SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  The appellant appealed his conviction of one count of grievous bodily harm on the ground that the jury’s verdict was unreasonable.  He was given leave in the course of the hearing to add another ground: that a miscarriage of justice occurred because adequate instructions were not given on self-defence under s 271(1) of the Criminal Code and no direction was given as to self-defence under s271(2) of the Code.

[2] The appellant had admitted at trial that on 24 April 2012, the complainant, Robert Crozzoletto, had suffered an injury amounting to grievous bodily harm in an incident involving them both near the Seymour River.  The issue was whether the appellant inflicted that injury in self-defence.  The focus of attention at trial was on who was the aggressor; the two men gave different versions of the incident.

Mr Crozzoletto’s version

[3] The appellant and Mr Crozzoletto were both commercial fishermen.  Both maintained crab pots around the Seymour River near Lucinda in north Queensland.  The appellant had a five metre plate aluminium boat; Mr Crozzoletto’s boat was a 13.5 foot (4.1 metre) aluminium dinghy.  Mr Crozzoletto said in his evidence that about a month before the 24 April incident, the appellant approached him in his boat.  The appellant was abusive and told him that if he did not get his gear out of the water, he would “bury” him.  Mr Crozzoletto indicated that he would not oblige.  The appellant became angry and tried to get into the dinghy; Mr Crozzoletto drove it away.  He reported the incident to someone from the Fisheries Department.  He assumed they had reported it to the police, because the following day a police “informant” advised him that the police had gone to the appellant’s house and were trying to “sort this problem out.”

[4] Mr Crozzoletto’s next contact with the appellant was on 24 April.  He said that he had pulled up in a small creek off the Seymour River and was checking his equipment, a surveillance camera and the crab pot it monitored, when he saw the appellant’s crabbing boat accelerating in his direction.  Under cross-examination, he said that it was doing “not far off” its maximum speed.  The appellant’s boat hit the right-hand side of his dinghy towards the rear, where he was seated; the impact threw him out of his seat.

[5] The appellant jumped into Mr Crozzoletto’s boat and proceeded to punch him repeatedly and rapidly in the head, saying, “This is what you get for sending the cops to my house”. (It was established that, in his statement to police, Mr Crozzoletto recounted the appellant’s words as “This is what you get for sending the cops and Fisheries to my house”).  Mr Crozzoletto said he was knocked down by the punches, which connected with the left side of his face near the eye and continued as he lay on the floor of the boat.  The appellant kept saying that he was going to bury him.  Mr Crozzoletto was semi-conscious, but felt the appellant trying to lift him.  He also saw that the appellant had something in his hand which looked like an oar, with which, according to Mr Crozzoletto, the appellant “must have belted” him.  The appellant picked up a crab hook in the boat, bent it over his knee and threw it overboard.

[6] Next, the appellant drove Mr Crozzoletto’s boat over to his own, which had drifted away, and got into it.  The engine of Mr Crozzoletto’s boat was still running and he attempted to leave the creek in it.  As he tried to return to the river, however, the appellant began to ram the dinghy with his own boat, colliding with it on the left hand side at the back of the motor.  Both boats emerged into the river and headed in different directions.

[7] Mr Crozzoletto saw the appellant’s mobile telephone lying in his boat; he later gave it to a police officer.  He used his own phone to ring his fiancée.  Seeing another commercial fisherman, he asked him the direction of a nearby boat ramp.  By the time he reached it, his fiancée was there with a police officer and an ambulance.  In the incident he had sustained a laceration above each eye, both requiring stitching, and a fracture to his left eye socket, as well as some lacerations to his legs.

[8] Under cross-examination, Mr Crozzoletto conceded that although he had described the appellant’s throwing his crab hook overboard in his first statement to police, in neither that statement nor a second statement had he mentioned the appellant’s bending the hook over his knee.  Nor had he mentioned the previous altercation with the appellant in either statement, although, he said, it was “supposed to be in the paperwork”.  He admitted that in conference with the Crown prosecutor he had asserted that the appellant had broken the boat oar (made of silky oak) over his head, but now said that that was an inference based on the damage to the oar and the trauma to his head.  Again, the suggestion that he had been struck by the oar was not in either statement.

