R v Carter[2014] QCA 120

SUPREME COURT OF QUEENSLAND

[1] GOTTERSON JA:  I agree with the orders proposed by Jackson J and with the reasons given by his Honour.

[2] MORRISON JA:  I have read the reasons of Jackson J and agree with his Honour’s reasons and that the application for leave to appeal against sentence should be refused and the appeal against conviction be dismissed.

[3] JACKSON J:  After a four day trial in the District Court at Bowen, the applicant John Grant Carter was convicted of assault occasioning bodily harm in company.  The victim of the assault was Kenneth Graham Dowling Thompson (“the complainant”).  John Ghattas and Karlie Elizabeth Buckley were convicted on the same count of the indictment.  The applicant applies for leave to appeal against conviction.  The question for decision is whether the conviction was unreasonable and in one respect whether there was a miscarriage of justice.  There is one point of principle raised by the application or proposed appeal, which will be mentioned later.

[4] The general circumstances of the offence and of other offences committed at about the same time by Mr Ghattas and Ms Buckley may be taken from the reasons for judgment in their recent appeals.[1]  Applegarth J described the circumstances thus:

“The appellant, Ms Buckley, had two children with the complainant: a daughter aged seven and a son aged four. Her relationship with the complainant broke down in 2010. The children principally resided with their mother. On Tuesday, 17 April 2012 Ms Buckley expected to pick up her children at 7.00 pm in accordance with a court order. However, shortly before that time she received a text message from the complainant informing her that the children would be staying with him that night and that she should call the police with any questions. Ms Buckley tried to call the police, without success. At the time she was with a work colleague and friend, Mr Bryant. He arranged for a mutual friend, Mr Carter, to drive Ms Buckley and him to the complainant’s house to collect the children. On the way, Ms Buckley arranged for her friend, Mr Ghattas, to be collected.

As matters transpired, and in the circumstances described below, Mr Ghattas broke into the complainant’s house after he heard Ms Buckley’s daughter screaming from inside it. The daughter ran to her mother. The complainant ran out the front door of the house, carrying his son. He alleged that he was assaulted after he ran from the house. Mr Ghattas and Mr Carter were charged with assault occasioning bodily harm over this incident. Each denied assaulting the complainant, who was said to have stumbled and fallen to the ground whilst carrying the child.

Mr Ghattas was convicted of wilful damage (count 1), burglary by break, in company (count 2) and of assault occasioning bodily harm in company (count 3). Mr Carter was convicted of assault occasioning bodily harm in company (count 3). Ms Buckley was convicted on count 2 and count 3.”

[5] For the purposes of this appeal, it is unnecessary to detail the story as revealed by the evidence up to the point at which the applicant is alleged to have become involved in the offending.  It is convenient again to adopt Applegarth J’s description, starting at the point when the complainant said that he ran out of his house carrying his two year old son towards the road, as follows:

“The complainant’s evidence was that as he ran out the front door he noticed another person to his left with what looked to be a baseball bat. There was no other evidence of a baseball bat or similar weapon. The complainant’s evidence was that as he ran across the lawn he received a blow to the back of his head. He did not say what hit him. He said that he lost his balance and fell with his son in his arms, doing the best that he could to protect his son. But the son ended up with a graze on the side of his face when his cheek hit the bitumen. Ms Buckley took the child out of his arms and ran off down the road with him. Then, according to the complainant, the two men started swinging punches at him while he was on the ground. Most of them were around his head but he was raising both his arms to protect his head.

A neighbour, Mr Fenn, came out of his house with his cross pit-bull dog to stop the assault. Mr Fenn, who died before the trial, gave a statement which was admitted into evidence pursuant to s 93B of the Evidence Act 1977 (Qld). His evidence was that he saw the complainant being kicked by a man. No other witness gave evidence of a kick and the complainant did not claim to have been kicked. Mr Fenn described one male kicking and possibly wrestling with the complainant while another male watched on from about a metre away.

Mr Fenn’s partner, Ms Cooper, also heard the commotion and saw between three and five people running around. She went inside her house to telephone the police. She did not see any assault upon the complainant. When she went outside she saw Mr Fenn chasing someone down the road.

As Mr Fenn and his dog chased the man who Mr Fenn had seen watching the fight, the man produced nunchakus, and swung them at Mr Fenn and his dog. The man who Mr Fenn knew by the name of Johnny, and who was said by Mr Fenn to be around 30 years of age, jumped in the back of the car. The car took off.

Neither Mr Fenn, Ms Cooper nor anyone else, save for the complainant, described any attempt to run over the complainant as the car drove off. The complainant gave evidence that he heard Ms Buckley say, ‘run him over’. No one else gave evidence of hearing such a thing. The complainant said that he had to jump out of the way to avoid being hit as the car drove off.

Mr Carter and Ms Buckley were charged jointly with dangerous operation of a vehicle arising out of this alleged incident. The jury returned verdicts of not guilty in respect of that count.

Mr Bryant was not charged with any offence. His evidence at the trial was that he was some distance away, and after hearing the window smash went around to see what was going on. He heard screaming and ran back around to the front of the house. He saw the female child who he knew. He tried to comfort her and took her back to the car. Ms Buckley then returned to the car with her son. The car moved off and Mr Ghattas was picked up a few metres later. Mr Carter was driving. Mr Bryant’s recollection was that Mr Carter had initially stayed near the car and he did not see him go near the front of the house.”

[6] The applicant supported the ground of unreasonableness by relying on inconsistencies between the complainant’s evidence and other evidence.  The applicant also raised additional grounds of appeal that the verdict of guilty on the assault charge was inconsistent with the verdict of not guilty on a charge of dangerous operation of a vehicle and that the learned trial judge erred in failing to direct the jury that if it entertained a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more of the counts on the indictment that doubt must be taken into account in assessing the overall truthfulness or reliability of the complainant’s evidence.

