R v Peter James Huggett (Appellant) No. Sccrm-97-48, Scgrg-97-23 Judgment No. 6195 Number of Pages 9 Criminal Law

[1997] SASC 6195

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

DOYLE CJ, LANDER AND BLEBY JJ

Criminal law - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against conviction and sentence for assault occasioning actual bodily harm - appellant charged with three counts, the second being an alternative to the first - jury found the appellant guilty of only one count - whether the verdict of guilty was inconsistent with the verdicts of not guilty to the other charges - whether the verdict of guilty was unsafe and unsatisfactory - whether the sentence was manifestly excessive - whether the sentencing judge erred in sentencing the appellant on the basis that he did - appeal against conviction dismissed - appeal against sentence dismissed. The Queen v Kelly (1985) 38 SASR 561; Mackenzie v The Queen (1996) 71 ALJR 91; R v Kirkman (1987) 44 SASR 91; M v The Queen (1994) 181 CLR 487, applied.

ADELAIDE, 21 May 1997 (hearing), 13 June 1997 (decision)

#DATE 13:6:1997

#ADD 4:7:1997

Appearances

Appellant:

Counsel: Mr J D Lyons

Solicitors: Legal Services Commission Of SA

Respondent:

Counsel: Mr P J Rofe QC

Solicitors: DPP (SA)

Order: appeal dismissed.

DOYLE CJ

For the reasons given by Lander J, with which reasons I agree, the appeal against conviction and the appeal against sentence should be dismissed.

LANDER, J

The appellant was charged on information with three offences all of which were said to have occurred in the early hours of 27 February 1996 at Whyalla. The first count was causing grievous bodily harm with intent to do grievous bodily harm to Darryl James Huggett. Secondly he was charged with assault occasioning actual bodily harm to Darryl James Huggett and thirdly with damaging property of Darryl James Huggett namely a television and a stereo.

At his trial in the District Court a jury acquitted him of the first and third counts but convicted him of the second count. Upon his conviction he was sentenced to imprisonment for two years with a non parole period of eighteen months. The sentence of imprisonment commenced on 17 January 1997 being the date upon which he was first taken into custody.

The appellant was granted leave to appeal against the conviction on the following grounds: 1. That the verdict of guilty by the jury to the charge of assault occasioning actual bodily harm was inconsistent with their verdicts of not guilty to the charges of grievous bodily harm with intent to do grievous bodily harm and damaging property.

2. That the verdict of guilty by the jury to the charge of assault occasioning actual bodily harm is unsafe, unsatisfactory and against the weight of the evidence.

The appellant was also granted leave to appeal against the sentence imposed upon the following grounds: 1. That the head sentence and the non parole period imposed in respect of this offence was manifestly excessive.

2. That the learned sentencing Judge erred in sentencing the appellant on the basis that the jury had found proved beyond reasonable doubt that in assaulting the victim thereby causing him actual bodily harm the appellant had used an iron bar.

3. That the learned sentencing Judge erred in making a finding that the evidence satisfied His Honour beyond reasonable doubt that an iron bar had been used by the appellant.

4. The learned sentencing Judge erred in sentencing on the basis that: the case was left to the jury upon the basis that you were to be acquitted unless they were satisfied beyond reasonable doubt that you had attacked your nephew with the iron bar and that he had not been the aggressor."

As the grounds of appeal disclose the appellant is the uncle of the alleged victim Darryl Huggett. They both live in Whyalla.

The Crown case was that on the evening of 26 February 1997 the alleged victim met his uncle at a party. His uncle had his motor vehicle with him.

Darryl Huggett, who had not been drinking, offered to drive his uncle home and on the way home the vehicle was stopped, because Darryl Huggett had failed to indicate his intention to turn. He was asked to attend a police station in Whyalla for the purpose of undergoing a breath test. He did that and after the breath test showed a negative reading the police returned him to the motor vehicle but it had gone. It had been driven away by Tammy Rogers, who was a girlfriend of the appellant.

The police, after reporting Darryl Huggett in respect of his breach of the Road Traffic Act, drove him home. The police then attended at Tammy Rogers' house and defected the appellant's motor vehicle. Tammy Rogers and the appellant then went from her house to the alleged victim's house.

