R v Condon

[1993] QCA 275

IN THE COURT OF APPEAL [1993] QCA 275

SUPREME COURT OF QUEENSLAND

C.A. No. 175 of 1993.

Brisbane
[R v. Condon]

BETWEEN

T H E Q U E E N
v.
ANTHONY JAMES CONDON

(Appellant)

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_

Macrossan C.J.
Pincus J.A.

Lee J.

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_

Judgment delivered 06/08/1993.
Joint reasons of Pincus J.A. and Lee J., Macrossan C.J.
separate. All concurring as to the order made.
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APPEAL DISMISSED
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CATCHWORDS:	CRIMINAL LAW - grievous bodily harm - loss of testicle caused by kick to groin - whether evidence of one kick or two - summing up - whether sufficient as to evidence of the kicks - whether cross- examination denied.
Counsel:	Mr A Rafter for the appellant. Mr D Bullock for the respondent.
Solicitors:	Legal Aid Office for the appellant. Director of Prosecutions for the respondent.
Hearing Date:	22 July 1993.

IN THE COURT OF APPEAL

Q	UEENSLAND
B	risbane

Before The Chief Justice

Mr Justice Pinc	us
Mr Justice Lee

[ R v Condon]

C.A. No. 175 of 1993

T H E Q U E E N

v.

ANTHONY JAMES CONDON

(Appellant)

JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 06.08.1993.

I agree with the reasons stated by Pincus J.A. and Lee J. on the two points argued and with their conclusion that the appeal should be dismissed.

On the first point, the alleged departure by the Crown from its particulars, I wish to add some observations.

The form of the particulars supplied at the outset of the trial, specifying that the action which caused the injury was "a kick in the groin", was not inappropriate, although, if the Crown case which was intended at that stage to be presented was that in the course of the episode there were two kicks which may have been the cause of the injury, it would have been better to state "a kick or kicks to the groin". Since a single, brief continuing episode was under consideration as the central matter at the trial, no valid objection could have been raised to particulars given in that form: see the discussion in Director of Public Prosecutions v. Merriman (1973) A.C. 584 at 593 referred to by Connolly J. in R. v. Morrow and Flynn (1991) 2 Qd.R. 309 at 311 and 312. Those particulars would have made it clear what the offender was charged with. In the present case it could not sensibly have been said that more than one offence arising out of the episode should have been charged or that the defence was placed in any difficulty about the way to proceed in conducting its defence. The "essential factual ingredients" of the actual offence were conveyed: cf. John L. Pty Ltd v. Attorney-General (N.S.W.) (1987) 163 C.L.R. 508 at 520. See also the discussion of the limits of what may be charged in a single count and the form of appropriate particulars in R. v. Griffiths C.A. No. 324 of 1991, judgment 24 July, 1992, unreported.

After the statement about the nature of the Crown case had been made in the form first mentioned (with a reference to a single kick), the evidence was led and the complainant, although he was not supported in this by other Crown witnesses, said that the appellant delivered two kicks. There was no objection to the introduction of this version of events and counsel for the appellant below cross-examined quite extensively on the details of the kicks referred to, with no attempt made to limit the ambit of the Crown case. It is clear that the appellant, who denied both of the kicks in the form described, was not placed in a situation of embarrassment.

It was only after all of the evidence in the case had been presented that defence counsel raised what must, in the circumstances, be regarded as a technical objection. There was no reason why prosecuting counsel at this point should have been put to an election to specify which of the two alleged kicks caused the grievous bodily harm charged in the indictment. However, when challenged by defence counsel to provide this indication, the prosecutor does appear to have made some limited concession. He said, understandably enough in view of the support of his further witnesses for the version which obviously related to the first kick, that he would rely on that kick. Apparently, however, during address the prosecutor conveyed to the jury that if they found that an act of the appellant other than the one conveniently referred to as the first kick caused the injury, they could still convict.

