Vann v Palmer [2001] ACTSC 12

Supreme Court of the ACT|2001-02-22|Before: Crispin J

2. The conviction and sentence appealed from be set aside.

3. The appellant be convicted of the offence that he in the Australian Capital Territory on 29 January 2000 assaulted James Douglas Yeates Neilson and thereby occasioned to him actual bodily harm.

4. The appellant be sentenced to a term of six months imprisonment in respect of that offence.

6. It be a condition of such recognisance that the appellant accept the supervision of ACT Corrective Services and comply with any reasonable direction that he may be given including any directions as to participation in anger management programmes.

1. The appellant, Roger Lee Vann, was convicted on one count of recklessly inflicting grievous bodily harm upon James Neilson on 29 January 2000. Following his conviction he was sentenced to a term of nine months imprisonment though the learned Magistrate directed that he be released after serving a period of six months imprisonment upon entering into recognisance to be of good behaviour for a period of two years. He now appeals against both conviction and sentence.

2. The charge upon which he was convicted and alternative charges of assault occasioning actual bodily harm and common assault all related to an incident at about midday on 29 January 2000 in the car park of the Northbourne Flats in Braddon. The appellant admitted that he had struck Mr Neilson in the face a number of times, that those blows had resulted in facial injuries and that such injuries amounted to grievous bodily harm. He maintained, however, that he had struck Mr Neilson in self-defence.

3. In dealing with this issue the learned Magistrate began by identifying the relevant principles. As her Worship observed, it was incumbent upon the respondent to prove beyond reasonable doubt either that the accused did not believe that his actions were necessary in order to defend himself or that there were no reasonable grounds for such a belief: Zecevic v DPP [1987] HCA 26; (1987) 162 CLR 645.

4. Mr Neilson said that about midday on the day in question he left his flat and went to his car which was parked in the adjacent car park. As he opened the car door he noticed the appellant staring at him. The appellant approached him and asked "What's your problem". Mr Neilson replied "I don't have a problem". Mr Neilson's mother who had left the flat at about the same time then intervened and asked the appellant "Why don't you leave us alone"? Mr Neilson claimed that the appellant replied, "Why don't you fuck off". Mr Neilson told the appellant not to talk to his mother like that. He claimed that the appellant then punched him in the face and that when he attempted to defend himself the appellant punched him in the face two or three more times. Mr Neilson then fell to the ground.

5. Mrs Neilson said that she left the flat about a minute after her son. She heard the appellant ask "What's your problem?" or something like that and heard her son deny that he had a problem. She said that she told her son to get in his car and go. Further words were then exchanged between the appellant and her son. Mrs Neilson was unable to recall the conversation in detail but did remember the appellant using the words "Your fucking mother". Mrs Neilson said that James then got out of his car. She did not see who struck the first blow but as she was looking down to move between two cars she heard the sound of something hitting flesh "like a smack" and when she looked up saw that her son had blood above his right eye. Mrs Neilson said then the "fight started in earnest", the appellant hit her son "a couple more times". Her son tried to hit the appellant and may have kicked him. Mrs Neilson said she saw her son fall to the ground and then get up and go back towards the appellant. She said she was uncertain as to precisely what had occurred thereafter but thought that her son may have broken away and started back towards the flats. She went after him but stopped in the doorway. She said that the appellant said something which she thought was "get out of the way" but when she turned she found that he had not followed her.

6. On the other hand, the appellant said that whilst he and his partner, Ms Oakman, were in the car park loading up their car he noticed that Mr Neilson had been sitting in his car glaring at them. After about ten minutes the appellant walked over and asked "What is your problem?" He said that Mr Neilson got out of the car, stood nose to nose with him and said "You are my fucking problem". Mrs Neilson intervened by telling her son to leave the appellant alone. When the appellant was asked whether he made any response to that he said "Shamefully, yes, I did. I made a very rude statement. I said "Listen to that bitch" and "Leave me alone". He said that Mr Neilson told him that no one talked to his mother like that and slapped him. The appellant said that he slapped Mr Neilson back in what was really "more of a knee jerk reaction" to what had happened. The appellant said that Mr Neilson did "go down" and when he got up a struggle ensued between them with Mr Neilson throwing kicks and punches at him. The appellant said he knocked Mr Neilson down three times and each time he got up and charged him. The appellant claimed to have been in fear of his life.

