R v Fergus

[1996] QCA 151

IN THE COURT OF APPEAL	[1996] QCA 151
SUPREME COURT OF QUEENSLAND

C.A. No. 499 of 1995

Brisbane

Before Fitzgerald P.

Davies JA. Williams J.

[R. v. Fergus]

T H E Q U E E N

v.

CRAIG LESLIE FERGUS

Appellant

Fitzgerald P.

Davies JA.

Williams J.

Judgment delivered : 24/05/1996

Joint judgment of Fitzgerald P. and Davies JA; separate reasons for judgment of Williams J. concurring as to the order made.

APPEAL DISMISSED.

CATCHWORDS:	Conviction - grievous bodily harm - inconsistencies in evidence - verdict unsafe and unsatisfactory - self-defence.
Counsel:	A. Rafter for Appellant L. Clare for the Crown
Solicitors:	Dale & Fallu for Appellant Director of Public Prosecutions for the Crown
Hearing date:	21 May 1996

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND DAVIES JA.

Judgment delivered 24/05/1996

The appellant has appealed against his conviction of 17 November 1995 of an offence of doing grievous bodily harm to Allan Philip Jackson, with intent to do grievous bodily harm to him, on 11 February 1995 at Ipswich. The indictment also charged the appellant with murdering Stephen Jeffrey Gray at that time and place, but the jury could not agree on a verdict in relation to that count and the appellant was acquitted when he was subsequently retried.

On the night of 11 February 1995, the appellant was at home with Campbell McCorquodale, the person with whom he shared a residence at 17 Beaumaris Street, Bellbird Park. He had previously shared a relationship with a woman, Sharyn Coll, who had also resided at that address but had left there on a number of occasions at the appellant’s request. The last such occasion was about a week earlier. At about 8.30pm on 11 February, Ms Coll arrived at the appellant’s residence with three men, Gray, Jackson and Jeffrey Harold Aust. Different reasons were given for their visit, but it seems likely that the jury would have concluded that the purpose was to punish the appellant for some grievance felt by Ms Coll. After she had criticised and possibly struck the appellant, Gray and perhaps Jackson and Aust commenced to strike him and Gray and the appellant fought. Initially, the fight occurred in a number of rooms in the house, before the appellant and Gray moved downstairs. On the view most favourable to the appellant, he was being badly beaten, and as he and Gray passed through the kitchen on their way downstairs to the yard of the house, he picked up a knife which, he said, he put down the back of his pants. Earlier, when Coll and her companions first arrived, he had picked up a piece of PVC pipe that he kept behind the door, but it seems that he dropped that or it was taken from him, perhaps by Jackson, during the course of the encounter in the house. The appellant and Gray continued to fight in the yard of the house and Gray continued to strike the appellant, who stabbed Gray, who fell to the ground and died shortly afterward.

Neither Coll nor Aust saw the appellant strike Jackson, but Aust saw the appellant waving a large metal pipe, which he thought was an exhaust pipe. According to Aust, he saw Gray lying on the ground and he said to the appellant, “What have you done?”. The appellant replied, “Look what I did, Jeff”. Aust then said, “Well, you better give me a hand to help this bloke out, help me mate out”. Aust said to the appellant, “Put it down, Craig”, and the appellant put the metal pipe down. First Aust and then the appellant tried to revive Gray, and the appellant attempted to give Gray mouth-to-mouth resuscitation, but Gray was already dead.

At the committal hearing, Aust said that he had seen Jackson with a stick that night, but at the appellant’s trial he said he could not remember whether or not he saw Jackson armed with an object at any stage.

McCorquodale’s evidence was that the appellant and Gray went downstairs followed by Jackson and that, sometime later, the appellant came to the top of the stairs and said, “Ring the police. Someone has been stabbed”.

