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Timothy Michael Kelly v Queensland Police Service QDC 315
DISTRICT COURT OF QUEENSLAND
Timothy Michael Kelly v Queensland Police Service  QDC 315
Timothy Michael Kelly
Queensland Police Service
Magistrates Court at Gatton
10 December 2021
24 September 2021
Lynch QC DCJ
CRIMINAL LAW – APPEAL – s 222 Justices Act 1886 (Qld) – where the appellant was convicted of assault occasioning bodily harm – where the appellant was fined the sum of $1,500 and no conviction was recorded – where appeal against conviction – whether latent ambiguity and duplicity in single charge – whether reasons of Magistrate adequate – whether defence of self defence excluded on the evidence
Criminal Code 1899 (Qld) ss 1, 245, 246, 339
Justices Act 1886 (Qld) ss 222, 223, 225
DPP v Merriman  A.C. 584
Drew v Makita Australia Pty Ltd (2009) 2 Qd R 219
Fox v Percy (2003) 214 CLR 118
Johnson v Miller (1937) 59 CLR 467
Lee v Lee (2019) 266 CLR 129
R v Chen  QCA 355
R v Chen  QCA 355
R v Fowler; R v Aplin (2012) 225 A Crim R 226
R v Hooker & Solomon  QCA 182
R v Morrow and Flynn (1991) 2 Qd R 309
R v Rad  QCA 103
R v Sobey  QCA 367
R v Trifyllis  QCA 416
S v The Queen (1989) 168 CLR 266
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Mr J Thomas for the appellant
Ms C Brown for the respondent
Bouchier Khan Lawyers for the appellant
Office of the Director of Public Prosecutions for the respondent
Kelly v Qld Police Service appeal
- On 17 November 2020, Timothy Michael Kelly appeared before the Magistrates Court at Gatton for trial on the following charge:
That on the fourth day of October, 2019 at Thornton in the State of Queensland, Timothy Michael Kelly unlawfully assaulted Neville James Pittman and did him bodily harm.
- The learned Magistrate found the appellant guilty of the offence and ordered he be fined the sum of $1,500; no conviction was recorded. The appellant appeals against his conviction on the grounds the verdict was unreasonable and not supported by the evidence, the learned Magistrate erred in concluding a defence of self-defence had been excluded, and that the learned Magistrate gave insufficient reasons for his conclusions.
- I have concluded the appeal should be upheld, the conviction set aside, and the appellant found not guilty of the charge. My reasons for that conclusion are set out below.
- On the hearing of the appeal the following exhibits were admitted:
Exhibit 1: Amended Notice of Appeal
Exhibit 2: Appellant’s outline of submissions
Exhibit 3: Respondent’s outline of submissions
Exhibit 4: Affidavit of Peter Isaac Alback, sworn on 21 May 2021; exhibiting the transcript of proceedings before the Magistrates Court on 17/11/2020, including the decision.
Proceedings before the Magistrates Court
- The trial in the Magistrates Court commenced after the charge was read to the appellant and he entered a plea of not guilty. In response to the question by the learned Magistrate whether he wished the prosecution to open its case, counsel for the appellant replied, to the effect, he did not. When asked by the Magistrate if he understood the case he had to answer, the appellant’s counsel replied “Yes”. Thereafter, the prosecution called three witnesses, the appellant gave evidence, and the appellant’s wife was called as a defence witness.
Neville James Pittman
- Mr Pittman is the complainant. He gave evidence that he went to grade 10 level at school and since then worked as a farm hand. He said on 4 October 2019, at about 4.15-4.30pm, he was on his father’s property near the boundary with that of the defendant Mr Kelly, standing and watching the cattle. This was on Kowaltzke Road at Thornton. Mr Pittman said he was speaking to his mother on his mobile phone when the defendant drove by. Mr Pittman said in a loud voice “Where’s the potato digger?”, referring to an item Mr Pittman’s father had loaned the defendant, years before. He said the defendant then stopped and reversed his vehicle, walked over to Mr Pittman and said “What the fuck did [you] say?” and Mr Pittman replied “Where’s the potato digger?” Mr Pittman said the defendant appeared angry. Mr Pittman said he then got hit in the temple by a fist and his phone was knocked out of his hand. He said he went to retrieve his phone and thinks he was then hit in the back of the head. He thought he was then hit again but was unsure, but knew he ended up going over the fence and was knocked out. He next recalled his father asking him what happened. He said he later called police and an ambulance and was taken to Ipswich Hospital where he underwent a CT scan and spent the night with a concussion. He said he also had a bruise and soreness. Mr Pittman drew a plan of the area where the events occurred (admitted as Exhibit 1), and identified a letter given to him at the hospital (admitted as Exhibit 2). He said police officers came and took photographs of his injuries about a week later.
- Mr Pittman said his family and the defendant had been neighbours for fifteen to twenty years. He had also known the defendant’s wife Kerry Kelly, since attending primary school together. Mr Pittman said that he was involved with an annual four-wheel drive rally that traversed farming properties, including his parent’s and the defendant’s, until a property owner withdrew permission. He said he did not know whether the defendant was the person who withdrew permission. Mr Pittman acknowledged that over a period of years, the two families had shared some farm machinery, including a seed drill or planter, and a potato digger. He said these arrangements were casual. Mr Pittman said Kerry Kelly was a veterinarian and from time to time looked after his parent’s animals. He said some of that was because she felt guilty that the defendant’s cattle had repeatedly got onto his parent’s property and disturbed their crops. He said otherwise Kerry Kelly billed for attending their animals.
