Freeman-Quay v The Queen
[2016] ACTCA 43
•6 September 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | FREEMAN-QUAY v THE QUEEN |
Citation: | [2016] ACTCA 43 |
Hearing Date: | 8 August 2016 |
DecisionDate: | 6 September 2016 |
Before: | Burns, Elkaim and Ross JJ |
Decision: | See [113]-[114] |
Catchwords: | CRIMINAL LAW – appeal from a single judge of the Supreme Court – trial by judge alone – offence of grievous bodily harm – appeal against conviction – conviction unreasonable having regard to all of the evidence – reasonable possibility another person hit the complainant – appeal against conviction upheld. CRIMINAL LAW – appeal from a single judge of the Supreme Court – offences against the person – assault occasioning actual bodily harm – plea of guilty – appeal against sentence – manifestly excessive – sentence not unreasonable – sentence not plainly unjust – appeal dismissed. |
Legislation Cited: | Crimes Act 1900 (ACT), ss 20, 24, 25, 49 Criminal Procedure Act 1986 (NSW), s 133 Supreme Court Act 1933 (ACT), ss 68C, 68D, 37O |
Cases Cited: | Balthazaarv The Queen [2012] ACTCA 26 BCM v The Queen [2013] HCA 48; 303 ALR 387 W v R [2014] NSWCCA 110 |
Parties: | Levi Freeman-Quay (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr D Dalton SC (Appellant) Ms M Jones (Respondent) |
| Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 42 of 2015 |
Decision under appeal: | Court: ACT Supreme Court Before: Murrell CJ Date of Decision: 4 September 2015 Case Title: R v Freeman-Quay Citation: [2015] ACTSC 284 |
THE COURT:
Introduction
On 31 August 2015, following a judge alone trial, her Honour Murrell CJ found Levi Freeman-Quay (the appellant) guilty of causing grievous bodily harm to Matthew Pridham (the complainant) on 21 September 2013, contrary to s 25 of the Crimes Act 1900 (ACT) (the Crimes Act): R v Freeman-Quay [2015] ACTSC 284 (R v Freeman-Quay). The appellant pleaded guilty to two associated offences, namely, that on 21 September 2013 he assaulted Ray Reynolds, occasioning him actual bodily harm, contrary to s 24 of the Crimes Act and he assaulted Ronnie Burt. On 4 September 2015, the trial judge sentenced the appellant as follows:
(a) assault on Ray Reynolds occasioning actual bodily harm – six months imprisonment commencing on 4 September 2015;
(b) causing grievous bodily harm to the complainant – two years imprisonment commencing on 4 November 2015, suspended from 4 June 2016 upon the appellant entering into a Good Behaviour Order for two years; and
(c) common assault on Ronnie Burt – fined $750.
In total the appellant was sentenced to 26 months imprisonment, to serve 9 months by way of full-time imprisonment from 4 September 2015 to 3 June 2016, with the balance of 17 months suspended upon the appellant entering into a 2 year Good Behaviour Order on his release from custody.
The appellant appeals the conviction in respect of the charge of causing grievous bodily harm to the complainant on the ground that it is unreasonable having regard to all the evidence. The appellant also seeks an order that he be resentenced in respect to the charge of assault occasioning actual bodily harm on Ray Reynolds. He appeals on the ground that the sentence is manifestly excessive. The sentence appeal only relates to an adjustment of the sentences imposed if the conviction appeal is upheld. If the conviction appeal is dismissed then the sentence appeal will not be pressed separately.
On 24 November 2015, the conviction was stayed and the appellant granted bail, having served 2 months and 21 days. It is common ground that if the appeal is dismissed the sentence remaining is 23 months and 10 days and that having regard to time served there is 6 months and 8 days to be served before the sentence is suspended.
We propose to first summarise the trial proceedings before turning to legal principles relevant to conviction appeals and a consideration of the submissions advanced on the appeal.
The Trial
On 25 May 2015, the appellant was arraigned on an indictment dated 16 March 2015 as follows:
(a) count 1 (CC2016/8493): recklessly inflict grievous bodily harm on the complainant on 21 September 2013 (s 20 of the Crimes Act );
(b) count 2 (XO2015/30183): assault Ray Reynolds and occasion to him actual bodily harm (s 24 of the Crimes Act); and
(c) transferred charge (CC2014/707): assault Ronnie Burt (s 26 of the Crimes Act).
The appellant pleaded not guilty to the first count and guilty to the second count. The related offence of common assault on Ronnie Burt, arising out of the same incident, was transferred from the Magistrates Court to be dealt with at the same time pursuant to s 68D of the Supreme Court Act 1933 (ACT) (the Supreme Court Act).
The appellant elected to be tried by a judge alone. The trial commenced on 25 May 2015, with the evidence concluding on 29 May 2015. Submissions were continued on 31 July 2015. On 31 August 2015, the trial judge found the appellant not guilty of recklessly inflicting grievous bodily harm on the complainant (count 1), but guilty of the statutory alternative of causing grievous bodily harm to the complainant, pursuant to s 49 of the Crimes Act. The trial judge found the appellant guilty of the transferred charge of common assault on Ronnie Burt. The appellant had pleaded guilty to the offence of assaulting Ray Reynolds and occasioning to him actual bodily harm.
The charges arise from the one event that took place in the early hours of Saturday, 21 September 2013. The appellant met up with two friends in Civic: Tyler Stevens and Alexander Bower. They encountered another group comprising the complainant, Ray Reynolds, Ronnie Burt, Abby Pratt, Jessica McCallion and Samuel Thomas. Words were exchanged between the groups. Mr Burt became involved. As Mr Burt and the complainant walked away from the appellant, the appellant grabbed Mr Burt by his hoodie pulling him backwards (constituting the transferred assault charge). The two groups then came to face each other. There was evidence that at some stage the complainant attempted to headbutt Mr Stevens, and Mr Stevens grabbed the complainant to restrain him. The Crown case at the trial was that the appellant then forcefully punched the complainant to the face, causing him to fall straight back on to the pavement. The appellant then punched Mr Reynolds to the face causing bruising and swelling - this was admitted by the appellant. The complainant suffered a severe brain injury.
Under s 184 of the Evidence Act 2011 (ACT) the appellant made admissions of fact to the following effect:
(a) the incident on 21 September 2013 resulted in severe traumatic brain injury to the complainant, which amounts to grievous bodily harm; and
(b) the accused was present at the incident and is the man wearing a white t-shirt in the CCTV footage.
Accordingly, there was no issue that the complainant suffered a serious head injury, nor was there any issue that the injury amounted to grievous bodily harm.
In his opening address trial counsel for the appellant identified the issues in the case as being what caused the complainant to fall to the ground and, if it was due to a blow, who struck the blow. The trial judge framed the contentious issues this way at [10]:
As a matter of practical reality, in this trial I must be satisfied beyond reasonable doubt that:
(a) The punch that caused the complainant to fall was delivered by the accused. I must dismiss the reasonable possibility that it was delivered by Mr Stevens.
(b) The accused did not deliver the punch in defence of Mr Stevens.
(c) When the accused delivered the punch, he was reckless about whether it would cause grievous bodily harm to the complainant. In considering this matter, I must take into account the fact that the accused was intoxicated.
It is common ground that the incident giving rise to the charges took place at about 1:30 am on 21 September 2013 on the footpath outside the ACTEW building in Civic.
