R v Kramarics

[1992] QCA 418

COURT OF APPEAL [1992] QCA 418

DAVIES JA PINCUS JA de JERSEY J

CA NO 256 OF 1992
THE QUEEN
v.

KAROLY-JOZSEF KRAMARICS

Appellant

BRISBANE
... DATE 21/10/92
JUDGMENT

PINCUS JA: This is an appeal against conviction. The appellant, Mr. Kramarics, was convicted of the offence of unlawfully doing grievous bodily harm to one Adolf Otto Rizinger on the 14th day of May 1989.

The ground of the appeal, as argued by Mr. Rafter, is that the verdict was unsafe, and the point taken, generally speaking, is that inconsistent versions were given by the complainant (Mr.

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Rizinger), internally inconsistent and inconsistent with the evidence of another witness, an ambulance bearer. It is not necessary, as it seems to me, to set out in complete detail all the points which Mr. Rafter took but some illustrations should, I think, be given as to internal inconsistencies.

Mr. Rafter took the point that at one stage the complainant said that the attack of which he complained took place in his backyard. At another stage he placed it in another area of his property. Secondly, Mr. Rafter says that the attack of which the complaint was made was variously described. One example of this is as follows: "Just tell us again what he" - that is the appellant - "did. He grabbed your shoulders first of all?" Answer: "Actually not me shoulder, it's me waist. He grabbed me on me waist."

The variant to that, given by the complainant, was as follows: "I had a stubbie bottle in my hands. I tried to put it down. When I put it down on the ground, I get up and he - that's after he just broke my leg. He grabbed me and jumped me on my leg." Further down on the same page: "How did he jump on you?" "Well, he grabbed me on my shoulder, then he jumped with his legs between my legs, and he lift me on the waist."

Then it was put to the complainant in cross-examination as

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follows: "you said this in your statement I suggest. 'As I put the stubbie on the ground I turned back around to face the defendant, he jumped at me and his knee hit me in the thigh and snapped my right leg.'" Answer: "He jumped between - yeah, that's correct. Yeah, he jump at me."

It is true, at least in my opinion, that these versions are not very easy to reconcile one with the other. However, it appears to me that what the complainant was endeavouring to convey was that by some fairly complicated movement, and no doubt it would have had to be an unusual one, the assailant managed to break his leg. He may not have been precisely sure how this was achieved.

In any event it does not appear to me that the point has any

very great substance.

As to an external inconsistency, the argument is that an ambulance district coordinator, Mr. Michael Owen Johnston, gave evidence that he came to the scene at Eagleby at which the complainant was injured, found the complainant on the footpath with a fractured right femur and had a conversation as follows: "The conversation I had with - that person informed me that he fell over on his leg and that's how the injury occurred." When this was put to the complainant he said it was possible he had said that.

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It is my view that that is a substantial point, that is, that the argument which is advanced by Mr. Rafter must rest principally upon that inconsistency.

The medical evidence was to the effect that the injury suffered, which was the basis of the grievous bodily harm charge, was quite a serious one, and that substantial force would have been required to cause it.

The orthopaedic surgeon who gave evidence said that when he examined the patient he found a spiral fracture of the midshaft of the right femur, that is the bone in the thigh. He explained the nature of the force as being, in substance, significant. He said: "It requires significant force to break that bone; in relatively young people, the sort of force we see in motor vehicle accidents or in falls from heights - falling from balconies or parachuting. So there would be a sufficient - reasonable degree of force involving breaking the bone. ... The nature of the fracture is such that it is a fairly complex force involved. It's a combination of direct force and a twisting force to produce a spiral fracture, and it's usually a blunt force."

Now, although the appellant did not give evidence, his case was, in substance, put and it was one which was consistent with and

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perhaps inspired by the statement which the ambulance officer reported - that is, that Mr. Rizinger was running down his driveway and he fell over. I must say that leaving the medical evidence aside, as a matter of commonsense, one would be pretty surprised if the jury thought there was anything in that. However, the central point appears to me to be whether the inconsistency between the complainant's version as given at the trial and what he is said to have told the ambulance officer is such as to make it an unsafe verdict. In my opinion, that is not so.

One can think of reasons why the ambulance officer might have reported that. Perhaps the complainant was in pain and did not explain himself as well as he might otherwise have done. He does not appear, so far as one can judge from the record, to be a person who is particularly good at explaining himself in English anyway. It is also conceivable that at that stage he had some desire to protect his next-door neighbour, but that may be rather a speculative conclusion.

Having regard to the nature of the injury and the gross improbability attached to what might be described as the competing story, it does not seem to me that one could describe the verdict as unsafe. Indeed, one could be reasonably confident, quite apart from the details of the matter, that such

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an injury would not be incurred except by a fairly violent assault or some application of fairly violent force - hardly by merely falling over while running. It is therefore my opinion that despite the able argument of Mr. Rafter, the appeal should be dismissed.

DAVIES JA: I agree.

de JERSEY J: I agree.

PINCUS JA: The Court's order is appeal against conviction dismissed.

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