R v Jasser [2004] QCA 14

SUPREME COURT OF QUEENSLAND

CITATION: R v Jasser [2004] QCA 14

PARTIES: R v JASSER, Higo Omar (appellant/applicant)

FILE NO/S: CA No 277 of 2003 / DC No 138 of 2002

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction & Sentence

ORIGINATING COURT: District Court at Southport

DELIVERED EX TEMPORE ON: 9 February 2004

DELIVERED AT: Brisbane

HEARING DATE: 9 February 2004

JUDGES: de Jersey CJ, Davies JA and Mackenzie J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1.Appeal against conviction dismissed 2.Application for leave to appeal against sentence refused

CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS - where appellant claimed trial judge failed to adequately direct the jury on the defence case pursuant to the first limb of s 23 Criminal Code 1899 - where appellant claimed trial judge ought to have left determination of the relevant act to the jury - whether relevant act was the movement of the appellant's arm / CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS - whether trial judge erred in not leaving the defence of the second limb of s 23 Criminal Code 1899 to the jury - whether trial judge erred in not leaving the defence of a combination of s 24 and s 271 Criminal Code 1899 to the jury / CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where appellant convicted of unlawful wounding - where appellant sentenced to 21 months imprisonment - whether sentence manifestly excessive / Criminal Code 1899 (Qld), s 23, s 24, s 271 / Kaporonovski v R (1973) 133 CLR 209, applied

COUNSEL: Appellant/applicant appeared on his own behalf / R G Martin for respondent

SOLICITORS: Appellant/applicant appeared on his own behalf / Director of Public Prosecutions (Queensland) for respondent

DAVIES JA: After a three day trial ending on 1 August 2003, the appellant was convicted of unlawfully wounding Michael John Fooks. On 4 August he was sentenced to 21 months imprisonment. He appeals against his conviction and seeks leave to appeal against his sentence.

The events the subject of the appellant's trial and conviction took place at The Drink nightclub, Orchid Avenue, Surfers Paradise in the early hours of 4 February 2001. The appellant and Fooks were strangers. According to Fooks he was standing in the nightclub waiting for his girlfriend to say goodbye to some friends when the appellant approached him from the left and spoke to him in an aggressive manner. Fooks said he did not really take any interest in what the appellant said, but he could tell that the appellant had an aggressive manner from his facial expression.

Fooks said that he did not remember whether he spoke to him back, but he remembered he grabbed him with one hand, either by his shirt or his throat. He thought it was by his shirt, holding the appellant at about arm's length. The appellant then did the same to him.

It was at this point he said that Clayton, his girlfriend's cousin, came between them. Clayton said to the appellant, "Leave it," or "Don't worry about it." Fooks said that he just pushed the appellant away and went to walk away and suddenly felt as if he had been punched in the side of his face. In fact, as it turned out, a glass held in the appellant's hand came into contact with his cheek in the vicinity of his eye, breaking on contact.

Clayton who also gave evidence gave a similar version. When he first saw Fooks and the appellant each of them had the other by the throat or by the shirt, arms extended. He then went in between them, ducking under their arms, and facing Fooks, said something to him about ending it.

It was then that a hand came over his right shoulder and hit Fooks in the face. He heard glass breaking and saw that Fooks had been hit by a glass in the face on the left side up around the left cheek.

The appellant, who gave evidence, said that Fooks came and leant on him whilst, it seems, facing him. The appellant said he said something like, "Excuse me," in a sarcastic way, pushing or touching Fooks. Fooks apparently ignored him and kept talking to others and leaning on him. He said, "Excuse me," again and tried to get Fooks' attention.

At this point he said Fooks turned around and grabbed him by the neck. He said he was shocked by this and tried to push Fooks away. He thinks he had his hand on Fooks' collar but Fooks pushed him backwards so that he was leaning back. He said that he heard a girl standing next to him shouting, "Let him go. Let him go."

The next thing he recalls, he said, was security coming up and taking him away. Fooks had his hand to his face. The appellant noticed that his own hand was bleeding. In short, he could not remember hitting Fooks with the glass and did not know whether he meant to do so.

There were other witnesses but none of them was capable of giving a coherent account of any relevant event. There was no dispute that a glass held in the appellant's hand wounded Fooks. Indeed, that element of the offence was admitted.

