Rosenburg v R

LEGISLATION CITED: Crimes Act Criminal Appeal Act

Ali v The Queen (2005) 214 ALR 1 DPP v Smith (1961) AC 290 Jones v The Queen (1997) 191 CLR 439 CASES CITED : M v The Queen (1994) 181 CLR 487 Nudd v The Queen (2006) 80 ALJR 614 Seymour v The Queen (2006) 162 A Crim R 576 TKWJ v The Queen (2002) 212 CLR 124

PARTIES: Rosenburg, Joseph Stephen The Crown

COUNSEL: Self represented (Appellant) J Dywer (Crown)

SOLICITORS: Self represented Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/4865

McCLELLAN CJ at CL JAMES J SIMPSON J

FRIDAY 10 JULY 2009 ROSENBURG, Joseph v R Judgment 1 McCLELLAN CJ at CL: I agree with James J. 2 JAMES J: Joseph Stephen Rosenburg appealed against his conviction, after a trial in the District Court before his Honour Judge Blackmore and a jury, on a charge that on Christmas Day 2006 at Phillip Bay he maliciously inflicted grievous bodily harm on a man named Rodney Beale with intent to cause grievous bodily harm to Rodney Beale. 3 At the trial the appellant had also been charged that on the same day at Phillip Bay he had assaulted a woman named Stella Rose. After the Crown case at the trial had closed, the trial judge directed the jury to return a verdict of not guilty on the charge of assault and the jury returned a verdict of not guilty on that charge. 4 For the offence of inflicting grievous bodily harm with intent Judge Blackmore sentenced the appellant to a non-parole period of three years nine months to date from 15 May 2007 with a balance of the term of one year three months, making a total sentence of five years. The date of 15 May 2007 was selected as the date on which the sentence would commence so as to allow for periods the appellant had spent in pre-sentence custody. It is apparent that the appellant has already served more than two years of the non-parole period set by the sentencing judge. If the appeal against conviction is unsuccessful, the appellant seeks leave to appeal against the sentence imposed on him. 5 The appellant was legally represented at his trial by counsel and a solicitor. However, on his appeal the appellant represented himself. The appellant received substantial assistance in the preparation of his written submissions from his brother Victor Vozila, who also attended the hearing of the appeal and interjected from time to time during the appellant's oral submissions. 6 At the trial evidence was given in the Crown case by Rodney Beale, Stella Rose, Colette Perignon and Yves Richard and some police officers. Photographs of Rodney Beale's face which had been taken on 27 December 2006 and photographs of the property at which the offence was allegedly committed (40 Elaroo Avenue Phillip Bay), including photographs of a roller door which separated the backyard of the property from a kind of footpath or nature strip adjoining the street, were admitted into evidence in the Crown case. 7 There was also admitted into evidence in the Crown case a statement by Dr M Popelkova who examined Rodney Beale on the evening of 25 December 2006. The statement indicates that a CT scan revealed a depressed mildly displaced fracture of the left frontal sinus inferiorly. 8 At the trial the accused gave evidence in his own case and Victor Vozila also gave evidence in the defence case. 9 Almost all of the witnesses, apart from the police officers, were in some kind of relationship with other witnesses. Rodney Beale and Stella Rose were in a relationship with each other and had a child Jack, who was 2 years old as at Christmas 2006. Stella Rose had formerly been in a relationship with a man named John Perignon by whom she had had a daughter Natalie, who was 14 years old as at Christmas 2006. John Perignon's mother was Colette Perignon, who as at Christmas 2006 was in a relationship with Yves Richard. Colette Perignon and Yves Richard were the owners of the property 40 Elaroo Avenue Phillip Bay. The appellant and Victor Vozila were half-brothers of Stella Rose. 10 The Crown case at the trial, very broadly stated, was that the appellant had caused the fracture sustained by Rodney Beale by striking Rodney Beale with a bar. The defence case at the trial, again very broadly stated, was that Rodney Beale had received the fracture when Stella Rose, at a time when both the appellant and Rodney Beale were on the ground in close proximity to each other, had, when intending to kick the appellant in the head, accidentally kicked Rodney Beale. Later in this judgment I will refer to submissions made by the appellant on the appeal that his case at the trial had actually been wider.

The evidence of the Crown witnesses at the trial 11 The evidence of the Crown witnesses at the trial can be briefly summarised as follows:-

Rodney Beale Evidence in chief 12 On Christmas Day 2006 Rodney Beale and Stella Rose travelled by car to the property at Phillip Bay, arriving about lunchtime. Rodney Beale parked his vehicle on the nature strip and close to the roller door, which was the only means of access into the backyard of the property. The vehicle which Rodney Beale described as a "station wagon" was parked parallel to the fence line, with its tail towards the roller door. 13 Later in the afternoon Rodney Beale and Stella Rose decided to go home. Rodney Beale, Stella Rose and Natalie packed Rodney Beale's vehicle. Rodney Beale then went back inside the property to go to the toilet. 14 Natalie ran from outside the property past the roller door and past Rodney Beale and ran into the house. She was screaming. 15 Rodney Beale thought that something had happened to his infant son Jack, who had been left in the vehicle. Rodney Beale's evidence continued:- "Well as I came round from the roller door and laid my eyes on young Jack and seen that he was okay, it was at that point when I felt the hit to the head." 16 Later Rodney Beale virtually repeated this evidence as follows:- "As I exited that door and faced the vehicle with the tail gate open where young Jack was sitting, at that point is when I received the whack to the head." 17 When asked where he received the blow, Rodney Beale said:- "Just here right in the left - to the left side of the centre of the - maybe." 18 Rodney Beale continued:- "Well from that point on, it was scurry of blows, one after the other. During that process I realised I was being attacked. At first I didn't know why or what was going on so my natural instinct was to cover up, because I couldn't co-ordinate or try to defend myself properly." 19 Rodney Beale said:- "I just tried to cover my face so I didn't cop any more injury." 20 When asked how many blows he received, Rodney Beale said "I couldn't give you an exact number. Quite a few". 21 When asked whether he saw what he was being hit with Rodney Beale said:- "It looked to me like a chrome bar or a silver bar of some sort, as well as fists." 22 The bar was about half a metre in length. He had seen the bar:- "With the flurry of attacks, from trying to cover up my face, that's when I'd see flashes of this thing hitting me in the head." 23 Rodney Beale found himself against the roller door and then ended up against a wall between the roller door and the next garage. 24 Stella Rose tried to step in and break up the fight. Stella Rose yelled at Rodney Beale's assailant, using his name ("Joe"), and it was then that Rodney Beale realised who was attacking him. 25 Rodney Beale was asked how long the appellant continued to punch him and he said:- "Time-wise I couldn't tell you. To me it felt like forever, what was happening, but it could've only been a matter of you know, probably five to ten minutes, something like that." 26 At some point the appellant stopped, the appellant and Stella Rose argued with each other and "then it just started up again". The evidence continued:- "Q. When you say it started up again, what started up again? A. The fisticuffs basically. Q. Between who and who? A. Between myself and Joe." 27 The following questions and answers occurred in the examination in chief:- "Q. When you say it started up again, what actually occurred, what physical things occurred at that time? A. We started swinging punches again. Q. So in relation to the accused did he make contact with you with his punches? A. Yes he did. Q. What part of your body did he make contact with? A. At that point I think I got another one in the head at that point, but many others after that were all made around the body area." 28 Rodney Beale agreed that at this stage he had thrown punches at the appellant and had made contact at some point but did not know "whether they were any good". 29 Rodney Beale saw Victor Vozila crossing the street towards the property, carrying a walking stick. Rodney Beale and some others retreated past the roller door and succeeded in closing the roller door, leaving the appellant and Victor Vozila on the other side of the roller door. Yves Richard helped Rodney Beale close the roller door. 30 Police and an ambulance arrived (Yves Richard had made a 000 call). Rodney Beale was taken to a hospital but discharged early the next day. He identified photographs of himself which had been taken on 27 December 2006.

Cross-examination 31 It was put to Rodney Beale that his vehicle was not a station wagon. He said "they call it a touring wagon actually". The vehicle had four doors and "a rear hatch for the station wagon part". The infant Jack had been put "in the back section where the tail gate opens". The vehicle did not have tinted dark windows. 32 Before he was struck Rodney Beale had got to within a metre or so of the vehicle, without seeing the appellant. "I never saw Joe at all, I never saw him at all until I was struck". 33 Rodney Beale indicated that he received the initial blow "above his left eye and the forehead area". 34 Rodney Beale said that at the time of the incident he had weighed 90 or 92 kgs. 35 Rodney Beale said:- "A. As I said the bar was the first incident, the others after that I've seen the bar but I can't recollect whether it was the bar or the fist that were hitting me because I was covering myself up. Q. But definitely the bar was still in use you say? A. Definitely there the whole time, yes." 36 In the second incident or stage the bar "was still there. I don't know why he never used it but it was still there". 37 Rodney Beale denied that he had been accidentally kicked by Stella Rose.