- Mr Pittman admitted he was upset by the defendant’s cattle repeatedly coming onto his parent’s farm. He said on one occasion, because they had been unable to get anything done about it, he shot at the defendant’s cattle to chase them away. Mr Pittman admitted that on another occasion when cattle came onto the property, the defendant and another person came on horseback and he confronted them and was swearing while holding a spanner. Mr Pittman acknowledged on that occasion his parents told him to calm down but denied he was brandishing the spanner or that he had to be restrained. Mr Pittman accepted that after that incident Kerry Kelly stopped looking after their animals. Mr Pittman agreed the road near the properties traversed a single lane bridge but denied he had once sped across the bridge forcing Kerry Kelly off the road. Mr Pittman said however, “they” forced him off the road into the gully. He also denied ever tailgating Kerry Kelly or the defendant or spinning his vehicle tyres and spraying gravel at Kerry Kelly’s car.
- Regarding the day of the alleged assault, Mr Pittman said the defendant was driving past, he yelled something which he did not think was loud, and which he was surprised was heard by the defendant. He denied yelling “You gutless prick” or throwing anything at the defendant’s vehicle. He said the defendant stopped his car and came around the vehicle and walked up to Mr Pittman before he was hit. Mr Pittman admitted he stepped towards the defendant as the defendant approached and whilst Mr Pittman was speaking. Mr Pittman denied being in the defendant’s face and yelling at him, or shaping up to him, or moving towards him aggressively, and denied the defendant said “Leave my family alone”. Mr Pittman agreed the defendant hit him twice and he probably stepped back a step or two. He denied he then said “You’re stuffed now.” Instead, Mr Pittman claimed he said “Don’t hit me again” and put his hands up. It was suggested Mr Pittman stepped towards the defendant and was hit for a third time. Mr Pittman said “Nope. I didn’t step towards him.” He was asked “And you fell over?” Mr Pittman replied “That was when I got around the ute. I fell over. Because you haven’t got to where I got hit and my phone went and I went to pick my phone up and got hit again. You haven’t got that put in there.” Mr Pittman then denied he fell over at any time until he was knocked out. He said he recalled being hit twice, and then said he was hit three times, and then described being hit twice. When asked what happened after the second time he was hit, Mr Pittman said “after I got my phone, like, I dodged him a couple of times, and I went around the ute. And … I’d say I got hit again, but after that - after getting over the fence, I just - I was knocked out. I can’t say what happened when I was knocked out.” He said he assumed because he was punched that was what caused him to become unconscious and that he did not recall what happened after he got over the fence.
- Mr Pittman said he next recalled speaking to his father. He said he drove towards his house and stopped at his driveway where he eventually was seen by police and ambulance officers. He said the first call he made was to a friend whose husband is a lawyer, she gave him a number for Laidley Police, and he called them.
David John Mengel
- Mr Mengel is a Senior Constable of Police, stationed at Laidley. On 4 October 2019 he was working at Gatton CIB and responded to Mr Pittman’s complaint; although he did not speak with Mr Pittman that day. He arranged for photographs of Mr Pittman’s injuries which were taken on 11 and 14 October 2019 (admitted as Exhibits 3 and 4 respectively).
- Doctor Nirainjanan gave evidence via telephone. Dr Nirainjanan is a medical officer at Ipswich Hospital and saw Mr Pittman there. Dr Nirainjanan identified the hospital medical records regarding Mr Pittman’s admission (admitted as Exhibit 5). Dr Nirainjanan said she observed Mr Pittman had some left sided facial bruising, swelling and tenderness, which she regarded as a minor head injury but which she said met the definition of bodily harm. She said the injury caused Mr Pittman quite a bit of pain and interfered with his comfort but did not cause any permanent injury. Dr Nirainjanan did not observe any injury to Mr Pittman’s neck or under his chin. Dr Nirainjanan accepted that in the medical records, Mr Pittman was recorded as telling hospital staff he had no memory for about an hour after he fell backwards and hit his head. Dr Nirainjanan also agreed the paramedics’ records reported that Mr Pittman described:
Patient reports assault at 4.15pm. Neighbour allegedly walk up to patient after verbal abuse and struck with closed fists greater than four times to the head. Patient attempted to flee, but reports fall post head strike. Unable to recall landing.
Dr Nirainjanan also said the paramedics’ notes recorded that Mr Pittman refused medication.
Timothy Michael Kelly
- Timothy Kelly is the appellant. He acknowledged he’d known the Pittman family for twenty-five years. He is a cattle producer and his wife worked locally as a veterinarian. Mr Kelly said on 4 October 2019, he left the property and drove to Gatton and returned along Kowaltzke Road around 4.00-4.30pm. He said he was expecting his wife to follow him home, perhaps half an hour behind. He said he saw Mr Pittman standing off to the side of the road and as he came past, he heard Mr Pittman yelling abuse such as “gutless prick” and attempting to throw something at him. He said he intended to keep driving but thought about his wife’s safety when driving past and so he stopped. He said he knew his wife was “petrified” of Mr Pittman.
- Mr Kelly said he got out of his ute, walked around the rear of it, and was met by Mr Pittman who was in his face. Mr Kelly said he told Mr Pittman “Leave our family alone” and Mr Pittman was swearing and aggressive and had raised fists. Mr Kelly said he believed he was going to be hit by Mr Pittman, so he punched him with a left then a right, around the eyes. Mr Kelly said Mr Pittman backed away but then “fired up”, and “its escalated” and Mr Pittman came back towards him, within arms length. Mr Kelly said he backed up a couple of steps, had his back against the vehicle and had nowhere he could go. Mr Kelly said it was “very scary” and he punched Mr Pittman with a right to the chin. Mr Kelly said Mr Pittman then dropped face down on the gravel area near the road. Mr Kelly said Mr Pittman was obviously unconscious, so he rolled him onto his side and dragged him away from the road. Mr Kelly said he stayed with Mr Pittman until he came to and sat up. Mr Kelly said he did this so that Mr Pittman did not stagger around or hurt himself. Mr Kelly said Mr Pittman was unconscious for about sixty seconds. Mr Kelly said Mr Pittman seemed to be breathing fine, and although dazed was swearing. Mr Kelly said he did not want to continue the confrontation and he drove away up the road but stopped and observed Mr Pittman from a distance. He saw Mr Pittman was then on his phone so he drove home.
