NJB v Commissioner of Police[2021] QDC 42

DISTRICT COURT OF QUEENSLAND

1. HIS HONOUR:   I propose to give my reasons but I will reserve the right to tidy them up before they are finally published.  Now, you can have the option of sitting here while I read my reasons, which will probably take some time.  Otherwise, what I propose to do is tell you what the final orders are and it is a matter for you then, whether you elect to stay or wait for the reasons in due course.

2. In any event, the orders of the Court will be as follows: 

1. (1)
   The appeal against conviction is dismissed.
2. (2)
   The appeal against sentence is allowed.
3. (3)
   The sentence imposed by the Court below on 25 June 2020 is set aside and in lieu, the appellant to be sentenced to 30 days imprisonment.
4. (4)
   That the 30 days the appellant has spent in custody between 25 June 2020 and 24 July 2020 be declared as time served.

3. This proceeding is concerned with an appeal against conviction and in the event that that appeal fails, an appeal against sentence.  Both appeals are brought pursuant to section 222 to the Justices Act (1886).  Pursuant to section 223 of that Act, the appeal is by way of rehearing on the original evidence and any new evidence adduced by leave, pursuant to section 223 provides as follows:

An appeal under section 222 is by way of a rehearing on the evidence (the original evidence) given in the proceeding before the justices.

However, the District Court may give leave to adduce fresh, additional or substituted (new evidence) if the court is satisfied there are special grounds for giving leave.

If the Court gives leave under subsection (2), the appeal is by way of a rehearing on the original evidence and on the new evidence adduced.

4. An application was made to introduce new evidence at the beginning of the appeal.  That application was dismissed.  Save for the observations below, I do not intend to say anything more about that other than that I was not particularly persuaded it was truly new or fresh evidence for the purposes of section 223, and even if it was, it would seem to me that it would not have affected the outcome of the appeal.  The evidence was timestamped text messages as between the respondent to this appeal and a Mr B, a friend of hers, and a person who gave witness at the trial below.

5. On 25 June 2020, the appellant in this proceeding was found guilty of one count of breaching a domestic violence order.  He was sentenced to four months imprisonment with a parole release date set after serving two months.  The appellant was released on bail pending the outcome of this proceeding after serving 30 days in custody.

6. Turning briefly to the law concerning appeals such as this, that has been well established since the well-known decision of the High Court in Fox v Percy [2003] 197 ALR 201 and also more recently in the decision of this Court of Wyman v The Commissioner of Police [2015] QDC 231. Reference was made in particular to what was said in Fox v Percy at paragraph 19:

Within the constraints marked out by the nature of the appellant 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 allowance in that respect.

In Warren v Coombes, the majority of this Court reiterated the rule that, in general, an Appellate Court is in as good a position as the trial judge to decide on the proper inferences to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.  In deciding what is the proper inference to be drawn, the Appellate Court will give respect and weight to the conclusion of the trial judge but once having reached its own conclusion, will not shrink from giving effect to it.

7. More recently, in Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22, the High Court also said:

A Court of Appeal conducting an appeal by way of rehearing 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 judge has erred in fact or law.  If the Court of Appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.

8. Similar observations were made by Her Honour Justice Bowskill in the case of McDonald v Queensland Police Service [2018] 2 Qd R 612.  In respect of the appeals against sentence, as was stated in part in the well-known case of House v R [1936] 55 CLR 499 at 505, for an appeal to succeed:

It must appear that some error has been made in the exercising of the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so.

9. It is, of course, not enough that the Appellate Court might have imposed a different sentence than the one actually imposed.  Insofar as the issue of guilt is concerned, the critical issues that had to be determined by the Court below were whether, as stated by the respondent, she was punched to the side of her head by the appellant after a series of arguments or, whether because of the respondent’s lengthy and serious history of seizures, the Court could not be satisfied beyond reasonable doubt that the injury was not the consequence of the respondent having a seizure, falling and thereby injuring herself.  In expressing his reasons, the Court below said at page 11 between line 17 and 19:

To my mind, it does become a “he said, she said” case and Courts must be very slow to accept beyond a reasonable doubt the version of either person when it’s a “he said, she said” type case.  There are circumstantial things, though, that can be looked at to help.

10. As Mr McDougall, counsel for the appellant, correctly pointed out, to a large extent those observations were correct but not entirely so.  There was, of course, the uncontroversial fact that the respondent had, in fact, suffered a blunt trauma injury to the side of her face.  Medical evidence was called, which recorded the respondent presenting on the night in question or perhaps in the early hours of the morning in question with an abrasion to her left cheek.  The evidence was that an injury of this type could have been caused by a blow or punch but just as equally by an accidental fall.