[7] It will be necessary to analyse a number of suggested inconsistencies in due course.  However, it is appropriate to begin with two observations.  First, the particulars of the charge against the applicant alleged that he “participated in a joint criminal enterprise and struck the complainant in the head and/or body/whilst in company with another person”.  However, the case against the applicant as the learned trial judge summed it up to the jury did not involve any alternative based on an assault by another for which the applicant was responsible under s 8 of the Criminal Code.  As it was summed up, the case against the applicant was that the applicant was a person who committed an assault himself.  Secondly, the only evidence of assault which could have concerned the applicant came from the complainant’s testimony and from a statement by Mr Fenn which was tendered under s 93B of the Evidence Act 1977 (Qld) (“EA”).  That is, except to the extent that it was supported by Mr Fenn’s statement, the applicant’s evidence alone constituted the basis of the applicant’s conviction.

[8] On 17 April 2012, there was an exchange of telephone text messages between the complainant and Ms Buckley which ended at 7.10 pm.  After that, he was watching TV with the children in the lounge of his home at Kingfisher Terrace, Jubilee Pocket.  At about 7.30 pm, the incident began with a knock at his front door.

[9] It appears that Ms Buckley or Mr Ghattas was knocking on the door.  When it was not answered, they went from the front door to the back door.  Mr Ghattas broke the back door.  Ms Buckley, followed by Mr Ghattas, entered the house.  The female child went to her mother and the complainant then left the house by the front door carrying the male child.  The complainant said that a man, described as “the man in the black shirt”, who was Mr Ghattas, was coming towards him “hard”.  The complainant said that he “flew out the door” as Mr Ghattas approached.  The complainant’s evidence proceeded thus:

“So you got out the door; what did you see?---As I disembarked the house I looked to my left as I’m coming out the door, and there’s another person with what looked to me like a baseball bat in his left, holding it one-handed. It was pointing to the ground.

And what did this person look like?---He sort of had a – sort of snowy, blondy, sort of neck-length hair, and that’s about, basically, the – and he was wearing a white shirt, and that’s basically where I got to in that split second.

…

And then what happened?---We took off across the lawn. I had [the complainant’s son] in my arms, then received a blow to the back of the head and---

Where were you when you felt this?---Probably a couple of strides just short of the road sort of thing, and, yeah, struck across the back of the head, hit the ground, with [the complainant’s son] in my arms.

Do you know what struck you?---No idea.”

[10] The complainant then described losing his balance, falling forward to the left onto his left elbow, arm and shoulder and continued:

“… and then at that stage the momentum has carried me across the road and I landed against a parked car on the other side of the road.

And what happened to [the complainant’s son]?---He’s – I did the best I could to protect him from the blow, but his cheek hit the bitumen as well, and he ended up with a quite severe graze on the side of his face.”

[11] And further he said:

“… as I’ve hit the road, hit the car, all I recall then you’d look up, Ms Buckley is taking the child out of my hands, and she’s running off down the road with him, and then the other two assailants basically went to town and started swinging punches in me while I was on the ground.

And what road is that?---That’s on Kingfisher Terrace, Jubilee Pocket.

What happened from that point onwards?---A good Samaritan, one would say, came out of his home. The actual car I had hit – he’d come out and said words to the like of what the hell’s going on here. That gave me a chance to get to my feet because that stopped them for a moment, and he was able to basically get near one of them, which allowed me to get up, and the man in the white shirt took off.

You mentioned that stopped them for a moment. What are you talking about?---Well, when I hit the car they took [the complainant’s son] off me and two gentlemen began to unload punches.”

[12] The complainant expanded on his description of the alleged assault as follows:

“And then what happened?---Two gentlemen, the man in the black shirt that was in the home and the man in the white shirt that was adjacent to the front door began punching me in the head.

And where were they in relation to you when they were punching you in the head?---Standing on top of me.

Were they on the same side or different sides?---Different sides, yeah, one from here and one from here; one from the left, sort of front, and one from the right front.”

[13] The complainant went on to describe the number of times he was struck as “Multiple hits” that were delivered “Mostly around the head, yeah, and the forehead and the top of the head and, you know, anywhere they could punch”.  He described himself as “Holding my head as best I can from impact” and as “Laid on the ground in a – you could say as semi-laid down on my side.  Not sitting upright, no”.

[14] The complainant continued, saying that the man in the “white shirt” got into the driver’s seat of the vehicle, that Ms Buckley and his daughter were in the vehicle, that he came up behind the vehicle on foot, then around it past the driver’s side, into the front.  He said that he then heard Ms Buckley yell to the driver the words “exactly” of “run him over”.  He continued that thereupon the vehicle moved forward and “would have hit me.  I - I had to jump out of the way”.

[15] In cross-examination, the complainant twice confirmed that the man outside the front door had what appeared to be a baseball bat.  He said “It would have appeared to have been a bat in his …” and “It definitely looked like a baseball bat”.  He also confirmed that the impact to the back of his head was “a blow from blunt object which he described as being, as “clear as day”, the cause of his loss of footing.

[16] Further, in cross-examination, the complainant denied that he was hit on the body - his evidence was that he was hit in the head by the men.  Pressed about how many blows there were he said that: “Well we’re talking unloading for 10 or 15 seconds … So as many as you can …”.  He stated that he was holding his arms up to protect his head.

[17] It is appropriate at this point to mention the nature of the defence case.  There was no dispute that the applicant was at the scene.  He had driven Ms Buckley, Mr Bryant and Mr Ghattas there in his car.  There was also no dispute that the complainant had fallen on the road while carrying the male child and that the complainant and the male child suffered injuries in the fall.  Further, there was no dispute that the applicant had gone to the point where the complainant and the male child had fallen on the road and there spoke to Mr Fenn, the neighbour of the complainant, who was then present.  However the applicant’s case was that he had not gone up to the house, was not holding a baseball bat or similar, did not hit the complainant on the back of the head with any bat or blunt object and did not punch or otherwise assault the complainant, as the complainant alleged.