- Mr Kelly said there had been prior incidents with Mr Pittman. He said in around September 2017, he and an employee went to the Pittman residence on horseback and informed Mr Pittman’s father they were going to retrieve cattle that had entered the Pittman property. Mr Kelly said he then had an exchange with Mr Pittman which resulted in Mr Pittman chasing them with a shifting spanner while screaming. Mr Kelly admitted his comment to Mr Pittman escalated this incident. Mr Kelly said Mr Pittman’s father stood between them to calm Mr Pittman. Mr Kelly said he later contacted the stock squad who arranged for the return of his cattle. Mr Kelly said he told his wife about this incident and that incident caused him concern about Mr Pittman. In addition, Mr Kelly said there were other incidents where Mr Pittman chased him in a vehicle, shot at cattle, was tailgating his wife, ran his wife off the road, and showered her car with gravel. Mr Kelly said none of those incidents were reported to police and he did not seek a Peace and Good Behaviour Order against Mr Pittman.
- Mrs Kelly is the wife of the appellant. She had been a veterinarian for 22 years. She had worked on cattle for the Pittman family, some of which she was paid for. She said she did some of that work as a favour because they were neighbours but stopped doing so from about 2016, because of the behaviour of members of the Pittman family. Mrs Kelly said she was told by her husband about an incident where Mr Pittman chased her husband and an employee, while holding a spanner, when they were attempting to retrieve cattle from the Pittman property.
- Mrs Kelly described an incident where Mr Pittman sped up and forced her off the road when she was approaching a single lane bridge near her home. She said Mr Pittman deliberately fishtailed his vehicle and sprayed her vehicle with gravel when he passed her. She also said there was an occasion Mr Pittman gave her the “finger” when they passed.
Submissions of parties
- Counsel for the appellant submitted the learned Magistrate would conclude the appellant struck Mr Pittman three times. It was submitted that defences of self-defence and provocation were available for all three punches. It was submitted the punches were lawful because the conduct of Mr Pittman which preceded them was an assault or because Mr Kelly honestly and reasonably believed he was about to be assaulted. It was also submitted the incident occurred over a short period of time and it would be artificial to separate the third punch from the first two simply because of the short pause that occurred, in circumstances where the complainant immediately re-engaged. It was submitted the conduct of Mr Kelly should be regarded as proportionate given he did not continue after Mr Pittman no longer posed a threat to him. It was also submitted that although the injury suffered by Mr Pittman amounted to bodily harm, because Mr Pittman described at some point going over the fence and waking up there, it remained a plausible explanation the injury was occasioned by that conduct, rather than at the hands of Mr Kelly.
- The prosecutor submitted the injury suffered by Mr Pittman, as revealed by the photographs and medical records, is consistent with Mr Pittman’s version of events. It was submitted on Mr Pittman’s evidence, he did not behave aggressively or threaten to strike Mr Kelly but instead was struck by Mr Kelly, reeled from that blow to the temple and was then struck again. The prosecutor said “The blows, your Honour, being the requisite application of force, fulfilled the definition of assault under section 245 of the Code.” It was submitted that Mr Kelly’s actions were not reasonable and were excessive in the circumstances. The prosecutor also submitted that on Mr Pittman’s evidence there was no provocative act or threat of violence that would justify or excuse his being struck not once but repeatedly. It was submitted Mr Kelly had opportunity to avoid confrontation, he could have driven on rather than stop his vehicle. It was submitted on the evidence the defendant did not lose his power of self control as a result of the act of the complainant or act on the sudden and that the response was disproportionate to the provocation.
- The learned Magistrate delivered his decision after retiring for a short period. In his reasons, his Honour recited the charge, the fundamental principles governing a criminal trial, summarised the evidence, including that of the complainant and appellant, and also summarised the submissions, including those regarding defences of provocation and self-defence. The learned Magistrate did not identify what evidence he was prepared to accept or reject, nor provide any reasons for acceptance or rejection of any evidence. The learned Magistrate simply expressed his conclusion as follows: “With respect to the third punch that was thrown – that is the punch that … dropped Mr Pittman, I do find that each of the defences are negatived. I am satisfied, therefore, beyond reasonable doubt, that each of those defences are negatived and find Mr Kelly guilty of assault occasioning bodily harm.”
- In the course of hearing submissions, the learned Magistrate made a number of observations. In particular, when defence counsel was making submissions concerning whether it was proved the injury resulted from the appellant’s blows, the learned Magistrate said “But it may not necessarily be inconsistent with getting hit flush on the chin. And by how your client describes it, I suspect that’s where the third one hit him, flush on the chin and he was out.” In the course of the prosecutor’s submissions, the prosecutor referred to the fact the appellant might have driven on rather than stop and confront the complainant. The following exchange then occurred:
Prosecutor: But was he then entitled to have the interaction —-
Magistrate: That’s the issue.
Prosecutor: —- and then the continuing interaction where he went beyond the back of the car and had that second and further assault?
Magistrate: Yes, I think that’s - that’s really the nub —-
Prosecutor: Was that necessary?
Magistrate: That’s - I think that’s the nub of it, yes.
- Later during defence counsel’s further submissions, this further exchange occurred:
Magistrate: I suspect that the issue that I’m struggling with is whether it was reasonably necessary to make the effectual defence against the assault, and the - particularly the third punch.
Counsel: I mean your Honour is considering that in the context of the defendant’s understanding of what was going on.
Magistrate: Yes, yes.
