R v Ram

[2004] QCA 466

SUPREME COURT OF QUEENSLAND

CITATION:	R v Ram [2004] QCA 466
PARTIES:	R v RAM, Vijay (appellant)
FILE NO/S:	CA No 254 of 2004 DC No 265 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Gladstone
DELIVERED ON:	3 December 2004
DELIVERED AT:	Brisbane
HEARING DATE:	26 November 2004
JUDGES:	McMurdo P, Williams JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – appellant convicted of assault occasioning bodily harm whilst armed with a dangerous instrument – assault against appellant's de facto partner – appellant contends that jury should not have accepted the complainant's evidence because she had been drinking and was unreliable – appellant contends that complainant's injuries occurred when she fell over onto scrap metal – appellant complains that weapon was not tendered at trial – whether the complainant's injuries were consistent with assault alleged – whether the verdict was unreasonable or not supported by the evidence
COUNSEL:	The appellant appeared on his own behalf R G Martin for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P:  The appellant, Mr Ram, is self-represented in this appeal.  He was charged with two counts of wilful damage, one count of unlawfully doing grievous bodily harm and one count of assault occasioning bodily harm whilst armed with a dangerous instrument.  He pleaded not guilty and after a trial was acquitted of the first three counts but convicted of the last.  He now appeals against his conviction on that count, contending it is unsafe and unsatisfactory. 

1. The particulars of this contention as set out in the grounds of appeal are:

"(2)  No weapon was produced in court.  (3)  The cuts were not consistent with one produced by a threaded bar.  (4)  The cuts were consistent with one falling on scrap metal.  (5)  One will not survive if hit on the head or its side.
(6)  Senior Constable Hogan who was supposed to give evidence if [sic] not make herself available.
(7)  No expert was called to say what caused the cuts.
(8)  The medical test results show the status of my health during that period."

1. The prosecution case on the sole count on which Mr Ram was convicted was that he repeatedly hit the complainant, Ms Kippe, with pieces of wood and steel and caused all the injuries she suffered on Sunday, 13 July 2003, other than the knee injury the subject of the grievous bodily harm charge on which he was acquitted. 

1. From his grounds of appeal and his written and oral submissions, his contentions are primarily that the jury should not have accepted the complainant's evidence because she was unreliable; she had been drinking and they could not be satisfied beyond reasonable doubt that her injuries did not occur when she fell over.  He emphasises that the police investigation was not well conducted and that they should have found and produced to the court stainless steel paddle wheels used for aerating water on the prawn farm on which she fell and was injured; nor did they produce the weapons with which Ms Kippe said he was armed.  He contends that had Ms Kippe been injured with a threaded metal bar, her injuries would have revealed the pattern of the thread.  He emphasises that Ms Kippe had been violent to him in the past and this supports his contention that she was violent to him on this occasion.  He contends that evidence which helped his case at the committal proceedings was not given in the trial, especially that of police officer Hogan.  Hogan, he claims, conspired with the complainant to put Mr Ram's blood-testing meter for diabetes in his property at the watch house after Ms Kippe had earlier stolen it from him; because Hogan was not called at trial, his counsel was unable to cross-examine Hogan about the conspiracy. 

1. A consideration of all these contentions requires a review of the evidence.  Ms Kippe gave evidence she met Mr Ram in about 1991.  She was a school teacher and was having difficulty finding accommodation.  He allowed her to live at his property where he had converted railway carriages into a dwelling.  They developed a de facto relationship and Ms Kippe lived with Mr Ram on the property for 11 years until July 2003 when she retired as a school teacher because of ill-health arising out of a head injury received in an earlier car accident.  She said she invested about $250,000 of her savings and worked physically hard to develop a prawn farm on the property.  Their relationship included occasions of violence, mostly from Mr Ram to her after he had been drinking, but on one occasion she agreed she was violent towards him, hitting him on the head with a golf club.  Early in 2003 she realised that the prawn farm would not be viable and they argued.  Ms Kippe temporarily left the property but when Mr Ram agreed to sell it to pay out another investor and her she returned.  Sometimes they both drank to excess.  Their relationship was then apparently peaceful enough until Saturday, 12 July 2003 when they again argued.  She left to attend a birthday lunch for a friend, Mr Egert, where she drank about two glasses of wine.  When she returned she accused Mr Ram of interfering with and stealing her property.  He approached her with a thin, threaded metal bar in one hand and a wooden stick in the other.  She fled but he caught her and beat her with the weapons.  She tried to defend herself but he hit her repeatedly about the head, arms, legs and body, both before and after she fell to the ground.  She suffered extensive painful injuries but struggled to a neighbour's residence for help.  She was treated at hospital where she stayed overnight. 

1. The neighbour, Mr Green, gave evidence of her obvious injuries and distressed condition when she came to him for help in the early afternoon.  Photographs of her extensive injuries were tendered.  In addition to the injuries described by the doctor below, they showed significant bleeding from the head and facial lacerations and extensive bruising of the buttocks. 

1. Dr Gouweloos treated her at hospital.  Apart from the fracture to the kneecap which constituted the offence of grievous bodily harm on which Mr Ram was acquitted, he also noted bruising to the legs, a fracture to the left fibula, bruising to the right arm, bruising and swelling to the left orbit, a laceration to the right temple requiring five sutures, and a laceration to the scalp four centimetres long requiring eight sutures.  There were three large bruises on the right forearm consistent with her defending blows with the dominant arm.  Her knees were bruised red with severe purple bruising below the left knee.  The injuries were consistent with having occurred in the manner she described.