The complainant's version, even if accepted, did not really provide a firm basis for the jury to decide that it was one kick rather than the other that caused the injury. However, there was the other evidence and the jury may well have been persuaded that the first was the cause or they may have decided no more than that it was either one or the other or perhaps both. This being a case where the "commonsense" or "robust" approach described by Lord Morris and Connolly J. in the cases referred to above applied, the single offence charged in the indictment may have been constituted by more than one action on the part of the appellant directed to the same end. Unless the prosecutor insisted on putting the Crown case to the jury on the basis that they should convict only if they found beyond reasonable doubt that it was the first kick that caused the injury, no problem would arise. This was not the way that the matter proceeded and, quite sensibly, the prosecutor did not put his case in that fashion.

In view of the way that the trial was conducted and the evidence led and since, as has been said, the Crown case was restricted to a single, comparatively brief and continuous episode, the defence was placed in no unfair position. As the trial proceeded, the accused had sufficient particulars to enable him to present his defence: cf. Ex parte Lovell; Re Buckley (1938) 38 S.R.(N.S.W.) 153 at 166.

For these and for the reasons stated by Pincus J.A. and Lee J., the appeal should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 175 of 1993.

Brisbane
Before Macrossan C.J.

Pincus J.A.

Lee J.

[R v. Condon]

T H E Q U E E N
v.
ANTHONY JAMES CONDON

(Appellant)

JOINT JUDGMENT OF PINCUS J.A. AND LEE J.

J udgment delivered 06/08/1993

This is an appeal against a conviction on a count that on the 29th day of May 1992 at Townsville the appellant unlawfully did grievous bodily harm to one Morris. The charge arose out of a fight which was admittedly precipitated by the appellant's having insulted Morris. As a result of the fight Morris suffered a significant injury; it was necessary surgically to remove a damaged right testicle.

It was common ground that the injury was caused in the course of the fight, but there was a difference between the appellant and Morris as to the mode of causation. Morris gave evidence that the appellant kicked him in the groin twice, whereas Condon's version was that he kneed Morris in the groin.

Two other witnesses said they saw the first of the kicks to which Morris swore, but did not say they saw the other. In substance, Morris' evidence on this point was that the appellant hit him on the nose with his closed fist and then kicked him in the right hand side of the groin with a steel capped work boot.

Morris said that he did not fall, but threw a couple of punches; the appellant came at him again, grabbed him by the hair and swung him to his knees, kneeing him in the chest. Morris said he then thought that by-standers "broke it up". He described the second kick as follows :

"...there was a wharfie between him and me and he come round the outside and sunk the boot in again...in the groin...on the right hand side of the groin again..."

One of the bystanders, R A Fuller, gave evidence of seeing a kick towards Morris' groin, following which the parties were pulled apart. Fuller said he saw another kick later, but that was towards the shoulder. A similar version was given by T M Hickson.

The evidence, then, was that Morris claimed to remember two kicks to the groin, the bystanders only one. When asked at the inception of the case for particulars of the blow that caused the injury, the prosecutor said it was "a kick in the groin".

Morris was cross-examined about both kicks in some detail.
After the conclusion of the whole of the evidence counsel for
the accused raised with the judge the problem that whereas the
particulars mentioned a kick to the testicles, Morris had given
evidence of two kicks. The prosecutor then said he was relying
on the kick which Hickson and Fuller had seen. Both counsel
addressed and the judge began his summing up. At the
commencement of the following day's proceedings counsel for the
appellant again raised the question of the particulars given and
complained that the prosecutor had, during his address, told the
jury that if they found that another act other than the one
particularised had caused the grievous bodily harm, they could
still convict.

When the judge resumed his summing-up he included in his remarks to the jury a statement that the prosecution case is "that this is the kick, the kick was the one, the initial kick seen by Fuller and seen by Hickson...the prosecution case is that was the kick". Subsequent remarks by the judge discussed the prosecution case in terms consistent with that. However, the judge also said :

"Mr Morris said there was a second kick, well, it is a matter for you to decide whether there was a second kick into the crutch or not. The two waterside workers were there, they did not see anything like that."