Nature of appeal
- Section 223(1) of the Justices Act 1886 provides this appeal is by way of rehearing on the evidence given in the proceedings below. On the hearing of this appeal, I am authorised by s 225(1) and (3) of the Justices Act, to “confirm, set aside or vary” the orders appealed against or make any other order I consider just, and may exercise any power that could have been exercised at first instance.
- In Fox v Percy, the majority explained the task of the appellate court hearing an appeal by way of rehearing as follows:
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’’.
- More recently, in Lee v Lee, a majority of the High Court restated the task of the appellate court, in the present circumstances, as follows:
A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge"… (Citations removed)
Elements of offence of assault occasioning bodily harm
- The offence of assault occasioning bodily harm is created by s 339 of the Code. An assault is defined by s 245 of the Code, which relevantly provides:
245 Definition of assault
- (1)A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, … or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.
- The term “bodily harm” is defined by s 1 of the Code to mean “any bodily injury which interferes with health or comfort”. Pursuant to s 246 of the Code, an assault is unlawful unless authorised, justified or excused by law.
- The elements of the offence of assault occasioning bodily harm therefore are:
- The defendant assaulted another person;
- That assault was unlawful;
- That assault caused the other person bodily harm.
Requirement for adequate reasons
A court from which an appeal lies must state adequate reasons for its decision. The failure to give sufficient reasons constitutes an error of law.
The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with “a justifiable sense of grievance” through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice or procedural fairness; to provide “the foundation for the acceptability of the decision by the parties and the public” and to further “judicial accountability”.
The extent to which a trial judge must expose his or her reasoning for the conclusions reached will depend on the nature of the issues for determination and “the function to be served by the giving of reasons”. (Citations removed)
And, in my opinion, it will ordinarily be sufficient if – to adapt the formula used in a different part of the law … by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.
And per McHugh “… it is necessary that the essential ground or grounds upon which the decision rests should be articulated”.
When offences should be separately charged
- A series of decisions at appellate court level have recognised that in some circumstances, it will not be appropriate to charge a single offence to reflect a series of acts, even where those acts occur within a short period.
- In Johnson v Miller, a licensee was charged with a single offence that might equally have concerned a number of unknown persons seen coming from licensed premises on a Sunday. It was thus impossible for the licensee to provide any explanation for the charged occurrence as contemplated under the legislation. A majority of the Court held the complaint was rightly dismissed as defective. Dixon J said:
Where an information or complaint is so drawn as to disclose more than one offence and one set of facts amounts to each of the various offences covered by the charge, as was the case in Johnson v. Needham, the proper course is to put the complainant to his election. In such a case, to wait to the end of his evidence before doing so may be convenient and may cause no injustice. But it is the converse of the present case, where the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence. (Citation removed)
- In the same case, Evatt J said:
It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. … These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularise the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged.
- Also in Johnson v Miller, McTiernan J agreed the charge, together with a failure to provide adequate particulars, created ambiguity. He said:
When read with the [particulars] the complaint cannot be understood as referring to one particular person, but to any one of a number of persons. For this reason it fails to comply with the standard imposed by the well-established rule of practice in criminal proceedings now embodied in sec. 181 of the Justices Act, which requires that fair information and reasonable particularity as to the nature of the offence charged must be given to the defendant. In the present case, when the complaint came on to be heard the magistrate directed the respondent to give what have been described as better particulars, which would remove the ambiguity in the complaint and give the appellant a clear and intelligible account of the offence with which he was charged. … If the respondent had complied with the direction, the objection to the complaint might have disappeared, because, as explained by fuller particulars, it might have become sufficiently certain to what person it applied. But, as the respondent refused to give any further particulars, the complaint remains as one which fails to comply with the rule embodied in sec. 181 of the Justices Act. The ambiguity of the complaint was a defect of substance which clearly prejudiced the appellant at the very threshold of the hearing.
- In S v The Queen, the indictment charged three counts of incest, each alleged to have occurred on a date unknown in consecutive years. The complainant’s evidence was that acts of sexual intercourse occurred on multiple occasions within those periods but failed to identify particular acts. The jury were instructed they had to be satisfied beyond reasonable doubt that at least on one occasion during each of the charged years, there was an act of intercourse. Dawson J described this as follows:
As I have said, the three counts on the indictment were framed in a permissible way. Each charged only one offence and gave rise to no duplicity. Had the evidence revealed only one offence in each of the years in question, there could have been no complaint about the form of the indictment. But the evidence disclosed a number of offences during each of those years, any one of which fell within the description of the relevant count. Because of this there was what has been called a “latent ambiguity” in each of the counts: see Johnson v Miller, per Dixon J. That ambiguity required correction if the applicant was to have a fair trial.
The material before us does not reveal whether the ambiguity was apparent by reference to the depositions at the time that the applicant made application for particulars. If it was, it may have been appropriate for the trial judge to have ordered that particulars be given identifying the offences charged, if not by reference to time, by reference to other distinguishing features. If at that stage such a course was inappropriate and it was necessary for the prosecution to call its evidence for the precise nature of the defect in the proceedings to emerge, the prosecution ought to have been required as soon as the defect became apparent to elect by indicating which of the offences revealed by the evidence were the offences charged. In some cases (although not, it would seem, the present one) the ambiguity may be removed by an amendment of the indictment splitting a count into several counts or by adding further counts so as to distinguish the separate occasions alleged. Such an amendment may only be allowed if it does not cause injustice or prejudice to the accused and that generally means that it cannot be made during the course of a trial. (Citations removed)
- Also in S v The Queen, Toohey J cited the passage in the judgement of Dixon J in Johnson v Miller, as set out above, before concluding:
… as soon as it appears that a count in the indictment is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the offence charged.
- In a joint judgement in S v The Queen, Gaudron and McHugh JJ identified some of the policy considerations underpinning the rule against duplicitous charges as follows:
… a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict.