Jackson’s evidence was that when Gray and the appellant went downstairs, everyone else initially remained upstairs and that he could hear the fight continuing in the backyard. He went downstairs and called out to Gray, “Come on, mate, let’s go”. The appellant and Gray then started walking towards Jackson whereupon the appellant said, “What are you, a girl?”. Gray said, “No, stuff it”, and then told Jackson, “Get back upstairs. Leave me alone. If that’s the way he wants it”. Jackson said that the appellant and Gray started fighting again and Jackson started walking towards the stairs. About 20 seconds to a minute after Jackson had spoken to him, Gray came around the corner saying, “Help me, Jacko. He stabbed me. I’m bleeding”. Jackson tried to carry Gray but he fell to the ground, on his hands and knees. Jackson tried to give “mouth to mouth” and was hitting Gray’s chest to try to get Gray’s heart pumping again.

According to Jackson, while he was on his hands and knees beside Gray, the appellant came up behind him and struck him around the head with what he thought was a machete. He said to the appellant, “Haven’t you done enough fucking damage? Can’t you see the man’s fucking dying?” Jackson said that the appellant ran off, and he, Jackson, started calling out to the people upstairs. He went one or two steps up the stairs, and he felt something hit him around the head again; the appellant had come up behind him “with the machete or whatever he had”. Jackson then continued up the stairs, and he and Coll left the house together.

Jackson was later treated at the Princess Alexandra Hospital by the Neurosurgery Registrar, Dr Cutbush. Jackson had a laceration across his left forehead and a skull fracture on the left side with a large extradural haematoma compressing his brain. A craniotomy was performed. In the opinion of Dr Cutbush, Jackson’s injuries were consistent with a blow to the head, and heavy to severe force would have been needed.

A Forensic Scientist, Paul Edmond Roffey, located a very light blood stain on the metal pipe and blood consistent with having come from Gray on the shorts worn by Jackson on the night he was injured.

Before this Court, and no doubt at trial, Jackson’s credibility was attacked. For example, it was asserted that he had given an implausible reason for the visit to the appellant’s residence and pointed out that Jackson’s evidence was inconsistent with evidence given by Aust concerning the purpose of the visit. Other criticisms were that he gave evidence that he did not hear the appellant asking for the police to be called, which both Coll and McCorquodale said had occurred; he did not see Coll pull the telephone cord out of the wall soon after she and her companions first arrived at the appellant’s residence and he did not himself later again pull the telephone from the wall or see Aust do so, which was contrary to the evidence of Coll, Aust and McCorquodale; and he denied that, when they first arrived, they had all been asked to leave, again contrary to the evidence of Coll, Aust and McCorquodale. Further, in his initial statement to police, Jackson made no reference to seeing the fighting downstairs, a matter he explained on the basis that the detectives took his statement in shorthand while he was still in hospital.

When the appellant was initially spoken to at his house he said that after he stabbed Gray he “just bolted round this side of the house and he [Gray] went the other way”. The appellant was subsequently further interviewed but not asked any questions concerning the injuries to Jackson, as the police were not then aware that Jackson had been injured.

The appellant gave evidence describing the intrusion into his residence and the assault which he suffered. He said that the men with Coll overpowered him when they arrived and pushed him into the house and surrounded him, and that he felt that they were all hitting him. Certainly, Gray did so and continued to do so. He described the fight in the house and said that he and Gray went downstairs and Gray immediately started hitting him again, that he took the knife out, that Gray grabbed his hand and they struggled, that the knife was pushed across his own chin, and that as he pushed it away it entered the upper part of Gray’s stomach. Gray then sighed and released his grip.

According to the appellant, he turned and ran towards the front of the house, where he picked up the metal pipe from a scrap heap in the front yard. He then went to the side of the house and saw Gray lying at the bottom of the steps and Jackson coming down the steps, holding the piece of PVC pipe which, according to the appellant, Jackson had earlier taken from him. Jackson looked at the appellant and continued down the steps and, when Jackson was on about the third step, the appellant took one swing at him with the metal pipe. He explained that he did that because he felt that Jackson was coming “to get him”. Under cross-examination, the appellant agreed that, on his version, Jackson did not go near where Gray was lying on the ground and there was no opportunity for Jackson to get Gray’s blood on his shorts.

