R v Kerbatieh

[1997] QCA 30

IN THE COURT OF APPEAL

[1997] QCA 030

SUPREME COURT OF QUEENSLAND

C.A. No. 310 of 1996

Brisbane

BeforeMacrossan CJ
Davies JA

Cullinane J

[R v. Kerbatieh]

THE QUEEN

v.

MUHAMMED HENI KERBATIEH

(Appellant)

Macrossan CJ
Davies JA

Cullinane J

Judgment delivered 7 March 1997

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:  CRIMINAL LAW - verdicts - unsafe and unsatisfactory - appeal against conviction of grievous bodily harm - whether inconsistencies in versions of events and evidence given by prosecution witnesses rendered verdict unsafe and unsatisfactory.

Chidiac v. The Queen (1991) 171 CLR 432

Counsel:	Mr B. Butler SC for the appellant. Mrs L. Clare for the respondent.
Solicitors:	Legal Aid Office (Qld) for the appellant. Queensland Director of Public Prosecutions for the respondent.

Hearing Date: 11 October 1996

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 7 March 1997

This appeal against conviction is brought solely on the ground that the verdict is unsafe

and unsatisfactory.

The indictment referred to grievous bodily harm suffered by the appellant's baby daughter on 29 March 1995. There were alternative allegations, the first being that the appellant had done grievous bodily harm with intent while the other simply alleged doing grievous bodily harm. The jury found the appellant not guilty on the charge alleging intent but guilty of doing grievous bodily harm.

The baby was less than three weeks old, having been born on 10 March. After her birth in hospital, the baby and her mother, Runda Kerbatieh, returned home to reside with the appellant at their flat in Windsor, in suburban Brisbane. At about 6.15am on 29 March 1995 as a result of an emergency call made by the appellant, the baby was taken to hospital by ambulance and admitted with what was later diagnosed as severe brain damage resulting from bleeding into both sides of the brain and with retinal damage in addition. There were no signs of external trauma or bruising but extensive examination including examination by CT scan was undertaken.

Expert medical evidence was called at the trial and opinions were offered concerning the event or events which might have caused the injuries. At the trial there was no dispute that the baby had suffered what amounted to grievous bodily harm, nor that her injury had been caused by severe shaking while the head was unsupported. The medical evidence was that the events causing the injury had occurred within twenty four or at the most forty eight hours prior to the time when the baby was examined on admission. Again there was no dispute about this.

The household consisted of three persons only, the appellant, the mother Runda and the baby, and the possibility of access by other persons at relevant times was excluded. The case was fought on the basis that either the mother, Runda, or the appellant was the one who had inflicted the injury.

The mother gave evidence at the trial but the appellant, who had previously provided a statement to police denying responsibility, did not give evidence and no evidence was called for the defence. The defence version contended for at the trial was that the mother, Runda, must have treated the child roughly and so caused the injuries. It was not disputed that the injuries had been inflicted in the course of some episode or episodes after midnight and in the early hours of 29 March.

The defence contention was that the versions provided and evidence given by the mother at different times showed such variations and inconsistencies that they could not be regarded as an acceptable basis for a finding of guilt. When that submission is made and when the ground taken on appeal is that the verdict is unsafe or unsatisfactory, Chidiac v. The Queen (1991) 171 CLR 432 and other authorities show that the appeal court is called on to consider whether it was open to a reasonable jury to be satisfied beyond reasonable doubt of the accused's guilt. This Court must undertake for itself an examination of the evidence relied on by the Crown. It is an insufficient basis for the verdict to be upheld simply because there was evidence to support it. The verdict may nevertheless be unsafe or unsatisfactory. However, it is accepted by Chidiac (supra) and other authorities that the advantage which the jury possessed in seeing and hearing the witnesses in the course of the trial cannot be disregarded.

When the transcript of the evidence at the hearing and the exhibits, including the versions of events given and recorded in interview are examined, a picture emerges as follows.

There were tensions within the marriage of Runda and the appellant and many arguments as a result. These continued and perhaps intensified in the period after Runda returned home with her baby following the birth in hospital. The appellant had yielded to social and family pressures in marrying Runda and had done so only after she had become pregnant. From time to time he would assert that the child was not truly his and there would be arguments about that. Runda said that the appellant habitually treated the child roughly in the short period after her birth and that this occurred even at the hospital although not when others were present and in a position to observe it. This behaviour, she said, caused her alarm and she would remonstrate

with the appellant in an attempt to stop it. There were arguments in the early hours of 29

March and the appellant left the flat at about 3.00am, according to Runda, after punching and hitting her. He had picked the child up out of its cot and rushed around with her, carrying her through the flat. She said the appellant returned after a couple of hours and picked the baby up out of the cot, taking her to the next room and shaking her very hard. She said that on this occasion the baby's eyes became wobbly, she went yellow and her breathing stopped. After some desperate entreaties by her, she said the appellant rang the ambulance which came and took the child to hospital. Runda, at different times, had provided demonstrations of the rough treatment administered to the child and there was lengthy cross-examination relating to these allegations and the extent to which the baby's head may have been unsupported in the course of the alleged episodes. Some of the demonstrations were video-recorded and they were viewed and commented on by other witnesses including the expert medical witnesses.