7. Ms Oakman said that she noticed Mr Neilson looking at her and the appellant as he walked past their car. When Mr Neilson got into his own car he was facing them with what she described as "a very cocky look and a smirk on his face". She said that the appellant approached Mr Neilson and asked "What's your problem?". She noticed an older woman, obviously Mrs Neilson, approach the appellant and Mr Neilson and saw her start to argue both with her son and the appellant. Ms Oakman said that the appellant turned and said "Fuck off, stay out of this" and Mr Neilson told him not to speak to his mother that way. Mrs Neilson turned to Ms Oakman and told her that she should control her husband. Ms Oakman responded by telling Mrs Neilson that she wished that they would both stop harassing them. The next observation Ms Oakman made was of Mr Neilson striking the appellant in the face with his right hand. A fight then ensued. She said that Roger (the appellant) was defending himself. She said the appellant hit Mr Neilson in the face and he fell down. Mr Neilson got up and lunged at the appellant again. She said that she remembered the appellant saying "Please stop, stop" and remembered him striking Mr Neilson about three times. Mr Neilson fell to the ground twice.

8. There was also some evidence as to prior incidents between Mr Neilson and the appellant. The appellant said that on the day he moved into Northborne Flats Mr Neilson and his mother told him that he could not park in a particular bay because it was their space. About a week later the appellant found a note on his car's windscreen which said "Don't take more than one park unless you want your car damaged". Mr Neilson admitted that he had left that note but denied that he had intended to convey any threat and maintained that he had been concerned about the possibility of accidental damage. The appellant said that shortly after finding the note he had seen Mr Neilson parking his car and asked Mr Neilson if he had put the note on his car. He said that Mr Neilson had said "yes" and then poked him in the chest asserting that the area in which the appellant had been parking was his "spot". A fight then ensued. He also maintained that Mr Neilson had subsequently attempted to intimidate Ms Oakman.

9. Her Worship had, of course, the advantage of observing the witnesses give evidence and was able to make an assessment of their credibility based upon their demeanour in the witness box. She found Mr Neilson to be a very credible witness and accepted his evidence. She also observed that his evidence had been corroborated to some extent by his mother whom she found to be a credible and cautious witness. On the other hand, she did not find the evidence of the appellant credible. Whilst not making any specific finding as to the credibility of Ms Oakman, her Worship observed that her evidence was, in some respects, consistent with that of Mr Neilson and his mother and inconsistent with that of the appellant.

10. Her Worship found that the appellant had been the aggressor and rejected his defence of self-defence. She also found that in striking Mr Neilson as he did the appellant was reckless as to the possibility of causing grievous bodily harm. Accordingly she found the offence proven.

11. Mr Doig, who appeared for the appellant, maintained that these findings were against the weight of evidence. Whilst he was unable to point to any single feature of the evidence which of itself would have been sufficient to support this contention, he submitted that when all the evidence adduced in the Magistrates Court was scrutinised it was clear that self-defence had not been excluded to the requisite standard and that the conviction was unsafe and unsatisfactory.

13. Her Worship had the advantage of forming an assessment of the credibility of the witnesses not only by reference to such factors as the internal consistency and inherent plausibility of their accounts but also by her observations of their demeanour in the witness box. In Devries v Australian National Railways Commission (1993) 177 CLR 472, Brennan, Gaudron and McHugh JJ observed at 479:

"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact . . . the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable"."

14. More recently, in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 160 ALR 588 Gaudron, Gummow and Hain JJ cited at 589 the passage which I have quoted and observed that in the same case Deane and Dawson JJ had pointed out "that no short exhaustive formula such as "glaringly improbable", meets every case". Their Honours noted at 607 that the fact that the trial judge had been heavily influenced by his impression of a witness whilst giving oral evidence did not preclude a court of appeal from concluding that, in the light of other evidence that the judge had had "too fragile a base to support a finding that a witness was unreliable". In the same case Kirby J referred at 617 to a "growing understanding of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses . . . in the courtroom". His Honour did not suggest that the respect which appellate courts traditionally paid to the advantages enjoyed by the trial judge should be abandoned but rather suggested (at 619) that there was a need for renewed attention as to precisely what advantages were enjoyed by trial judges over those enjoyed by appellate courts.

15. In the present case I can see no reason to suppose that the learned Magistrate's findings of fact, based upon the credibility of the relevant witnesses, were erroneous or should be set aside.

