R v Cox[2013] QCA 19

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P: I agree with Muir JA’s reasons for dismissing the appeal against conviction and refusing the application for leave to appeal against sentence.

[2] MUIR JA: The appellant was convicted on 9 May 2012 of assault occasioning bodily harm whilst armed and sentenced to 12 months imprisonment with a parole release date fixed at a date four and a half months after the commencement of the sentence.  The appellant appeals against his conviction on the grounds discussed below.  He seeks leave to appeal against sentence on grounds which were not identified in his application for leave to appeal.

[3] The complainant gave evidence to the following effect.  He was a trade’s assistant working for a subcontractor at Blackwater Mine.  The appellant worked in the same crew.  The two men had known each other for about eight weeks and there was no apparent animosity between them.  On 11 November 2010, they were staying at the Meteor Hotel.  At about 7.30 am, after finishing a night shift, the complainant was enjoying a drink in front of the motel with two other work colleagues, Mr Powell and Mr Joyce, when they were joined by the appellant.  He appeared to have already consumed some alcohol and commenced “drinking [beer] at a steady pace”.  His speech was “a little bit slurred”. 

[4] After the other two men had left the group, at about 11.30 am, the appellant mentioned an incident, which had happened a week or so before, concerning a South African reporter from the Emerald Herald, in which the appellant had exchanged words with the reporter and the complainant and others had apologised for the appellant’s conduct.  This part of the discussion was conducted without apparent animosity.  The complainant than said that it was time to go to bed, leant down to pick up his cigarettes, felt a sudden blow to his head and was knocked through the doorway of his room onto the floor.  The safety glasses, which he was wearing at the time, were shattered.  He was also punched on the side of his jaw and face, slapped in the same area and scratched down the front of his neck and chest.  The appellant pinned him down by placing his knees on the complainant’s arms and was laughing and grinning.  The appellant asked, “What’s it like knowing that today is going to be your last day to live?”  When he reached for his “Leatherman”, which contained knives and implements used by miners, the complainant seized the opportunity to get up and walk out the door to the reception.  The complainant screamed to the manager to lock the doors and call the police.  About a minute later, the appellant walked past reception to his room.  He then came out of his room carrying a bag, got in his car and drove off.  The complainant noticed that he had bled from his head wound, or wounds, and that there was blood on the floor of his room, presumably from the wounds.  He took photographs of the injuries which were put in evidence. 

[5] Cross-examined about why his original statement to police did not mention the scratching and swelling injuries and why his injuries were not more obvious if he had been backhanded and punched as alleged, the complainant said, in effect, that he had only given a brief statement having regard to the questions asked of him by the interviewing police officer, his shocked state and his lack of interest in providing, what he perceived to be, “minor details”. 

[6] The complainant said that he was unaware of the scratching and swelling until he was shown photographs after he had been cleaned up.  He said that there were glass shards taken from his skin at the time and that there were “pictures of significant swelling only a week or two” after the incident.  He said also that his face “puffed up like a balloon” the next day.  He described significant swelling around his eyes which limited his vision, constant weeping from the laceration for about a month, scabbing around his nose and headaches.

[7] The medical practitioner who saw the complainant at Emerald Hospital was unavailable to give evidence, but the Deputy Medical Superintendent gave evidence by reference to the hospital’s medical records.  The records noted that the complainant had sustained a complex deep laceration on the forehead and a small area of superficial abrasions on the bridge of the nose.  No other injuries were mentioned.  The laceration was sutured.  The doctor said that it may take 24 to 48 hours for bruising and swelling to become apparent but that punches to the face “should present swelling a lot more rapidly…  [e]ither instantaneously [or] up to the (sic) three or four hours”.  The examination was conducted at 1.05 pm.  On the complainant’s evidence, he was taken to the hospital within half an hour of the attack.

[8] A record of an interview given by the appellant to police on 16 November 2010 was before the jury.  In the course of it, the appellant was asked if he remembered anything of drinking at the Meteor Hotel and hitting the complainant on the front of the forehead with “what [the complainant] believed was a beer bottle”.  The appellant said he did not remember anything and that he had “very vague recollection of… the whole um, drinking session.  Just tiny bits and pieces”.  After the interviewing officer put the complainant’s detailed account of the attack on him to the appellant, the appellant responded, “This is starting to sound pretty much like horse shit”.  After some more detail was provided, the appellant said, “The way this statement is – is being put forward is just starting to sound ludicrous, you know, but I can’t deny anything because I really just don’t remember”. 