The people present during the incident can be divided into two groups, the appellant’s and the complainant’s, as follows:
Complainant’s group Appellant’s group
· Ray Reynolds – victim of assault occasioning actual bodily harm, grey top, jeans, white shoes
· Abby Pratt – wearing white high heels
· Matthew Pridham – the complainant
· Ronnie Burt – victim of assault, hoodie incident, jeans, black t-shirt
· Jessica McCallion – other female in group
· Samuel Thomas – dark top black shoes
· Tyler Stevens – in blue shirt, brown pants
· Alexander Bower – in white shirt, bald head
· Appellant – white t-shirt, black jeans
Evidence of the actual incident came from CCTV footage and witnesses who were present: Abby Pratt who gave evidence of seeing the punch land on the complainant. Ray Reynolds, the victim of the punch the subject of count 2, Tyler Stevens and Alexander Bower also gave evidence. Other evidence led in the Crown case included some limited evidence from a biomechanical engineer Dr Andrew Short, evidence of the informant, Detective Senior Constable Matthew Challenger, two further police witnesses and another friend of the accused who arrived on the scene after the incident, Christopher Filipe. The appellant did not call any evidence.
The issues at trial were whether it was the accused who delivered the punch that caused the complainant to fall and whether that punch (directly or indirectly) caused the complainant to suffer severe brain injury. In her judgment the trial judge observed that the prosecution case on these issues turned on what may be characterised as circumstantial evidence.
As to the approach to be taken in such a case the trial judge said at [14]:
In a circumstantial evidence case, the tribunal of fact must first determine the circumstances that are established by reliable evidence. The tribunal must then consider the established circumstances as a whole and decide whether, having regard to all the established circumstances and any direct evidence, the only available rational inference is that the accused is guilty
On appeal there is no criticism of the trial judge’s formulation of the relevant legal issues.
The trial judge found that the circumstances established by the uncontested evidence, when considered together with the evidence of Ms Pratt established that the only rational explanation for the complainant’s fall was that it was caused by a forceful punch delivered by the appellant.
CCTV footage was tendered at the trial. It is common ground that the two most relevant files are the ‘Bunda St Cnr Bible’ file and ‘Bunda St Cnr Mort’ files. Both files capture the incident but there is no footage clearly depicting a punch hitting the complainant causing him to fall.
In the CCTV footage, the complainant is wearing grey. Mr Reynolds is also wearing grey, but can be distinguished by his white shoes. Ms McCallion is wearing a white jacket. Mr Burt is wearing a black “hoodie” over a black shirt. Mr Thomas is wearing a black top. Ms Pratt is wearing a bright pink or red dress and white shoes. The accused is wearing a white t-shirt and jeans. Mr Stevens is wearing a blue shirt and beige pants. Mr Bower is wearing a long-sleeved white shirt and tie, and is also distinguishable because he is bald.
The trial judge found that the CCTV footage depicted the following at [22]:
1:29.43am
Mr Stevens is standing near a wall and using his mobile telephone.
1:30.07am
The complainant and Mr Reynolds are standing near the accused. The complainant may be speaking to the accused.
1:30.18am
Mr Burt shepherds the complainant away from the accused.
1:30.28am
The complainant looks back towards the accused and Mr Bower, and may be speaking.
1:30.29am
The accused speaks to Mr Bower.
1:30.36am
The accused walks away from Mr Bower, towards the complainant’s group.
1:30.43am
The accused grabs the back of Mr Burt’s “hoodie” and pulls him backwards. There is a “tug o war” over the “hoodie” and the accused succeeds in pulling it off Mr Burt.
1:30.45am
The complainant circles around the accused, next to the kerbside of the road, and is looking towards Mr Stevens. Mr Stevens walks towards the group with his hands in his pockets.
1:30.47am
The complainant lunges towards the accused with his left hand extended as though to grab or strike at the head of the accused. The complainant then steps back.
1:30.50am
Mr Reynolds steps between the accused and the complainant. Mr Stevens stands to the right of the accused, and between the complainant and the accused.
1:30.52am
The complainant’s attention is focussed on Mr Stevens. The complainant circles to the right of Mr Stevens, which brings him closer to the accused.
1:30.53am
The complainant draws back and then attempts to head-butt Mr Stevens. Mr Stevens does not “duck” the attempt. He moves forward towards the complainant and struggles with him. The complainant raises his arms towards Mr Stevens in a fighting stance, and moves forward towards Mr Stevens and the accused.
1:30.54am
The accused draws his right hand and shoulder back, and then steps forward, bringing his right arm over Mr Steven’s left shoulder, and delivering a strong punching motion towards the complainant and Mr Reynolds (who is facing the accused). Mr Reynolds’ head moves back and to his left. It is not possible to see whether the punch delivered by the accused connects with the complainant. At this stage, the group is compressed.
At the time when any impact would have occurred, one of the complainant’s legs is visible. It is vertical to the ground and thereafter it falls towards the pavement without any apparent hesitation or break in the fall.
Mr Reynolds positions himself between the complainant, and the accused and Mr Stevens.
1:30.55am
Mr Stevens lifts his right arm towards the complainant.
The complainant’s body strikes the pavement.
1:30.56am
The accused punches Mr Reynolds with his right hand, and Mr Reynolds stumbles backwards.
1:31.00am
Mr Stevens stands over the complainant, who is lying on the pavement.
Mr Reynolds places the complainant in the recovery position.
1:31.03am
Ms McCallion remonstrates with Mr Stevens.
1:31.15am
Ms Pratt remonstrates with the accused before Mr Bower escorts the accused from the scene.
1:31.56am
Mr Burt remonstrates with Mr Stevens.
As Mr Bower and the accused are walking down Mort Street, the accused removes his right hand from his pocket and examines it.
Mr Stevens runs to catch up with the accused and Mr Bower, and they are followed by Mr Christopher Filipe, who also runs.
As to Ms Pratt’s evidence, the trial judge found her to be an honest witness, who gave evidence in a ‘natural manner’ and was ‘genuinely doing her best to recall the events of 21 September 2013’. Her Honour accepted Ms Pratt’s evidence that she saw the blow being struck. The trial judge made the following observations about Ms Pratt’s view of the incident at [32]:
It is obvious from the CCTV footage that Ms Pratt would not have had an entirely unimpeded view of the incident. However, the secondary CCTV footage (looking at the scene of the incident from the approximate position of Ms Pratt) supports her assertion that she had a reasonable view. Depending upon the precise position of the numbers of each of the two groups at a particular time, Ms Pratt may well have seen the critical part of the incident.
Her Honour also accepted that there were a number of factors which were relevant in assessing the reliability of Ms Pratt’s evidence at [31]:
I accept that Ms Pratt was very intoxicated at the time of the incident, that at various times she was distracted by texting, that there was a delay of about 17 months from the incident until when Ms Pratt first recorded her recollection, and that she viewed the incident from a distance of 15 metres.
The trial judge also observed that the sketch plan produced by Ms Pratt accurately depicted the position of individual members of the group vis-a-vis each other, when compared to the CCTV footage at [34]:
...The coincidence between Ms Pratt’s evidence (including her sketch plan) and the footage supports my opinion that her recollection of the events was reasonably reliable.