11. According to Dr Hilgenberg, she said quite candidly said, “To be fair, many things can cause a left cheek abrasion.”  The doctor also gave evidence to the effect that while she was not a specialist in the field, in respect of non-epileptic forms of seizures, the sufferer often is able to recall events prior to the seizure but not during the course of the seizure and there may be some confusion after the seizure.  The doctor also recorded evidence of intoxication on admission on the part of the respondent.

12. Both of these matters, the seizures and the level of intoxication, will be returned to in a moment.  I would note here though that the respondent suffers from two forms of seizures which can be triggered by, among other things, emotional stress and alcohol, both of which were present to varying degrees on the day and night in question.

13. In the original notice of appeal, eight grounds were particularised.  There was a degree of overlap and, perhaps not surprisingly, when the matter came before me, in the appellant’s written submissions, the grounds pressed in respect of the finding of guilt were limited to (1) the findings of the learned magistrate were unreasonable or could not be supported by the evidence, (2) the learned magistrate made a finding of the credibility of the respondent was unreasonable or could not be supported by the evidence, (3) the learned magistrate erred in permitting the appellant to be asked about bad character without leave being sought and granted and against objection.  The first two grounds of appeal were largely dealt with together.

14. Before going on to deal with those grounds, the new evidence sought to be adduced was concerned with an observation of the Court below where, at page 8 of the reasons between lines 40 and 45, His Honour said:

In cross-examination, he agreed that he told the complainant had been in the bathroom for an hour.  It doesn’t seem consistent with his evidence today.  He also accepted that from when he first heard footsteps and he went outside, it might have been 10 minutes before he went and approached the police and that he was confused and sitting on the steps for a while, waiting to find out what was going on.

15. It was submitted that new evidence would confirm the version given by the appellant, namely that the respondent had been in the bathroom for about an hour.  During submissions, I advised Mr McDougall that the text evidence was unnecessary because I could find no evidence which contradicted the appellant’s evidence on day 2 at page 14 of the transcript. That evidence was to the effect that when he left the bathroom and the respondent returned to the bathroom after leaving when the appellant entered to go to the toilet, it was about 10.30 pm and, the next time he recalled seeing or hearing the respondent was about 11.30 pm.  As is discussed below, there is other evidence that supports this aspects of the appellant’s version of events.

16. Turning then to the so-called inadmissible evidence of bad character. While this matter will be discussed in more detail below, generally speaking the issue arose in this context:  one of the attacks on the respondent centred around her having a motive to lie about the alleged assault.  This attack on her credit centred around evidence that on a previous occasion, the appellant had told police that he had stabbed himself.

17. During cross-examination, a lengthy exchange took place between Mr Sibley, the appellant’s solicitor, the respondent and the bench.  After the Court below warned the respondent about not having to answer questions that may incriminate herself, the cross-examination continued for some considerable period of time, in fact, over a number of pages.

18. In evidence-in-chief, other exchanges took place between the prosecutor and the appellant.  This involved the prosecutor raising with the appellant that on a prior occasion, the appellant had committed a similar act, namely stabbing himself.  Mr Sibley then objected to that line of question on the basis that it was not a relevant attack on his client’s character.  Following certain observations by the bench, thereafter the objection continued for a number of pages.  The prosecutor, however, was permitted to cross-examine on the point and that cross-examination took place over a fairly limited period of time.  In this context, it has to be kept firmly in mind that in evidence-in-chief, Mr Sibley questioned the appellant about the respondent accidentally stabbing him in some detail and I refer here to references at day 2 at page 8 between lines 1 and 45 and Day 2 at page 9 between lines 1 and 46.  If necessary, I will include those in the final version of these reasons when published.

19. In cross-examining the respondent about this instance in the manner that he did and in leading the evidence-in-chief from the appellant, Mr Sibley clearly, in my respectful opinion, left it open for the appellant to be cross-examined about that previous event.  The second observation I would make is that it is the answer to questions, that is, the evidence.  Questions of course provide the context to the answer but the evidence lies in the answers given.  As is already been pointed out or as I will point out, the appellant squarely denied that earlier event and, no doubt, that is why the Court below observed that as far as that matter could be taken, that was the end of it.  That is, His Honour, it seems tolerably clear to me, did not consider it to be a matter of significance and, no doubt, that is why no reference is made to that matter in His Honour’s reasoning.

