Johnson v Dudley

[1995] QCA 528

IN THE COURT OF APPEAL	[1995] QCA 528
SUPREME COURT OF QUEENSLAND

C.A. No. 388 of 1995

Brisbane

Before Macrossan C.J. McPherson J.A. Pincus J.A.

[Johnson v. Dudley]

WARREN WHEREAT JOHNSON Respondent

v.

MARK ANTHONY DUDLEY Appellant

Macrossan C.J. McPherson J.A. Pincus J.A.

Judgment delivered 1/12/95

Joint reasons for judgment by Macrossan C.J. and McPherson J.A. Separate concurring reasons by Pincus J.A.

APPEAL AGAINST CONVICTION DISMISSED; APPLICATION FOR LEAVE TO

APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS	CRIMINAL LAW - ASSAULT - CREDIBILITY OF WITNESS - Whether the magistrate reversed the onus of proof - Whether the issue of self-defence was fairly raised on the evidence, so as to require the Prosecution to exclude it beyond reasonable doubt.
Counsel:	D. Richards for the appellant B. Butler for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director of Public Prosecution for the respondent
Hearing Date:	22 November 1995

JOINT REASONS FOR JUDGMENT - MACROSSAN C.J. & McPHERSON J.A.

Judgment delivered the 1st day of December 1995

This is an appeal by Mark Dudley against his conviction in the magistrates court at Gladstone on a complaint charging that on 17 October 1994 he assaulted Paul Gallo occasioning him bodily harm. There is also an application for leave to appeal against sentence.

The offence is alleged to have taken place on the night of 17 October outside the Tavern at Agnes Water. There is no doubt that Gallo suffered bodily harm. His jaw was broken. At the hearing Dr Dujong from the Gladstone District Hospital gave evidence of his examination of Gallo at midday on 18 October. He said that x-rays showed a fracture of the right lower ramus or mandible. He also read, without objection, from the notes of the junior doctor who had seen Gallo when he was first admitted to hospital at 2.25 a.m. early on that day. The notes said "obviously punched in the right side of the jaw. Large swelling - can feel the edges moving against each other. There are no other contusions and a small bump on the head ...".

There is equally no doubt that the appellant hit Gallo with his closed fist. In the evidence he gave he said he had done so. He was facing him and punched him with his right fist on the left side of his face. That was "definitely" so, he said. His evidence to that effect was consistent with what he had said in his record of interview, if not perhaps in all respects with the medical evidence. The defence case at the hearing was essentially one of self-defence. The appellant, and the witnesses called in support of the defence, said that Gallo was hit only after he had himself struck several blows at the appellant. The appellant said he retaliated by hitting Gallo only once. It was, he claimed, a controlled blow.

Apart from the two elements of the offence already mentioned (hitting, and occasioning bodily harm), practically everything else was in dispute at the hearing. There was a wide divergence between the evidence from the witnesses for the prosecution and the evidence from the witnesses for the defence. The witnesses for the prosecution were Gallo himself, his wife Dinah Gallo, and a friend named Ross Tomlinson. He was the only prosecution witness who claimed to have seen the blow strike Gallo. He said it happened near the back of Gallo's car which at the time was parked beside the bottle shop. Gallo was turning round as he was hit. Mrs Gallo said she was walking back to the car when she passed the appellant as he was returning. She found her husband lying unconscious under the car. Gallo himself did not recall being punched. He said he was leaning on the car "and the next thing I remember is waking up on the ground next to the car". His jaw, he said, was "hanging ... it wasn't sort of working properly ...". It was like "having a really bad toothache, only worse".

There were three witnesses for the defence. In addition to the appellant himself, they were Fred Cook and Michael Power. The appellant and Cook were working that night at the Tavern, the appellant as "bouncer" and Cook as barman. Power, who is a security guard, was not employed there, but was at the Tavern having a drink with the appellant and his girl, who were friends of his. According to their version, what happened was that Tomlinson and Gallo came to the Tavern at about 10 p.m. To that extent, at least the two versions correspond. According to the defence evidence, Gallo and Tomlinson asked to be served. Cook told them they would not be served. They then started banging on the door and "carrying on". Cook went out to speak to them, whereupon Gallo and Tomlinson began throwing punches at him. At this, the appellant went outside and confronted Gallo, who threw a punch or punches at him. He retaliated with a single punch, whereupon Gallo fell to the ground. He did not seem to the appellant to be unconscious because he was lying there moaning and with his eyes open.

Gallo and Tomlinson agreed that they had gone to the door of the Tavern and asked to be served. They were at the open window, when a verbal altercation took place and Tomlinson received a punch from the appellant through the window. The appellant then jumped out through the window, and grabbed Tomlinson by the shirt. Gallo intervened and they were both dragged to the side of the Tavern, where Gallo got an elbow in the face. He then went back to the car. It was while he was leaning against the car that he was felled.

Recognising that the evidence from the two camps of witnesses were incompatible, the magistrate set about resolving the issue of credibility between them. He asked himself which of the two competing accounts was consistent with Gallo's fractured jaw. He considered it helpful to identify the place where the jaw-breaking blow was delivered. The place where the car was parked was some distance away from the doors of the Tavern, which was where defence witnesses claimed the critical punch had been struck by the appellant against Gallo. The magistrate referred to evidence given by Power, noting that he had "testified to observing the defendant punch Gallo immediately in the vicinity of the front door to the Tavern causing Mr Gallo to fall to the ground and then got up and shook his head". His worship contrasted this with the evidence of Gallo himself about the condition of his jaw and how he felt after being hit.

