R v Green [2013] QCA 24

In further evidence-in-chief, the prosecutor played surveillance video footage and Ms Reid identified features she had mentioned in her evidence. She referred to a scene showing A on the ground and B standing over him. Ms Reid also identified the video footage showing the ute pulling up and, subsequently, of herself arriving on the scene. Ms Reid said that A was unconscious: “[A] [w]asn’t coherent. He wasn’t listening to anyone. He wasn’t responding.” Ms Reid checked A’s pulse and made sure no blood was coming out of his ears or mouth.

In cross-examination, defence counsel put to Ms Reid a version which substantially reflected her evidence-in-chief. She agreed with the suggestion that what she saw on the video showed “the man I’m representing, who is behind me, letting this fellow go and he just flops to the ground the way a person who is unconscious does …”. Ms Reid agreed that whatever happened to the complainant to cause him to fall to the ground had happened before the car with the people in it arrived. Ms Reid said that she saw the people in the car “trying to have a go at B …”. There followed a passage in the cross-examination which included a question and answer upon which the appellant relied:

The prosecutor tendered a transcript of a police interview with the appellant on the morning of 2 January 2011 which was admitted by consent. (Experienced defence counsel did not object to the tender or contradict the prosecutor’s statement that he tendered the transcript under “s 644(b) [sic] of the Criminal Code…”) In that police interview, the appellant attributed the injury to his lip to being hit in a fight at a hotel on a more recent occasion.

The appellant argued that he only hit the complainant in self-defence and he also indicated that he did not intend to cause serious injury to the complainant. The jury were given clear, conventional directions about self-defence and accident. As to accident, on the evidence, the jury could find that the appellant felled the complainant by a very heavy punch to the complainant’s head, rendering him unconscious either by the punch or by his head colliding with the ground as he fell. On Ms Reid’s evidence, the appellant’s subsequent conduct in picking up the complainant by his shirt and then letting him fall back to the ground was not causative of the complainant’s injuries; defence counsel put to Ms Reid, who agreed, that what she saw “was consistent with A having hit his head on the ground when he went down and then staying – being unconscious from that moment on…”. That was consistent with Dr Hazelton’s evidence. He was shown video images of the appellant holding up the complainant in a seated position and then letting him go. Dr Hazelton expressed the opinions that, when the appellant was holding up the complainant, the complainant appeared to be unresponsive, that was consistent with being unconscious, and the subsequent fall when the appellant let the complainant go would be highly unlikely to have resulted in the skull fracture and associated brain injury sustained by the complainant.

Whether the complainant’s serious injuries resulted directly from the appellant’s punch or from the complainant hitting his head on the ground when felled by the punch, it was open to the jury to find beyond reasonable doubt that a reasonable person in the appellant’s position would reasonably have foreseen that a punch of the nature delivered by the appellant would result in serious head injuries amounting to grievous bodily harm.

The appellant’s statements in his police interview clearly raised self-defence, but that version was inconsistent with the evidence of Ms Reid. The jury must have found Ms Reid to be credible and reliable. That finding could not be said to be unreasonable: so far as the transcript reveals, Ms Reid presented as an independent and apparently reliable eye-witness of the critical events. Furthermore, the jury could also take into account the inconsistent versions the appellant gave about how he received the injury to his lip.

On the whole of the evidence, it was plainly open to the jury to find that, notwithstanding the appellant’s statements to police, the evidence excluded self-defence and accident beyond reasonable doubt; that the appellant caused and was criminally responsible for the complainant’s injuries. (The trial judge also referred to provocation, but there was no evidence of any provocation by the complainant.)

As to the element of the offence that the complainant suffered grievous bodily harm, Dr Hazelton gave evidence that the complainant suffered a parietal skull fracture on the right hand side of his head, a frontal contusion on the right hand side of the brain, a small abrasion on the back of the skull, and a subdural haematoma. The frontal contusion implied that force had been applied to the head. It and the linear fracture of the skull were consistent with a blunt force trauma, including by a punch with considerable force or falling from a standing height onto a hard surface. The complainant was treated in the intensive care ward. The complainant suffered a syndrome involving inappropriate anti-diuretic hormone, which resulted in a very low level of serum sodium in his body. This was a dangerous condition, potentially leading to further swelling of the brain, seizures, and loss of consciousness. It was corrected by restricting fluid intake. The amount of fluids given to the complainant was restricted and he was carefully monitored. The complainant suffered from post traumatic amnesia for 15 days. He was given a medication which acted as a mood stabiliser and an anti-epileptic; the complainant was then exhibiting features of “reduced frustration tolerance”, which is a common accompaniment of a brain injury. He was left with scar tissue on the brain as a result of the trauma to the brain and bleeding into the brain. The post traumatic amnesia indicated that the complainant had suffered a severe injury to the brain and the scar tissue amounted to a permanent change to the complainant’s health in the form of a scar, loss of brain tissue, and predisposition to seizure disorder or epilepsy in the future. Had the injury been left untreated, the complainant might well have died. Furthermore, had the complainant not been kept under observation in hospital, his post traumatic amnesia and associated confusion could have put him into dangerous situations to which he would not know how to respond.

The appellant referred to Dr Hazelton’s evidence that when the complainant was transported by ambulance to the hospital the ambulance officers’ notes recorded that the complainant was semi-conscious with a “[G]lasgow [C]oma score ranging between 11 and 13…”. Dr Hazelton explained that this score was based on a scale of 3 to 15, 15 being conscious and 3 being deeply unconscious. Dr Hazelton described the symptoms of a score between 11 and 13 as “more or less physically moving his limbs in response to command, however, he – at times he was confused and he had incomprehensive verbal output, and with regard to orientation, he was confused and incomprehensive sounds and spontaneous to speech. He was only responding sometimes.” The appellant argued in his written submissions that this evidence of the Glasgow Coma score and that the complainant spent only 24 hours in intensive care for monitoring purposes and then was moved into an open ward “makes me wonder about the seriousness of his injuries”. The effect of the appellant’s oral argument seemed to be that this evidence was consistent with the complainant not being seriously injured and that the appellant had believed when he left the scene that the complainant was not seriously injured.

The appellant’s belief is not relevant and, although Dr Hazelton was cross-examined, his evidence of the complainant’s injuries was not shaken. Indeed, the cross-examination did not mount any serious challenge to that evidence. The appellant’s argument has no bearing upon the reasonableness of the jury’s verdict. On the medical evidence, the jury could readily be satisfied beyond reasonable doubt that the complainant suffered grievous bodily harm as defined in s 1 of the Criminal Code (relevantly, “any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health…”).

In the appellant’s written and oral submissions he referred to an earlier trial in which the jury did not agree upon a verdict. That has no bearing upon the reasonableness of the verdict at this trial. The appellant referred also to what he described as the “victims mindset” and to asserted changes between the complainant’s testimony at the first trial and his testimony at the second trial. There was no evidence to support those submissions. The appellant argued that his intention was merely of self-preservation and self-defence. As I have indicated, it is evident that the jury rejected that view and it was reasonably open on the evidence for the jury to exclude it beyond reasonable doubt. The appellant also argued that the evidence revealed that he showed remorse because he “stay[ed] around”. In fact, the evidence was to the effect that the appellant left after unsuccessfully attempting to rouse the complainant. In any event, this argument has no bearing upon the reasonableness of the guilty verdict. The appellant also advanced an argument which seemed to be to the effect that he did not have sufficient time to discuss his trial with defence counsel. There is no indication of that in the record, there is no evidence to support it, it is not the subject of a ground of appeal, and the appellant’s argument was unpersuasive.

The evidence as a whole was sufficient to justify the jury in being satisfied of the appellant’s guilt beyond reasonable doubt. The appeal against conviction should be dismissed.

In sentencing the appellant, the trial judge referred to the permanent consequences of the complainant’s injuries; they had reduced his ability to work, had made him more aggressive, meant that he had to have lifelong consequent medication, and had consequently put a burden on his wife and family. The trial judge accepted that the appellant did not intend to cause that serious an injury and that he was sorry for it. The trial judge referred also to the appellant’s extensive criminal history as indicating that the appellant was capable of acting like a brutal, violent thug. The trial judge regarded the present offence as particularly serious because there was no provocation or justification for it and it occurred in the main street of Ipswich at night. Both general and personal deterrence were important features in sentencing, as were the devastating consequences of the injury for the complainant and his family.

The trial judge referred to R v Dietz [2009] QCA 392 and R v Madden [2005] QCA 439. In Dietz the court refused an application for leave to appeal against a sentence of six years imprisonment with parole eligibility after serving half that period. That offender punched the complainant’s head and as a result the complainant fell to the ground and hit his head on bitumen. That complainant suffered injuries which were more serious than those suffered by the complainant in this matter. Muir JA referred to some of the adverse affects upon that complainant: “epilepsy, short-term memory loss, high blood pressure and depression…lost…sense of smell…cognitive language deficits and reduced coordination and…lost full vision in the top left-hand corner of his eye…”. On the other hand, that offender was a young man (he was 20 at the time of his offending), he had no prior criminal history, he had a good work history with promising prospects, and he was in a long-term relationship. In Madden, the offender was sentenced to six years imprisonment in an offence which was also similar to the present. That offender struck the complainant to the head, causing him to fall to the ground where he struck his head and fractured his skull. The consequences for that complainant were again much worse than those for the present complainant. That complainant was left with what the Chief Justice described as “permanent, massive brain damage”. The offender lacked remorse, but on the other hand his criminal history was much less serious than the appellant’s. The Chief Justice, with whom the other members of the Court agreed, observed that “there could be no sensible suggestion that imprisonment for six years for this offence was manifestly excessive”. The sentence imposed upon the appellant is consistent with the decisions in Madden and Dietz.

In R v Ford [2011] QCA 208, the court refused an application for leave to appeal against a sentence of six years imprisonment with the parole eligibility date fixed after two years. That was another case in which the offender delivered a heavy punch which felled a complainant. That complainant’s injuries were also more serious that than those sustained by the complainant here. The sentencing judge described the injuries as “terrible and permanent”. On the other hand, that offender was only 18 years old at the time of the offence and 19 when sentenced, he had no criminal history, he was genuinely remorseful, he was a promising subject for rehabilitation, and he co-operated with the authorities and pleaded guilty. The President observed (at [22]) that if that offender had gone to trial and lacked his many matters in mitigation, a sentence in the range of seven or even eight years would have been warranted. The decision in Ford makes it difficult to accept that the sentence imposed upon the appellant was not within the sentencing judge’s discretion. That sentence is also consistent with the analysis of comparable sentences by Dalton J in R v Parker [2011] QCA 198 at [26]-[37].

The appellant argued that the sentence was excessive having regard to: R v D’Arcy [2001] QCA 20; R v Grimley [2000] QCA 64; R v O'Rourke [2003] QCA 220; R v Silvester [1998] QCA 194; R v Katsidis [2003] QCA 82. The decisions to which the appellant referred are readily distinguishable. In R v D’Arcy, the offender was sentenced to three years six months imprisonment. In that case the injury suffered by the complainant was described as a fractured ulna and a laceration to the skull and there is no indication that the complainant suffered any permanent ill-effects from those injuries. Similarly, in R v Grimley, in which a sentence of two years six months imprisonment was reduced to one year eight months imprisonment on appeal, the complainant suffered two fractures to his jaw and there was again no suggestion of any permanent consequences of the injury. The injuries were also far less serious than in the present case in R v O'Rourke (three years imprisonment, in which the complainant sustained a fractured cheekbone and lower facial fractures and an undisplaced fracture of the temporal bone above his left ear) and R v Silvester (one year six months imprisonment, in which the complainant’s jaw was broken in two places and she continued to suffer paraesthesia to the lower face and lip and a permanent alteration to her appearance). R v Katsidis, in which two years imprisonment suspended after eight months for three years was imposed, was another case in which the complainant suffered a broken jaw. In that case the complainant’s jaw remained disfigured and he suffered from a loss of confidence in his work. However, the court took into account in the sentence that the complainant had instigated the dispute by throwing a punch at the offender and there was no suggestion that the offender had attended the scene with the intention of attacking anyone.

The appellant referred also to two case notes in which published judgments are not readily available. A sentence of three years imprisonment was imposed in R v Daniels.² In that case the appellant pointed a thin piece of pipe at the complainant and injured his eye, which had to be removed later. The complainant was a friend of the offender. Similarly, the facts of R v Miletic³ differ greatly from the present case. That offender, who was sentenced to three years imprisonment, fired a rifle at the complainant, wrongly thinking that the complainant was an intruder. The shot blew off the complainant’s right thumb. The offence was regarded as reflecting a gross degree of recklessness and the sentencing judge took into account that the 64 year old offender had suffered an assault during World War II which made him overly concerned for his own safety. Those sentences may be explicable by their unusual facts. Daniels and Miletic are much less reliable indicators of the sentencing range than the recent decisions about factually similar case discussed earlier.

The appellant referred to the sentencing principles relevant to indigenous offenders articulated in R v Fernando (1992) 76 A Crim R 58, in which Wood J observed of the relevance of aboriginality of an offender that it “is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.” The trial judge expressly took into account the appellant’s relevant personal circumstances, referring in particular to his very disadvantaged background and upbringing. Unfortunately the appellant did suffer from serious disadvantages, but it was necessary for the trial judge also to take into account other matters, including the appellant’s concerning criminal record. The appellant’s criminal record, and the ineffectiveness of previous rehabilitative and deterrent sentences to deter him from committing this offence, required the trial judge to take into account, in addition to personal and general deterrence, the protection of the community (see Penalties and Sentences Act 1992, s 9(1)(e) and s 9(4)(b),(g)).

When all of the circumstances are taken into account, it is clear that the sentence was not excessive. No error has been demonstrated in the exercise of the sentencing discretion.