20. For the reasons given, namely Mr Sibley’s conduct of the cross-examination of the respondent and the evidence he led from the appellant, Mr Sibley left it clearly open for the prosecutor to raise the alleged prior incident and put it to the appellant. And as I have already said, in any event, the appellant squarely denied the matter and the learned magistrate observed that that was as far as that matter could go.  In my view, the so-called bad character point has no merit.

21. Turning then to the respondent’s credit and/or reliability. In the appellant’s written submissions, it was said at paragraph 51 that grounds one and two are made out because, by way of summary, (a) the respondent gave evidence inconsistent with Mr B as to the telephone call, (b) the call to Mr B, which His Honour appeared to accept, was in fact, a false statement, (c) the text messages are inconsistent with the respondent’s evidence-in-chief, (d) His Honour erroneously found she was not intoxicated, (e) the respondent deliberately downplayed the frequencies of her seizures.  While the issue of motive to lie is not included in that summary, at paragraph 40 of the appellant’s written submissions, it is said:

The learned magistrate’s preliminary view regarding the motive to lie and the relevance of her having confusion during seizures are dealt with on pages 81 to 87.  His Honour express the view that the potential that the complainant made up the assault due to her motive to lie is farfetched.  The learned magistrate, with respect, erroneously did not view the complainant’s evidence about the frequency of her seizures as relevant to credit.

22. I found some difficulty with that submission as it seems to bundle up the motive to lie with the credibility issue based on the respondent’s seizures. I will deal with the intoxication issue first.  The respondent’s evidence was that both she and the appellant had been drinking that day and she also said that on occasion, she had been prone to excessive drinking.  However, in her evidence, she said on this particular occasion, to use her words, she was “only tipsy” and denied she was drunk.  The first observation I would make is that the Court below did not make an express finding, contrary to what is submitted, that at the time the respondent was not intoxicated.  In his reasons for judgment at page 11 between lines 42 and 47, His Honour did say:

But what I’m being asked to accept is that she was drunk, she had a seizure, fell down and hurt herself through no fault of the defendant.  She then got up, made a false phone call to Troy, sent a long series of false text messages to Troy about all of this but never asked anybody to call the police and didn’t call the police herself.  But then when the police were called by Troy, she told them she’d been punched.  I find that a ridiculous suggestion.

23. After referring to that passage of the judgment, it was said in paragraph 35 of the appellant’s written submissions that the medical evidence revealed that the respondent was intoxicated at the hospital.  The finding or the reference to a ridiculous suggestion made by His Honour was not directed solely to the issue of intoxication.  It was clearly His Honour expressing his view about the general thrust of the case as presented before him on behalf of the appellant.

24. The reference to the respondent being intoxicated at the hospital has to be treated cautiously in my view.  It has to be considered in context.  It is clear from the evidence of Dr Hilgenberg on day 1 at page 107 that her assessment was based solely on the fact that she could smell alcohol on the respondent’s breath and therefore presumed her to be intoxicated.  The doctor made no attempt to ascertain what the level of intoxication may have been and, not surprisingly, given that she was having a series of seizures at the time, the doctor made no comment as to how her cognitive facilities might have been affected due to the consumption of alcohol.

25. On the other hand, there is the evidence of the two police officers.  The evidence of Constable Young was that the respondent spoke softly but with a shaking voice.  Senior Constable Ray also described the respondent as seeming to be scared.  Of more significance though, is that the senior constable took a statement from the respondent at the scene and he described her as being both cogent and speaking well.  In a moment, I will also refer to the evidence of the appellant itself that tends to provide support for the fact that on that night in question, to use her words, the respondent was no more than “tipsy”.

26. Putting to one side the expressed concerns about the respondent’s evidence about the number of phone calls and the text messages and the contents of those messages, the motive to lie issue can also be disposed of quite readily in my view.  In respect of this issue, His Honour at page 11 between lines 22 and 35 of the reasons observed:

Mr Sibley exerts upon me that what I should find is that the complainant had a motive to lie because she was afraid that the defendant was going to accuse her of stabbing him. She says that in the text messages at least twice that he’s told her he’s going to accuse her of stabbing her.

