R v Burch

[1998] QCA 141

COURT OF APPEAL

[1998] QCA 141

DAVIES JA
McPHERSON JA

FRYBERG J

CA No 486 of 1997
THE QUEEN
v.

THOMAS WALTER BURCH

BRISBANE
..DATE 04/03/98
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DAVIES JA: The appellant was convicted in the District Court on
28 November 1997 on two counts of grievous bodily harm on 28
December 1996. He was sentenced on each count to five years
imprisonment. He appeals against his conviction and seeks leave
to appeal against the effective sentence of five years
imprisonment.

The appeal against conviction is on four grounds. The first three of those relate to the question whether the evidence established beyond reasonable doubt that either complainant suffered grievous bodily harm. The first ground asserts that the learned trial Judge erred in finding that there was a case to answer in that respect in the case of the complainant Eleanor Lowis. The second asserts that the learned trial Judge should have directed the jury to acquit on the basis that there was insufficient evidence to be satisfied beyond reasonable doubt that either complainant had suffered grievous bodily harm, and the third asserts that the verdicts were against the evidence, or the weight of evidence in that the jury should not have been satisfied that either complainant suffered grievous bodily harm.

The fourth ground raises a different point. It asserts that the learned trial Judge erred in his directions to the jury in discouraging them from considering the detail of the evidence in that it discouraged them from considering the reliability of the complainants, especially Mrs Lowis, and thereby discouraged the jury from accepting statements made by the accused in his interview with police shortly after the incident the subject of the charges. The statement appears to have made a claim of self-defence and it is asserted in the ground that this approach 040398 T13/TW12 M/T COA31/98

by the learned trial Judge would have encouraged the jury to
reject the evidence of self-defence.

On the evidence which the jury seems plainly to have accepted and on which the learned trial Judge sentenced, namely that of Mrs Lowis, and to some extent that of Mr Hansen, the appellant's attack on the male complainant Mr Lowis and, later, on Mrs Lowis when she came to her husband's aid, was both savage and unprovoked. In a shed which served as the home of the appellant and his wife there were, on the night in question, the appellant and his wife, the two complainants and Mr Hansen. Immediately prior to the incidents which gave rise to the charges all except Mrs Lowis had been drinking alcohol for a substantial time. It appears that the drinking session in the shed commenced shortly after 6.00 p.m. and the incidents occurred sometime after 11.00 p.m. When Constable Smith arrived at the premises shortly after 11.50 p.m. he observed that Mrs Burch and Hansen were observably affected by alcohol. According to the complainants so also was the male complainant. The appellant, although he had apparently consumed a quantity of alcohol, did not appear to be affected by it.

Shortly prior to the relevant incidents Mrs Burch tripped and fell. The appellant accused the male complainant of tripping her. It was plain, according to the other observers that that was not the case and they reassured the appellant of that. Things then seemed to settle down again. Then, apparently without warning, the appellant rushed at the male complainant and tore his shirt. There appeared then to be a mutual agreement that they should go outside, apparently with a view to 040398 T13/TW12 M/T COA31/98

fighting. As they did so the appellant hit the male complainant over the head with a plank of wood which felled him to the ground. The appellant then continued to hit the male complainant over the head with that plank four or five times. Mrs Lowis then threw herself over her husband attempting to protect his head. The appellant kept beating into her arms and she was hit on the knee with a piece of wood. She then noticed it was broken. The appellant then ran at the male complainant with the broken plank stabbing into his back. He did this on a number of occasions and on one occasion stabbed the female complainant in the arm. He then threw the stick away and commenced kicking the male complainant who, all this time was laying prostrate on the ground. He did this on both sides. He also jumped on the male complainant's back.

He then picked up a push bike, held it over his head and brought it down on the complainants. It is convenient to consider the first three grounds together for, if no reasonable jury could have been satisfied to the required standard that either of the complainant's suffered grievous bodily harm, then the conviction in respect of that offence must be set aside.