- Justices Gaudron and McHugh went on to explain that “problems which attend duplicitous counts also attend proceedings in which the prosecution seeks to lead evidence of multiple offences answering the description of the offence or offences charged.” Citing the judgements in Johnson v. Miller, their Honours identified two such problems. The first concerned the court determining the admissibility of the evidence of uncharged offences as similar fact evidence. The second problem was in identifying “different defences that might be available to the different offences”.
It is obvious that a knifing attack by one man who delivers a number of blows may properly be charged as a series of woundings but one must ask oneself whether this would be an application of common sense in terms of Lord Morris’ speech. For my part I see no objection to charging the incident as one offence, provided always that it is clear what the offender is charged with. Similarly, a series of penetrations by the same offender in the course of one sexual attack need not, in my judgment, be the subject of separate counts so long as they are not seen to be separate and distinct in time or circumstance. The first penetration may be interrupted by the victim’s struggles or by a momentary apprehension of detection. It would of course be open in strict point of law to charge each penetration as a separate offence but scarcely consistent with the robust approach suggested by Lord Morris. In such a case I see no objection to charging one count of rape. On an indictment for attempted murder it may be proved that the prisoner knifed the victim two or three times and then pursued him down the street knife in hand. Technically the Crown could charge each knifing and the pursuit as separate offences of attempted murder. There can however be no objection to charging the whole episode as an attempted murder and indeed one has known this to be done.
- In Morrow and Flynn, the indictment charged both defendants with a single count of assault occasioning bodily harm in company. The evidence disclosed potentially seven separate assaults, three committed by one defendant and the remainder by the other. No particulars of the basis of the charge were sought or given. The jury convicted each defendant of common assault only. Connolly J said:
The nature of the Crown case was never made clear, whether by particulars or otherwise. By this I mean that it was never made clear what precise offencewas charged against the appellants, or if it was sought to have the indictment understood not in its natural sense but as charging several acts by each of them, what those acts were. …
The case therefore was one in which there was what Dixon J, as he then was, described as a latent ambiguity in the indictment. …
- In R v Chen, the defendant was convicted of two offences of assaulting different police officers in the execution of their duty. No particulars of either assault were sought or given. The evidence revealed six separate assaults, three upon each of the officers. Those assaults consisted of a push, a strike with handcuffs, and spitting upon one officer; and grabbing the genitals of, and twice spitting upon, the second officer. The first five of these assaults occurred in the course of the officers trying to arrest the defendant, and the last occurred after he had been subdued and whilst he was being placed into a police vehicle. In respect of the decision to charge a single charge in respect of the several assaults upon each officer, the court said:
There are no doubt cases in which, notwithstanding that offences could be charged separately, it is nevertheless permissible and even appropriate to prefer only one charge. One obvious class of such cases is that where the offence may be constituted by continuing conduct. But also where one act constitutes as number of offences (stealing a number of articles at one time) or where there are a number of similar acts, each constituting a separate offence, but in a short space of time - a flurry of blows, whether with or without a weapon or a succession of shots - there is in most cases, little practical advantage in separating them and no loss of fairness to an accused in failing to do so. (Citations removed)
- The court recognised that although the different assaults occurred within a short space of time and were part of a connected series of events, they were of different kinds, the evidence of them differed in quality and quantity, different defences were arguably open in respect of the different assaults (self defence for some, provocation for all), and the strength of the evidence in each case was different. The court concluded it was impossible to say which of the assaults the jury found proved in respect of each officer, and therefore also impossible to say upon what basis the defendant should be sentenced. The court concluded:
Courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide in cases such as this and the question will always be one of fact and degree for decision in each case. Unlike those cases where events are so close in time and place that they can be viewed as one composite activity, the latent duplicity here, once exposed, left the appellant without knowledge of the particular act alleged as the foundation of the charge resulting thereby in a substantial miscarriage. It is true that these questions should have been raised at the trial. But the failure to raise them then is not fatal. The appropriate course in the present case then is to quash both convictions. (Citations removed)
- In R v Trifyllis, the Court of Appeal held that the single charge of assault occasioning bodily harm was appropriate in circumstances where multiple blows were struck by the offender. In that case Chesterman J concluded the indictment contained no latent ambiguity or duplicity. Instead, he described the assault in the following terms:
The Crown case was not one of a series of violent acts one or more of which might have caused the bodily harm specified. The Crown case was of one assault, one episode in which the complainant was punched and suffered bodily harm. The episode was sufficiently described as to time, place and the nature of the assault. The number of blows which landed and the particular pose of the appellant and his juxtaposition to the complainant at the time of delivering the blows were evidentiary details which did not affect the essential aspects of the described offence.
- In R v Sobey, the appellant was convicted of assault occasioning bodily harm, the assault being constituted by two separate blows, one to the mouth resulting in loss of a tooth and one to the top of the head. The evidence was to the effect the first blow to the mouth caused the complainant to fall down and the second occurred when he attempted to get up. The appellant’s contention was that the charge was duplicitous, and the separate assaults should have been separately charged or the prosecution forced to elect upon which assault they relied in proof of the charge. The appellant also contended that defences of self defence and provocation were open to varying degrees in respect of each blow. The court held the prosecution were entitled to charge a single offence since the two blows were “composite parts of the one assault” and it would be “artificial to dissect the conduct into two assaults”. Regarding the question of different defences for the different blows, Wilson J rejected the contention the defences might have applied to differing degrees. Her Honour noted the summing identified the real issue as being whether the assault was unlawful. Her honour said:
[The trial judge] directed them in relation to provocation and self defence without distinguishing between the infliction of the two blows. This was favourable to the appellant; if there were a defence to one blow there was also a defence to the other.