The matters which were presumably the subject of defence counsel's address were the first limb of s 23 of the Criminal Code 1899, s 271 of the Criminal Code and the combined effect of s 271 and s 24. The learned trial Judge directed the jury in respect of each of these.

The appellant's grounds of appeal were apparently drawn on his behalf by his legal representative, but he has presented his own argument in this Court, both in writing and orally. I turn now to the grounds of appeal.

(a)That the learned trial judge erred in not leaving the defence of the second limb of s 23 of the Criminal Code to the jury.

The judge was not asked to leave the second limb of s 23 to the jury, no doubt for good reason. This part of the section provides that a person is not criminally responsible for an event which occurs by accident. The law is that an event occurs by accident within the meaning of that section if it was a consequence of an accused person's willed act but not intended or foreseen by the accused person and so unlikely that an ordinary person in his position could not reasonably have foreseen it. See R v Van den Bemd [1995] 1 Qd R 401; (1994) 179 CLR 137; and see also Kaporonovski v The Queen (1973) 133 CLR 209.

In the present case there could not be the slightest doubt that if the wounding of the complainant was a consequence of the appellant's willed act, it was one which an ordinary person would reasonably have foreseen. It is inconceivable that an ordinary person, in the position of the appellant, could not reasonably have foreseen that to swing an arm, the hand of which contained a glass, at another's face would not wound him.

I do not think that there is anything in the judgments of the Court in either Murray v The Queen (2002) 211 CLR 193 or Ugle v The Queen (2002) 211 CLR 171 which is inconsistent with that conclusion. There is therefore no substance in this ground.

(b)That the learned trial judge erred in not leaving the defence of a combination of s 24 and s 271 of the Criminal Code to the jury.

It may be said in the first place that there was no evidence from which a jury could infer that the appellant swung his arm under a mistaken belief in the existence of the state of things, let alone that such a belief was honest and reasonable. That is because the appellant had no recollection of swinging his arm.

Presumably the mistake sought to be relied on was as to whether the appellant had a glass in the hand that he swung at Fooks' face. However, for the reason I have given, the appellant was unable to say that he was mistaken on such matter. Nevertheless the trial judge does appear to have directed upon a defence based upon a combination of s 24 and s 271. This is what he said:

"But if you thought that it was possible the accused had forgotten he had a glass in his hand at this relevant time when whatever blow was delivered was - or, whatever movement was made, was made, then that would be the force that you'd have to consider in considering whether or not the force was excessive, the force of a blow with the hand rather than the hand with a glass in it.

In other words if you thought it possible the accused had forgotten he'd had a glass, then you consider the force on the basis of force of a blow with a hand rather than a blow with a hand with a glass in it. But if you considered, if you rejected the accused's evidence about then that he'd forgotten he had a glass in it, and concluded by inference again from the whole of the evidence using your common sense that he must have realised that he had a glass at that stage, then that's the force that you consider when you consider whether or not you consider it's excessive."

If it was open to infer from the evidence that the appellant was mistaken at the relevant time as to whether or not he had a glass in his hand, his Honour's direction was, if anything, generous to the appellant because it does not advert to the reasonableness of that belief.

(c)That the learned trial judge erred in failing to adequately direct the jury concerning the nature of the defence case pursuant to the first limb of s 23 of the Criminal Code.**

The incorrectness of the direction with respect to s 23 for which the appellant contends appears to be expanded on in the following two grounds of appeal and it is therefore convenient to consider all three together.

(d)That the learned trial judge incorrectly directed the jury the relevant conscious act was the movement of the appellant's arm; and

**(e)**the manner in which his Honour's summing up to the jury was structured as to whether it was sufficient in determining whether s 23 was negated, that a conscious movement of the arm was sufficient as opposed to a conscious movement of the glass to the body of the complainant, could rightly have given rise to confusion among members of the jury.

The learned trial judge's description of the relevant act for the purpose of s 23(1)(a) as the movement of the appellant's arm may have been a little too narrow. It was a movement of the arm, the hand of which contained a glass: See Kaporonovski v The Queen (1973) 133 CLR 209 at 227, 231; see also The Queen v Falconer (1990) 171 CLR 30 at 39 and 81.

The question is whether that movement, the movement described by Clayton, was willed. That the appellant may not have adverted to the fact that he held a glass in his hand, whilst it may be relevant to a defence under s 24 and s 271 adverted to earlier, is irrelevant to the question whether that movement was a willed act.