In resolving the contentious issues the trial judge placed ‘some weight’ on the direct evidence of Ms Pratt to the effect that she saw the appellant strike the complainant, but decided that because of the factors affecting the reliability of Ms Pratt’s evidence (intoxication etc.) her evidence was ‘an inadequate foundation upon which to find beyond reasonable doubt that it was the accused who delivered the punch that caused the complainant to fall to the ground and strike his head’.
In addition to Ms Pratt’s evidence her Honour found that the ‘uncontested evidence’ established the following circumstances at [59]:
(a)Unlike his companions Mr Bower and Mr Stevens, the accused had a motive to behave aggressively towards members of the complainant’s group. There was tension between the complainant’s group and the accused, rather than between the complainant’s group and Mr Bower or Mr Stevens, or all three members of the accused’s group. The cause of the tension was that the accused had spoken to Mr Burt’s girlfriend, Ms McCallion (evidence of Ms Pratt) and/or because a member of the complainant’s group had insulted the accused by likening him to a member of a “boy band”. At about 1:30.18am (or earlier), the complainant spoke to the accused. I infer that the exchange was problematic because it led to Mr Burt shepherding the complainant away from the accused.
(b)Immediately before and immediately after the blow that caused the complainant to fall to the ground, the accused was behaving aggressively. At 1:30.43am, he aggressively grabbed Mr Burt’s “hoodie” and dragged it from him. After the complainant was struck, the accused punched Mr Reynolds in the face.
(c)Immediately prior to the incident that caused injury to the complainant, neither Mr Bower nor Mr Stevens was behaving aggressively. At no stage did Mr Bower participate in a physical dispute. Mr Stevens was not involved in the initial exchanges between the accused and the complainant’s group. Prior to the “stand-off” he was some distance away, utilising his mobile telephone. When Mr Stevens approached the “stand-off” between the two groups, his manner was not aggressive; his hands were in his pockets.
(d)The reason that Mr Stevens began to scuffle with the complainant was that the complainant had attempted to head-butt him. The CCTV footage shows that Mr Stevens tried to physically restrain/wrestle with the complainant. He was leaning into the complainant and he was not physically in a favourable position from which to strike the complainant with a forceful blow, even if he had been motivated to do so.
(e)The [appellant] drew his right arm and shoulder back and then stepped forward, delivering a powerful punching motion towards the complainant and Mr Reynolds. Although the CCTV footage did not capture the blow landing on the complainant, from the instant when any such blow would have landed, the complainant’s body fell in an uninterrupted motion towards the pavement (CCTV footage and evidence of Dr Stone). The uninterrupted manner in which the complainant fell to the pavement suggests that the fall was caused by a forceful blow.
We return to these matters later in our judgment.
As mentioned earlier, the circumstances set out above, when considered together with Ms Pratt’s evidence, provided the foundation for the trial judge’s satisfaction, beyond reasonable doubt, that the appellant delivered the punch that caused the complainant to fall to the ground.
The trial judge acquitted the appellant of the offence of recklessly inflicting grievous bodily harm on the basis that she was not satisfied beyond a reasonable doubt that the critical blow was intended for the complainant, as opposed to possibly being intended for Mr Reynolds, and accordingly that the appellant ‘may not have adverted to the possibility that his conduct would cause grievous bodily harm to the complainant’: see R v Freeman-Quay at [71].
The trial judge was satisfied beyond a reasonable doubt that self defence was negatived. There is no challenge to this aspect of her Honour’s judgment in this appeal.
The trial judge came to consider the alternative offence of causing grievous bodily harm contrary to s 25 of the Crimes Act, which can be considered as an alternative to an offence contrary to s 20. Section 25 is in the following terms:
25 Causing grievous bodily harm
A person who, by any unlawful or negligent act or omission, causes grievous bodily harm to another person is guilty of an offence punishable, on conviction, by imprisonment for 5 years.
The elements of the offence of causing grievous bodily harm are:
(a) The accused engaged in the relevant conduct (in this case, the accused delivered the punch that caused the complainant to fall).
(b) The accused intended (meant to) engage in that conduct.
(c) The conduct was an unlawful or negligent act or omission.
(d) The conduct caused grievous bodily harm to the complainant.
The trial judge was satisfied, beyond reasonable doubt as to each of the elements of the offence (see R v Freeman-Quay at [62]-[66] and [84]-[86]) and found the appellant guilty of the offence of causing grievous bodily harm to the complainant.
The Relevant Legal Principles
The sole ground of appeal (in relation to the appeal against conviction) is that the finding of guilt in respect of the offence of causing grievous bodily harm is unreasonable having regard to all of the evidence. This ground seeks to rely on s 37O(2)(a)(i) of the Supreme Court Act. The relevant principles in respect of an alleged “unreasonable verdict” are well established (see M v The Queen [1994] HCA 63; 181 CLR 487 (M v The Queen); SKA v The Queen [2011] HCA 13; 243 CLR 400; Douglass v The Queen [2012] HCA 34; 290 ALR 699; BCM v The Queen [2013] HCA 48; 303 ALR 387 at [31]). The question is one of fact which the court must decide by making its own independent assessment of the evidence. As stated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen at 491:
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…
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, 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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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.
The above statement was intended to provide authoritative guidance to courts of criminal appeal in respect of this issue: see R v Hillier [2007] HCA 13; 228 CLR 618 at [20] per Gummow, Hayne and Crennan JJ.
Recently the Court of Appeal, in TI v The Queen [2015] ACTCA 62 at [136], applied the principle enunciated by Hayne J (with whom Gleeson CJ and Heydon J agreed) in Libke v The Queen [2007] HCA 30; 230 CLR 559 (Libke v The Queen), where his Honour said, at [112]-[113]:
The final issue to consider is whether, as the appellant submitted, the convictions were unsafe or unsatisfactory. In the Court of Appeal, Chesterman J held that the appellant’s conviction for rape should be quashed. In his Honour’s view, the complainant’s evidence was “insufficient to prove the charge”. He concluded that the jury could not have been satisfied beyond reasonable doubt “that the complainant did not consent, or that the appellant could not have honestly and reasonably believed that she had consented”.
It is clear that the evidence that was adduced at the trial did not all point to the appellant’s guilt on the first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant’s guilt.
(citations omitted, emphasis as per original)
While M v The Queen and Libke v The Queen concerned conviction appeals from jury verdicts it is clear that the principles derived from these cases apply to appeals following a trial before a judge sitting alone: DF v The Queen [2011] ACTCA 11; W v R [2014] NSWCCA 110; RP v R [2015] NSWCCA 215; 90 NSWLR 234 at [40]; Filippou v The Queen [2015] HCA 29; 256 CLR 47 (Filippou).
In Filippou the High Court considered the nature of a conviction appeal from a verdict of a trial by judge alone. The appellant was convicted of murder following a trial in the Supreme Court of New South Wales. Section 133(1) of the Criminal Procedure Act 1986 (NSW) provides that a ‘judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.’ The NSW provision is identical to s 68C(1) of the Supreme Court Act.
In Filippou the plurality stated, at [11]-[12]:
Beginning with the first limb of s 6(1) of the Criminal Appeal Act, it is clear from the terms of s 133(1) of the Criminal Procedure Act that the effect of the latter provision is to equate a judge’s finding of guilt to a jury’s finding of guilt “for all purposes”. It follows from the natural and ordinary meaning of the words of s 133(1) that, for the purposes of an appeal against conviction...a judge’s finding of guilt is to be treated as if it were the same as a jury’s finding of guilt.
