R v Terrence Joseph McGlone[2019] QDCPR 6

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the defence pursuant to section 573 of the Criminal Code 1899 (Q) for further and better particulars of the charge of grievous bodily harm.

2. [2]
   Further, the defence intends to apply for a stay of the prosecution if I rule the particulars are insufficient.

Charges

3. [3]
   The defendant is charged with the following counts:

Count 1 – That on the 9^th day of September 2017 at Townsville in the State of Queensland he entered the dwelling of Patrick Joseph McLellan with intent to commit indictable offence in the dwelling and the entry was by means of a break and the office was committed in the night.

Count 2 – That on the 9^th day of September 2017 at Townsville in the State of Queensland the defendant unlawfully did grievous bodily harm to Patrick Joseph McLellan.

4. [4]
   The particulars argument relates to Count 2.

Summary of the Crown Case

5. [5]
   The complainant lived at 12 Railway Avenue, Railway Estate. He says that he lived in an older style cottage house that was raised off the ground and which fronted onto Railway Avenue. At the rear of his house was a laneway which provided vehicle access to his house and where he parked his car and boat. At the rear of the house is a set of stairs that leads to the rear door that opens into the kitchen. On 9 September 2017 at about 9.00 am his son, Jordan came to his place for a couple of beers. Later that afternoon the complainant went into town and caught up with Jordan and his girlfriend at the Wild Goose Bar. He locked his house when he left. There was no broken window when he left that afternoon. He recalls he got into a disagreement with Jordan’s girlfriend and she stormed out. At about 6.00 pm he walked to the Herbert Hotel to meet up with his friend, Justin Lee. Jordan and his mate “Tripod” were also there. At about 10.30 pm he received a phone call from the defendant whom he calls “Terry”. The call only went for about 29 seconds but he could not hear a word because of the loud noise coming from the band. He has known Terry McGlone for a long time. The defendant lived just around the corner from him at 31 First Street. The complainant thinks he walked home from the Herbert Hotel but does not recall what time he left or getting home. He was intoxicated. He cannot recall how he got into the house but normally he would go in through the back door. He would have pushed a kitchen window open, reached through and unlocked the rear door. There was no one home when he got home. The kitchen window and the door were intact when he got home. The next thing he recalls is waking up with police around him and he was covered in blood. There was an ambulance there. He was taken to the Townsville Hospital where he was told that his skull was fractured. He has since reviewed his messages on his mobile phone and he received the following text messages and calls from the defendant:

18.52 hours “You’re a fuckhead cunt”.

21.49 hours: “Did you hear me?”

22.05 hours Missed call from Terry.

22.06 hours “Are you home?  Like to catch up?”

22.08 hours “Drop in anyway cheers”.

22.13 hours “Where are you?”

22.21 hours Missed call from Terry.

22.37 hours Missed call from Terry.

22.51 hours Missed call from Terry.

22.54 hours “QIM at yours.”

22.59 hours “Waiting at yours.”

6. [6]
   On 10 September 2017 he received a text message from Terry on his mobile phone which read “I never going to forgive myself. I’m so fucked up Paddy. I can’t believe it. I’m so sorry I won’t blame you for whatever you do.”

7. [7]
   The complainant says he never gave any person permission or authority to break into his house.

8. [8]
   Dr Alex O'Hanlon has given a report concerning the injuries. He is a qualified medical practitioner employed as the neurosurgery principal house officer at Townsville Hospital. A medical examination of the complainant on 10 September 2017 disclosed the following:

1. (a)
   external evidence of trauma – significant facial oedema; right eye was almost swollen shut; evidence of previous bleeding from his left external auditory canal; previous bleeding from both nostrils and facial lacerations that have been repaired with nylon sutures.

2. (b)
   laceration repair to the right hip;

3. (c)
   otherwise neurologically intact.

