R v Holland

SUPREME COURT OF QUEENSLAND

CITATION: R v Holland [2008] QCA 200

PARTIES: R v HOLLAND**,** Derry John (appellant)

FILE NO/S: CA No 360 of 2007 / DC No 1340 of 2003 / DC No 3338 of 2007

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction & Sentence

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 25 July 2008

DELIVERED AT: Brisbane

HEARING DATE: 13 June 2008

JUDGES: McMurdo P, Keane JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Appeal against conviction dismissedApplication for leave to appeal against sentence refused

CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – MATTERS CONNECTED WITH CONDUCT OF DEFENCE – LEGAL REPRESENTATION – where the appellant was represented with the assistance of Legal Aid at the trial – where the appellant was advised on the morning of the trial that a new barrister had been engaged to represent him – whether there was evidence of any misconduct by counsel during the course of the trial – whether the appellant received a fair trial / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – whether, on the whole of the evidence, the jury were reasonably entitled to be satisfied of the appellant's guilt beyond reasonable doubt / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – VERDICT – where the appellant was charged with doing grievous bodily harm with intent to do grievous bodily harm – where when taking the verdict from the jury and administering the allocutus the associate described the charge in question as "doing a malicious act" – whether the verdict and conviction were affected by irregularity / 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 – where the appellant was sentenced to five years imprisonment for the offence of doing grievous bodily harm with intent to do grievous bodily harm – whether the sentence imposed was manifestly excessive / Criminal Code Act 1899 (Qld), s 317, s 320, s 648 / Criminal Practice Rules 1999 (Qld), r 51, Sch 2 / Kotsis v Kotsis (1970) 122 CLR 69; [1970] HCA 61, considered / Lilliecrap v The King (1905) 2 CLR 681; [1905] HCA 30, applied / M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied / R v Brand [2006] QCA 525, cited / R v Clarke [2008] 2 All ER 665; [2008] UK HL 8, considered / R v Conway (2005) 157 A Crim R 474; [2005] QCA 194, cited / R v Dillon; ex parte A-G (Qld) [2006] QCA 521, cited / R v Livingston (No 2) [1933] St R Qd 175, considered / R v Lowe [2001] QCA 270, applied / R v Lowrie & Ross [2000] 2 Qd R 529; [1999] QCA 305, cited / R v Mitchell [2006] QCA 240, applied / R v Shillingsworth [1985] 1 Qd R 537, cited / R v Sorby [1976] 2 NZLR 516, applied

COUNSEL: The appellant appeared on his own behalf / T A Fuller for the respondent

SOLICITORS: The appellant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.

I agree with Keane JA's reasons for refusing the appeal against conviction. But my reasons for refusing the application for leave to appeal against sentence differ somewhat from those of Keane JA.

The maximum penalty for the offence of doing grievous bodily with intent is life imprisonment.¹ The complainant's jaw was broken in multiple places and required two rounds of surgery. He has been left without feeling in the lower lip and lower jaw area. His Honour found that the appellant showed no remorse for the attack on his victim who was smaller, older and intoxicated. The appellant had a prior conviction for assault occasioning bodily harm and committed this offence during the two year operational period of a 12 month suspended sentence imposed for that offence. In these circumstances the learned sentencing judge was right to order that the appellant serve the whole of that period of suspended imprisonment and that the present sentence be served cumulatively upon that sentence of imprisonment.

His Honour also found that the appellant committed the offence by kicking his victim with steel-capped boots. Whether or not the boots, which on the prosecution case the appellant was wearing when he assaulted his victim, had steel caps was not thoroughly investigated at trial. It is very often not possible to know, merely from looking at boots, whether or not they have steel caps as any steel reinforcement is usually inside the leather covering. In the end I am not persuaded that, whether the boot had a steel cap, or whether it was, as the complainant said in his evidence, "… a lace up boot, like a work boot or a steel cap or army boot or something similar" was a fact materially affecting his Honour's sentencing discretion. The judge, rightly in my view, did not regard the use of the boots as comparable to the use of a weapon such as a knife, iron bar or spanner. The judge also found that the victim had given some provocation for the attack in that he had been "ogling" the appellant's female partner who was partially unclad at the time, although his Honour, again rightly in my view, noted that the appellant's response was "grossly excessive".

The sentence imposed of five years imprisonment cumulative upon the 12 month suspended sentence was, in the circumstances pertaining here, at the high end of the appropriate sentencing range bearing in mind the injuries suffered by the victim, the absence of any weapon, and that there had been some provocation from the victim. On the other hand, as the primary judge noted, the applicant showed no remorse. His lack of remorse remained obvious from the way in which he conducted his appeal. He had a prior like offence for violence and he committed this offence during the operational period of the suspended sentence imposed before that offence. The jury verdict meant that when he committed the violent assault upon the smaller, older and intoxicated victim he intended to do him serious harm. This is a very concerning aspect of the offence. It is fortunate the complainant was not more seriously, even fatally, injured. When compared to sentences imposed on offenders who have pleaded guilty to doing grievous bodily harm without any element of intent so that the maximum penalty is 14 years imprisonment rather than life imprisonment,² the sentence imposed in this case was not manifestly excessive. The application for leave to appeal against sentence should be refused.