Authority makes plain that a jury’s finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge’s finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury’s verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced...
In RP v R [2015] NSWCCA 215; 90 NSWLR 234, decided after Filippou, Davies J (Johnson and Hamill JJ concurring) stated, at [48]:
For a verdict to be unreasonable it is not enough that review of the evidence demonstrates that it was possible for the tribunal of fact to reach a different conclusion: Lazaris v R [2014] NSWCCA 163 at [65]. As Hayne J said (Gleeson CJ and Heydon J agreeing) in Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113]:
“[113] ... But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.” (Footnote omitted)
or as the joint judgment said in Filippou at [56}:
“[56] ... [T]he question for the Court of Criminal Appeal was not whether it was “satisfied that the judge’s account was correct” but whether her Honour’s findings as to the sequence of events were not reasonably open.”
The Appeal
As we have mentioned, the sole ground of appeal (in relation to the appeal against conviction) is that the finding of guilt in respect of the offence of causing grievous bodily harm is unreasonable having regard to all of the evidence.
The appellant submits that the Court could not have been satisfied beyond reasonable doubt that the appellant caused the injuries amounting to grievous bodily harm. Specifically, the Court cannot exclude beyond reasonable doubt the reasonable possibility that it was Mr Stevens who threw the punch that caused the complainant to fall to the ground and sustain the injuries.
The appellant submits that in the present case any advantage enjoyed by the trial judge is of no consequence having regard to the centrality of the CCTV footage to the relevant finding and the relatively limited assistance offered by the eye witnesses given the various limitations on their evidence.
As to the eye witness evidence the appellant submits that the evidence of Mr Reynolds, Ms Pratt and Mr Stevens had ‘significant limitations’. The appellant contends that the limitations of the eye witnesses’ accounts meant that the CCTV footage became the central evidence in the trial. It is submitted that the CCTV footage is ‘generally ambiguous and inconclusive as to what happened,’ save that it is:
…quite clear that the punch identified by her Honour as being the critical punch by the appellant causing the complainant to fall to the ground upon closer analysis did not connect with the victim. Otherwise, it is ambiguous as to the nature of the strike that Mr Stevens delivered towards Mr Pridham.
The appellant provided an aide-memoire to its submissions, on a disc which contained three recordings of extracts of CCTV footage (Exhibit 5) from the Bunda St Cnr Bible footage, at three different levels of zoom. The relevant exhibit in the trial proceedings – Exhibit 5 – is in a PC format. The appellant’s solicitor transferred that file format to a Mac format using QuickTime and set the zoom (Exhibit 5 used a variable zoom function) to produce the aide-memoire.
There was no objection to the tender of the aide-memoire, it consisting of the same CCTV footage which was before the trial judge, albeit utilising different software and in a fixed zoom format. The appellant submits that the aide-memoire CCTV file provides a ‘clearer depiction of what took place at that time’, than Exhibit 5, which was before the trial judge. We accept that submission. This is a matter of some significance as the presentation of the CCTV footage on appeal provides a greater degree of clarity than that which was apparently provided to the trial judge.
The appellant submits that a close analysis of the CCTV footage and the significant limitations attending the eye witness accounts would lead this Court to have a reasonable doubt regarding the guilt of the appellant and that in the circumstances the trial judge’s advantage of seeing and hearing the evidence of the witnesses was not capable of resolving such a doubt.
In particular, it is submitted that this Court ought to conclude it is not possible to be satisfied beyond reasonable doubt that the appellant, and not Mr Stevens’ actions, caused the fall resulting in the grievous bodily harm of the complainant. On this basis the verdict should be found to be unreasonable and the appeal upheld.
The critical part of the CCTV footage is at 1:30:54. There are five individual frames within this one second of footage. The CCTV footage in the aide-memoire was shown a number of times during the appeal hearing – both as a piece of continuous footage and on a frame by frame view of the critical aspects. We have also reviewed the CCTV footage since the appeal hearing, on a number of occasions.
In our view, the five frames at 1:30.54 show:
(a) Mr Stevens grappling with the complainant. The complainant’s head is only visible in frames 1 and 2 and in the other frames it is shielded by Mr Stevens’ body and it is likely that at that time the complainant’s head is in fact at some point below Mr Stevens’ shoulders.
(b) The appellant is standing to the left of Mr Stevens and Mr Reynolds is facing the appellant, slightly to his right.
(c) The appellant’s right arm is moving forward and his forearm travels above Mr Stevens’ left shoulder and appears to be on a trajectory towards Mr Reynolds. There is a clear gap between the appellant’s right elbow and Mr Stevens’ left shoulder. At the time the appellant’s right arm moves forward the complainant’s head is not visible.
(d) Mr Reynolds appears to flinch and pull back as the appellant’s fist moves forward.
(e) The footage does not show the appellant making contact with the complainant.
(f) Mr Stevens’ right hip moves forward and he appears to pivot on his left foot and his right arm moves forward, towards the complainant.
(g) The angle of the complainant’s legs start to alter.
The Crown points to the coincidence between the timing of the appellant’s arm moving forward and the change in the angle of the appellant’s legs. This timing coincidence was the subject of Dr Short’s evidence. Dr Short measured the angle of the complainant’s left leg during the final four frames of the CCTV footage at 1:30.54 and the first two frames at 1:30.55. This is shown by the blue line on the still photographs taken from the CCTV footage. Dr Short produced a chart (Exhibit 4) reflecting the change in the angle of the complainant’s left leg over a time period of 0.8 seconds. Dr Short’s evidence is that the chart shows a ‘pendulous fall’. Dr Short also gives evidence as to the coincidence in timing between the forward movement of the appellant’s right arm and the complainant’s fall. In particular he says:
…there’s a …chronological link between the punching action and the person falling over.
The Crown contends that the only explanation for the coincidence in timing between the change in the angle of the complainant’s left leg as he falls and the appellant’s forward punching motion, is that the complainant’s fall was a consequence of being struck by the appellant.
There are two difficulties with this submission. The first relates to Dr Short’s evidence. The Crown conceded that Dr Short’s evidence was based on the assumption that it was the appellant’s forward punching motion which caused the complainant to fall. In particular counsel for the Crown said:
- - - to the time at which the appellant’s arm moved forward. So the appellant’s arm moves forward at a particular point and then - well, the expert was assuming that that was the punch that caused him to fall to the ground but he was able to draw a chronological link in terms of timing from the moment the appellant’s arm is seen to go forward to the angle of the complainant’s legs and how they progressed to the ground and in doing so, he produced Exhibit 4.
The second issue is that the Crown’s contention pays scant regard to the fact that at the time the appellant’s right arm is moving forward Mr Stevens is engaged in what appears from the CCTV footage to be a forceful physical struggle with the complainant. The struggle between Mr Stevens and the complainant begins at 1:30.53, immediately following what appears to be an attempt by the complainant to headbutt Mr Stevens. During the course of this struggle, over the course of the last two frames at 1:30.53 and the five frames at 1:30.54, Mr Stevens can be seen twisting the complainant one way then the other and at two points in time his right arm moves in a sharp forward motion towards the complainant. The CCTV footage does not show Mr Stevens actually striking the complainant. The CCTV footage shows the perspective from the back of Mr Stevens, the appellant and Mr Bower and towards the complainant’s ‘group’ (Ms McCallion, Mr Burt, Mr Reynolds and the complainant). The end point of the forward motions of Mr Stevens’ right arm are shielded by his back.
