  This was a couple of hundred metres from the pick up address.  The appellant demanded to be taken back to the address which the taxi driver did.  The driver saw the appellant get out and go inside the property.

14. After the appellant and his wife left, the complainant started cleaning and packing up and locking up downstairs. His front door bell sounded. He opened the door and saw the appellant behind the security screen which was locked. The complainant asked the appellant where his wife was and he replied that she had gone. He asked to be let in and the complainant responded “no”. He then told the appellant that he was going to call the police. The complainant said the appellant then changed his tone and politely asked to be let in ‘as a buddy’. The complainant let him in by opening the security door. After the appellant came into the house the complainant closed both doors. According to the complainant, “next thing you know he’s laying into my face with multiple blows”,^[6] “like a semi-pro boxer or something”.^[7]  He told the appellant to calm down and stop punching him.  The complainant was unsure whether he held the appellant around the arms or around the waist attempting to hold him away.  As the appellant was punching him, his puppy came up and the appellant “gave the dog a couple of boots into the chest and into the head”.^[8] 

15. The appellant eventually stopped and stepped back. The complainant could feel the blood coming down his face. The complainant said the appellant looked at him and said “Oh, Stef, what have I done?” And then the appellant was trying to strangle him. This alleged conduct constituted the common assault charge. The complainant gave the following evidence:

“He’s got his hands around me.  He’s trying to strangle me and I’m going – I’m – I’m sort of like fighting – fighting for survival here.  I’m going what the hell’s going on?  This is what I’m thinking.  I’m thinking what the hell’s going on here, this guy’s strangling me.  I’m urinating in my pants, everything, trying to reach the – my – my security button, ‘cause it happened near there, and we struggled for a while and the struggle then went through the house and in – out through – into the – the balcony, the top balcony, but my doors were still open.  The sliding door was still open for the night and went across the balcony … Knocked over some – a couple of pieces of furniture on the way out into the backyard and I remember – ‘cause I built the balcony myself, took a long time, lot of money, and I remember we fell against the middle post that leads – and after that it’s like a 10 foot drop, and I remember I hit it.  I didn’t get injured by it.  I remember he – fallen against it and I distinctly remember – I thought thank God I built that strong enough and I still remember thinking that now, and then we pretty much struggled on the – on the – after we hit the – hit the – the balustrading on the balcony we fell down onto the floor, onto the floorboards, onto the decking of the balcony and I must have struggled there for a while.”^[9]

The complainant said that eventually he overpowered the appellant but he struggled free, ran down the stairs and escaped along the side of the house through the driveway gate.  He heard the appellant force the gate open as he went out.

16. As soon as the appellant left the complainant pressed the duress button on his security system.^[10]  He spoke to the security service control officer and he rang his brother who very quickly returned with his wife and son.  The complainant was in a very hysterical state by the time his brother and the ambulance arrived.  The complainant resisted being cleaned up by the ambulance officers before he had a photograph taken of his injuries. 

17. The brother described the complainant’s face as severely swollen and that he was quite distressed. The complainant told him that he had been “king hit” from behind and that there was a struggle within the house. The brother saw blood throughout the house, predominantly on the floor^[11] and did not see any blood outside the house.

18. The brother took a telephone call from the appellant on the complainant’s telephone while they were still at the house. He said that he had had his finger bitten off by the complainant during the fight. The brother and a constable of police who was by then present looked – unsuccessfully – in the house and downstairs for a part of a finger. The appellant denied that he had said that he had had his finger bitten off.

19. The brother travelled to the hospital in the ambulance with the complainant and after returning at about 6.00 am, he helped clean upstairs and around the pergola. He noticed some furniture was scattered but nothing was broken.

20. The police officer who attended at the house noticed that the complainant appeared to be intoxicated as he was unsteady on his feet and had slurred speech but could not say whether that was due to disorientation and his swollen face or due to inebriation. When the police officer went downstairs she noted a couple of chairs overturned in the gazebo and “a little bit of broken glass inside the gazebo and outside – on the ground outside the gazebo, closer to the path …”^[12]  She agreed in cross-examination that downstairs it looked like there had been a scuffle.

21. When the complainant consulted Dr Peter Carson for his multiple facial injuries, Dr Carson noted “multiple soft tissues, facial and neck, subconjunctival haemorrhage to the right eye”.^[13]  He also noticed a burst injury to the right upper lip and a full thickness laceration to the nasal bridge and the right eyebrow.  A CT scan revealed no underlying fractures.  The complainant told Dr Carson that he had been attacked “front on” at a social occasion and that the assailant had applied his hands to his throat.  Dr Carson did not see any marks on his throat but thought the subconjunctival haemorrhage could have been consistent with the hands around the throat or direct trauma.  Dr Carson said in cross-examination that if breathing were stopped because of partial strangulation for 10 or more seconds bruising would be expected. 