Stella Rose Evidence in chief 38 In 2004 or 2005 there had been court proceedings in which Stella Rose had been awarded custody of Natalie. 39 On Christmas Day 2006 Stella Rose had travelled with Rodney Beale and her infant son Jack from Newcastle to 40 Elaroo Avenue Phillip Bay. 40 When about to leave in the late afternoon she had asked Natalie to keep an eye on Jack, who was in the back of the vehicle, whilst Stella Rose went back inside the house to get more things to pack into the vehicle. 41 Stella Rose had just come out of the house when Natalie "came running, screaming past me, hysterically crying" and ran into the house. Stella Rose thought that something must be wrong with Jack. She came up past the open roller door, very focused on how Jack was, and saw that Jack was "just happily playing in the back of the car". 42 When Stella Rose first saw the appellant, he was near the roller door "just punching, a lot of punching", punching Rodney Beale. 43 The following questions and answers occurred:- "Q. Could you see anything in Joe's hands? A. Not in the beginning but after a little while I noticed something silvery in his, near his right wrist, around here, near his -- Q. When you say you noticed something silvery, what could you actually see? A. It was an iron bar. Q. Are you able to say how big it was? A. It was a, it was poking out of the top of a, some sort - either a jumper, or something he was wearing. It was poking out of the top of it. Q. And what colour was it? A. Silver, because it was shiny." Q. And how much of it was poking out of his clothing? A. About an inch, maybe, maybe a bit more, an inch or two." 44 Her evidence continued:- "A. Joe was - had Rodney right near the roller door, near those bricks and was basically punching about the head and stomach, a few times in the stomach but mainly about the head. Q. What was he punching with? A. He was punching with his fists and this bar." 45 Stella Rose estimated that the appellant hit Rodney Beale about 15 times and possibly more. This went on for "something like 10 minutes, I'm approximating though". Rodney Beale was up against a wall next to a roller door, bending very low trying to protect his head. 46 Stella Rose moved almost in between the appellant and Rodney Beale. 47 The following question and answer occurred:- "Q. In relation to your own safety, how did you feel? A. I was too concerned about Rodney's well being."

This evidence provided a basis for the trial judge's directing a verdict of not guilty on the charge of assaulting Stella Rose. 48 Stella Rose saw Victor Vozila walking across the road, with a stick in his hand. 49 Stella Rose grabbed Jack, ran inside the house and gave Jack to someone. She then returned outside. 50 The appellant and Victor Vozila, who had been inside the open roller door moved backwards and the roller door was shut. Stella Rose thought that it was Yves Richard who shut the roller door.

Cross-examination 51 Stella Rose said that she had arrived at the Phillip Bay property at about 1.15pm. 52 She described Rodney Beale's vehicle as "a sedan car". 53 She had not been able to distinguish any words spoken by Natalie when Natalie ran past her. 54 In the statement she had made to police she had said that, after discovering that Jack was all right, "I heard a commotion behind me". She had then turned around and seen Rodney Beale and the appellant. 55 The following questions and answers occurred in the cross-examination:- "Q. I will put it very simply. You didn't see the fight start did you? A. I was busy staring at my son, so no. Q. Thank you. So you didn't see who threw the first punch if anyone did, did you? A. No." 56 Stella Rose had not seen any bar at the beginning of the fight. She had then seen what she believed to be an iron pole in the appellant's clothing protruding about two inches, and not in the appellant's hand. 57 The following questions and answers occurred in the cross-examination:- "A. I saw the steel pole. Q. Well did he hit him with it or not, according to you? A. All I saw was the end of a steel pole at the top of his shirt or jacket. Q. So you didn't see the pole ever come into contact with Rodney, is that right? A. That's right." 58 Rodney Beale did not throw any punches. His arms were flailing but his hands were half opened and he was trying to ward off blows from the appellant. 59 In the statement Stella Rose had made to police she had said:- "The pole was about thirty centimetres long, it was silver, shiny silver colour. Joseph was wearing a long jacket at the time. Joseph was hitting Rodney with the end of the pole." 60 The following questions and answers occurred in cross-examination:- "Q. Yes I understand that. Look did someone say to you, "I saw Rodney hit Joe first" did someone say that to you that day? A. My brother Victor. Q. Yes. When did he say that? A. He said that as he was walking - strutting across the road. Q. Was there a pause in this fight at any stage, or did it just continually go on? A. A pause? Q. Yes, did it stop and then start again or what happened or did it just continue on? A. There was a pause when we moved from near the roller door to inside the backyard. Q. Yeah, did it start again, the fight? A. Not a physical fight, it was all screaming and carrying on from then on. Q. There was really only one fight physically? A. Yes." 61 Stella Rose denied that she had attempted to kick the appellant, had missed the appellant and had kicked Rodney Beale in the face. 62 She said "I did not see Rodney punch Joe, ever". 63 She did not remember seeing anybody coming out of the house with a broom. 64 She was shown one of the photographs of the property and asked whether the area between the roller door and the street was "pretty rough". Stella Rose said that she had not paid much attention to the ground in that area.

Colette Perignon Evidence in chief 65 On Christmas Day 2006 Colette Perignon had had a number of persons for lunch. Rodney Beale and Stella Rose arrived between 1 and 2 o'clock. Neither the appellant nor Victor Vozila were invited. The appellant had never been to the house at Phillip Bay before 25 December 2006. Victor Vozila had last been at the house about four years before. Natalie had been staying at the house for about a week. 66 Later in the afternoon Colette Perignon saw Yves Richard taking their dog outside for a walk. Colette Perignon who was inside the house heard the dog barking. Natalie came running up the stairs in an hysterical state. Colette Perignon asked Natalie what was wrong. Counsel for the appellant objected to Colette Perignon giving evidence of what Natalie had said and the Crown prosecutor did not press the question. 67 Colette Perignon ran downstairs into the backyard. She saw Stella Rose standing near the boot of the car and Rodney Beale close to the roller door. Colette Perignon ran to the car, picked up the baby Jack and passed it to a woman friend, who she told to go inside the house. Colette Perignon saw the appellant standing near the roller door. He was screaming. 68 Colette Perignon was asked about the appellant and she said "he had - I think, like a bar in his hand" and she demonstrated how the appellant had been holding the bar. The bar was on the inside of the appellant's arm and on the outside of his clothing. Colette Perignon was asked "what did you see him do with the bar?" and she replied "nothing, nope". 69 Victor Vozila came across the road "at the last minute". The following questions and answers occurred:- "Q. So before Victor came over, what happened, what did you see? A. Joe come inside the gate to the - to the roller door, he come inside and I tried to push him outside. Q. Where were Rodney and Stella at that time? A. I push Rodney and Stella, I push them inside. Q. And what happened then? A. Well, when I push Joe outside, Victor was coming across the street." 70 When Victor Vozila was crossing the road he had a stick in his hand. 71 Colette Perignon pulled the roller door down and "that's it".

Cross-examination 72 Colette Perignon said that when she said downstairs, after Natalie had come up the stairs, she went through the laundry and grabbed a broom. 73 When she first saw the appellant and Rodney Beale, they were a metre apart. In her statement she had said:- "When I got there Joe was standing in front of Rodney and Rodney was trying to push him." 74 In her cross-examination she recapitulated what she had said in chief as follows:- "WITNESS: I'm thinking to myself because I have to retrace my step. I run downstairs, I go to the laundry like we have to do, through the laundry. I pick up the broom, I run - I went to Stella straightaway. I pick up the baby, I know that for sure, I give the baby to my friend and I told her to go inside and upstairs and to stay. And after that, you know, I turn to Rodney, maybe Joe at the time was close to Rodney but I know Joe move away from Rodney and I push Rodney indoor, yeah." 75 The following question and answer occurred in the cross-examination:- "Q. So the only contact you remembered as at 29 December 2006 was Rodney trying to push Joe, that's the only contact you saw? A. Yes, is only thing I saw, yes." 76 Colette Perignon estimated that the time which elapsed between her hearing the dog barking and seeing the appellant and Rodney Beale was one minute or maybe two minutes but no more than that. 77 Colette Perignon did not see any fighting between the appellant and Rodney Beale, other than the pushing. 78 Victor Vozila was carrying something, which she did not think was a walking stick but she did not pay much attention to it.

Re-examination 79 In re-examination Colette Perignon said that in her statement she had said:- "Joe was outside on the footpath and he was trying to push his way into the yard."

Yves Richard Evidence in chief 80 When Rodney Beale and Stella Rose were leaving on 25 December 2006, Yves Richard followed them out of the house as he always did when guests were leaving. He went to the other side of the street with his dog. He gave evidence that "I was waiting to take my dog for a walk and I didn't want to leave before they did". 81 Yves Richard's evidence continued:- "I saw somebody coming from the north…walking towards the roller door and yelling "Natalie, Natalie"." 82 He had not seen the person before and did not know who he was. There was no issue at the trial that the person was the appellant. 83 Natalie was next to her mother. Natalie looked scared. Stella Rose was saying to the appellant "Joe, go away, go away". Natalie ran inside the house. 84 Yves Richard saw "close contact between Rodney and Joe. They were pushing each other". When asked "did you see anything else between them?" he said "no, I didn't". 85 Yves Richard gave evidence that "I went inside to call the police because I could see trouble". He went inside the house and made an emergency telephone call. He then went back outside. 86 His evidence continued:- "I went back to the roller door and I saw Rodney bleeding and he had - he had blood all over him." 87 Rodney Beale was next to the roller door but inside the roller door, which was down. Stella Rose and Colette Perignon were within a metre.