KEANE JA: On 29 November 2007 the appellant, who had been charged with doing grievous bodily harm with intent to do grievous bodily harm, was found guilty by the jury. It will be necessary to say some more, in due course, as to the circumstances in which the jury's verdict was rendered. The appellant was sentenced to five years imprisonment for this offence. As the offence of which the appellant was convicted was committed within the operational period of a fully suspended sentence of 12 months imprisonment imposed on 27 November 2003 for an earlier offence of assault occasioning bodily harm, the appellant was ordered to serve the period of 12 months imprisonment for that offence; and the term of five years imprisonment was ordered to be served cumulatively upon the earlier sentence.

The appellant has appealed against the conviction on the ground that it is "unsafe and unsatisfactory". He also sought leave to appeal against the severity of his sentence on the ground that it was "manifestly excessive in all the circumstances".

I propose to deal first with the appellant's challenge to his conviction. I will summarise the Crown case and the evidence adduced at trial before turning to a discussion of the issues which arise on the appeal.

The Crown case at trial

The Crown case was that on 19 October 2005 the appellant inflicted grievous bodily harm on the complainant, Gregory Andrew McLeod, with intent to cause grievous bodily harm. The Crown case was that the appellant caused injury to the complainant's jaw by kicking him in the face. As the learned trial judge instructed the jury, although this was the only count on the indictment, it was open to the jury to convict the appellant of grievous bodily harm simpliciter.

In October 2005 the complainant, a 59 year old man, was living in a house at East Brisbane with David Rosser and two other men. They had agreed to a request by the appellant that the appellant and his friend, Ms Reynolds, could stay at the house for four days. In the event, the appellant and Ms Reynolds stayed longer. They slept on a mattress in the dining room.

According to the complainant, at about 5.00 pm on the day in question, he walked from his room where he and Mr Rosser had been watching television to go to the toilet. He walked through the dining room where the appellant and Ms Reynolds were watching TV from the mattress. The appellant leapt up from the bed, struck him and called him a "fucking pervert".

The complainant's evidence was that the appellant punched him several times until he "sagged" to the floor. He was then kicked by the appellant who he said was wearing "… a lace‑up boot, like a work boot or a steel cap or army boot or something similar." He was struck "all around the neck and the face and the jawline" on the left side.

The complainant said that David Rosser sought to intervene to help him and the appellant punched him. The complainant was next conscious of being on his bed in his bedroom when the appellant came in and put his finger in imitation of a gun to the complainant's head. He was then taken by ambulance to hospital.

Dr Erzetic, who treated the complainant's injuries, gave evidence. He said that the left jaw was broken in several places. Without medical treatment, the complainant's injuries would have left him with permanent disability.

Mr Rosser gave evidence that, on the evening in question, he was watching television in the complainant's room when he heard a noise and went into the lounge room to find the appellant assaulting the complainant. Mr Rosser heard the appellant calling the complainant a pervert. He saw the appellant repeatedly punch the complainant until the complainant fell to the floor, at which point the appellant kicked him in the left jaw.

Mr Rosser said that he saw the appellant "putting his steel-capped boots into him". He said he saw three or four "kicks". The complainant was bleeding from his mouth and nose. Mr Rosser pushed the appellant away from the complainant, put the complainant in his bed, and called the ambulance. He said that the appellant asked him if he was calling the police. The appellant also made a pointed gun gesture towards the head of Mr Rosser.

When ambulance officers arrived at the house at 6.18 pm, they noted that the complainant was bleeding from a lacerated jaw. He smelt of alcohol.

The Crown did not tender in evidence boots belonging to the appellant which matched the description of those said by the complainant and Mr Rosser to have been used by the appellant on the complainant. The notes of the ambulance officers and of medical staff who treated the complainant did not include an assertion by him that he had been kicked.

The complainant and Mr Rosser were challenged in cross-examination with the suggestion that they had colluded to give false evidence, and that Mr Rosser's evidence was inconsistent with his statement to the police.

The defence case

The appellant gave evidence. He said that, on the afternoon in question, he and Ms Reynolds were watching television from their bed in the dining room when they dosed off. They were both partially naked: each of them was wearing only underpants. He awoke to find Ms Reynolds "cuddling into" him. Ms Reynolds was about to get up to turn the television off when she saw the complainant standing watching them.

Ms Reynolds pulled up the doona to cover her breasts, and the appellant told the complainant to go away. According to the appellant, the complainant was drunk and said "I will stand anywhere I like …". The appellant then got out of bed and began putting on his shorts when the complainant hit him on the top of the head with his fist.

According to the appellant he stood up and "heaved" the complainant out of the room. The complainant landed on the floor. Ms Reynolds told the appellant to "leave him alone, he's just a drunk". The appellant said that he was then grabbed from behind by Mr Rosser.

According to the appellant, the complainant got up and came at him, at which point he threw two punches at the complainant who fell down again. The appellant said that he then stumbled and Mr Rosser fell over onto his hip. The complainant and Mr Rosser were yelling at the appellant and Ms Reynolds to get out of the house. They then went to the house of a friend of Ms Reynolds. They returned later than evening when he noted an amount of blood in the dining room area which had not been there when they left.

