R v Alovili

[2014] QCA 45

SUPREME COURT OF QUEENSLAND

CITATION:

R v Alovili [2014] QCA 45

PARTIES:

R
v
ALOVILI, Leslie
(appellant)

FILE NOS:

CA No 140 of 2013
DC No 215 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore 12 February 2014
Reasons delivered 14 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2014

JUDGES:

Margaret McMurdo P and Holmes and Morrison JJA
Judgment of the Court

ORDERS:

Delivered ex tempore on 12 February 2014:

The appeal is allowed.1.    

The guilty verdict is set aside.2.    

A verdict of acquittal is substituted.3.    

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of grievous bodily harm – where the appellant and his brother had in succession assaulted the complainant, the brother causing him grievous bodily harm – where the Crown case was that the appellant and his brother had formed a common intention to assault the complainant so that the appellant was criminally responsible for the grievous bodily harm inflicted by his brother – whether there were reasonable inferences open on the evidence other than that the brothers had formed a common intention to assault – whether the jury’s verdict was unreasonable

Criminal Code 1899 (Qld), s 8

COUNSEL:

J M McInnes for the appellant
G J Cummings for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT:  On 12 February 2014, this court allowed the appellant’s appeal against his conviction of grievous bodily harm, set aside the guilty verdict and substituted a verdict of acquittal.  The basis of those orders was the court’s conclusion that the jury’s verdict was unreasonable.  What follows are the court’s reasons for that conclusion.

The issue

1. In the sequence of events which led to the charge, the appellant assaulted a man named Lauvi whom he and his brother, Nganatatafu (Ngana) Alovili, regarded as having been unduly friendly to their sister-in-law at a nightclub. The appellant punched the man but did not cause him any permanent injury; his brother then carried out a more sustained assault, knocking his victim unconscious and causing him a skull fracture. The Crown case was left to the jury solely on the basis of criminal responsibility under s 8 of the Criminal Code 1899 (Qld); a suggested reliance on s 7(1)(c) aiding was abandoned before addresses. The issue here was whether the evidence could support what must have been the jury’s conclusion: that the brothers had formed a common intention to assault Mr Lauvi so that the appellant was responsible for the grievous bodily harm committed by his brother as a probable consequence of the assault. To put it another way, the question was whether the prosecution was able to exclude as a reasonable possibility that the appellant had decided to assault his victim independently of his brother.

The evidence

1. The Alovili brothers had gone to the nightclub with their sister-in-law.  According to the appellant’s record of interview with police, not long after their arrival he saw Mr Lauvi dancing close to the young woman and told him to get away from her.  At some point later, he and his brother walked outside into a smoking area and once more saw Mr Lauvi with her.  The appellant then approached him.  Versions of what happened next vary.  In his interview, the appellant said that he went up to Mr Lauvi, reminded him that he had told him already to stay away from the woman and then “tried to make him flinch” (which he demonstrated with an aggressive forward movement of the head); after which his brother “came in” and began also to remonstrate with Mr Lauvi.  According to the appellant, members of the crowd were urging them to “beat him up”.  A mutual acquaintance intervened and the appellant and his brother decided to leave. (Closed circuit camera footage showed the appellant leaving the club with his brother.)

1. The appellant used the plural in describing how he entered the smoking area where they saw Mr Lauvi once again in the vicinity of their sister-in-law: “We...just seen him there”.  Significantly for present purposes, however, he consistently used the singular to describe his approach to Mr Lauvi:  “I went up to him”; “I was still swearing at him.  And my brother came”; “I went to go scare...him”.  He denied that he or his brother had committed any assault (at least any involving actual physical contact) on Mr Lauvi.

1. The evidence adduced by the prosecution overwhelmingly contradicted that denial.  The Crown called a number of witnesses who had been sitting or standing in various groups in the smoking area where the events took place.  It was established that Ngana Alovili was a tall man and that night was wearing jeans and a jacket, which the witnesses commonly described as a “Varsity” jacket.  The appellant, a much shorter man with a shaved head, was wearing a grey T-shirt.  The first of the relevant witnesses, Ms Lane, saw the appellant, whom she knew by his first name, talking to Mr Lauvi.  She had her attention focussed on someone else when she heard a “slap sound” and turned to see Mr Lauvi stumble backwards as if he had just been punched.  The appellant was still facing him and speaking to him.  Another man, who was, from her description, Ngana Alovili, came running up.  She assumed it was a friend of Mr Lauvi’s and turned away again.  Hearing another slap, she turned around to see a punch or punches thrown and Mr Lauvi fall to the floor, where he lay motionless.

1. Ms Ofa, who was with Ms Lane, saw the Alovilis’ sister-in-law and Mr Lauvi engaged in some sort of playful interaction over a hat.  The appellant, whom she had previously met, and another man she believed to be his brother arrived in the smoking area.  The appellant approached Mr Lauvi first and punched him, causing Mr Lauvi to step back; his brother “came up later” and punched him again, knocking him out.  There was a matter of seconds between the two incidents.  The appellant was not physically involved in the second incident and she did not see him say anything to his brother.

