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R v BDK QCA 48
SUPREME COURT OF QUEENSLAND
R v BDK  QCA 48
CA No 5 of 2019
DC No 675 of 2018
Court of Appeal
Appeal against Conviction & Sentence
District Court at Cairns – Date of Conviction & Sentence: 28 November 2018 (Clare SC DCJ)
20 March 2020
2 March 2020
Sofronoff P and Philippides and McMurdo JJA
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of two offences against his long term, on and off partner, being strangulation in a domestic setting (count 1) and assault occasioning bodily harm (count 2), with each offence being a domestic violence offence – whether it was open to the jury, in all the circumstances to find beyond reasonable doubt, that the appellant was guilty of counts 1 and 2 – whether the verdicts of guilty on counts 1 and 2 were unreasonable and insupportable having regard to the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to three years’ imprisonment for count 1 and 18 months’ imprisonment for count 2 – where the appellant also pleaded guilty to six summary offences for which he was convicted but not further punished (although those convictions were taken into account in sentencing for the other counts) – where the domestic violence offences were of a serious nature – whether the sentences imposed were manifestly excessive in all the circumstances
M v The Queen (1994) 181 CLR 487;  HCA 63, cited
The appellant/applicant appeared on his own behalf
C Cook for the respondent
The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
- SOFRONOFF P: I agree with Philippides JA.
- PHILIPPIDES JA: Background On 28 November 2018, after a trial by jury, the appellant was convicted of two offences committed against his long term, on and off partner, Ms LN, being:
- (a)strangulation in a domestic setting on 2 January 2018 (the offence being a domestic violence offence) for which he was sentenced to three years’ imprisonment (count 1); and
- (b)assault occasioning bodily harm on 2 February 2018, (the offence also being a domestic violence offence), for which he was sentenced to 18 months’ imprisonment (count 2).
- At the commencement of his trial, the appellant pleaded guilty to one count of wilful damage on 2 February 2018 (being a domestic violence offence) for which he was sentenced to six months’ imprisonment (count 3). In addition, at sentence, the appellant pleaded guilty to six summary offences for which he was convicted but not further punished (although those convictions were taken into account in sentencing for the other counts).
- The terms of imprisonment were imposed concurrently. The period of 47 days of presentence custody that could not be made the subject of a declaration was taken into account and a parole release date was set at 27 May 2020.
- The appellant appeals his convictions on counts 1 and 2 and seeks leave to appeal against his sentence. A Notice of Appeal, dated 7 January 2019, specified two grounds of appeal, being “evidence complete missed” and “misrepresented”. The appellant sought leave to file an amended Notice of Appeal, dated 6 February 2020, containing two revised grounds of appeal, that:
- (a)the verdict of the jury should be set aside because it was unreasonable and could not be supported having regard to the evidence; and
- (b)the trial judge made a wrong decision on a question of law.
- The appellant did not advance any grounds for the appeal against sentence in either notice of appeal.
- Leave to file the second Notice of Appeal was not opposed by the respondent and the appeal is addressed on that basis.
- The first incident of domestic violence offending occurred on 2 January 2018 when the appellant went to the complainant’s house. The complainant’s friend, Ms MH, was present at the time.
- The complainant’s evidence was that she and the appellant began to argue and there was some pushing. The complainant said she was attempting to push the appellant back into his car, telling him to leave. She said that was when the appellant grabbed her and pushed her onto the road and knelt down over her, held her with one hand, and squeezed her neck with his other hand. She was kicking and screaming. He pressed his thumb onto the complainant’s windpipe. She was trying to tell the appellant she could not breathe. She managed to kick him in the groin to get him off her. The complainant’s throat was sore and she subsequently vomited. She said that she felt as though she had swallowed razor blades.
- Ms MH gave evidence that she was present in the house when she saw the appellant arrive. He appeared angry. She went inside with the complainant’s children. She could hear arguing and yelling. She saw the appellant grab the complainant’s shirt and throw her to the ground. He then stood over the complainant and was pinning her to the ground. He had hands on her chest. She could not see specifically where the appellant’s hands were but they were on the inside of her hands which were on his shoulders. She told the appellant to get off the complainant and he jumped off.
- The following day, the complainant attended on her general practitioner, Dr Liley. The complainant told him that her upper throat and neck were sore and that that occurred after the events the previous day and described being strangled. Dr Liley gave evidence of examining that the complainant and that she had trouble speaking and her voice was hoarse. He considered it unlikely that the hoarse voice was caused by vomiting. However, there was tenderness in the muscles and the skin at the top of her throat, larynx and the muscles on the side of her neck. No sign of a throat infection was detected. Dr Liley opined that the tenderness was consistent with strangulation.
- Dr McCormick, a forensic medicine specialist, gave evidence that lack of evidence of physical injury did not necessarily indicate that strangulation had not taken place. She said that vomiting, a raspy voice, sore throat and red skin for a period could all indicate that strangulation had occurred.
- Count 2 concerned an occasion about a month after count 1 when the appellant was again at the complainant’s house. The appellant and the complainant were in the complainant’s bedroom. She became upset and told him to leave. The appellant then pushed the complainant onto a bed, knelt over her and pushed his knee into her chest. The complainant told the appellant that he was hurting her and asked him to get off her. The appellant then pushed his knee into her breast. She was able to get up but the appellant pushed her again and she hit her head on the corner of a wooden bed frame. The complainant left the room and the appellant followed her and pushed her again, causing her to fall onto a couch.