The appellant’s sole ground of appeal is that the verdict of the jury is unsafe and unsatisfactory. Broadly stated, the basis of that submission is that, on the whole of the evidence, the jury should not have been satisfied that the prosecution had proved beyond reasonable doubt that the appellant was not acting in self-defence when he struck Jackson. In addition to the criticisms of Jackson’s evidence to which reference has already been made, it was pointed out for the appellant that, while Jackson denied that he had the PVC pipe at any stage, McCorquodale’s evidence was that he saw Jackson with the PVC pipe and Aust’s evidence also suggested that Jackson either had the PVC pipe or “a short wooden round stick”; while neither McCorquodale nor Aust placed the PVC pipe (or the stick) in Jackson’s hand as he went down the backstairs to where the appellant and Gray had been fighting, the PVC pipe can be seen under the stairs in a photograph of the scene.

The appellant’s case is summed up in para. 9 of his counsel’s written outline of submissions, which is in the following terms:

“As the appellant had been seriously assaulted by Gray and must be taken to have been in fear of his life or in fear of serious injury when he stabbed him, it is respectfully submitted that when shortly afterwards he was confronted by Jackson, an intruder into his home, the jury should have concluded that the Crown had not excluded that he was acting in self defence when he struck Jackson.

The Crown case for the offence upon Jackson depends substantially upon
Jackson’s own evidence. Jackson was an unreliable witness.

Notwithstanding that Gray’s blood was found on the inside of Jackson’s shorts, it is submitted that the jury ought to have rejected Jackson’s evidence.”

There is substance in the first paragraph of the passage quoted, and in the criticisms of Jackson as a witness, although the deficiencies in his evidence are by no means such that the jury was bound to reject him on essential points, particularly when the deficiencies in his recollection might well have been influenced by his injury; no statement was obtained from Jackson until he had recovered from his craniotomy.

More importantly, as the prosecution pointed out, even acceptance of the appellant’s account did not necessitate his acquittal. It was open to the jury to conclude that, making all assumptions in the appellant’s favour, the force which he used was excessive and did not attract the protection of s. 271 of the Criminal Code, the provision upon which he relied.

While the appellant’s conduct in the circumstances in which he found himself should not be too closely scrutinised with the advantage of hindsight, there seems to be no answer to the prosecution’s submissions. We are unable to discern how it could be concluded that the jury’s verdict was not reasonably open to it on the evidence.

In the circumstances, the appeal must be dismissed.

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered the 24th day of May 1996

The relevant facts are fully set out in the joint reasons for judgment of Fitzgerald P and Davies JA which I have had the advantage of reading. I agree with his analysis of the facts, and with his conclusion. However I wish to add a few brief observations of my own.

The evidence clearly establishes that the main fight was between the appellant and Gray. On the first trial, where the subject guilty verdict with respect to the incident involving Jackson was returned, the summing up reveals that the appellant's defences to the charge of murder were no intent to kill, accident, self defence, and provocation. At that trial at least some members of the jury were satisfied that some or all of those defences had been established. Clearly at the second trial those same issues would have been central to the successful defence.

Counsel for the appellant conceded that there was no error in the summing up in so far as self defence was left to the jury with respect to the charge relating to Jackson. As the jury could not agree with respect to the murder charge, but could be satisfied beyond reasonable doubt that self defence was excluded with respect to the attack on Jackson, they must have been satisfied on the evidence that Jackson did not constitute a threat to the appellant at the time he was attacked or that unreasonable force was used in the attack. The evidence clearly indicated a basis on which the jury could have arrived at such a conclusion. Certainly there was some inconsistency in the accounts given by various witnesses as to Jackson's role at the material time, but the jury (conceded they were properly instructed) were entitled to conclude that he did not constitute a threat and that the appellant's conduct was either not in self defence or an unreasonable reaction to a perceived threat. At the time of the relevant assault on Jackson the appellant must have known that he known he had mortally wounded Gray, his principal assailant, and his subsequent conduct towards Jackson must be viewed in that light. The appellant has yet to be sentenced, and it will be for the trial judge when carrying out that task to determine whether the offence was constituted by an out and out unjustified attack on Jackson or by the use of unreasonable force in a self defence situation.

I agree the appeal should be dismissed.