SUPREME COURT OF QUEENSLAND

[1] CHIEF JUSTICE:  I have had the advantage of reading the reasons for judgment of Muir JA.  I agree that the appeal should be dismissed, for those reasons.

[2] MUIR JA:  After a trial in the District Court, the appellant was convicted of unlawfully assaulting his sister, the complainant, and doing her bodily harm.  He was acquitted of the other count on the indictment, which was unlawfully assaulting the complainant's husband and doing him bodily harm.  The jury also returned a verdict of "not guilty" to the alternative count of common assault in respect of the complainant's husband.  The appellant appeals against his conviction on the grounds that:

1.The primary judge erred in failing to give a "Markuleski[1] or Robinson[2] type direction with respect to the complainant … in light of her evidence with respect to count 2 [the count concerning her husband] and in particular her husband's loss of teeth.";

2.The conviction is not supported by the evidence;

3.The element of bodily harm is not supported by the evidence and, in particular, by the medical evidence.

[3] Before turning to a consideration of the grounds of appeal, it is useful to give a brief account of the evidence before the jury.  The complainant gave evidence to the following effect.  She was born on 12 May 1958 and is in receipt of a disability pension.  On 13 May 2007, the appellant and the complainant exchanged angry words over the telephone.  After the exchange, the complainant took anti-depressant tablets with a view to committing suicide.  She informed her husband, who called an ambulance.  While waiting for the ambulance, the complainant saw a utility stop some distance up the street.  The appellant alighted and the vehicle drove off.  The complainant met the appellant in the street and told him that he wasn't welcome.  As the appellant was standing very close to the complainant she placed her hand on his chest, as she put it, to "give [her] space".  The appellant turned around and called out "Assault assault assault" before punching her in the right side of her chest and knocking her to the ground.  He then started kicking her legs.  She could not remember how many times she was kicked, but said that "He got mainly in my shins and everything like that, and around the knee."  She sensed that the appellant was wearing steel-capped boots because, when being kicked, she could "feel the solid thing in the toes."

[4] The complainant's husband arrived and requested that the appellant leave the complainant alone, whereupon the appellant punched him in the mouth, knocking him unconscious to the ground.  The complainant's husband didn't move and was kicked in the side of the head by the appellant.  The complainant struggled to her feet and grabbed the appellant from behind.  He grabbed her by the hair, pulled her hair, threw her back down onto the ground and proceeded to kick her again.  A neighbour, Mr Lawson, ran to the scene and told the appellant to leave the complainant alone "saying he does not like seeing men bashing women".  Mr Lawson left and came back bearing a lump of wood.  At this stage, another nearby resident, Mr Nice, ran to the scene of the fray, and attempted to escort the appellant up the road.  The appellant attempted to run back to the complainant and her husband, repeating the words "I want to kill em".

[5] When the complainant's husband regained consciousness the complainant observed that he had a gap in his mouth as a result of two or three of his teeth having been knocked out.  Two ambulances arrived and the complainant and her husband were transported separately to the Caboolture Hospital.  The complainant was admitted to hospital, where she remained for a week.  The complainant described her injuries as follows:

"I had bruising on my right side chest, on my breast side, like just there, on my chest.  I had a few bruises on my knee, on my left knee.  There was skin all ripped up on my shins, on both of my legs, and there was very bad, like, cut – gauges, sort of, in the tops of both of my feet on the top of my feet, like, really - like, chunks, sort of, taken out, sort of thing.  Like, it was a pretty bad cut, like, cuts on the top of my feet."

[6] Dr Bradbear, a medical practitioner, gave evidence, to which no objection was taken, of the complainant's injuries by reference to the medical records.  He read from the records, interpreted them and expressed opinions based on them.  The doctor said in evidence-in-chief:

"She was tender over her chest on the right side.  On examination there there was no visible sign of injury.  X-rays were done and there was no sign of a rib fracture, but she had quite marked tenderness there.  Then on her legs she had grazing contusions on the right lower leg and quite a deep area of skin damage at the base of the right great toe.  On her left leg she had some grazing on her thigh, a skin tear on the lower leg and some bruising and contusions on the left foot, and those were all the injuries that were noted on admission."

[7] There was no visible bruising to the right side of the chest on 13 May but a drawing by "the senior house officer" on 14 May depicted bruising on the right side of the chest.  Dr Bradbear said that the complainant's left knee was identified by her as being very "tender and unable to bear her weight".  The reason she remained in hospital for about a week, in his opinion, "was largely because of pain in the knee and difficulty in weight bearing."  He gave the opinion that the injuries recorded in the hospital records were consistent with the complainant having been kicked in the leg and punched once in the chest.