Cross-examination 88 Yves Richard said that he did not see any punching; he did not see anyone hitting anyone with a bar; he did not see any bar at all. He himself had a walking stick but he did not see anyone else with a walking stick.

Police witnesses 89 The police officer in charge of the investigation into the incident gave evidence that the appellant had been arrested on 6 January 2007. After being arrested the appellant had exercised his right to silence. In cross-examination the officer was shown a photograph of the area outside the roller door. The officer gave evidence that he was unable to see in the photograph any bricks or rocks in that area. In the investigation no further information had been received about an iron bar. 90 A police officer Senior Constable Robinson gave evidence that, in response to a call, she and her partner went to 40 Elaroo Avenue, arriving about 6 o'clock on 25 December 2006. She observed facial injuries to Rodney Beale. She and her partner patrolled the area for some minutes looking for suspects but did not find anyone. She did not find any forensic evidence at the property and in particular, she did not find any metal bar or stick. 91 In cross-examination Senior Constable Robinson agreed that she had been told by Rodney Beale that he had been assaulted by two male persons. 92 A police officer Detective Senior Constable Ferguson gave evidence that on 29 December 2006 she had interviewed Natalie Perignon. The transcript of the interview was marked for identification. 93 By agreement between counsel Detective Ferguson gave some evidence about what Natalie Perignon had said in the interview. Natalie Perignon had not said in the interview that the appellant had a bar or anything like a bar in his hands. Natalie Perignon had said that, as soon as she had seen the appellant, she had run inside the house.

Medical evidence 94 By agreement between counsel, a slightly edited version of Dr Popelkova's statement was read. The edited version was as follows:- "Rodney Beale was seen in the emergency department of the Prince of Wales Hospital on 25 December 2006 at 1900 hours. When seen Mr Beale was conscious. Rodney Beale complained of frontal headache and his left eye was sore. The pain radiated to the left side and back of the head. There was slight numbness of the left frontal area. In addition there was a bruise in the middle of the forehead, a small bruise in the front of the right ear. His nose was swollen and deviated to the left. CT scan of head and facial bones revealed a depressed mildly displaced fracture of the left frontal sinus interiorly. The fracture involved the anterior margin of the left orbital roof, but there was no extension of the fracture into the anterior cranial fossa. Mr Beale was reassessed on 26 December 2006 and it was decided that no surgery was indicated and management was conservative. He was given antibiotics to be taken for five days and was then discharged on 26 December 2006. He was also advised not to blow his nose. He has not been seen here since 26 December 2006."

The evidence of the defence witnesses at the trial 95 The evidence of the defence witnesses at the trial can be briefly summarised as follows.

The appellant Evidence in chief 96 The appellant and Victor Vozila agreed to go to visit Stella Rose and Natalie Perignon at Phillip Bay. They travelled in Victor Vozila's vehicle. The appellant did not know whether Stella Rose would be there but thought she might be. 97 When the appellant arrived:- "I saw Stella putting Jack into the backseat and buckling up into the harness, the baby harness and Natalie was just waiting in between the car and the roller door and Stella had finished. So as we were pulling up in the car Stella had just finished buckling him up in the seat and then she walked around the back of the car and gave Natalie a kiss goodbye and then she walked inside that roller door." 98 The appellant got out of Victor Vozila's vehicle. He had had a motorbike accident and was limping but "I deliberately left my walking stick in the car". 99 The appellant called out "Natalie, Natalie it's me" but at first Natalie did not recognise him. The appellant's evidence continued:- "I was limping sort of pretty slowly and I realised she didn't recognise me and so I took off my hat and I had a cardigan on and I took that off so she would recognise me by my tattoos. So I'm there waving and I'm sort of saying "Natalie, it's me" and she recognised me. Then she like ran off." 100 The appellant's evidence continued:- "When I got to the roller door Stella came out. ….. She went over to the left hand side of a black Chrysler and she unbuckled Jack, her son, and she walked straight past me, took him inside." 101 A few seconds later Stella Rose came out of the house, walked past the appellant and went to the back of the car. The appellant approached Stella Rose and said "Stella…we need to talk". 102 Rodney Beale walked past the appellant "he said to Stella "what's he doing here"? Stella just looked at him and Rodney said "do you want me to deal with it"? Stella said "just get rid of him"." 103 Rodney Beale came towards the appellant. The appellant walked backwards towards the roller door. The appellant said "calm down, this is stupid". Rodney Beale swung a punch at the appellant, which did not connect. The appellant repeated "calm down". Rodney Beale swung a second punch at the appellant which missed and a third punch which the appellant blocked. Rodney Beale then stopped throwing punches. 104 Stella Rose asked the appellant in a loud voice "what are you doing here?". The appellant turned towards Stella Rose and said "shut up. What are you yelling at me for". 105 While the appellant was paying attention to Stella Rose, Rodney Beale attacked the appellant.

106 The appellant's evidence continued:- "He tackled me and I sort of tried to get him into a headlock and we both hit the ground and he's on top of me." 107 The appellant gave evidence that the area where he hit the ground was outside the roller door on the footpath. He said that "it was very hard and stony and very loose gravel". 108 The appellant got Rodney Beale in a headlock. The appellant was trying to put Rodney Beale in a bear hug. The appellant's evidence continued:- "We were on the ground, I finally got him into a bear hug and I was restraining him and I could see Stella approaching us on my left and I realised what she was approaching me for. …… As we were on the ground she then kicked me with her right leg and she missed. ……. The blow went to Rodney's face." …….. At that point it startled Rodney and I managed to push him off of me." 109 Rodney Beale did not come in contact with the wall near the roller door, although he came close to it. 110 The appellant's evidence continued:- "I rolled him off and then I got on top of him and I got the advantage position so to speak. I was then - I was pinning him down with one arm and my knee and at that stage I also knew that Stella was going to come in for another blow and I had my other hand to warn Stella to back off behind me. So I'm looking at Stella, I'm saying to Stella to back off and I looked at Rodney and Rodney goes "I've had enough"." 111 Rodney Beale and Stella Rose went over to Rodney Beale's vehicle. Stella Rose was consoling Rodney Beale. She said "I'm sorry darling, it was an accident" and Rodney Beale said "it's okay, don't worry about it". 112 The appellant checked whether he had any injuries on his own body, particularly because of the bad injury he had previously suffered to his hip. 113 Rodney Beale started to breath heavily and started to cry. The appellant started to laugh and Rodney Beale became angry. The appellant said to Rodney Beale not to forget that the appellant had "let him up because he promised me that he was going to stop this". However, Rodney Beale "whacked me in the face". Rodney Beale threw two more punches, both of which missed. 114 Rodney Beale became frustrated because he could not hit the appellant with his punches and he walked towards the roller door. 115 Colette Perignon was standing under the roller door, holding a broom. Colette Perignon passed the broom to Rodney Beale, who tapped the broom on his leg. Rodney Beale looked towards Stella Rose to get her approval and the appellant said to Stella Rose "knock it off, before someone really gets hurt". Stella Rose said "it's over, stop it, I've had enough". 116 The appellant picked up his hat and cardigan, which he had dropped when Rodney Beale was trying to hit him the first time. 117 At this stage Victor Vozila rushed up, carrying the appellant's walking stick. Victor Vozila said to Stella Rose "I saw Rodney hit Joe first. I saw you kick Joe, why did you do that?". 118 Colette Perignon was at the roller door. The appellant said "we're here to see Natalie". Colette Perignon said "you're not seeing Natalie". Rodney Beale said "we will deal with this legally". 119 The appellant did not try to enter the property and Colette Perignon did not push him out of the property. 120 Rodney Beale and Stella Rose were about to close the roller door. The appellant called out loudly "Natalie, Natalie…whatever they say, don't believe them". The appellant claimed in his evidence that Natalie had heard him. The roller door was slammed shut, causing it to bounce off its track. The appellant said to Victor Vozila "we're not going to see Natalie". 121 The appellant walked up the road a little, because he was feeling a little bit upset. 122 The appellant estimated that, from the time Stella Rose took her baby out of Rodney Beale's vehicle until the roller door was slammed shut, "about 45 seconds to a minute at most" had elapsed.