[18] The only other evidence speaking directly to an assault by the applicant was contained in Mr Fenn’s statement.  He was alerted to leave his house by the noise next door.  He described the scene he saw as he came out of his house thus:

“I have seen an assault occurring on my driveway which comes off Kingfisher Terrace.  The driveway is right on the other side of my fence.

I have seen a male person kicking another male on the ground in my driveway, right next to my girlfriend’s silver Nissan Pulsar which was parked in our driveway.  He was really getting into the guy while he was on the ground.  I couldn’t tell if he was wrestling or not.  There was [a] lady standing there just screaming, near the car.  …

It was too dark, I do not know what he was wearing and cannot give any description of him.  I do know that it was a guy.  There was another guy, standing about a metre away on the road, watching what was going on.  I could see him …”

[19] He proceeded to describe the other “guy… watching”.  The description was consistent with Mr Ghattas’ description.  The prosecution case was that, as a matter of inference, the male person described as doing the kicking was the applicant.

[20] Later in his statement, having described an altercation or confrontation between the other guy and himself and his dog, Mr Fenn continued:

“Both guys have then run across the road to a vehicle parked on Kingfisher drive. I’ve seen there was a person in the driver’s seat. I don’t know if it was a male or female. I could hear children screaming from inside the vehicle but could not see them.  I heard someone yell out to Johnny, ‘Come one [sic], Johnny, come on, get in the car.’”

[21] And later referring to the applicant’s car, and who was in it, he said:

“I only saw two guys and the lady, but there must have been another guy in the [driver’s] seat of the car, because they took off straight away once they had all gotten in.”

Inconsistencies in evidence

[22] It will be observed at once that there are several inconsistencies between Mr Fenn’s statement and the complainant’s testimony.  First, Mr Fenn puts the assault as “occurring on my driveway” when the complainant has himself on the bitumen almost across the road.  Second, Mr Fenn has the male person “kicking another male on the ground” when the complainant says that he was only punched.  Third, Mr Fenn has the complainant being kicked on the ground by one man while the other (matching the description of Mr Ghattas) watched.  The complainant has both the men he observed delivering blows to his head simultaneously over a short period from left and right.  Fourth, Mr Fenn has the man who did the kicking running across the road to the vehicle which was being driven by another person.  All other evidence is that the applicant was the only driver of the vehicle.

[23] As well, Mr Fenn’s statement was evidence that the applicant was unable to test.

[24] In addition to the inconsistencies with Mr Fenn’s statement, there were inconsistencies or possible inconsistencies between the complainant’s evidence and other evidence tendered in the prosecution case.  There was evidence as to the extent of the injuries which the complainant suffered which it was necessary to consider in the light of his evidence as to what had occurred.

[25] Following the incident, at about 8.20 pm, a police officer took photographs of the complainant and his injuries.  The officer confirmed that if he had seen bruising to the complainant’s face he would have taken photographs of those bruises.  He also confirmed that if he had seen bruises to the complainant’s forearms he would have taken photographs of those injuries.  He further indicated that if he had seen blood at the back of the complainant’s head or to the left of his head he would have taken a photograph of any such injury.  The series of photographs taken of the complainant’s head and body showed a number of injuries consisting of grazes to his elbow, shoulder and ankle.  They were consistent with what might have been suffered in the fall described by the complainant.  However, there was no injury or mark consistent with the blows from the assault as described by the complainant.  One possible exception was a small blood mark on the complainant’s forehead that he described as being from the blows, although it was suggested to him that it too might have been sustained in the fall.

[26] Following the incident, ambulance officers attended the scene and examined the complainant.  One of the ambulance officers gave evidence that the complainant had said he was hit with a baseball bat.  He told the complainant to undergo a further assessment at hospital.  He told the complainant that there was a chance he could have ruptured vessels inside his head and if not immediately investigated that could cause possible death.  The complainant refused to go to hospital.  In cross-examination about that conversation, the complainant denied that he was told he could die if he did not go to the hospital.

[27] On the day following the incident, the complainant consulted Dr Coulter, a general medical practitioner, at Airlie Beach.  Dr Coulter noted that the complainant had some scattered grazes on the left side of his head and he had a swollen ankle which was painful.  He confirmed that the complainant had told him that he had been hit in the head with a baseball bat.  He opined that if the complainant had been hit with an object and knocked to the ground he would have expected to see some significant injury.  He opined that if the complainant had been hit multiple times by two men he would expect to see more significant injuries to the head than the complainant presented with.  However, he clarified that if the person had not been hit in the head with a bat and was protecting himself with his arms that would give some degree of protection.  But he also said that if someone had been hit multiple times he would expect some damage as a result.  He also confirmed that if somebody was covering their head with their arms one might expect to see some trauma to the area that absorbs the blows.

[28] The significance of Dr Coulter’s evidence is that there was no such sign of any injury to the complainant, either to his head or to his arms.  As well, there was no observed evidence of any injury to the plaintiff to the back of his head where he said he was struck by a blunt object.  On the contrary, the complainant’s injuries were consistent with a fall.

[29] The somewhat surprising absence of such evidence was reinforced, not answered, by the only other evidence tendered by the prosecution to suggest that the complainant had been assaulted as he alleged, namely a statement by one of the police officers who attended the scene after the incident that he “did notice that [the complainant] had some skin removed from his knees and elbows and he was holding his hand to the back of his head when I saw him”.  However the police officer confirmed that he did not observe any injury to the back of the complainant’s head.

[30] There were three other eye witnesses or partial eye witnesses to the incident.  One of them, Mr Bryant, was a member of Ms Buckley party when they went to the complainant’s house for Ms Buckley to pick up her children.  Mr Bryant was a friend of both Ms Buckley and the applicant.  His evidence was to the effect that when he left the applicant’s vehicle to go over to the house the applicant stayed at the car on the driver’s side, smoking.  Mr Bryant went to the house, down the side to the back, and then returned along the side to the front.  He then saw the female child standing in the middle of the driveway, picked her up, and took her to the applicant’s car.  After a short time, “Could be two minutes.  I don’t really know”, Ms Buckley got in the back of the car with the male child.  He did not observe the applicant going near the front of the house and thought that he had remained “by the car”.  To that extent, his evidence was inconsistent with the applicant’s record of interview with police where the applicant said that he went over to the complainant after the complainant and the male child had fallen, and while there spoke to Mr Fenn.