To this point of time there was no dispute about the facts. It is what occurred at the alleged victim's house that is in dispute.

The Crown case was that when Tammy Rogers and the appellant came to the alleged victim's home, she entered the house and told Darryl Huggett that his uncle was outside and wished to speak to him. Darryl Huggett went outside unarmed but carrying with him the traffic fine, which he intended to show to his uncle.

The allegations were that the appellant thereupon produced an iron bar and starting hitting his nephew about the head and body shouting that he intended to kill him.

The first blow struck Darryl Huggett on the head and forced him to stumble backwards onto the porch of the house where the appellant continued to beat him with an iron bar.

Darryl Huggett tried to defend himself by raising his arms and in doing so he received a number of blows to his arms. During the whole of this time it was the Crown case that the appellant was yelling that he intended to kill his nephew. Darryl Huggett, on the Crown case ran off pursued by the appellant. Darryl Huggett ran to the end of the street and then to a cousin's place. His evidence was that he heard the sound of breaking windows at the time that he was running away from the premises. He was then taken to hospital where he underwent x-rays and received treatment including stitches to the head and a cast was put upon his left arm.

He said that he received a telephone call whilst he was in the hospital and it was from his uncle who told him that if he "lagged him into the police" he would come down and finish the job.

After Darryl Huggett had received treatment he went to the police station and then to his parent's home before he returned to his own house. When he did return to his own house he said that the house was "trashed", the front and back windows of the house were smashed and a television and a stereo within the house were smashed.

Darryl Huggett's evidence was supported by the evidence of Daniel Rackley, a young man of seventeen, who was at that time living with the alleged victim and Paul Ison. He had been living with the alleged victim for about one month. He had also been to the party at which the appellant and the alleged victim met and was in fact still at the party at the time they left in the appellant's motor vehicle. He said that when they left the appellant was drunk and he was noisy and he was yelling.

He said he returned to Darryl Huggett's house at about 3.00 a.m. and Paul Ison was already there. Darryl Huggett returned home not very long after the witness and they had a conversation about the Road Traffic Act notice which he had received. He was talking to Darryl Huggett when Tammy Rogers came into the house. Paul Ison, he said, was on the telephone in the alleged victim's bedroom. Mr Rackley said that Tammy Rogers told Darryl Huggett that "Uncle Pete wants to talk to you outside". Darryl Huggett then left the house and Mr Rackley confirmed that when Darryl Huggett left the house he was carrying nothing apart from the expiation notice. In particular he was not carrying a knife.

He next heard some screaming from Darryl Huggett which sounded like he was squealing. He heard the appellant say "I'm going to fucking kill you". He stood up and looked out the door and saw the appellant standing over Darryl Huggett swinging a pole at him and hitting him. The pole was about 400mm long and steel. The alleged victim was up against the front door and the appellant, Mr Rackley said, continued to repeat the threat to which I have already referred and to hit Darryl Huggett.

He said that, at this stage, Tammy was in the bedroom with Paul Ison. Mr Rackley said that the victim eventually got free and ran off down the roadway. The appellant, he said, roared, chased after Darryl Huggett but returned to the house. The appellant asked the witness, who was standing outside the house on the front porch, whether he had any problem and the witness said no. The witness said that the appellant started smashing windows and then walked into the house and started smashing other things. When he returned inside the house he said that the stereo and the television were smashed. Moreover the spare room door had a big hole in it and the kitchen windows were smashed. These windows were additional windows to those he saw the appellant smash.

The Crown called Doctor Connolly, who examined Darryl Huggett on 27 February 1996. He also inspected x-rays which Darryl Huggett brought with him at that time.

The x-rays showed fractures of the forearm bone (ulna), the wrist (radius), and a fracture to the third metacarpal bone of the left hand. He also observed injuries to Darryl Huggett's head. There was a two centimetre long laceration on the left side of his head which had been sutured. He also observed a small bruise over the scapula area, that is the left shoulder blade area.

The witness admitted that he had little experience in fractures of this kind but the fracture of the ulna indicated to him a fairly traumatic injury because a fracture of that kind would require a good deal of force. The injuries were, in the opinion of the witness, consistent with the alleged victim being struck by an iron bar.