- A similar issue was considered by the Court of Appeal in R v Fowler; R v Aplin. There, the appellant’s were charged conjointly with a single count alleging assault occasioning bodily harm in company. The evidence revealed potentially six separate assaults, three by each appellant, over a relatively short time period, but which nevertheless could be distinguished by their respective circumstances. Fraser JA concluded:
This is not a case like R v Sobey and R v Trifyllis, in which the blows were delivered in quick succession and apparently over a period measured in seconds and where distinguishing between the different blows had no effect upon the criminal responsibility of the defendants. Whilst it was legitimate to group series of acts within one allegation of assault, it was not permissible to charge every such series as one offence. The alleged assault by each appellant constituted by the acts described in (a) and (b) (in  of these reasons) was differentiated from the subsequent assaults by the circumstance that the complainant was on the ground and unconscious or semi-conscious for the subsequent events; obviously enough, the grounds of exculpation upon which the appellants relied would have less, if any, scope for application in relation to the subsequent assaults.
- In setting aside the convictions, Fraser JA (with whom de Jersey CJ and Mullins J agreed), held the indictment was duplicitous and upon a retrial required the prosecution to elect “which assault occasioning bodily harm is comprehended within the charge against each appellant”.
So, for example, where there is one charge of assault constituted by a “flurry of blows” no objection can usually be taken unless the assaults were of different kinds, or different defences may have been available to the different acts, or where there are co-offenders and their liability may be different for different acts. (Citations removed)
- The appellant contends the learned Magistrate gave insufficient reasons for the conclusion that defences of provocation and self-defence were excluded for the third punch. However, it was submitted the learned Magistrate must have accepted the evidence of the appellant in order to conclude those defences were not excluded for the first and second punches, since, on the complainant’s account, self defence and provocation were not raised at all. It was submitted that, accepting the appellant’s explanation of events, it was not open to conclude he was entitled to defend himself by delivering the first two blows but not the third. It was submitted this was so because at the time of the third blow the appellant faced at least the same threat he faced at the time of the first two blows. It was submitted, accepting the appellant’s account, the appellant at all times perceived he faced a threat of the complainant assaulting him; this was in light of the complainant’s past conduct towards him and his wife, and the complainant’s demeanour, conduct and manner of speech at the time in question. In addition, it was submitted, the evidence did not permit of the conclusion the third punch was disproportionate, simply because the complainant was knocked unconscious. It was submitted there was no evidence the third blow was any more forceful than the first two punches, which struck around the eyes and forced the complainant backwards. The result of the third blow was entirely fortuitous, striking the complainant on the chin.
- The respondent acknowledged the reasons of the learned Magistrate were “scant” but submitted they were nevertheless sufficient. The respondent submitted the reasons should be read together with the exchanges between the learned Magistrate, defence counsel, and the prosecutor, during submissions. The respondent submitted, looked at in that context, it was clear the Magistrate was fully aware of the evidence, the respective cases, and that his reasons demonstrate the basis of his decision. The respondent submitted the conclusion of the Magistrate that self defence was not excluded for the third punch was open based upon acceptance of the appellant’s evidence. It was submitted this was because there was a different quality about the third punch, since that struck the complainant’s chin and rendered him unconscious, leaving open the conclusion that blow was disproportionate and not reasonably necessary. The respondent also submitted that charging a single offence encompassed by all three blows did not, in the circumstances, result in any unfairness for the appellant.
- It is a fundamental requirement of a court to give reasons for a decision. The purposes of doing so were identified by Muir JA in Drew v Makita. These include providing a basis for the parties to understand the result and to exercise any necessary appeal rights, but also to promote judicial transparency and accountability. In the present case the learned Magistrate’s reasons are insufficient to meet these purposes. Although his Honour described the evidence and the respective positions of the parties, he expressed only a conclusion which did not expose his process of reasoning to that result. He did not identify which of the conflicting accounts of events he accepted or why he did so. In the end, there is a degree of speculation in determining whether, and to what extent, he preferred one account over the other.
- The respondent submitted the exchanges during submissions should be read together with the reasons in order to achieve such an understanding. Caution should attend such an approach. Even a robust exchange between the bench and bar table is not necessarily indicative of a concluded view, since that process may simply serve as a means of testing propositions advanced in submissions. Here, at no time, in the course of submissions, did the learned Magistrate express any concluded view of the facts. In the examples referred to at  and  above, the Magistrate expressed himself only in terms of what he was thinking and not what he had decided. I reject the submission resort can be had to the discussion during submissions. In the circumstances, I conclude the learned Magistrate’s reasons were inadequate.
- Section 223(1) of the Justices Act requires this appeal is by way of rehearing on the evidence admitted before the Magistrate. Consistent with the decisions such as Fox v Percy and Lee v Lee, I am required to conduct my own review of the evidence, paying due regard to conclusions of the learned Magistrate concerning credit which are based upon his advantage in seeing and hearing the witnesses give evidence, and which otherwise are not glaringly improbable. The inadequacy of the learned Magistrate’s reasons is limiting in determining what findings his Honour made. The learned Magistrate said “With respect to the third punch … I find that each of the defences are negatived.” This suggests that his Honour was of the view the defences were not negatived in respect of the first two punches. If that were his conclusion, then it could only have been reached as a result of his preferring the evidence of the appellant over that of the complainant. That is because acceptance of the complainant’s version would result in self defence being excluded, there being no unlawful assault upon the appellant. However, this would seem a tenuous basis for my determining the central issue in this case, namely whether the evidence proved beyond reasonable doubt the appellant unlawfully assaulted the complainant. That question depended upon whether the material aspects of the evidence of the complainant should be accepted. I should myself consider the evidence in detail and form my own conclusions.
