R v Gibb [2007] QCA 191

SUPREME COURT OF QUEENSLAND

CITATION: R v Gibb [2007] QCA 191

PARTIES: R / v / GIBB, Robert Balfour / (appellant/applicant)

FILE NO/S: CA No 151 of 2006 / DC No 289 of 2006

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction and Sentence

ORIGINATING COURT: District Court at Southport

DELIVERED ON: 8 June 2007

DELIVERED AT: Brisbane

HEARING DATE: 15 May 2007

JUDGES: Holmes JA, Fryberg and Philippides JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Appeal against conviction dismissed****Application for leave to appeal against sentences dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – whether prosecutor should have called a witness at trial – where counsel for the appellant argued that the witness’ evidence was pertinent to a number of issues – where defence counsel did not ask the prosecutor to call the eyewitness at trial – where it was open to defence counsel to call the witness – whether the prosecutor’s failure to call the witness occasioned a miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – objections and points not raised in court below – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where trial judge did not direct the prosecutor to call an eyewitness – whether trial judge erred in failing to make this direction / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – particular grounds – improper admission or rejection of evidence – general principles – where prosecution marked certain photographs for identification but did not tender them as exhibits – where trial judge ruled the photographs played no part in the Crown case and refused defence counsel’s request for the photographs to be tendered – whether trial judge erred in ruling that photographs should not be tendered as exhibits / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant sentenced to nine months’ imprisonment wholly suspended – where offending conduct involved the use of a dangerous weapon or instrument – where applicant is a man of mature age with a relevant previous history – whether sentence imposed was within range / Dispute Resolution Centres Act 1990 (Qld) / R v Walsh, Sayer and Thompson; ex parte A-G [1998] QCA 217, CA No 158 of 1998, CA No 159 of 1998, CA No 160 of 1998, 28 July 1998, cited / R v Cherrie [2006] QCA 491 , CA No 256 of 2006, 24 November 2006, cited / R v Shepherd [2006] QCA 233 , CA No 67 of 2006, 21 June 2006, cited / R v Neivandt [2000] QCA 224 , CA No 414 of 1999, 9 June 2000, cited

COUNSEL: L Alford for the appellant / M J Copley for the respondent

SOLICITORS: Fairlie Legals for the appellant / Director of Public Prosecutions (Queensland) for the respondent

1. HOLMES JA: I have read the reasons for judgment of Philippides J. I agree with them and the orders proposed.

2. FRYBERG J: I agree with Philippides J. I add that counsel who appeared for the applicant (and who was not trial counsel) expressly disavowed any intention to raise as a ground of appeal that the applicant suffered from a miscarriage of justice by reason of the incompetence of his counsel at trial.

[3] I concur in the orders proposed by Philippides J.

[4] PHILIPPIDES J: The appellant was on 10 May 2006 found guilty of one count of common assault, one count of wilful damage and one count of assault occasioning bodily harm whilst armed. He was acquitted of a second count of assault occasioning bodily harm whilst armed. All offences relate to the one series of events on 4 December 2004.

[5] On 4 December 2004 at approximately 3.30 pm, the complainant Mark Mischok was working at the home of the complainants Ryan and Tanya Hunter, neighbours of the appellant. Mr Mischok tripped over a piece of concrete and kicked it out of the way. In doing so he caused it to hit the side of a motor vehicle belonging to the appellant parked next door. According to Mr Mischok almost immediately thereafter, the appellant lifted a gate on the fence adjoining the two properties off its hinges, pushed it over and ran towards Mr Mischok shouting in an aggressive and threatening manner with his right hand clenched into a fist. The appellant threw a punch at Mr Mischok who ducked and avoided being hit. He pushed the appellant away and ran off. Mr Mischok’s evidence was that the appellant then picked up a pitchfork that was lying next to him and made as if to stab him with it. As Mr Mischok was running away, the appellant threw the pitchfork towards Mr Mischok as if it were a javelin. The appellant then threw three bricks at Mr Mischok. The pitchfork and bricks all failed to hit Mr Mischok. The appellant’s acts in throwing the punch at Mr Mischok, threatening him with and throwing the pitchfork and bricks at him constituted Count 1, the charge of common assault.