Grievous bodily harm is defined relevantly in the Criminal Code as "any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health whether or not treatment is or could have been available". The grievous bodily harm to the female complainant was particularised as a fracture to the left forearm which if it had been left untreated would be likely to cause permanent injury to health. The grievous bodily 040398 T14/JAP/20 M/T COA 31/98

harm to the male complainant as particularised was a permanent
loss of sense of smell.

It is plain that in the incident which I have described the female complainant suffered a fractured left forearm. Medical evidence established that, shortly after the incident, she had surgery to insert a stainless steel plate screwed into each part of the bone to hold it together. The prosecution case was that if she had not had that surgery the injury was of such a nature that it would have been likely to cause permanent injury to health.

Two doctors gave evidence relevant to Mrs Lowis' injury. They were Dr King, a general practitioner, who treated her after the operation and Dr McCallum who produced and explained the notes of the doctor who admitted her to hospital.

It is true that Dr King said that if she received no treatment three possibilities could have ensued: the bone may not have united at all; it may have united at an angle leaving a permanent disability; or it may have united properly. He was not asked to and did not express an opinion upon which was more likely.

Dr McCallum when asked what was the likely result if the fracture had been left untreated said, in the first place, that he would need to see X-rays to give an absolutely accurate answer. He went on:

"But there would be likely to be - if the bones managed to form
some kind of union, which is possible, even with off-ended
fractures that some new bone can grow across and form some
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stable union, there would be a reduction in the use of the limb, particularly in the movements of turning the hand over, if it went untreated, that the bones weren't realigned."

His Honour then asked:
"And a permanent impairment?"
To which the doctor replied:
"Yes."

He was cross-examined but nothing in his cross-examination detracted from that evidence which the jury was entitled to accept. If they accepted it, as they plainly did, they were entitled to conclude that the female complainant has suffered grievous bodily harm.

There is no doubt that the male complainant suffered a number of blows to the head. The medical evidence, the appellant accepts, is that those blows could cause loss of sense of smell. Indeed, Dr King said that loss of smell is a well- documented complication of head injury which could be caused either by damage to the bony part of the skull where the nerve fibres run or by damage to the frontal lobe in the area which determines the sense of smell.

Further, he thought that the positioning of the laceration to the frontal area of the complainant's head could cause damage

to the frontal area of the brain responsible for the sense of smell. He thought that the force of the blow was sufficient to cause loss of sense of smell.

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The male complainant gave evidence that he had no problems with smell prior to 28 December 1997, that he had influenza when he came out of hospital for three or four weeks and that it was not long after this that he noticed that he was not able to smell things. It is true that there was no objective tests on the male complainant to determine his loss of sense of smell.

It is also true that the influenza was not excluded by any medical evidence to the possible cause of loss of sense of smell. Nevertheless the strong likelihood is, in my view of the sequence of events and the medical evidence, that it was a head injury to the complainant which caused his loss of sense of smell. The jury was entitled to conclude that it was the blows to the complainant's head which caused his loss of sense of smell. Indeed, in my view, that was the correct inference to draw.

The first three grounds of appeal must therefore be rejected.
In considering the fourth ground of appeal which raises the
defence of self-defence it is of relevance that the appellant
did not give evidence so that the jury were asked to consider
his version of events solely on his police interview.

On the other hand, they had the first-hand and clear recollection of the female complainant who, unlike the other witnesses and participants in the events of that night, had not been drinking alcohol. It is unsurprising that they would have accepted the evidence of Mrs Lowis. The appellant points to the 040398 T14/JAP/20 M/T COA 31/98

discrepancies between her evidence and that of her husband. Undoubtedly, there were some but her husband quite frankly admitted that he was effected by alcohol and that appears to have been uncontradicted. It is plain that he had consumed a large quantity of alcohol before the incidents which I have described. The extent to which it is necessary or even appropriate for a trial Judge to discuss in detail discrepancies between Crown witnesses may depend on a number of factors including the extent of those discrepancies, the apparent reliability of one witness as against another and not least the extent to which counsel have addressed on those matters. In my view the learned trial Judge's summing-up did not lack balance.