[9] Responding to the complainant’s assertion that he had seen the appellant leave the hotel in his white Nissan Navara, driving north on Opal Street, together with some details of the complainant being taken to hospital and treated, the appellant said, “No.  I had a couple of days to um, to basically ah, just chill out and go, well I’ve had another alcoholic blackout”.  He said that he had had “quite a few sort of alcohol blackouts”.  In response to it being said that “obviously [the complainant] says that you jumped in your car and you drove away”, he said, “Well I don’t know if I drove away or not”.  He said that when he woke up he was “on the riverbank… down past the ah, golf club”.  He had been asleep in his swag which “stays in the back of the … car”.  He said that he probably woke up around 9.00 am the following morning and then decided to go for a drive out to Alpha, where he stayed for a couple of days.

[10] I now turn to a consideration of the grounds relied on by the appellant.

Ground 1 – No fingerprints positively matched

[11] The appellant relied on the absence of fingerprint and DNA evidence as well as the absence of a positive identification of a weapon and the asserted absence of blood on his clothes.

[12] One of the investigating officers gave evidence that it was not thought necessary to obtain DNA evidence of the source of the blood as there was no suggestion that the blood in the complainant’s room could have come from anyone other than him.  The officer said that fingerprinting most of the bottles would have been “virtually useless” as empty bottles had been thrown into a carton and some of the residual contents of the bottles had sprayed over them.  It was also the case, according to his evidence, that those drinking would have touched the bottles and, in any event, fingerprints were difficult to locate on bottles which had been cold, consumed quickly and on which condensation had formed.  He said that the piece of the bottle with blood on it had shattered into quite a number of shards and that fingerprinting was likely to be unproductive.  The appellant also sought to rely on an absence of damage to his hands “(except for usual cuts and scrapes of a miner’s hands)” but there was no evidence of the state of the appellant’s hands.  Nor was there any evidence of the state or disposition of the appellant’s clothes after the attack.

Ground 2 – Blood found not identified as to whom it belonged

[13] This complaint has been addressed.

Ground 3 – There were no witnesses, only the complainant’s word against that of the appellant

[14] If the appellant was to be believed, there were likely to have been no witnesses to the actual attack.  There would have been witnesses to the complainant’s attempt to prevent the appellant’s departure from the hotel and to the appellant’s departure.  However, the fact that the prosecution did not see fit to call any of the persons who may have been in and about the office at the time to give evidence, does not detract from the credibility of the complainant.

Ground 4 – There were false allegations and inconsistencies in the complainant’s statements

[15] No inconsistencies between the statement given by the complainant to police and his oral evidence were identified apart from minor matters of detail such as the sequence in which the four men had come together to drink.  The lack of recollection, or accurate recollection, of such peripheral matters was unlikely to have affected the jury’s view of the complainant’s general credibility.

Ground 5 – The appellant was convicted on “flight” and by reference to an unknown phone and other items

[16] Reference to “unknown items” is to evidence given by the complainant that safety glasses, a mobile phone and a document appearing in a photograph of the room were not his.  The document was said by the appellant, in a question to the complainant, to be “standard issue”.  It may well have fallen out of the appellant’s pocket as the complainant suggested in evidence.  The appellant also asserted that the mobile phone shown in the photograph, which was said by complainant not to be his, did not belong to the appellant but there was no evidence of that. 

[17] The reference to “flight” is to the evidence of the complainant that the appellant drove from the motel after the incident and to the statement in the police interview that the appellant slept on a riverbank and then drove to Alpha.  The appellant rejects the evidence that he drove from the scene intoxicated, relying for his belief in this regard on his not having been convicted of a traffic offence in his thirty years of driving.  Even on the appellant’s own admission, he departed from the hotel and slept on the riverbank in a swag which he took from the back of his car.  As noted above, he said that he did not know if he drove away or not.  In the light of this evidence and the complainant’s clear assertion of what he observed of the appellant’s conduct, there is no obvious reason why the jury should not have accepted the complainant’s evidence. 