The appellant's case was that he started drinking shortly after opening time at the Spencer Hotel at 10.00 am that morning. He bought a bottle of Jim Beam and some coke and drank that at his nephew's place. He was then drinking with his nephew, Paul Ison and a couple of others.

Later they went to a party and enroute to that party they bought another bottle of Jim Beam. He continued to drink that during the night and supplemented the intake of alcohol with some amphetamines and marijuana.

He said he left the party at about 2.00 am with his nephew driving. The car was pulled over and the police did checks on all of the occupants of the car. His nephew was taken away for the purpose of a breathalyser and Tammy Rogers drove the car to her place. At her place the police attended and defected the car.

Because the Police had defected the car he went to Darryl's place for the purpose, as he put it in examination in chief, of abusing him and to "find out why he sent the coppers around".

When they got to the alleged victim's place Tammy yelled out "Darryl, you're a fuck-head", and "Peter wants to see you".

He said that Darryl Huggett came out of the house and as he did so the appellant lifted up his defect form and started abusing him. He said that his nephew then waved a fine in his face and the next thing the appellant saw was that his nephew had a knife in his hand which the appellant said he "went to put it in my stomach".

He said he grabbed his nephew's wrist and pulled it down very quickly causing him to drop the knife. A scuffle then took place and he and his nephew wrestled and during that scuffling and wrestling he slammed his nephew against the walls of the house. He said he grabbed the front of his nephew's head and slammed it back against the windowsill until his nephew just dropped down and yelled out "stop". The appellant immediately desisted.

He denied, at any time, that he had a steel bar.

He said that his nephew ran away. The appellant picked up the knife and ran off in the opposite direction. He went up an alley and snapped the knife in two. He later produced the knife to the police.

He said he returned to his nephew's place and spoke to Tammy Rogers and Mr Rackley. He said he was anxious to speak to his nephew because he wanted to find out what his game was and why he had been pulling a knife on him. He admitted that he rang the hospital and spoke to his nephew but denied that he threatened him.

He also denied causing any damage to the house or to the television set or to the stereo.

In cross examination of Darryl Huggett it was established that there had been previous damage to the house but he denied that the television or stereo had been previously damaged.

Evidence was led from Mr Datson on behalf of the accused that the house had suffered extensive damage a few days before this attack at the hands of Darryl Huggett himself. He had not only smashed windows of his house, but he had also smashed a window of his car. Paul Ison also gave evidence about previous damage to the house which he said occurred three or four days before the incident the subject of the charge. Mr Ison also said that there had been damage to the television and to the stereo which, he said, had been kicked around the lounge room.

Mr Ison admitted that he was in the house when the fight apparently occurred between the appellant and his nephew. He said Tammy Rogers came running into the house and informed him that Peter and Darryl were out the front having an argument. She was apparently in a bit of a panic but he told her to stay with him and relax because it was only an argument.

His evidence was that he just stayed in the bedroom the whole time and took no interest in the argument. Later that morning he got up and went fishing. He took no interest in the fight or the aftermath including the attendance of the police.

The appellant was entitled to an acquittal unless the jury preferred the evidence of Darryl Huggett and that of Mr Rackley to the evidence of the appellant and the two witnesses called on his behalf and further they were satisfied beyond reasonable doubt that each of the elements of the separate offences had been made out.

Clearly enough, having regard to the fact that the appellant was acquitted in relation to counts one and three, the jury was not so satisfied in respect of those counts. The appellant complains that if the jury was not prepared to convict in relation to those counts then it followed that a guilty verdict in relation to the other count was necessarily inconsistent.