[31] Second, the female child, the complainant’s seven year old daughter, gave pre-recorded evidence.  The prosecution also tendered a video-recording of a police interview with her, recorded in the very early hours of the morning of 18 April 2012 following the incident.  In the pre-recorded evidence, she said:

“Okay, and then you saw dad fall over?  I didn’t see him but I once I was in the car I heard a big thump like, on the ground, like a big thump ---

Okay? And that’s when [the complainant’s son’s] face got all scratched.

All right, but you didn’t see anyone punching dad?  No. No one was punching him. There were no weapons as well.

And no one was kicking dad?  No.”

[32] However, there was little in the evidence to suggest that she had actually seen the complainant at the time he fell with the male child in his arms, or the moments immediately before or afterwards.

[33] The other eye witness to some of the events of the evening was Ms Cooper, who was Mr Fenn’s partner.  However, by the time she arrived at the area of the incident, any assault involving the applicant had already occurred.  She saw nothing of the applicant.

[34] Lastly, although the people I have described were all in the vicinity and gave evidence and although the police, including forensic police, attended the scene very shortly after the incident, no bat or similar blunt object was identified in evidence at any time, except by the complainant as his observation when he “flew out the door”.  Further, no-one except the complainant gave evidence to support the complainant’s allegations that the applicant was standing on the left hand side of his front door as he “disembarked” the house.

[35] It may be acknowledged that the inconsistencies mentioned formed a significant basis to challenge the complainant’s evidence as untrue in part.  They raised a real question whether the jury might be satisfied beyond reasonable doubt of the applicant’s involvement in any assault upon the complainant.  That was the question for the jury.  I will return to whether the jury could reasonably have been so satisfied or whether their verdict is unreasonable because of the inconsistencies.

Inconsistency of verdicts

[36] A separate ground of appeal is that the verdict of guilty on the charge of assault was inconsistent with the verdict of not guilty on the charge of dangerous operation of a motor vehicle.

[37] The respondent submitted that the verdicts did not necessarily involve any inconsistency, because the jury may have not been satisfied beyond reasonable doubt that the applicant deliberately drove at the complainant, without rejecting any of the complainant’s evidence as not credible or reliable.

[38] The learned trial judge correctly directed the jury that “[i]ntention is not an element of dangerous driving”.  Her Honour also observed that the prosecution case was that the applicant “deliberately drove at” the complainant.  So, the submission made by the respondent accurately expresses a possible view that the jury took of the applicant’s intention.

[39] However, consistently with their duty, the jury had to go further than that to find the applicant not guilty of the offence of dangerous operation of a motor vehicle.  As the learned trial judge directed them, they had to ask themselves whether the applicant “drove the car in a way that was dangerous to another person or other people having regard to all of the circumstances.  And the circumstances you  would take into account as to whether or not it was dangerous is to consider the type of area – this was a suburban street in Kingfisher Terrace – the way the road was, the type of car.  You consider any people who were around at the time or any people who might be reasonably, or things that might reasonably be expected to be in the way…”.

[40] It is possible, but does not seem likely, that the jury accepted the complainant’s evidence that Ms Buckley said “run him over”, meaning the complainant, and that what followed was that the vehicle moved forward and, as the complainant said, “would have hit me…  I had to jump out of the way”, yet the jury concluded that they were not satisfied beyond reasonable doubt that the applicant operated the vehicle dangerously.

[41] It is more likely, perhaps, that the jury either were not satisfied beyond reasonable doubt that Ms Buckley said “run him over”, or that the complainant was required to jump out of the way to avoid being hit.  It is quite possible that the jury may have thought that the complainant’s evidence was in some aspects exaggerated, and that his evidence about the vehicle being driven at him was one of those aspects.

[42] However, the point for present purposes is that there is no necessary inconsistency between the jury’s verdict of not guilty on the charge of operating a vehicle dangerously and the verdict of guilty on the charge of assault.

[43] Upon the offence of operating a vehicle dangerously, the complainant’s evidence obtained no support from either Mr Fenn’s statement or the testimony of Ms Cooper or the female child.  Mr Bryant gave evidence in support of the applicant’s case as to appropriate driving of the car.  The case advanced by the prosecution involved an asserted inference as to the applicant’s intention as well as an inference as to the manner of his driving.  By way of contrast, on the offence of the assault, the complainant’s evidence was supported in some material ways by Mr Fenn’s statement, and that was to be taken with the applicant’s admission that he was standing next to the complainant on the roadway at about the time of the alleged assault.  It was open to the jury to reach inconsistent verdicts on the two offences without offending “logic and reasonableness”.

Direction as to credibility on separate counts

[44] A separate ground of appeal is that the learned trial judge was required in the circumstances to direct the jury that if it entertained a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more of the counts on the indictment that doubt must be taken into account in assessing the overall truthfulness or reliability of the complainant’s evidence, relying on R v Markuleski.[2]

[45] The learned trial judge in the present case was not asked to give such a direction and did not do so.

[46] In the light of Markuleski and other authorities of this court and in the High Court, on several occasions this court has considered circumstances where a trial judge must direct a jury that their rejection of the credibility or reliability of a complainant’s evidence on one count must be taken into account in assessing the credibility or reliability of the complainant on other counts on the indictment.  The cases are summarised and considered in R v WAC.[3]  Although the same ground has been advanced in many appeals since then, there is no reason to dilate on the subject again in this case.  WAC shows that reasonable minds may differ as to the circumstances where it may be appropriate to direct a jury as to the use they may make of their view of credibility or reliability on one count in considering another.  But in many cases it will be a matter of common sense to a jury that “if they disbelieve a person about one thing they are likely to have less confidence in that person’s evidence about another”.[4]  The end to which the inquiry as to whether a direction is required is “the risk of unfairness” if it is not given,[5]  and it follows from the fact that such a direction is not always required that an appellate court should be slow to conclude that it was necessary, with the benefit of hindsight, particularly when it was not requested in the first place.