It was not contended before us, on behalf of the appellant, that the appellant was entitled to complain of Morris' having given evidence of two kicks to the groin, although only one was mentioned in the particulars. As has been mentioned, cross- examination dealt extensively with both kicks. The appellant's complaint is in essence that having particularised, before he addressed, the kick observed by Hickson and Fuller, the prosecutor did not confine himself to that case; further, it was argued that the judge did not clearly correct that error. The point is, it is clear, a rather technical one.

The case is unusual in that the whole of the evidence was given before the Crown was asked to confine itself to one of the two kicks to the groin mentioned by Morris. Having done so, according to the understanding of then counsel for the defence, the Crown invited the jury to consider whether another act caused the grievous bodily harm; unfortunately, the whole of the prosecutor's address on this point is not before us, but we should proceed on the assumption that what defence counsel said was correct. It was not suggested to the jury, we gather, specifically that they could convict on either kick.

According to Morris' version, the fight was interrupted, one would assume briefly, when it was broken up by bystanders; the first kick occurred before that and the second after it. Nevertheless, it is argued on behalf of the respondent that, the issues being clear and in short compass, the jury did not necessarily have to confine themselves to the precise matters particularised. Juraszko [1967] Qd.R. 128 was relied on; it does not appear to us that the case is authority for any principle which is of assistance to the respondent here.

We have found it difficult however, to understand how it could be said that the matter complained of could have influenced the verdict. It was common ground that there was a fist fight, having its origin in grossly insulting remarks made by the appellant. What was in dispute was whether the appellant, said to be a larger man than Morris, kicked Morris on the right testicle at or about the conclusion of that fight. The appellant's version, which must be taken to have been rejected, was that there was never any kick - at least not by him - but that when the two were in a clinch "I lifted my left knee up into his groin and he went to jelly". It was apparently argued below that there was an issue of self-defence; if the jury accepted either the version given by Morris that there were two kicks in the groin, or that of the bystanders that there was only one - and they must be taken to have done so - there could hardly have been any such question. It appears from the summing-up that a defence of accident was also mentioned by counsel for the defence, but there appears to have been absolutely nothing to support that. Our conclusion, then, is that if (as appears to be the case) the prosecutor suggested to the jury that they might convict on the basis of some other blow than that particularised, that was an error. The judge's remarks about it in summing-up did not completely expunge the error, but one cannot hold, in our view, that any injustice was done. The appellant did not lose a fair chance of acquittal by the rather slight insufficiency in the summing-up.

Cross-examination

An argument, of less substance, advanced by Mr Rafter for the appellant was that the judge unduly fettered counsel for the defence by restricting the scope of his cross-examination of Morris. That began with a question, admittedly irrelevant, about Morris' enjoyment of sexual activity, and one can understand that engendering some anxiety in the judge; a case of this sort, unless conducted with restraint, is subject to a risk of becoming a slanging match. Shortly after the question to which we have just referred counsel for the accused began to make inquiry of Morris about an affair which the accused was said to have been having with a barmaid and certain activities of Morris connected with that affair. The judge suggested that this was irrelevant and a rather diffuse discussion ensued, at the conclusion of which the judge indicated that the question of provocation was irrelevant - a point which is not disputed. It is hard to see what complaint could validly be made about the judge's intervention, but Mr Rafter argued that counsel for the defence (not Mr Rafter) had the impression that he was inhibited in the scope of his cross-examination and in particular that he was not allowed to ask about previous disagreements between the appellant and Morris. In fact counsel for the accused did ask about some past events of that kind but one might accept that the discouragement which emanated from the judge at the beginning of the cross-examination operated to shorten that.

In our opinion it was incumbent upon counsel for the accused, if there was some particular topic on which he wished to cross-examine, of importance to the defence, to raise it distinctly and obtain a clear ruling from the judge. One can understand his Honour attempting, in a matter of this sort, to concentrate upon the central issue, namely the fight, particularly as it was common ground that there was bad blood between the two before the fight began.

In our view it has not been demonstrated that the learned primary judge unduly restricted cross-examination of Morris, nor that he prevented counsel for the accused from cross-examining on any identified relevant matter.

We think the appeal should be dismissed.