R v Brown [1996] QCA 251

Court of Appeal (Qld)|1996-07-26|Before: Before Fitzgerald P, Davies J, Ambrose J

The appellant has appealed against his conviction in the District Court on 12 April 1996 of an offence of unlawfully doing grievous bodily harm with intent to cause grievous bodily harm. He was sentenced to imprisonment for six years, and has also applied for leave to appeal against his sentence. Both appeal against conviction and application for leave to appeal against sentence were based on extremely narrow grounds, and we do not propose to refer to the circumstances of the case beyond what is necessary in order to determine the points argued.

On 7 November 1994, the complainant, Andrew Wayne Stewart Smith, visited the premises of a woman, Barbara Hanson, with whom he had been romantically involved. At the time, Ms Hanson was in a similar relationship with the accused, who was present at her residence when the complainant arrived. An altercation ensued and the complainant received a number of injuries, including a compound fracture of the tibia at the right shin. It was that injury which the prosecution case alleged constituted grievous bodily harm, as is plainly correct.

On the appellant's version, the complainant came downstairs to see Ms Hanson lying face down on the bed and the complainant standing facing him. He suggested that the complainant leave, whereupon the complainant hit him twice, with the first blow to the left side of his face. He then struck the complainant, whereupon the complainant attacked him with a small metal baseball bat. The appellant moved to an adjoining room, and told the complainant to put the baseball bat down, but the complainant struck him on the arm with it. The appellant then picked up a spanner and struck the complainant on the head, the complainant swung the baseball bat again and the appellant struck him on the arm, and then hit the complainant on his legs a couple of times and threw him out the back door of the premises. Medical evidence indicated that the blow to the complainant's head, which was the first blow which the appellant struck, would have stunned the complainant if it did not knock him off his feet, and that the blow which broke the complainant's tibia was struck to the inside of his right leg.

The trial judge informed the jury that it was necessary for the prosecution to negative self-defence, but pointed out to them, correctly as it was conceded in this Court, that self-defence would be negatived if the jury was satisfied beyond reasonable doubt that the appellant's version of events was false or if, although the complainant attacked the appellant with a baseball bat "what the [appellant] did by way of reaction was out of all proportion to the attack upon him". Particular reference was made to the conduct of the appellant in proceeding to strike the complainant with the spanner after hitting the complainant both on the head and on the arm, and in particular to the appellant striking the complainant and breaking his leg subsequent to the earlier blows. In response to a question from the jury, his Honour informed them that it was sufficient if the intent to cause grievous bodily harm was "formed a second before the blows were struck to the leg".

Regrettably, counsel for the prosecution, in cross-examining the appellant, attained his assent to a proposition that he was, in effect, calling the complainant a liar, and then applied for, and obtained, leave to cross-examine the appellant as to a conviction, on 7 March 1996, some months after the offence for which the appellant was on trial, for possessing a video-recorder suspected of having been stolen; the applicant had been fined $50.00. Before this Court, the prosecution effectively conceded that the trial judge's discretion had miscarried on that point. Nonetheless, as the appellant's counsel acknowledged, that did not lead to the success of the appeal. On the appellant's own version of events, his conviction was inevitable. There is no possible basis upon which the jury could have doubted that, assuming the appellant needed to defend himself, he used more force than was necessary. This is a case in which the appeal should be dismissed on the footing that the appellant's conviction involved no miscarriage of justice.

However, it was submitted for the appellant that, on the hypothesis that the jury probably accepted his version of events, his sentence was manifestly excessive. The basis for the submission that the jury probably accepted the appellant's version of events was that, about two hours after it retired, the jury asked the trial judge to "provide the legal definition of intent and also what points the Prosecution needs to prove to negate self-defence". It was submitted that such a question, at that point, indicated that at least one or more members of the jury were not satisfied beyond reasonable doubt with the complainant's account of what had occurred. That was not the view of the trial judge who, when sentencing, said:

"This was a totally unprovoked attack and a particularly vicious crime. You attacked your victim with great savagery using a long handled spanner some twelve to fourteen inches long.

He suffered a compound fracture of his right leg and that was caused by repeated blows by you on his leg with an long metal spanner. I am satisfied that at the time he was lying defenceless on the ground and you kept beating him with a long metal spanner. ..."

It was submitted for the appellant that, in the circumstances, the trial judge breached his duty to use "common sense and fairness" in determining the acts of the appellant which constituted the offence and attendant circumstances for sentencing purposes: R. v. D. [1995] QCA 329; [1996] 1 Qd.R. 363.

While accepting the correctness of D., counsel for the prosecution referred to Harris [1961] VicRp 36; [1961] V.R. 236 at 237 and Hughes and Curtis (1983) 10 A.Crim.R. 125, 135-136. Neither counsel suggested that those authorities could not be reconciled, and plainly they can. The role of a sentencing judge, as described in Harris, is to be exercised with the common sense and fairness referred to in D.

The appellant's difficulty in the present case does not lie in any point of principle, but in the conjectural basis upon which his application for leave to appeal against sentence is founded. The question asked by the jury after it had been considering its verdict for approximately two hours by no means provides a sufficient foundation for this Court to speculate as to the reason or reasons why the individual members of the jury considered that the appellant was guilty, or in any way limited the trial judge's fact-finding role for the purpose of sentencing. There might well be, and probably will be, cases in which it is appropriate for a judge to sentence on a basis more favourable to the accused than the primary Crown case, but this is not such an occasion. The appellant's submission that the sentence is manifestly excessive cannot be supported by the sole ground upon which it is placed.

It was not submitted that the sentence imposed upon the appellant was outside the range appropriate having regard to the findings made by the trial judge, and accordingly the application for leave to appeal against sentence should be refused.

In summary, we would dismiss the appeal and refuse the application for leave to appeal against sentence.

Application for leave to appeal against sentence refused.

CATCHWORDS: CONVICTION - unlawfully doing grievous bodily harm with intent to cause grievous bodily harm - different version of events surrounding the offence given by complainant and appellant - self-defence raised - a miscarriage of the trial judge's discretion - on appellant's own version of events conviction inevitable - assuming self-defence was necessary appellant used excess force - whether on the hypothesis that the jury probably accepted the appellant's version of events the sentence was manifestly excessive.

Hughes v. Curtis (1983) 10 A.Crim.R. 125

Queensland Director of Public Prosecutions for the Crown

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