The medical witnesses were agreed that some at least of the demonstrated activity could well have caused the child's injuries. The defence concentration remained upon the extent to which at different times the mother, in describing the behaviour, had varied in those descriptions. The extent of those variations were of course matters for the jury's consideration but an examination of the record would support a conclusion that they were not necessarily critical. The events of the night in question could be expected to have been very upsetting for the mother and with the disputes and fights continuing in the course of it, she said she was in an exhausted condition. She was very severely hearing-impaired and gave her evidence and provided her descriptions with the assistance of an interpreter. Obviously, also, details of the shaking of the baby that were demonstrated could well vary depending upon the extent to which the attention of the person demonstrating was concentrated upon those details and responded to a need felt to portray the exact level of violence rather than broadly represent it.

The cross-examination of the mother was very lengthy and a perusal of the record indicates that a reasonable jury would have been entitled to conclude that the core events remained convincingly described and that her credibility was not, in essentials, damaged. They could have concluded that her credibility was strengthened by her persistence under questioning. It was also significant that the mother's description of the appellant's behaviour was not contradicted by any testimony under oath provided by the appellant. In attempting to contest her account he relied principally upon his counsel's cross-examination and the effect which the jury were disposed to give to his out of court statement to the investigating police officers. In view of the narrow issue left for decision at the trial, namely which of the two parents had caused the injuries that undoubtedly occurred, there is nothing unreasonable or unexpected in the jury's decision that it was satisfied, having heard the mother, that the appellant was the one responsible.

There were some additional matters that should be mentioned, but it cannot be said that any of them were such as to compel a reasonable jury to have doubts.

Some of the evidence gave support to the mother's accusations. Her brother, Mr Charmand, who was also hearing-impaired, gave evidence of his observations of arguments between his sister and the appellant and of what amounted to the appellant's assent to or absence of denial of accusations of rough treatment of the baby. Charmand said that following the birth of the child he was in hospital when, in front of an unidentified social worker or doctor, the mother said to the appellant, "This is how you flip the baby back and forth ... You're very rough on the baby", demonstrating the baby's body being flipped back and forth. Charmand said that the appellant agreed with that accusation. Charmand also said that later again the appellant spoke to him conceding that he may have been rough with the baby. Notwithstanding a strong attack made upon the reliability of Charmand, the jury would have been entitled to think that it gave some support to a conclusion that in essential aspects the mother's accusations were deserving of credit.

The jury might have thought that one aspect of the appellant's behaviour in the early hours of the morning of 29 March was unexpected if the appellant was wholly innocent of roughly treating the baby. At about 3.30am the appellant had presented himself in an agitated state at the Fortitude Valley police station where he was interviewed by two police officers. He there volunteered an account of domestic upsets but said that he wanted nothing more done at that point other than having a note made of his desire to leave his wife and his fear that she would make trouble for him if he did so. Amongst other things he told the constables, "I never touched her or the baby", which, on his version of events, was a strange matter to intrude in that context unless he was concerned to deflect some anticipated blame. According to the mother's testimony, sometime after the events of 29 March and after the couple had separated, the mother met the appellant by chance at the Dandenong markets in Victoria where he told her he was concerned about the outcome of the case and the possibility that he might be sentenced to imprisonment. In expressing these worries she claimed he said he was sorry he had hurt Sarah, the baby, and it would not happen again. Although this account given by the mother was challenged, it provided some additional opportunity for the jury to make a judgment upon her credibility.

In the course of cross-examination during the trial, the mother, saying in effect that she
had earlier forgotten to mention it or had become confused, asserted that there was an additional
occasion between the episodes at about 3am and 5.00am when the appellant had returned home.
The belated reference by Runda to such a further episode would not necessarily have caused a
reasonable jury to reject her account. The jury may simply have thought that it was correct that
she had been confused and had forgotten it. There was also a further matter. In the course of the
police interview of the appellant, something was said to the appellant which indicated that Runda

had suggested that the appellant returned home twice after first leaving in the early hours of the

morning of the 29th. This pointed to a different version yet again.

The interview was conducted at a time when it was known that the baby was in intensive care with what was described as a blood clot on the brain. This interview resulted in the appellant's denying mistreatment of the child or causing any injury but he did concede that after arguments in the early hours of 29 March he had left home and thereafter had returned on two occasions, the second time being at about 5.30 to 6.30. On the last occasion he said he removed the child from her cot and took her to a table, but she was having breathing trouble and he then said to Runda to call the ambulance. This out of court account, with its denial of wrongdoing on the appellant's part was something for the jury to consider but it would not have compelled rejection of the mother's evidence.

A neighbour, Christine Schafer, gave certain evidence in the Crown case which could have been regarded as offering some support to the appellant's account of the events of the night but it would not have compelled the adoption of that view. At a time which she estimated as being about 4 or 4.30am she said she heard the appellant calling out, "Runda, what have you done?", and then heard Runda screaming. There was, it should be added, evidence which suggested that the appellant at other times had been careful to ensure that inferences adverse to him should not be drawn. The episode at the Fortitude Valley police station has already been mentioned, and other evidence suggested that the appellant was careful to present a more ideal picture of fatherhood when other observers were present.

No objection was made to the trial judge's summing-up perhaps because it did not have features which were unduly favourable to the Crown case. The variations in Runda's accounts given at different times were not glossed over and the trial judge drew the jury's attention to what he called "significant and serious differences" calling for careful scrutiny by them. While it was right that the jury should have been directed to bring careful consideration to bear on these matters, there is no reason to think that on the whole of the evidence it was not open to them, acting reasonably, to be comfortably satisfied of the guilt of the appellant although they obviously had been persuaded to give him the benefit of the doubt on the element of intent. The appeal against conviction should be dismissed.