27. That of course should read “him”, not “her”. This is clearly a mistyping.  What His Honour is referring to is the stabbing incident with the steak knife and according to the respondent, she believing that the appellant would, if it suited him, accuse her of in fact stabbing him.  His Honour went on to say:

The defendant’s evidence, though, was quite the opposite.  The defendant’s evidence was that he never said anything of that sort, that he was acting protectively against her even though she had stabbed him and that he wasn’t going to tell anyone.  Mr Sibley says, though, that even though his client says he never said that, that I should find her claim that he did say that as a motive to make up a story about him punching her.  I can’t follow the logic of that.  If that was never said to her in the first place, then why would she have a motive to protect herself from something that had never been threatened against her?  It simply doesn’t make sense.  The only rational inference I can draw from all of this is that he did say that he was going to stab her.  Indeed, the most telling point, I think, is the fact that the complainant did not call the police and did not even ask Troy to call the police.  What she did was call Troy and ask him to come and rescue her and remove her from the house.

28. His Honour’s observations about this part of the appellant’s case not making sense is entirely understandable.  During the closing address, a number of exchanges took place between the bench and Mr Sibley, where Mr Sibley tried to explain how the motive to lie came to be and how it would operate.

29. Before proceeding further though, I should note that in addition to His Honour seeming to have confused the stabbing incident in question, there are a number of other concerning features.  It seems to me that there was no evidence which would permit His Honour to reach the conclusion or to use his words, consider the only rational inference that could be drawn was that the appellant was intending to or had threatened to stab the respondent.

30. Also, His Honour wrongly, in my respectful opinion, focused on what the appellant might or might have said or done.  Mr Sibley was right to point out that it was what the respondent thought might happen that would provide the basis for the necessary motive. One, her text messages to Mr B records her saying, among other things, “He said he will make it look like I stabbed him.” Words to that effect were said on more than one occasion, including:

He has gone crazy and said if I do anything, he will tell the cops I stabbed him.

31. That said, as His Honour rightly pointed out the motive to lie submission was so unlikely as to be implausible.  During oral submissions before me, Mr McDougall, in my respectful view, also had difficulty in really being able to articulate exactly what the motive to lie defence was.  While the belief of the respondent that the appellant might tell the police that it was she who stabbed him and not that he stabbed himself might be a reason for her not to want to get the police involved, in my view, it would be nonsensical to say that it provided a basis for a motive to lie.  Finally on this topic, the respondent’s evidence rejecting the motive to lie was not shaken during cross-examination.  There was simply no reason for His Honour to have given any more consideration to this issue other than what he did and he certainly had no need to consider the usual bench book direction on the topic.

32. Turning now to the question about the Court below failing to give any sufficient weight to the respondent’s evidence minimising the frequency of her seizures.  It can be accepted that at times, the respondent did tend to downplay the frequency of those seizures.  That, of course, is not to her credit.  That said, the nature and extent of the seizures were clearly distressing to her and, quite likely, a source of embarrassment.  That the respondent might tend to downplay her condition does not, in my view, materially damage her credit.  Further, the cross-examination of the respondent on this topic was not only distressing for the respondent, it was also, at times, quite confusing.  That may also be another reason which goes some way to explaining the conflicting evidence on this issue.  However, most importantly, it is clear that His Honour proceeded on the basis that the respondent did, in fact, have a serious history of severe seizures.  His Honour said:

There is also no dispute that the complainant suffers from a medical condition, perhaps more than one medical condition, which makes her susceptible to having seizures and that she has, in the months prior to the incident and the months since then, had multiple seizures on a number of occasions resulting in her hospitalisation. All of that, I think, is uncontentious. 

33. In fact, His Honour went on so far as to acknowledge that he could not rule out 100 per cent that she did not fall while having a seizure.  His Honour said in his reasons at page 10 at about line 40 that he accepted that that was a possibility, but that was as far as it went.  While His Honour could not rule out the possibility of a fall, His Honour clearly went on, on the totality of the evidence, to be satisfied that the injury caused was not as a result of the fall and he was able to rule that out beyond a reasonable doubt.  I agree with that assessment for the reasons I will come to in more detail on in a moment.

34. The respondent’s evidence that the appellant struck her was not shaken in any way in cross-examination.  Her evidence was also that she recognises the signs of an oncoming seizure and that no such signs prior to entering the bathroom were present.  That evidence is, in fact, to an extent, corroborated by the evidence of the appellant.

35. The evidence of the appellant was that when he entered the bathroom using a butter knife at about 10.30, the respondent appeared quite normal.  It also has to be borne in mind that by this time, according to the appellant, the previous arguments had been well settled and that the appellant had gone to the bathroom.  At no time did the appellant say the respondent appeared other than normal, including when she woke him at about 11.30, although he did say at that time he was concerned for her but that reason for concern was never explored.