[6] Mr Mischok’s evidence was that the appellant then picked up another brick and ran around towards the back patio of the house belonging to Mr and Mrs Hunter where they and a friend Aaron Ortlik were standing. A heated exchange ensued, followed by the appellant throwing another brick which struck Mr Ortlik’s motor vehicle causing damage to the front door. This was the subject of Count 2, the charge of wilful damage.

[7] Count 3, the charge of assault occasioning bodily harm whilst armed, concerned the appellant striking Mr Hunter with a piece of timber to the left forearm. Mr Mischok’s account was that at one stage he wrestled with the appellant forcing him back to his own property. After some 10 minutes, the appellant returned onto the Hunters’ property with a video camera. There was a further argument between the appellant and Mr Hunter. The appellant picked up a piece of timber with protruding nails and struck Mr Hunter on the forearm.

[8] Mr Mischok gave evidence that immediately after the events relating to count 3, he intervened and struck the appellant about three times. The appellant then swung the piece of timber across his chest with the protruding nails scratching his neck, forearm and chest. That formed the basis of count 4, assault occasioning bodily harm whilst armed, of which the appellant was acquitted. Self‑defence to an unprovoked assault was left to the jury as an excuse in respect of that count.

[9] Mr and Mrs Hunter and Mr Ortlik were called by the prosecution and gave evidence largely in accordance with that given by Mr Mischok, except in respect of the sequence of the incidents concerning counts 3 and 4. A contradictory exculpatory account of events put to each of the witnesses was rejected. The appellant neither gave nor called evidence.

Grounds of appeal against conviction

[10] At the hearing of the appeal, the appellant abandoned the sole ground of appeal contained in the Notice of Appeal which alleged error by the learned trial judge in respect of a ruling as to the inadmissibility as a result of the Dispute Resolution Centres Act 1990 (Qld) of evidence of inconsistent prior statements allegedly made by a Crown witness at a mediation involving the appellant’s wife.

[11] Leave was sought to substitute the following as grounds of appeal in lieu of the ground abandoned:

(a)the failure of the prosecutor to call an eyewitness, Mrs Gibb, occasioned a miscarriage of justice;

(b)the trial judge erred in failing to direct the prosecution to call Mrs Gibb as a witness;

(c)the trial judge erred in ruling that photographs of Mrs Gibb marked for identification were inadmissible.

[12] As to the first ground of appeal, the appellant’s argument was that as an eyewitness, Mrs Gibb should have been called to give evidence as to the events the subject of the charges and that her evidence would have been pertinent on a number of issues, particularly a possible defence that the appellant was acting in defence of Mrs Gibb. There was evidence that on the day in question Mrs Gibb attended the police station and made a complaint and that photographs of certain injuries to her were taken at the direction of a police officer. These photographs were produced at the trial and were marked as exhibit C for identification.

[13] There are a number of difficulties concerning the first ground of appeal. It is not apparent that the prosecutor had a copy of any statement from Mrs Gibb, nor is it apparent what Mrs Gibb saw of the incidents or what evidence she was likely to give. Furthermore, it is clear from the record that no request was even made by defence counsel to the prosecutor that Mrs Gibb be called. In those circumstances, the submission that the prosecutor’s failure to call Mrs Gibb as a witness occasioned a miscarriage of justice is without substance. It was of course open to defence counsel to call her as a witness, but that course was not pursued. The reason why that course was not taken is not known.

[14] The second ground of appeal fails for the same reasons as the first ground.