Cross-examination 123 The appellant had never been to the property at Phillip Bay before. 124 On Christmas Day 2006 the appellant had a walking stick, because about four or five weeks before "I smashed my hip" in a motorbike accident. When the appellant got out of Victor Vozila's car he had left the walking stick in the car. He said in evidence "I did need it but I chose to leave it in the car". 125 The appellant was wearing a cardigan with a zip and long sleeves. 126 Victor Vozila had parked his car across the road from the property. The appellant got out of the car and walked towards the house. 127 The appellant saw Natalie run inside the house. He denied that Natalie was screaming. He wanted an explanation why Natalie had run away. 128 The appellant had seen Stella Rose walk into the backyard, as the appellant was getting out of the car. He had then seen Stella Rose walk out again to the car, unbuckle Jack and walk past the appellant, taking Jack inside. 129 The appellant saw Rodney Beale come out through the open roller door. Rodney Beale was "very taller than the appellant" and "a lot fatter". 130 Rodney Beale tacked the appellant and they were both on the ground, the appellant on his back and Rodney Beale on top of him. The following questions and answers occurred:- "Q. You said that Stella at some point whilst you and Rodney are on the ground, attempted to kick you? A. She did kick me - she attempted to kick me that's right. Q. I think you also said she did actually kick you? A. She attempted to kick me. Q. So she attempted to kick you but she didn't actually kick you at all is that right? A. She missed. Q. And you say she hit Rodney? A. Got Rodney in the face. Q. So what was she wearing? A. A dress. Q. Did she have boots on? A. Yes sir. Q. Were they steel capped boots? A. Just black boots. Q. So you were looking at her feet were you? A. Well when we got up I was looking because I thought, that was a good hit, and it actually helped me and I was actually going to point to Stella's shoes just to say, thanks. And it was just curiosity that I was looking at her shoes and as I was like, looking at her shoes that's when I noticed that Rodney started to puff, like he started to - go like that. And that's when he started to lose his temper and he started to cry." 131 The appellant said at least three times in his evidence that he did not actually see Stella Rose's kick connecting with Rodney Beale. In one part of his evidence he said:- "I didn't actually see the blow because I was expecting a blow and that's why I turned my head so I wouldn't receive a blow." 132 The appellant gave further evidence as follows:- "I should say there was a scuffle, like I'm trying to scuffle to get him - to put him in a bear hug, he's trying to scuffle and break out of - to get his arms free, to hit me and finally when I did get - finally got him into a bear hug, then he started putting in some - trying to give me some head butts and it was then that I could see Stella approaching us." 133 The appellant confirmed that he had had his arms around Rodney Beale in a reasonably tight bear hug. 134 At the time of the kick Stella Rose was standing next to the two men on the ground "within a foot", by which the appellant meant not the unit of measurement, but "within her footstep". Even though Stella Rose had been within her foots distance, she had missed connecting with the appellant. Although the appellant had been facing upwards, worried about Rodney Beale head butting him, he had seen Stella Rose "out the side of my eye". 135 The appellant had asked Rodney Beale "are you going to stop this nonsense?" and Rodney Beale had said "yes, we'll talk" and "that's when I let him up". 136 The appellant saw Victor Vozila arrive with the appellant's walking stick, when the appellant went to pick up his cardigan and hat. He had dropped his cardigan and hat when Rodney Beale started punching. 137 The appellant said "I needed it (the walking stick) but I didn't want it". He did not want to be seen using the walking stick "because I was embarrassed". He also said that, if he had a walking stick when he approached Natalie, Natalie might not be able to recognise him. 138 Victor Vozila had not brought the presents with him, when he walked across the street. There were three presents and they were wrapped, apart from a mobile phone which was unwrapped. The presents were for Natalie from the appellant's mother, who was Natalie's grandmother. The appellant did not know what the presents were. The appellant said that delivering the presents "wasn't really my reason to go there". The presents were never given to Natalie. The appellant had not seen Natalie for "probably a few years". 139 When asked why Victor Vozila had not got out of the car with him, the appellant said that he had thought it would be a good idea for Victor Vozila to remain in the car.

Victor Vozila Evidence in chief 140 Victor Vozila had himself been charged with an offence arising out of the incident at Phillip Bay on Christmas Day 2006 and at the time of the appellant's trial the charge was still outstanding. Victor Vozila elected to give evidence in the trial of the appellant and did not at any stage make any claim of privilege. 141 Victor Vozila said that what he was going to do was "drop off some presents and I was going to drop him (the appellant) off and his girlfriend at someone else's place as well". 142 The presents were from Victor Vozila's and the appellant's mother for Natalie and Jack. The presents were not wrapped. They were in a paper bag. 143 Victor Vozila said that the appellant and he had not discussed any intention of seeing Natalie. The appellant's intention had been to see a friend of his at another place in Phillip Bay. 144 Victor Vozila had been to the house at Phillip Bay "heaps of times". 145 The appellant had had his walking stick with him. "He carries it with him all the time because he's got an injury". The appellant had been injured in an accident on 14 November 2006. 146 Victor Vozila saw Natalie standing on the nature strip outside the property. He had not seen her for a couple of years. 147 Victor Vozila "pulled up across the road, not straight in front of the garage door, about 35 degrees". 148 Rodney Beale's vehicle, which was parked on the nature strip, was a sedan. "It looks like a gangster car". 149 Seeing Natalie changed the situation, so far as Victor Vozila was concerned. He said:- "Well it sort of changed the whole situation because I was just there to actually just go around the front, just knock at the door and say 'can you please give these to my niece, this is from Angela', you know what I mean, and I expected to leave and that was done but see the thing is she was just right there, the person of interest who the presents were for and we just decided we were just going to speak to her direct and give her the presents." 150 Victor Vozila and the appellant had a conversation about whether Stella Rose would be at the property. Victor Vozila expressed the opinion that she would not be there. 151 Victor Vozila said that he "proceeded to hop out of the car but then said "I didn't get out of the car". 152 The appellant got out of the car and started walking towards Natalie. He called out "Natalie, it's me". The appellant took off the hat and jacket he had been wearing. Natalie ran away inside. Victor Vozila did not hear anything. 153 Stella Rose came out of the property, went to the back of Rodney Beale's vehicle, grabbed her child (Jack) and ran back inside. 154 Stella Rose and Rodney Beale then came outside. The appellant was just outside the roller door. The appellant had nothing in his hand. Victor Vozila did not see any bar. 155 Rodney Beale looked at the appellant and then looked at Stella Rose, Stelle Rose nodded and the appellant started swinging punches at the appellant. Victor Vozila did not see whether any of the punches connected. 156 Rodney Beale tacked the appellant and pushed the appellant on to the ground on his back. The appellant encircled Rodney Beale with his arms. 157 Victor Vozila's evidence continued:- "A. Well I saw my sister, she - she walked - she walked towards him and she was standing on the spot there, just momentarily, and she was - and she was - she was shuffling her feet, you know, and then she - she swung a kick at my brother's head while he was on the ground and my brother was positioned so that he could actually see what she was doing, and that as - as she did that he just moved his head and she struck Mr Beale. Q. You saw her kick come into contact with Mr Beale? A. Yeah, yeah right here, like that. Q. Whereabouts? A. Here. Q. Right on the nose? A. Yeah." 158 The following questions and answers occurred:- "Q. Do you remember what sort of footwear your sister had on that day? A. Yeah, I do. She was wearing shoes that were - were very flat soles and they were black. They were like some sort of slip on. They weren't boots or high heels or anything like that, no they were very casual." 159 Rodney Beale stopped his "thrashing about". He looked surprised. Stella Rose had her hands up to her face. 160 The appellant had a short conversation with Rodney Beale and allowed Rodney Beale to get up. 161 Victor Vozila was still sitting in the car "25-30 metres away" but said that he had a clear view. 162 Victor Vozila's evidence continued:- "I saw him (Rodney Beale) have a brain snap…his face just distorted with instant rage…he started throwing more punches at my brother". 163 The first punch thrown by Rodney Beale connected, catching the appellant by surprise. Rodney Beale threw two more punches but the appellant was out of range. Rodney Beale moved inside the roller door and there was no further physical contact. 164 Victor Vozila saw someone behind Rodney Beale give Rodney Beale what appeared to be a piece of wood. 165 When asked why he had not left the car and intervened Victor Vozila said "my inaction was basically I was just totally gobsmacked by what Mr Beale did and my sister". 166 Victor Vozila estimated that from the time Rodney Beale started punching only 20 seconds or maybe nearly half a minute had elapsed. 167 When Victor Vozila first got out of the car he did not take the appellant's walking stick with him. However, he saw that the appellant was favouring his hip and Victor Vozila returned to the car and got the appellant's walking stick. However, the appellant indicated that he did not want the walking stick. 168 Victor Vozila said to Rodney Beale "I saw you hit (the appellant) first" and to Rodney Beale and Stella Rose "why are you attacking Joe?". 169 Stella Rose made some sort of gesture to Rodney Beale and the incident stopped. The roller door was closed and Victor Vozila and the appellant left. 170 Victor Vozila picked up the appellant, who had walked up to the road. Victor Vozila's evidence continued:- "I went into the next street where he and his friend were supposed to go. Q. But there was no friend with you, was there? A. Yes, there was. Q. Joe's friend was with you? A. Yes, she was. Q. In the car? A. Yeah, she was sitting in the backseat here. Q. What was her name? A. What's her name, Amanda."

Cross-examination 171 Victor Vozila agreed that he had discussed the incident with his brother the appellant, after it had happened. 172 The presents were unwrapped and there were two of them. 173 Victor Vozila had telephoned Colette Perignon in the middle of the afternoon of Christmas Day and had told her that he was coming. 174 Victor Vozila had agreed to take the appellant and the appellant's friend Amanda to Phillip Bay. He had picked up the appellant from outside the unit where the appellant was living. The appellant was wearing a jacket. It was two-toned with a zip. 175 Victor Vozila said that he had been to the house at Phillip Bay many times and that he always parked opposite the roller door. He would have parked closer on this occasion but for some cars which were already parked in the street. 176 Rodney Beale's vehicle was not a station wagon, it was a four door sedan with a big boot. Victor Vozila did not see Jack in the back of the car and could not have seen Jack because the car had tinted windows. 177 With respect to the area outside the roller door Victor Vozila said:- "Yeah because I've been there hundreds of times, that driveway's been the same, it's just got bricks in it and things in it and grass and all sorts of stuff." 178 Victor Vozila had not seen Rodney Beale headbutt the appellant. He gave evidence:- "I got the impression that Mr Beale considering his initial aggression was just setting himself up to start punching my brother's face by sitting on his torso while probably head butting, I had no doubt that Mr Beale would have the intent to do so if there was clear passage for him to do that. I have no doubt in my mind considering the initial aggression that I saw him display." 179 The following questions and answers occurred in the cross-examination:- "Q. Did you see her walk towards your brother and Rodney? A. Yes I did yeah. Q. And I think you've told us before that she was wearing shoes, you can clearly remember that? A. Yes she was yeah. Q. It wasn't like she was wearing boots was it? A. No she wasn't wearing boots no. Q. And you're certain about that aren't you? A. I'm sorry? Q. You are certain about that aren't you? A. Yes I am certain yeah, yeah." 180 Stella Rose started "shuffling her feet", "shifting her weight…she was lining up a kick" and she kicked with the tip of her toes. 181 Someone gave Rodney Beale a piece of wood but Rodney Beale dropped it.