9. [9]
   A CT scan of the head, face and cervical spine was conducted on 10 September 2017 which identified complex bases skull fracture involving the right frontal sinus with inner and outer walls and roof of the right orbit as well as the right sphenoid sinus roof, left lateral wall and floor. There was a corresponding non-displaced longitudinal fracture of the left temporal bone. There was also a small left subdural haematoma. There was further a penetrating injury over the right anterior superior iliac spine. He formed the conclusion there was a traumatic head injury which was consistent with blunt force trauma to the head and a penetrating injury to his right hip. He formed the opinion the injuries met the definition of grievous bodily harm.

10. [10]
    Susan Petran has given a statement dated 12 September 2017. She resided at 10 Railway Avenue, Railway Estate next to the complainant.  At 10.40 pm on 9 September 2017 she heard the sound of bottles smashing coming from 12 Railway Avenue.  She heard the distinct sound of smashing glass like a window breaking.  She heard a male voice yelling “let me fucking in, let me fucking in”.  The voice was very aggressive and there was a lot of swearing.  This went on for a few minutes.  She then went to bed and then heard thumping.  It was the sound of a fist hitting or kicking a person repeatedly.  The male was yelling again words like “I told you not to fucking spread rumours Patty.”  She didn’t hear any word from the person named Patty.  She heard one moan from the person being assaulted towards the end of the incident. 

11. [11]
    Elizabeth Zappala has provided a statement dated 12 September 2017. She resided with Ms Petran at 10 Railway Avenue. She recalled at about 10.40 pm on 9 September 2017 hearing a male voice yelling next door to let them into the house. It was not Patty’s voice. The yelling was aggressive and the person was saying “Let me fucking in. I know you’re in there. I’m going to fucking get you.” She heard the sound of glass breaking or smashing like bottles and the person was ranting on in an aggressive way. She did not hear Patty’s voice during the incident. Half an hour later she heard Patty being assaulted in the backyard by a male person. She could hear thumping and someone being attacked. It sounded very violent.

12. [12]
    Quentin Owen has provided a statement dated 10 September 2017. He lives at 1 Flowers Street, Railway Estate.  He lives behind Railway Avenue.  At about 11.00 pm on 9 September 2017 he heard a loud disturbance at the house across the back from him.  He initially thought it was coming from number 14 Railway Avenue which is Mick’s house but then realised it was coming from number 12.  The property was only raised about five foot from the ground and he heard noises such as smashing glass and banging.  He had seen the resident who lived at 12 Railway Avenue previously.  He then saw a male person standing at the top of the back steps.  This was not the resident that he had seen previously.  He also saw the window to the right-hand side at the top of the steps was smashed.  He was yelling “where are you Patty?”  He then heard a dog yelping in pain.  He then saw the male person enter the house via the backdoor.  He then heard the male person yelling “I told you not to have a go at me.  I’ve told you not to have a go at me haven’t I Patty?”.  He repeated this about three times and was on the back steps when he was yelling this out.  The house went quiet and he then heard another male person groaning in pain.  He then saw the first male dragging something down the back steps and believes it was a person.  At the same time he heard a male person groaning in pain quite loudly.  The skinny guy (the first guy) appeared quite calm.  The police arrived not long after this. 

13. [13]
    Paul Williams has provided a statement dated 15 September 2017. He lives at 62 Robertson Street, Railway Estate. He knows the defendant who lives at 31 First Street. He also knows Patrick McLellan. He is called Patty. On 9 September 2017 he received a phone call from the defendant but missed the call. He then received a text message at 6.54 pm from the defendant stating “Can you please ring Cheers”. He then called and had a conversation with the defendant who said “Patty has been saying shit about me”. He sounded upset. A few hours later a woman (Lou) rode around on her pushbike panicking saying “Terry has gone around to get Patty”. Mr Williams then got on his bike and rode to the female’s house at Tenth Avenue where the defendant was located in a car. Mr Williams tried to calm the defendant down who said “you can fuck off too” and the defendant jumped out of a car with a lump of wood and ran down the road towards Patty’s house. After this they went back to Patty’s place to try and stop what was happening. He later saw the defendant throw the lump of wood over a train line fence. Later he heard the defendant on a phone asking him to go and check on Patty but Mr Williams said “fuck off I’m not getting involved” and didn’t go around there.