[15] I also consider that the third ground of appeal, concerning the question of the photographs of Mrs Gibb’s injuries marked for identification, but not tendered as exhibits by the prosecution, must fail as being without substance. The appellant’s counsel sought a direction at trial that the prosecution be required to tender the photographs, contending that they were part of the evidence obtained by the police in their investigation into the events the subject of the trial. The prosecutor submitted that, even if the photographs were tendered in the Crown case, with the relevant police officer who directed that they be taken being called, there would nevertheless be no relevant basis for their admissibility given that no Crown witness was able to identify the injuries depicted in the photographs as having been sustained in the course of the events the subject of the charges against the appellant. The prosecutor argued:

“There would be no explanation before the jury of where the injuries that are depicted in those photographs came from. … There is no witnesses in the Crown case who can identify them and who can produce them for them to be added to the tendered. It would only be defence witnesses who would be able to do that.”

[16] The trial judge accepted the prosecutor’s submissions, ruling that the photographs played no part in the Crown case, and observed that they had been shown to Mr Hunter in cross examination when it was put to him that they depicted injuries sustained by Mrs Gibb when he kicked and punched her, a proposition that he rejected, as did Mrs Hunter. His Honour concluded:

“… I am not persuaded that the Crown is obliged to tender those exhibits as part of the Crown case as they have formed no part of it on the evidence adduced to date and have been clearly rejected by the witnesses to whom propositions were made in respect thereof. I therefore refuse the defence’s application in respect of this issue”.

[17] In my opinion the learned trial judge was correct in the ruling he made and his reasoning is unimpeachable. It of course remained open to the appellant to put the photographs into evidence by calling Mrs Gibb.

[18] In subsequent written submissions after the hearing of the appeal, the appellant sought to raise, as an additional error, the failure of the trial judge to refer to “the correct sequence as [to] the provocation to the appellant by injuries to Mrs Gibb”. Although not a formal ground of appeal, the matter can be dealt with by observing that there was no evidence given at trial that Mrs Gibb did sustain injuries as a result of any assault on her by Mr Hunter and therefore there could be no error by the trial judge as alleged.

Application for leave to appeal against sentence

[19] The applicant was sentenced to nine months’ imprisonment on each count, wholly suspended, for an operational period of three years. He was also ordered to pay $1,507.25 by way of compensation. The applicant contended that the sentences imposed were manifestly excessive in that no term of imprisonment, even wholly suspended, was within range. At sentence, the prosecutor argued for a sentence of between six and nine months and the applicant’s counsel accepted that a term of imprisonment was within range, but urged that if such a sentence be imposed it be wholly suspended and made submissions about other sentencing options, such as a fine or a community service order.

[20] In imposing sentence, the learned sentencing judge observed that the applicant’s behaviour was irrational and that his antisocial behaviour in throwing a pitchfork, bricks, recklessly damaging a motor vehicle and striking the complainant Hunter with a stick with protruding nails demonstrated a lack of self‑control in dealing with his neighbours. The sentencing judge had regard to the applicant’s lack of remorse and his criminal history, which he described as “not significant”. (The applicant has two previous convictions for wilful damage in 1990 and 1997 and a conviction of “Obstruct Police” in 2001.) The sentencing judge also took into account that the applicant was prepared to pay restitution and that the complainant’s physical injuries were not serious in wholly suspending the term of imprisonment imposed.

[21] Given that the offending conduct involved the use of a dangerous weapon or instrument by a man of mature age with a relevant previous history, there can be no complaint that the imposition of a term of imprisonment was outside the appropriate sentencing range. In my view none of the authorities referred to on behalf of the applicant (R v Walsh, Sayer and Thompson; ex parte A-G [1998] QCA 217; R v Cherrie [2006] QCA 491; R v Shepherd [2006] QCA 233; R v Neivandt [2000] QCA 224) demonstrate that the sentences imposed were excessive. The sentences were well within the proper exercise of the sentencing discretion.

Orders

[22] In my view the appeal against conviction should be dismissed and leave to appeal against the sentences should be refused.