The appellant denied kicking the complainant at any time. He claimed to suffer from a physical disability in terms of his left hip which would have made vigorous and aggressive physical activity of the kind alleged by the complainant and Mr Rosser impossible.

The verdict

The learned trial judge instructed the jury that they could convict the appellant only if they were satisfied that the injury to the complainant's jaw was caused by a kick to the face by the appellant.

The learned trial judge provided the jury with a copy of the indictment in the course of his summing up. His Honour directed the jury that, in the alternative to the count on the indictment, which his Honour referred to as "malicious act", the jury might find the appellant guilty of the offence of "grievous bodily harm full stop."

When the jury were ready to deliver their verdict, the learned trial judge's Associate enquired of the jury: "In relation to count 1, the one count of doing a malicious act, do you find the accused guilty or not guilty?" The speaker for the jury replied: "Guilty".

Of course, the appellant had not been charged with doing a "malicious act". It appears that the Associate derived this description from the front sheet of the indictment.

The judge's Associate then purported to call upon the appellant pursuant to r 51 of the Criminal Practice Rules 1999 (Qld): "Derry John Holland, you have been convicted guilty of one count of doing a malicious act, do you have anything to say as to why sentence should not be passed on you?" The appellant responded: "No".

The appeal against conviction

The appellant was unrepresented on the appeal. In the argument he presented on his own behalf, he particularised his ground of appeal that the evidence was "unsafe or unsatisfactory" by reference to complaints about the quality of his legal representation at trial, and the absence of sufficient proof that he used "steel capped boots" to kick the complainant in the face.

The appellant's representation at trial

The appellant asserts that, on the morning of the commencement of the trial, he arrived at court to be told by his solicitor that the barrister who had been engaged to appear for him on his trial was not available and that another barrister had been engaged. The appellant states that he was disappointed by this turn of events, as indeed he was entitled to be, especially because he had conferred with his previous Counsel and was confident in that Counsel's grasp of the case.

The appellant's first specific complaint about his Counsel's conduct of the trial is that his Counsel explored the possibility of a guilty plea with the Crown Prosecutor without the appellant's instructions. The appellant's complaint is not supported by any evidence, and there is no evidence of the content of the discussions of which he complains. Furthermore, there is no evidence that it was the appellant's Counsel who broached these discussions with the Crown rather than that he simply responded to an approach by the Crown Prosecutor. In any event, it is impossible to see how the appellant's prospects of a fair trial were adversely affected by any such discussions.

The appellant's second specific complaint is that, when his Counsel announced his appearance on the appellant's behalf at the beginning of the trial, he mistakenly referred to the appellant as Mr McLeod. This complaint is trivial, as the appellant himself recognised. It is impossible to imagine how the appellant's prospects of a fair trial were adversely affected by this momentary slip on the part of his Counsel.

The appellant next complains that no reference was made to a statement made by Mr Rosser on 17 July 2007 when the previous trial was aborted. That statement was an exhibit to an affidavit placed before this Court. This statement relates to the appellant and Ms Reynolds leaving the house. It was to the appellant's advantage that this material was not adduced in the Crown case in that it tends to suggest an eagerness to avoid confronting the police on the appellant's part which might be thought to be consistent with a guilty conscience. It is impossible to see how cross-examination of Mr Rosser on this statement could have in any way assisted the appellant's case.

The appellant next complains that his Counsel failed to adduce expert medical evidence of his disability. The appellant says that he provided a medical report to his Counsel which explained the nature and extent of the disability which he suffered because of an injury to his left hip, but that his Counsel failed to adduce this report in evidence. The appellant did not put a copy of this report before this Court, but he did read from what he said were medical reports on his condition. Insofar as these reports detailed the nature and extent of the appellant's disability, they did not suggest that it would have been impossible for the appellant to have assaulted the complainant as he and Mr Rosser alleged. To the extent that the appellant's disability caused him to walk with a limp and to need the aid of a walking stick, the appellant's evidence in this regard was before the jury, and it was confirmed by Mr Rosser's evidence. There is no evidence before this Court which would enable it to conclude that independent medical evidence relating to the nature and extent of the appellant's disability would have improved his prospects of an acquittal.

The appellant also complains that not enough was made by his Counsel of two admissions made by the Crown. The Crown admitted that there was no crime scene investigation at the house and that the police did not search for or locate steel-capped boots belonging to the appellant. But these admissions, which were of some advantage to the appellant, were clearly before the jury. To the extent that the appellant's Counsel was content to accept these admissions rather than to insist on calling one of the investigating police officers to give this evidence, it is impossible to see how the course taken by the appellant's Counsel could have adversely affected the appellant's prospects of an acquittal.

The appellant's next complaint about his representation resulted from his Counsel's failure to cross-examine the arresting police officer, Mr Schultz, in relation to Mr Schultz' evidence that, when he arrested the appellant on 4 January 2006, the appellant was not using a walking stick to get about. But the appellant's Counsel explained that this failure was an oversight on his part, and the learned trial judge directed the jury to this effect and instructed them that they should draw no inference adverse to the credibility of the appellant from his Counsel's oversight. Having regard to this direction to the jury, it is impossible to accept that the appellant's prospects of an acquittal were adversely affected by this error on the part of his Counsel.

