R v Irwin

Case [2017] QCA 2

SUPREME COURT OF QUEENSLAND

CITATION:

R v Irwin [2017] QCA 2

PARTIES:

R
v
IRWIN, Michael James
(appellant)

FILE NO/S:

CA No 135 of 2016
DC No 218 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Southport – Date of Conviction: 6 May 2016

DELIVERED ON:

3 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

11 November 2016

JUDGES:

Margaret McMurdo P and Gotterson JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by jury of one count of grievous bodily harm – where the defences of accident under s 23(1)(b) and self-defence under s 271(1) Criminal Code 1899 (Qld) were raised on the evidence – where the appellant contends that the prosecution did not negative those defences beyond reasonable doubt – where the appellant contends that the complainant’s evidence was inconsistent or irreconcilable with the evidence of other witnesses at trial – where the appellant contends that the verdict was unsafe and unsatisfactory – whether a verdict of guilty was reasonably open to the jury on the whole of the evidence

Criminal Code 1899 (Qld), s 23(1)(b), s 271(1)

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed
R v Condon[2010] QCA 117, cited
R v Coomer[2010] QCA 6, cited
R v Stuart[2005] QCA 138, cited
R v Taiters; Ex parte Attorney-General (Qld) [1997] 1 Qd R 333; [1996] QCA 232, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, followed

COUNSEL:

S Holt QC for the appellant
M B Lehane for the respondent

SOLICITORS:

Nyst Legal for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MARGARET McMURDO P:  The appellant, Michael James Irwin, was charged with unlawfully doing grievous bodily harm and assault occasioning bodily harm on 28 July 2012 of Lloyd Reginald Ross.  After a four day jury trial he was convicted of doing grievous bodily harm and acquitted of assault occasioning bodily harm.  He has appealed against his conviction contending that it is unsafe, unsatisfactory and unreasonable, and against the weight of the evidence.

  2. A consideration of that ground of appeal requires this Court to review the whole of the evidence and to determine whether it was reasonably open for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.[1]

    The prosecution particulars of the offences

  3. The Crown particularised the offence of grievous bodily harm as:

    “The ‘act’ by the [appellant] was:

    ·a kick; or

    ·an application for force which caused the complainant to fall.

    The injury (consequence) resulted directly from the kick/force itself,…

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Details
AGLC
R v Irwin [2017] QCA 2
Case
[2017] QCA 2
Decision Date

CaseChat Overview and Summary

In the case of R v Irwin, the appellant appealed against his conviction for grievous bodily harm. The appellant argued that the prosecution had failed to negate the defences of accident and self-defence beyond reasonable doubt. The appellant further contended that the complainant's evidence was inconsistent and irreconcilable with the evidence of other witnesses at trial. The appellant argued that the verdict was unsafe and unsatisfactory and that a verdict of guilty was not reasonably open to the jury on the whole of the evidence. The court was required to determine whether the verdict was unreasonable or insupportable having regard to the evidence.

The court found that the reliability of the complainant's evidence was starkly brought into question by the medical evidence and was inconsistent with the evidence of other witnesses at trial. However, the court found that it was rationally open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The court found that the medical evidence was not inconsistent with the appellant's account and that it was most likely that the complainant broke his hip after the appellant pushed him with a considerable degree of force, causing him to fall heavily onto the tiled shopping centre surface. The court found that the jury were entitled to reject the appellant's account that the complainant was the instigator and aggressor. The court also found that the jury were entitled to reject the notion of self-defence beyond reasonable doubt. However, the court found that the question of accident under s 23(1)(b) was more nuanced. The court found that the medical evidence raised the possibility that neither the appellant nor an ordinary person could reasonably have foreseen that the complainant would suffer an injury such as a fracture of his hip. However, the court found that the evidence of the doctors and of the appellant, in its view, clearly raised for the jury's consideration the possibility that an injury like the hip fracture was foreseeable as something which could happen, disregarding possibilities that were no more than remote or speculative.