Now the Crown submits that the angle of the complainant’s left leg is already starting to move backwards by the time Mr Stevens’ right arm goes forward and out of view. We accept that this is so, at least insofar as the second forward movement is concerned (comparing the still photographs that formed part of the Appeal Book). But the appellant’s forward movement of his right arm (the alleged punch) is not the only possible cause of the change in the angle of the complainant’s leg. As we have said, the complainant and Mr Stevens were involved in a struggle at that time. The CCTV footage clearly shows that Mr Stevens has grabbed the complainant and is forcefully moving him from one direction to the other. We are not able to discard the reasonable possibility that it was the movement of the complainant’s body in his struggle with Mr Stevens which caused the change in the angle of the complainant’s left leg shown by comparing the still photographs.
We agree that the complainant’s leg in the last frame at 1:30.54 is consistent with the beginning of what Dr Short described as a ‘continuous pendulous fall’. But the critical question is what caused the complainant’s fall. As we have mentioned, the Crown points to the coincidence between the appellant’s ‘punch’ and the commencement of the complainant’s fall, inviting the finding that the punch connected with the complainant, causing him to fall and sustain the injuries. But the change in the angle of the complainant’s leg is also consistent with him being pulled off balance in his struggle with Mr Stevens. Further, the CCTV footage shows Mr Stevens’ right arm moving forward and his right hip pivoting towards the complainant, within the same second that the appellant throws his punch.
It seems to us that on the basis of this part of the CCTV footage we could not exclude the reasonable possibility that it was Mr Stevens, rather than the appellant, who caused the complainant to fall and sustain his injuries. But, of course, the CCTV footage is not the only relevant consideration. In considering a circumstantial case, such as the present matter, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. As the plurality (Gummow, Hayne and Crennan JJ) said in The Queen v Hillier [2007] HCA 13 at [48]:
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor an appeal, is a circumstantial case to be considered piecemeal.
In relation to all of the other circumstances the Crown pointed particularly to behaviour and motivation of the appellant and the evidence of Ms Pratt.
We accept that the appellant was the initial aggressor in the sequence of events that culminated in the complainant’s injuries. It was the appellant who had an altercation with Mr Burt – assaulting him in the process. There was then a ‘stand-off’ between the two groups. At the time of this initial altercation Mr Stevens was some distance away, leaning on a wall using his phone. Mr Stevens walked towards the ‘stand-off’, with his hands in his pockets, after the appellant dragged Mr Burt’s “hoodie” off his body. We also accept – as found by the trial judge (at [59](a)) – that the appellant had a motive to behave aggressively towards members of the complainant’s group. As her Honour put it:
…the accused had a motive to behave aggressively towards members of the complainant’s group. There was tension between the complainant’s group and the accused, rather than between the complainant’s group and Mr Bower or Mr Stevens, or all three members of the accused’s group. The cause of the tension was that the accused had spoken to Mr Burt’s girlfriend, Ms McCallion (evidence of Ms Pratt) (see [28] above) and/or because a member of the complainant’s group had insulted the accused by likening him to a member of a “boy band” (see [46] above). At about 1:30.18am (or earlier), the complainant spoke to the accused. I infer that the exchange was problematic because it led to Mr Burt shepherding the complainant away from the accused (see [22] above).
The appellant also throws a punch in the direction of Mr Reynolds and the complainant, and he subsequently punched Mr Reynolds, causing him actual bodily harm. There is no doubt that the appellant was behaving aggressively throughout the 10 seconds or so during which the entire confrontation took place. It was the appellant who instigated the escalation to violence, by his assault on Mr Burt.
But the appellant was not the only person involved in a physical altercation and nor was he the only person with a motive to assault the complainant. Just before he fell and sustained his injuries the complainant attempted to headbutt Mr Stevens. This can be seen in the CCTV footage at 1:30.52 (also see the still photographs that form part of the Appeal Book). Further, as noted by the trial judge at [47], Mr Bower’s evidence was that the only thing he could ‘vividly recall’ was Mr Stevens yelling ‘He tried to headbutt me’, before the complainant fell to the ground.
In his evidence Mr Stevens did not concede that he had had any physical contact with the complainant’s group, until he was confronted with the CCTV footage. The trial judge concluded that Mr Stevens was an unreliable witness and her Honour placed no weight on his evidence: see R v Freeman-Quay at [41]. At [42] her Honour made the following observation:
One cannot know the reason why Mr Stevens sought to distance himself and his group from any physical contact with the complainant and his group. He may have been attempting to protect himself, or he may have been attempting to protect the accused.
We see no reason to depart from her Honour’s assessment of Mr Stevens’ evidence.
It seems to us that the appellant’s motive to strike the complainant is no more compelling than the motive of Mr Stevens, who immediately prior to the complainant falling had been the intended target of an attempted headbutt by the complainant. Further, as we have mentioned, shortly after the attempted headbutt Mr Stevens moves towards the complainant and engages in a struggle with him in which Mr Stevens twists the complainant one way, then the other and on two occasions Mr Stevens’ right arm moves in a sharp forward motion towards the complainant. At this time Mr Stevens’ behaviour towards the complainant can be characterised as aggressive. We now turn to Ms Pratt’s evidence.
As noted earlier, the appellant submits that there are ‘significant limitations’ to the eye witness evidence. In respect of Ms Pratt’s evidence it is said that it ‘could provide no further gloss to the footage itself’. In particular the appellant submits:
Despite her initial evidence that her view of the altercation was unobstructed, Ms Pratt was unable to describe the appearance of the person who struck Mr Pridham. On reviewing the CCTV footage it became apparent that Ms Pratt’s view of the altercation was not, in fact, unobstructed. Furthermore, Ms Pratt was very intoxicated at the time of the incident.
Further, in reply, the appellant submits that Ms Pratt’s evidence has to be considered in light of the following:
(a)Her inability to identify who hit Matthew Pridham (“the complainant”).
(b)She was heavily influenced by alcohol and admitted as such in her evidence.
(c)The reliability of her evidence is weak, demonstrated by examples such as her inability to identify how far away she was standing during the altercation…Ms Pratt initially gave evidence that she was two or three metres away, but during the course of cross-examination then concedes she was in fact about 15 metres away.
(d)At points in her evidence, it is not clear whether Ms Pratt was able to identify at all whether the complainant was hit. See, for example the extract…“And that’s when I think Matt got hit”
(e)Ms Pratt’s description suggests, consistent with the CCTV footage, that her view of Tyler Stevens would have been obstructed by Mr Pridham (and possibly others). Therefore she is not well placed to exclude any actions of Mr Stevens.
(f)Ms Pratt also concedes she was looking up and down at her phone and did therefore not clearly observe the altercation.
The appellant submits that given the limitations in Ms Pratt’s evidence there is no basis to assert that Ms Pratt’s view or perception is superior to that which can be seen in the CCTV footage, ‘indeed, it should properly be seen as inferior’.
Ms Pratt was with the complainant’s group, which comprised of Ms Pratt, Jessica McCallion, Ronnie Burt, Ray Reynolds, Samuel Thomas and the complainant. Ms Pratt and others (not the complainant) had been drinking earlier that evening at Ms McCallion’s house. The group including the complainant then went to the Academy nightclub where they spent half to one hour. Ms Pratt’s evidence was that group were “really intoxicated” when they went to the Academy. The incident occurred shortly after they left the Academy night club.