[8] Dr Bradbear also gave evidence that the complainant's husband was assessed by a triage nurse at the hospital on 13 May but had left by the time the doctor went to see him.  The nurse recorded that the complainant's husband presented with a sore knee, multiple abrasions and right jaw pain.  Notes made by the director of the hospital's emergency department recorded "no intra oral or other facial injury."  Ambulance notes recorded that he had "some dizziness, blurred vision and pain on the right side of his head."

[9] Mr Lawson's evidence was to the following effect.  He heard a person, whom he was subsequently informed was the complainant's brother, abusing her with vulgar language, "… she was just getting out of the way, like, of the argument and then that's when he grabbed her hair, pulled her hair, and had a big clump of hair, [the complainant's] hair, in his hand and [the complainant] went down on the ground and that's when he kicked her, put the boot in."  He said the appellant was kicking the complainant "In the rib area … [the] stomach area."  The complainant "lost a bit of skin off her shin and her knee and … she was bleeding a little bit there."  The complainant's husband was down on the ground.

[10] Mr Lawson intervened to stop the fight and another local resident arrived and provided assistance.  He did not see the complainant push the appellant in the chest or apply any force to him.  He did not see the complainant's husband get knocked to the ground.  In his cross-examination he gave evidence that the appellant kicked the complainant "in the ribs, in the stomach or the ribs."  Asked if the appellant kept kicking the complainant, he responded, "Only the once that I saw."  Mr Lawson's evidence concerning his observations of the complainant's husband were confused.  At times, he reported having seen the complainant's husband go to the complainant's aid and try to help her.  On other occasions, his evidence was that his first observation of the complainant's husband was when he was lying unconscious on the ground.

[11] Mr Nice saw the appellant, whom he described as of "fairly solid build" wearing work boots, kicking the complainant as she lay on the ground.  As he approached the scene of the incident, he saw another local resident place himself between the complainant and her attacker.  It seemed to him that the resident might have been punched or shoved in the chest.  Mr Nice attempted to shepherd the appellant away.  The appellant stepped around him a couple of times, screaming out abuse and saying that he was going to kill them.  The appellant swung a punch at Mr Nice who "put him on the ground." 

[12] In cross-examination, Mr Nice said that the complainant was being kicked on the upper leg and the stomach or hip area.  He observed about three kicks.  He did not recall seeing the complainant's husband.  Mr Nice accepted that the appellant was five foot nine in height and that he told police officers after the incident that the appellant was about six foot two and weighed 120 kilograms.  He thought that the appellant appeared to have lost a lot of weight since the time of the incident.

Ground 1 – the failure to give Markuleski and Robinson directions

[13] One of the directions which the appellant asserts should be given, it may be inferred, is one to the effect that any doubts which the jury "… may form with respect to one aspect of [the] complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts…"[3]

[14] In Markuleski it was considered by Spigelman CJ that the failure to give such a direction gave rise to unfairness, as there was nothing in the complainant's evidence or the surrounding circumstances which gave any ground for supposing that the complainant's evidence was more reliable in relation to the counts on which the accused was convicted than it was in relation to the counts on which the accused was acquitted.[4]  In R v Ford,[5] Keane JA described the circumstances in which the giving of such a direction might be appropriate in these terms:[6]

"In summary, the risk of unfairness which creates the occasion for the giving of the direction is the risk that the accused will be denied the chance of acquittal on all counts if, given the state of the evidence, such a result ought reasonably to follow if the jury were to reject as unreliable any part of the complainant's account of what occurred.

It is the risk of this particular kind of unfairness to the accused which requires a trial judge to refer 'to the effect upon the assessment of the credibility of the complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count.'[7]  The purpose of such a reference is to ensure fairness to the accused 'in a word against word case'[8] by supplementing the traditional direction that the jury should consider the evidence, as well as the question of guilt, separately in relation to each count."

His Honour noted, by reference to the reasons of this Court in R v LR[9] that there was no "binding rule of law or procedure" that such a direction be given.[10] 

[15] This was not a case in which the rejection of the evidence in respect of one count logically required a finding of "not guilty" on the other count.  Count 2 concerned an attack on the complainant's husband and the injuries sustained by him in consequence of that attack.  Count 1 concerned the attack on the complainant.  Having regard to the way in which events unfolded, the relative brevity of the incident and its physical and emotional impact on the complainant, who was suffering the effects of an overdose of drugs, it would be hardly surprising if her evidence of her interaction with the appellant was regarded by the jury as more reliable than her evidence relating to the assaulting of her husband.

[16] The evidence of Mr Lawson and Mr Nice substantially supported the complainant's account of the attack on her.  The appellant gave no evidence.  The medical evidence, although sparse, also corroborated the complainant's evidence that she had been attacked, punched and kicked but it did not support the evidence of the complainant and her husband that he had lost teeth in the attack.  Another matter of significance is that neither Mr Lawson nor Mr Nice gave evidence of having seen the appellant striking the complainant's husband.