- Although addressed on the hearing of this appeal, the question of the appropriateness of the charge to the circumstances of this case was not addressed at the trial. Consistent with the authorities referred to above, it remains permissible for a single charge to be preferred in respect of several acts which individually might amount to separate offences, provided the defendant understands the case he is to meet, where the acts can properly be seen as constituting a single or composite activity, or where that course presents no unfairness to a defendant because different defences might apply to the different acts. The cases of Morrow & Flynn, Chen and Fowler and Aplin are all examples where multiple alleged assaults were wrapped into a single charge, where different potential defences applied to the different assaults, and where the charges were held to be bad due to latent ambiguity or duplicity. By contrast, the decisions in Trifyllis and Sobey reflect circumstances where a single charge representing separate acts was regarded as a single event and which did not result in unfairness because of the possibility different defences might apply.
- As is obvious from the learned Magistrates decision, and the submissions of the parties both below and on appeal, here the prosecution charged a single offence, yet led evidence of three separate blows as the basis of that offence. The prosecution alleged the three blows were a single composite activity, yet sought to distinguish between the separate blows for the purposes of determining whether defences of provocation and self-defence applied. The inference to be drawn from the finding of the Magistrate that self defence and provocation were negatived for the third blow, is that they were not for the first two blows. The submissions and the decision demonstrate the latent ambiguity or duplicity that emerged.
- Consistent with the statements of the majority in Johnson v Miller, and of Dawson J in R v S, once this ambiguity emerged, it was for the prosecution to elect which of the blows it relied upon as the basis of the charge. Alternatively, if it was concluded that no latent ambiguity existed, then as demonstrated in Sobey, “if there were a defence to one blow there was also a defence to the other”. The approach of the learned Magistrate and of the prosecution both below and on appeal, was to treat the separate blows as each representing a separate charge so that a potential defence of self defence and/or provocation should be considered for each act, while at the same time the prosecution urged the single charge represented a single composite activity. This approach was fundamentally flawed. If, as this trial was conducted, the three blows were to be regarded as a single composite activity, then it was necessary for the prosecution to prove beyond reasonable doubt that any defence raised on the evidence was excluded for all of the acts, before the appellant could be found guilty. Since the respondent maintains the appropriateness of that position on the hearing of this appeal, i.e. that the single charge based upon three blows is permissible, I too should deal with the case on that basis. That means determining, on the evidence, whether the prosecution can negative any potential defence for all of the acts alleged as constituting the offence.
- The evidence of Mr Pittman was to the effect that, although he called out as the appellant drove past, he did nothing which could reasonably be regarded as provocation for any assault upon him, or as an unlawful assault upon the appellant. Mr Pittman claimed he asked only where the potato digger was, he made no aggressive statement, and he did no act which in any way threatened the appellant. On Mr Pittman’s account of things, there was no basis for any honest and reasonable perception that he presented any such threat. To the contrary, Mr Pittman said he was speaking on the phone when he was first struck by the appellant who exited his vehicle and approached him, and was next struck in the back of the head when retrieving his phone. Mr Pittman said he did not recall a third blow but assumed there was one that knocked him unconscious, and he next recalled being on the ground, over the fence.
- However, Mr Pittman’s account changed in some respects when cross-examined. Contrary to his first account, Mr Pittman admitted he moved towards the appellant when the appellant first approached him. Also, Mr Pittman admitted after being hit twice he probably stepped back a step or two. This is contrary to his first description of the assault upon him. He claimed, contrary to his evidence first given, that he told the appellant “Don’t hit me again” and put his hands up. Mr Pittman also said for the first time in cross-examination that he dodged the appellant a couple of times and went around the appellant’s ute. Although ultimately denying he fell to the ground before being knocked out, Mr Pittman at one point said he did fall over. Mr Pittman also described that he got over the fence before he was knocked out, contrary to his evidence in chief.
- In addition, the version of events given by Mr Pittman to the paramedics who transported him to hospital was put in evidence. That included:
Neighbour allegedly walk up to patient after verbal abuse and struck with closed fists greater than four times to the head. Patient attempted to flee, but reports fall post head strike.
Arguably, that account was inconsistent to the extent of identifying more blows being struck than described by Mr Pittman in evidence, Mr Pittman attempting to flee, and his recalling that he fell before being knocked out. Mr Pittman was also recorded as telling hospital staff he hit his head after falling back.
- Further attack was made upon the credit of Mr Pittman by reason of the prior disharmony between he and the appellant’s family. Mr Pittman admitted there was disharmony but denied he had threatened the appellant with a spanner, or had forced the appellant’s wife off the road and sprayed her car with gravel, or had tailgated her. Mr Pittman admitted he was upset the appellant’s cattle came onto his parents farm, and also that on one occasion he shot at the cattle to chase them away. Mr Pittman also admitted that his first phone call after the incident was to a friend who was married to a lawyer, rather than to police.
- Mr Pittman’s evidence was contradicted by that of the appellant and Mrs Kelly. Mrs Kelly described the occasion she said Mr Pittman forced her off the road by speeding up to arrive first at the single lane bridge, and then fishtailing his vehicle in order to spray gravel at hers. The appellant described other occasions of conflict with Mr Pittman which he said influenced his decision to stop when he drove past Mr Pittman. These included Mr Pittman threatening he and an employee with a spanner when they attempted to retrieve cattle, chasing him in a vehicle, shooting at cattle, forcing his wife off the road and spraying her car with gravel, and tailgating his wife. Mr Kelly admitted his comment to Mr Pittman about being on the dole provoked the incident where he was chased with the spanner.
