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[2006] QCA 438
General information, not legal advice.
Court of Appeal (Qld)
2006-11-03
Keane JA, White and Philip McMurdo JJ Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Kimmins [2006] QCA 438
PARTIES: R v KIMMINS, Clinton Phillip (appellant/applicant)
FILE NO/S: CA No 224 of 2006 / DC No 60 of 2006
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction & Sentence
ORIGINATING COURT: District Court at Southport
DELIVERED ON: 3 November 2006
DELIVERED AT: Brisbane
HEARING DATE: 24 October 2006
JUDGES: Keane JA, White and Philip McMurdo JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: 1. Appeal against conviction dismissed / 2. Application for leave to appeal against sentence dismissed
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – the appellant/applicant was convicted of unlawfully wounding a person – the appellant/applicant appeals against conviction – the trial judge told the jury if they returned a verdict of guilty they would be asked to return special verdicts – the jury were asked whether the guilty verdict related to the neck wound and the back wound to the complainant – the jury found the guilty verdict only related to the back wound – self-defence was not excluded in relation to the first wound to the neck but was excluded for the second wound to the back – whether there is no rational basis for reconciling these conclusions by the jury and whether the conviction is unsafe and unsatisfactory / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERALLY – whether the trial judge erred in seeking special verdicts – whether the trial judge erred in directing the jury to distinguish between the wound to the neck and the wound to the back in relation to self-defence under s 271(1) and s 272 of the Criminal Code 1899 (Qld) / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – The appellant/applicant was sentenced to 18 months imprisonment suspended after six months for an operational period of two years – the appellant/applicant applies for leave to appeal against sentence – whether the sentence was manifestly excessive, not by the imposition of a head sentence of 18 months, but by that term not being wholly suspended or suspended after a shorter period than six months / Criminal Code 1899 (Qld), s 271, s 271(1), s 272 / R v Hays; ex parte A-G [1999] QCA 443; CA No 271 of 1999, 29 October 1999, cited / R v Young [2004] QCA 84; CA No 361 of 2003, CA No 382 of 2003, 26 March 2004, cited
COUNSEL: A J Kimmins for the appellant/applicant / C W Heaton for the respondent
SOLICITORS: Price & Roobottom for the appellant/applicant / Director of Public Prosecutions (Queensland) for the respondent
KEANE JA: I respectfully agree with the reasons of Philip McMurdo J, and with the orders proposed by his Honour.
WHITE J: I have had the advantage of reading the reasons for judgment of McMurdo J and agree with them and the orders his Honour proposes.
PHILIP McMURDO J: The appellant was tried before Newton DCJ and a jury on a charge that he unlawfully wounded a man named Baggaley. On 4 August 2006 he was convicted and sentenced to 18 months imprisonment, suspended after six months for an operational period of two years. He appeals against his conviction and applies for leave to appeal his sentence.
Appeal against conviction
On the night of 17 April 2004, the complainant suffered wounds to his neck and back in the course of an altercation outside the Tugun Surf Life Saving Club. Each wound was inflicted by a broken beer glass. As the appellant conceded at the trial, it was the appellant who wounded the complainant, first to his neck and then to his back. The issues for the jury were whether each wound was in self-defence or was the result of circumstances of sudden or extraordinary emergency.
With the concurrence of both counsel, the trial judge told the jury that if they returned a verdict of guilty, they would then be asked for special verdicts. The jury would be asked whether the guilty verdict related to the neck wound and whether it related to the back wound. In answer to those questions, the jury said that their guilty verdict related only to the back wound. On the evidence and the arguments, the defence of emergency was either excluded for both wounds or not at all. But the summing up allowed for self-defence to be excluded for one wound but not for the other. Hence the trial judge’s requirement for special verdicts, which would be relevant to the sentence. Apparently then, self-defence was not excluded in relation to the first wound, but was excluded for the second wound: the stab in the back. In essence, the appellant’s argument is that there is no rational basis for reconciling those conclusions, so that the conviction is unsafe and unsatisfactory.