22. The appellant was the only witness in the defence case. He said that he and his wife argued about when they should go home as he did not want to leave and she did. He denied abusing the taxi driver and explained that the driver was impatient with the domestic squabble. The appellant said that he got out of the taxi and the taxi drove off. According to the appellant he walked in the front gate and around through the side gate into the backyard where the complainant was still sitting drinking and smoking in the gazebo so he thought he would join him.

23. According to the appellant the complainant then started insulting him and speaking negatively about his relationship with his wife. Eventually they were yelling and swearing at each other and as the appellant turned to leave the complainant hit him in the face twice. The appellant staggered back and then ran at him, tackled the complainant and they both went down out of the gazebo on to the ground, rolling in the grass. He said there was scuffling and chairs would have been going everywhere. The appellant pushed his left hand forcefully down as hard as he could into the complainant’s face. The complainant opened his mouth and clamped down on three of the appellant’s fingers. The appellant managed to pull two out but could not release the third. The appellant said he was hitting the complainant “with everything [he] had”.^[14]  Eventually the complainant released his finger and the appellant ran out by the side gate. 

24. The appellant’s explanation for the severe facial injuries sustained by the complainant was his attempt to get the complainant to release his fingers. He explained blood on the back balcony of the house by supposing that the complainant had gone up on to the balcony afterwards and into his house. Although he had a photograph taken of his damaged finger, there was no photographic evidence of any facial injury after the alleged two facial punches by the complainant.

25. The appellant denied slamming the kitchen door on to the balcony or handling the puppy inappropriately. Although he conceded that he had had several drinks, he assessed himself as four out of 10 on a scale of inebriation. He denied that he had behaved inappropriately at any time.

26. The appellant points to a number of features in the evidence to support the unsoundness of the jury verdict. He submitted that the prosecution version of events provided no explanation for the unprovoked attack by him on the appellant whereas the appellant’s provided a cogent explanation. However, there was some evidence of “ill-feeling” between the men about the appellant’s wife in the context of their inebriation. The taxi driver and the neighbour’s evidence supported a conclusion that the appellant was drunk and aggressive by the end of the evening. There was some support also in the brother’s evidence.

27. The appellant submitted that the denial by the complainant that there was a fight anywhere near the gazebo was contradicted by the disarrangement of the furniture and some broken glass. But that evidence is consistent with both versions as it is consistent with some untidiness after a party.

28. The complainant said that an antique dining chair had the back broken during the fight. There was no photograph of the broken chair in evidence. Police attended and took photographs of the interior of the house. The dining room shows only five antique chairs around the table when the complainant said that it had a setting of six. This was consistent with the broken chair being taken to a different place.

29. The appellant contended that the absence of any damage inside the house was consistent with his version of the incident occurring in the backyard. There was evidence that the brother and the complainant had tidied the house early on Sunday morning.

30. The appellant contended that the complainant said nothing in evidence in chief about biting the appellant’s finger; that he said he had no recollection of doing so in cross examination; yet agreed that he had subsequently sought a blood test, telling the general practitioner that he had bitten someone on the finger.  That evidence was consistent with being told, as he was, that he had tried to bite the appellant’s finger off and accepting that information.

31. The appellant referred to the complainant’s evidence that the appellant had tried to strangle him and that he could feel his breath going and the want of supporting evidence of neck bruising. The complainant, whilst graphically describing the alleged strangulation, did not say that he had stopped breathing for 10 seconds or more which Dr Carson seemed to suggest would result in observable bruising.  The jury had an opportunity to assess the complainant and may very well have concluded that he was prone to over-dramatisation, as a perusal of the transcript would support.

32. The statement by the complainant to his brother that he was “king hit” by the appellant was inconsistent with what he told others later. When challenged he said he could not remember what he said that night to others after the assault.

33. This was very much a trial where the jury’s appreciation of the credibility of the two men, both intoxicated, was important. There was some support for the complainant’s version of events from the neighbour and the taxi driver who described the appellant as intoxicated and behaving aggressively close in time to the assault. Quantities of blood were found in places consistent with the complainant’s account and none which would have supported the appellant’s account, namely, in or around the gazebo or on the stairs going back up to the house. Any irrationality in the attack has to be seen in the context of intoxication where imagined slights lead to unpredictable conduct. These were matters which the jury, with their collective experiences would no doubt have appreciated.