The appeal 182 The appellant's written submissions on the appeal ran to more than 60 pages and were obviously the product of a very large expenditure of time and effort. These submissions were in fact the last of four sets of submissions filed by the appellant in the court's registry. It would appear that the submissions were, to a large extent, prepared by Victor Vozila. An indication of the amount of effort which would have gone into the preparation for the appeal was a remark made by the appellant at the hearing of the appeal that every member of the medical staff at each Correctional Centre, whether Silverwater, Junee or Cooma, at which the appellant had been imprisoned, had a different opinion as to where Rodney Beale's fracture actually was. 183 On the first page of the written submissions what were described as "four main submissions" were made and these main submissions would appear to be the grounds of appeal against conviction. 184 These grounds, as expressed in the appellant's written submissions, were:- 1. My legal team was incompetent and they did not study the evidence material sufficiently to raise during the trial the inconsistencies and pro-defence available evidence of the Crown witnesses. ………… My legal team were also incompetent because they struck a deal with the prosecutor where they don't defend me against grievous bodily harm in return for suppression of an important part of the doctor's report and they did this without consultation or permission from me. 2. The jury were not given the due and proper instructions from the judge to enable them to properly deliberate the issue of grievous bodily harm in my trial. 3. The case and closing summaries of the judge and the prosecutor and my barrister had a serious error of omission that presented my case with a bias of implausibility that influenced the jury against me. 4. The jury's verdict was manifestly wrong and unreasonable and the jury should have had some doubt about Mr Beale's honesty when it assessed the evidence and witnesses during the trial. 185 Expressed more concisely the grounds of appeal would appear to be:- 1. The appellant's legal representatives at the trial were incompetent. 2. The judge erred in directing the jury about grievous bodily harm 3. There was a serious error of omission in the closing addresses of the Crown prosecutor and counsel for the appellant and in the trial judge's summing-up. 4. The verdict of guilty was unreasonable and cannot be supported having regard to the evidence. 186 Most of the appellant's written submissions were devoted to 14 matters described as "claims" and I will refer to them as "claims" in this judgment. 187 The claims relevant to the first ground of appeal was stated to be all of the claims, except for claims 2, 10 and 13. The claim relevant to the second ground of appeal was stated to be claim 12. The claim relevant to the third ground of appeal was stated to be claim 13. The claims relevant to the fourth ground of appeal were stated to be claims 2, 4, 5, 6, 7 and 10. 188 At the hearing of the appeal the counsel who had appeared for the appellant at the trial and the solicitor who had acted for him at the trial were cross-examined by the appellant. 189 After the cross-examination of the legal representatives had concluded the appellant addressed the Court. As the appellant had no legal representation and had no legal qualifications himself, he was allowed considerable latitude by the Court. In his address the appellant not only made submissions but also at times gave accounts of what he said had happened during certain parts of the incident at Phillip Bay, that is to say the appellant purported to give evidence about what had happened in the incident. 190 In my opinion, this Court should disregard the parts of the appellant's address which amounted to the giving of evidence. Such evidence clearly would not satisfy the criteria for evidence to be fresh evidence; the appellant did not make any oath or affirmation before giving the evidence; the Crown had no opportunity to cross-examine the appellant on the evidence; and some of the evidence was in fact inconsistent with evidence given by the appellant at the trial. Furthermore, it would be unfair to the Crown for the Court to take into account evidence given by the appellant before the Court, while merely reading the transcripts of the evidence given by the Crown witnesses at the trial. The Court should, of course, take into account the parts of the appellant's address which were truly submissions. 191 It is convenient to consider the appellant's grounds of appeal against conviction in a different order from that in which they were set out in the appellant's written submissions.

Ground 2 - the trial judge erred in directing the jury about grievous bodily harm. 192 In the summing-up the trial judge gave the following directions about grievous bodily harm:- "The meaning of grievous bodily harm is in this context some really serious bodily injury. It is a matter for you whether the injuries, and in this particular case the fractured skull suffered by Mr Beale, amounted to grievous bodily harm but you must be satisfied beyond reasonable doubt that it did before you can find this particular element proved beyond reasonable doubt. You will remember of course that Mr Spencer said it is not an issue as far as the defence is concerned." 193 It was submitted by the appellant that the trial judge should have included in his directions to the jury in the summing-up something the trial judge had said, in the absence of the jury, in the course of the trial, namely:- "The determination of whether something amounts to grievous bodily harm or really serious harm involves two aspects, the quality and also the quantity of that injury…" 194 It was also submitted that the trial judge should have directed the jury that grievous bodily harm is "permanent or severe disfigurement of the person or really serious harm". It was further submitted that the injury to Rodney Beale did not amount to "permanent disfigurement", because the fracture had healed completely without displacement or surgical intervention. 195 I do not consider that this ground of appeal should be upheld. 196 The directions given by the trial judge that grievous bodily harm means really serious bodily injury is the direction usually given where grievous bodily harm is an element or part of an element of an offence: DPP v Smith (1961) AC 290 at 334. It was unnecessary for the trial judge to direct the jury that they should take into account the quantity and quality of the injury. 197 The expression "permanent or severe disfigurement" would appear to have been derived by the appellant from the inclusive definition in s 4 of the Crimes Act that grievous bodily harm "includes…(b) any permanent or serious disfiguring of the person". It is clear that this is only a partial, inclusive definition. An injury can amount to grievous bodily harm without having to involve permanent or serious disfigurement.

Ground 3 - there was a serious error or omission in the closing addresses of the Crown prosecutor and counsel for the appellant and in the trial judge's summing-up. 198 The error or omission alleged by the appellant was that, while both counsel and the trial judge had referred to the part of the defence case that Rodney Beale had been injured when he was accidentally kicked by Stella Rose, they had not referred to the part of the defence case that Rodney Beale had received some of the injuries to his face when his face had struck hard, stony ground outside the roller door. 199 Defence counsel, who, of course, addressed after the Crown prosecutor, did indeed refer to this part of the defence case in his closing address. He submitted that it might not be speculative and might be possibly true that Rodney Beale had sustained a bump or lump to his forehead when his head made contact with the hard, if not rocky, ground outside the roller door. However, counsel did not submit that Rodney Beale's fracture might have been sustained in this way. 200 The reference in defence counsel's address was a brief passing reference and counsel did not submit that the fracture, which was the injury relied on by the Crown as constituting grievous bodily harm, might have been caused in this way. A trial judge in a summing-up is not obliged to refer to every submission which has been advanced by defence counsel and the omission by the trial judge to refer to this submission made by defence counsel did not amount to a failure to put the substance of the defence case to the jury. 201 I would reject this ground of appeal. I will consider the question of whether there was any incompetence on the part of defence counsel in my consideration of the first ground of appeal.

Ground 1 - the appellant's legal representatives at the trial were incompetent. 202 The appellant's submissions were directed, entirely or almost entirely to the conduct of his counsel and not that of his solicitor. In Seymour v The Queen (2006) 162 A Crim R 576 Hunt AJA, with whom the other members of the Court agreed, referred to the then recent trilogy of cases in the High Court relating to appeals against conviction on the ground that counsel for the appellant at the trial was incompetent in conducting the appellant's defence: TKWJ v The Queen (2002) 212 CLR 124; Ali v The Queen (2005) 214 ALR 1; Nudd v The Queen (2006) 80 ALJR 614. At 581-2 (19)-(21) Hunt AJA said, omitting citation of authority:- "[19] It is now accepted that a trial may have been unfair, leading to a miscarriage of justice, by reason of the manner in which counsel appearing for the accused conducted his defence… [20] It is, however, important to note that such a ground of appeal neither requires nor permits an inquiry into the competence of the counsel in question; what must be established is the objective fact that there was a miscarriage of justice as a result of counsel's conduct, in the sense that there has been a loss of chance of acquittal which was fairly open to the accused…An appellant carries a heavy burden… [21] Relevant to the existence of a miscarriage of justice in the particular trial are the issues of whether the conduct of counsel represented a legitimate choice a competent counsel could fairly make in the circumstances of that trial and whether, viewed objectively, it was a rational tactical decision in the particular forensic situation in which it was made. When that situation is examined, issues such as the forensic advantage which may have been sought and possible prejudice which may have been caused by counsel's conduct are relevant but not necessarily decisive considerations…" 203 The claims in the appellant's written submissions submitted to be relevant to this ground of appeal were all of the claims, apart from claims 2, 10 and 13.