36. There are also the text messages sent by the respondent to Mr B contained in Exhibit 5.  They commence at 10.42 pm.  At page 6 of Exhibit 5, there is a text from Mr B to the respondent referring to the police being on their way.  According to Constable Young and Officer Ray, they arrived at about 11.48 pm that night.  At page 7 of Exhibit 5, there is a text from the respondent saying that she thought the appellant was asleep and she was going to try and sneak out.  A similar text was sent by the respondent some time later.  Mr B then sends a text confirming that the police were waiting outside. That appears in Exhibit 5 at page 8.

37. All of this is consistent with that part of the appellant’s evidence where at day 2 at pages 13 and 14 of the transcript, being to the effect that he went into the bathroom some time around 10.30.  At that time, the respondent left the bathroom.  He went to the toilet.  He then left and the respondent returned to the bathroom.  As I understand the evidence, after seeing the respondent some time at or around 10.30, his evidence was that he did not see her again until some time around 11.30.  It is also highly likely that during that time, the respondent did, in fact, have a shower as she indicated in one of her text messages.

38. When the totality of this evidence is considered, it provides, in my view, powerful corroboration for the case for the prosecution.  The appellant’s evidence was that he entered the bathroom at about 10.30 pm. There is then a telephone call from the respondent to Mr B at 10.37 pm saying she had been struck by the appellant thereafter. At about 10.42 pm that night to some time just before the police arrived around 11.48 pm, the respondent was providing an ongoing, coherent narrative of her version of events, including what she was going to do. Which is what she in fact did when she got dressed and went to meet the police.  As I said, this ongoing narrative, in my view, provides powerful corroboration for the respondent’s direct evidence that she did not have a seizure and that it was the appellant who caused the injury to her face.

39. In my view, the Court below made no error in its assessment of the probability of the respondent injuring herself. But more significantly, on reviewing the totality of the evidence for the reasons I have given, I have reached the conclusion that whilst the respondent might have been inclined to minimise the extent and nature of the seizures that she suffered, that did not have any material impact on either her credibility or reliability.

40. Turning then to the balance of the matters raised on behalf of the appellant attacking the credit of the respondent, the evidence of Mr B makes it clear that some time before the respondent sent her first text, she phoned him at 10.37 pm and in that phone call she said to the effect that the appellant had hit her and had also hit her on a previous occasion.  That that phone call was made and what was said must be accepted.  Mr B said that this information caused his ears to prick up because he knew something serious was happening.  It must also be accepted that the assertion was false in the sense that there was never any suggestion of a prior assault. 

41. In the appellant’s written submissions, it is said in paragraph 48 that the respondent denied that phone call had occurred.  References are made to day 1 of the transcript at page 43 at line 40. It is true that at that point, the respondent did deny making the phone call but prior to that, she had said to the effect that she could not recall making that call or that she did not believe that she had made that call.  In response to a question from His Honour at day 1, page 44, line 40, the respondent again refuted the suggestion that in a phone call, she had referred to the appellant hitting her on more than one occasion.  However, at page 45, the respondent, after further cross-examination, said to the effect I am confused about all of this:

I am just confused about a conversation that I had six months ago.

42. On the next page at page 46, she also refers to seeing a psychologist to, to use her words, “put it all behind her and out of her head”.  Her evidence on this topic is clearly confusing and at odds with Mr B’s evidence.  Her evidence, however, is not of itself or indeed, in combination with any of the other matters raised on behalf of the appellant, sufficient to raise serious doubts about her credibility and reliability.

43. Insofar as her denial of that phone call, it would seem that, on balance, she was tending to back away or resile from any suggestion of such a phone call but as I have pointed out, her evidence was extremely confusing about the call, whether it was made and its contents.  This confusion, of course, does impact on her reliability but it must be borne in mind that at the end of the day, it is very much but a collateral issue.

44. During her cross-examination at page 52, the respondent also gave evidence that she could not recall the exact sequence of events but, again, in this context she said, to the effect, “All this happened six months ago and I do not have a perfect memory of things.”  As was the case concerning the phone call to which I have just referred or any of the other inconsistences in the respondent’s evidence pointed out on behalf of the appellant, none in any material way, in my view, damages the credit and/or reliability of the respondent’s evidence on the real issues at trial.  As I have said, they were purely collateral matters about which the respondent could understandably either have forgotten about or was confused about.

45. The appellant, of course, could not give any direct evidence about what occurred in the bathroom that night insofar as whether a seizure had occurred.  He did, however, strenuously deny punching or striking the respondent.  The appellant’s case turned on whether or not, as I have already said, the decision maker could not rule out beyond a reasonable doubt that while in the bathroom, the respondent had a seizure, fell and injured herself.  Something that had occurred, I would note, on at least two previous occasions.

