R v Morton

[2001] QCA 240

SUPREME COURT OF QUEENSLAND

CITATION:

R v Morton [2001] QCA 240

PARTIES:

R
v
MORTON, Darren James
(appellant)

FILE NO/S:

CA No 49 of 2001
DC No 12 of 2000

DIVISION:

Court of Appeal Cairns Circuit

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Innisfail

DELIVERED ON:

22 June 2001

DELIVERED AT:

Cairns

HEARING DATE:

18 June 2001

JUDGES:

McMurdo P, Davies and Thomas JJA
Judgment of the Court

ORDER:

1.   Appeal allowed.

2.   Conviction set aside.

3.   Order for a new trial.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where appellant charged with alternative offences of doing grievous bodily harm and of unlawful assault causing bodily harm as initial doubt as to whether injury constituted grievous bodily harm – where only question before jury became whether or not appellant was guilty of grievous bodily harm – whether trial judge erred in informing jury that the appellant would not be prosecuted again on any other charge – whether trial judge erred in refusing to direct jury that the question of what if any other charges may be brought against the appellant was irrelevant – whether trial judge erred in direction to jury in respect of s 272 of the Criminal Code

Criminal Code, s 272

Lucas v The Queen (1971) 120 CLR 171, considered
R v Maloney [2000] QCA 355; CA No 69 of 2000, 1 September 2000, considered

COUNSEL:

J D Henry for appellant
S G Bain for respondent

SOLICITORS:

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

1. THE COURT:  On 22 February last the appellant was convicted in the District Court at Innisfail of doing grievous bodily harm to Sharon Rose Wallace on 5 July 1999.  He was then sentenced to 18 months imprisonment.  He appeals against that conviction.

1. The complainant and the appellant had been in a de facto relationship for about three years.  They then separated but continued to see one another from time to time.  On the night before the commission of the offence the subject of this appeal they had slept together.

1. On the evening of the offence the complainant had cooked dinner and was consuming Lambrusco wine with a female friend.  The appellant, who had been drinking with a number of male friends in the house, joined them in drinking the Lambrusco after his male friends left.

1. The only evidence which the Court heard of the circumstances of the offence were from the complainant.  The appellant did not give evidence.  The only other witness at the trial was a medical practitioner on the question whether the complainant’s injury constituted grievous bodily harm.  The complainant’s evidence of those circumstances was as follows:

"Darren came in and leant on the kitchen bench … and then he started accusing me, saying to leave his brother alone.  I couldn't work out what he was going on about that.  Three days before that we were getting on fine … All I know is that Darren came into the kitchen and he kept going on and on.  It was just going in my head, because it was really banging in my head, just these words going on and on, it really pissed me off because we were getting for three days … When he came into the kitchen … he punched me … on the side of the face … When he turned his back I grabbed the kitchen knife and I slashed him on the right side … He was heading back out into the kitchen – there is another sort of other living area there … After I sliced him, then – and then he punched me – then after the second punch I don't recall."

1. The complainant in the course of cross-examination gave some answers from which it might be inferred that, after the complainant "sliced" the appellant he punched her twice, not once as we would infer from her evidence-in-chief;  and the learned trial judge appears to have directed the jury on that assumption.  However we do not think it matters, for the purposes of this appeal, whether only one or two further punches were delivered.  The appellant has appealed on five grounds covering three separate matters.

The first matter

1. Grounds (a) and (b), which relate to the first matter, are in the following terms:

"(a)       That her Honour erred in informing the jury that the appellant would not be prosecuted again on any other charge in respect of the episode which they were considering;
(b)         that her Honour erred in refusing to direct the jury that the question of what, if any other charges the appellant might face in relation to the episode was irrelevant."

1. The indictment on which the appellant was charged, charged him with alternative offences of doing grievous bodily harm and of unlawful assault causing bodily harm.  The alternative charge was included because there was initially some doubt as to whether the injury which the complainant suffered, in substance a fractured left cheek bone, constituted grievous bodily harm.  Once the medical practitioner had given evidence that was conceded.  Moreover because it was uncertain which of the two or three blows caused that injury, the prosecution had to rely on all of them to prove grievous bodily harm and the only question before the jury was whether or not the appellant was guilty of grievous bodily harm.  The verdict of assault occasioning bodily harm was no longer open.  All of that was common ground below and in this Court.

