R v Phillips

[2017] QCA 192

SUPREME COURT OF QUEENSLAND

CITATION:

R v Phillips [2017] QCA 192

PARTIES:

R
v
PHILLIPS, Tammy Lee-Ann
(appellant)

FILE NO/S:

CA No 325 of 2016
DC No 493 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 28 October 2016 (Durward SC DCJ)

DELIVERED ON:

5 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2017

JUDGES:

Fraser and Gotterson JJA and Henry J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by a jury of common assault and grievous bodily harm – where the appellant and the complainant were in a relationship – where the appellant assaulted the complainant with a clamp – where the appellant stabbed the complainant with a knife – where the appellant elected not to give evidence at trial – where the appellant contends that the findings of the jury were against the evidence as a whole – whether the appellant should succeed in her appeal

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – HEARSAY – PARTICULAR MATTERS – STATEMENTS AGAINST INTERESTS – ADMISSIONS – where there was a pre-trial application to exclude evidence of 000 calls made by the complainant – whether the trial judge erred by allowing the evidence – whether or not the 000 evidence came within an exception to the hearsay rule

Criminal Code (Qld), s 1

Kaporonovski v The Queen (1973) 133 CLR 209; [1973] HCA 35, applied
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, applied
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, applied

COUNSEL:

The appellant appeared on her own behalf
R J Christensen for the respondent

SOLICITORS:

The appellant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the respondent

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

1. GOTTERSON JA:  I agree with the order proposed by Henry J and with the reasons given by his Honour.

1. HENRY J:  The appellant was convicted by a jury in the Townsville District Court of two offences of violence upon her former de facto husband – common assault on 7 November 2014 and grievous bodily harm on 8 November 2014.

1. She appeals her convictions on two grounds, namely:

1.        the conviction was unreasonable and against the weight of the evidence (“ground one unreasonable verdict”); and

2.        the applications judge erred in failing to exclude evidence of 000 calls made by the appellant (“ground two failure to exclude 000 calls”).

1. There is no substance to either ground and the appeal should be dismissed.

Ground One Unreasonable Verdict

1. The task of determining whether the verdicts were unreasonable requires this court to consider whether on the whole of the evidence it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of the charges.[1]  In performing that task it is necessary to undertake an independent assessment of both the sufficiency and quality of the evidence.[2]

   [1]SKA v The Queen (2011) 243 CLR 400, 409.

   [2]Morris v The Queen (1987) 163 CLR 454, 474; MFA v The Queen (2002) 213 CLR 606, 615.

1. The appellant and her former de facto husband, the complainant, were together for 16 years.  They had two children.  By the time of the offences their relationship was breaking down and they were repeatedly engaging in heated arguments.

1. On 7 November 2014 they were arguing during the day in the backyard of their Townsville home.  On the complainant’s account the appellant, who was holding a metal G clamp, repeatedly yelled at him to “Get out” but she repeatedly stopped him when he would move to leave.  She eventually hit him on the head with the clamp and then threw it at him, striking him in the arm.  This conduct attracted the charge of common assault.

1. The complainant’s account was clearly capable of proving the charge.  His was the sole witness account of the event – the appellant did not give evidence.

1. In cross-examination, the complainant agreed there had been some pushing and shoving by him and the appellant as the argument escalated.  He agreed the appellant was wearing a leg brace.  It was suggested he had been kicking the appellant on her leg before she struck him with the clamp.  He responded, “I can’t recall doing that.  No.”  He accepted when pressed that it was possible he had done such a thing, but he maintained he could not recall doing so.

1. Police who saw the appellant the following day noticed some scratch marks on her leg, photographs of which were exhibited.  This evidence obviously could not explain the cause of the marks.

1. A dilemma for the appellant in this appeal is that she did not elect to give evidence.  There was no evidence before the jury of how the scratches were caused.  Nor was there any evidence that the appellant was kicked by the complainant before she struck him with the clamp.

1. At best for the defence case, there existed an argument the complainant’s account was unreliable.  Such an argument drew some support from the evidence of the scratched leg and the complainant’s concession of the possibility of kicking by him.  It may also have drawn support from any concerns the jury may have held about the complainant’s account of the second offence committed against him the following day but the record discloses no basis for such concern.  As will be seen, the complainant’s account of the second offence involved a candid concession of fact, and not mere possibility, of a greater degree of violence by the complainant upon the appellant the following day.  Such candour by the complainant does not bespeak unreliability.