The group left Academy walking west along Bunda Street. Ms Pratt walked in front of the group. She saw Ms McCallion talking to two men. Ms McCallion (who did not give evidence) later told Ms Pratt that she went to school with the men she was speaking to.
Ms Pratt’s evidence was that at some stage the complainant walked in between the group saying ‘Janoskians’– she did not know what the word meant, but thought that the complainant was ’trying to be funny’. The evidence on this aspect and the striking of the complainant is as follows:
What is the next thing you can remember happening?---Matt walking in between them and he said something funny like Janoskians and he was saying -
- -HER HONOUR: Sorry, I can’t hear a word you are saying - - -?---Matt walking - - -
- - - (indistinct) walking between them?---Yes and he walked in between them and said something like Janoskians or something.
Like what?---I don’t know, Janoskians, he said, he was saying it all night.
What does that mean?---I don’t know what it means, just some - Janoskians, I don’t know what - - -
Janoskians?---Or something, I don’t know what it means.
MR ARCHER: Your Honour, can I help?
HER HONOUR: Yes.
MR ARCHER: Just Janoskians apparently is a boy band.
HER HONOUR: Thank you, Mr Archer?---I don’t know (indistinct).
MS McMURRAY: So you heard Matt say Janoskians?---Yes.
Did you see who he was saying that to?---Just everyone. He was trying to be funny.
Right, okay and then did you see what if any response there was to that?---Not that I can remember. It was - yes.
Did you see where Matt went after he had gone in and said Janoskians?--- That’s when he got hit.
Okay. Tell me everything about that?---I just remember someone walking over and hitting him in the face and he fell to the ground and he fell asleep. I think he like got knocked out.
In relation to the identity of the person who hit the complainant Ms Pratt’s evidence was as follows:
Do you know who it was who hit him?---I didn’t know at the time, no.
….
MS McMURRAY: Can you describe the appearance of the person who hit Matt?---No.
So you are shaking our head. We need an oral answer?---No.
HER HONOUR: Was it male or female?---It was a male.
MS McMURRAY: Can you describe - so if you can I suppose go into your mind’s eye and describe everything that you saw around Matt being hit?---Matt walked in between everybody.
And who is everybody?---So there was Ronnie, Sam, Jess, the two other guys. So Jess was talking to the two other guys, and Ronnie and Sam were standing behind her or next to her. And Matt walked in to try and cool things off, because I think there was an argument or something. And that's when I think Matt got hit.
That's when you think Matt got hit?---Well, that's when Matt got hit, yes.
You just said because you think there was an argument or something. What do you mean by that?---I don't know for sure if there was an argument, or Ronnie was getting upset at Jess, but I'm pretty sure there was. Like Ronnie was trying to get Jess to hurry up and getting jealous.
Right?---They weren't yelling at each other, they were just - I think he was trying to pull her.
You think Ronnie was trying - - -?---He was trying to pull her, sorry.
Ronnie was trying to pull Jess, okay. Relative to Ronnie pulling Jess, when did Matt walk in and say "Janoskian"?---Like a few seconds after.
Relative to Matt saying "Janoskian" when was he hit?---Like two or three seconds after.
…..
Okay. What was the argument that you - - -?---I can't remember. I was standing too far away.
So how long did the argument go on for?---I can't remember. We were really intoxicated.
Who was arguing?---I can't remember.
Okay. You can't remember who was arguing?---I don't want to say, because I can't remember exactly.
No. Are you able to differentiate between - sorry, just going back a step. So there was you and your group of friends, which was Jess, Ronnie, Sam and a friend you don't know, you've mentioned two guys?---Yes.
That you understood were friends that Jess had been to school with. Was there anyone else involved in this incident?---No. Not that I can remember.
Okay. What, if anything, can you recall about what the two guys that Jess was talking to looked like?---Young. They were young and big boys. They were fit.
HER HONOUR: Did you say that they were young and they were both fit? - Yes, they were both fit.
MS McMURRAY: You mentioned "big" as well. What do you mean by big?---Taller than Ronnie and Matt and everybody.
What made you think they were fit?---Because they had muscles and stuff.
HER HONOUR: Did you say "fit", or did you just say "big"?---Fit and big, yes.
Fit and big. Okay.
MS McMURRAY: And you could see muscles. Okay. Do you have any recollection what one or either of them was wearing? No?---No
Do you have in your mind anything that differentiates one from the other? ---No.
Okay. When you saw Matt get hit, how far away were you from Matt? ---About two or three metres away.
You mentioned before that you were on the phone, you were texting. Just before Matt got hit were you still texting, or had you finished texting?---I had my phone in my hand. I was looking up and down.
HER HONOUR: Sorry; you were looking up and down, did you say?---Yes. Like I was looking at my phone and then looking to see when they were coming.
MS McMURRAY: The person who hit Matt, where was he standing relative to Matt? Was he standing in front of him, was he standing to the side of him, was he standing behind him?---To the side of him.
(emphasis added)
At this point of her evidence in chief Ms Pratt was asked to draw a diagram. This was tendered as an exhibit. The circle marked “M” is the complainant, the circle marked “X” is the person who hit the complainant, “J” is Ms Jessica McCallion, “R” is Mr Ronnie Burt and “S” is Mr Samuel Thomas. She has marked herself in as “Abby”. The remaining circle is “the other man”.
Ms Pratt’s evidence was that the hit ‘knocked [the complainant] off his feet’, and that the complainant fell straight back and hit his head on the ground. She thought the complainant had been “knocked out”. She could not say precisely where the blow had landed on the complainant’s body. Ms Pratt’s recollection of the complainant hitting the ground was that he fell on the back part of his head, a bit to one side, but she could not recall which side. Her evidence in relation to this aspect was as follows:
MS McMURRAY: You mentioned that you saw Matt hit the ground. If you would please describe everything you can recall about Matt hitting the ground, what he - how he fell, what you recall of how he fell, what if anything?---I can’t remember which side of the face he got hit on but I remember him falling and he fell on that - like - - -
HER HONOUR: You’re indicating the back of his head (indistinct) back of his head?---Not right at the back but on that side.
So a bit on one side do you think?---Yes
And you are indicating the right side? Is that what you meant to indicate?---I don’t know exactly which side it was.
You’re not sure which side but a bit to one side of his head?---Yes.
MS McMURRAY: Did you hear anything at the time?---Yes, I heard his head hit the ground.
And she went on further:
MS McMURRAY: Right and if you would please describe in as much detail as you can recall the way that Matt fell?---So he fell straight back and hit the ground so he was like - - -
You are straightening your body up?---So he was like - he - I don’t know if he was asleep or not by the time he hit the ground so - but he didn’t - like - he fell back, like, it knocked him over.
Okay?---Knocked him off his feet.
Knocked him off his feet?---Yes.
So in terms of any other movement besides - you’re straightening your body - did you see him fall straight or did he move around as he fell?---No, he fell straight.
He fell straight?---Yes.
Ms Pratt also gave evidence that she did not see anyone else make contact with the complainant between the punch and the complainant hitting the ground.
Ms Pratt gave evidence that she had a clear view of the incident. As to this aspect of her evidence the trial judge found at [32]:
It is obvious from the CCTV footage that Ms Pratt would not have had an entirely unimpeded view of the incident. However, the secondary CCTV footage (looking at the scene of the incident from the approximate position of Ms Pratt) supports her assertion that she had a reasonable view. Depending upon the precise position of the members of each of the two groups at a particular time, Ms Pratt may well have seen the critical part of the incident.