The appellant relied upon The Queen v Kelly (1985) 38 SASR 561. In that case the appellant had been charged with two counts of rape, one vaginal and one oral, arising out of the same incident. He was acquitted of one count but convicted of the other. The complainant's case was that both acts of intercourse occurred without her consent. The accused's case was that there were in fact four acts of intercourse, all of which were consensual. It was, as Zelling J said, a question of one version against the other. The court held that the appellant had discharged the onus upon him of showing that the two verdicts were mutually inconsistent. However, the facts in that case were quite different from this case. In Kelly the jury had before it only the evidence of the complainant and the unsworn statement of the accused. The complainant's evidence was that she cried and tried to push the appellant away during both acts of intercourse which occurred together and formed one incident. The jury must have acquitted the appellant in relation to the one count because they thought it was a reasonable possibility that she consented or alternatively a reasonable possibility that he believed she was consenting. That result in relation to a part of the one incident was inconsistent with a finding that in relation to the other count the elements of rape had been proved beyond reasonable doubt.

That case is quite different to this case. In this matter the second count was an alternative to the first and only came to be considered when the jury was not satisfied beyond reasonable doubt that an element or elements of the first count had been made out.

For a conviction on the first or second counts the jury had to be satisfied beyond reasonable doubt that the appellant had committed an assault without lawful excuse. Necessarily for a conviction on either count the jury had to reject the appellant's account that he acted in self defence. In relation to that first count the Crown had to prove that the appellant had caused grievous bodily harm and that he had done so with the specific intent of causing grievous bodily harm. It may have been that the jury was satisfied to the requisite standard that the appellant had assaulted his nephew and had caused actual bodily harm but was not satisfied that the harm caused amounted to grievous bodily harm or that if it did the appellant intended to cause grievous bodily harm to his nephew. The acquittal on the first count and the conviction on the second count can logically be explained by the jury either not being satisfied that the Crown had established the specific intent required on the first count or not being satisfied that the alleged victim's injuries amounted to grievous bodily harm.

In regard to the concept of grievous bodily harm the learned trial judge initially misdirected the jury on the meaning of grievous bodily harm describing it as "serious harm, something more than just a minor injury, something of serious consequences". He was asked to redirect and did so and directed the jury in these terms:

"Perhaps I haven't stressed sufficiently that that really does mean very serious bodily harm, more than just serious if I can put it that way but really serious, very serious, that's what is meant by grievous bodily harm."

The jury retired for about an hour and then asked a question of the learned trial Judge "for clarification of the term grievous bodily harm".

His Honour said: "It's an expression, I suppose it's a bit, in terms, antequated (sic) as far as the language is concerned, but I can't really go any further than saying to you that it means really serious bodily harm and perhaps you should amend your little notes that I gave you earlier to put in each time I put in `serious bodily harm' by putting `really' in front of it. It is something that is really serious.

Whether or not the injuries that flowed here constituted really serious bodily harm is a factual question and it is for yourselves to decide. Of course, the other aspect of it is that it is relevant also to the third element, that is whether the accused had the intention of doing really serious bodily harm at the time. I can't take it any further than that. That's the expression the law uses to explain it. If I go further, I will probably only make it more confusing for you I think. It is bodily harm, that is really serious. That is the test."

I think it is more than possible that the jury was unsure whether the injuries suffered by the alleged victim fitted the description of grievous bodily harm and in those circumstances brought in a verdict of acquittal on that charge. However the jury was satisfied that the injuries amounted to actual bodily harm. I do not believe that the two verdicts are logically inconsistent or indeed even inconsistent. It was not inconsistent to acquit on the first count and convict on the second count. Indeed he was charged in the alternative in case the Crown could not establish the further elements of the first count.

The jury also acquitted the accused of damaging property. The property, the subject of the charge, was the television and stereo. The alleged victim did not claim that he saw those articles damaged. He did however say that they were damaged when he returned to the house.

Mr Rackley also did not claim to have seen the two items damaged, although he said he heard the noise of the stereo breaking.

There was evidence that the alleged victim's house and car had been extensively damaged in the few days prior to this incident by the alleged victim himself. Moreover there was evidence that items within the house had previously been damaged. The alleged victim readily admitted that. Indeed he admitted that a television had been previously damaged and a stereo was not in working order. However it is right to say that he did maintain that a television and stereo were damaged this night. There was evidence from the accused and two other men, Messrs Datson and Ison, of damage done to the alleged victim's house prior to this night. There was some confusion as to the extent of that damage. It is quite possible that whilst the jury was prepared to accept the evidence of the alleged victim and Mr Rackley in relation to the assault, the jury was not satisfied beyond reasonable doubt that the appellant had caused the damage to the alleged victim's house and moreover the damage to the television and stereo the subject of the charge. A finding that that charge was not made out beyond reasonable doubt is not, in my opinion, necessarily inconsistent with a conviction on the second count.