1. The complainant’s concession of the possibility that he kicked the appellant at best gives some arguable cause for concern about the complainant’s reliability.  However, the transcript does not indicate whether he was conceding a possibility he regarded as real and significant or was merely making a generous concession to his former spouse on trial of a possibility he regarded as hypothetical and remote.  Such matters of impression turn upon subtleties not readily apparent from mere perusal of a transcript.  Nonetheless the latter impression certainly rests comfortably with other instances in the complainant’s testimony of him making concessions in cross-examination.  Ultimately, this issue is not of such concern as to raise a doubt and, in any event, it turns so much upon subtleties of impression as to be resolved by the jury’s advantage in seeing and hearing the evidence.[3]

   [3]See M v The Queen (1994) 181 CLR 487, 494.

1. The verdict of guilty of common assault was not against the weight of the evidence and was not unreasonable.

1. The offence of grievous bodily harm occurred the following day, 8 November 2014.  It involved the stabbing of the complainant in the abdomen with a knife.  The wound caused serious internal bleeding and the complainant would have died but for the performance of an emergency laparotomy and blood transfusion.  The injury unquestionably met the Criminal Code’s definition of grievous bodily harm.[4]

   [4]Criminal Code (Qld) s 1.

1. After he was assaulted on 7 November, the complainant left the house but returned at night to fetch his fishing equipment.  He went fishing and returned home at about 2 pm and slept the night in the backyard shed.  He was awoken at about 8 am on 8 November when his wife came into the shed and started repeatedly yelling at him to get out.  The complainant testified that she would not let him leave the shed when he attempted to do so.  They pushed and shoved each other in the course of the complainant repeatedly trying to get past the appellant to the shed’s doorway in order to leave.  Eventually the complainant grabbed the appellant around the throat in a choke hold in order to “slow her down” and “stop her” so he could fetch his phone and bag and leave.  He let go of the pressure to the appellant’s neck after about 10 seconds when he felt she “was starting to slip away”.

1. The complainant then turned away from the appellant, stepping back a few metres to pick up his phone and bag.  In the meantime, unbeknownst to the complainant, the appellant had moved to a position directly behind him.  When he turned around to commence walking towards the door he saw her immediately in front of him.  In the same instant he felt a quick jab and excruciating pain to his stomach.  He did not notice anything in the appellant’s hands but recalled her saying at about this time either, “I will stab you” or “I have stabbed you”.  It is apparent from the nature of the injury he sustained that he had indeed been stabbed by the appellant.

1. The police later found a black handled knife on the ground under a pallet in the shed.  It had apparent blood stains on the blade.  DNA testing of the knife detected the presence of mixed DNA likely to have come from the complainant and appellant.

1. There were no other witnesses to what occurred in the shed.  A resident who lived nearby gave evidence of having heard the sound of a woman repeatedly screaming “Get out” on an occasion in November 2014.  This could have been the occasion of one or other of the two offences but, even if it was, the evidence adds nothing material.  One of the children of the appellant and complainant gave evidence that on the morning of 8 November he heard his mother repeatedly telling his father to “Get out of the shed” in an angry voice.  He also testified his mother came inside from the shed, going upstairs, before returning downstairs with a bag of the complainant’s and going back outside.  However, it is unclear exactly when this occurred relative to the sequence of events in the shed.  His account did not bear materially upon or detract from the reliability of the complainant’s evidence of what occurred in the shed.

1. After being stabbed the complainant fell to the ground and the appellant asked him for his phone so that she could telephone the ambulance.  She telephoned 000 in a series of four calls, the recordings of which were exhibited.  The earlier calls terminated prematurely, apparently due to the appellant’s impatience with the operator’s questioning of her.  In the first call the appellant said, inter alia:

“He – he’s fallen over.  He’s stabbed – he’s stabbed in the stomach.”

1. In the second call the appellant said, inter alia:

“He’s fallen over. … and he’s been stabbed in the stomach.”

When the operator asked for clarification as to whether he was stabbed before or after he fell, the appellant responded, “Oh, no, he’s fallen.”

1. In the third call the appellant did not disclose further information.

1. The fourth call included the following exchanges:

“Appellant:…something’s pierced him in the stomach.