16. The particular matters to which Mr Doig referred were not persuasive. He contended that her Worship had erred in finding that Mr Neilson's evidence had been "corroborated to some extent by his mother" when she had conceded that she had not seen the first blow. However, Mrs Neilson's evidence of hearing the sound of something hitting flesh and seeing blood above her son's eye was in my view capable of corroborating Mr Neilson's evidence "to some extent". He also attacked Mr Neilson's credibility by reference to the absence of any detailed history in the notes of the medical practitioner who treated Mr Neilson. It is true, of course, that the mere reference to an "altercation" in those notes is somewhat uninformative but it is not inconsistent with Mr Neilson's account. He was on firmer ground in his submissions concerning Mr Neilson's duplicity in telling his employer that he had been involved in a car accident. However, her Worship was entitled to accept his explanation that he had done so only because he had been embarrassed about having been assaulted. Mr Neilson's explanation for the note he had left on the appellant's windscreen seems to have been disingenuous but even if her Worship had shared my scepticism concerning that aspect of his evidence that would not, of itself, have required her to reject his overall account of the incident.

17. Furthermore, having perused the whole of the evidence I am not satisfied that there is any adequate basis for concluding that her Worship should not have accepted the evidence of Mr Neilson or rejected that of the appellant. I found no reason to regard her Worship's finding that the offence had been proven as unsafe or unsatisfactory.

18. Mr Doig also submitted that her Worship's reasons for judgment betrayed some doubt as to the correctness of her own findings. She had said:

"Now if I'm wrong in finding the defendant was the aggressor and struck the first blow, then I find on the tests as laid down in Zecevic that his claim of self defence failed."

19. The judgment was delivered extemporaneously and her Worship did not, of course, have the advantage of correcting any inexactitude of language as may be done during the proofreading of written judgments. In these circumstances it is particularly important to consider this statement in the context of the other portions of the judgment. By the time her Worship made the statement quoted above she had already said that she was satisfied beyond reasonable doubt that the appellant had assaulted Mr Neilson and recklessly inflicted grievous bodily harm upon him. More specifically, she had already announced her findings that the appellant was the aggressor and that he had struck the first blow. In this context I accept the submission of Ms De Veau, who appeared for the respondent, that her Worship was merely intending to indicate that even if she had entertained a reasonable doubt as to who had been the aggressor she would nonetheless have resolved the issue of self defence adversely to the appellant. I accept that submission.

20. Consequently, I reject any challenge to her Worship's findings that the appellant assaulted Mr Neilson and that in doing so he was not acting in self-defence. Given that conclusion it is unnecessary to consider whether the principles referred to in Zecevic would have absolved him of any criminal liability even if he had not initially been the aggressor.

21. However, as I have mentioned, the appellant was convicted of recklessly inflicting grievous bodily harm upon Mr Neilson, and whilst the infliction of such harm had been admitted the allegation of recklessness remained in issue. Her Worship sought to explain this element of the charge in the following terms:

"And the test on this appears to be this. "An act was done recklessly if the accused or a defendant realised the possibility that injury might result but nevertheless proceeded to act", and I quote from R v Coleman (1990) 19 NSWLR 467"."

22. R v Coleman was a decision of the NSW Court of Criminal Appeal and it was, of course, entirely understandable that the learned Magistrate would seek to adopt any relevant statement of principle which it contained. However, the offence charged in that case had involved the infliction of actual bodily harm rather than grievous bodily harm and I am unable to accept that the passage quoted correctly reflects the principle that applies in the present case. In my view, it is axiomatic that the concept of recklessness requires advertence to the possibility of some occurrence that would constitute the relevant element of the charge. A person cannot be found to have been reckless as to one thing by proof that he adverted to the risk of another. Hence, in the present case the appellant should not have been found guilty of recklessly inflicting grievous bodily harm unless it had been proven that he had adverted to the possibility that in acting as he did he might cause injury sufficiently serious to amount to grievous bodily harm. In the context of the present case I am prepared to accept that the term "injury" might be seen as an adequate synonym for the phrase "bodily harm" but the formulation which her Worship adopted did not include any reference to the requisite gravity of the bodily harm. Yet that was an essential element of the offence. Accordingly, I am obliged to find that the principle identified in the judgment was not the correct one.

23. The issue was potentially crucial. Grievous bodily harm means really serious bodily harm: DPP v Smith [1961] AC 290 per Viscount Kilmuir LC at 334. It has been held that even the term "serious bodily harm" is inadequate and that if the meaning of "grievous" is to be explained to a jury the expression "really serious" should be used: Perks v R (1986) 41 SASR 335 at 337, per King CJ.

