R v Speakman[2024] QCA 164

SUPREME COURT OF QUEENSLAND

1. [1]
   BODDICE JA:  I agree with North J.
2. [2]
   NORTH J:  Following a trial in the District Court at Cairns the appellant was convicted by the jury of one count of grievous bodily harm.  He sought an extension of time within which to appeal against the conviction.
3. [3]
   Following the hearing of his appeal^[1] the Court ordered:

3. 1.
   The application for time within which to appeal granted;

3. 2.
   Appeal against conviction allowed;

3. 3.
   Conviction below set aside;

3. 4.
   A new trial is ordered;

3. 5.
   Reasons to follow.^[2]

4. [4]
   The following are my reasons for joining in the orders made.
5. [5]
   The sole ground of appeal agitated at the hearing was that a miscarriage of justice occurred^[3] because the jury was not directed to consider that a defence under s 271(1) of the Code.

The Evidence

6. [6]
   Both the appellant and complainant resided at a retirement village in Cairns and were known to each other.  They were both 71 years old at the time of the alleged offence.  It was admitted during the trial that the complainant sustained an injury which amounted to grievous bodily harm and evidence was given by a paramedic and a forensic medical officer concerning the complainant’s injuries.  The complainant gave evidence that at around 5 pm on the day in question he took his rubbish out from the unit, he heard people talking in the vegetable garden and noticed the appellant.  The appellant walked towards the complainant who gave evidence that the appellant appeared aggressive and affected by alcohol.  He said the appellant swayed and slurred his speech.  The appellant asked the complainant if he wanted to fight and referred to him as “an old cunt”.  The complainant turned to leave and the appellant kicked him in the groin and the complainant stumbled backwards.  The appellant punched him several times to the mouth and cheek on the left side, the two men were facing when the punches occurred.  The complainant fell to the ground and as he attempted to stand up the appellant kicked him multiple times to his ribs on the right side.  He also struck him in the head.  The complainant said that he was on his back and he struggled to breath, he told the appellant “I’ve had enough. You’re going to kill me”.  The appellant stepped back but then kicked the complainant again and eventually the appellant walked about five metres away but as the complainant tried to stand up the appellant returned kicked him several times to the ribs and knocked him to the ground.  The appellant walked away and left the complainant lying on the ground.  At some point during the altercation the appellant kneed the complainant to his ribs on the right hand side and rubbed his head into the ground.  Each time the complainant tried to leave the appellant blocked him or grabbed him by his shirt and continued to assault him.
7. [7]
   The appellant gave evidence.  He said that he’d consumed several alcoholic drinks at a Leagues Club between about 2 pm and 6 pm and he was drunk at the time he began his journey home.  He gave evidence that as he neared a generator at the retirement complex he was suddenly grabbed by the hair from behind by the complainant.  The complainant grabbed him by the hair with his right hand and punched him to the side of his left eye multiple times with his left hand.  The appellant said that he pulled back, faced the complainant and saw that he had some of his hair in his hand.  The appellant called the complainant a “bastard” and he tried to punch the complainant but missed.  The complainant landed two further punches and grabbed the appellant in a bear hug.  The appellant said that he thought he was “a gonna” and he lifted his knee and hit the complainant in the groin and struck him with his left hand to the face at the same time.  As a consequence they fell to the ground with the appellant on top of the complainant.  The ground where they fell had asphalt surface with a cement edge.  The appellant said that the complainant’s ribs may have hit the cement edge when the two fell.  As the appellant attempted to get up he fell for a second time on the complainant because he had become entangled in the complainant’s legs.  The appellant was unable to put his hands out and the two head butted each other when he fell the second time.  After the second fall he rolled off and stood up.  The appellant told the complainant to get up as he “was going to have a go.”  The complainant told him to “fuck off” so the appellant left.
8. [8]
   Other residents of the retirement village gave evidence of their observations.  Mr Kubecki said that he was woken by an angry voice which he recognised as the complainant’s.  He heard the complainant say “hey you. Fuck off you cunt.”  When he looked outside, he saw the complainant approach the appellant, the pair came face to face and a scuffle ensued.  Blows were thrown by both however none connected.  Mr Kubecki said that the appellant shoved the complainant causing him to fall to the ground and then heard grunts, snorts, thumping and whacking sounds.  The appellant remained on his feet the entire time.  Towards the end of the altercation Mr Kubecki heard the complainant call for help and the appellant say “what a girl” as he laughed and walked away.  Another witness, Mr Broughton, said that the complainant attended his unit for assistance.  He noticed that the complainant had blood and cuts to his face and was struggling to breath, so he helped him to his own unit and called the ambulance.  Another resident, Mr Evans, stated the appellant attended his unit.  The appellant had a black eye and was bleeding from his arms and legs.