- Regarding the alleged assault, the appellant said he heard Mr Pittman call him a “gutless prick” and saw he appeared to throw something at his vehicle. He said he knew his wife would soon travel along that route, so he decided to stop and reversed back. He said by the time he rounded his vehicle and said “Leave our family alone” Mr Pittman was in his face, had his fists raised and was yelling aggressively. He said he believed he was about to be hit and so he struck Mr Pittman with two punches, around the eyes. He said Mr Pittman recoiled a couple of steps but then seemed enraged and advanced again. The appellant said he was then backed against his vehicle and believed he would be hit so he threw another punch which connected with Mr Pittman’s chin. He said Mr Pittman then fell unconscious. The appellant said he then dragged Mr Pittman away from the road and after about a minute, he regained consciousness. The appellant said when Mr Pittman was sitting, but started swearing, he left so as not to continue the confrontation and he observed Mr Pittman from a distance. When he believed Mr Pittman was safe, he went home. The appellant said he called police a few hours later and reported what occurred.
- The cross-examination of the appellant did not elicit any inconsistency or other basis upon which the reliability of the appellant’s version was damaged. To the contrary, the appellant’s account seems logical and detailed, and apparently truthful. The explanation provided by the appellant for stopping his vehicle was not to assault Mr Pittman or otherwise behave aggressively. Rather the appellant said he wished only to seek an end to hostilities. The only real basis advanced in cross-examination of the appellant and his wife, in order to undermine their respective credit and/or reliability, was that they did not report any of Mr Pittman’s earlier behaviour to police. Otherwise, the attack upon Mr Kelly was to the effect he did not need to stop his vehicle at all upon seeing or hearing Mr Pittman.
- On Mr Kelly’s version, it is difficult to see how any real distinction can be drawn between the position he faced at the time of the first two blows compared to the third. On that account, Mr Pittman was the aggressor and approached Mr Kelly in a manner that was clearly threatening. Mr Kelly was entitled to assume he was in personal danger. To raise a fist at another person and approach them in that way, without their consent, is an assault. On Mr Kelly’s account, despite two blows causing Mr Pittman to momentarily step back, the threat did not dissipate, but remained. The threat Mr Pittman then posed was at least that which he posed initially. Mr Kelly was by then unable to retreat further, and Mr Pittman seemed angrier. There is no basis to conclude the third blow was any different than the first two, except as regards where it connected. If Mr Kelly’s account is accepted as correct, he was unlawfully assaulted by Mr Pittman and did nothing to provoke that assault; he had offered Mr Pittman no wrongful act or insult. To throw punches in response to the threat of punches would seem objectively, a reasonable response in order to repel that attack. There is no basis to conclude the appellant intended, or the force he used, was such as was likely, to cause death or grievous bodily harm. If Mr Kelly’s evidence is accepted, the prosecution could not exclude a defence of self-defence under section 271(1) of the Code.
- The question then, is whether it is open on the evidence to exclude Mr Kelly’s version beyond reasonable doubt. As I have noted, no real damage was done to his credit in cross-examination. The only basis upon which his evidence might be rejected, is if Mr Pittman’s account is accepted beyond reasonable doubt as being accurate, at least regarding the circumstances in which he was struck. Mr Pittman’s evidence in chief was lacking in detail and was ultimately contradicted in some respects by detail he added in the course of cross-examination. These were matters of substance and material to his allegations. They included whether he advanced towards the appellant, whether he stepped back after the first two blows, that he avoided the appellant and went around the utility, whether he fell over, and whether he got over the fence. Mr Pittman was also inconsistent as to the detail of the alleged assault in what he said to the ambulance officers and at hospital. Mr Pittman admitted some motive for him to be upset with the appellant and his wife, despite his denials of the other conduct they alleged.
- In light of these matters, and the apparent reliability of the appellant’s evidence, I conclude there is reason to doubt the reliability of Mr Pittman’s evidence concerning the alleged assault upon him. I am not satisfied beyond reasonable doubt Mr Pittman’s account of the confrontation should be accepted. On that basis, the version of Mr Kelly has not been disproved, and the defence of self defence has not been negatived. It follows Mr Kelly should be found not guilty.
- As noted above, because I conclude the defence of self defence has not been excluded beyond reasonable doubt as for the first punch, Mr Kelly is entitled to be found not guilty of the charge. However, even if the prosecution had elected to proceed upon the third blow as the basis of the charge, for the reasons given above, I would conclude that defence is not excluded even in respect of that blow. Because of my conclusion that self defence has not been excluded, it is unnecessary that I consider in detail the defence of provocation. I note, however, in that context, Mr Kelly’s evidence was not that he lost his power of self control, but rather that he believed he was about to be hit.
- The verdict of the learned Magistrate finding the appellant guilty of the offence of assault occasioning bodily harm is set aside. Instead, Timothy Michael Kelly is found not guilty of the charge of assault occasioning bodily harm. I order that Timothy Michael Kelly is discharged in respect of that charge.
 (2003) 214 CLR 118, per Gleeson CJ, Gummow, Kirby JJ at 125-127, , , , .
 (2019) 266 CLR 129, per Bell, Gageler, Nettle, Edelman JJ at 148-149, -.
 (2009) 2 Qd R 219.
 At 237, -.
 At 237-238, -.
 (1987) 10 NSWLR 247.
 At 273.
 At 280.
 (1937) 59 CLR 467.
 At 489.
 (1989) 168 CLR 266.
 At 274.
 At 282.
 At 284. See also R v Hooker & Solomon  QCA 182, at .
 At 285.
 At 286. See Johnson v Miller per Dixon J at 490, per Evatt J at 495.
 (1991) 2 Qd R 309, at 312.
  A.C. 584.
 At 313.
  QCA 355.
 At p4.
 At p5.
 At pp5-6.
 At p6.
  QCA 416.
 At .
  QCA 367.
 At p7.
 At p5.
 (2012) 225 A Crim R 226.
 At .
 At -.
  QCA 103, at .
 At ; citing R v Chen  QCA 355 regarding the issue of different defences arising for different acts.
- Published Case Name:
Timothy Michael Kelly v Queensland Police Service
- Shortened Case Name:
Timothy Michael Kelly v Queensland Police Service
 QDC 315
Lynch QC DCJ
10 Dec 2021