R v McGrory

[2011] QCA 140

SUPREME COURT OF QUEENSLAND

CITATION:

R v McGrory [2011] QCA 140

PARTIES:

R
v
McGRORY, Holly Anne
(appellant)

FILE NO/S:

CA No 309 of 2010
DC No 541 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gympie

DELIVERED ON:

24 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2011

JUDGES:

Muir and Fraser JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of assault occasioning bodily harm while in company – where the appellant was acquitted of one count of burglary by breaking, in the night, in company and two counts of common assault – where the appellant submitted that her conviction was unreasonable and inconsistent with her acquittal in respect of the burglary offence – whether the jury’s verdict was reasonable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the primary judge directed the jury that, unless they accepted that the incident occurred in the way the complainant said, they should acquit the appellant – where the appellant argued that the primary judge failed to direct the jury on self defence in respect of the offence of assault occasioning bodily harm – whether the primary judge should have directed the jury expressly on the application of self defence – whether the primary judge’s directions gave rise to a miscarriage of justice

Criminal Code 1899 (Qld), s 271(1), s 339, s 419

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, considered
R v Kirkman (1987) 44 SASR 591, cited

Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65, distinguished

COUNSEL:

S Hamlyn-Harris for the appellant
R G Martin SC for the respondent

SOLICITORS:

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

[1]      MUIR JA:  Introduction

The appellant was convicted after a trial in the District Court of assault occasioning bodily harm while in company (count 2).  She had been acquitted of burglary by breaking, in the night, in company (count 1) and of common assault (counts 3 and 4).  She was charged jointly with her father, Michael McGrory, on all four counts.  She appeals on grounds that her conviction on count 2 is unreasonable and inconsistent with her acquittal in count 1 and that a miscarriage of justice resulted from the failure of the primary judge to direct the jury on self defence in relation to count 2. 

[2]      Before discussing the grounds of appeal it is useful to provide a brief discussion of the evidence. 

The relevant evidence

[3]      The complainant, John Michael Parsons, known as “Johnno”, lived on a rural property at Kilkivan with his mother and father, John Edward Parsons.  The complainant and the appellant were formerly in a de facto relationship in the course of which they had a daughter, Bianca.  During that relationship, the appellant lived with the complainant and his parents at the Kilkivan property.

[4]      After their separation, the complainant and the appellant entered into an agreement, sanctioned by a Family Court order, for the shared custody of their child.  At the time in question, the complainant had not returned her to the appellant in accordance with the agreement and, in the early hours of 18 December 2008, the appellant and Mr McGrory went to the complainant’s house to collect the child.

[5]      In general terms, the prosecution case was that the appellant and Mr McGrory broke into the house and violently assaulted the complainant as well as his parents in the execution of their plan to abduct the child.

The complainant’s evidence

[6]      The complainant gave evidence to the following effect.  He woke up when the door of his dwelling was flung open and he heard the appellant saying, “Where is Bianca?  There’s ten blokes outside who are going to kill you.  Where is Bianca?”  He pushed the appellant towards the door and as he did so, she struck him with something.  He hadn’t seen anything in the appellant’s hands when she entered the dwelling, but what she hit him with felt “extremely hard”.  The blow caused him to drop to his knees.  The appellant took a step back, “fell backwards slightly”, giving him “a chance to almost get the door closed”.  The door was flung open again.  He was grabbed by his gold chain and pulled out the door.  As that was happening, he was hit from his left-hand side by another person. 

[7]      Both the appellant and Mr McGrory hit him about the head, he thought, about a total of twenty times.  Most of the blows were to his head.  The complainant’s parents came in response to his calls but Mr Parsons left to protect his wife.  The appellant came back and joined with Mr McGrory in assaulting the complainant who was knocked out and thrown on the floor.  When he came to, Mr McGrory was standing over him with a bat saying, “You’re going to die.”  After he stood up, he went to Bianca’s room, which was in an attached caravan, and found her gone. 

[8]      It was put in cross-examination to the complainant that on the morning of the incident he had allowed the appellant through the front door pursuant to an agreement stuck between the appellant and him the day before that she pick up their child at 4.30 am.  He denied it and also denied that once the appellant entered the house it was he who had set upon her. 