[47] As a matter of commonsense, in this case the jury could be expected to have been aware that if they were not persuaded of the complainant’s veracity or reliability about the alleged dangerous operation of the vehicle, they might take that into account in deciding whether or not to accept his evidence as to the assault.

[48] In my view, the learned trial judge was not required to give a direction that if the jury entertained a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more of the counts on the indictment that doubt must be taken into account in assessing the overall truthfulness or reliability of the complainant’s evidence.

Unreasonableness - conclusion

[49] The application for leave to appeal against conviction therefore resolves to the question whether the inconsistencies in the evidence previously set out are such that the jury’s verdict of guilty on the charge of assault was unreasonable.

[50] It should be acknowledged that there were reasons in those inconsistencies why the jury might have had a reasonable doubt as to the applicant’s guilt.  To repel that conclusion, the respondent relied on R v Ghattas; R v Buckley,[6] where, inter alia, the applications of Mr Ghattas and Ms Buckley for leave to appeal on their convictions for the assault were dismissed.  But the applicant was not a party to those applications and his application should not be decided by reference to the reasoning which prevailed in them.

[51] As Mackenzie AJA said in R v PAH:[7]

“The relevant principles for determining whether the conviction is unsafe and unsatisfactory, to use the former terminology, are set out in M v R and MFA v R. M v R establishes a number of propositions about the exercise by appellate courts of the powers conferred by s 668E of the Criminal Code 1899 (Qld) and like provisions. The question which the court must ask itself is whether it thinks that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In most cases, a doubt experienced by an appellate court will be a doubt the jury ought also to have experienced. Where a jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt experienced by the appellate court, the court may conclude that no miscarriage of justice occurred. Where the evidence lacks credibility for reasons which are not explicable by the manner in which the evidence was given, the reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.

If the evidence, on the record itself, contains discrepancies, inadequacies, is tainted, or otherwise lacks probative force in such a way to lead the court to conclude that, even allowing for the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, the court is bound to act and set aside a verdict based on that evidence. In doing so, the court is not substituting trial by the Court of Appeal for trial by jury, for the ultimate question must always be whether the court thinks that, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

In MFA v R, it is reiterated that, given the jury’s role, sometimes described as a constitutional role, as the tribunal for deciding contested facts, setting aside a jury’s verdict, is, on any view, a serious step. But where a doubt is experienced by an appellate court, it is only where the jury’s advantage of seeing and hearing the evidence can explain the difference in conclusions about the accused’s guilt that the appellate court may decide that no miscarriage of justice has occurred. The function of s 668E of the Criminal Code and like provisions is to afford a mechanism against a prospect that an innocent person has been wrongly convicted upon unreasonable and unsupportable evidence and has therefore suffered a miscarriage of justice, while operating in a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual issues concerning the guilt of an accused in serious criminal trials.”

[52] In the present case, there is no doubt that if the complainant’s evidence was accepted to the requisite degree of proof beyond reasonable doubt, there was a proper basis for the applicant’s conviction.  It is on the question whether his evidence should have been accepted that I have a doubt.  That doubt is as to the credibility and reliability of the complainant’s evidence of the facts relating to the blow to the back of his head before he fell and the subsequent blows he said were delivered by the man in the white shirt, who was the applicant.  But the jury’s advantage of seeing and hearing the evidence can explain the difference in the conclusion that I would otherwise reach and the jury’s verdict of guilty.  The special respect and legitimacy accorded by our legal system to jury verdicts informs my ultimate conclusion that the applicant has not been wrongly convicted upon unreasonable and unsupportable evidence and that the verdict is not therefore unreasonable.

Direction as to the support person

[53] In the early hours of the morning of 18 April 2012, a police officer interviewed the female child as to the incident.  The interview was video-recorded on disc.

[54] As previously stated, the female child gave evidence in the proceeding.  She was an “affected child” as defined in s 21AC of the EA.  Her evidence was pre-recorded at a preliminary hearing under s 21AK of the EA. The evidence was taken and “video-taped” by video-recording on disc under that section and the “video-taped recording” was presented at the trial.  During the preliminary hearing, the video-disc of the interview was tendered as a statement contained in a document under s 93A of the EA.

[55] The evidence comprising the “video-taped recording” made of the evidence at the preliminary hearing was admissible at the trial under s 21AM(1)(a) of the EA.

[56] While she was giving evidence at the preliminary hearing, the female child had a person near her who may have provided her with support who is defined as “a support person”, under s 21AV(1) of the EA.  A support person is someone approved by the court (s 21AV(2)) and must be permitted to be in close proximity to the child and within the child’s sight, while the child is giving evidence (s 21AV(3)).  The support person was visible to the jury on the recording of the evidence given by the female child at the preliminary hearing.

[57] Section 21AW of the EA provides:

“(1)This section applies to a proceeding on indictment if any of the following measures is taken—

(a)an affected child’s evidence is taken in a way provided for under subdivision 3 or 4;

(b)a person is excluded under section 21AU while an affected child gives evidence;

(c)an affected child has a support person under section 21AV while the child gives evidence.

(2)The judicial officer presiding at the proceeding must instruct the jury that—

(a)the measure is a routine practice of the court and that they should not draw any inference as to the defendant’s guilt from it; and

(b)the probative value of the evidence is not increased or decreased because of the measure; and

(c)the evidence is not to be given any greater or lesser weight because of the measure.”

[58] Section 21AW of the EA applies if any of three “measures” is taken.  The third of those measures is where an affected child has a support person under s 21AV while the child gives evidence.  That measure was taken for the female child in the present case.  Accordingly, the learned trial judge was required to instruct the jury that having the support person near the female child while the she gave evidence was a routine practice of the court, that they should not draw any inference as to the defendant’s guilt from it, that the probative value of the evidence was not increased or decreased by it and the evidence of the child was not to be given any greater or lesser weight because of it.

