R v Heta

[1999] QCA 62

IN THE COURT OF APPEAL	[1999] QCA 062
SUPREME COURT OF QUEENSLAND

C.A. No. 464 of 1998

Brisbane

[R v Heta]

THE QUEEN

v

KIM TAMATI HETA

Appellant

Davies JA
Thomas JA

Wilson J

Judgment delivered 9 March 1999.

Judgment of the Court.

APPEAL DISMISSED.

CATCHWORDS:	CRIMINAL LAW - evidence - grievous bodily harm - use that can be made of evidence of injury actually received in deciding whether the force used is "not such as is likely to cause death or grievous bodily harm" - s271(1) Criminal Code 1899 (Qld).
Counsel:	Mr T Glynn SC for the appellant. Mr D Bullock for the respondent.
Solicitors:	Matt McLaughlin Solicitors for the appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	4 March 1999.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 9 March 1999

1. The appellant was convicted by a jury of grievous bodily harm. He had raised self defence under s271(1) of the Code. It states:

   "When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm" (our italics).

2. The only question raised on this appeal concerns the use that can be made of the evidence of the injury actually received in deciding whether the Crown has excluded (beyond reasonable doubt) the italicised proposition. If it is so excluded then the defence is not available.

3. The appellant in company with two other men became involved in a fracas in a nightclub called Tropo's. The appellant was at one stage struck on the right side of the head, and believing that the complainant was the person who had struck him, turned and punched him on the chin. The blow was described as a "full fist punch" the appellant admitting that his punch had been "very hard", that it was a "real full strength blow" and that he had hit as hard as he could straight to the jaw. The complainant's jaw was broken. He "folded" and was then pushed to the floor. It was admitted that he suffered grievous bodily harm. Other evidence revealed that the appellant had had some experience of boxing and "a little bit" of martial arts. He still did boxing training but had not trained in martial arts for four years. He still did "a bit of work" in the gymnasium and could "handle himself".

4. The ground of the appeal is that the verdict was unsafe and unsatisfactory "in that the jury should not have been satisfied that the force used by the appellant was such as was likely to cause grievous bodily harm".

5. Such a question is of course a factual one for the jury. The submission of Mr Glynn SC for the appellant is firstly that the jury could not safely make such a finding because there was no expert evidence about the amount of force that would be needed to break the jaw of this particular complainant; and secondly that the learned trial judge erred in directing that the jury could take into account the nature of the injury as "one factor" on the question whether or not the force used was such as was likely to cause grievous bodily harm.

6. The fact that the jaw was broken was of course not conclusive of the question whether the blow was likely to cause that result. The unlikely often happens. However the fact that grievous bodily harm did result was undoubtedly a relevant fact in the determination of that question. When this issue arises trial judges customarily warn juries of the danger of over-use of hindsight and of the possibility that the unlikely happened. In the present case his Honour observed:

   "Now, you look at the whole of the circumstances. One factor is that Mr Parrott did suffer grievous bodily harm. A broken jaw amounts to grievous bodily harm but that may (sic) does not mean it was necessarily likely."

7. His Honour added, favourably to the defence, that whilst the punch obviously broke the complainant's jaw in this case, "by and large you might expect punches do not break the jaw". His Honour proceeded to mention other factors to be taken into account including the "effort which the accused put in" and the size, strength and prowess of the persons concerned.

8. No attempt was made to prove, nor was it necessary for the Crown to do so, the diameter or strength of the complainant's jaw bone. There may be cases where such evidence can give a case an extra dimension, assisting either the Crown or the defence, but in the absence of special evidence of that kind juries are entitled to give the fact that a bone has been broken whatever weight it seems to deserve in the context of the other evidence in the case. Such evidence may also be relevant on other issues that are before the jury. In R v Raabe[1] evidence of the nature of the complainant's injuries was held to be rightly admitted notwithstanding that the accused had made a formal admission of causing bodily harm. Thomas J observed that such evidence was "relevant to the issue whether the force used exceeded the consent given" and Derrington J observed that "the extent of the injuries is important, and perhaps the most cogent, evidence upon the issue of the excessive nature of the violence inflicted upon the complainant".[2]

   [1] [1985] 1 Qd R 115.

   [2] Ibid pp123, 124.

9. It follows that the evidence of the broken jaw was properly admitted, and that the learned trial judge was entitled to direct the jury that this was a factor which they could properly have regard on the issue whether the force used was likely to cause grievous bodily harm.

10. The appeal should be dismissed.