The evidence of Dr Porter

[9]      Dr Porter had not seen the complainant when he was admitted to the Gympie Hospital after the incident.  By reference to hospital records, she said that the injuries observed on 18 December 2009 were:  a 3cm laceration to the left forehead; a bruised left anterior chest, which looked like finger marks; some tenderness of the cervical spine; and some abrasions over his back.  The laceration to the forehead was treated by suturing with four sutures.  The treating doctor noted injuries to the complainant’s back but there was no reference to these injuries in the clinical notes.  Dr Porter said that the marks noted as “finger marks” looked to her like “scratch marks”. 

The evidence of Mr and Mrs Parsons senior

1. Mrs Parsons said that she heard her son calling out and that she and her husband ran to the complainant’s dwelling.  Her husband forced open the door and she heard the complainant screaming, “Help.  Help, I’m covered in blood.”  She couldn’t see much because it was dark.  The appellant called out to her to “get out”, and she saw “her arm raised with pliers in her hand.”  The appellant grabbed her by the wrist.  She then ran from the dwelling followed by the appellant.

1. Mr Parsons gave evidence to the following effect.  The light was too poor to recognise anyone from a distance when he first entered the complainant’s dwelling.  Shortly after he entered, the appellant approached him waving what he thought was a “farrier’s tool, a very long wide-handled implement.”  She was saying, “Where’s Bianca?”  He was struck in the left arm by the tool.  The complainant was calling out, “It’s Holly and Mick.  They’ve got weapons.  I’m stuffed.  I’ve got blood all over me.  Call the cops.”  He saw his wife being chased by the appellant with the “weapon above her head”.  Mr McGrory “swung at [him].”  He also “swung at” the complainant. 

1. Mr Parsons then left to look after his wife.  After satisfying himself of her safety, he ran to a car which he understood was Mr McGrory’s or the complainant’s and pulled out the spark plug leads.  Mr McGrory then arrived and he saw blood stains on Mr McGrory’s track pants.  The complainant then drove up to where Mr Parsons was standing and on his alighting from the car, Mr Parsons noticed that “[h]e was completely covered in blood”.

Mr McGrory’s evidence

1. On the day before the incident, he and the appellant were driving in a car when they saw the complainant in a car.  Both cars pulled over and a conversation took place in the course of which it was agreed that the appellant could pick up their daughter at 4.30 am the next morning.

1. He and the appellant went to the complainant’s dwelling at about 4 am.  His daughter went to the door of the dwelling, knocked and the door was opened.  He heard the complainant calling out, “I’m going to kill you.  I’m going to kill you.”  He also heard a sound as if “someone had been bashed against the walls.”

1. He entered the dwelling some 10 to 15 seconds later and saw the complainant lying on top of the appellant with Mr Parsons standing nearby.  He heard Mr Parsons say, “Move Johnno so I can hit her.”  He grabbed Mr Parsons by the left shoulder, and then pushed him into the wall.  He then dragged the complainant off the appellant.  At no time did he attack the complainant or hit him or notice any injury to the complainant. 

1. The appellant did not give evidence.

1. It is now convenient to consider the grounds of appeal.

The appellant’s conviction on count 2 was unreasonable and inconsistent with her acquittal on count 1

The appellant’s argument

1. Counsel for the appellant advanced the following argument.  The essential question for determination on this ground was whether, having regard to the evidence, there was a reasonable explanation for the different verdicts on counts 1 and 2.  In acquitting on count 1, the jury must have entertained a reasonable doubt as to the complainant’s evidence that, as soon as the appellant came in, she went for him and threatened to kill him.  The prosecution relied on this evidence to support an inference of intention for count 1.  The jury could not rationally have entertained a reasonable doubt about that without also having a reasonable doubt as to count 2, given that the complainant’s evidence was to the effect that he received the injury to his head when the appellant struck him with an object just after she entered the room.  Accordingly, the verdicts were inconsistent. 

Consideration

1. After reviewing cases discussing principles applicable to inconsistent verdicts, Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen[1] extracted a number of general propositions including the following:

“3.  Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:

‘He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.’

4.   Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries.”  (citations omitted)

[1](1996) 190 CLR 348.

1. Their Honours then quoted, with approval, the following passage from the reasons of King CJ (Olsson and O’Loughlin JJ agreeing) in R v Kirkman:[2]

“[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.”

