R v Fox

[2002] QCA 425

SUPREME COURT OF QUEENSLAND

CITATION:	R v Fox [2002] QCA 425
PARTIES:	R v FOX, Brett Thomas (applicant)
FILE NO/S:	CA No 88 of 2002 DC No 429 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED EXTEMPORE ON:	15 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	15 October 2002
JUDGES:	McPherson and Davies JJA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – IMPROPER ADMISSION OF EVIDENCE – where applicant convicted of grievous bodily harm and assault – where co-accused, Burton, had conviction set aside on appeal due to doubtful quality of identification evidence – whether effect of identification of co-accused Burton was crucial to the appellant’s conviction – whether the fact that evidence of identification was insufficient to support the conviction of Burton means that it is unavailable as against the appellant – whether the evidence as a whole was sufficient to support the conviction
COUNSEL:	B G Devereaux for the applicant B G Campbell for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

HOLMES J:  The appellant was convicted on the 8th of August 2001 of one count of grievous bodily harm with intent to do grievous bodily harm and one count of assault occasioning bodily harm whilst armed and in company.  He had been tried with two co-accused, Ricky Lyle Ellem and Dion Edward Burton.

The Crown case was that there had been bad blood between the three men on the one hand and the two individuals assaulted, Phuong Douc Nguyen, the complainant on the first count, and his girlfriend, Kristi Beggs, the complainant on the second count.

Mr Nguyen and Ms Beggs suspected Burton of stealing a good deal of their property.  They had come to know him through a mutual friend and neighbour, Ian Matheson, who was also Ellem's half brother.  On 1st of January 1999 the two complainants went with Matheson and five other people to a residence at Leichhardt where the appellant lived with his de facto wife, Ms Setch, and their two year old son.  Ellem also resided there as a boarder.   What was intended, it seems, was a confrontation with Burton.

On their arrival there was an interchange between Matheson and Ellem with Matheson demanding to know where Burton was.  When he did not get a satisfactory answer, Matheson proceeded to smash the door and windows of the house.  The group then dispersed when they believed the police had been called.

On the evening of 4th of January 1999, the complainants were at home at their unit, also in Leichhardt, not too far away from the appellant's home.  A police officer gave evidence that the distance by the shortest route from the appellant's house to the complainants' unit was 1.1 kilometres.  The return journey was .93 of a kilometre.

Mr Nguyen on that evening heard a noise outside his unit.  He went out to see Ellem standing on a wheeled rubbish bin outside Matheson's unit calling for his half brother.  Ellem got off the bin and walked over to the fence where Mr Nguyen joined him.  When asked if Ellem knew where Dion Burton was, Ellem responded he did not know.  Ellem asked Mr Matheson's whereabouts and Mr Nguyen said he was at Inala.  Then Ellem asked Mr Nguyen and Ms Beggs, who by this stage had come out of the house, whether they had been at his house a couple of nights previously.  Both denied it but Ellem said he had seen them there.

Mr Nguyen turned to go back into the house.  At that point two other men appeared.  Nguyen thought that one had jumped over the fence and the other had come up through the driveway.  Ms Beggs, on the other hand, said they had both come over the fence.  They began to hit Nguyen with large pieces of wood about the thickness of baseball bats but longer.  Mr Nguyen said he recognised the man who jumped over the fence as Dion Burton, but he conceded that at the committal proceedings he said he had no idea who had hit him and that he only knew there were two attackers because Ms Beggs had told him that.

Ms Beggs said that as they jumped the fence one of the two men said that their "two year old daughter was in the fucking house", as he termed it, but she amended this when asked the actual words to "My two year old child was in the fucking house."

After Mr Nguyen had been struck a number of times, one of the men came towards her and hit her once in the arm and once on the left hand side of the leg before returning to assault Mr Nguyen again.  Ellem remained standing at the fence throughout the attack.  Ms Beggs telephoned the ambulance and police.  Her call was recorded as being made at 8.32 p.m.

Trudy Setch, the appellant's de facto wife, gave evidence that on the evening in question the appellant, Burton and Ellem had all been at her house.  They were in Ellem's room, which had a separate exit, playing music.  At around 7.30 at the appellant's request she went to the hotel to buy beer.  On her return some time around 8 o'clock the appellant collected his beer from the kitchen.  There was an interval before she saw him again when he requested her to get more beer.  On that occasion Mr Ellem drove her to the hotel.  She could only say that it was before 10 o'clock and she could not recall whether Burton was still on the premises at that stage.

At the time of the event she said the appellant had recently injured his hand, severing the nerves and requiring micro surgery.  The hand was his dominant right hand and it remained in plaster as at 4th of January.  Her recall of Burton's clothing on the evening in question was that he wore a white T-shirt which was at odds with Ms Beggs' description that the assailants were dressed in dark clothing. 

On the following morning at about 6.45 a.m. police went to Ms Setch's premises.  Mr Ellem was there, just about to leave in his vehicle for work.  The appellant and Burton were inside the house.  The appellant was convicted on both counts as was Burton.  Ellem was convicted only on the second count of assault occasioning bodily harm to Ms Beggs while armed and in company.

Burton's convictions were subsequently set aside by this Court on the ground that they were unsafe and unsatisfactory, essentially because of the doubtful quality of the identification evidence.

The defence here argues that the effect of the identification of Burton was crucial to the appellant's conviction, and given the view taken by this Court in Burton's appeal, the conviction cannot stand.

The Crown, on the other hand, seeks to support the case against the appellant as a circumstantial case.  The circumstances it relies on are:  the appellant's association with Ellem at the house of Ms Setch prior to and after the assault; and the statement reported by Ms Beggs as to the two-year-old child being in the house on the earlier occasion, a reference, it's said, to Fox's son being in the residence when the complainant with others went there on the 1st of January.  That statement in the circumstance of the assault of Mr Nguyen was made in the context of Ellem's accusation to Nguyen and Ms Beggs that they had been at the house. 

The Crown submits also that it was at least a piece of circumstantial evidence available to the Jury that Mr Nguyen took one of the attackers, Paul Burton, even though that may not have been sufficient to convict the latter.  In my view, that is correct.  It does not follow that the fact that the evidence of identification was insufficient to support the conviction of Burton means that it was unavailable as against the appellant.

Importantly, there was no objection at trial to the evidence of identification, and probably realistically so.  If it was admissible, the mere fact of it being before the jury cannot render the conviction of the appellant unsafe.  That being so, the question is whether the evidence as a whole was sufficient to support the conviction.

In my view, taking into account the motive established against the appellant in the form of the attack on the house where he resided with his de facto wife and small child, his presence before and after the assaults with Ellem, the statement made at the time of the assault as to the two-year-old child being in the house, there was sufficient evidence; it was open to the jury to convict.  In those circumstances, I would dismiss the appeal.

McPHERSON JA:  I agree.

DAVIES JA:  I agree.

McPHERSON JA:  The order of the Court is that the appeal is dismissed.

‑‑‑‑‑