R v Barmby - [2007] SASC 385

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BARMBY
[2007] SASC 385
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Anderson and The Honourable Justice White)
5 November 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY
Appeal against conviction - appellant convicted by a jury of the offence of causing grievous bodily harm with intent to do grievous bodily harm - appeal on grounds that verdict is unsafe and unsatisfactory - whether evidence sufficient to enable jury to find that grievous bodily harm had been caused by blows or kicks inflicted by the appellant - whether the evidence suffient to establish that harm had been caused with the intention to cause grievous bodily harm.
Held: appeal dismissed - sufficient evidence for the jury to find that the appellant caused the harm suffered by the victim - evidence also sufficient for the jury to find that the appellant inflicted that harm with the intention to cause grievous bodily harm - no miscarriage of justice.
Criminal Law Consolidation Act 1935 s 21, referred to.

R v BARMBY
[2007] SASC 385
Court of Criminal Appeal: Bleby, Anderson and White JJ

BLEBY J: I agree that the appeal should be dismissed for the reasons given by White J.
ANDERSON J. I agree that the appeal should be dismissed for the reasons given by White J.
WHITE J: On 8 December 2005 at about about 8.45 pm, an ambulance was called to a home unit at Clearview. The ambulance found one of the occupants, a 46 year old female, to be in a severely injured state. She was conveyed to the Royal Adelaide Hospital and admitted to the Intensive Care Unit. Her injuries included swelling and bruising to both eyes, a closed head injury, a deep laceration to the right temple, and at least eight or nine rib fractures on the left side with a resultant puncturing of the left lung. That lung had collapsed completely. The injuries were consistent with having been caused in a significant assault.
The appellant was found guilty by a jury of the offence of causing grievous bodily harm to the victim with intent to do grievous bodily harm.[1] This appeal is brought against that conviction. There is a single ground of appeal, namely, that the verdict of the jury is unsafe and unsatisfactory. No criticism is made of the conduct of the trial or of the judge’s summing up.
[1] Criminal Law Consolidation Act 1935 (SA), s 21 as in force at 8 December 2005.
The appellant submits that the jury should have entertained a reasonable doubt about his guilt for two reasons: first, because the evidence did not establish that the harm suffered by the victim (which was undoubtedly grievous bodily harm) had been caused by blows or kicks inflicted by him, and, secondly, because even if he had caused the harm, the evidence did not establish that he had done so with the intention to cause grievous bodily harm.
The Circumstances of the Assault as Alleged by the Prosecution
As at 8 December 2005, both the appellant and the victim had been living together as a couple in the victim’s Clearview unit. Their relationship had commenced several months earlier but they had been living as a couple in the unit for only a few days. Both were present in the unit at about 7.30 pm when an altercation developed. The prosecution case was that the cause of the altercation was the victim’s plan to re-establish a relationship with a former boyfriend, then living in Queensland.
The victim’s memory of the events on 8 December 2005 was impaired. This may have been caused by the injuries which she sustained, or by the large quantity of alcohol which she had consumed prior to the altercation, or by a combination of both. The victim’s blood alcohol content at the time of her admission to the RAH was 0.38 grams of alcohol per 100 millilitres of blood. Whatever the cause, she had little memory of her movements or activities in the 24 hours prior to the assault. The victim did, however, say that she recalled receiving a significant blow to her left abdomen, which had caused her to fall to the floor. She also claimed that that had occurred at a time when she was alone in the unit with the appellant.
The appellant told the police who arrived shortly after the ambulance that the victim had been having problems with her ex-boyfriend. He said that the victim had been consuming alcohol for approximately three days and that she had collapsed on the kitchen floor. He did not mention any altercation between the victim and himself.
The prosecution case was that the appellant had, either by blows or kicks, caused each of the injuries suffered by the victim. It was the rib fractures and subsequent collapse of the left lung which were said to constitute the grievous bodily harm for the purposes of the charge.
The Appellant’s Account
The appellant gave evidence at his trial. He admitted that there had been an altercation between the victim and himself. He said that this concerned her stated intention to go to Perth. The appellant admitted punching the victim twice to her head, thereby causing her head injuries. He disputed that those injuries, considered by themselves, amounted to grievous bodily harm. As already noted, the prosecution did not really contend otherwise.
The appellant said that he had attempted to strike the victim in the head on a third occasion. She had rocked back to avoid the blow, toppling off the chair to the floor. He thought that the appellant’s head had then hit the floor.
The appellant also deposed to other incidents which were said to be significant. He said that the victim had been drunk on the previous evening. He had been awoken in the early hours of 8 December by the sound of the victim falling over a coffee table in the lounge room. He had found her face down over the coffee table.
During the day of 8 December 2005 in the course of his work as a taxi driver, he had spoken to the victim twice. On each occasion, apart from being intoxicated, she had appeared or sounded well. On the second occasion, she had announced an intention to visit her father in Perth. Later, however, when confronted by the appellant she admitted that she was going to Queensland, and that she may not return.