In summary, I am of the opinion that the appellant's complaints about the quality of his representation at trial are without substance.

The sufficiency of the evidence

As to the sufficiency of the evidence on which the appellant was convicted, the issue was whether, on the whole of the evidence, the jury were reasonably entitled to be satisfied of the appellant's guilt beyond reasonable doubt.³

The jury were well aware of the points made for the defence in relation to the appellant's disability, the absence of a prompt complaint by the complainant that he had been kicked, and the failure of the Crown to produce the steel-capped boots said to have been used by the appellant to kick the complainant. These points might well have led them to doubt the evidence of the complainant, and Mr Rosser. On the other hand, it cannot be said that the jury could not reasonably disregard these points in the light of all the evidence.

In particular, the jury may have been impressed by the circumstance that, on the appellant's account of the clash between the appellant and the complainant – it being common ground that a physical confrontation had occurred – there was no explanation of the serious nature and extent of the complainant's injuries which was consistent with the account given by the appellant and Ms Reynolds. Further, the jury could reasonably have regarded the complainant's failure to make a prompt complaint that he had been kicked as the result of shock consequential on his beating, or even as reticence resulting from the appellant's threatening gestures towards him. The jury might also have thought that the appellant had ample time to dispose of the boots he used to kick the complainant. As to the appellant's disability, the jury saw and heard the appellant give evidence. They were well-placed to come to a view about the extent to which the appellant's disability might have hampered an assault of the kind described by the complainant and Mr Rosser.

For these reasons, I reject the arguments advanced by the appellant in respect of his conviction.

It is necessary, however, to refer to another basis on which the verdict of the jury might arguably be said to be unsatisfactory. That is, that the verdict which was taken from the jury, and in respect of which the appellant was sentenced, appeared, on its face, to relate to an offence of which the appellant had neither been charged nor tried, and which is, indeed, not known to the law. Because the appellant was unrepresented, I have considered this issue even though it was not raised by him. I have come to the conclusion that, in truth, there was no irregularity in the manner in which the verdict was taken. I should explain why I have come to this conclusion.

The sole count in the indictment was based on s 317(b) and (e) of the Criminal Code 1899 (Qld). Section 317 is headed "Acts intended to cause grievous bodily harm and other malicious acts". It provides relevantly:

"Any person who, with intent–

…

(b)to do some grievous bodily harm …

…

(e)in any way … does grievous bodily harm … to any person …

is guilty of a crime, and is liable to imprisonment for life."

Section 320 of the Criminal Code provides: "Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 14 years."

In Sch 2 to the Criminal Practice Rules, the heading of the schedule form of offences created by s 317 of the Criminal Code is in Form 161 "Malicious Act With Intent". The relevant schedule form for the offence created by s 320 of the Criminal Code is Form 166 "Grievous Bodily Harm".

Section 648 of the Criminal Code provides that:

"[w]hen an accused person pleads that the person is guilty of any offence, and when, upon trial, an accused person is convicted of any offence, the proper officer is required to ask the person whether the person has anything to say why sentence should not be passed upon the person, but an omission to do so does not invalidate the judgment."

The formal demand contemplated by s 648 is called the allocutus. The administration of the allocutus manifests the acceptance by the court of the jury's verdict of guilty or the plea of guilty by the accused.[4]

In this case, the heading on the form of the indictment was neither "Malicious Act With Intent" nor "Grievous Bodily Harm", but "Malicious Act". The Associate, understandably following the heading on the form of the indictment as is the common practice, interrogated the jury and administered the allocutus, using terminology which was authorised, neither by the Criminal Code, nor by the Criminal Practice Rules.

Rule 51 of the Criminal Practice Rules provides for the administering of the allocutus in terms which contemplate that the proper officer of the court addresses the convicted person, advising him or her that he or she has been convicted of "the offence charged in the words of the indictment or by stating the heading of the schedule form of the offence", and asks of the convicted person: "Do you have anything to say as to why sentence should not be passed on you?" The convicted person is thus afforded the opportunity to apply for the arrest of the judgment under s 649 of the Criminal Code. Where the convicted person has nothing to say, the court proceeds to determine the issue of sentence.

In proceeding to impose sentence upon the appellant, the learned trial judge recited that the appellant had been convicted by the jury of the offence of causing grievous bodily harm with intent to cause grievous bodily harm. By so doing, his Honour could not have cured any irregularity which had already occurred. In a criminal trial, the verdict is the verdict of the jury, and only the jury may pronounce that verdict. As was said by the Court of Appeal of New Zealand in R v Sorby:⁴

"… the jury's verdict is itself to be regarded as an acquittal or conviction and there is no requirement that the judge must state the effect of the verdict although, lest there be any doubt, he often does so. His formal responsibility at this stage is simply to give effect to the jury's acquittal or conviction by a judgment and this takes the form of discharging the prisoner in the one event or by sentence in the other. The word "conviction" is often used to refer to the final disposal of the case following upon a verdict of guilty and this wider meaning of the word probably leads to some confusion as to when an accused person can be regarded as having been convicted: see S v Recorder of Manchester [1971] AC 481, 489 … Nevertheless, once accepted by the judge it is that verdict that amounts to a conviction and the case is then beyond further examination or review."