On the basis of our own review of the ‘secondary CCTV footage’ we agree with the trial judge’s assessment. Whether Ms Pratt saw the critical part of the incident is dependent upon the precise position of the members of each of the two groups at a particular time. At one point Mr Burt is seen to be ducking down to pick up an item of clothing – he then stands up. Mr Burt is between Ms Pratt and the complainant and his movements may have obscured Ms Pratt’s view at a critical time.
After seeing the complainant hit the ground Ms Pratt’s evidence was that Ms McCallion and Mr Burt went over to the complainant while she called out to the security guard from Academy and asked him to call an ambulance. She can be seen in the CCTV footage apparently speaking to the appellant.
In the course of her evidence in chief Ms Pratt was shown the CCTV footage (Exhibit 5). She had not seen it before. During the Bunda St Cnr Bible clip she identified herself, at 1:29.52, as the person to the left hand side in the white shoes wearing a dress. She identified Ms McCallion as the girl standing near the bench wearing a white jacket. She was “pretty sure” that the complainant was the person lighting the cigarette.
In the course of cross-examination Ms Pratt agreed that she was in fact about 15 metres away, when she had said she was 2 or 3 metres away. It was suggested that it was possible she only saw the consequence of the hit, rather than the hit itself and the quality of her view of the incident was also challenged. The relevant extract from Ms Pratt’s evidence is set out below:
Yes. And you said that your view was obstructed, did you see that there were people – unobstructed, do you see that there were actually people between you and Matt?---Yes.
So is it possible that in fact you didn’t see anybody hitting him?---I seen the hit.
…..HER HONOUR: So in other words, Mr Archer is saying did you actually see the hit or did you just see Matt falling down and think you saw the hit?---No, I seen him get hit and fall to the ground, I wasn’t standing right there to see like where he got hit and everything like - - -
MR ARCHER: All right. So - - -?--- - - - but I was facing that way when - - - All right.
HER HONOUR: So you wanted to say – what were you saying about him facing what way? Can you describe - - -?---I was facing that way in the footage and I do remember seeing him get hit.
(emphasis added)
After the incident, it can be seen from the Bunda St Cnr Bible footage (1.31.05 – 1:31.35) that Ms Pratt’s attention is focused on the appellant – she is seen speaking and gesturing directly to the appellant. This is consistent with her evidence that the person she saw striking the complainant was the appellant.
As we have mentioned, the trial judge found Ms Pratt to be an honest witness genuinely doing her best to recall the relevant events. At [58] the trial judge says:
I place some weight on the direct evidence of Ms Pratt to the effect that she saw the accused strike the complainant.
(emphasis added)
We understand the trial judge’s observation to be a reference to the sketch plan produced by Ms Pratt and her evidence identifying the person to the side of the complainant (i.e. the appellant) as the person who struck the complainant. Ms Pratt’s evidence should be examined in its totality and, as set out at [72] above, she was unable to describe the appearance of the person who hit the complainant and did not know ‘at the time’ who hit the complainant.
The trial judge found that Ms Pratt’s recollection of the events was ‘reasonably reliable’, but accepted that at [31]:
…Ms Pratt was very intoxicated at the time of the incident, that at various times she was distracted by texting, that there was a delay of about 17 months from the incident until when Ms Pratt first recorded her recollection, and that she viewed the incident from a distance of 15 metres.
Because of the impact of the matters set out above upon the reliability of Ms Pratt’s evidence the trial judge concluded that at [35]:
While I do give weight to Ms Pratt’s evidence…her evidence is an inadequate foundation upon which to find beyond a reasonable doubt that it was the accused who delivered the punch that caused the complainant to fall to the ground and strike his head.
The appellant invited us to set aside the trial judge’s assessment of Ms Pratt’s evidence and to generally regard Ms Pratt’s evidence as being unreliable.
The trial judge had the advantage of hearing and seeing Ms Pratt give evidence and was well placed to make an assessment as to her credibility and the reliability of her evidence. Her Honour placed ‘some weight’ on Ms Pratt’s evidence but because of the factors which affected the reliability of that evidence the trial judge determined that it provided an inadequate foundation upon which to find the appellant guilty, beyond reasonable doubt.
The trial judge’s assessment of Ms Pratt’s evidence was entirely open to her Honour. We reject the appellant’s submission that it be set aside and we proceed on the basis that we accept and adopt her Honour’s assessment of Ms Pratt’s evidence and the weight to be accorded to it.
As mentioned earlier, after the complainant falls to the ground Ms Pratt is seen interacting with the appellant. The Crown submits that this is consistent with Ms Pratt’s belief that it was the appellant who caused the complainant to fall. We accept that this is so. But it is important to have regard to all of the circumstances established by the evidence. The CCTV footage clearly shows Ms McCallion and Mr Reynolds interacting with Mr Stevens immediately after the complainant falls to the ground. This would seem to support the contention that at that time they may have believed Mr Stevens was responsible for the complainant’s fall.
Mr Reynolds’ evidence in relation to the punch was that the complainant had ‘obviously got hit’, but that he did not see the punch itself. He described the sound that the complainant’s head made when it hit the ground as ‘like an egg breaking’. Mr Reynolds then looked to the complainant who was lying on the ground. As Mr Reynolds looked back up, the person he thought had hit the complainant then hit Mr Reynolds on the left hand side of the face. Mr Reynolds said he then went to the complainant’s aid as he had first aid training. The relevant extract from Mr Reynolds’ evidence is set out below:
MS MCMURRAY: so you said that you, Matty came round, you think from your left?---Yes.
And then what - what's your next recollection of what happened?---I just remember him dropping to the ground.
Did you see what caused him to drop to the ground?---Obviously he got it. I didn’t actually see the punch itself but he obviously got hit.
Okay. What was the very next thing that happened?---I have automatically looked to Matt and then as I’ve gone and looked back up, the gentleman that hit Matthew or that I think hit Matthew hit me in the side of the face so - and then I just jumped straight onto Matthew and lifted his head up and put him in the recovery position because I’m a first aid officer so I knew something was up because of the sounds that his head made when he hit the ground.
Okay and what was the sound of his head?---Like an egg breaking.
Are you okay?---Yes, I’m right.
You mentioned that you’re a first aid officer?---That’s correct.
And so you went straight - - -?---Yes.
- - - you went to Matthew?---Yes.Okay. What if any response did you have to being hit in the face yourself?---I didn’t really react to it. I was just adrenaline with Matthew. I - it didn’t even really phase me.
Okay, do you remember saying anything or hearing anything being said around that time that - - - ?---No, just the girls screaming and commotion and then the opposite guys running off. I was just there for Matthew at that time.
Okay. What did you do with Matthew?---I put him in the recovery position, held his head. I remember blood coming out of his ears while I was holding him. He was trying to get up but I was trying to force - (indistinct) keep him down.
From the point at - when you say he was trying to get up and you could see blood coming from his ears - - -?---Yes.
- - - when he - when you first attended to him, did he appear to be conscious or unconscious?---He was conscious like it was - it was like he was going in and out of consciousness. He was trying to get up but stumbling so that’s when I kept him down.
Okay, all right and how long did that go on for?---About two minutes him trying to get up - keep getting up so I just kept holding him down.