[2](1987) 44 SASR 591 at 593.

1. After quoting these remarks their Honours said:

“5.  Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case.’

6.   The obligation to establish inconsistency of verdicts rests upon the person making the submission.”  (citations omitted)

1. The relevant principles were considered by the court in MFA v The Queen in which, after referring to MacKenzie v The Queen, Gleeson CJ, Hayne and Callinan JJ said:[3]

“Since the ultimate question concerns the reasonableness of the jury’s decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman - #, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.”  (citations omitted)

[3](2002) 213 CLR 606 at 617.

1. The offence, the subject of count 1, was under s 419(1), (2) and (3) of the Criminal Code.[4] Elements of the offence were the existence of an intention on the part of the appellant when entering the complainant’s dwelling to commit an indictable offence in the dwelling and that the entry was effected by means of a break. Count 2 was in respect of an offence under s 339(1) and (3) of the Criminal Code.  An intention to assault or to do bodily harm was not one of its elements nor was entry by means of a break.  Counsel for the respondent submitted that, when it came to establishing the element of intention in count 1, it was not a matter of believing one person’s account of objective behaviour over that of another.  It was possible to believe the complainant, yet be unwilling to draw an inference about the appellant’s intention.  There is substance in that contention.

   [4]1899 (Qld).

1. Another argument advanced by counsel for the respondent was to the effect that the jury may have thought that the appellant’s mind could have been focused overwhelmingly on retrieving her daughter rather than on attacking the complainant.  This, it was said, would provide a rational basis for the different verdicts.  In his summing up, the primary judge told the jury that it was important for them to realise that it was:[5]

“…essential to the Crown case in relation to count 1, that you be satisfied beyond reasonable doubt that at the time the first of the defendants to enter the premises, and on all of the evidence that was [the appellant], entered the dwelling she intended not just to recover Bianca but to attack, to assault, Johnno.” 

[5]Record, p 267.

1. When the primary judge came to discuss count 2, he pointed out that it was a different offence. 

1. I accept also the submission that the complainant’s evidence that the appellant made death threats immediately upon entering his dwelling was not conclusive.  The jury were entitled, having regard to the evidence of witnesses other than Mr McGrory, to conclude that the threats were not to be taken literally.  The jury was also entitled to conclude that threatening words could have been uttered with a view to discomforting and discomposing the complainant.  For that matter, the jury was entitled to reject the complainant’s evidence about the death threats and to accept much or all of the balance of his evidence.  The jury could also have concluded, without perversity, that although the appellant may have entered the dwelling prepared for trouble, it was only when the complainant attempted to forcibly evict her that she formed the relevant intent.  In short, there are a number of reasonable and logical explanations which can be offered for the different verdicts, including one or more of the matters mentioned in the above reasons of Gleeson CJ, Hayne and Callinan JJ.

1. This ground has not been made out.

The alleged failure of the primary judge to direct the jury on self defence

1. It is common ground that the facts were sufficient to raise a defence under s 271(1) of the Criminal Code which provides:

“271   Self-defence against unprovoked assault

(1)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.”

The summing up

1. The primary judge did not direct the jury expressly on the application of 271(1).  His Honour explained the reason for this in response to a request by counsel after the close of the appellant’s case for a direction on self defence:

“Oh, well, I think I can direct them that if they accepted that things happened or might have happened in the way Mr McGrory describe that they would [find]…both defendants not guilty.

…

Which I think would really cover that.”

1. In giving effect to the approach he had foreshadowed, the primary judge directed the jury as follows:

“The third element was that it was done unlawfully. Now, unlawfully simply means not authorised, justified or excused by law. In this case, whether an application of force is done unlawfully is sometimes very complicated but in this case I can simplify it in this - to this extent. If you accept that the force was applied to Johnno in the way - essentially in the way he described. If you accept that things happened as he described them, or essentially as he described them, then it was applied unlawfully. On the other hand, if you're not satisfied of that or if you accept that it occurred in the way Mr McGrory described, or if you think it might have occurred in the way Mr McGrory described, then it was - the Crown has not proved that it was done unlawfully. So again you would have to exclude Mr McGrory’s evidence and accept that it did occur in the way that Johnno described - essentially in the way that Johnno described. That is to say, that he was there, he was attacked and he suffered the injuries in an attempt to fight off his attackers and prevent them from taking Bianca.”