1. Before the close of the Crown case, the prosecutor tendered a report from psychiatrist Dr Alroe dated 20 August 1996 and a report from the Rockhampton District Mental Health Service dated 24 January 1997 as to Ms Kippe's mental health following the car accident mentioned earlier.  The latter report included the opinion that she then suffered "an organic brain syndrome with impairment of memory, concentration, affective of expression, impulse control and social judgement.  Her affect is fatuous, labile and shallow.  She is never able to give any reliable or detailed information and appears to have little sequential memory of events on a day to day basis.  She appears to have complete amnesia for specific behaviours described by her friend."[1]

   [1]It is clear from the details in the report that this friend is Mr Ram.

1. Mr Ram gave evidence of a quite different series of events.  He said that Ms Kippe was at fault both for the previous episodes of domestic violence and this episode.  When she returned from lunch she drank more wine.  She first struck out at him causing him some injuries.  She was hurt only as a result of her repeated falls onto concrete steps, a table, pieces of metal and steel paddle wheels near her railway carriage.  He attributed her falls to her having drunk alcohol to excess.  He was very ill and weak from diabetes and did not and was physically unable to cause her injuries.

1. The learned primary judge in her summing-up made it abundantly clear to the jury that it was a question for them to determine whether they accepted the complainant's evidence beyond reasonable doubt and that if they thought things could have happened in the way described by Mr Ram or if they had a reasonable doubt about how things happened, then they must acquit him on this count.

1. Her Honour also reminded the jury of the 1996 and 1997 psychiatric reports which recorded that Ms Kippe had suffered head injuries in a car accident in 1995 and as a result had an organic brain syndrome; she was then unable to give reliable or detailed information, appeared to have little sequential memory of events on a day to day basis and was also suffering from a secondary depressive illness.  Before acting on her evidence, they must be satisfied not only that she was truthful but that she was giving accurate information; whilst the jury could act on her evidence if convinced of its accuracy, it would be dangerous to convict on her evidence alone without other evidence to support it.  In a redirection her Honour again emphasised the psychiatric reports and urged the jury to read them and make their own assessment. 

1. Her Honour pointed out that the prosecution claimed Ms Kippe's evidence was supported first, by the photographs of her injuries, which were clearly not self-inflicted; second, by the medical evidence of her injuries when she was treated at hospital by Dr Gouweloos on the date of the offence; third, by her condition described by Mr Egert when she left the hotel after drinking two and a half glasses of wine with lunch as "happy but not disorderly"; and fourth, by the evidence of the neighbour, Mr Green, who saw Ms Kippe in the early afternoon, distressed and badly injured.

1. Her Honour next emphasised to the jury that the defence case was that they could not accept Ms Kippe's evidence as reliable because she was not only unwell mentally but she was a heavy drinker who played down the amount she drank; she had been at the hospital before in relation to her alcohol consumption; she had admitted to being violent to Mr Ram in the past when she hit him on the head with a golf club; her heavy drinking and brain damage made her fall over, injure herself and wrongly blame Mr Ram, who was smaller than Ms Kippe; Ms Kippe's evidence that Mr Ram caused her injuries could not be accepted beyond reasonable doubt.

1. The prosecution case against Mr Ram was strong.  The photographs of the complainant's injuries and their description provided by the treating doctor were not consistent with her injuries occurring in a drunken fall or falls; they seemed much more consistent with the complainant's evidence.  It was obvious to the jury that no weapons were tendered in court.  If anything, this favoured Mr Ram's case;  it did not require the jury to acquit him.  Mr Ram gave evidence that the injuries received were inconsistent with having been caused by a threaded bar.  The jury were able to view the photographs, consider all the evidence and draw their own conclusions.  They plainly preferred the complainant's version, as they were entitled.  As to Mr Ram's contention in his oral submissions that Ms Kippe would not have survived had she been hit on the head with a metal pole, this was also a matter for the jury to assess; the answer to this contention will always depend on variables such as the amount of force used, the weapons, matters peculiar to the victim, and where the blows fell.  The jury were not required to reject the complainant's version on this ground.  The transcript shows the decision not to call Senior Constable Hogan was made with the agreement of Mr Ram's counsel at trial.  That seems to have been an eminently reasonable course.  Mr Ram, who has showed himself in his conduct of this appeal not to be reticent in speaking his mind to judges, did not raise any objection to it and nor has he demonstrated that the failure to call police officer Hogan for cross-examination about an unlikely conspiracy theory not raised at trial has resulted in a miscarriage of justice.  This contention is also without substance.  Contrary to Mr Ram's submissions, it was not essential for the Crown to call an expert witness to establish the cause of the injuries to the complainant but here Dr Gouweloos's evidence was that the injuries were consistent with being caused in the manner Ms Kippe described.  As to Mr Ram's ill-health so incapacitating him at the time of the offence that he was physically unable to commit it, he gave this evidence before the jury and they rejected it.

1. The matters of substance raised by Mr Ram on the appeal were all issues at the trial.  The jury were entitled to and did reject them.  He has raised many other minor complaints but none have merit.  The jury were given careful warnings about scrutinising Ms Kippe's evidence carefully because of her mental condition.  They clearly did so as demonstrated by their verdicts of not guilty on three counts. On the offence of assault occasioning bodily harm, however, other objective evidence provided compelling support for Ms Kippe's account and was inconsistent with Mr Ram's version that these extensive injuries occurred only through her constant drunken falls.  After reviewing the whole of the evidence, the jury were entitled to conclude beyond reasonable doubt that Mr Ram was guilty of assaulting Ms Kippe and causing her bodily harm whilst armed with a dangerous weapon.

1. I would dismiss the appeal.

1. WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of the President and I do not wish to add anything thereto.  I agree with what is said therein and with the orders proposed.

1. PHILIPPIDES J:  I agree for the reasons stated in the judgment of the President that the appeal against conviction should be dismissed.