204 I will now proceed to deal with the various claims in the appellant's written submissions. The discussion of these claims in the written submissions is fairly discursive and it is not always easy to be sure what the appellant's point or points really are. It is apparent from the written submissions that the conduct of trial counsel was subjected by the appellant to an exhaustive examination.

Claim 1 205 It was submitted that there was a miscarriage of justice as a result of the omission of trial counsel to adduce evidence that, when Natalie ran past Rodney Beale and Stella Rose, she said words to the effect that the appellant had come to the property. Such evidence, it was submitted, would have contradicted evidence by Rodney Beale and Stella Rose that Natalie ran past them screaming (but without saying any distinguishable words) and Rodney Beale's whole account of not being aware of the presence of the appellant until he received the first blow. 206 In her answer to question 216 in an interview by police Natalie had said "I think I said it's Joe" to her mother and Rodney Beale. 207 Natalie did not give evidence at the trial. At the hearing of the appeal counsel for the Crown read an affidavit by the trial advocate who appeared for the Crown at the trial, in which the trial advocate said that Natalie was not called to give evidence at the trial because she was only 14 years old at the time of the incident and, in the opinion of the trial advocate, did not actually see anything of relevance. The trial advocate said that an agreement had been made between himself and counsel for the appellant at the trial that evidence of what Natalie did see would be given in summary form by Senior Constable Ferguson. This evidence was the evidence I have already summarised that in her interview Natalie had not said that the appellant had a bar or anything like a bar in his hands and that, as soon as she had seen the appellant, she had run inside the house. 208 Even if Natalie had been called as a witness and had given evidence in accordance with what she had said in her answer to question 216 in the interview, all of the Crown witnesses Rodney Beale, Stella Rose and Colette Perignon gave evidence that Natalie was screaming, two of the witnesses adding "hysterically", and it is far from clear that any words Natalie might have said as she ran past Rodney Beale and Stella Rose would have been distinguishable by them. 209 The appellant, both in his written submissions and his oral submissions, expressed confidence that, if Natalie had been called to give evidence, the appellant would have been acquitted. However, in my opinion, it was well open to trial counsel to make a rational tactical decision to have brought before the jury evidence which would assist the appellant that Natalie had not said in her interview that she had seen a bar in the appellant's hands but not to have Natalie called as a witness. Even the appellant and Victor Vozila in their evidence said that Natalie had run away when the appellant approached her and, as I have said, three of the Crown witnesses gave evidence that Natalie was screaming as she ran. There was a strong inference that Natalie had run away as soon as she saw the appellant and that the sight of the appellant was highly distressing to her. Even the appellant on the hearing of the appeal conceded that it would have been necessary, if Natalie had been called, for his trial counsel to "break down" Natalie. 210 I would reject this claim.

Claim 3 211 It was submitted that there was a miscarriage of justice by reason of the failure of trial counsel sufficiently to challenge Rodney Beale's evidence that his vehicle was a station wagon. 212 Rodney Beale gave evidence in his evidence in chief that his vehicle was a station wagon. Other witnesses gave evidence that the vehicle was a sedan car with a boot. It was submitted by the appellant that this evidence by other witnesses was inconsistent with Rodney Beale's evidence that the vehicle was a station wagon. 213 Rodney Beale was cross-examined on this part of his evidence. He said that the vehicle was actually a touring wagon with "a rear hatch for the station wagon part". 214 It was suggested by the appellant that Rodney Beale had given false evidence about the vehicle, because he did not want to be portrayed as a bad parent, leaving a child in the (open) boot of a car. 215 The suggestion made by the appellant seems to me to be highly speculative. It was well open to trial counsel to take the view he expressed in cross-examination on the hearing of the appeal that the issue was of minimal importance. 216 I would reject this claim.

Claim 4 217 It was submitted that there was no evidence, independent of Rodney Beale's own evidence, that he had received the first blow, which Rodney Beale said was the hardest blow, on the part of his head where Rodney Beale claimed to have received it. 218 Rodney Beale gave evidence that he received the first blow "to the left side of my head", "just here right in the left - to the left side of the centre of - maybe" and "a blow to the left side of the forehead". 219 It was submitted that there had been a failure by trial counsel to ensure that the absence of independent evidence consistent with Rodney Beale's evidence was brought before the jury. 220 At the trial Senior Constable Robinson gave evidence about the injuries she observed on Rodney Beale's face. Dr Popelkova's edited statement about Rodney Beale's injuries was read to the jury. 221 In his closing address trial counsel made a number of submissions that the independent evidence of the injuries suffered by Rodney Beale or the lack of injuries was inconsistent with Rodney Beale's evidence about how the incident had happened and what injuries he had received. 222 I would reject this claim.

Claim 5 223 In claim 5 the appellant drew attention to the conflicting evidence of the Crown witnesses about an iron bar. 224 This claim is an important claim in relation to the fourth ground of appeal, which I will consider later in this judgment. However, it does not seem to me to contain any real criticisms of trial counsel. 225 Trial counsel took a number of steps to bring out the inconsistencies between the evidence of the Crown witnesses. Counsel obtained admissions in cross-examination of Stella Rose that she had not seen a pole or a bar come into contact with Rodney Beale, which was contrary to what she had said in her statement to the police that "Joseph was hitting Rodney with the end of the pole". Trial counsel obtained admissions from Yves Richard, a witness who the appellant feared would be hostile to him, that he did not see anyone hitting anyone with a bar and did not see any bar at all. By means of the agreement he reached with the trial advocate trial counsel succeeded in bringing before the jury evidence that Natalie had not seen an iron bar in the hands of the appellant. 226 Trial counsel secured the Crown's agreement to excise from the medical report the history given by Rodney Beale on the very night of the incident that he had been assaulted by a family member with an iron bar. 227 In his closing address counsel for the appellant addressed the jury at length on the inconsistencies between the evidence of the Crown witnesses. 228 I would reject this claim.

Claim 6 229 It was submitted that there was a miscarriage of justice by reason of trial counsel procuring the suppression of a part of the medical report of Dr Popelkova. 230 Rodney Beale gave evidence that he received "quite a few" blows in the first part of the encounter which he estimated went on for 5-10 minutes. 231 In the medical statement, as prepared by Dr Popelkova, Dr Popelkova recorded a history given by Rodney Beale that he had been assaulted with a metal bar "twice" to the face and had been punched "several times". This part of the medical statement was edited out of the version of the statement read to the jury. 232 It was submitted by the appellant that trial counsel had done a deal with the prosecution, without any instructions from the appellant, to suppress this part of the medical report. It was argued that the suppression of this part of the medical report had prevented the inconsistencies between the history recorded in the statement and the evidence given by Rodney Beale at the trial being pointed out to the jury. 233 In his affidavit the trial advocate who appeared for the Crown at the trial said:- "The evidence of Dr M Popelkova was given in the form of his statement being read onto the record in the presence of the jury. By agreement with Mr Spencer the history of how Mr Beale was allegedly hit twice with an iron bar to his face and being punched several times was not led as it was considered by Mr Spencer to be prejudicial to the accused in that it was hearsay and might have given greater weight to Mr Beale's evidence." 234 In his evidence in cross-examination on the hearing of the appeal trial counsel said:- "I left that out because I thought it would not be of assistance to you for the jury to hear a prior consistent claim by the injured party that he had been hit by an iron bar. I thought it in your interest it not go to the jury." 235 In my opinion, this was a rational tactical decision for trial counsel to take. 236 Under this claim it was also submitted that there had been a miscarriage of justice in trial counsel's failure to point out to the jury the absence of defensive injuries to Rodney Beale's hands and of injuries to his upper body, which it was submitted was inconsistent with Rodney Beale's account of the incident. 237 However, trial counsel in fact, in both his opening and closing addresses, emphasised the absence of defensive injuries on Rodney Beale's hands such as might be expected if Rodney Beale had in fact been subjected to a sustained attack with an iron bar. As already noted, there was evidence before the jury of the full extent of the injuries sustained by Rodney Beale. 238 I would reject this claim.

Claim 7 239 It was submitted that there was a miscarriage of justice by reason of the failure by trial counsel to point out in his closing address to the jury the use of the word "again" in parts of Rodney Beale's evidence. 240 It was submitted that both Rodney Beale and the appellant had said in their evidence that there were two altercations or two stages in the physical violence. Rodney Beale's evidence was that in the first stage, lasting probably 5-10 minutes, he had merely tried to protect himself and did not throw any punches. In the second stage, after the intervention of Stella Rose, Rodney Beale had himself thrown punches. 241 It was submitted that in describing the second stage Rodney Beale had used the word "again". He had said "it just started up again" and when asked what had started up "again" he had said "the fisticuffs between myself and Joe" and "we started swinging punches again". 242 It was contended that by using the word "again" Rodney Beale was admitting that in the first stage of the encounter Rodney Beale had, contrary to his evidence, been himself throwing punches. The appellant complained that counsel at the trial had not made this point in his final address. 243 In my opinion, this submission attributes to Rodney Beale a precision in the use of language, which the transcript of his evidence generally would not suggest he possessed. In my opinion, the view was well open that all Rodney Beale was conveying was that, after an interruption, the violence started again. 244 I would reject this claim.