The rival submissions

9. [9]
   Counsel for the appellant submitted that on the evidence it was open to the jury to find that the complainant assaulted the appellant first, that the complainant’s assault was not provoked by the appellant, that the appellant did not think that the complainant’s assault would cause grievous bodily harm or death and that the appellant responded with force but not such as was intended or likely to cause grievous bodily harm.^[4]  In these circumstances, counsel submitted that the appellant had a defence under s 271(1) which was not left to the jury.  Ms Sheppard for the respondent submitted that the failure of the learned trial judge to instruct the jury consistently with s 271(1) was in accordance with the appellant’s trial counsel’s case theory and that, in any event, the defence was not open and that the real issue concerned s 23(1)(a) which was left to the jury.

Discussion

10. [10]
    The sole ground of appeal is that the absence of direction concerning self defence under s 271(1) of the Code gave rise to a miscarriage of justice within s 668E(1) of the Code.  In order to sustain this ground it must be demonstrated that by reason of the failure to direct the jury to consider this defence that there is “a reasonable possibility” that the consideration of the defence would have affected the verdict resulting in a verdict of acquittal.^[5]
11. [11]
    The learned trial judge prepared a question trail for the existence of the jury.  It was the subject of some discussion after the appellant gave evidence and before addresses.  At first it appears that, with the concurrence of defence counsel, his Honour was intending to give a direction upon s 271(1) to the jury.  But, for reasons that remain obscure his Honour decided not to leave s 271(1) to the jury.  Defence counsel embraced this course.^[6]  Curiously although his Honour did not give the jury a direction concerning s 271(1) a question trail left with the jury made reference to s 271(1).
12. [12]
    In her written outline and oral submissions at the hearing of the appeal Ms Sheppard drew attention to defence counsel’s disavowal of the defence based on s 271(1).  In R v LBE^[7] this court considered such a circumstance:^[8]

3. “[57]
   Sixthly, it is not enough to simply utter the words “miscarriage of justice” without demonstrating that it was reasonably possible that the alleged act or omission may have affected the verdict.

3. [58]
   In R v SDE, this Court adopted what was said by the High Court in Dhanhoa v The Queen, concerning what must be established to make out a miscarriage of justice:

3. “[22]
   The ground of appeal properly acknowledges that in the case of an alleged failure of a trial judge to give a direction, where no such direction was sought at trial, the appeal can only succeed if the failure to give the direction has resulted in a miscarriage of justice. The appellant must demonstrate ‘…that the direction should have been given and it is ‘reasonably possible’ that the failure to direct the jury ‘may have affected the verdict’.”

3. [59]
   In Baini v The Queen, Gageler J (as his Honour then was) referred to the miscarriage of justice ground and adopted what was said in Dhanhoa, saying:

3. “[54]
   The same approach was adopted by courts of criminal appeal in Australia. The words ‘on any ground’ in para (c) of the common form criminal appeal statute ‘do not postulate the demonstration of error’ but rather ‘simply require that ‘something occurred or did not occur in the trial’. The thing that occurred or did not occur in the trial may be an ‘irregularity’ falling short of a failure to observe some condition essential to a satisfactory trial – such as a misdirection or non-direction of fact or what is shown to have been at the time of exercise or in the light of developments at the trial a wrong but legally available exercise of judicial discretion resulting in the admission of evidence prejudicial to the appellant. In those circumstances, it has been accepted that the criterion in para (c) will be made out only where the appellant is able to establish a causal connection between the irregularity and the conviction in the sense that, but for the irregularity, the result might have been different and the appellant might have been acquitted. Before Weiss, it also appears to have been accepted that, by establishing that the irregularity might have affected the conviction that actually occurred, the appellant would succeed not only in making out the criterion in para (c) but also in negating the application of the proviso. In Simic v The Queen, for example, the irregularity that occurred in the trial was described as ‘a misstatement of an important matter of fact’. After making clear that the onus of establishing a miscarriage of justice lay with the appellant, the Court said:

3. ‘Of course minor inaccuracies and omissions will not be likely to make it possible that the verdict was affected. Bare and remote possibilities may be disregarded, but if it is considered reasonably possible that the misstatement may have affected the verdict and if the jury might reasonably have acquitted the appellant if the misstatement had not been made, there will have been a miscarriage of justice, and a substantial one. In considering a question of this kind, the appellate court must have regard to the gravity of the misstatement as well as to the strength of the case against the appellant.’”

3. [60]
   The applicable test for whether a miscarriage of justice has occurred was recently restated by the High Court in HCF v The Queen:

3. “[2]
   Beech-Jones CJ at CL recently provided a convenient summary concerning those errors or irregularities that will amount to a miscarriage of justice in observing that, if the error or irregularity ‘is properly characterised as a ‘failure to observe the requirements of the criminal process in a fundamental respect’ then it would follow that the conviction would not stand regardless of any assessment of its potential effect on the trial’, but otherwise there is no miscarriage unless the error or irregularity is ‘prejudicial in the sense that there was a ‘real chance’ that it affected the jury’s verdict … or ‘realistically [could] have affected the verdict of guilt’ … or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial”.”

3. (Emphasis in original)

13. [13]
    The account of the fight between the appellant and the complainant given by the appellant^[9] raised for the consideration by the jury the defence afforded by s 23(1)(a) but that does not foreclose a consideration of self defence established by s 271(1).  On the appellant’s account it would be open to a jury to conclude that he did not provoke the assault by the complainant and that such force that he used was not intended to cause grievous bodily harm.  Concerning the likelihood of grievous bodily harm in the circumstances the appellant spoke of it is relevant to note the evidence given by the forensic medical specialist Dr Mahoney:^[10]

“If I could ask you to accept that there was a struggle between Mr Wayne Campbell and Mr Speakman, a second man. During the struggle, they both fell to the ground. Mr Speakman fell on top of the complainant, Wayne Campbell. They both fell onto a bitumised or concrete surface. Mr Speakman fell on top of Mr Campbell. As he fell on top of Mr Campbell, he had his knee out, which caused that to come into impact as they fell onto the ground together. It’s possible, is it not, that if that occurred on a number of different occasions, that is, Mr Speakman falling on top of Wayne Campbell with his knee jutting out as he fell on top of him, that that can be consistent with the injuries that you found? --- That could be a – that’s a possible explanation for the injuries if you’ve got multiple – you got impacts – blunt impacts over multiple areas of the chest on several occasions and you’ve also got – with their falling, you’ve also got the impact with the ground as well.”

The relevant inquiry in the circumstances of a defence under s 271(1) is the likelihood of grievous bodily harm^[11] not its occurrence.  Dr Mahoney spoke of a possibility.  In any event the likelihood of grievous bodily harm is a question for a jury.  In my view s 271(1) should have been left to the jury.  I cannot detect any forensic reason for not instructing the jury to consider self defence within s 271(1).  An assessment of the evidence raises the real chance that a jury properly instructed would find the appellant not guilty by reason of self-defence.  The failure to leave self defence under s 271(1) was an error productive of a miscarriage of justice.  It was ‘prejudicial in the sense that it … ‘realistically [could] have affected the verdict of guilt’ … or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’.^[12]

14. [14]
    HENRY J:  I agree with North J.