[59] The instruction given was as follows:

“The next part of the child’s evidence is the process that is recorded in the court and I’ll just tell you a little bit about that before you see it on the screen.  The way in which it is done is that the child is in another room, a room remote from the court.  In that room there is an adult present with the child, no one else.  So that room is closed off, there’s a video link between the room and the [court room], the court is closed so members of the public can’t come in when a child is giving his or her evidence and the parties can ask the child questions and what the child will see on the television screen normally is the person asking the questions.”

[60] The instruction did not refer to the support person as a support person.  That was raised by counsel for the prosecution on the next day, as follows:

“Counsel:Because there is a prerecording, should they also be given that usual warning about the support person in the room?

Her Honour:Well, I balk [sic] – I don’t like to refer to support person.

Counsel:I know you’ve already given it.

Her Honour:Other people choose to use that word but I think that’s just a loaded term.  And my recollection is that I told the jury that there’s normally an adult sitting in the room with the child and that’s the way it’s normally done and that they can’t draw any adverse inference about that.  I’d be loathed [sic] to give any further direction unless somebody specifically asked for it because I think there is a risk that one, in overemphasising that there’s nothing usual [sic] about it, tends to highlight the opposite."

[61] The applicant’s counsel said that she agreed.

[62] When an affected child has a support person near her (or him) under s 21AV(1) of the EA, that person is not merely an “adult present”.  Their role is to provide the child with support, in a case like this, in a room from which all non-essential persons are excluded (s 21AU(2)).

[63] The role of a support person under s 21AV(1) is cognate to the role of a person approved by order to be present to provide emotional support under s 21A(2)(d) where a special witness gives evidence under Div 4 of the EA.  In that case, s 21A(8) operates in a similar way to s 21AW(2).

[64] Both the parties relied upon R v Bisht,[8] where this court was concerned with the sufficiency of an instruction given under s 21A(8) of the EA to a jury about the presence of a support person approved under s 21A(2)(d).  McMurdo P said of the instructions in that case:

“They make no reference to [the Judge’s] order under s 21A(2)(d) Evidence Act that a support person be present while the complainant gave her evidence. The respondent submitted that the judge’s reference to “the way the evidence has been presented” or “was presented” sufficiently complied with the requirements of s 21A(8).

I cannot accept that contention. The jury were likely to have seen the support person during the complainant’s evidence and noted that other witnesses did not have such support. The judge’s directions about the pre-recorded evidence at no stage referred to the presence of a support person which had been ordered under s 21A(2)(d). The directions therefore did not comply with the unequivocal mandatory terms of s 21A(8). The judge was obliged to give a s 21A(8) direction to cover each order or direction under s 21A(2)(a) to (e). The directions given about “the way the evidence has been presented” or “was presented” did not equate to a direction about the order that a support person be present. The support person was, in terms of s 21A(2)(d), “to provide emotional support” to the complainant and was not part of “the way the evidence was presented.”

[65] There is a well-established line of authority commencing in 2006, determining that the failure to comply with a mandatory requirement for the giving of a direction under s 21A(8) is an error of law.  This Court can uphold any subsequent conviction only if it “is convinced”, notwithstanding the non-compliance and after reviewing the whole of the record, that there has been no substantial miscarriage of justice. [9]

[66] There are now many cases in which a failure of the judicial officer to instruct the jury in accordance with s 21AW(2) has resulted in a successful appeal.  The leading case, perhaps, is R v Hellwig,[10] where the purpose of s 21AW(2) was explained thus:

“Division 4A has provided, for reasons which Parliament deems sufficient, that a different procedure should be followed in cases involving a certain class of witness. The difference is such as is likely to surprise jurors who have some knowledge, whether first or second hand, of ordinary court proceedings. Without the benefit of the instructions required by s. 21AW(2), that surprise may well turn into conjecture adverse to an accused. The subsection is intended to dispel the surprise and to prevent the conjecture. That that occurs is clearly of the utmost importance to a fair trial. Parliament cannot have intended that the new procedures should prejudice the fair trial of an accused. It has enacted that, to ensure a fair trial, the jury must be instructed how to evaluate evidence led in this way.

To exclude an accused from the complainant child’s presence, or to protect the child from the accused’s presence is likely to give rise to speculation by a jury that the measure has been undertaken because of some particular characteristic of the accused which is likely to be associated with his guilt. It is essential that that speculation be quashed and directions specified in s. 21AW(2) are designed for that purpose.

Section 21AW applies to these circumstances, in which a trial would very probably proceed in a manner prejudicial to an accused if the directions were not given, as well as to others where the departure from the orthodox presentation of evidence is not so great. There is no warrant for distinguishing between the circumstances in which s. 21AW applies. If the instructions must be given for the evidence to be valid in one of the circumstances specified in s. 21AW(1) the requirement must be complied with for all.”

[67] This Court has consistently held that failure to comply with the requirement to give the instructions mandated by s 21AW as to a support person, where an affected child or other special witness has a support person, is an error of law.  It has rarely held that the proviso under s 668E(1A) of the Criminal Code applies to such an error of law, namely that, if the court considers that no substantial miscarriage of justice has actually occurred, the court may dismiss the appeal notwithstanding the error of law.  Thus, in one recent case, R v Amber,[11] it was said that “[t]he respondent is able to point to no case where such an error in respect of the complainant’s pre-recorded evidence has resulted in an appeal being dismissed on the basis of the proviso in s 668E(1A).”

[68] In Bisht, for example, the court did not consider that no substantial miscarriage of justice had occurred because “[t]he judge’s omission to give the mandatory warning under s 21A(8) may have resulted in the jury giving improper weight to the complainant’s evidence because of the presence of the support person, contrary to the legislature’s clear intention.”  That is, because the special witness’s evidence may have been given more weight than it should have been given.