Section 648 of the Criminal Code states that an omission to administer the allocutus does not invalidate the judgment. That provision would certainly be apt to cure a non-observance of a formality which would be apt to invalidate the judgment were it not for the terms of s 648. But if there were a problem in this case, it would not arise from the failure to administer the allocutus in the terms required by r 51 of the Criminal Practice Rules: the problem, if there is one, would concern an irregularity attending the actual conviction of the appellant.

It may be said that any such irregularity, if it be an irregularity, would be merely a matter of form. But that would not mean that it is any the less an irregularity. It has recently been reiterated by Gummow J, writing extra-curially, that, in the criminal law, "great significance is attached to matters of form."⁵ In Kotsis v Kotsis⁶ Windeyer J said: "The observance of forms and the due recording of proceedings are one of the safeguards of justice according to law."

In R v Clarke⁷ Lord Bingham of Cornhill said:

"Technicality is always distasteful when it appears to contradict the merits of the case. But the duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the state exercised its coercive power to put a citizen on trial for a serious crime a certain degree of formality is not out of place."

In any event, I doubt that it would be correct to say that such an irregularity was merely a formal defect in the proceedings. If the verdict taken from the jury left uncertain the question whether the jury had concluded that the appellant was guilty of causing grievous bodily harm with intent, or guilty of the alternative and lesser offence of causing grievous bodily harm, that would be a substantive irregularity. The verdict which was rendered would be consistent with either possibility. At the very least, the recorded verdict would be ambiguous.⁸

In truth, however, this is a case where the jury has returned a verdict using a shorthand form established between the judge and the jury to describe the offence with which the appellant was charged. The terms of the learned trial judge's direction to the jury were such that the jury could have been left in no doubt that, for the purpose of rendering their verdict, the count on the indictment, which was fully pleaded in the body of the indictment, was referred to as "malicious act" in contrast to the alternative count of causing grievous bodily harm simpliciter. The decision of the High Court in R v Lilliecrap⁹ confirms that there was no irregularity involved in proceeding in this way.

The jury's verdict must be understood as having been given against the background of the learned trial judge's direction, so that there can be no doubt that the jury intended to, and did, convict the appellant of the offence of doing grievous bodily harm with intent to do so, and made its intention manifestly by its verdict. Accordingly, there was no irregularity attending the jury's verdict.¹⁰

Because the appellant's challenge to the conviction fails, I turn to consider the appellant's application for leave to appeal against sentence.

Sentence

The appellant was 43 years old at the time of the offence. He was 45 years old when he was sentenced.

The most relevant aspect of the appellant's criminal history was the assault occasioning bodily harm for which the appellant was sentenced on 27 November 2003. The offence for which the appellant was sentenced on that occasion involved repeated punching of the head of the male victim of the appellant's assault.

In sentencing the appellant for his assault on the complainant in this case, the learned judge said that he was satisfied that the complainant had suffered significant adverse physical and emotional consequences as a result of the injuries he suffered at the hands of the appellant. His Honour was also satisfied that the injuries had been inflicted by a blow with a steel-capped boot while the complainant was on the floor. The complainant was smaller and older than the appellant and was affected by alcohol and unable to defend himself. His Honour accepted that the assault was provoked by the complainant but viewed the appellant's response as grossly excessive.

The appellant argued that the learned trial judge could not have been satisfied that the appellant had used a steel-capped boot to kick the complainant in the face because the complainant's evidence was equivocal in relation to the kind of boot which was used to kick the complainant. There is force in that observation, but Mr Rosser's evidence that the appellant kicked the complainant with steel-capped boots was quite unequivocal. It was open to the learned trial judge to act upon Mr Rosser's evidence. In any event, his Honour's directions to the jury were expressly couched in terms which invited them to determine whether they were satisfied beyond reasonable doubt that the appellant did grievous bodily harm to the complainant "by kicking him". The jury's verdict meant that they were satisfied that the injuries inflicted on the complainant were inflicted by a kicking. Whatever the precise description of the appellant's footwear, it was plainly apt to inflict serious injury. The criminality of the use of such footwear to administer a kicking does not depend upon its precise description.

Given that the leniency extended to the appellant on the occasion of his sentence in November 2003 did not ameliorate the appellant's evident tendency to personal violence, considerations of personal deterrence and protection of the community had a strong claim upon the sentencing discretion in this case. That is especially so, in light of the evident absence of remorse on the appellant's part for his brutal mistreatment of the complainant in this case.

According to decisions of this Court, in R v Mitchell and R v Lowe, the range of sentence which might have been imposed in a case where grievous bodily harm has been deliberately inflicted by the use of a weapon by a mature offender with a record of personal violence is between four and seven years imprisonment.¹¹ The boots deliberately used by the appellant to kick the complainant can fairly be regarded as a weapon for the purposes of establishing that this range of sentences was applicable to the appellant's offending in this case.