1. The grounds of appeal arise from two answers which her Honour gave to questions which the jury asked.  After addresses, but prior to summing up, the jury asked:

1.          Is the only charge assault causing grievous bodily harm?

2.          If the accused is found innocent of this will the charge of bodily harm be brought?

1. In response to the first question her Honour told the jury that the prosecution was not proceeding with the charge of assault occasioning bodily harm and that the only charge it had to consider was the charge of grievous bodily harm.  That was a correct answer and no issue is raised in respect of it.  However defence counsel objected to the second question being answered, contending that it was irrelevant and that such a consideration should not be allowed to affect the jury's deliberations.  Her Honour rejected that submission and proceeded to answer the second question.  In answer to the second question her Honour said:

"I can essentially say no.  This proceeding should finalize everything as far as the accused is concerned.  So your verdict will finalize the matters."

1. Mr Henry for the appellant makes two criticisms of this answer.  The first is that it is wrong as a matter of law.  It was legally open to the Crown, he submits, to proceed later with a charge of assault occasioning bodily harm in respect of the first punch delivered because the defence which was open in this case in respect of the second and possible third punch of self-defence was not open in respect of the first punch.  Secondly, he submits, the answer could have led the jury into error.  Her Honour should have simply informed the jury, he submits, that what might happen subsequently was irrelevant to their consideration.

1. It is true that the alternative charge does not come within the provisions of s 17 of the Criminal Code.  Specifically, once the medical practitioner's evidence was given and the concession, in effect, made that the complainant's injury consisted of grievous bodily harm, the appellant could not have been convicted on the indictment of the offence of assault occasioning bodily harm.  But in the course of argument Mr Henry quite properly conceded that, from a practical point of view, it was highly unlikely that the appellant, whether convicted or acquitted of grievous bodily harm, would ever be proceeded against for assault occasioning bodily harm in respect of the first punch.  Indeed, in our opinion, it is almost inconceivable that that could occur given that the prosecution, as it had to, had relied on the first assault as one of the acts which together constituted grievous bodily harm.

1. In that event it seems to us that her Honour's answer was correct.  She was not concerned so much to state the strict legal position.  What the jury asked was whether a further charge will be brought and her Honour answered, correctly in our opinion, that it would not.

1. Mr Henry's second criticism raises a greater problem.  The jury had heard read out to them the alternative charges of grievous bodily harm and assault occasioning bodily harm.  Then, no doubt, they had heard both counsel address on the basis that the only matter before them was grievous bodily harm.  Their questions indicated that they were plainly concerned to know, not only whether the only verdict which they could reach was guilty or not guilty of grievous bodily harm, but also whether, if they acquitted the appellant of grievous bodily harm he might still face a charge of assault occasioning bodily harm.

1. One possible explanation for their second inquiry – indeed it may be, as Mr Henry submits, the most likely reason – was that they were concerned to know whether, if they acquitted on the charge of doing grievous bodily harm, the appellant might still face a charge of assault occasioning bodily harm in respect of the first punch for which there could be no defence based on self-defence.  And they might have had in mind convicting on grievous bodily harm only because, if they didn't, he would never be convicted in respect of an assault for which he had no defence.

1. There were therefore two possible errors in her Honour's answer to the second question.  The first was to embark on the consequences of a verdict of not guilty whether or not to do so might lead the jury into error.  The second was that, in this case, it might have led the jury into error in that they might have convicted of an offence greater than that which they thought was properly justified only because they were told that he could never be convicted of a lesser offence of which they considered him guilty.

1. As to the first of these, it is, in general, unnecessary and undesirable that a jury be informed of the consequences of a verdict of not guilty.[1]  But to do so does not necessarily amount to a misdirection justifying setting aside the conviction.  There are some, though few circumstances in which it is desirable to inform the jury of the consequences of a verdict of not guilty.  This was not one of them.  But even where, as in this case, to so inform the jury was neither necessary nor desirable, to do so may not result in any possibility of prejudice to the accused.

   [1]Lucas v The Queen (1971) 120 CLR 171, 174 – 175; R v Maloney [2000] QCA 355; CA No 69 of 2000, 1 September 2000 at [3], [4] (Pincus JA) [18], [19], [20], [21] (Thomas JA), [27] (Moynihan J).

1. In the present case however we think that her Honour's answer did give rise to that possibility.  There is a real risk, in our opinion, that the jury convicted of grievous bodily harm only because they did not consider that the appellant should go free of any conviction and had been told that he could not be convicted now of assault occasioning bodily harm, the offence on which they would have convicted if they could have done so.  In other words there is a risk that her Honour's answer led the jury into the error of convicting the appellant of an offence more serious than that of which they considered him guilty.  For that reason we think that her Honour's answer to the second question amounted to a misdirection which justifies setting aside the verdict and ordering a new trial.