[9] Mr Crozzoletto agreed that a police officer had taken photographs of his dinghy in order to show the damage it had sustained.  He said that it could be seen from a photograph of the boat’s right-hand side that it was “squashed in, caved in”.  It was put to him in cross-examination that the photographs showed no damage to the side of the boat, but he maintained that there was a kink on the side of the gunwale, caused by the original impact.  There were no photographs showing the back of the boat.  Mr Crozzoletto acknowledged that the impact point from the later ramming could not be seen on any photograph, but he identified in a photograph showing the left side of the boat what he said were three indentations on the gunwale resulting from the ramming.  He also identified a photograph of one of his oars which had been broken in the incident.

[10] Mr Crozzoletto denied the appellant’s version of events (which involved him as the aggressor in a mutual scuffle).  He also denied what was put to him about conversations he had after the incident with fishermen named Mr Winstone and Mr Fletcher, including statements that he had assaulted the appellant with an oar, and that the appellant was “fucked” or “dead” as a result of the altercation and likely to lose his fishing licence.

The appellant’s version

[11] The appellant said that on 24 April 2012, he was going to check a crab pot in the creek where the altercation occurred.  The pot was located at the head of the creek, at a point where it became impassable because of mangroves.  His boat was travelling at about 10 kilometres per hour; because the channel was narrow, he had to negotiate through over-hanging mangroves.  He reduced speed when he saw another boat approaching, travelling at least 20 kilometres per hour.  The appellant pulled his boat hard to the right, as did the driver of the other boat, and each came to a stop in the mangroves.  The wash of the two boats pushed their sterns together so that their back corners touched.

[12] The appellant took his motor out of gear and stood up; he recognised the other driver as Mr Crozzoletto and saw his crab pot in the latter’s boat.  He accused him of being a thief and reached in to grab the pot.  As he did so, he saw Mr Crozzoletto bringing an oar down on him.  He dodged the oar and grabbed hold of it.  He found himself on the floor of Mr Crozzoletto’s boat, where the two men began to wrestle.  Mr Crozzoletto, who was considerably heavier, (on the appellant’s estimate, by about 50 kilograms), was on top of the appellant punching, kicking and scratching, and had hold of his shirt.

[13] The appellant said that he regarded himself as in a fight for his life.  He ripped his shirt off and managed to get up.  His mobile phone was in the shirt pocket, although he did not register that fact at the time.  As he was getting to his feet he threw punches at Mr Crozzoletto, some of which connected.  The appellant said that once he had struck Mr Crozzoletto a couple of times, the latter “surrendered”.  The physical altercation ended at that point, although the appellant told Mr Crozzoletto he was a “thieving bastard” who should be thrown over the side.

[14] Mr Crozzoletto’s boat motor was still in gear and revving, but the dinghy was jammed in the mud.  The appellant’s boat, still out of gear, had drifted a couple of metres away.  The appellant used the crab hook to pull his boat back.  When it was close enough, he picked up his crab pot and jumped into it, at the same time throwing the hook behind his back; he was unsure whether it had landed in Mr Crozzoletto’s boat or in the water.  At no stage had he bent the crab hook.  The appellant travelled up the creek to where his crab pot had been and saw that the string which had been holding it had been cut.  He replaced the crab pot.  At that point, realising his phone was missing, he motored out of the creek and into the river where he saw Mr Crozzoletto.  He attempted to catch up with him, but Mr Crozzoletto accelerated away, yelling “I got you now you cunt, you’re fucked”.

[15] After the altercation, the appellant said, he was left with bruising, a bad headache and skin missing from his shins, the result of being pulled across the gunwales of his own boat and Mr Crozzoletto’s.  His only previous encounter with Mr Crozzoletto had occurred about two and a half months earlier, when he saw him reversing away from a hole where one of his, the appellant’s, crab pots was located.  Mr Crozzoletto threw a crab pot over the side of his boat, which the appellant retrieved; it was one of his.  There had been no other incident with Mr Crozzoletto and no police officer or Fisheries officer had ever approached him about any incident involving Mr Crozzoletto.  Mr Crozzoletto’s boat was much smaller than his.  If he had rammed Mr Crozzoletto’s dinghy at speed, his boat would have gone straight over it.  Had Mr Crozzoletto been sitting in his dinghy’s rear seat, the bow of the appellant’s boat would have struck him before the boats themselves actually touched.

[16] Counsel for the prosecution cross-examined the appellant on a basis inconsistent with Mr Crozzoletto’s evidence.  She put it to the appellant that he was angry because Mr Crozzoletto had taken his crab pot, which he saw in the latter’s boat, and that this was not the first time he had caught Mr Crozzoletto stealing his pots.  Counsel suggested that he was so angry as a result that he got into Mr Crozzoletto’s boat and hit him, without any blow or punch delivered by Mr Crozzoletto.  She did not challenge the appellant’s evidence that he had himself suffered some minor injuries.

