Parkins v Blake

[1995] QCA 470

IN THE COURT OF APPEAL	[1995] QCA 470
SUPREME COURT OF QUEENSLAND	C.A. No. 302 of 1995
Brisbane
Before	Fitzgerald P. Davies J.A. Mackenzie J.
[R. v. Blake]

ALLAN LIONEL PARKINS

v.

LAWRENCE MALCOLM BLAKE (Appellant)

FITZGERALD P.
DAVIES J.A.

MACKENZIE J.

Judgment delivered 20/10/1995

REASONS FOR JUDGMENT - THE COURT

APPEAL DISMISSED.

CATCHWORDS:	CRIMINAL LAW - assault occasioning bodily harm - unsafe and unsatisfactory verdict - whether evidence sufficient to satisfy magistrate beyond reasonable doubt of the appellant’s guilt.
Counsel:	Mrs K. McGinness for the Appellant Mrs L. Clare for the Respondent
Solicitors:	Legal Aid Office for the Appellant Queensland Director of Prosecutions for the Respondent
Date(s) of Hearing:	12 October 1995
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 20/10/1995

This is an appeal from a decision in the Magistrates Court at Roma on 30 June 1995. The appellant was convicted of assault occasioning bodily harm, and has appealed on the ground that the verdict was unsafe and unsatisfactory.

The charge against the appellant arose out of an altercation at the School of Arts Hotel in Roma on 16 November 1994. There is no doubt that there was a fight between the complainant and the appellant, or that the complainant was struck by the appellant and suffered bodily harm. The summary of the medical evidence of the complainant’s injuries in the appellant’s written outline of submissions is as follows:

“(a)	Multiple lacerations to the face.
(b)	2 lacerations on the face, 1 which was right frontal above his eye and another on the right eyebrow which was 5 cm in length.
(c)	A small abrasion to the left side of the face.
(d)	A right peri-orbital haematoma; i.e, black eye.
(e)	Swollen nose, lips and cut and bruised lungs. This included a lower injured right tooth.
(f)	Bruising on the left side of his abdomen.
(g)	Blood in the urine, which indicated kidney trauma.

There were a number of witnesses and, not surprisingly, the evidence contained discrepancies. Apart from the doctor who examined the complainant, the evidence for the prosecution consisted of the complainant and his son, and two friends of the appellant. The appellant did not give evidence, and the only defence witness was a person who knew neither complainant nor appellant, but was present in the bar “having a drink” when the fight took place. The magistrate said that that person “struck me as being quite an honest and straight-forward witness, but it pervades his evidence that he did not want to become too involved in what was happening over on the other side. He was only there to have a drink, as it were, after checking out a couple of other hotels in the area. There is nothing wrong with that. There is no suggestion that he was going on a drunken binge or something like that.”. One of the appellant’s complaints is that the magistrate did not give due weight to evidence from that witness that he did not see the appellant kicking the complainant. The magistrate described himself as “quite satisfied” that that evidence was “incorrect”. Although his reasons might have been better expressed, it is clear from his statements overall that he was influenced in rejecting that evidence by his opinion that the witness “did not want to become too involved ...”.

The appellant also contended that the complainant’s evidence was inconsistent with the medical evidence. There seem to be two main points. One was that the doctor gave evidence that the damage to the complainant’s kidneys could have been caused by a motor vehicle accident or by the complainant falling and hitting his back as well as by blows to his abdomen. However, there was no evidence of any event possibly related to the injuries except blows and kicks by the appellant.

Secondly, the medical evidence was said to be inconsistent with the complainant’s account of how the fight started. The defence case was that the complainant first struck the appellant, whereas the complainant said that, after he had spoken to the appellant about his conduct towards the complainant’s daughter and was challenged to a fight by the appellant, he was speaking to another person when he was “king hit” by the appellant in the back of the neck. It was submitted for the appellant that the magistrate should not have accepted that evidence because it was inconsistent with the doctor’s description of what she found on examining the complainant which included the following passage:

“Do you want me to tell you about the examination where I didn’t finds things? Like, I mean, I sort of - I do a full examination and note what I do and don’t find. ... he has no neck tenderness to exclude a neck fracture ...”.

The matters referred to in relation to the medical evidence on behalf of the appellant provide no reason whatever why the magistrate could not be satisfied beyond reasonable doubt with the complainant’s account of how the fight started or how he sustained his injuries.

Beyond that, it was acknowledged by the appellant’s counsel that there was ample evidence to convict the appellant if the complainant’s version was accepted by the magistrate, as clearly occurred, but it was submitted that the complainant’s evidence ought not to have been accepted because of internal inconsistencies and inconsistencies with other evidence, including evidence given by the complainant’s son, who was present but, for at least part of the time, being restrained from assisting his father. The points of difference were spelt out in considerable detail by counsel for the appellant.

It is unnecessary for this Court to catalogue or discuss each of the various points made, or the various responses made by the prosecution. None of the points individually, or taken collectively, are such that the magistrate, acting reasonably, could not have been satisfied beyond reasonable doubt of the appellant’s guilt. The evidence is much as to be expected in proceedings of this nature arising out of an hotel brawl, and there is nothing to create a concern that there is a significant possibility that an innocent person might have been wrongly convicted.

Accordingly, the appeal should be dismissed.