(f)The learned trial judge did not direct the jury concerning the drawing of inferences and that, if the jury found more than one inference available on the evidence, then they ought to draw that which is consistent with innocence.

Counsel for the appellant at trial reminded his Honour that he did not direct the jury in those terms and sought a direction in those terms by way of redirection. His Honour accepted that he did not direct in those terms but concluded that it was not necessary in the light of the way he had directed the jury, that the Crown would have to satisfy them of guilt beyond reasonable doubt. And when referring to inferences which the jury might draw, he told them that they should keep in mind the onus on the Crown of establishing guilt beyond reasonable doubt in the process of deciding what inferences should be drawn.

His Honour had, in fact, directed in some such terms and, in my opinion, his directions in that respect were adequate. Indeed he had repeated over and over to the jury both as to the primary elements of the offence and as to the elements of the defences under s 23, s 24 and s 171, that if the jury had a reasonable doubt as to any of such elements they must acquit.

(g)The learned trial judge erred in identifying for the jury a particular act to be considered pursuant to s 23. It ought to have been left to the jury to determine what the relevant act on the facts of the case as they found them to be, was.

This was also the subject of an application for redirections which was refused.

It is true that the learned trial judge identified the act for the jury for the purpose of s 23 as the movement of the appellant's arm. But subject to the minor criticism made earlier, it was necessary as a matter of law, as Kaporonovski shows, in order to exclude matters which, at law, were not part of the act for the purpose of s 23.

The appellant's counsel, in making the submission under this ground, relied on Murray v The Queen, reference to which I have already given. It is true that in that case the point was made by two members of the Court, that it was for the jury to determine what act or acts were done by the accused and whether any of them caused death. But in that case there was a choice of acts. One was the presentation of the gun in the circumstances; the other was the act which caused the gun to discharge.

That was because there was a question in that case as to what had caused the gun to discharge; whether it had been because the appellant had pulled the trigger or because the gun had malfunctioned. In this case there could have been no question of fact as to what the act was. Indeed, it was undisputed that the appellant's arm had come over and that his hand with the glass in it had struck the complainant's face. I do not think that there is any substance in this ground.

The appellant's written submissions, added to by his oral submissions made to the Court today, perhaps unsurprisingly concentrate on questions of fact seeking now to dispute some conclusions which the jury plainly drew and were entitled to draw from the evidence. I do not find it necessary to deal specifically with those submissions.

It is likely, in my opinion, that the jury, by their verdict, accepted the evidence of Fooks and Clayton and rejected that of the appellant. A reading of the transcript does not give much cause for confidence in the reliability of the appellant's evidence and his Honour was plainly not prepared to accept his evidence.

It is plain on the undisputed evidence that the appellant struck Fooks in the face with the glass after each had been holding each other with one hand at or in the vicinity of the throat. The appellant's act was beyond what was reasonably necessary to make effectual defence against Fooks' assault so described, and even on the undisputed evidence the defences under the first limb of s 23 and s 24 combined with s 271 were bound to fail. The appeal against conviction must, in my opinion, be dismissed.

Sentence

I turn now to the application for leave to appeal against sentence. The appellant is a 33 year-old man of Ethiopian origin. He has suffered in consequence of imprisonment in his native land during a war which took place there. Since coming to this country he appears to have coped reasonably well with the process of migration and a strange language. He has some minor and irrelevant convictions.

His Honour made the point that he was not sentencing him on the basis that he had used excessive force in self defence, but that he took advantage of the fact that the complainant's attention was diverted or lessened to some extent and exerted his own retribution on him by deliberately smashing a glass into his face.

The appellant attempted to flee the scene but his Honour did not place much emphasis on that. He accepted that he may have done so by reason of panic and fear. His Honour accepted that the appellant may find it more difficult to cope with prison life than a native of this country and that his previous experience may add to that difficulty. However, his Honour took that into account in assessing the penalty and he took into account, importantly of course, the seriousness and prevalence of this offence.

The sentence, in my opinion, is at the lower end of the range for offences of this kind and indicates that his Honour took into account all of the factors I have mentioned in arriving at the ultimate sentence which he imposed. I would therefore also dismiss the application.

THE CHIEF JUSTICE: I agree.

MACKENZIE J: I agree.

THE CHIEF JUSTICE: The appeal against conviction is dismissed. The application for leave to appeal against sentence is refused.