Other witnesses

[17] The Crown called two police officers, one who had taken the photographs of Mr Crozzoletto’s injuries and of his boat and the other the investigating officer who had taken Mr Crozzoletto’s complaint.  The photographer confirmed that he had taken general shots of the boat but had also looked for any damage which he could photograph.  Presumably by agreement, the investigating officer gave evidence that he had been unable to find any record of police visiting the appellant’s house about any incident involving him and Mr Crozzoletto.  He had enquired of the senior officer from the local Fisheries and Boating Patrol, who confirmed that they similarly had not visited the appellant.

[18] The appellant’s wife gave evidence that when he returned home on 24 April 2012 he had skin missing from his shins, abrasions on the top of his back, marks on his face and a bump on the crown of his head.  Another fisherman who had been in the appellant’s company that evening confirmed that he had seen similar injuries.

[19] Two other fishermen, Mr Fletcher and Mr Winstone, also gave evidence for the appellant.  Mr Fletcher said that on 24 April 2012, a man he did not know approached him in an aluminium dinghy as he was crabbing in his own boat.  That person was yelling “Barrett’s a dead man, Barrett’s just started a war”.  He saw that the man had injuries: cuts over each eye, swelling around the face and a long scratch on the inside of his leg.  He identified himself as “Crozzo” and said of his injuries “Look what he has done to me”.  He told Mr Fletcher he had been getting a camera out of a tree in an inlet when he was pinned by another boat.

[20] According to Mr Fletcher, Mr Crozzoletto said that he had tried to hit the appellant with a small black alloy baseball bat, and showed him such a bat.  He then informed Mr Fletcher that he was “half-unconscious” at the time, and did not really remember much more.  Mr Crozzoletto had said, though, that the appellant might lose his fishing licence entitlements because of the incident and that an ambulance and police would be waiting for him at the boat ramp.

[21] Mr Winstone knew both the appellant and Mr Crozzoletto.  On the morning of 24 April 2012, he saw that he had a missed call from Mr Crozzoletto on his mobile telephone.  He returned the call: Mr Crozzoletto informed him that he had had a “run-in” with the appellant and had telephoned him because he had been “belted up”, and needed help to get back to the boat ramp.  Mr Winstone arranged to meet Mr Crozzoletto in his boat, but was unable to find him.  Later that day, however, they had another telephone conversation in which Mr Crozzoletto said that he had been moving his surveillance camera when the appellant pulled up alongside him in his boat.  The appellant had got into Mr Crozzoletto’s boat and started throwing his stuff around.  Mr Crozzoletto said he had responded by hitting the appellant across the head with an oar.  The appellant’s reaction was to “[go] ballistic”.

[22] Mr Crozzoletto rang Mr Winstone again later that day and said that he had managed to get himself to the boat ramp where the ambulance was waiting for him.  He said that he had the appellant’s phone and that the latter was “fucked”.  Mr Winstone said that Mr Crozzoletto had spoken to him a couple of days later about the statement that he was preparing concerning the matter, reading it out to him.  He noticed that there was no mention in the statement about Mr Crozzoletto’s hitting the appellant with the oar.  On the other hand, Mr Crozzoletto had referred to a ramming incident which he had not mentioned in the earlier conversation.

[23] Mr Winstone said that before giving evidence, he had been waiting outside the courtroom behind a glass door when he heard a knocking sound behind him.  He turned to see Mr Crozzoletto on the other side of the door pointing at him, moving his finger and shaking his head.

The addresses and summing up

[24] Defence counsel put to the jury the reasons they should prefer the appellant’s evidence to Mr Crozzoletto’s.  He argued that the prosecution had not ruled out self-defence: the jury should accept that the appellant had delivered three punches, a reasonable response in circumstances where he feared injury.  The prosecutor submitted that it was not necessary that the jury accept all parts of Mr Crozzoletto’s evidence.  They should conclude, however, that the appellant was angry and was the aggressor, so that self-defence was excluded.