24. As previously mentioned there can be no doubt that the injuries actually inflicted upon Mr Neilson amounted to grievous bodily harm. He suffered fractures to his cheekbone and nose and as a consequence of these injuries required reconstructive surgery which extended to the insertion of metal plates under his lower eyelid and inside the lining of his mouth. These plates will apparently have to remain permanently.

25. Of course, it was not incumbent upon the respondent to prove that the appellant must have adverted to the possibility that by acting as he did he might cause injuries of the gravity or even of the nature of those actually inflicted. However, as I have mentioned, it was incumbent upon the respondent to prove that he must have adverted to the possibility of causing injuries of sufficient gravity to constitute grievous bodily harm. Whilst it might have been inferred that the appellant, who is apparently an intelligent and well-educated man, must have adverted to the risk of causing some injury to Mr Neilson that would not have been sufficient to support his conviction on a charge of recklessly causing grievous bodily harm.

26. There was no direct evidence to support such a conclusion. Whilst the appellant gave sworn evidence about the incident he was not asked any questions about this issue either during evidence-in-chief or in cross-examination. Accordingly, this aspect of the Crown case was dependent upon inference from the nature of the assault and any other relevant circumstances.

27. Her Worship dealt with the issue in the following passage:

"Now it's trite to say that one person who punches another in the face three times forcefully enough to knock him over, knock him to the ground, does not advert to the possibility that facial bones might be broken or damaged in such an assault, so I find that the defendant acted recklessly, and I find the offences proved."

28. Ms De Veau submitted that whilst the passage cited from R v Coleman may not have reflected the legal test applicable to the present case, any misstatement of principle was immaterial given these findings.

29. I am unable to accept that submission for several reasons.

30. First, the proposition that Mr Neilson had been knocked to the ground three times seems to have been based upon the evidence of the appellant which her Worship had found not to be credible and to be contrary to the evidence of Mr Neilson who had indicated he had only been knocked to the ground once. Of course, it would have been open to her Worship to accept the appellant's admissions even though she was unable to accept the bulk of his evidence. However, such an approach could be inferred, if at all, only from the passage which I have quoted and whilst it might have been compatible with the finding that the appellant was the aggressor it is difficult to see how reliance on such admissions could have established this element of the offence as the requisite standard in the face of the evidence of Mr Neilson that her Worship found very credible.

31. Second, whilst broken or damaged facial bones might be capable of amounting to grievous bodily harm they would at least be equally capable of amounting to "injury" and the finding provides no indication that her Worship applied a test more stringent than the one that she had specifically identified by reference to the passage in R v Coleman.

32. Third, her Worship's finding seemed to have been based upon the assumption that as no-one who punches a person with sufficient force to knock him to the ground on three occasions could fail to have adverted to the risk of causing fractures or other damage to that person's facial bones but in my view there was no adequate basis for such an assumption. In some circumstances a court may act upon a presumed fact by taking "judicial notice" of it, but the test is a stringent one. Judicial notice may be taken of a fact which is "so generally known that every ordinary person may be reasonably presumed to be aware of it": Holland v Jones [1917] HCA 26; (1917) 23 CLR 149 at 153 per Isaacs J. It has been suggested that the test should be dependent upon the presumed knowledge of "educated men" per Dixon J in Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 196 or "every well informed person in Australia" per Evatt J in Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd [1939] HCA 27; (1939) 61 CLR 735 at 806. However, I am not satisfied that ordinary people, whether educated males or other well informed members of the Australian community, have any real knowledge of the thought processes of those who commit assaults of that nature. Indeed, I suspect that most people would think that such assaults are acts of mindless violence committed with little if any thought for the consequences. The position might be quite different when a weapon is used or there is some other act such as pushing someone from an elevator to a balcony which obviously creates grave danger for the victim. However, in my view, the proposition that any man who assaults another by punching him with his bare hands has actually adverted to the risk of damaging the victim's cheekbones is not a "fact" within the knowledge of all reasonably well informed members of the community.

33. Nor, in my view, could such advertence be inferred from the particular facts of the assault. An appellate court is generally in as good a position as the trial judge or magistrate to decide what, if any, inference should be drawn from facts which were either undisputed or established by the findings in the court below. In deciding what is the proper inference to be drawn the appellate court will give respect and weight to the conclusion expressed in the judgment appealed from but, once having reached its own conclusion, will not shrink from giving effect to it: Warren v Coombes & Anor [1979] HCA 9; (1979) 142 CLR 531 per Gibbs ACJ, Jacobs and Murphy JJ at 553.