Claim 8 245 It was submitted that there was a miscarriage of justice in that trial counsel did not in his address challenge Rodney Beale's evidence that the first altercation or stage lasted as long as 5-10 minutes. 246 I have already referred to the evidence given by Rodney Beale when he was asked how long the appellant continued to punch him. Rodney Beale said:- "Time-wise I couldn't tell you. To me it felt like forever, what was happening, but it could've only been a matter of you know, probably five to ten minutes, something like that." 247 The appellant's evidence was that he estimated that from the time the infant Jack was taken out of Rodney Beale's vehicle until the roller door was slammed shut "about 45 seconds to a minute at the most" had elapsed. It was submitted that the appellant's estimate was supported by a calculation based on the time it would have taken Yves Richard to do the things Yves Richard said he had done, including making the 000 emergency call. 248 I would reject this claim. It is clear that Rodney Beale's estimate was a rough approximation. He began his answer by saying "I couldn't tell you". It would be unsurprising that even a brief assault would have felt to Rodney Beale like a long time. The estimate finally given by him was attended by qualifications. 249 It was well open to trial counsel to consider that the point was of little significance.

Claim 9 250 It was submitted that there was a miscarriage of justice by reason of the conduct of trial counsel in that trial counsel did not point out to the jury a particular inconsistency between the evidence of Rodney Beale and Stella Rose on the one hand and Yves Richard on the other. 251 Rodney Beale gave evidence that Yves Richard helped Rodney Beale close the roller door, leaving the appellant and Victor Vozila on the other side of the roller door. Stella Rose gave evidence that she thought it was Yves Richard who shut the roller door. Yves Richard, on the other hand, gave evidence that, after making the 000 emergency call from inside the house, he went outside and saw that the roller door was down, that is had already been shut. 252 Trial counsel in his closing address told the jury that Yves Richard was an important, indeed the most important, witness in the case. Counsel pointed out that Yves Richard had given evidence that he was in a position on the opposite side of the street from the house, from which he had seen the appellant arrive. Yves Richard said he had not seen anything happen between the appellant and Rodney Beale, apart from some pushing, before Yves Richard went inside the house to make the telephone call. Counsel made a submission to the jury that this evidence by Yves Richard "cannot be in any way consistent with what Rodney Beale said". 253 This evidence by Yves Richard was truly important, because it related to whether the appellant had initiated the violence by striking Rodney Beale with a bar. That counsel did not refer to the particular inconsistency now urged by the appellant was a matter of little significance. 254 I would reject this claim.

Claim 11 255 It was submitted that there was a miscarriage of justice because of the failure to ask certain witnesses whether the ground outside the roller door, between the roller door and the street, was hard and contained objects such as stones, which might have inflicted some of Rodney Beale's facial injuries. 256 The appellant had given evidence that, after being tackled by Rodney Beale, he had tried to apply a headlock to Rodney Beale and both of them had hit the ground. The appellant gave evidence that the ground in that area was very hard and stony and very loose gravel. 257 On the appeal the appellant submitted that it had been part of his case at the trial that some of Rodney Beale's facial injuries had been sustained when his head hit the ground. 258 Counsel at the trial did ask the police officer in charge of the investigation and Stella Rose about the state of the ground outside the roller door but neither of those witnesses was able to give any evidence on the matter. 259 It was submitted that counsel at he trial should also have asked Yves Richard and Colette Perignon as the owners of the property and Senior Constable Robinson who had looked for forensic evidence in the area. 260 It is, however, pure speculation that any of those witnesses could have given any evidence which might have assisted the appellant. I have already referred to the evidence the appellant himself gave on the matter. 261 In his closing address counsel for the appellant did submit to the jury that it was possible that part of Rodney Beale's facial injuries had been caused when his head struck the ground outside the roller door. 262 I would reject this claim.

Claim 12 263 It was submitted that there was a miscarriage of justice by reason of counsel for the appellant entering into an agreement with counsel for the Crown that defence counsel would concede that the injuries sustained by Rodney Beale amounted to grievous bodily harm, in return for the part of the medical report to which I have already referred being "suppressed", that is edited out. 264 I am satisfied on the basis of the evidence of trial counsel and the evidence in the affidavit of the trial advocate for the Crown that no such agreement was entered into. 265 Trial counsel did seek an agreement that the part of the medical statement in which Dr Popelkova set out the history he had been given be edited out, simply because, as he expressed it in giving evidence before this Court, "I thought it would not be of assistance to you for the jury to hear a prior consistent claim by the injured party that he had been hit by an iron bar". Counsel formed this view, quite independently of whether any injuries sustained by Rodney Beale amounted to grievous bodily harm. 266 It is true that counsel, as he stated in his evidence before this Court, "took the view that the injuries that I saw in the medical constitute serious injury" and that, while no formal concession was made, the trial was conducted on the basis that there was no real issue that the fracture described in the medical statement amounted to grievous bodily harm. 267 There would clearly be many cases of grievous bodily harm much more serious than the present case, a fact remarked on by the sentencing judge in his remarks on sentence. 268 However, the fracture sustained by Rodney Beale was clearly capable of being held by the jury to amount to really serious bodily injury and I consider that it was a rational tactical decision for defence counsel to focus on a defence case that there had not been any bar, that Rodney Beale had not been struck with any bar and that Rodney Beale had received his injury when accidentally kicked by Stella Rose. 269 I would reject this claim.

Claim 14 270 It was submitted that there was a miscarriage of justice by reason of counsel's failure to point out to the jury that some of the injuries to Rodney Beale's face, namely reddish indentations in the middle of the forehead, would have been caused by an object with a large, flat surface and were, accordingly, not likely to have been caused by a fist or a bar and would more likely been caused by Rodney Beale's face striking the hard ground outside the roller door. It was submitted that there was nothing n Rodney Beale's account of what happened which would explain how these injuries had been caused. 271 There was no expert evidence to support this argument and it appears to me to be sheer speculation. 272 I do not consider that there was any error on the part of trial counsel in not raising this argument.

Conclusion 273 In my opinion, whether the various claims are considered individually or in combination, the first ground of appeal has not been made out.

Ground 4 - the verdict of guilty was unreasonable and cannot be supported having regard to the evidence 274 This is the first ground stated in s 6(1) of the Criminal Appeal Act as being a ground on which an appeal against conviction can be allowed. The principles to be applied by the Court of Criminal Appeal in determining an appeal against conviction on this ground are well known. In M v The Queen (1994) 181 CLR 487 at 493-4 Mason CJ, Deane J, Dawson J and Toohey J in passages in their joint judgment which were subsequently approved by the High Court in Jones v The Queen (1997) 191 CLR 439 at 450-1, said:- "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. ………… …where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."

See also MFA v The Queen [2002] 213 CLR 606 at 614 (25) per Gleeson CJ, Hayne and Callinan JJ and at 623 (55) and (56) per McHugh, Gummow and Kirby JJ. At 623 (56) McHugh, Gummow and Kirby JJ said that: "In such a case of doubt (that is a doubt experienced by an appellate court) it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred."