In MacKenzie v The Queen (1996) 71 ALJR 91 the majority (Gaudron, Gummow and Kirby JJ) said in discussing inconsistencies arising in the jury verdicts upon different counts: "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."

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."

Their Honours expressly approved the "practical and sensible" dictum, of King CJ, in R v Kirkman (1987) 44 SASR 591 at 593:

"juries 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."

I am not convinced that the verdicts are inconsistent. I believe that the jury approached its task in the correct manner dealing with each count separately. It failed to convict the appellant on counts one and three for the reasons mentioned. The jury simply was not satisfied that those charges had been established to the requisite level of satisfaction. The appellant's claim that the verdict on the second count must be set aside because it is inconsistent with the verdicts on the first and third count fails. It remains to be seen however whether the verdict is supported by the evidence.

I believe there was sufficient evidence to establish the guilt of the appellant upon the charge of which he was convicted.

The uncontradicted evidence was that he was drunk and under the influence of drugs. His nephew's disclosure of his whereabouts brought the police to Tammy Rogers' house for the purpose of defecting the appellant's car. That made the appellant particularly angry and he went to his nephew's place for the purpose of abusing him.

The medical evidence is consistent with the application of considerable force to the alleged victim's body by a weapon like a steel bar. He suffered fractures consistent with the application of blunt force to the arm. There is therefore objective evidence from which the jury could have inferred that the alleged victim's account of the attack upon him was accurate.

That evidence and the evidence of the alleged victim and Mr Rackley was more than sufficient to support the conviction on count two.

This Court has been asked however to conclude that, notwithstanding there is evidence to support the verdict, the verdict is unsafe and unsatisfactory: M v The Queen (1994) 181 CLR 487.

The Court is obliged therefore to ask itself whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. I believe that it is not possible to say that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Whilst there are some minor inconsistencies in the evidence of the alleged victim and Mr Rackley I do not accept that the evidence lacks credibility so as to allow it to be said that it would not support the conviction. I believe that the verdict arrived at on count two is not unsafe or unsatisfactory. For those reasons, in my opinion, the appeal against conviction ought to be dismissed.

In his sentencing remarks, the learned sentencing Judge said that he would proceed upon the basis that the appellant attacked his nephew about the head and upper body with an iron bar. He said that that was his interpretation of the verdict of the jury but moreover, as far as he was concerned, the evidence satisfied him beyond reasonable doubt that that was the case.

It was put on behalf of the appellant that His Honour ought to have proceeded upon the basis that the assault occurred without the appellant using an iron bar. I reject that submission. There is no reason to think that the jury reached its conclusion except upon the Crown case and that was that the victim suffered his injuries at the hands of the appellant whilst using an iron bar. I think, with respect, that the learned trial Judge was right to proceed upon the basis that he did which was of an assault by use of an iron bar but without any intention to cause really serious harm or alternatively that the victim's injuries did not amount to really serious harm. I believe therefore the learned trial Judge was right when he said:

"there can be little doubt that the jury must have been satisfied that you attacked your nephew about the head and upper body with an iron bar."

The appellant at the time was thirty years of age and had been living in a stable relationship for the two years prior to the offence. He was at the time of the offence and at the time of sentencing taking responsibility for the care of his ageing father who was then in poor health.

The appellant has a very poor record. He has been convicted of a number of offences since he turned eighteen years of age.

His convictions include a number of house breaks and building breaks and offences relating to possession of drugs and motor vehicle offences. He has also been convicted of damaging property in February 1989, common assault in December 1984, assault occasioning actual bodily harm in June 1989 and carrying an offensive weapon in November 1988 and May 1994.

The circumstances of this offence were serious and the victim suffered serious injuries including a number of fractured bones.

I do not accept that it is possible to say that a sentence of imprisonment of two years with a non parole period of eighteen months was manifestly excessive.

In my opinion the appeal against sentence also ought to be dismissed.

BLEBY J

I agree.