34. It was clearly open to the jury to be satisfied beyond reasonable doubt that the accused had initiated the attack on the complainant and was therefore guilty of assault occasioning bodily harm. There was nothing surprising about the acquittal on count 2 as they could well have had a doubt about the accuracy of the complainant’s recollection of a discrete act of attempted strangulation after he had sustained such a violent assault to his head and face.

Ground Two

35. In the course of its deliberations the jury sought assistance about a number of issues.^[15]  The fourth question was as follows:

“Page 5 of Jury Deliberations

→Define each charge and list each element

→What are the elements of each charge?”

The booklet to which the question referred was the “Guide to Jury Deliberations” which had been placed in the jury room.  The publication had inscribed on it:

“This publication has been approved by the Supreme Court of Queensland and the District Court of Queensland as a general guide to jury deliberations.”

It is just that, a guide.  The introduction encourages the jury to take time to read the booklet for suggestions about how to organise their deliberations, how to consider the evidence and how to reach a verdict.  It then says:

“Subject to following the judge’s directions about the law, you are free to deliberate in any way you wish.  These are suggestions to help you proceed with the deliberations in a smooth and timely way.”

There are some tips about getting started, the role of the jury speaker, getting organised and on page 5 under the heading “Discussing the evidence and the law” the following appears:

“What do we do now?

First, review the judge’s directions on the law because the directions tell you what to do.

Is there a set way to examine and weigh the evidence and to apply the law?

The judge’s directions will tell you if there are special rules or a set process you should follow.  Always keep in mind the judge’s directions about who bears the burden of proving various things in the case.  Otherwise, you are free to conduct your deliberations in whatever way is helpful.  Here are several suggestions:

• Consider the judge’s directions that define each charge (or civil claim, in a civil trial) and list each separate element that makes up that charge (or civil claim).
• For each of these elements, review the evidence, both the oral testimony and the exhibits, to see if it has been proven to the required standard.
• Consider the judge’s directions about the defences to each charge (or civil claim, in a civil trial).
• For each of the defences, review the evidence, both the oral testimony and the exhibits, to see if it has been excluded to the required standard (in a criminal trial) or proven to the required standard (in a civil trial).
• Discuss each charge (or civil claim), and each defence, one at a time.
• Follow the judge’s directions about the sequence in which you should consider alternative charges in a criminal trial.
• Vote on each charge (or civil claim).”

36. Because of the approach of counsel his Honour summed up on the issue of self defence and the approach to the evidence in a simplified fashion. He initially told the jury that while the verdicts need not be the same on each count he suggested that the position was “black and white”, and, in effect, they either accepted the complainant’s version or not. His Honour told the jury that, theoretically, they could give a different verdict on each count but that there would not appear to be any room for doing so in the present case. Later, in responding to the jury question, he referred to that part of his earlier direction. He said that upon reflection, and after discussing it with counsel, there could be different verdicts if the jury accepted the complainant’s version of events. He told them that in light of Dr Carson’s evidence they could conclude that the complainant was mistaken in the heat of battle or they could conclude that he was being untruthful. He then told them that the prosecution case depended upon them accepting the evidence of the complainant and accepting that it was true and accurate beyond reasonable doubt despite the evidence given by the appellant. He developed that further. He told them about the elements of assault occasioning bodily harm and common assault.

37. When he came to consider the jury redirection request set out above he looked at the pamphlet and told the jury that:

“Well, I mean that is the case depending on the circumstances, but it’s not necessary here in this case because if you accept the complainant’s version, count 1 has been established and the elements have been proven.  If you accept his evidence count 2 has been established and the elements have been proven.”^[16]

The speaker responded:

“I think it was – sorry, your Honour, I think it was more a theoretical rather than the details of this particular case … It was more this is a charge of assault and what are the elements of the charge of assault [indistinct] assault causing harm, what are the elements of that … that would prove that charge?”^[17]

His Honour then responded with a direction about the elements of the assault and added: ^[18]

“As to whether an assault is unlawful, well an assault is not unlawful if it is committed in self-defence, and that’s the defence of the accused here on his version.  That’s not open on the complainant’s version.  So at the end of the day it really comes down to which version you find or if you have a doubt about the matter you should give the benefit of the doubt to the accused.”

His Honour developed that a little further. 

38. It is clear that the approach suggested in the guide in no way undermined the trial judge’s directions nor confused the jury. The guide makes clear in several places that it is subject to the directions of the trial judge.

Ground Three

39. The application for leave to appeal against sentence was not pursued and was dismissed at the commencement of this hearing.