On that night at the surf club, the appellant was a guest at a friend’s birthday party. A section of the clubhouse, one level up from the street, had been hired for the occasion. The complainant also attended. He was one of a group of young men from the Byron Bay district who had hired a bus to take them to the party. The group was not well known to many of the guests, or it seems, to the hosts. Witnesses described their behaviour as disruptive and inappropriate. At some point, there was a disturbance on the dance floor involving a disagreement between the complainant’s group and another group of young men which included the appellant. The complainant’s group was asked to leave which it did. But later in the evening, there was a further altercation between, broadly speaking, the same sides. It was during this later altercation, which happened downstairs near the clubhouse, that the appellant wounded the complainant.
The appellant gave evidence at the trial. There was a great difference between his account and that of the complainant. The jury were instructed that if they accepted the appellant’s account, or at least if they could not exclude it beyond reasonable doubt, then they should acquit. They were also told that if they rejected the appellant’s account, then they had to consider whether they were persuaded by the other evidence that the relevant defences had been excluded. Accordingly, the jury must have rejected the appellant’s evidence. Nevertheless it is relevant to summarise it here.
The appellant said that the earlier incident, which occurred upstairs, was started by the complainant and involved some pushing and shoving by which the appellant was all but knocked over. There was then an altercation between the complainant’s group and some of the appellant’s supporters which resulted in the complainant’s group being herded towards the door. About an hour later the party ended and the appellant left the club to walk to a bus which was to take him and others to Surfers Paradise. As he walked down the stairs of the clubhouse, he was approached by the complainant and his group. The complainant was leading the group and calling out to the appellant aggressively. The appellant was pushed from behind towards the complainant who then punched him. The appellant fell to the ground where he was kicked. Terrified and on the ground he noticed what appeared to be a bottle which he immediately picked up, and after getting to his feet, waved around to defend himself. He was doing this to try to make others keep their distance but he then connected with the complainant’s neck. After that the appellant and the complainant went to the ground, rolling around with the appellant still with the object in his hand. The appellant was just trying to separate himself when both men got to their feet and he noticed that the complainant’s group was retreating. On this version the wound to the back must have occurred whilst the two men were rolling on the ground.
“Save yourself some time and find for the defendant in that regard and get on to the next one, which is where you may well think the real nub of this defence arises in this case. The next way the prosecution seeks to exclude the defence is this: it contends that the force used by (the appellant) was not reasonably necessary to make effectual defence against that assault. This, it seems to me, is where you should focus your attention… if you conclude in the end that his response was not reasonably necessary to make effectual defence against the complainant’s assault, that is the end of this particular question and this particular defence could not apply.”
A little later his Honour instructed that it was open to the jury to distinguish between one wound and the other in relation to self-defence, and, he referred to the prosecution’s argument that whatever the jury thought about the first blow, they would be satisfied that the second blow was not in self-defence because it was not necessary for the appellant, having already stabbed the complainant, to stab him again and from behind him. It appears that the jury accepted that argument.
As the jury had been directed, they had to accept the complainant’s evidence before they could convict. But accepting that evidence, how was self-defence open in relation to either of the wounds? The appellant’s argument to the jury about that relied upon s 24. It was argued that in all the circumstances, including the altercation earlier that evening, the height and weight of the complainant compared with the appellant and the anti-social and aggressive behaviour generally of the complainant’s group, that he could have had an honest and reasonable belief that he was about to be attacked by the complainant and his group. So whilst objectively it was not reasonably necessary for the appellant to act as he did, the appellant may have believed, honestly and reasonably, that it was necessary. In principle that argument was valid: see the observations by McPherson JA in R v Young.1 On the facts according to the complainant’s evidence, it was not so compelling. Nevertheless it was open to the jury to accept it and be left with a doubt as to whether self-defence was excluded in relation to the appellant’s first blow. And more generally, it was open to the jury to accept for the most part the appellant’s evidence, but to retain a doubt as to whether the relevant altercation had not been commenced with some threatening conduct from the complainant.
But if the jury could not exclude self-defence for the first wound because of those matters, self-defence for the second wound was a clearly different matter. The belief of a continuing threat from the complainant was harder to accept in the circumstances that the complainant had already been struck with the glass to his neck and the second blow was delivered to his back.