34. It is true, of course, that with the benefit of hindsight one can readily appreciate the risk that a person's nose and cheekbones might be fractured by a series of punches to the face. However, courts are constantly confronted by cases in which people seem to have had a striking inability to appreciate that their conduct might expose themselves or others to the risk of injury and I would not, myself, be prepared to assume that the protagonists in every fist fight have adverted to the risk of causing grievous bodily harm to their opponents.

35. In the present case, the appellant had no criminal record for violence and no training in martial arts or other forms of self defence and there is no compelling reason to infer that he must have adverted to the risk of causing such injuries when he apparently lost his temper and, on the spur of the moment, decided to punch Mr Neilson in the face. Whilst I have approached her Worship's conclusion with due respect, I am unable to accept that this element of the offence was established beyond reasonable doubt.

36. The difficulty in excluding any reasonable doubt about that issue is compounded by the fact that such an hypothesis was not put to the appellant in cross-examination. Strictly speaking, the rule in Browne v Dunn (Browne v Dunn (1893) 6 R 67) might not have required such a course but in the end result the appellant was never given the opportunity to deny that he adverted to such a risk or to give any other evidence that might have been relevant to that issue. Simple fairness demanded that he be given such an opportunity.

37. Accordingly, the appellant's conviction of the charge of recklessly inflicting grievous bodily harm must be set aside.

38. However, as previously mentioned, the appellant is also being charged with offences of assault occasioning actual bodily harm and common assault. These charges have been relied upon only in the alternative to the charge of recklessly causing grievous bodily harm and upon finding that that offence had been proven her Worship did not proceed to determine either of them. Consequently, those charges remain unresolved. During the course of the hearing before me both parties agreed that if the appeal against the conviction for the offence of recklessly causing grievous bodily harm were to be upheld then it would be appropriate for me to proceed and determine one or either of the alternative charges.

39. Section 20 of the Supreme Court Act 1933 confers upon this Court "all original and appellate jurisdiction that is necessary to administer justice in the Territory". The breadth of this conferral of power was emphasised recently by the Full Court of the Federal Court in Kelly v Apps [2000] FCA 687. In my view, the jurisdiction so conferred is sufficiently wide to permit the Court to find an alternative offence proven if the appellant had been charged with that offence in the proceedings before the Magistrate and if those findings of fact which have not been successfully impugned upon appeal warrant such a conclusion.

40. Her Worship's findings plainly establish that the appellant assaulted Mr Neilson and that he thereby occasioned actual bodily harm to him. Such a charge does not involve any concept of recklessness. It is sufficient for the prosecution to prove that actual bodily harm occurred as a consequence of the assault. I have no doubt that the respondent has done so. Accordingly, the appellant will be convicted of that offence.

41. That is itself a serious offence, though it is obviously less serious than the offence for which he had previously been sentenced. In any cases of violence it is necessary to take into account the need to protect the community by deterring the offender or others from committing similar acts in the future. However deterrence is only one of the purposes referred to in s 429 of the Crimes Act 1900 for which a sentence must be imposed and I am obliged to have regard to the factors set out in s 429A of that Act to the extent to which they are relevant.

42. In the present case, the appellant is 41 years old and has no previous convictions for offences of any kind. The pre-sentence report indicates that he is a well educated man who obtained a Bachelors degree in Fine Arts and commenced a Masters degree in teaching before migrating from the United States to Australia. He has since undertaken further studies. He suffers from severe asthma. The parole and probation officer who provided the pre-sentence report confirmed that she had contacted the appellant's estranged wife who told her that he had never been violent towards her and that they have maintained a very good relationship since their separation. He has equal custody of two children now aged five and three from that relationship. He also seems to enjoy a good relationship with his current partner with whom he has two further children, now aged two and nine months. Section 429A requires me to take into account the probable effect that any sentence or order under consideration would have on any of the person's family or dependents. In the present case a sentence of imprisonment would have adverse consequences not only for the appellant's partner but for four children under six years of age.

43. In my view the gravity of the offence demands a sentence of imprisonment but in the circumstances I think it is appropriate to suspend that sentence upon the condition that the appellant enter into recognisance to be of good behaviour for a period of two years and to attend an anger management programme.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Solicitor for the respondent: ACT Director of Public Prosecutions

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