The second matter

1. Grounds (c) and (d) are:

"(c) That her Honour erred in directing the jury in respect of s 272 of the Criminal Code that the assault on the appellant "with such violence as to cause reasonable apprehension of grievous bodily harm" was the act of slashing with the knife.
(d)        That her Honour erred in declining to direct the jury that the assault on the appellant "with such violence as to cause reasonable apprehension of death or grievous bodily harm" was the combined activity of the act of slashing with the knife and the act of then following after the appellant whilst still in (probable) possession of the knife."

1. The direction complained of in ground (c) occurred in the course of her Honour's explanation of the definition of self-defence.  After reading out the Code definition of self-defence her Honour said:

"It is the fact situation, as alleged by the defence, and that is, firstly, Darren Morton assaulted Sharon Wallace, he unlawfully assaulted her – that was the first punch.  Secondly, as a result of that, she assaulted him back – that is the slashing with the knife ("slicing" is the word she used) on his back.  Thirdly, that that violence by her was such as to cause him reasonable apprehension that he was going to be killed or suffer grievous bodily harm, bearing in mind that definition of grievous bodily harm that I mentioned to you."

1. The complaint of the appellant, as appears from ground (d), is that the assault which gave rise to the defence of self-defence was not only the slashing with the knife but the combined activity of that slashing and the act of following after the appellant whilst still in probable possession of the knife.  That may be accepted.  And no doubt it would have been better had her Honour, in her explanation of the definition of self-defence, added to the second element the fact that the complainant followed the appellant whilst still probably holding the knife.  However when expanding on this second element her Honour added this further fact.  She said:

"She picked up the knife and, after he had turned away, she sliced him on the back.  She then followed him continuing with the argument, the verbal argument.  So you must set it in that context when you are considering the question of self-defence.  You have to consider what was reasonable behaviour on the part of the accused in the context, in those circumstances in which he found himself."

1. A little later her Honour said:

"With respect to the question of self-defence, the defence argues that even if you accept her account, she admits that there was initially a mutually abrasive argument;  that after the initial punch to her, even when he had turned and was going away, she slashed him with a knife, that she continued to follow him.  There was still a verbal altercation going on and that, on her evidence, he turned and the blows came very quickly.  The defence argues that the two quick punches to her face, when faced with the possibility that she was still wielding the knife, was a reasonable response."

1. In our opinion, in the light of those further statements, the jury could have been in no doubt that they were being asked to consider self-defence in response to the fact that the complainant was still pursuing the appellant, possibly with the knife still in her hand, as well as the fact that she had already slashed him on the back with that knife.

1. In those circumstances, in our opinion, the earlier failure to mention the fact that the complainant followed the appellant, possibly with the knife in her hand, when explaining the definition of self-defence was not an error which justifies setting aside the verdict;  nor was it necessary for her Honour, in the light of those explanations, to give the redirection sought.  Grounds (c) and (d) must therefore fail.

The third matter

1. Ground (e) alleged:

"(e)       The conviction is unsafe and unsatisfactory, particularly in that a properly instructed jury acting reasonably could not have concluded that the defence of self-defence had been excluded."

1. Mr Henry's point is that the complainant's account of events could not exclude the conclusion that the appellant quickly turned and punched the complainant believing, after she had slashed him with the knife and continued to come after him with it, that he was going to suffer death or at least grievous bodily harm.  We do not think that is correct.  The jury may have thought that the appellant had no such concern, whatever the complainant may have intended.  The jury had the advantage, which this Court has not, of observing the complainant and assessing her realistic capacity to inflict any serious injury to the appellant and of observing the appellant and his apparent physical capacity to prevent the complainant from inflicting any serious injury to him;  and they observed the scar to the appellant's back resulting from the complainant's slashing with the knife.  These are all observations from which the jury were entitled to infer that the appellant had no real concern that he was going to suffer death or grievous bodily harm from the complainant.

1. We therefore do not think that the verdict was unsafe or unsatisfactory and we would reject ground (e).

1. However it follows from what we have said earlier that, upon grounds (a) and (b) we would allow the appeal, set aside the conviction and order a new trial.

Orders

1.          Appeal allowed.

2.          Conviction set aside.

3.          Order for a new trial.