In these circumstances it was open to the jury to conclude that the second blow was not reasonably necessary, and it was not reasonably believed to be necessary, to make an effectual defence against any assault by the complainant. The answers given upon the special verdicts do not reveal anything awry in the jury’s reasoning. There was a logical basis for their conclusions, which was supported by and consistent with evidence in the prosecution case.
The appeal against conviction should be dismissed.
The sentence
It is argued that the sentence was manifestly excessive, not by the imposition of a head sentence of 18 months, but by that term not being wholly suspended or at least suspended after a shorter period than six months. The application for leave to appeal the sentence seeks an order that the term of 18 months be suspended forthwith, the appellant having served nearly three months.
The argument points to a number of mitigating factors as follows:
The applicant’s youth (he was 20 at the time of the offence and is now 22)
The absence of any prior criminal history
The applicant’s difficult upbringing
The evidence of his good character
The applicant’s remorse, demonstrated in particular by his contacting the complainant the day after the incident to express his remorse
His success as a professional surfer and the impact of his conviction upon his prospects for endorsements and sponsorships
The publicised shame of the conviction, which is more significant because of his status in the sport of surfing
A delay of more than two years from the offence to his conviction
It is also emphasised, as it was to the trial judge, that the offence was constituted only by the second wound and was the result of what his Honour described as excessive self-defence. The applicant argues that he was reasonable in pleading not guilty, which resulted in a trial lasting thirteen days, because he successfully resisted the case for the wound to the neck, which is said to be the more serious injury. Further it is argued that there was no pre-meditation in relation to his attack, there was a substantial difference in size between the two men and the applicant was influenced by his experience of having been unlawfully assaulted on at least two occasions prior to the night in question. The applicant also relied upon his actions in saving a man’s life in the surf in 1999.
Accordingly there were many mitigating factors. It is not said that his Honour overlooked any one of them but rather that his decision not to suspend the term earlier than at six months made the outcome manifestly excessive.
The applicant’s suggested justification for going to trial is not entirely persuasive. After all he conducted a case by a version of events which was entirely rejected by the jury. To some extent at least, that detracted from the weight to be given to his initial demonstration of remorse.
In R v Hays2, in a passage referred to in the sentencing remarks here, the Chief Justice said3:
“Ordinarily persons committing offences of this character must expect to have to serve a term of actual imprisonment. That is so even if the offender is young with an unblemished record, and commits the offence spontaneously.”
R
Kimmins [2006] QCA 438
On the complainant’s version, there had been an altercation inside the club, but his group were not the aggressors. He was punched in the back of the head by someone after which he and his group went downstairs to the lawn in front of the club. The other side of the argument had continued their aggression by throwing bottles at them from upstairs. Some time then passed before the incident in which he was wounded. He was downstairs essentially alone as others in his group had gone back to the party or elsewhere. He was then surrounded by the appellant and some of the appellant’s group. There was a heated exchange before he felt a blow to the side of his neck and he turned and saw that it was the appellant who had hit him. Immediately after that he was hit by someone else on the side of his face and as he moved towards that person, the complainant said that he felt a blow to his back and he turned and saw that it was the appellant who had again struck him. The appellant attempted to hit him a third time but the complainant avoided this and at the same time saw that the appellant had a broken glass in his hand. The complainant retreated before the appellant came at him again, still with the broken glass swinging it at him. He avoided that and managed to punch the appellant to the head after which others intervened.
The appellant’s argument is that upon the complainant’s version, the two wounds were inflicted in such rapid succession that it was unrealistic to conclude that the second was not in self-defence if there remained a doubt as to the first. Consistently with this argument, the trial judge should not have sought the special verdicts or directed the jury in terms which enabled them to distinguish between criminal responsibility for one blow and for the other.
The trial judge explained self-defence both under s 271(1) and s 272 of the Code. His Honour discussed s 272 with respect to the appellant’s version of events and the possibility that the jury might consider that the appellant had provoked what he described as an assault upon him. As already mentioned, his Honour had also directed that unless the jury could exclude the appellant’s version then they must acquit. Therefore the specific instruction as to s 272 was probably not required, although no complaint in that respect was then or is now made.
As to s 271, his Honour told the jury that if they concluded that the appellant “provoked the assault or that he actually started it, then this particular defence of self-defence is not open to him”. He then instructed them as follows: