R v Hamilton

[1996] QCA 544

COURT OF APPEAL

[1996] QCA 544

DAVIES JA
MOYNIHAN J
HELMAN J

CA No 440 of 1996

THE QUEEN

v.

BERNARD JOHN HAMILTON

BRISBANE

..DATE 06/12/96

JUDGMENT

DAVIES JA:  This is an appeal against a conviction in the District Court on 11 September this year of unlawful wounding.  The event occurred in a hotel which was celebrating its reopening.  The complainant a man named Garden was standing towards the end of the night somewhere near a band which was packing up to go home and suddenly he found that he had been hit.  He had pain in his left eye and he was on his back on the ground being punched about the torso by a man who as it turns out was the appellant.

The complainant's wife was present at the time.  From her evidence it appears that she did not know precisely what had caused her husband to go to the ground but saw him being punched on the ground and attempted to pull the appellant from him.  Two apparently independent witnesses gave more direct evidence of what had occurred before the complainant went to the ground.  One of these Mrs Ashbrook said that she saw the appellant work up to Mr Garden, appeared to have a short conversation with him.  The appellant had a glass in his hand and he swung his arm up at Mr Garden with the glass in it directly into Mr Garden's face.

Another independent witness Mr Verrall looked over and award Mr Garden was bleeding and noticed the base of the glass in the appellant's hand.  The appellant himself did not give evidence at this trial and no evidence was adduced of any admissions made to him to the police.  There were some inconsistencies, as one would expect in cases of this kind, between the witnesses I have just referred to and some other witnesses whom I will not mention in detail.  But those inconsistencies in my view were no more than one would expect ordinarily from honest people, many of whom who had had substantial amounts to drink.  In the circumstances in my view it was quite open to the jury to accept the evidence of Mrs Ashbrook and Mr Verrall that the unlawful wounding assault had occurred generally in the way Mrs Ashbrook described it. 

The appeal against conviction is on three grounds.  One was that the verdict was against the weight of evidence and in my view there is no substance in that for the reasons I have already mentioned.  The second is that the verdict was unsafe and unsatisfactory.  Again this relies on inconsistencies in the crown evidence and what I have said so far satisfactorily disposes of that argument.  The third ground of appeal to this Court was one which was added by leave.  It complains of an error in the trial Judge's direction to the jury that they could convict the appellant even if they were not satisfied that the appellant had a glass in his hand. 

We have been directed specifically to the passages in my learned trial Judge's directions and re-directions.  I can find nothing wrong with His Honour's directions.  There was plainly something, and His Honour made this clear, which on the evidence of the witnesses I have referred to caused the wound to the complainant's face.  Whether in fact it was the glass or something else which the appellant had in his hand or indeed some part of the appellant's hand (although that seems most unlikely) is of no moment in my view.  The question is whether the jury was satisfied and this is really in effect what His Honour directed, whether the jury was satisfied that the blow which was struck by the appellant to Mr Garden as deposed to by the eye witnesses caused the wound to the complainant's face.  In my view there is no substance in that ground either and I would therefore dismiss the appeal. 

The appellant also seeks leave to appeal against his sentence which was one of two years.  The appellant is 29 years of age.  He was born on 28 May 1967.  He has already a conviction for a previous assault occasioning bodily harm committed in the same hotel only a few months earlier.  Mr Kimmins who said everything that could be said for him in this respect pointed out that this was as a result of a consensual fight.  That may be so, but the conviction in my view was a relevant matter.  Also relevant of course is the prevalence of offences of this kind and the potential, with the use of glass, of a very much more serious injury. 

This is an unusual case in the sense that the assault appears not only to be entirely unprovoked but no evidence was before the Court as to any motive or moral basis for the assault.  The attack was entirely unprovoked.  The authorities which were referred to both in the written outline of Mr Henry for the respondent and during the course of his oral submissions by Mr Kimmins show that this sentence appears towards the high end of the appropriate range but not in my view outside that range.  I would therefore refuse the application for leave to appeal against sentence.

MOYNIHAN J:  I agree.  For myself I would simply wish to say that I would not wish to be encouraging of the notion that prosecutorial guidelines or policies could be used to overturn a verdict in circumstances where the evidences that ultimately emerged indicated that the offence might have occurred in circumstances outside the prosecutorial guideline particularly when it was opened always to the view that the circumstances were well within it.  I would therefore dismiss the appeal and also refuse leave to appeal against sentence.

HELMAN J:  I agree.

DAVIES JA:  The appeal is refused and the application for all leave to appeal against sentence is also refused.

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