The present Chief Judge at Common Law has analysed the principles to be applied in R v Habib [2005] NSWCCA 223 at [48] to [56]; Kaliyanda v R [2007] NSWCCA 300 at [72] and Dodds v R [2009] NSWCCA 78 at [74]. 275 In his written submissions the appellant stated that the claims relevant to this ground of appeal were claims 2, 4, 5, 6, 7, and 10. I have already made some examination of claims 4, 5, 6 and 7 in considering the first ground of appeal. Claims 2 and 10 were not relied on in support of the first ground of appeal. 276 In claim 2 it was submitted that Rodney Beale's evidence that he did not see the appellant until he was struck and Stella Rose's evidence that she did not see the appellant until she saw him punching Rodney Beale were contradicted by Yves Richard's evidence that, when the appellant first arrived outside the property, Stella Rose told him to go away and evidence that Rodney Beale was then in close proximity to Stella Rose. 277 In claim 4 it was submitted that there was no evidence, independent of Rodney Beale's evidence, that he had received the first blow, which he said was the hardest blow, on the part of his head where Rodney Beale claimed to have received it. 278 Claim 5 that the Crown witnesses gave conflicting evidence about any iron bar was the principal matter relied on by the appellant. 279 Rodney Beale gave evidence that the appellant had had a bar and had struck him with the bar. 280 Stella Rose, while saying that she had seen a steel pole, said that she had not seen it at the start of the fight, she had seen it in the appellant's clothing and not in his hand and she had not seen it come into contact with Rodney Beale. Her evidence at the trial was in conflict with what she had said in her statement to the police, which became evidence at the trial, that she had seen that the pole was 30 centimetres long and that she had seen the appellant hit Rodney Beale with the end of the pole. 281 Colette Perignon gave evidence that she had seen the appellant with a bar but had not seen him do anything with the bar. 282 Yves Richard gave evidence that he had not seen anyone hitting anyone with a bar and had not seen any bar at all. 283 In claim 6 it was submitted, so far as the present ground of appeal is concerned, that the absence of defensive injuries to Rodney Beale's hands and the absence of injuries to his upper body were inconsistent with Rodney Beale's evidence about the length and severity of the attack on him by the appellant with his fists and the bar. 284 In claim 7 the appellant sought to rely on the use by Rodney Beale of the word "again" in parts of his evidence describing the second stage in the encounter between himself and the appellant. I have already expressed the opinion that the appellant's submission attributes to Rodney Beale a greater precision in the use of language than Rodney Beale possessed. 285 In claim 10, which was not relied on in support of the first ground of appeal, it was submitted that Rodney Beale had told the police, falsely, that he had been assaulted by two male persons and not one male person. Senior Constable Robinson gave evidence that she had been told by Rodney Beale that he had been assaulted by two male persons. However, on Rodney Beale's evidence, he had been assaulted by only one male person, the appellant, Victor Vozila taking no part in the assault. 286 It is true that Rodney Beale had not, on his account, been assaulted by two male persons. However, Victor Vozila, although he did not actually participate in the assault alleged by Rodney Beale, was the appellant's brother, he had been nearby at the time of the alleged assault and had then walked across the street to the property and it was virtually inevitable that Rodney Beale would have referred to Victor Vozila, as well as the appellant, when speaking to the police. It would have been well open to the jury to attach little significance to the literal inaccuracy of Rodney Beale's assertion, even assuming that there had not been some misunderstanding between Rodney Beale and the police officer as to the role of Victor Vozila. 287 The defence case at the trial was that Rodney Beale had received his undoubted fracture when Stella Rose, intending to kick the appellant, had accidentally kicked Rodney Beale. In my opinion, it was open to the jury to reject this explanation of Rodney Beale's injury, beyond reasonable doubt. 288 It is, of course, possible that a person intending to kick another person A might accidentally kick another person B, if A and B are close to each other. However, much more usually a person who intends to kick another person A will succeed in kicking person A rather than another person B, even if A and B are close to each other. In the present case, the likelihood of Stella Rose missing her intended target would be further reduced by the appellant's evidence that Stella Rose made her kick at such close range, "within her footstep" away. 289 The appellant did not actually claim that he had seen Stella Rose's kick connecting with Rodney Beale. 290 Stella Rose denied that she had attempted to kick the appellant, had missed the appellant and had kicked Rodney Beale in the face. 291 Victor Vozila claimed that he had seen Stella Rose kick Rodney Beale and that he had had a clear view. However, he was sitting in the seat of a car 25-30 metres away and at an angle. The jury could have regarded his assertion of having seen Stella Rose kick Rodney Beale as undermined by the appellant's evidence that, after Victor Vozila crossed the street, Victor Vozila had said to Stella Rose "I saw you kick Joe, why did you do that?". 292 Stella Rose was not asked by either counsel what she had been wearing on her feet on Christmas Day 2006. 293 The question of what Stella Rose had been wearing on her feet was first raised by the trial advocate for the Crown in his cross-examination of the appellant. Apparently with intended sarcasm the trial advocate asked the appellant whether Stella Rose had had boots on and whether they were steel capped boots. The appellant agreed with the suggestion that Stella Rose had had boots on and said that they were black boots. However, in the immediately following answer, the appellant three times described what Stella Rose had been wearing on her feet as being "shoes" and not "boots". 294 Victor Vozila was emphatic in his evidence in chief that Stella Rose had been wearing casual, slip on, flat shoes and that she was not wearing boots. In cross-examination he said that he was "certain" that Stella Rose was not wearing boots. 295 In his oral submissions in the Court of Criminal Appeal the appellant said that Stella Rose had been wearing "boots". The transcript of the hearing records the appellant as saying that they were "bookman boots" but it seems that the transcript should read "bushman boots". This was not the evidence given by either the appellant or Victor Vozila at the trial. 296 In my opinion, it would have been open to the jury to consider it improbable that a kick delivered by Stella Rose from such close range could have been powerful enough to fracture a bone in Rodney Beale's face or that it could have struck the front of Rodney Beale's face, when, according to the appellant's evidence, Rodney Beale was lying on top of the appellant with the appellant applying a bear hug around Rodney Beale's body. 297 There are other aspects of the appellant's evidence which the jury could have regarded as improbable and as weakening his general credibility. 298 The appellant gave evidence that the purpose of the visit was to give Christmas presents to Natalie. There were inconsistencies between the evidence given by the appellant and the evidence given by Victor Vozila about the number of presents and whether they were wrapped. When the appellant and Victor Vozila saw Natalie, only the appellant got out of the car and he did not take with him out of the car the presents intended for Natalie. 299 There were indications in the evidence at the trial that delivering presents to Natalie was not the real purpose of the visit. Indeed, in one part of his evidence the appellant said that delivering presents to Natalie was not the real reason for the visit. It would seem that the appellant believed that one or more of Stella Rose, Yves Richard and Rodney Beale had been guilty of some kind of abuse of Natalie. I have already pointed out that no mention was made of the presence in the car of a third person Amanda, until this came out in the evidence in chief of Victor Vozila. 300 The appellant had been seriously injured in a road accident only a few weeks previously. He said that he had a "smashed hip" and was limping and that he was using a walking stick. Victor Vozila gave evidence that, because of his injury, the appellant carried the walking stick with him all the time. However, when the appellant got out of the car, he left his walking stick in the car. In my opinion, it would have been open to the jury to find implausible his explanation that he would have been embarrassed if he had been seen using the walking stick and that, if he had had a walking stick when he approached Natalie, Natalie might not have been able to recognise him. 301 The appellant said in evidence that he was wearing a cardigan, even though it was Christmas Day in the middle of summer and it was a "nice" day. A submission made by the Crown was that the bar was concealed up the sleeve of the cardigan. 302 It would have been open to the jury to be sceptical about the appellant's account of how well he had acquitted himself in the encounter with Rodney Beale. Notwithstanding his "smashed hip" and that, according to the appellant, Rodney Beale was much taller and 20 kgs heavier, the appellant had avoided all of Rodney Beale's punches (except when Rodney Beale made a surprise attack) and had at one stage pinned Rodney Beale to the ground with one hand and a knee, while warning off Stella Rose with the other hand. Rodney Beale, on the other hand, had, according to the appellant, been so frustrated by his inability to land a punch on the appellant that Rodney Beale had started crying. 303 There are, undoubtedly, inconsistencies between the evidence of Rodney Beale and the evidence of the other Crown witnesses and it seems to me likely that in his evidence Rodney Beale exaggerated the length and severity of any attack on him. I also take into account the other claims relied on by the appellant. 304 However, it was well open to the jury to find that the appellant came to the property uninvited, that there was some kind of physical encounter between the appellant and Rodney Beale and that in that encounter Rodney Beale sustained the injuries which were proved by independent evidence, whereas the appellant did not sustain any injuries. 305 Rodney Beale gave evidence that the appellant had an iron bar and two other witnesses, although their evidence differed from Rodney Beale's evidence in a number of respects, gave evidence that the appellant had indeed had a bar or a pole. 306 As I have sought to demonstrate, it was open to the jury to reject the appellant's account as a reasonably possible explanation of how Rodney Beale had sustained his fracture. 307 In a case such as this, this Court is required to pay full regard to the advantage the jury had of having seen and heard the witnesses give their evidence. It was, of course, open to the jury, and indeed the responsibility of the jury, to decide what evidence it would accept and what evidence it would reject, including what parts of the evidence of each witness it would accept and what parts it would reject. 308 The conclusion I have reached is that it was open to the jury to be satisfied beyond reasonable doubt that the appellant had struck Rodney Beale with a bar inflicting the facial fracture. I do not myself experience a doubt about the appellant's guilt. Even were I to experience any doubt, the jury's advantage of seeing and hearing the witnesses give their evidence would, in my opinion, explain the different conclusion of the jury. I would dismiss the fourth ground of appeal.

Conclusion 309 Having rejected all the grounds of appeal against conviction I would dismiss the appeal against conviction.

The appeal against sentence 310 Although the appellant sought leave to appeal against the sentence imposed on him, in the event of his appeal against his conviction being dismissed, the appellant did not make any submissions in either his written submissions or his oral submissions in support of his application for leave to appeal against sentence. 311 Inflicting grievous bodily harm with intent to inflict grievous bodily harm is an offence under s 33 of the Crimes Act with a maximum penalty of imprisonment for 25 years and a standard non-parole period of seven years. 312 In his remarks on sentence Judge Blackmore found that the objective seriousness of the offence committed by the appellant was below the middle of the range of objective seriousness for offences under s 33 of the Crimes Act and, therefore, there was a reason for departing from the standard non-parole period. His Honour found that the objective seriousness of the appellant's offence fell closer to the middle of the range than to the bottom of the range. 313 His Honour found that there had been some planning in that there was no evidence that the appellant had picked up the bar at the scene and therefore the appellant must have brought the bar with him to the property. His Honour recognised that the physical injury suffered by the victim was less serious than occurs in many offences of inflicting grievous bodily harm. 314 The sentencing judge found that the appellant had had a dysfunctional family background. The appellant had a significant criminal history, including previous convictions for assault, such as to disentitle him from any leniency in sentencing. 315 Judge Blackmore noted that the appellant had claimed to have been motivated by a desire to protect his niece Natalie from a potential danger of being interfered with by her mother Stella Rose and Stella Rose's partner. His Honour found this claim hard to understand and held that, in any event, it did not entitle the appellant to act in the way in which the jury had found that he had. 316 I note that the non-parole period set by his Honour was little more than half of the standard non-parole period. 317 I would be prepared to grant leave to appeal but would dismiss the appeal against sentence. 318 SIMPSON J: I agree with James J. **********

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