The sentence imposed upon the appellant was well within the established range of proper sentences. It was open to the learned trial judge to impose a sentence at the lower end of the range bearing in mind that this sentence would be cumulative upon the sentence for the earlier offence. But, equally, it was open to his Honour to take the view that the appellant's apparently escalating tendency to violent offending should be met with a more severe punishment.

The sentence which was imposed was within the bounds of the discretion to be exercised by his Honour. The sentence was not excessive, much less manifestly so.

Orders

The appeal against conviction should be dismissed.

The application for leave to appeal against sentence should be refused.

FRYBERG J: I agree with my colleagues that the appeal should be dismissed and the application refused.

The appeal against conviction

The first submission in the applicant’s outline of argument was:

“I start my argument about unconstitutional behaviour Legal Aid did to me on and before my trial i.e. They never informed me by mail of the changes to my Defence, when I arrived at court expecting to meet with Mr David Kent who was my barrister and ... my lawyer whom was assigned me at the first trial on the 17 July 2007 by Legal Aid. Insteed [my lawyer] meet with me on the morning of 26 November 2007, telling me Mr Kent had been reassigned but offered no reason to why. He said a [new barrister] was on my case and I told [my lawyer] I was unhappy and why he hadn’t informed me by mail, to which he replyed ‘I am telling you now.’ [The new barrister] who I have never met before or talked to appeared from down the corridor and introduced himself, then stated ‘I picked your brief up last night and have gone over it, and have talked with the prosecution over the phone last night and again this morning, They have a deal for you. I asked [the new barrister] who instructed him to make any deal with the prosecution, he said ‘NO ONE’. I turned to [my lawyer] and protested saying I don’t want [the new barrister] representing me and asked again where Mr Kent was. [My lawyer] said ‘you have got [the new barrister], there is noughthing you can do, because the trial is ready to start.’ [My lawyer] never advised me that I could adjourn to seek another Legal defence, which if the opportunity had been put before me I would have done just this, for I felt unsure of [the new barrister].”

None of this was verified by affidavit or otherwise.

That submission raises several points which if true would warrant further investigation. First, it alleges that the Legal Aid Office retained a new barrister to appear on Mr Holland's behalf without instructions from him. I would not have thought that ordinarily a solicitor had authority to engage counsel without instructions to do so, although we have heard no argument on the point. But I do not think that the point can avail Mr Holland in the appeal. Even if what he says is true, there is no evidence of the ambit of the solicitor’s authority in this particular case, either statutorily or contractually; and Mr Holland appears to have ratified the retainer at least by conduct.

Mr Holland appears to believe that he could have refused to allow the new barrister to act for him without forfeiting legal aid and that he could have obtained an adjournment. Whether he could have refused to retain the new barrister without forfeiting legal aid must depend upon the terms of the grant of aid. Those terms are not in evidence. Nor does the material enable us to determine whether in such an eventuality an adjournment must necessarily have been granted.¹² Presumably the new barrister felt that he had been given sufficient time to master the brief; otherwise he would have sought an adjournment. It is true that there are signs that the new barrister was not in fact fully across the brief. He overlooked cross-examining a police officer on a significant point¹³ and he does not appear to have had the opportunity to consider having Mr Holland medically examined in order to establish how difficult it would have been for him to have conducted himself as the Crown alleged he did. Whether anybody considered that question we do not know. However we have no basis for concluding that favourable medical evidence could have been obtained, nor that Mr Holland did not receive a fair trial.

I am not comfortable that the appeal should be determined with those matters unresolved, but these are adversarial proceedings. The Court cannot carry out its own investigation. There is no reason to suppose an adjournment of the appeal would benefit Mr Holland and in any event no such adjournment was sought.

Subject to those remarks I agree with the reasons of Keane JA for dismissing the appeal.

The application for leave to appeal against sentence

I address only one argument advanced by Mr Holland. That is the argument that the trial judge could not have been satisfied that the boots which Mr Holland used had steel caps. On other matters I agree with my colleagues.

It is correct, as the President points out in her reasons for judgment, that whether the boots had steel caps was not thoroughly investigated at the trial. However it does not seem to me that this omission was the result of oversight. To explain that conclusion it is necessary to refer to the evidence.

The complainant was the first witness. His evidence in chief relevantly was:

“Now, what has then occurred?-- When I hit the floor I was attacked by a boot, by feet.

All right. Now-----?-- I was kicked.

At that time what footwear, if any, did Mr Holland have on?-- He had a boot on, a lace-up boot, like a work boot or a steel cap or army boot or something similar.”¹⁴

That was neutral. However in cross-examination counsel for Mr Holland was more specific:

“Well, you say he was wearing - at the very least you've described these shoes as being steel-capped boots?-- That is correct.

Are you saying that-----?-- That's what he had on.

…

So you are suggesting that he was lying next to his girlfriend on-----?-- I'm sorry, say that again.

He was lying - this is prior to leaping, you say, off the bed and punching you without any provocation, prior to doing that you say he was lying down watching television with these steel-capped work boots on?-- Well, it takes a while to lace up - he must have had 'em on. He couldn't just put 'em on instantly. You cannot do that sort of thing with those sort of things. I know that for a fact.