[69] Compare also, the cases decided in only the last year on the point: R v Amber (above), R v GAQ,[12] R v Wells,[13] R v TAC,[14] R v SCB,[15] R v WAT,[16] R v Drake,[17] and R v BCL.[18]  However, all those cases were concerned with whether the error might have affected the jury’s acceptance of a complainant’s evidence, on which the conviction depended, when the complainant had a support person near her (or him) while giving evidence, in a similar way to that discussed in Bisht.

[70] There are two cases not of that kind which may be mentioned.  First, in R v AAR,[19] the trial judge instructed the jury under s 21AW(2) as to the support person near the complainant, while she gave evidence at a preliminary hearing, but did not repeat the instruction about the similar evidence given by other affected child witnesses, whose evidence “was of limited significance, at most”.  It was concluded that the error “had no significance in determining the verdict that was returned by the trial jury”.[20]  Second, in R v FAD,[21] the affected child witness “was not the complainant and she did not give evidence of the offences.  Her evidence was relevant only as preliminary complaint evidence and as evidence of violent conduct by the appellant towards the complainant, and there was no serious challenge to either aspect of [her] evidence”.

[71] The learned trial judge’s instruction in the present case made no reference to the measure of the female child having a “support person” except the reference her Honour made to an “adult present”.  The jury could see the adult present on the video.  But, from the direction given, the jury would not have known what the purpose of the adult’s presence was.  In my view, for that reason, the instruction given did not comply with the requirement of s 21AW(2) to give instructions about the “measure” of having a “support person” near the child who “may provide the child with support”.  The learned trial judge’s view that “support person” is a “loaded term” is not to the point.  The measure provided for by s 21AV is that an affected child may have a “support person”.  That is the measure which s 21AW(2) requires that the jury be instructed about.  The words “support person” do not mean the same thing as “adult present”.  No doubt words other than “support person” may be used to convey to a jury that a person near the child is there for the child’s support.  But it is not appropriate to deliberately choose language intended not to convey that as the purpose of the person’s presence.

[72] By not complying with the requirement of s 21AW(2), the learned trial judge’s instruction comprised an error of law.  The remaining question is whether, notwithstanding the error, no substantial miscarriage of justice has occurred.

[73] In the present case, the question is not of the kind discussed in Bisht and other cases like it previously mentioned.  The female child’s evidence in this case tended to exculpate the applicant.  The jury may not have accepted her evidence, at least in part.  So the question of concern is whether the absence of a complying instruction about the presence of a support person may have caused the jury to give her evidence less weight than it should have been given.  The direction given made it clear that it was proper for the adult person to be present, as such.  The concern postulated would only arise if the jury might have had the view that the “adult present” was someone who may have coached, or intimidated, or in some way affected the female child in a way that negated the weight they might otherwise have given to her evidence.

[74] In my view, there is no real possibility that that was the view of the jury.  I reach that conclusion independently, but it is also supported by the circumstance that the applicant’s counsel did not seek any further instruction when the point as to the content of the direction about a support person was specifically raised at the trial.

[75] I consider that there was no substantial miscarriage of justice and that the application for leave to appeal and appeal against conviction should be dismissed.

Sentence

[76] The applicant also applies for leave to appeal against sentence.  The sentence imposed was to record a conviction, order that the offender be imprisoned for a term of 18 months, that the term of imprisonment be suspended after eight months and the court stated an operational period during which the offender must not commit another offence punishable by imprisonment of 18 months.

[77] The sole ground of the application for leave to appeal against sentence is that the sentence is manifestly excessive.  The task of this court on an appeal such as this in a similar context was stated in R v Stone[22] by adopting a concise passage from R v Jones; R v Hili[23] as follows:

“This Court’s task is to correct error and not to substitute one exercise of discretion for another, where error has not been shown.  That error must be either identifiable or manifest from the sentence imposed: House v The King [1936] HCA 40: (1936) 55 CLR 499.  Manifest error is not to be equated with mere inadequacy or excess.  But manifest error is fundamentally intuitive.  It arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it.”

[78] The learned trial judge sentencing remarks included the following:

“[The complainant] ran from the house, where he was knocked from behind and fell to the ground with [the male child] still in his arms.  I am satisfied that the person that he passed before he was hit was you, [the applicant].  Both [the complainant] and [the male child] suffered abrasions in the fall.  [The male child] bled profusely and was greatly distressed.

… [The male child] was taken from his father’s arms as he lay on the ground.  And, then came a flurry of blows from both of the men: from you, John Ghattas, and you, [the applicant].  [The complainant] was trying to protect his head.  He thought that the two of you were punching him.  The neighbour saw kicking.  If there was some kicking, it must have been at the end and it must have been from you [the applicant].  You admitted that you were the one with [the complainant] when the neighbour came along.  Fortunately for all of you, there was not much by way of direct impact to [the complainant’s] head.  He spoke of glancing blows, and the physical injuries ultimately were not serious.

All of you are very lucky that he was not grievously injured.  Assaults to the head are notoriously dangerous.  And this pack attack upon his house in the night was a traumatic experience for [the complainant].  It has undermined his confidence and has changed his life.  He has needed counselling.

… Finally [the applicant].  You have lived 47 years without any convictions.  You have also an impressive set of references that indicate this was an aberration, that otherwise you are a likeable decent fellow.  You have a very good work record.  It seems that all three of you have been hard workers.  And you share in the custody of your young son.  You have been convicted of the assault only.  Nonetheless, that was a very significant offence.  It was a joint attack, two men on one on the ground with a flurry of punches or kicks.

…

No doubt you were persuaded to get involved because you felt sorry for Ms Buckley.  That does not excuse serious violence.  Unfortunately, the sentence is not mitigated by a plea of guilty.”

[79] I recognise that the learned trial judge was entitled to find facts as to the applicant’s culpability upon which her Honour imposed the sentence so long as they were not inconsistent with the jury’s finding.[24]  The jury’s verdict did not establish whether the applicant hit the complainant before he fell to the ground, or punched him after that, or kicked him, but it necessarily means that he must have done one of those acts.  The learned trial judge was entitled to find the facts for the purpose of sentencing on the balance of probabilities.[25]  Most of those facts are set out above.  Her Honour accepted that the applicant hit the complainant from behind and then punched or kicked the complainant.

