R v McDonald

[1996] QCA 250

IN THE COURT OF APPEAL	[1996] QCA 250
SUPREME COURT OF QUEENSLAND

C.A. No. 153 of 1996

Brisbane

[R. v. McDonald]

THE QUEEN

v.

COLIN JAMES McDONALD

(Applicant) Appellant

Davies JA
Pincus JA

Byrne J

Judgment delivered 26/07/1996
Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED. LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED TO THE EXTENT OF SUBSTITUTING $1000 FOR $2000 IN THE AMOUNT OF COMPENSATION TO BE PAID.

CATCHWORDS:	CRIMINAL LAW - whether conviction unsafe.
SENTENCE - whether compensation excessive.
Counsel:	No appearance by appellant
Mr D. Meredith for respondent
Solicitors:	No appearance by appellant
Director of Public Prosecutions for respondent
Hearing Date:	19 July 1996

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 26/07/1996

After a trial in the Cairns Magistrates Court, the appellant was convicted of assault occasioning bodily harm to David Corney. A fine of $1000 was imposed and an order made for payment of $2000 compensation.

The conviction is said to be unsafe. The notice of appeal also contends that the Magistrate failed to afford significance to "the fact that" the appellant "was provoked". About 7 p.m. on 13 September last, an altercation occurred between the appellant and Mr Corney at the Barrier Reef Hotel, Cairns. The complainant had by then established a de facto relationship with Patricia Costello. She had previously maintained a de facto relationship with the appellant. In the incident, the appellant punched the complainant. The trial concerned the circumstances in which the complainant was struck.

The complainant and Ms Costello testified. On minor points, there were slight discrepancies in their accounts. In matters of substance, however, their evidence was to substantially the same effect. They said that the appellant approached them and said to the complainant, "Do you still want to fuck me up the arse?" They testified that the complainant replied, "Fuck off. I don't want to know you", and that the appellant then punched the complainant near the left eye. After that, on their story, the appellant took the complainant by the beard and punched him around the head.

An eyewitness, Mr Kidd, testified that he saw the appellant "walk in a deliberate manner" towards the complainant "and I just saw him (the appellant) throw a big king hit and strike" the complainant. Mr Kidd went over to the men and separated them.

The appellant gave a different account. He testified that he approached the complainant and Ms Costello and said to the complainant, "Well, do you still want to fuck me?" According to the appellant, the complainant "jumped up and started swinging his arms at me and I protected myself and hit back".

The complainant and the appellant had met about two months earlier when, during a tense discussion, the complainant told the appellant that he was "going to fuck" him. This statement apparently accounts for the things the appellant said when he approached the complainant at the hotel.

The Magistrate, who had the advantage of seeing and hearing the witnesses, was satisfied by the evidence of the complainant and Ms Costello that "no aggression" had been shown to the appellant before he struck. He said that the complainant and Ms Costello were honestly attempting to recollect the events to the best of their belief. He was also persuaded that Mr Kidd was a truthful and honest, independent witness with a clear recollection of events.

The Magistrate made adverse findings concerning the appellant's veracity, giving reasons. He adverted, appropriately enough, to different accounts the appellant had given of the encounter. The Magistrate also expressly relied on the appellant's demeanour in concluding that his testimony was untruthful.

One concern raised by the appellant is that not all the injuries might have been caused by the assault. In his written submissions, he contends that the complainant might have had "a further accident causing further damage" between the attack and the examination. There is no basis for supposing that the injuries were inflicted other than by the appellant. A general practitioner testified to the injuries revealed by an examination the day after the attack. The left eye was "swollen shut". There was bruising to the upper and lower lids, and a fracture on the inside wall of the eye. The doctor thought that what he observed was "definitely" consistent with a punch to the eye.

It was open to the Magistrate to be satisfied beyond reasonable doubt that the appellant assaulted Mr Corney causing him bodily harm, and that the attack was unprovoked. There is no substance in either ground of appeal.

Leave is also sought to appeal against the fine and the compensation order. The sentence is said to be manifestly excessive. The complaint in relation to compensation is that the Magistrate erred in assessing the amount.

Section 343A of the Code provides for a maximum penalty of a $1000 fine or two years imprisonment for assault occasioning bodily harm. The $1000 fine for the "cowardly and unnecessary attack", as the Magistrate put it, can scarcely be described as manifestly excessive. It is fortunate that the consequences of the attack were not more serious.

No doubt a deal of pain and suffering was associated with the blows, although the complainant was expected to recover fully. Apart from the evidence of the general practitioner, which was directed to proving that the assault inflicted bodily injury, nothing emerged concerning the extent of the injuries and their consequences. This, rather unfortunate, omission resulted from an unwillingness on the Magistrate's part to act in the sentencing phase on material other than evidence adduced earlier. The Magistrate's approach was unduly restrictive: see s.15 of the Penalties and Sentences Act 1992. But it did discourage the prosecutor from seeking to establish the true extent of the loss and damage occasioned by the assault.

No detail of the pain or treatment was placed before the Magistrate after the conviction was entered. And when informed that the complainant had lost $528 in wages because he was away from work for three days as a result of the injuries, the Magistrate indicated that he would not take that loss into account because no evidence had been given concerning it earlier. Of course, economic loss caused by the assault could properly have been taken into account in assessing compensation under s.35(1)(c) of the Act.

On such limited information as the Magistrate permitted himself to consider,

$2000 seems excessive compensation. $1000 appears more appropriate.

The appeal against conviction should be dismissed. The application for leave to appeal against sentence should succeed to the limited extent of substituting $1000 for $2000 in the compensation to be paid.