Well-----?-- I've got some hiking boots, they're a similar sort of thing, and it takes a while to lace them up. He already had them on.

I suggest he wasn't wearing any boots at all?-- He had boots on.

I suggest he has not owned any steel-capped boots-----?—I saw them. I saw them.

-----or boots - let me finish - boots of that nature?-- I saw them coming.”¹⁵

I note that the counsel began by pinning the witness to an allegation that Mr Holland was wearing steel capped boots. He then put the proposition that Mr Holland was not wearing any boots at all and finally put the proposition that Mr Holland did not own any steel capped boots or boots of that nature. Significantly, he did not suggest that Mr Holland did not own unreinforced boots.

Dr Erzetic gave evidence of the complainant's injuries. The Crown Prosecutor postulated a scenario in which the complainant was kicked in the jaw by a person wearing steel capped boots and the doctor testified that this scenario was consistent with the injuries which he saw. In cross-examination other hypotheses such as that a fall onto stairs or a coffee table or a ceramic sink might cause such injuries were put to the doctor and he agreed that they were possible. He was not asked whether the injuries might have been cause by boots of a different type.¹⁶

Mr Rosser testified in evidence in chief that he witnessed the assault and relevantly said:

“Okay. Now, I will just take you back a little bit. You said you saw Dutchie put the boot in. Now, just to make sure, what do you mean? What did Mr Holland do to Mr McLeod?-- Hit him twice in the left jaw and Greg went down and he started putting his steel-capped boots into him.”¹⁷

In cross-examination the following occurred:

“You said in evidence here today that you saw - when you were describing Dutchie kicking Greg - you saw Dutchie kick Greg in the jaw three or four times?-- Correct.

And have you given that evidence today because of a conversation you've had with Greg?-- No.

You, I suggest, didn't tell the police that, that you saw Dutchie kick Greg in the jaw three or four times?-- I'm pretty sure he did because I was there when he did hit with the steel-capped boots, lace-up ones. Well, I was only about seven feet from him.”¹⁸

He was then challenged regarding the number of kicks on the basis of a previous inconsistent statement, but there was no suggestion that the boots were not steel capped, nor any exploration of the source of Mr Rosser's knowledge.

At the conclusion of re-examination, the trial judge elicited some evidence:

“Could you tell the jury, please, what Mr Holland was wearing at the time of the incident in the house?-- Yes. He was wearing cut down Army pants. They were long. He cut them off at the knees to make them into shorts. He had lace up steel capped boots and his singlet, a navy blue singlet.”¹⁹

In response to his Honour's invitation to ask further questions on matters arising from that, counsel put to the witness that Mr Holland was not wearing any boots; but put nothing about the nature of any capping.

Mr Holland gave evidence. In examination in chief he testified:

“Did that - you've heard an allegation that - or heard it be said that you punched Mr McLeod, causing him to go up against the wall near the window in the lounge that was in Exhibit 6, I think, and then he slid to the ground and then you started kicking him with steel-capped boots on?-- That's a pack of lies.

Were you wearing any boots when-----?-- No.

-----you were in bed?-- No.

Did you own a pair of steel-capped boots at that stage?-- No.”²⁰

I note that he was asked if he was wearing any boots and if he owned a pair of steel capped boots.

In cross-examination following exchange occurred:

“I know you're saying you didn't do it but if you were to kick a man with steel capped boots in the jaw, you were meaning to do him injure, weren't you?

DEFENCE COUNSEL: Well-----

WITNESS: Well, I didn't kick him with steel capped boots because I don't own steel capped boots.

PROSECUTING COUNSEL: Okay?-- No steel capped boots were ever found. Your police officer had the opportunity to search my car while we were in Bundaberg and he didn't.

Yes?-- Especially after the fact he found out that I supposed - well, allegedly kicked him with steel capped boots. This officer didn't even check the car to see if I had any.

…

Mr Schultz is either a liar or he's mistaken?-- He's mistaken in what he said.

All right. Anyone else in this - no, I will leave that?—If Mr Schultz was an astute police officer, surely he should have - and he knew that I allegedly kicked somebody with steel capped boots why didn't he do his job and check my car because it was right out the front of the police officer's station with all my gear in it.”²¹

It suited Mr Holland to have attention focused on steel capped boots because he could testify that he did not own any.

Ms Reynolds, who described herself as Mr Holland's partner, testified in evidence in chief that Mr Holland had nothing on his feet at the relevant time.²² In cross-examination the following exchange occurred:

“And he - once Mr McLeod had fallen to his backside, he wasn't on his feet, Dutchie kicked him-----?-- No.

-----with his steel-capped boots on?-- Sorry, there was no steel-capped boots. He doesn't own steel-capped boots and there was no shoes on his feet, sorry.”²³

It is clear that the jury rejected her evidence and that of Mr Holland.

Before the trial judge summed up he showed counsel a document which he intended to give to the jury. Among other things it set out two questions, described as “the real questions in the case”. The questions were:

“1.Are you satisfied beyond a reasonable doubt that the Accused did Grievous Bodily Harm to the Complainant by kicking him?