46. His Honour clearly made a number of errors and/or drew inferences that were not open.  These included his rejection of the appellant’s estimate about how long the respondent had been in the bathroom.  His Honour also wrongly considered that the question of motive was determined by what the appellant had said or did and not what the respondent thought.  There was also no evidence, as I have said, which would support the drawing of an inference that at some stage, the appellant had threatened to stab the respondent.

47. However, that these errors exist, of course, is in no way determinative. As I have said, in the High Court decision of Fox v Percy and the other cases to which I have referred, it is for this Court to reach its own conclusions about the outcome of the appeal after considering the whole of the evidence including weighing conflicting evidence and drawing its own inference and conclusions based on the evidence.

48. It is uncontroversial that the respondent had suffered a blunt trauma injury to the side of her face.  Also, that after a clearly emotional argument, the respondent had locked herself in the bathroom.  At that time, there was no suggestion that the injury already existed.  It is also uncontroversial that at some stage, the appellant used a butter knife to force the lock and enter the bathroom and that the injury must have occurred some time after that. 

49. As I have already said, the respondent’s evidence about being assaulted by the appellant was not shaken in cross-examination.

50. More importantly, perhaps though, is the phone call and series of text messages to which I have referred up until the arrival of the police.  To repeat myself, I consider that evidence provides strong corroboration for the respondent’s version of events.  The phone call and the texts make it clear that the respondent made an allegation about the assault at a very early stage in the exchanges with Mr B.  Thereafter, the balance of the texts provide a cogent and logical narrative about what the respondent was thinking and intending to do.

51. That the respondent did not have a seizure that night is also, to an extent, in my view, supported by some of the evidence of the appellant.  His evidence was that he had seen the respondent have seizures on many occasions and that a typical seizure would render the respondent incapable of doing anything and that that situation could last for up to 15 minutes.  The uncontradicted evidence from the respondent was that after a seizure had ended, it could take up to 30 minutes before, to use her words at day 1 page 70, “to know where I am and what’s going on”.  Unfortunately, I was not taken to any evidence if indeed it existed as to how long a typical seizure may last.  But in any event, this evidence would at least be strongly suggestive of the fact that the respondent would have been unlikely to have been able to provide the text narrative to which I have referred in the event that she did have a seizure.

52. Also, while the respondent’s evidence made it clear that the consumption of alcohol, particularly when coupled with stress or tiredness, can trigger seizures, I have already reached the conclusion that I can accept the evidence that she was, to use her words, “only tipsy” at the time.  Also, there is the conflicting evidence about how stressful the situation was prior to her entering the bathroom.  Clearly, the respondent would have been distressed after being struck. However, in this regard, the appellant’s evidence was that everything was essentially calm.  According to him, the argument had effectively ended. The appellant did not say that the respondent appeared to be stressed, nor did he say that she appeared to be intoxicated.  Also, his evidence was that he woke and entered the bathroom at about 10.30 pm.  Again, there was no evidence from the appellant that at that time the respondent appeared either stressed or affected by alcohol.  So according to the appellant, neither of those two triggers were present on that night.  And as I said, I think already, his evidence also supports the respondent’s version of events that on that night, she was merely tipsy.

53. For the reasons given, I am satisfied that there is no room for a reasonable doubt that the injury suffered by the respondent was the result of the respondent having a seizure and falling or otherwise sustaining the injury as a result thereof.  It follows that I am satisfied beyond reasonable doubt that the appellant was guilty of committing the offence with which he was charged.

54. The final matter I perhaps should address here was the issue raised in the appellant’s written submissions concerning the fact that the respondent, after being warned about not having to answer questions that might incriminate herself, had in fact, claimed privilege on two occasions.  I reject that attack on the respondent’s credit.  On more than one occasion, she expressly denied stabbing the respondent and categorically stated that it was the appellant who had stabbed himself.  As to the claiming of privilege, in my view, that cannot be used to attack the credit of the respondent.  This is particularly so in circumstances where the transcript reveals that she was utterly confused about the process and, I must say, also not surprisingly by the line of question she was being asked about that topic.

55. Turning then to the appeal in respect of the sentence of four months with a parole release date set at the halfway mark, the Court below correctly identified a number of observations, in my respectful opinion, about the seriousness of the offending.  These were conveniently set out, in the written submissions filed on behalf of the respondent.  At the time, the appellant was a mature, 38 year old man.  The other matters that are pointed out are that the offending was a serious breach as it involved actual violence causing bodily harm.  It was also pointed out quite correctly that there was a lack of remorse on the part of the appellant, which was exacerbated by the extent of cross-examination of the respondent’s unfortunate medical history.