A further incident occurred at the time of the altercation but after the victim had toppled from the chair to the ground. The appellant nudged her with his foot but she was not responsive. He then knelt down next to her to provide assistance and to try to revive her. While seeking to tend to the victim, he placed both knees on the left side of her body. While in that position, he bent forward at one stage. That had the effect that the whole of his weight was bearing down on the victim’s chest. That may have been for a couple of minutes. He said that he had had to get into that position because of the confined space in which the victim was lying.
The appellant denied striking or kicking the victim in any other way.
Did the Appellant Cause the Rib and Lung Injuries by Blows or Kicks?
The prosecution case that the appellant had caused the victim’s rib and lung injuries was circumstantial. It depended upon the following combination of circumstances.
First, there was the victim’s evidence that she had received a forceful blow to her abdomen, causing her to fall to the floor. Further, the appellant said that this occurred at a time when she and the appellant were the only persons present in the unit.
Secondly, there was evidence from the victim’s ex-boyfriend indicating that he and the victim were actively discussing re-establishing their relationship. He had booked a flight so that the victim could travel to Queensland on the following day (9 December) to visit him. Telephone records also confirmed that there had been frequent contact between the two on 8 December 2005.
Thirdly, there was evidence that the appellant resented the victim’s renewed contact with the former boyfriend. He believed that she was lying to him about that relationship. This was said to provide the explanation for the altercation between the appellant and the victim.
Fourthly, at about 2.30 pm on 8 December, the victim had been seen by a neighbour. She was carrying some items and apparently returning from shopping. The neighbour spoke to the victim for about 10 minutes. Although the neighbour thought then that the victim was affected by alcohol, she did not see anything indicating that the victim was in physical distress. At about 6.00 pm, this same neighbour heard male and female voices arguing in the victim’s unit. This could only have been the appellant and the victim.
Fifthly, Dr Pearce, one of the doctors who had assessed the victim at the RAH, said that it would have taken a large amount of force to cause the eight or nine rib fractures. They were consistent with having been caused by repeated blows. Dr Pearce also said that the fractured ribs in particular would have caused the victim considerable pain. The action of breathing, even when immobile, would have been painful. The difficulties of breathing caused by the collapse of the left lung meant that the victim would not have been able to cope outside a medical facility and, in particular, with an activity such as shopping. Dr Pearce considered that the victim had probably suffered her injuries within an hour or so prior to the arrival of the ambulance. Once she had sustained the injuries the victim would not have been able to walk about or talk without her distress being plain to an observer. This evidence (which was not in dispute) indicated that the appellant could not have suffered all of the rib and lung injuries at the time that she spoke to her neighbour.
Next, there was the appellant’s own evidence that there had been a physical altercation between himself and the victim at about 7.30 pm. As already noted, the appellant denied making any blow or kick to the victim’s chest which might have explained the fractures to her ribs, but he acknowledged that he had inflicted at least some physical violence to her.
These were the principal features upon which the jury was invited to conclude that the appellant had caused the victim’s injuries. In summary, apart from the effects of her intoxication, the appellant had not been restricted physically during the day; there was an admitted physical altercation with the appellant at about 7.30 pm; the injuries were consistent with having been caused by physical blows; and the victim was found in a severely injured state very shortly after the admitted physical altercation. There was, in addition, the victim’s own evidence of having sustained a blow to her abdomen at a time when she and the appellant were alone in the unit. In these circumstances the jury was invited to conclude that the appellant had been more violent to the victim than he was prepared to acknowledge and, in particular, that he had either struck or kicked the victim in the chest, thereby causing her injuries.
Mr Stokes, for the appellant, submitted that the appellant’s guilt was not the only rational inference to be drawn from this evidence. He submitted first that there were a number of reasons why the jury should not have regarded the victim’s evidence concerning the blow to her abdomen as being reliable. These included the victim’s absence of memory of other events or activities on 8 December, and the fact that a number of assertions made by the victim had been shown by independent evidence to be inaccurate. It is not necessary to outline the criticisms made by Mr Stokes in this respect. I am satisfied that they are well made. I consider it unlikely that the jury would have attached much, if any, weight to the victim’s account of 8 December 2005, and in particular to her claim of remembering a blow to her abdomen. However, even without that evidence the prosecution circumstantial case was strong.
Mr Stokes submitted that the jury could not reasonably have excluded the possibility that the victim had sustained her chest injuries by some means other than blows or kicks from the appellant.