If you are satisfied that the Accused did Grievous Bodily Harm to the Complainant by kicking him, are you satisfied beyond reasonable doubt that the Accused intended some Grievous Bodily Harm to him when he kicked him?”²⁴

His Honour invited comment from counsel. That invitation elicited the following response:

“DEFENCE COUNSEL: The only thing that occurred to me, your Honour, and it may not be necessary, is whether or not reference should be made to kicking him with steelcap boot or the steelcapped - with a steelcapped boot.

HIS HONOUR: What, as opposed to any other boot?

DEFENCE COUNSEL: I understand what your Honour's saying.

HIS HONOUR: I mean the issue is, isn't it, whether or not the jury can be satisfied beyond reasonable doubt that he was kicked in the face.

DEFENCE COUNSEL: Yes.

HIS HONOUR: And part and parcel of that is the boots, but the issue is-----

DEFENCE COUNSEL: The kick.

HIS HONOUR: -----the kick. Yes. ..., the way it's been litigated I don't think it's necessary to put it in the document unless you're insisting that it be done.

DEFENCE COUNSEL: I'm not insisting.”²⁵

The defence case was that Mr Holland did not kick the complainant. Mr Holland and Ms Reynolds so testified; nothing in the ambulance notes suggested that the injury was caused by a kick; Mr Rosser at first made no such allegation; the hospital notes referred only to a punch; and no boots had been found by police. In my judgment the approach which the defence took to the question of whether the boots had steel caps was designed to further that case. Both defence witnesses testified that Mr Holland did not own steel capped boots; neither was asked whether he owned boots without reinforcement. If they were believed it helped the defence case to establish a situation of steel capped boots or nothing: in such a situation Mr Holland could not have kicked the complainant because he owned no such boots. I am satisfied that that is why defence counsel cross-examined the complainant to establish that the boots had steel caps notwithstanding the complainant's original description of them as “a lace-up boot, like a work boot or a steel cap or army boot or something similar”. That is why the defence put no alternative scenario to Dr Erzetic. That is why the defence did not challenge Mr Rosser's evidence regarding steel capping. That is why defence counsel tentatively explored the possibility with the judge of including a reference to a steel capped boots in the first question. The existence of steel capping was not an issue at the trial; and when the judge pointed that out to counsel, counsel accepted that it was so. The essential question for the jury was whether or not the kick had occurred. The question of whether the boots had steel capping was not thoroughly investigated because for tactical reasons the defence not only chose not to do so, but actively reinforced the evidence (such as it was) of its existence.

The tactic did not avail Mr Holland because the defence witnesses were disbelieved. Once that happened the tactic became counter-productive from the defence point of view. In relation to the element of intent the judge directed the jury:

“You would take into account all of the circumstances that you find to be and, of course, critical to your considerations in this case is if you find that he was kicked do you find that he was kicked with steel-capped boots in a position of vulnerability, things of that nature which would lead you to conclude one way or the other whether the assailant, the alleged assailant, had the necessary intent.”²⁶

Mr Holland has not criticised that direction and I do not see how he could sensibly do so.

Having regard to the way in which the trial was conducted, it cannot be said that the jury's verdict embodied a finding on the question of whether the boots had steel caps. That was a question of some significance in the sentencing process. It was therefore necessary for the judge to make a finding. He held:

“Consistently with the jury's verdict, I'm satisfied beyond reasonable doubt that you, wearing steel capped boots, then kicked at least once at the face of the complainant and that one such kick struck the complainant's jaw with moderate to severe force causing him grievous bodily harm.”²⁷

That finding was consistent with the jury's verdict. I do not understand his Honour to have meant that he found it embodied in that verdict. His Honour expressed himself satisfied beyond reasonable doubt. That was satisfaction to a higher standard than was necessary,²⁸ but Mr Holland can hardly complain about that. On the evidence at the trial (understandably, Mr Holland led no evidence on the sentence), his Honour's conclusion was the only one open.

I should add that even if I were of the view that no finding was open on the evidence, I would not be satisfied that the sentence imposed was manifestly excessive. I need not add to what the President has said in support of such a conclusion.

Orders

I agree with the orders proposed by Keane JA.

Footnotes

1. Criminal Code 1899 (Qld), s 317. ↩

2. See R v Dillon; ex parte A-G (Qld) [2006] QCA 521; R v Brand [2006] QCA 525. ↩

3. M v The Queen (1994) 181 CLR 487 at 493 – 494. ↩

4. [1976] 2 NZLR 516 at 519 – 500. ↩

5. See Gummow, "Form or substance?" (2008) 30 Aust Bar Review 229 at 231. See R v East [2008] QCA 144 at [103] per Fryberg J. ↩

6. (1970) 122 CLR 69 at 90. ↩

7. [2008] UK HL 8 at [17]. ↩

8. R v Livingston (No 2) [1933] St R Qd 175 at 180. ↩

9. (1905) 2 CLR 681 esp at 683 – 684. ↩

10. Cf R v Conway [2005] QCA 194 esp at [40] – [43]. ↩

11. R v Mitchell [2006] QCA 240; R v Lowe [2001] QCA 270. ↩

12. See generally R v East [2008] QCA 144. ↩