[17] In relation to count 2, there was independent evidence contradicting an aspect of the complainant's evidence of the assault on her husband, namely that he had been kicked in the mouth while lying on the road.  The evidence includes Dr Bradbear's evidence concerning the injuries a person would be likely to sustain if kicked in the head or face by a person wearing steel-capped boots and the record made by the triage nurse who examined the complainant's husband.

[18] The complaint concerning the lack of a Robinson direction appears to be that a specific warning about the unreliability of the evidence of the complainant was necessary "to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case."[11]

[19] The primary judge instructed the jury, conventionally, that in order to convict, they must be satisfied beyond reasonable doubt of every element "that goes to make up the offence charged".  They were directed that they could accept all or none of any witness's evidence.  His Honour referred to inconsistencies and contradictions in the evidence, saying:

"You have been told about a number of contradictions and inconsistencies that have arisen during the course of the evidence, and also contradictions and inconsistencies compared to what you might think is your commonsense and your everyday experiences of life.  These differences are relevant to your evaluating the evidence that is before you.  You would ask yourself with respect to these differences whether they are differences in peripheral detail only, or whether the differences are such as to undermine confidence in the accuracy of the witness's overall recollection and truthfulness on important matters in this trial."

[20] Later in his summing-up, the primary judge returned to a consideration of difficulties with the evidence and informed the jury:

"Now, members of the jury, I previously mentioned inconsistencies and contradictions in the evidence and against things that you might think are matters of commonsense and of everyday experience that you possess.  Some of the relevant ones are here that the force the witnesses allege was used may arguably not be consistent with the extent of injury.  That is, this might be a case where it being alleged the defendant was wearing steel capped boots and was vigorously kicking on more than one occasion that more severe injury might have been expected."

[21] His Honour then proceeded to discuss at some length aspects of the evidence of the complainant, her husband, Mr Lawson and Mr Nice which may be thought to be inaccurate, inconsistent or improbable.  The features of the case which led the Court in Robinson to conclude that the trial judge should have given an appropriate warning to the jury are summarised in the reasons of Keane JA in R v Tichowitsch.[12]  The facts of this case are quite different but, more relevantly, the circumstances of this case do not warrant the conclusion that in the absence of a specific warning of the type urged by the appellant, there was a "perceptible risk of miscarriage of justice".

[22] The question of what, if any, of the evidence of the complainant and the other witnesses should be accepted, was very much one within the province of the jury as the constitutional finders of fact.  The primary judge appropriately drew the jury's attention to inconsistencies in and difficulties with the evidence.  In my respectful opinion, it would have been inappropriate for him to have gone further.  That was particularly so, as the substance of the complainant's evidence concerning the attack on herself was corroborated by the evidence of two independent witnesses, Messrs Lawson and Nice.  Nor was this a case in which the evidentiary problems to which I adverted earlier ought have been apparent to the judge but not the jury.[13]

Ground 2 – the conviction on count 1 is not supported by the evidence

[23] There is no substance in this ground.  The complainant's own evidence supported the verdict, as did the evidence of Mr Lawson and Mr Nice.  All three witnesses were unanimous in their observations that the complainant was knocked to the ground and kicked by the appellant whilst on the ground.  As mentioned earlier, the medical evidence also provides a further degree of corroboration of the complainant's evidence about the blows inflicted on her.  The evidence of the complainant's husband also supported her account.

[24] The inconsistencies in the evidence of these witnesses and the likelihood that the severity of the attack on the complainant and her husband had been overstated, is not something which ought to have caused the jury to reject the core of their evidence.  In addresses at the trial, counsel for the appellant made much of the unsustainability of the evidence of the complainant that the appellant kicked her with steel-capped boots.  But the complainant's assessment in that regard was based on what she felt when in a state of emotional distress and, no doubt, fear after having been knocked to the ground.  That she may have had an exaggerated perception of the force and number of the blows struck and of the instrument delivering the blow or blows was hardly surprising.  That would not have been lost on the jury.  Neither Mr Lawson nor Mr Nice gave evidence of the appellant's footwear.

Ground 3 – the element of bodily harm is not supported by the evidence, in particular, the medical evidence

[25] "Bodily harm" is defined in section 1 of the Criminal Code 1899 (Qld) as "any bodily injury which interferes with health or comfort."  The complainant, as a result of injuries sustained in the appellant's attack, was hospitalised for about a week.  During that time she had difficulties in walking as a result of injuries to her knee and her evidence, supported by medical records, was that she suffered pain.  The knee injury alone would have been sufficient to entitle the jury to conclude that bodily harm had been suffered.

Conclusion

[26] For the above reasons I would order that the appeal be dismissed.

[27] FRASER JA:  I have had the advantage of reading the reasons for judgment prepared by Muir JA.  I agree with those reasons and with the order proposed by his Honour.