Mr Stokes had elicited evidence from Dr Pearce that it was possible that the victim may have fractured one or more (but not all) the rib fractures in the fall on the coffee table in the early hours of 8 December. Further, because alcohol can dull pain, Dr Pearce accepted that the victim may not have been as inconvenienced by any such fractures during the day of 8 December as she might have been if sober. Mr Stokes also elicited evidence from Dr Pearce that the appellant’s action in kneeling on the victim’s chest while attempting to revive her (if that is what occurred) may have caused the remaining rib fractures. The appellant was said to have weighed 18 stone at the time. That weight, and the position which he said he had adopted, would have resulted in considerable pressure to the victim’s chest. Dr Pearce conceded that it was possible that the rib fractures had been caused in this way, but thought it unlikely. His evidence on this topic appears in the following passage of his cross-examination:
Q.Now, if round about 3.30, 4.30 on the morning of the 8^th there had been a fall onto this table, and subsequently, at about 7.30 in the evening, give or take whenever, this incident occurred with the punches that we all agree happened – the accused is about 18 stone in the old language, I’m too old to immediately convert to kilograms – but if he had knelt on the victim’s chest, would there be a compression factor that might cause some rib injuries?
AYes, that’s possible, yes.
Q.Could the totality of the rib injuries we see be explained by a combination of those two mechanisms?
A.As you say, anything is possible, the probability to have nine ribs broken from a fall and a kneeling on the chest is unlikely in my experience, but anything is possible. The most likely scenario would be that it would take more than just kneeling and more than just a fall to completely break eight to nine ribs on the left‑hand side.
Q.But if he had knelt in such a way that at one stage he took all his weight off anything except his knees, for example, let’s say he was panicking and worrying that the woman wasn’t responding and in all that panic put all the weight on his knees, and no other weight spread around the place for a short period of time, could that be a factor?
A.That could be a factor, yes.
Q.Obviously there are other explanations, such as those my friend has elicited, that are more likely but we can’t exclude that overall scenario as a possible explanation?
A.Yes.
Mr Stokes submitted that in the light of this evidence, it had not been open to the jury to conclude that the only rational inference from the evidence was that the appellant had caused the rib fractures by striking or kicking the victim.
I respectfully disagree. In the first place, when Dr Pearce said that it was possible that the victim had suffered rib injuries in the two ways identified in the cross-examination, he was acknowledging a medical possibility. It was for the jury to determine whether it accepted that those matters were reasonably possible explanations for the victim’s injuries in the circumstances of this case. This involved the jury making an assessment of all the evidence, and not just Dr Pearce’s medical opinions. The jury would have been justified in concluding that the possibility that the victim had had some rib fractures since the early hours of 8 December to be so remote as to be able to be rejected. It is notorious that rib fractures can cause considerable pain. The evidence of Dr Pearce confirmed this. Even allowing for the masking effects of the victim’s alcohol consumption, the jury would have been justified in concluding that if the victim had fractured even one or two ribs in a fall onto the coffee table in the early hours of 8 December, she would have displayed at least some signs of pain and physical distress at the time that she was observed by the neighbour. This is particularly so as she was then walking and carrying shopping. The fact that the neighbour made no such observation, although speaking to the victim for about 10 minutes, told very much against that hypothesis. Secondly, the only evidence that the victim had fallen on to the coffee table came from the appellant. That evidence did not have to be accepted. It was open to the jury to reject that piece of evidence altogether, and it may well have done so. In that event, the factual basis for this aspect of Dr Pearce’s opinion would not have been established.
It was also open to the jury to reject the appellant’s account that he had knelt on the victim’s chest. It saw and heard the appellant give his evidence. The jury would have been well justified in concluding that if the appellant had been acting with tenderness and solicitude for the victim as he claimed, he would not have knelt with his full weight of 18 stone bearing down on her chest. The appellant said that he had had to kneel on the victim’s chest because of the cramped space in which she was lying on the floor. Yet, on the appellant’s own evidence, he had moved the victim further into that cramped space than she had been originally. He could as easily have moved the victim to a more open space. Further, it would have taken the appellant only a moment to move the furniture which confined the space in which the victim was lying. In all those circumstances, it was open to the jury to reject this aspect of the appellant’s evidence. Such a rejection would have removed the basis for the second aspect of Dr Pearce’s opinion.
A rejection by the jury of the appellant’s evidence did not of course mean that the prosecution had proved its case beyond reasonable doubt. However, as already indicated, even without the victim’s own evidence, the prosecution circumstantial case that the appellant had caused the injuries by blows or kicks was strong.
In my opinion, it is has not been shown that it was not reasonably open to the jury to conclude that the appellant caused the victim’s injuries by kicks or blows.
Did the Appellant Intend to Inflict Grievous Bodily Harm?
Once the jury was satisfied that the appellant had inflicted the injuries by kicks or blows, it would only have been a short step to conclude that he did so with the intention of causing grievous bodily harm. The victim’s injuries were extensive – at least eight or nine rib fractures. Dr Pearce’s evidence confirmed that considerable force would have been required to inflict those injuries. They were not the sort of injuries which could have been inflicted accidentally. It was open to the jury to conclude that the appellant had used considerable force because he had wished to inflict really serious harm to the victim.
Conclusion
For the reasons which I have given above, my opinion is that the appeal should be dismissed.