56. It was also relevant, as His Honour found, that the domestic violence occurred only a short time after the appellant was placed under that order.  His Honour was also correct to identify that the circumstances of the appellant, namely breaking into the locked bathroom with a butter knife, was an aggravating feature.  Also correctly that the injury to the respondent’s face was significant to the extent that it left not a permanent, but a clearly identifiable bruise.  Reference was also made, appropriately, to the relevant criminal history but I will say something more about that in a moment, particularly having regard to the nature of the offending and the date of that offending.

57. His Honour was also correct to say that the law and the community have taken an increasingly hardened view about domestic violence and I think it was a fair observation for His Honour to make that by and large, the community is fed up and greatly concerned by this type of offending.  His Honour found, to use his words:

A sentence of imprisonment is not a sentence of last resort today because violence is involved.

58. That is, in fact, correct.  His Honour then went on to say to the effect that in this case, the only option was that the appellant be required to serve a period of actual custody.  I will return to that in a moment.  His Honour also correctly rejected, in my view, as being not comparable a number of precedents which were relied on by the prosecution.

59. It is true that the cross-examination of the respondent about her medical history was prolonged and distressing.  However, that has to be seen in the light of her somewhat confusing and contradictory evidence on the topic.  But more significantly though, His Honour, in my view, was quite wrong to identify the cross-examination on the respondent’s medical history as being, to use his words, “largely irrelevant and unnecessary”.  That the respondent might have had a seizure and injured herself was a central pillar of the appellant’s defence.  I have no doubt that the cross-examination could have been carried out much more efficiently and greatly shortened both the length of the cross-examination and the distress caused to the respondent.  That said though, it was quite wrong, in my respectful opinion, to describe it as largely unnecessary and irrelevant.

60. During submissions on sentence, Mr Sibley made submissions including those about the appellant’s strong work ethic.  Indeed, the evidence was that at the time of the offending, he was employed as a pastry chef.  A reference was provided in support of his employment and his work ethic.  Another reference was tendered speaking highly of his character.  It was also pointed out to His Honour at the time of the trial, that after this incident had occurred, the appellant had moved back to Biloela to reside with his mother and that he was also in contact with his six year old daughter and seven year old son from a previous relationship.

61. None of these matters that might have led to a more lenient sentence were mentioned, let alone apparently given any weight by the Court below as far as I have been able to ascertain.  These were all material considerations that ought to have been considered in the exercising of the sentencing discretion.  They were not.  Accordingly, there is clearly an error revealed in the exercise of the discretion by failing to take those favourable antecedents into account.  Accordingly, it is open for this Court to revisit the sentence imposed.  I can say at the outset, though, that the level of offending does not warrant the leniency of a fine or community-based order.  On the other hand, I have already indicated, the Court below does not appear to have had any regard to the appellant’s favourable antecedents.

62. Insofar as his criminal history is concerned, the only entry for a prior domestic violence offence was a fine for an event that occurred in 2008.  There was one entry for common assault some 20 years ago.  Otherwise, in 2007, the appellant committed some minor street-type offending.  It was very much a dated history and was certainly not one which would, in my respectful opinion, caused the Court to have grave concerns about propensity for violence on the part of the appellant.  That is in no way intended to downplay the serious nature of what occurred on this occasion.  It was, at the end of the day, a cowardly attack on a vulnerable woman in a domestic situation.

63. While His Honour correctly identified that the cases relied on by the prosecution were unhelpful, he did not refer to any decisions that provided support for the sentence imposed.  I should rush to add here that in my respectful opinion, he did not have much assistance from the appellant’s legal team at the time, at least insofar as that matter is concerned.  In the Court of Appeal decision of R v CBU [2017] QCA 227 at paragraphs 91 and 92, it was said by Justice Morrison:

When considering this question one must bear in mind what was said in R v Tout [2012] QCA 296 at paragraph 8:

A contention that the sentence is manifestly excessive is not established merely if the sentence is markedly different from sentences in other cases.  It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle or that the sentence is ‘unreasonable or plainly unjust’.

64. His Honour went on to say:

Further, there is no one single correct sentence.  Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the relevant statutory regime.