1. Earlier, in referring to Mr McGrory’s evidence, the primary judge said:

“If things happened in the way that he described, then none of the offences were committed, so that if you believe his evidence or, in fact, at the end of the day you think, ‘Well, that version might have been true.’, then you find both defendants not guilty.”

1. In dealing with the defence case, his Honour directed:

“That when Holly entered the premises, indeed on Mr McGrory’s evidence, was allowed into the premises, she was then attacked by Johnno and who was yelling out that he was intending to kill her and she was knocked to the ground and that any blow inflicted at that time was inflicted while she was on the ground struggling with Johnno in self-defence.

Mr McGrory came into the building, simply in order to protect and defend his daughter and once in there, did so.

As I say, if things happened, I told you earlier, if they happened in the way described by Mr McGrory, then none of these offences were committed.”

The competing arguments

1. Counsel for the appellant submitted that, consistently with the primary judge’s direction to the jury that they need not accept a witness’ evidence in its entirety, the jury could have convicted the appellant on count 2 on the basis that she did not dispute having struck the complainant on the head with a pair of pliers.  The appellant could not have been convicted properly on that basis unless self defence against unprovoked assault (s 271(1) of the Criminal Code) had been excluded beyond reasonable doubt, but the jury’s attention was not drawn to that issue. 

1. Counsel for the respondent argued that the directions given “served to resolve every point which might be touched upon in formal directions on the subject of self-defence in favour of the appellant, with the exception of the threshold question [of who attacked first]…By telling the jury that unless they found the matter occurred in the way the complainant said (ie, that he was attacked) they should acquit, [the primary judge] gave a direction which deprived the Crown of the opportunity of arguing such issues as necessity and so on.”

Consideration

1. I am unable to accept the appellant’s argument.  The conventional direction about accepting or rejecting the whole or part of a witness’ evidence did not impinge on the clear direction the primary judge gave on whether the conduct of the appellant and her co-accused was unlawful.  Nor was it the case, as counsel for the appellant seemed to be submitting in argument, that the primary judge had directed the jury, in effect, that what counsel put to a witness in cross-examination equated to evidence given by his or her client.  The primary judge directed expressly that matters put by counsel were not evidence.  He added, quite unexceptionally, that if a proposition was put by counsel in the course of putting his client’s case, it was open to the jury to infer that what was put conformed with the client’s instructions. 

1. The jury were directed that if “force was applied” to the complainant “essentially in the way he described … then it was applied unlawfully.”  The primary judge directed that if, on the other hand, the jury was not satisfied of that or if the jury accepted that matters occurred as Mr McGrory described them or if the jury thought things might have occurred the way Mr McGrory described them, then the prosecution had not proved unlawful conduct.  His Honour concluded this part of his summing up by saying:

“So again you would have to exclude Mr McGrory’s evidence and accept that it did occur in the way that Johnno described – essentially in the way that Johnno described.  That is to say, that he was there, he was attacked and he suffered the injuries in an attempt to fight off his attackers …”  (emphasis added)

1. It does not appear to me this direction deprived the appellant of the benefit of s 271(1). If the jury accepted that events occurred essentially in the way the complainant described: “that he was there, he was attacked and he suffered the injuries in an attempt to fight off his attackers…”, the jury would necessarily have had to reject the evidence of Mr McGrory.

1. Such jury acceptance would also, necessarily, have involved the rejection of a peaceable entry of the dwelling by the appellant pursuant to a prior custody arrangement.

1. The primary judge’s direction avoided introducing unnecessary complexities into his summing up.  As Gleeson CJ and Heydon J observed in Stevens v The Queen:[6]

“In Alford v Magee it was pointed out that a trial judge is ‘charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are.’ A summing-up in a murder trial is not meant to take the form of an essay on the law of homicide, with points given for comprehensiveness. Juries decide issues of fact, not law. The task of the trial judge is to formulate for the decision of the jury the issues of fact which they need to resolve in order to return a verdict. In formulating those issues, the judge may think it appropriate to refer to legal principles by way of explanation, but the task of the jury is to decide facts”.  (citation omitted)

[6](2005) 227 CLR 319 at 326, 327.