It is plain that the magistrate did not accept the evidence of Power. In his reasons for decision, he said:

"From the evidence of Mr Power then, it is abundantly clear Mr Gallo did not sustain any broken jaw during the course of any incident near the front doors of the tavern, so that it had to have been sustained in yet another incident. Now, according to the defence witnesses, there was one incident only, if the evidence of those witnesses be accepted; but the evidence of all three is inconsistent in what occurred, and it is certainly inconsistent with the evidence of Mr Power, who observed Mr Gallo get up off the ground and shake his head, conduct which would seem remote to one suffering a fractured jaw."

Having said that, his worship added that it was implicit in the defence case that the prosecution witnesses must have fabricated their evidence in collusion, and that each had committed wilful perjury. He rejected that conclusion because each of those witnesses had said the assault occurred beside the vehicle and was of such force as to occasion the bodily harm at that location. It was, he said, for those reasons that he accepted the evidence of the prosecution witnesses and rejected that of the defence witnesses.

Before us, the magistrate's decision was criticised essentially on the ground that he had fallen into the error of treating the question whether or not the prosecution witness had fabricated their evidence as determining whether they were telling the truth. For this reliance was place on the reasons for judgment of Fitzgerald P. and of Davies J.A. in Hunter v. Friedman (CA 314 of 1994), to support an argument that what the magistrate had done here was to reverse the onus of proof. However, Hunter v. Friedman presented a problem of a different kind. It was a case in which the magistrate was held to have misdirected himself on the matter of credibility by saying in effect that it was impossible to believe that the complainant would, without apparent motive, have made up such an incredible story. The vice of such an approach was, as Pincus J.A. pointed out, that it reversed the onus of proof. Its practical effect was to require the accused to explain why such a complaint should have been made at all, or else to oblige him to suggest a motive for it.

The present case is in no way comparable. Here there was ample evidence of motive for the assault, which was admitted to have taken place. The appellant and his supporting witnesses said he had struck Gallo on the jaw. The only remaining question was whether the issue of self-defence was fairly raised on the evidence, so as to require the prosecution to exclude it and to do so beyond reasonable doubt. As to that, once the evidence of the defence witnesses was eliminated, all elements of the offence were established. The magistrate accepted the evidence of the prosecution witnesses and rejected the evidence of the defence witnesses where it contradicted or was inconsistent with that evidence. He said he did so for the "above reasons". Those reasons included the fact that the prosecution witnesses located the jaw-breaking assault next to the car, and that he did not consider that they had fabricated their evidence. He proceeded to find specifically that the appellant had punched Gallo in the area of the head; that the assault was unlawful; and that it occasioned bodily harm. He concluded by saying that he was unable to find any evidence of any defence which might be available to the defendant, and that he was satisfied beyond reasonable doubt of proof of each and every element of the offence.

The appeal against conviction must therefore fail. As to sentence, the appellant was fined $500. That is little enough for a blow of the kind he inflicted, particularly having regard to his prior criminal record. In consequence of the injury Gallo is now wearing a plate in his mouth. The appellant was also ordered to pay compensation amounting to $856, of which $256 was attributable to the fee for the ambulance to take him to hospital, and the remaining $600 was for pain and suffering. The quantum of the compensation is not in issue. What is challenged is the order that the amount be paid at the rate of $150 per month, with the first payment to be made a little over a month later on 30 September 1995, with a default penalty of imprisonment for 120 days. At the time of the hearing the appellant had been unemployed for four months and had a baby to support. He was receiving unemployment benefit of $232 per fortnight, but claimed to be expending at least $230 per week on paying rent ($100), on a car ($50), and on living expenses ($80). The magistrate evidently considered the car to be a luxury in circumstances like that. If the appellant is genuinely unable to pay the monthly amount of compensation, he may apply for an extension of time under s.38 of the Penalties and Sentences Act 1992. On the information now available, there is no justification for assuming he cannot pay at the rate of $150 per month, which is less than he said he was paying on the car.

The appeal against conviction should be dismissed, and the application for leave to appeal against sentence is refused.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 01/12/1995

I have read the reasons of Macrossan CJ and McPherson JA and agree with those reasons. The ground of appeal essentially was that the magistrate’s reasons disclosed that he had failed to

apply the proper standard of proof - that one could see, implicit in the reasons given by the magistrate, that his Worship started

from a view that it was improbable that the prosecution witnesses

had conspired together to make up a story.

It is true that the magistrate’s reasons imply that he

thought it improbable that the prosecution witnesses had

fabricated their evidence in collusion with one another; but

reading the reasons as a whole, it does not appear to me that they show that his Worship failed to apply the proper onus and

standard of proof. Reasons given by magistrates in this sort of case are more expansive than they used once be. There is a tendency, which seems to me commendable, for magistrates’ reasons

to draw attention to weaknesses in the prosecution case, as well

as strengths, even where there is a conviction. It is undesirable that this Court should be too quick to characterise particular expressions used, in ex tempore judgments, as disclosing that the magistrate has failed to approach his or her

task properly. Were we too ready to do so, that might discourage

magistrates from the practice of fully disclosing their reasons for decision, including those aspects of the case which have

inclined them against rather than towards their ultimate

conclusion.

I agree that the appeal should be dismissed.