65. In that case, the appellant was convicted after a trial of two counts of assault being in a domestic violence setting.  He was acquitted of four serious charges including one of rape in a domestic violence setting.  In respect of the two charges he was found guilty of, he was convicted to and sentenced to six months imprisonment with a parole release date after trial set at three months.  Both of those sentences were to be served concurrently.  The appeal against sentence was rejected by all three members of the Court.  The appellant there was between 36 and 40 years of age at the time of the offending.  He, like the appellant here, had a good work history. He displayed no remorse.  He had no history of public violence but the Court observed that there were other episodes of domestic violence.  Otherwise, there was no criminal history.  That is, his violence was limited to the domestic setting.

66. Quite correctly, it was observed, that in cases such as this, general and personal deterrence are powerful considerations.  I would add to that in cases such as this, public denunciation is also a relevant consideration.  On any view of it though, the offending in CBU which attracted the head sentence of six months with parole after three months, was grossly more serious than that in this case.  One of the counts, count 4, was described in these terms at paragraph 13 of the decision:

Count 4 concerned events in August 2008, when she was in the kitchen cooking and there was an argument.  The appellant took a knife, held it to her stomach and throat, and told her that he was going to “gut me like a pig and cut my throat”, and “I’ll cut your throat.  I’ll gut you like a pig.  Shut your fucking mouth.”  All four children gave evidence of having witnessed this from the adjoining lounge room, though there were inconsistencies in the accounts.

67. Count 5 is described in these terms:

On 6 June 2013, when she and the appellant argued over the money which she had discovered hidden in a cavity in the bedroom.  She asked the appellant where the money was, and he said he would show her.  He then grabbed her by the arm, dragged her downstairs to the gun safe.  He picked up a broom, first threatening her with it, and then he began to hit her with it.  She fell and he told her he was going to smash her head into a pulp.  He picked her up by the arm, dragged her to the gun safe, and pushed her head into it, saying “Fucking look where the money is”.  He punched her in the face.  He then dragged her back upstairs and picked up a bar fridge, threatening to smash up the house and kill the police if she called them.  He slapped her across the face then put a pillow over her face so she could not breathe easily.  During that time he also made threats to kill her and her parents.

68. Here, of course, there was actual violence resulting in an injury but as I have said, here the incident involved one punch and was over very quickly.  Nothing like the prolonged violence and threats raised in those two charges in CBU.  The use of the knife to gain entry into the bathroom was, of course, as His Honour recognised, clearly an aggravating feature but there was no suggestion that that knife was used in the assault, nor that the respondent was threatened with it.

69. The offender here did require a term of actual custody, but not two months when regard is had to the time the appellant in CBU was required to serve after a level of offending he had inflicted on the victim.  The appropriate range of a head sentence in my view was two and certainly no more than three months and, having regard to the favourable antecedents which were not considered below, it would have been open to grant an earlier parole release date less than the halfway mark, notwithstanding the fact that the matter had gone to trial.

70. The conclusion that I have reached is that the sentence imposed by the Court below was manifestly excessive and that an appropriate head sentence would be of the order of two months.  Ordinarily after a trial, that would see a parole release date being set at or about the one month mark.  Here though, matters are somewhat complicated in that the appellant was released on bail pending appeal on the 24th of July 2020, that is, after serving 30 days in custody.

71. Bearing that in mind, the sentence that I will impose is that the appellant be sentenced to 30 days in custody and I will declare the 30 days served between the date of sentence, 25 June 2020, and the date of release on bail, 24 July 2020, as time served.  This of course would mean that the appellant will not be under supervision on parole for about one month.  However, given his largely minor and dated criminal history and the fact that he has moved to Biloela to live with his mother, I do not consider that ongoing supervision is necessary and it is for those reasons that I made the orders that I have already indicated to the bar table.

72. Now, I got a bit confused between respondent and appellant on a number of occasions there but I will tidy that up in the reasons before they are published.  But is there anything anyone wants to say at this stage?

73. PROSECUTOR:   No, your Honour, thank you.

74. UNIFENTIFIED SPEAKER:   So your Honour, just to understand the sentence that your Honour has imposed.  It is not two months with 30 days to serve, it is actually 30 days with time served?

75. HIS HONOUR:   Yes.

76. UNIDENTIFIED SPEAKER:   Okay.  Thank you, your Honour.

77. HIS HONOUR:   I just thought that was the neatest way to deal with it.  If I was dealing with it at first instance, it might well have been two months      

78. PROSECUTOR:   With 30 days.

79. HIS HONOUR:  With a parole release date after one month but bearing in mind that he has served 30 days and he is now living in Biloela, I think the neatest way is simply to sentence to 30 days and the time declared.

80. PROSECUTOR:   Thank you, your Honour.  Nothing, your Honour.

81. UNIDENTIFIED SPEAKER:   Thank you.