On the contrary, the jury would have needed no encouragement to reject the rather flimsy evidence of self- defence in the face of the direct evidence of the prosecution witnesses, especially the female complainant. In my view this ground should also be rejected.

It follows that the appeal against conviction must be dismissed.

The learned trial Judge described the appellant's conduct as a savage sadistic attack by a person behaving in a crazed manner.

It was, he said, a sustained and terrifying attack on two
people who had done nothing wrong. It is, perhaps, surprising
that the complainants did not have more serious injuries in view
of the voracity of the attack.
His Honour also said that the appellant's conduct was
exacerbated by the manner of defence at trial which he said
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attempted to blacken the character of the complainants and to
portray the appellant as an innocent party. However, in the
appellant's favour his Honour took into account his previous
unblemished character, his long and apparently good work history
and the fact that he was responsible for the support of his two
children aged seven and three.

It was submitted by Mr Irwin for the appellant before us that leaving out of account the factors in the appellant's favour to which I have referred, the range indicated by comparable sentences for an offence of this magnitude is three to five years imprisonment and he pointed out that the learned sentencing Judge here appears to have started on the basis of a sentence of six years and, having made allowance for the personal factors to which I have referred, arrived at the sentence of five years. In making the submission which he did Mr Irwin referred to R v. Moore, (CA No 145 of 1994, 15 August 1994), judgment delivered 15 August 1994. That was a case in which, like this, a sentence of five years imprisonment was imposed on two counts, one of indecent assault and the other of grievous bodily harm to which the applicant pleaded guilty.

The assaults, in that case, were by a 28-year-old male on a slightly built 17-year-old girl. They had engaged in consensual sexual activity. The assault was apparently provoked by the girl spitting in the applicant's face after rejecting further sexual advances. However, it was a very brutal attack resulting in injuries more serious than those which either of the complainants suffered here. The sentence of five years 040398 T14/JAP/20 M/T COA 31/98

imprisonment was not disturbed on appeal. I do not think that that case assists the appellant here, particularly in view of the factors as mentioned in the course of argument that this case involved not one but two assaults occasioning in each case grievous bodily harm.

The appellant in his outline also relied on two other sentences of five years imprisonment, Beard, (CA No 129 of 1992, 9 June 1992) and Creagh, (CA Nos 100 and 160 of 1995, 29 May 1995). In the first important factors were the youth of the offender, he was only 18 years of age, and that he had no prior criminal record. Those factors, youth and absence of previous convictions, together persuaded the Court to add to a total sentence of five years for all of the offences a recommendation for parole after 12 months. That case, in my view, is not comparable to this one.

Creagh involved an attack by a man on his wife, mainly to the head, resulting in bleeding and bruising within her skull.

He had a small criminal record. Like the appellant here he showed no remorse for his conduct and defended the prosecution.

A sentence of five years left undisturbed in that case tends, in my view, to support rather than question the sentence imposed here.

The other case referred to in the written outline of the appellants, Connolly, (CA No 427 of 1993, 2 March 1994), resulted from a fight. A sentence of five years imprisonment 040398 T14/JAP/20 M/T COA 31/98

was not disturbed on appeal. It is correct to say that the injuries in that case were more serious than those in this and a knife was involved but the sentence, in that case, does not stand as one marking the outer limit of a sentence for offences of this kind.

The other case to which Mr Irwin referred us during the course of argument today was Hakkila, (CA No 14 of 1994, 30 March 1994) but again, for reasons which were discussed during the course of argument, that case, in my view, is not comparable here.

None of the authorities, in my view, show that the sentence imposed here, although high, in my view, was manifestly excessive. I do not think it was and I would therefore refuse the application for leave to appeal against sentence.

McPHERSON JA: I agree.

FRYBERG J: I agree.

McPHERSON JA: The order of the Court is that both the appeal against conviction and the application for leave to appeal against sentence are dismissed.

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