14. [14]
    Constable Jayce Price in a statement dated 6 October 2017 says that he arrived at the residence at about 11.15 pm on 9 September 2017. When they went to the backyard he saw a set of stairs leading to a door and there was smashed glass at the bottom of the stairs with a number of blood droplets. As he walked up the stairs there was more blood near the top of the stairs. A window at the right-hand side of the door appeared to be smashed. There were cans of alcohol inside and some sort of disturbance appeared to have occurred. The male victim was lying on a bed covered in blood. He awoke and appeared confused and dazed. There was a large laceration with what appeared to be an indentation at the front right of the victim’s forehead. The left side of his face appeared to be severely swollen around the cheek area as well. He was taken to the hospital.

Particulars

15. [15]
    The defence sought particulars of the grievous bodily harm charge and the Crown by way of reply stated that the particulars were that the accused was the person who caused grievous bodily harm to the complainant.

16. [16]
    After some debate in Court this was changed to “the defendant assaulted the complainant and thereby caused grievous bodily harm to him”.

Defence submissions

17. [17]
    The defence submits that the particulars here are insufficient. It is submitted that the particulars do not sufficiently identify how the defendant caused grievous bodily harm to the complainant and what act or events are relied upon by the Crown that are capable of giving rise to a conclusion on how the defendant was responsible for the injury.

18. [18]
    In further written submissions the defence submits that a mere allegation of assault is an insufficient particular.

Crown’s submissions

19. [19]
    On the other hand the Crown submits that this is a case involving both direct and circumstantial evidence. It is submitted that the particulars given sufficiently identify the prosecution case.

20. [20]
    The Crown submits in further written submissions that it is frequently the case that the crown is unable to particularise the exact mechanism by which death or GBH occurs. It relies on Baden-Clay v R^[1] as an example.

Discussion

21. [21]
    In Johnson v Miller^[2] the High Court noted the importance of proper particulars.  Dixon J at page 489 noted:

“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 of not only 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.”

22. [22]
    In this case the jury is being asked by the Crown to draw reasonable inferences from the circumstantial evidence that the defendant assaulted the complainant.^[3]  The fact is it is frequently the case that the Crown is unable to exact and particularise the precise mechanism by which death or grievous bodily harm occurs but that the accused caused the death or grievous bodily harm.^[4] 

23. [23]
    In Plomp v R^[5] it was held that on a charge of murder, proof of an accused’s motive for the killing may with all the other circumstances, be used as evidence both that the deceased was killed and that the death was caused by the accused and it is not necessary to prove that some act of the accused was responsible for the death before evidence of motive can be used to prove guilt. This principle was adopted by the High Court in R v Baden-Clay^[6].  

24. [24]
    The above principle equally applied to a charge of unlawfully doing grievous bodily harm. In this case it is my opinion the particulars are sufficient.

25. [25]
    The Crown case here is that there is a circumstantial case against the defendant that he applied force to the complainant which thereby caused the complainant grievous bodily harm.

26. [26]
    There are a number of circumstances relied on for that conclusion as follows:

1. (a)
   there is the evidence of motive or bad blood between them;

2. (b)
   there is the evidence of the break-in to the house;

3. (c)
   there is evidence of an arguable admission made on 10 September 2017;

4. (d)
   there is the evidence of Ms Petran that there was the sound of thumping, kicking or hitting of a person repeatedly with the person yelling “I told you not to fucking spread rumours Patty”. This can readily be inferred to be the defendant;

5. (e)
   there is the evidence of Ms Zappala that there was a threat to get him and again the sound of thumping or someone being attacked;

6. (f)
   there is the evidence of Mr Owen of someone yelling at Patty and the dragging of what may have been a person down the back steps;

7. (g)
   there is the evidence of Mr Williams that the defendant had a weapon in his possession which later he disposed of and the request made to Mr Williams to check on the complainant.

27. [27]
    A combination of these circumstances can lead one to the conclusion that the defendant applied force to the complainant and thereby caused him grievous bodily harm and that the application of force was unlawful.

28. [28]
    In all of the circumstances it is my respectful opinion that the Crown case is sufficiently particularised. The defendant knows the case he has to meet.

29. [29]
    I dismiss the defence application.