R v Grimson[2025] QCA 43

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Gotterson AJA and with the orders proposed by his Honour.
2. [2]
   GOTTERSON AJA:  The appellant, Andrew Robert Grimson, who is self-represented, was tried in the District Court at Southport on a single count, namely, that on 27 September 2021 at Surfers Paradise, he unlawfully assaulted the complainant, Tesfom Fetseme Hagos, and did him bodily harm in contravention of s 339(1) of the Criminal Code (Qld) (“the Code”).  The trial commenced on 5 October 2022 and concluded on the afternoon of the following day upon the delivery by the jury of a verdict of guilty.
3. [3]
   Judge Jackson KC who had presided over the trial, then proceeded to sentence.  His Honour ordered that the appellant be imprisoned for a period of nine months and fixed a parole release date at 20 January 2023.  A period of some 30 days pre-sentence custody was declared time served.  Thus, the appellant was required to serve one half of his sentence in custody.  A conviction was recorded.
4. [4]
   On 27 October 2022, the appellant filed a Form 26 Notice of Appeal^[1] to this Court by which he appeals against his conviction and applies for leave to appeal against his sentence.  This document which the appellant himself has drafted, lists as grounds of appeal a number of contentions which are essentially factual in nature and which are apparently directed at his conviction.  These grounds are not cast in terms of the grounds upon which this Court is to allow an appeal against conviction under s 668E(1) of the Code.  As to sentence, the stated ground of appeal in the appellant’s document is that it “is excessive”.

The circumstances of the offending as revealed by the evidence

5. [5]
   The complainant was born in East Africa and moved to Australia in 2015.  He gave evidence at the trial with the assistance of an interpreter.
6. [6]
   According to the complainant’s evidence-in-chief, he was working as a housekeeper for the Meriton Suites which are located in an apartment building at Surfers Paradise.  At about 9.15 am he knocked on the door of apartment 1803 on the 18^th floor and asked the male person who opened the door whether room service was required.  This person, whom he had never seen before, replied that it was not.^[2]
7. [7]
   After the end of his shift, and between 3.00 pm and 4.00 pm that afternoon, the complainant was in a small storeroom on the 18^th floor.  The same person entered the storeroom and asked the complainant who it was that had been knocking on his (the appellant’s) door.  The complainant replied that he had not seen anyone knocking on the door.  Later, the appellant asked the complainant in what direction an unnamed lady had gone.  The complainant said that he had not seen any lady.  The appellant thereupon punched him in the face.^[3]
8. [8]
   The blow to the complainant’s face split his lip.  An ambulance was called and he was taken to hospital.  The wound required stitches.
9. [9]
   Most of the incident was captured on the apartment building’s security CCTV footage, which was tendered,^[4] although not the blow itself.  The appellant is seen in the footage engaged in an exchange with the complainant just before the latter sustained his injury.  It was put to the complainant by defence counsel that he went to close the storeroom door, and that as he did so, he touched the appellant’s face with his hand.^[5]  It was further suggested that the appellant did not punch the complainant.^[6]  The complainant denied touching the appellant’s face^[7] and maintained that he was punched by the appellant.^[8]
10. [10]
    The Crown also called a police officer who attended upon the complainant on the day of the incident.  He confirmed the complainant’s injuries.  Photographs of the wound to the lip were taken and tendered in evidence.^[9]  The officer also spoke to the appellant on the day.  He observed a small abrasion-style cut to the middle of the appellant’s right index finger.^[10]  A photograph of that injury was taken and tendered.^[11]
11. [11]
    The defence called only one witness, the appellant.  His evidence-in-chief was consistent with the case put by defence counsel to the complainant.  He denied striking the complainant.^[12]  The appellant repeated his denial in cross-examination.^[13]
12. [12]
    The appellant described the circumstances which led to his confrontation with the complainant.  He said that he, his wife Tiffany, and their cats had been living in the apartment for several weeks.  He believed that someone had been stealing his money and cannabis during this period.^[14]  On the day in question, and prior to his encounter with the complainant, he had discovered an “almost supermodel-like … caramel coloured bloke … with long black hair, down to about his shoulders” in the apartment.^[15]  The man claimed to be room service however the appellant believed he had been stealing his “medical marijuana”.^[16]  They conversed.  The appellant thought that he and the man “were on the same page”.  The appellant also thought that the man was someone who would be amenable to a tip for not disclosing the presence of the cats in the apartment.^[17]
13. [13]
    According to the appellant, his wife Tiffany, who had witnessed the incident, became angry and disappeared.  He went into the corridor to look for her.  He believed she could have been abducted and held for ransom because she is “beautiful” and is “related to famous people”.^[18]
14. [14]
    Having gone into the corridor, the appellant then saw that the door to the storeroom was open.  He pushed it further open and saw the complainant who was not the same man that he had encountered in the apartment.  According to the appellant, the complainant “must’ve have been his co-accuser”.^[19]
15. [15]
    In his evidence-in-chief, the appellant said that when he went into the storeroom, “there was contact with [his] face”.^[20]  He repeated this assertion in cross-examination.^[21]  I shall refer to his elaboration of this assertion later in these reasons.