1. The appellant’s reliance on Stevens was misplaced.  In Stevens, the primary judge’s directions were based on the accounts of the appellant to the police and the jury.[7]  It was open to the jury to reject that version of events and nevertheless acquit.[8]  The direction deprived the appellant of a chance of acquittal by these means.

   [7]Stevens v The Queen (supra) at 331.

   [8]Stevens v The Queen (supra) at 331 and 363.

1. It may be accepted that the jury was entitled to reject parts of the evidence of both the complainant and Mr McGrory and to develop from the whole of the evidence their own understanding of what took place between the complainant, the appellant and Mr McGrory. But acceptance by the jury that events occurred essentially as described by the complainant necessarily meant that the jury could not have had a view of the facts which made s 271(1) applicable.

Conclusion

1. Neither ground of appeal has succeeded and I would order that the appeal be dismissed.

1. FRASER JA:  I agree with the reasons for judgment of Muir JA and the order proposed by his Honour.

1. FRYBERG J: Holly and Johnno[9] lived together for about 15 months in 2003 and 2004.  Their daughter Bianca was born on 3 October 2004 and shortly afterwards, they separated.  An attempted reconciliation was unsuccessful.  They were, however, able to agree on shared custody of Bianca and in due course the Family Court ordered by consent that for a period which included 2008, Holly live with each of them week and week about.

   [9]I use their given and colloquial names not out of disrespect, but to humanise their story. These are the names which were used at the trial.

1. Pursuant to the order, Bianca went to live with Johnno for the week commencing 1 December 2008.  According to Johnno, at some time during that week she made an allegation against Holly at kindergarten, which resulted in an investigation (presumably by the Department of Children's Services).  Johnno used that as his justification for not returning her on 8 December.  He still had her on 18 December, the day of the offence.  That day was Holly's 23rd birthday.  Apparently she had not seen her daughter for the intervening 2½ weeks.

1. Holly did not give evidence but her father (and co-accused) Michael did so.  He testified:

“Probably after 3.30 - between 3.30 and 4 o'clock [on 17 December], we were going - Holly was driving, we were going to turn into our road, Cullen Road, when we spotted John Parsons [Johnno] on the Rossmore Road at the intersection. That’s when Holly flashed her lights and drove beside him. She had her door near his door and I think the first words basically were, ‘We’ve just been’ - well, she’s just been cleared of child safety. They've cleared her of - of his bullshit. They’ve found out he was bullshitting through his words. She wanted to get - because she asked for Bianca for - for her birthday for tomorrow. He said, ‘Yeah, you can come and get her at 4.30 [am] ’cause I'm working I've got things to do.’”

1. It is probable that the jury disbelieved at least the last two sentences of that evidence, and they may well have disbelieved it all.  Defence counsel had displayed remarkable reticence in putting the detail of the conversation to Johnno and had to be spurred by the judge.  Even then he did not put the precise place or circumstances of the conversation, nor the “first words” allegedly used.  It is not unusual for people involved in custody disputes to give evidence which is not correct. (Another example in the present case was Johnno’s evidence in cross-examination that he was hit on the head with an implement an estimated 20 times; the Crown prosecutor conceded that the jury could not accept that there had been 20 blows to Johnno's head.) It may be assumed that the jury knew this from their own experience of life.

1. But for present purposes, the correctness of Michael McGrory's evidence does not matter.  My point in referring to it is that it demonstrates the probable existence in the McGrorys of a belief in the righteousness of their cause.  That belief doubtless underlay their conduct.  In no way did it justify it.  The Family Court has procedures for enforcing its orders about children.  They do not include self-help in the form of trespass and assault.  It is important that this be generally realised.  The rule of law is a basic tenet of our society.  Holly's emotions may have been natural and understandable, but they did not justify taking the law into her own hands.  Her sentence of imprisonment for 18 months with release on parole after four months is an unfortunate consequence of her failure to appreciate these matters.  She ought to have done so: she had previously been sentenced to one year’s imprisonment for assaulting a police officer, a sentence which she had served by way of an intensive correction order.

1. Of course counsel rightly made no attempt to rely on any of these matters in the appeal against conviction.[10]  Muir JA has identified the grounds of the appeal and the reasons why they should not be accepted.  I agree with his Honour's reasons and with the order which he proposes.

   [10]An application for leave to appeal against sentence was abandoned.