[25] The trial judge left self-defence to the jury under s 271(1) of the Criminal Code on the basis of the appellant’s evidence that he was defending himself against assault by Mr Crozzoletto.  His Honour outlined the four elements of the defence under that sub-section: that there must have been an unlawful assault on the appellant; that he must not have provoked it; that the force used must have been reasonably necessary to make effectual defence; and that the force used must not have been intended and must not have been such as to be likely to cause death or grievous bodily harm.  After dealing with those issues, he elaborated:

“The fourth matter is this:  whether the force the defendant used was not intended and was not such it was likely to cause death or grievous bodily harm – as I said, grievous bodily harm means any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health.

The fact that the force used here did cause grievous bodily harm is not the point.  That doesn’t answer the question for you.  The question is whether it was likely to happen in all the circumstances.  What is required is a real or substantial likelihood…”

The sentencing judge did not raise s 271(2), and was not asked to do so.

Submissions for the appellant

[26] Counsel for the appellant contended that Mr Crozzoletto’s credibility was so damaged that no jury, acting reasonably, could rely on his evidence so as to be satisfied beyond reasonable doubt of the appellant’s guilt.  The motive for the alleged attack was central to Mr Crozzoletto’s credibility.  The police officer’s evidence showed his claim to have made a complaint to police and Fisheries which led to a police visit to the appellant to be false.  Secondly, Mr Crozzoletto’s boat had no visible damage from the incident.  The appellant’s evidence that his boat was much bigger and would, if it hit the dinghy side-on while travelling at speed, have significantly damaged it, and, indeed, would have struck Mr Crozzoletto himself, was not challenged in cross-examination.

[27] Mr Winstone’s evidence as to what Mr Crozzoletto had told him supported the appellant’s evidence about the use of the oar.  The unchallenged evidence of the appellant’s injuries was inconsistent with Mr Crozzoletto’s version of the event.  Mr Crozzoletto’s claim that the appellant had bent a crab hook over his knee was not to be found in his statements and was denied by the appellant; that denial was unchallenged.  The Crown prosecutor had effectively abandoned any attempt to rely on Mr Crozzoletto’s evidence about how the incident took place, removing the evidentiary basis for the Crown case.

[28] As to the proposition that the jury could have convicted on the appellant’s own evidence, if they were satisfied that he used force which was beyond what was reasonably necessary, or more particularly, was likely to cause grievous bodily harm, the appellant argued that there was no medical evidence to support a finding that the punches delivered were such as were likely to have that result.

Submissions for the respondent

[29] For the respondent, it was contended that the police officer’s evidence did not necessarily require rejection of Mr Crozzoletto’s account.  The fact that police had no record of the visit to the appellant’s house did not mean that it had not occurred.  In any event, although on Mr Crozzoletto’s account the police “informant” had told him that the police had gone to the appellant’s house and were trying to sort the problem out, it had not been asserted that they had actually spoken to the appellant.

[30] The jury were properly placed to consider the significance of any inconsistencies in Mr Crozzoletto’s evidence.  They were entitled to accept parts of what Mr Crozzoletto said and reject other parts.  They might have regarded the evidence as to the bending of the crab hook as immaterial.

[31] Mr Crozzoletto had given evidence of trying to get the appellant off him, which could account for the appellant’s minor injuries.  There was supporting evidence: the extent of his injuries, the fact that the fight took place in his boat, the finding of the appellant’s mobile phone in it and the broken oar.  If the jury believed Mr Crozzoletto as to essential matters there was evidence to support the conviction.  The Crown prosecutor had put the critical parts of his evidence to the appellant: that the appellant had struck him and that Mr Crozzoletto had not hit or threatened him.

[32] There was an alternative route to conviction in any event: that the jury might have accepted the appellant’s account, but considered that the level of injuries sustained by Mr Crozzoletto was such that it could be satisfied the force used was excessive.  The members of the jury were entitled to use their own common sense to determine that a significant degree of force must have been involved in fracturing his eye socket.

Whether the complainant’s evidence could form the basis for conviction

[33] The most compelling point in support of the appellant’s argument is that the photographs of Mr Crozzoletto’s dinghy do not indicate any damage consistent with its having been struck by the appellant’s larger boat travelling at “near maximum” speed.  Although Mr Crozzoletto pointed to what he said was the caving in of the boat’s right side in the photographs, there is simply nothing of the sort to be seen.  The marks he identified on the left gunwale as caused in the later ramming are three small spots, conceivably chips in the aluminium.  Whatever they are, they are not of a size or in a position consistent with being the product of a ramming.