Operator:So he’s fallen over and landed on something?

Appellant:Yes. …

Operator:Like I said to you, we’ve already organised an ambulance.  Okay.  I just want to confirm; he wasn’t stabbed by someone, he’s fallen on something; is that right?

Appellant:Yes. …

Operator:Okay, so just reassure him that help is on the way.  Do you know what he landed on?

Appellant:No, darling. …

Operator:He was just walking.  He didn’t fall off a chair or a ladder?

Appellant:No.  Well, we did have a little bit of scuffle and he’s just fallen over. …

Operator:Is he violent?

Appellant:No … Look, we used to – no it was just [indistinct] argument.  There was a little bit of a scuffle, but it was nothing more than that.”

1. During the latter call she was also talking to the complainant who was moaning in the background.

1. The first ambulance officer on the scene acknowledged in cross-examination that when he had first asked the complainant what happened, the complainant responded that he had fallen over.  When he asked the complainant what he had fallen over or on, the complainant purportedly could not tell him.  However, it emerged in re-examination that, once they were away from the immediate presence of the appellant, the ambulance officer asked the complainant if he had been stabbed by the appellant and the complainant answered, “Yes”.  In those circumstances, the inconsistency in the complainant initialling representing the cause of his injury was from falling over – the same fiction the appellant advanced in his presence in her 000 calls – is of no material concern.

1. It was not suggested in cross-examination that the complainant had not been stabbed by the appellant or that he had fallen on the knife.  Rather, defence counsel argued, in implicit acceptance the appellant had stabbed the complainant, that the prosecution could not exclude self-defence.  The argument in short was that having been throttled by the complainant the appellant then stabbed the complainant to defend herself.

1. Again, a difficulty confronting the appellant is that she did not give evidence.  There was no evidence of her having told anyone in the immediate aftermath of the event, such as during the 000 calls, that she had acted in self-defence either.  The complainant’s candid concession of having throttled the appellant and the fact that the stabbing ensued promptly thereafter at least raised the arguable inference she may have acted in self-defence but it was hardly a compelling inference.  In the absence of some additional evidence, such as the appellant believing the complainant had turned to grab a weapon in order to further attack her, there was no evidence that the complainant was presenting any immediate danger at the time of the stabbing.  Moreover, at that time the appellant was closest to the shed door and could readily have departed from the shed, rather than grabbing a knife and moving in towards the complainant.

1. The evidence therefore readily excluded the possibility the appellant acted in self-defence.  The evidence would have provided better support for a defence of provocation, had such a defence been open at law.  However, provocation is no defence against a charge of doing grievous bodily harm because assault is not an element of the charge.[5]  The provocative circumstance that the complaint had throttled the appellant remained relevant in mitigation of penalty but that is not to the point in this appeal against conviction.

   [5]Kaporonovski v The Queen (1973) 133 CLR 209.

1. The verdict of guilty of grievous bodily harm was not against the weight of the evidence and was not unreasonable.

Ground Two Failure to Exclude 000 Calls

1. There was a pre-trial application to exclude the 000 calls on the basis they did not come within the exception to the hearsay rule as statements against interest.  Ground two complains the judge who heard that application erred in failing to exclude the evidence.

1. The prosecution did not seek to rely upon the 000 calls as containing lies evidencing consciousness of guilt but maintained they did contain statements against interest and were also relevant in rebutting an anticipated defence of self-defence.  In the end result the 000 calls were of minor relevance on the issue of self-defence in that, while they did not refer to the appellant having been throttled, the complainant gave direct evidence of that having occurred.

1. However, it is clear the 000 calls were admissible as statements against interest in that they constituted an admission by the appellant that she had been present at the time when the injury was sustained.  Such evidence aided in proof of an essential element of the charge, namely that the appellant was the person who caused grievous bodily harm to the appellant.[6]

   [6]This element was not the subject of an admission at trial.

1. It follows the 000 calls were admissible and the applications judge did not err in refusing the application to exclude them.

1. I record for completeness that the 000 calls, when considered with other evidence, tended to prove the presence of the appellant at the scene in the immediate aftermath of the stabbing through to the time of arrival of the ambulance officer.  Such evidence was itself relevant and admissible in providing circumstantial support for the direct evidence that she was the culprit.

Orders

1. Both grounds of appeal must fail.

1. I would order:

Appeal dismissed.