[80] No complaint is made that the learned trial judge failed to take into account any factor that in sentencing an offender a court must have regard to or regard primarily to under s 9(2) or (4) of the Penalties and Sentences Act 1992 (Qld).  The applicant relied on R v Abednego[26] and R v Hilton[27] and submitted that in the present case the injuries sustained by the complainant were relatively minor, “… some scattered grazes and swelling on the side of the head and a swollen ankle”, and that the assault in the present case was not protracted or the bodily harm deliberately inflicted.  The respondent relied on R v Beer: R v Massey[28] and submitted that the other cases relied on by the applicant were not comparable.

[81] In my view, none of the cases relied on by the applicant or the respondent is particularly informative upon the question whether the sentence imposed was manifestly excessive in this case.  Beer was a case of assault occasioning bodily harm in company but it also involved the use of a weapon as a circumstance of aggravation.  The complainant was struck three blows with a bat, two of them to the head.  The complainant’s sustained a savage beating from which he took four or five days to recover.  In the present case the applicant was not charged with any circumstance of aggravation involving the use of a bat or other weapon.  He was not sentenced on that basis.

[82] The answer to the question whether the sentence in the present case was manifestly excessive starts with the provision in s 339(3) of the Criminal Code that an offender convicted of assault occasioning bodily harm in company with one or more other person or persons is liable to imprisonment for ten years.  Second, it is an obvious proposition that the circumstances of assaults occasioning bodily harm vary greatly as do the appropriate sentences for the range of those circumstances.  It should also be observed that many cases, but not all, involve men younger than the applicant.  Out of some relevant cases,[29] it is useful to refer to only three.

[83] In Salmon,[30] the respondent was part of a group who broke into a home unit in daylight and assaulted the complainants in the course of recovering the child of one of the group.  The respondent hit one of the complainants in the face, jaw and ear with his fists.  He was criminally responsible for both his physical part in the assault and as a party to the assault of others in the group.  Some members of the group were armed with pieces of wood.  One of the complainants had a permanent hearing impairment.  The assaults appear to have been more serious than in the present case.  The respondent was sentenced to a term of imprisonment of 12 months on the charge of assault occasioning bodily harm with the circumstance of aggravation suspended after three months with an operational period of two years.  Although the Attorney-General’s appeal was dismissed, Wilson J expressed the view that a custodial term in the range of 18 months to two years suspended after six to eight months was appropriate.

[84] In R v Campbell,[31] the applicant was part of a group of three, including the applicant’s daughter, who sought to retrieve her child from the complainant, who was the child’s father.  The applicant kicked the complainant in the buttocks or lower back with sufficient force to cause him to fall to the ground.  The complainant suffered minor soft tissue injuries.  He had some discomfort to the neck, arm and shoulder resulting from the fall to the ground and he had some difficulty walking for a time.  The pain and discomfort persisted for a couple of weeks.  It appears that the applicant also kicked the complainant a number of times, including when he was on the ground.  The applicant was sentenced to a term of imprisonment of 12 months.  The parole release date was fixed at three months.  The application for leave to appeal against sentence was dismissed.  McMurdo P said:

“A wrestling match over a toddler in a shopping centre car park amounting to an assault occasioning bodily harm in company is not the way a civilised society settles custody disputes.

… The sentencing judge’s concern about the applicant’s contempt for the rule of law and his resort to violence to effect his daughter’s rights in relation to [the child] certainly warranted condign deterrent punishment.

… Requiring the applicant to serve three months of that 12 month sentence in actual custody before release on parole was a harsh penalty, but I am not persuaded that it was manifestly excessive.”

[85] In R v Gray,[32] the applicant was a member of a group of four, including the mother of a child, who set upon the complainant, who was the father of the child, in order to retrieve the child.  The complainant sustained grazes and bruises to his buttocks, back, scalp, shoulder, left shin and forehead.  The force needed to cause the injuries was moderate to severe.  The applicant was youthful and had no criminal history.  He admitted kicking the complainant at least four times.  He was sentenced to a term of imprisonment of two and a half years.  The parole release date was fixed at ten months on the count relating to that assault.  Chesterman JA referred to McMurdo P’s remarks in Campbell, part of which are extracted above, and continued:

“Those remarks apply with equal force to this case which is much more serious. The complainant was ambushed by the applicant and three others. He was pursued and knocked to the ground where he suffered a protracted beating which left him with some residual injuries. The offence was committed at night where the chance of intervention from bystanders or detection by witnesses was less likely than in Campbell’s case where the offence occurred in daylight in a crowded carpark. An additional feature which makes this case more serious than Campbell is the circumstance that the child was injured and may well have been seriously hurt in the fight.

There is a distinct need, as the trial judge recognised, to impose a sentence that expresses the Court’s, and the community’s, intolerance for resort to violence to settle disputes, particularly those involving the welfare of children. The factors of mitigation personal to the applicant, though important, do not outweigh the objective seriousness of the offence and the need to protect and insist upon the lawful and peaceful settling of disputes.

The factors in support of leniency are reduced in potency by the consideration that the applicant’s remorse appears to have come late and to have been incomplete. There was reluctance to accept responsibility for the injury to the child, a tendency to blame the complainant and disparage him publicly, a lack of frankness in his police interview and lack of cooperation in refusing to identify his co-offenders.”

[86] The application for leave to appeal against sentence as manifestly excessive in that case was refused.  The role of s 9(1)(c) (general deterrence) and (d) (denunciation of the sort of conduct) of the Penalties and Sentences Act 1992 (Qld) in the reasoning in those passages is clear.  Those factors are just as relevant to the sentence in the present case.

[87] Returning to the present case, the order that the applicant be imprisoned for eight months before the 18 month term of imprisonment was suspended was a stern sentence.  However, having regard to the cases mentioned above, I am not persuaded that it was manifestly excessive.  It follows that I would refuse the application for leave to appeal against sentence.