The appeal was dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It was common ground that self-defence under s 271(1) Criminal Code 1899 (Qld) was raised on the evidence. The prosecution conceded in writing that, in respect of the charge of grievous bodily harm, if the jury accepted the appellant was unlawfully assaulted by the complainant in the way the appellant described in evidence, or if they were left with a reasonable doubt that he was unlawfully assaulted in that way, and that he then pushed the complainant causing him to fall and fracture his hip, the defence of self-defence would be successful and the jury should acquit.[3][3]MFI F, AB 820The evidence at trial The complainant gave the following evidence. He had known the appellant since 1985 when they met at a mutual friend’s wedding. The appellant worked for him in Tamworth in insurance sales from about 1987 until about 1993. He then worked for the complainant selling homes. In about 2007 they worked together in a new building company with the appellant as builder and the complainant as sales consultant. In about 2008 the appellant took over the company. By late 2009 or early 2010 they stopped doing business together. Throughout this period they were, on the whole, very good friends and remained so until 2012. The complainant was godfather to one of the appellant’s children.[4][4]T1-31 – T1-34, AB 37 – 40. On Saturday 28 July 2012, Mr Ross was in his office in Cavill Avenue, Surfers Paradise, from about 8.00 am until about 10.00 am. He left to collect the newspaper, cigarettes and put in a lotto ticket at the Circle on Cavill Shopping Centre. He walked up a slight ramp past the Perle Nightclub. By reference to three photographs,[5] he described how he saw the appellant as he reached the second lot of railings, just to the left of an orange-red post. The appellant was angry, seething and frothing at the mouth, and with glazed eyes.[6] He was wearing jogger-type gym shoes. He said, “I’ve been waiting for this effing time for a long time.” With his left hand, he pushed the complainant who took a few steps back. The appellant’s right fist came across but the complainant turned his head and the blow grazed across his left ear and cheek. The push and the swing were at the same time. This left him a little off-balance and moving backwards. The next minute he felt “this almighty pain” in his left leg near his hip and he collapsed. He felt the pain before he connected with the ground.[7] After feeling the pain in his left thigh, he “just crashed down onto the ground”.[8] He did not see what caused the leg pain which was excruciating and caused him to collapse “like a sack of potatoes.” He was pretty sure he landed on his “butt”. He rolled away while the appellant kicked him and yelled at him to get up. He felt his leg was broken and could not get up. The appellant kicked him in the back and around the thigh, on the right-hand side towards his waist and kidney area, between six to eight times.[9] As he tried to roll away, the appellant kept coming for him, calling him a dog and yelling and screaming. The complainant was asking him to stop and said four or five times that his leg was broken and he could not get up. Eventually the attack stopped and the appellant walked away. The complainant pulled himself along the ground to the wire fencing and slowly pulled himself up on a little post. The pain was excruciating and he could not walk.[10][5]Exhibit 1, photographs 1 – 3.[6]T1-39, AB 45.[7]T1-41, AB 47.[8]T1-42, AB 48.[9]T1-44 – T1-45, AB 50 – 51.[10]T1-46 – T1-47, AB 52 – 53.

Decision

Reasons for decision

The respondent points out that the judge emphasised the conflicts between the evidence of Ms Broad and the medical evidence on the one hand and that of the complainant on the other. But, the respondent contends, when regard is had to the advantages enjoyed by the jury, a review of the whole of the evidence shows that it was open for them to be satisfied beyond reasonable doubt as to the appellant’s guilt.Conclusion I can understand the trial judge’s concern about the jury verdict in that the reliability of the complainant’s evidence was starkly brought into question by the medical evidence and was inconsistent with Ms Broad’s independent and apparently reliable account. Like the primary judge, I do not consider the jury could rely on the evidence of the complainant. Indeed, the jury’s verdict of acquittal on the count of assault occasioning bodily harm suggests they also rejected the complainant’s evidence, at least in part. The question for this Court then becomes, on the evidence which the jury could accept, was it rationally open to be satisfied beyond reasonable doubt of the appellant’s guilt. There is no doubt the complainant suffered grievous bodily harm when he broke his hip in this altercation with the appellant. Given the medical evidence, which is not inconsistent with the appellant’s account, it is most likely that the complainant broke his hip after the appellant pushed him with a considerable degree of force, causing him to fall heavily onto the tiled shopping centre surface. Given Ms Broad’s evidence, the jury were entitled to reject the appellant’s account that the complainant was the instigator and aggressor. This accorded with the appellant’s evidence that he was so angry with the complainant he was frothing at the mouth. Ms Broad, who admittedly did not see how the incident began, observed no act of aggression from the complainant. For good reason, the appellant’s counsel did not enthusiastically pursue the contention that the jury could not be satisfied beyond reasonable doubt that self-defence was not disproved by the prosecution. The jury were entitled to reject the notion of self-defence beyond reasonable doubt. The question of accident under s 23(1)(b) is, however, more nuanced. With the concurrence of trial counsel, the judge directed the jury:“The prosecution must prove that the [appellant] intended that an injury like the fracture of the complainant’s hip should occur, or foresaw it as a possible consequence, or that an ordinary person in his position would reasonably have foreseen the event as a possible consequence. In considering whether the [appellant] did foresee it or an ordinary person would have, you should focus on whether an injury like the hip fracture here was foreseeable as something which could happen, disregarding possibilities that are no more than remote or speculative.I referred, already, to the medical evidence about the force required to cause a fracture of that – of this kind and to the evidence of – about what occurred given by [the complainant and the appellant]. The evidence of the doctors and of [the appellant], in my view, clearly raises for your consideration, the possibility that neither the [appellant] nor an ordinary person could reasonably have foreseen that the complainant would suffer an injury such as here occurred, a fracture of his hip.If the [appellant] did not intend or foresee a serious injury of that sort to the complainant as a possible consequence of his action as you find them to be, and if an ordinary person in the position of the [appellant] would not have foreseen that as a possible consequence of those actions, then the [appellant] would be excused by law and you would have to find him not guilty.”[59][59]Transcript, redirections page 28, l 24 – l 46. It was common ground in this appeal that it should be decided on the basis that this direction was according to law, although counsel for the respondent raised the possibility that it may be more favourable than necessary to the appellant. For these reasons, this Court should not be seen as either endorsing or criticising the correctness of that direction which was not addressed in argument.

Ratio Decidendi

Legal Principle Established

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