The hearing on 29 May 2024

16. [16]
    The appellant’s appeal and application were listed for hearing on 29 May 2024.  The appellant filed an Outline of Submissions, which he had drafted, on 8 May 2024.  In it he traversed a number of the factual contentions set out in his grounds of appeal but, in the course of so doing, criticised the conduct of his defence by his legal representatives.
17. [17]
    At the hearing, the appellant was informed by the Presiding Judge that if he wished to pursue his criticism, he would have to seek leave to file affidavit evidence in support of it.  The appellant indicated an interest in taking that step.  His Honour also raised a concern that the Court had as to whether the evidence relating to a prior contact with the appellant’s face fairly gave rise to a defence of self-defence such that it should have been the subject of directions to the jury for their consideration.  The concern touched upon the possibility of an unarticulated ground of appeal, namely, a miscarriage of justice arising from the failure to give such directions.
18. [18]
    The Court adjourned the hearing of the appeal and sentence application in order to give the appellant the opportunity to place his criticism in affidavit form and to reapply for Legal Aid.  In due course, both the appeal and sentence application were relisted for hearing on 20 March 2025.

The hearing on 20 March 2025

19. [19]
    The appellant had not prior to 20 March 2025 filed an application for leave to adduce affidavit evidence.  Nor had he filed an Amended Outline of Submissions.  The respondent had filed a Supplementary Outline of Submissions which deals with the self-defence issue.
20. [20]
    At the hearing on 20 March 2025, the appellant did not seek leave to amend his grounds of appeal.  He relied on the Outline of Submissions filed on 8 May 2024 and did not make additional oral submissions.

The grounds of appeal

21. [21]
    As I have noted, the factual contentions set out by the appellant as his grounds of appeal are not cast in terms of grounds on which this Court is to allow an appeal against conviction.  Except for one instance, neither the factual contentions as set out in the Form 26 nor the elaboration of them in the appellant’s Outline of Submissions allow for the implication from them of a potentially arguable, let alone viable, ground of appeal.  The exception is the conduct of the defence for the appellant in that Tiffany was not called as a witness.  The appellant has not sought to adduce necessary evidence in support of that contention notwithstanding the opportunity that he has had to do so during the adjournment.
22. [22]
    In these circumstances, I do not propose to address the factual contentions advanced by the appellant in his grounds of appeal.  I shall, however, consider whether the appellant does have available to him a viable ground of appeal based on self-defence.
23. [23]
    In opening the defence case, counsel referred to the touching as follows:

“[The] hand came into contact with my client’s face, and that he’ll say it wasn’t a very heavy touch…”^[22]

Then, in elaborating upon his evidence-in-chief concerning the touching, the appellant said:

“I’m not saying that he punched me, I’m not saying that he attacked me, because I don’t want any charges on him.  But there was contact with my face…”^[23]

24. [24]
    In cross-examination, the appellant said that it was as the complainant was pushing the door closed that the latter hit him in his face adding “he’s not meant to hit me, I don’t think”.^[24]  Later, he said that the complainant went to close the door with his right hand and it was with his left hand that the complainant “hit” him.^[25]  At one point, the appellant did say that he stepped backwards as a result of being hit.^[26]
25. [25]
    The appellant gave no description as to the force of the contact.  Nor did he give evidence of having sustained any injury to his face.  The CCTV footage did not record any contact with the appellant’s face.
26. [26]
    It is settled that subject to statutory provisions, the accused bears an evidential burden to raise a defence and, if discharged, the prosecution bears the legal burden of proving beyond reasonable doubt that the defence is negatived.  In order to establish that a criminal defence should be left to a trier of fact, the accused must identify evidence that raises a reasonable possibility that each of the elements of the defence exists.^[27]
27. [27]
    Section 271(1) of the Code states:

“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.”

28. [28]
    Thus, in order for self-defence to be left to the jury, an accused must identify evidence that the force he or she used was necessary to make effectual defence against the assault on him or her.
29. [29]
    The appellant’s evidence as opened and given in chief was of a touching to his face.  The appellant thought that it was accidental.  There was no evidence that it injured the appellant in any way; that it was accompanied with threatening language from the complainant; or that the appellant was concerned that it might be repeated.  Certainly there was no evidence from the appellant that it motivated him to react by punching the complainant in the face.  Indeed, he maintained throughout the trial that he did not punch the complainant.
30. [30]
    Even if the jury had accepted that the complainant’s left hand had come into contact with the appellant’s face, having regard to the factors referred to in the immediately preceding paragraph, it is not reasonably possible, in my view, that they would have considered that the force of the punch used by the appellant in response was reasonably necessary to make effectual defence to the facial touching.  I therefore conclude that the evidence did not fairly give rise to a defence under s 271(1) and that directions as to such a defence were not required.  Defence counsel had not asked for such directions.  It would not have been appropriate for him to have done so.  There was no resultant miscarriage of justice.

Sentence application

31. [31]
    The appellant has not advanced any submissions in support of his application for leave to appeal against sentence.  The application cannot succeed.  Moreover, the complaint that the sentence is “excessive” is not a viable ground of appeal against sentence.  Further, the sentence imposed was within the range for which defence counsel submitted and is supported by the comparable decisions in R v Shambayati^[28] and R v Comer.^[29]

Disposition

32. [32]
    For these reasons, I consider that the appeal against conviction must be dismissed and the application for leave to appeal against sentence refused.

Orders

33. [33]
    I would propose the following orders:

1. Appeal dismissed.
2. Application for leave to appeal refused.

34. [34]
    BRADLEY J:  I agree with the reasons for judgment of Gotterson AJA and with the orders proposed by his Honour.