- The complainant saw Dr Hill on 3 February 2018 and told him what had happened. She reported pain in the left eye and in her mid-lower chest. Dr Hill observed that the complainant had tenderness in the left eye and in her mid to lower chest and diagnosed a muscular skeletal injury to the ribs.
- Count 3 concerned conduct by the appellant later on 2 February 2018, when he returned to the complainant’s house and was refused entry. The complainant said he was shouting and that she locked all the doors and then closed all the windows. As she was closing the kitchen window, the appellant walked past and punched the window, causing the glass to shatter.
- The appellant did not give nor call evidence at trial. The defence case focussed on challenging the reliability and credibility of the complainant, including alleging that she drank daily and mixed her intake of alcohol with prescription drugs. It was put to her that she had motives to lie arising out of concern about losing custody of her children. In relation to count 1, the defence also contended that the complainant’s version of events was unreliable and, in fact, it was the complainant who had assaulted the appellant, who was forced to push her to the ground through a “controlled push”. In relation to count 2, it was put to the complainant that she had been yelling at the appellant in the bedroom and that he had gathered some belongings and left and not assaulted her.
Appeal against conviction
- Approaching the first ground of appeal as alleging a miscarriage of justice on the basis that the verdicts of the jury on counts 1 and 2 are unreasonable and could not be supported having regard to the evidence, the relevant principles are stated in M v The Queen:
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, 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 which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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.”
- The task for this Court, put simply, is to “determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged”.
- In relation to ground 1, the appellant (who appeared for himself) argued that the complainant’s uncertainty as to when counts 1 and 2 occurred ought to have given rise to a reasonable doubt as to his guilt. The appellant also referred to the evidence of Dr Liley and his acknowledgement that a hoarse voice could also be caused by yelling and vomiting. The appellant also argued that Dr Hill had not been qualified as an expert. Additionally, the doctors who the complainant consulted saw no evidence of assault on 2 February 2018. These arguments cannot be accepted.
- In relation to the reliability and credibility of the complainant, the jury had the particular advantage of hearing the complainant give evidence. The complainant’s evidence was given in a clear, direct and unambiguous manner as is apparent from the following extract of her evidence:
“… he’s just held me down with one hand with my hands across my chest and the other one, he – he was just – yeah, he was holding one hand on chest and the other hand was up on my neck but his fingers weren’t around my neck. He was just putting pressure with his thumb on my windpipe.”
- There is no reason to conclude that it was not open to the jury to accept her account of the facts, beyond reasonable doubt. On the contrary, the evidence of Ms MH supported significant aspects of the complainant’s evidence, as did the medical evidence.
- In relation to that medical evidence, the following may be observed. The qualifications of Dr Hill were not put in issue at trial and there is no basis to doubt that he was qualified to give the opinions he did at trial. Further, the absence of marks on the complainant’s neck is not inconsistent with the assault having occurred as Dr MacCormick explained. Dr Liley’s evidence, while accepting that it was possible for yelling and vomiting to result in a hoarse voice, was that yelling and vomiting would not also cause throat pain, with which the complainant also presented.
- There is nothing to indicate that the evidence of the prosecution witnesses could not have been regarded as truthful. The matters that the appellant now raises, including suggesting the complainant was motivated to fabricate her allegations, were raised at trial and were matters for the jury to consider. The appellant has not provided sufficient support to his ground of appeal that the jury’s verdict was unreasonable or otherwise not open on the evidence. Rather, there was an ample basis for the jury to be satisfied of guilt beyond reasonable doubt.
- As to the assertion of error of law by the trial judge, ground 2 does not indicate on what basis this error is alleged to have been made. The trial judge gave clear, fulsome and conventional directions to the jury. In relation to count 1, her Honour directed the jury that the prosecution was required to prove beyond reasonable doubt that the appellant strangled the complainant, that she did not consent to that act, that the strangulation was unlawful and that, at the relevant time, the parties were in a domestic relationship. Similarly, as to count 2, the jury was directed that the prosecution was required to prove beyond reasonable doubt that the appellant assaulted the complainant by applying force to her without her consent, that the assault was unlawful and caused the complainant bodily harm. The trial judge’s directions cannot give rise to any justifiable cause for complaint.
- The appeal against conviction should therefore be dismissed.
Appeal against sentence
- The appellant did not make any submissions in support of the complaint concerning the sentence imposed. The complaint concerning sentence may be understood as one that the sentence was manifestly excessive.
- It is to be observed that the offences were of a serious nature. There is no basis for contending that her Honour’s global sentence proceeded on the basis of any error of principle, nor that the sentences imposed were outside the appropriate exercise of the sentencing discretion in relation to the serious offences in question.
- Accordingly, I would refuse the application for leave to appeal against sentence.
- McMURDO JA: I agree with Philippides JA.
- Published Case Name:
R v BDK
- Shortened Case Name:
R v BDK
 QCA 48
Sofronoff P, Philippides JA, McMurdo JA
20 Mar 2020
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC675/18 (No Citation)||28 Nov 2018||Date of Conviction and Sentence (Clare SC DCJ).|
|Appeal Determined (QCA)|| QCA 48||20 Mar 2020||Appeal against conviction dismissed; application for leave to appeal against sentence refused: Sofronoff P and Philippides and McMurdo JJA.|