Ground 6 – The complainant’s injuries were not consistent with the complainant’s account of the injuries sustained by him

[18] The medical practitioner was not asked by either the prosecutor or the appellant whether the laceration on the forehead which required suturing was consistent with the complainant having been struck with a bottle.  It was well open, however, for the jury to conclude that the injury was caused in that way.  There was, after all, evidence of a broken bottle in the complainant’s room, glass extracted from the complainant’s body, blood all over the complainant’s face and blood on the floor of the complainant’s room.  The other injuries, apart from abrasions on the bridge of the nose, had no direct support from the medical evidence.  It was open to the jury, however, to accept the complainant’s evidence of the unrecorded injuries as any bruising and swelling may not have emerged, or fully emerged, at the time of the medical inspection or may have had a relatively minor appearance and not be thought to merit recording.  There were photographs in evidence (Exhibits 5 and 6) which supported the complainant’s evidence.

[19] The appellant’s argument that if the complainant had been punched as he alleged, facial injuries would have been more apparent loses much of its force when it is recognised that the complainant did not describe the punching as forceful and appeared to equate it to slapping.  Finally, in this regard, it was open to the jury to return a guilty verdict even if they consider that the complainant exaggerated the extent of his injuries.  The wound to the forehead was documented in the medical records and there was cogent evidence that it was caused by a blow from a bottle.

Ground 7 – There was no alleged weapon positively found

[20] There was ample evidence from which the jury could conclude that the complainant had been struck with a bottle.  This ground is also addressed in the discussion of ground 8.

Ground 8 – Very poor policing and judgment

[21] The police investigation could have been more thorough but, in fairness to the investigating officers, the case would have not have appeared to have warranted the expenditure of more time and the deployment of further resources.  The complainant gave a straightforward account of events.  He had injuries which supported his account of having been attacked by the appellant.  There was blood on the floor inside the complainant’s room and on the cement outside the room and a smashed beer bottle, or part of it, was found in the room.  The appellant departed suddenly from the area after the incident.  When interviewed, the appellant was not in a position to dispute the complainant’s assertions.  Moreover, the appellant said little, if anything, to the police officer who interviewed him to raise any doubts in the mind of that officer.

[22] In his oral submissions, the appellant attributed his failure to mention to the authorities various matters on which he now intends to rely to sarcasm on his part and a desire to leave it to the complainant to do the honourable thing and withdraw his false complaint.  In the unlikely event that these assertions were founded in fact rather than fiction, the appellant is not able to complain about the jury’s lack of clairvoyance: their duty was to decide the case on the evidence before them.

Miscellaneous

[23] In his written outline of argument, the appellant raised a number of matters which were not within the grounds of appeal.  Some of these matters were of little, if any, relevance to the issues in the case and highly unlikely, if dealt with on the trial, to have affected its outcome.  In this regard, there was an assertion that the complainant did not mention that there were two entrances to his room.  Concern was also expressed about evidence that the case “was never discussed between the flatmates”, that is, the complainant, Mr Joyce and Mr Powell.  However, no “flatmate” of the complainant gave significant evidence. 

[24] It was claimed that the complainant’s girlfriend was in the courtroom texting until asked by the prosecutor what she was doing on the second day of the trial.  The appellant asked why records of the text messages should not be produced.  The answer to the query is that one can only speculate as to whether any text messages sent or received would have been relevant, let alone admissible, to the hearing and the likelihood of the messages being relevant and admissible may be thought to be remote. 

[25] The appellant was concerned that “up to half of the jurors may have known” the complainant “directly or indirectly”.  That again is speculation and any concern about such a matter should have been raised at the trial.  The trial proceeded in the normal way with the names of jurors being read to the jury and with the conventional direction about impartiality.  There were other matters of marginal relevance which were not within the grounds of appeal and which were not raised on the trial.  It is too late for the appellant to raise them now and, in any event, they were all either without evidentiary foundation or lacking in substance or both.

Conclusion

[26] None of the grounds of the appeal against conviction were made out and I would order that the appeal be dismissed.

Application for leave to appeal against sentence

[27] The only matter raised by the appellant in relation to his sentence was that the penalty ought not be commensurate with the penalty imposed in cases in which the evidence upon which the jury relied was particularly strong: where, for example, the victim’s account was corroborated by eyewitnesses.  The contention is misguided.  Sentences are not graduated in accordance with the perceived strength of the prosecution case.  A guilty verdict may be returned only where the jury is persuaded of the elements of the offence beyond reasonable doubt.  That was the case here.  Counsel for the respondent submitted by reference to R v McDonald[1] and R v Bennett[2] that the sentence imposed was at the lower end of the appropriate range.  Even if the correctness of this submission was not beyond argument, it is plain that the sentence was not manifestly excessive.  I would refuse leave to appeal against sentence.

[28] DALTON J: I agree with the reasons of Muir JA and the orders proposed.