Ground Four

40. The impugned part of the direction^[19] which is set out above is conceded by the respondent, in isolation, to be confusing.  It is clear that the triple negative renders that part of the direction virtually unintelligible and it is clearly incorrect.  It may be noted that there was no request for redirection on that aspect of the summing up.  At the outset the learned trial judge told the jury that before they could convict the appellant they had to find the complainant “to be honest, accurate and reliable on the crucial issues in this case”.^[20]  He directed them clearly about the standard of proof and again emphasised that they did not have to believe that the appellant was telling the truth before he was entitled to be found not guilty.^[21]  He explained, consistently with the model direction in the Supreme and District Courts Benchbook, that where there is evidence by an accused person that one of three possible results will follow.  His Honour said:^[22]

“Firstly, you may think that the evidence of the accused is credible and reliable and that it provides a satisfying answer to the prosecution’s case.  You may decide that you prefer his evidence to the complainant’s evidence.  If that is so your verdict would be not guilty.  Secondly, you may think that although the evidence of the accused was not convincing, it nevertheless leaves you in a state of reasonable doubt as to what the true position was.  If that is so your verdict also would be not guilty.  Or thirdly, you may think that the evidence of the accused should not be accepted and should be rejected.  However, if that is your conclusion you should be careful not to jump from that view to an automatic conclusion of guilt.  If you find the accused’s evidence unconvincing you should set it to one side, go back to the rest of the evidence and ask yourself whether, on a consideration of such evidence as you do accept, you are satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offences in question.  And it is to those elements that I will now turn.”

41. After some direction about the elements of the assault occasioning bodily harm his Honour said:^[23]

“On the complainant’s account of events there would be no justification, authorisation or excuse for what happened.  On the accused’s version of events, he was struck first and he was defending himself.  On his version, if you accepted that or the prosecution had not proved that that was not the case then the accused would have an excuse for acting as he did because he would be acting in self-defence.”

42. His Honour emphasised again that the issue was with respect to the credibility of the complainant and that it was not the credibility of the accused which was in issue. He told the jury that they should look to see whether there was any supporting evidence for the version of the complainant and said:^[24]

“…but I just want to give you some directions on this issue of self defence which is raised on the version of events given by the accused.”

And it is then that the impugned paragraph appears.  In the next sentence his Honour said:^[25]

“If the prosecution cannot, to your satisfaction beyond reasonable doubt, exclude the possibility that the complainant’s injuries occurred in self defence as the law defines it, that’s the end of the case and the defendant’s use of force would be lawful and you should find him not guilty.  The criminal law does not only punish, it protects as well.

It does not expect citizens to be unnaturally passive, especially when their safety is threatened by someone else.  Sometimes an attacker may come off second best, but it doesn’t follow that the one who wins the struggle has committed a crime.  The law does not punish someone for reasonably defending himself.  You should appreciate that the law, which I’ll read to you in a moment, is drawn in fairly general terms to cover any situation that may arise.”

43. A little further on his Honour explained the elements of self defence in relation to an unprovoked assault.  By that point any confusion, and it must be assumed there was some resulting from the triple negative, would have been removed.  The judge also repeated that:^[26]

“…the burden remains on the prosecution at all times to prove that the accused was not acting in self defence and the prosecution must do so beyond reasonable doubt before you could find him guilty.”

His Honour further said:^[27]

“There is no burden on the accused to satisfy you that he was acting in self defence.  The prosecution must satisfy you beyond reasonable doubt that he was not.  And the prosecution endeavours to do that in this case by asking you to be satisfied beyond reasonable doubt that the version given by the complainant is the one you should accept.  If you accept that version, there is no room for self defence.  Self defence applies on the defendant’s account, but you have nevertheless to reject self defence beyond reasonable doubt before you can convict the accused.”

44. The jury had asked whether provocation for assault could be verbal. The learned trial judge discussed with counsel, in the absence of the jury, how he should approach the question. He told counsel what he proposed to say to the jury. With counsel’s agreement he said:^[28]

“Both sides here take the view, and I direct you that it’s a sensible way to approach the matter, that if you accept that the complainant threw the first punch, threw the first blow or have a doubt about that, you should give the benefit of the defence of self-defence to the accused and find him not guilty.  So if the complainant struck the first blow or you have a doubt about that you should find the defendant not guilty.  If the accused struck the first blow then there is no room for self-defence.”

As the respondent submitted, that was a direction favourable to the appellant. 

45. Accepting that there was an error in the direction to the jury the court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.^[29]  The flawed part of the direction was likely eradicated by the subsequent correct enunciation of the approach which the jury should take to the analysis of self defence.  Furthermore, the redirection made quite clear to the jury a sensible approach to the question which was favourable to the appellant.  It could not be said that the appellant has lost a real chance of an acquittal through judicial error.^[30]

Order

46. The appeal against conviction is dismissed.

47. WILSON J: I agree with the order proposed by White J, and with her Honour’s reasons for judgment.