Why did you keep holding him down?---Because I knew there was something wrong with him obviously with blood coming out of his ears and I didn’t want him falling and hurting himself again because he was so out of it.
When you say he was out of it, what were your observations that made you think that he was out of it?---His eyes were rolling in the back of his head. He didn’t have any kind of stability so, yes, I knew that something was definitely up.
Did you hear him speaking at all?---Mumbling.
Was - did he say anything that was coherent?---No.
And about how long were you there for?---Till the ambulance came.
(emphasis added)
In the course of evidence in chief Mr Reynolds was shown the CCTV footage. Mr Reynolds agreed that the person in the white t-shirt punched him in the face. It is common ground that the appellant is the person in the white t-shirt.
Mr Reynolds drew a diagram in the course of his evidence which was admitted as Exhibit 12,in which he drew circles representing peoples whereabouts relative to one another, and placed initials in the circles representing the various persons he knew. He drew an “X” in the circle to represent the person who had pulled back on Mr Burt’s jumper.
The trial judge made the following observation of Mr Reynolds’ evidence at [57]:
In my assessment, Mr Reynolds was a reliable witness. Compared to other witnesses, he was relatively sober on the night of the incident. He provided a police statement very soon after the events and it was not suggested that his evidence differed from the version provided in his statement. His evidence was consistent with the CCTV footage.
The appellant submits that Mr Reynolds’ evidence had significant limitations. This submission is advanced on the basis that despite standing a few feet from the appellant at the time of the altercation he was unable to say who struck the complainant.
We see no basis for interfering with the trial judge’s assessment of Mr Reynolds’ evidence. The incident took place in a very short passage of time during which Mr Reynolds was looking towards the struggle between Mr Stevens and the complainant. In the circumstances – given his position and focus – it is understandable that he did not see the relevant blow. If it came from the appellant then Mr Reynolds’ evidence is explicable because he was looking towards the complainant and Mr Stevens. If the blow came from Mr Stevens then Mr Reynolds may not have seen the impact because of the position of the complainant’s body – between Mr Stevens and Mr Reynolds.
We have also considered Mr Stevens’ evidence. Mr Stevens did not agree, despite it being put to him a number of times in the course of cross-examination, that he hit, punched, struck or engaged in combat with the man who tried to headbutt him. Mr Stevens was adamant that he only tried, successfully, to grab the complainant and pull him away in an effort to protect himself and avoid any fighting. He was played the CCTV footage again. His evidence was that he grabbed the complainant after the complainant attempted to headbutt him.
Additionally, Mr Stevens said he had ‘no reason to instigate or fight or get involved or start a fight’ so he did not believe ‘he would have made the manoeuvre of trying to hit someone’.
We accept and adopt the trial judge’s assessment of Mr Stevens’ evidence at [41]-[42]:
Mr Stevens was an unreliable witness and I place no weight on his evidence…I do not accept that, despite a reasonable recall of events leading up to the incident, Mr Stevens had almost no recollection of the critical part of the incident. The CCTV evidence shows that he was immediately adjacent to the complainant when the complainant fell to the ground. Members of the complainant’s group (Ms McCallion and Mr Burt) subsequently remonstrated with him, and he ran from the scene.
One cannot know the reason why Mr Stevens sought to distance himself and his group from any physical contact with the complainant and his group. He may have been attempting to protect himself, or he may have been attempting to protect the accused.
We have reviewed the balance of the evidence in the proceedings and we accept and adopt the trial judge’s summation of that material.
Conclusion
In relation to the statutory alternative to count 1, that the appellant caused grievous bodily harm to the complainant, the trial judge needed to be satisfied, beyond reasonable doubt, that:
(a) the appellant delivered the strike that caused the complainant to fall;
(b) the appellant intended to engage in that conduct;
(c) the conduct was an unlawful or negligent act or omission; and
(d) the conduct caused grievous bodily harm to the complainant.
There is no challenge to the findings in relation to elements (b), (c) and (d). The appellant specifically challenges that it cannot be excluded beyond reasonable doubt that it was the appellant, and not Mr Stevens, that threw the punch.
The principal issue therefore is whether the trial judge’s finding that the appellant engaged in the relevant conduct, i.e. that he delivered a blow to the complainant, is unreasonable having regard to all of the evidence. It is not enough that this Court might come to a different view. In order to disturb that finding we must find, having regard to the trial judge’s advantage in seeing and hearing the evidence, that any doubt experienced must be one that the trial judge herself ought to have experienced.
On a review of the CCTV footage and a consideration of all of the evidence and having regard to the advantage enjoyed by the trial judge in seeing and hearing the witness evidence we cannot exclude beyond reasonable doubt the reasonable possibility that it was Mr Stevens who threw the punch that caused the complainant to fall to the ground and sustain the injuries. As mentioned earlier, the CCTV footage presented on appeal provides a greater degree of clarity than that which was apparently provided to the trial judge.
We uphold the appeal in respect of her Honour’s finding that the appellant was guilty of the offence of causing grievous bodily harm to the complainant. We will make an order setting aside the appellant’s conviction and subsequent sentence for that offence.
As mentioned earlier, the sentence appeal only relates to an adjustment of the sentences imposed if the conviction appeal is upheld. The appellant seeks an order that he be resentenced in respect of the offence of assault occasioning actual bodily harm to Mr Reynolds. It will be recalled that the sentencing judge sentenced the appellant to six months imprisonment for this offence, of which he has served 2 months and 21 days.
A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is “manifestly excessive”; but manifest excess is a conclusion that can be drawn only if the excess is “plainly apparent” in that the sentence is “unreasonable or plainly unjust”: Dinsdalev The Queen [2000] HCA 34; 202 CLR 321 at [6] per Gleeson CJ and Hayne J; Ngatamariki v R [2016] NSWCCA 155. “Manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL, Balthazaarv The Queen [2012] ACTCA 26 at [61].
It is for the appellant to satisfy the Court that the sentence imposed by the sentencing judge was “manifestly excessive”.
The submissions advanced in respect of the sentence appeal were brief. There were no written submissions in respect of this issue. Counsel for the appellant confined his submission to the following:
MR DALTON: Yes, your Honour. Well, he had no prior convictions at the time of this offence. The sentence for the actual bodily harm offence in relation to that, it was six months. I note it was made only two months, partially accumulated with that for the principal sentence in regards to the grievous bodily harm. In my submission to the court, in the circumstances of only dealing with the assault occasioning actual bodily harm, then a sentence in the order of the time that he has received to date would be sufficient, given his prior record. Thank you, your Honour.
The Crown did not seek to be heard in respect of the sentence appeal.
The maximum sentence for an offence under s 24 of the Crimes Act is imprisonment for 5 years. The appellant pleaded guilty to this offence and appropriately received a 25 per cent discount. The sentencing remarks concentrate on the offence relating to the complainant, however, it is clear her Honour took into account the subjective factors that mitigated the sentence.
We are not persuaded that the sentence imposed in respect of the offence of assault occasioning actual bodily harm was unreasonable or plainly unjust. We dismiss the sentence appeal.
Orders
The appeal against conviction is upheld in respect of her Honour’s finding that the appellant was guilty of the offence of causing grievous bodily harm to the complainant. The appellant’s conviction is set aside and his subsequent sentence for that offence.
The appeal against sentence is dismissed.
| I certify that the preceding one-hundred and fourteen [114] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 6 September 2016 |
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