[34] The absence of damage consistent with the incident’s having happened as Mr Crozzoletto described it casts serious doubt over his evidence.  Indeed, the prosecutor at trial seems to have taken that view, preferring implicitly to accept the appellant’s account of the altercation’s having commenced when he pulled up beside Mr Crozzoletto’s boat and saw his crab pot in it.  Nor did she challenge other pieces of defence evidence which, if accepted, showed aspects of Mr Crozzoletto’s evidence to be unreliable: the appellant’s version of his previous encounter with Mr Crozzoletto and his denial of bending the crab hook; the statements to Mr Fletcher and Mr Winstone to the effect that he was “fucked” or “dead” and likely to lose his fishing licence, which Mr Crozzoletto denied making.

[35] Importantly, another aspect of Mr Winstone’s evidence which went uncontested was Mr Crozzoletto’s informing him that he commenced the assault with the oar, which was consistent with the appellant’s account of how the altercation began.  And as to the results of the previous encounter between the two men, it seems improbable had Fisheries or the police had any occasion to visit the appellant  that the investigating officer, having been asked to make enquiries, was unable to find any record of that having occurred.  The absence of any such record called into question Mr Crozzoletto’s evidence that the appellant had expressed his motive as revenge.

[36] In light of those matters, it is impossible to see how the jury could have been satisfied that Mr Crozzoletto’s version of events was correct.  This was a case, in my view, in which the complainant’s evidence was implausible for reasons not explicable by the manner in which it was given and must have given rise to a reasonable doubt about the accuracy of his account.[1]

Self-defence

[37] Although the jury acting reasonably could not have accepted Mr Crozzoletto as a reliable witness so as to be satisfied on his evidence of the commission of the offence, it nonetheless remained necessary for them to consider whether the grievous bodily harm the appellant admitted he had suffered was inflicted in self-defence.  Section 271 of the Criminal Code provides:

271Self-defence against unprovoked assault

(1)When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

(2)If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person can not otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.

[38] It is entirely possible that the jury convicted on the appellant’s own account because they concluded from the evidence of Mr Crozzoletto’s injuries either that he had used more force than was reasonably necessary to defend himself or that the force used was likely to cause grievous bodily harm.  Although the appellant argued that in the absence of medical evidence that conclusion could not be reached, counsel for the respondent was correct in submitting that the jury would be entitled to use its common sense, and the obvious fact of the level of the damage done, to infer that the blows were of those proportions.

[39] There is, however, cause for concern in the fact that, as observed at the beginning of this judgment, the focus during the trial was on whether Mr Crozzoletto was the aggressor; that is to say whether the first two elements of s271(1) were made out.  Little attention was given to the question of the force used in response and particularly whether it was such as was likely to cause grievous bodily harm.  Accordingly the directions were scant on what would, in hindsight, seem to be a critical factor.

[40] Of even greater concern, if the jury did convict on this limited basis, is that s271(2) was not left for their consideration.  It must be emphasised that counsel did not ask the judge to do so, apparently taking the view that it would be to the appellant’s disadvantage to have directions given on both parts of the section.  Nonetheless, if there were material raising the defence under the second part of the provision, it was the trial judge’s responsibility to direct on it, regardless of counsel’s tactical approach.[2]

[41] In circumstances where the appellant had described Mr Crozzoletto attacking him with an oar and finding himself lying on his back in the bottom of the boat with Mr Crozzoletto punching him, it seems entirely possible that the jury might have accepted that he himself was subject to an assault likely to cause a reasonable apprehension of grievous bodily harm and a consequent belief that it was necessary for him to respond as he did.  In that case, the fact that the force used was likely to, and did, cause grievous bodily harm would not have precluded self-defence being made out.  The failure to direct on the defence under s 271(2) has deprived the appellant of a real chance of acquittal.

Conclusion

[42] In summary, the jury could not have been satisfied beyond reasonable doubt of the appellant’s guilt on the evidence of Mr Crozzoletto.  They could, however, have found the appellant culpable for the grievous bodily harm inflicted on Mr Crozzoletto if they were satisfied that self-defence was not available.  The difficulty is that the issue of self-defence was not left to the jury with sufficiently full instructions to ensure that they were properly able to consider that question.

[43] In my view, a miscarriage of justice has resulted, requiring that the appeal be allowed, that the conviction be set aside and that a retrial be ordered.

[44] BODDICE J:  I have read the reasons for judgment of Holmes JA.  I agree with those reasons, and the proposed orders.

[45] THOMAS J:  I have also read, and agree with, the reasons of Holmes JA, and with the orders proposed by her Honour.