1. Ms Brough was sitting with friends in the smoking area, when she heard raised voices.  She looked up to see two males emerge from a group of people, one walking backwards in her direction, the other facing him (and her).  The latter hit the man who was walking backwards; he took another step back and his assailant delivered another couple of punches.  His victim fell to the ground, apparently unconscious.  Her description of the clothing worn by the aggressor fitted that of Ngana Alovili.

1. Ms Senic was with Ms Brough when she heard the raised voices and also looked up.  She saw a group of males, one of whom punched another in the side of the head.  The man punched stumbled backwards, was punched three or four times again and fell to the ground.  Her estimate of the aggressor’s height fitted Ngana Alovili rather than the appellant, but she recalled him as wearing a short-sleeved T-shirt, which was consistent with the appellant’s clothing that night, rather than the jacket worn by Ngana Alovili.

1. Ms Matautia was sitting in the group with Ms Ofa and Ms Lane.  She saw a man in a T-shirt throw a punch at Mr Lauvi, who stumbled back.  Another man pushed the man in the T-shirt.  At that point, a third man wearing a Varsity jacket delivered three punches to Mr Lauvi, who fell to the ground.  After the first punch, Mr Lauvi would have stumbled back about four steps before what she described as “the second fight”.  The appellant was not involved in any way with him after the first punch.

1. Finally, Mr Tauvao, who was standing in the smoking area, saw the horseplay involving the hat.  Next, he saw a man (by his description, the appellant) approach Mr Lauvi and hit him.  As Mr Lauvi was walking backwards, he was pushed and then punched again by the same man.  After the second blow, a taller man said something to Mr Lauvi and then delivered three blows which knocked him out.  The man in the grey T-shirt remained nearby during that assault.  Mr Tauvao agreed, under cross-examination, that there were two distinct incidents: the first assault by the man in the grey T-shirt, and, after half a second, the assault by the man in the jacket.

Counsel’s submissions

1. Counsel for the appellant submitted that although it was open to the jury on the evidence to infer that the appellant and his brother had a pre-existing common intention of assaulting Mr Lauvi, also reasonably open was an inference that they had each merely responded in the same way to what they saw as the provocation of the interaction between Mr Lauvi and their sister‑in‑law.

1. Counsel for the respondent argued that the rapidity with which one assault was followed by the other pointed to the conclusion that the appellant was to initiate the attack, “softening up” Mr Lauvi, while his brother finished it.  Ms Senic should be regarded as having described both assaults, while mistakenly conflating them (hence her description of the assailant as wearing a T-shirt).  Her account was of seeing, at the start of the incident, a large group of males, one being punched and stumbling backwards, which was consistent with the very beginning of the event.  It was to be deduced that she saw a very rapid delivery of blows, first by the appellant and then by his brother, consistent with the Crown’s theory of a continued and mutual attack.  There was no reasonable possibility that both men would have attacked with such ferocity unless there were a common purpose.  The inference was reinforced by the fact that they were brothers and arrived at and left the club together that night.  Counsel also suggested that the sequence of events was really the two brothers speaking to Mr Lauvi, the appellant punching him, and his brother following immediately with a series of blows.

Conclusions

1. Unfortunately, the evidence does not support that posited sequence of events, nor the gloss which the respondent sought to place on Ms Senic’s evidence.  The consistent picture painted by both the appellant’s record of interview and the witnesses’ evidence was that he first spoke to and assaulted Mr Lauvi (by the head movement on his account and by an actual blow or blows on other accounts), followed by his brother who, on some versions, spoke, and who, on all versions, delivered a number of punches.  No version speaks of the two men talking to Mr Lauvi at the same time.

1. Nor can one extract from Ms Senic’s account a plausible theory of her having seen both assaults, despite her description of the clothing as a T-shirt.  She was describing the same incident as Ms Brough, seen from the same perspective and at the same time, after they had both heard raised voices.  The latter’s description of the clothing worn by the aggressor was consistent with that worn by Ngana Alovili.  Ms Senic’s own description of the man, apart from the T-shirt, fitted Ngana Alovili’s appearance: he was “six foot over”.  And she was adamant in cross-examination that she had watched the entirety of the incident she saw, keeping the two men under observation from the first punch to Mr Lauvi’s falling to the ground; and it was only one man throwing punches.  Ms Senic’s evidence simply cannot be reconstructed to support the Crown thesis in the way suggested.

1. Apart from his denial of having delivered any blow to Mr Lauvi, the appellant’s evidence as to the sequence of events was consistent with that of the Crown witnesses.  One could not doubt on that evidence that the appellant and his brother had formed the same intention, at close to the same time, of assaulting Mr Lauvi.  But it is neutral as to whether it was a mutual intention.  There was no evidence of any word spoken between them or of any co-operation; the assaults were not simultaneous.  Even if their relationship provided some basis for an inference of common intention, other reasonable inferences were also open: that both were incited to respond in a similar way and did so independently, or, alternatively, that when Ngana Alovili attacked Mr Lauvi he did so in support of the appellant but without a reciprocal intent on the latter’s part.

1. In those circumstances, it was not open to the jury to be satisfied beyond reasonable doubt of the common intention necessary to a conclusion that the appellant was criminally responsible for the harm done by his brother.  The verdict was thus unreasonable, necessitating the orders already made by this court.