R v Robertson

[1993] QCA 514

IN THE COURT OF APPEAL  [1993] QCA 514

SUPREME COURT OF QUEENSLAND            C.A. No. 384 of 1993

Brisbane

[R. v. Robertson]

T H E  Q U E E N

v.

LOUISE ALEXANDRA ROBERTSON     (Appellant)

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THE PRESIDENT
  PINCUS J.A.
  DAVIES J.A.
_________________________________________________________________

Judgment delivered 09/12/1993

REASONS FOR JUDGMENT - THE COURT
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APPEAL AGAINST CONVICTION DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.
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CATCHWORDS:   CRIMINAL LAW - INCONSISTENT VERDICTS - Appellant convicted of assault occasioning bodily harm whilst in company but acquitted of entering a dwelling house with intent to commit an indictable offence and extortion - Whether verdicts inconsistent

CRIMINAL LAW - SENTENCE - Applicant convicted of assault occasioning bodily harm whilst in company - Conviction recorded and released upon entering into recognisance in sum of $1000 for 2 years - Whether conviction should have been recorded

Counsel:Mr Butler for the Respondent

Mr Rafter for the Appellant

Solicitors:Director of Prosecutions for the Respondent

Legal Aid Office for the Appellant

Date(s) of Hearing: 6 December 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND            C.A. No. 384 of 1993

Brisbane

BeforeThe President

Mr Justice Pincus

Mr Justice Davies

[R. v. Robertson]

T H E  Q U E E N

v.

LOUISE ALEXANDRA ROBERTSON     (Appellant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 09/12/1993

The appellant was convicted in the District Court at Brisbane on 1 October 1992 of assault occasioning bodily harm whilst in company (count 2).  She was released upon entering into a recognisance in the sum of $1,000 for two years and a conviction was recorded against her, this being pursuant to s. 32 of the Penalties & Sentences Act.  She appeals against that conviction and seeks leave to appeal against that sentence.

The appellant had been indicted on two other counts, entering a dwelling house with intent to commit an indictable offence (count 1) and extortion (count 3).  She was acquitted on both of these.  It was the alleged inconsistency between the verdicts on each of these counts and that on the count on which she was found guilty which was the main basis for the argument on appeal. 

The complainant, Dieter Meeko, and the appellant had a short business and personal relationship which ended in March 1991.  During the course of that relationship, on 7 January 1991, the appellant paid $10,000 to Meeko for a half share in his business.  Shortly after that, on 14 January 1991, she gave notice that she wished to withdraw from that business and consequently to obtain the return of her money.  Meeko said that he was then unable to pay that money back to her but that he paid $1,000, saying that he would pay the balance when he was in a position to do so.  He had not done so by 7 December 1991, the date of the events which gave rise to the present charges.

At about 6.15 a.m. on that morning, which was a Saturday, Meeko answered a knock at the door of his apartment, having first looked out his kitchen window to observe the appellant, but no-one else, there.  When he opened the door two men, whom he had never seen before, entered his apartment.  He swore that they then commenced to assault him.  In this he was supported by a woman called Susan Dabanon, an occupant of Meeko's apartment.  Meeko swore that the appellant then also entered the house.  In this his evidence was not supported by Ms Dabanon, whose evidence was generally to the effect that the appellant remained at or about the doorstep of the apartment.

Meeko swore that after the two men had assaulted him for some time the appellant said to him: "You just have to sign something and then they stop hitting you."  Ms Dabanon, on the other hand, did not hear the appellant say anything although she observed that the men had a piece of paper with them.

The three men then moved out to a balcony which Mr Meeko's apartment shared with other apartments and the occupant of an adjoining apartment, Ms Mayze, observed a scuffle between the three men on that balcony.

The appellant was interviewed by the police and gave evidence at the trial.  There was no significant inconsistency between what she said to the police and the evidence which she gave at trial.  She said that she took two men with her to Meeko's apartment because he had previously been violent and had threatened her.  She claimed to be able to remember only the Christian names of her two companions.  She said that she had gone to see Meeko on the morning in question about the debt to "try to come to some arrangement".  She said that she had taken with her a transfer paper for the exchange of a horse in discharge of the debt.  Her version was that when Meeko opened the door he pushed her and her two companions grabbed hold of him.

Grounds 1 and 2 in the notice of appeal contended that the verdict on count 2 was inconsistent with those on counts 1 and 3.  It was common ground before this Court that the explanation for the acquittal on the charge of extortion is the favourable direction on this count given by the learned trial judge to the jury.  His Honour said if the jury found the appellant to have had a reasonable or probable cause for making the demand, the offence of extortion could not be made out, notwithstanding that a threat or force was used to make the demand.  The respondent submitted that this was a direction which was unduly favourable to the appellant.  It is not necessary to resolve that question.  It is sufficient to say that, in the light of the uncontradicted facts that Meeko owed, and had failed to pay, a substantial sum of money to the appellant, that direction satisfactorily explains the verdict of acquittal on that count.

On the count of entering a dwelling house with intent to commit an indictable offence, it was not necessary for the Crown to prove that the appellant entered Meeko's apartment.  It would have been sufficient for the jury to have been satisfied beyond reasonable doubt that she had procured her two companions to enter Meeko's apartment in order to assault him.  Nevertheless the jury may have been satisfied that the appellant intended her two companions to assault Meeko but not to enter his apartment in order to do so.  Her remaining, on Ms Dabanon's evidence, at the doorway of the apartment may have been some support for this conclusion.

Mr Rafter, for the appellant, accepted that, in order to show inconsistency in the verdicts, he must establish that no reasonable jury who have applied their minds properly to the facts in the case could have arrived at the conclusion which they did.  In our view a reasonable jury properly applying their minds to the facts could have reached the verdicts which this jury did on counts 1 and 2 on the basis referred to above.  Consequently the first two grounds of appeal must fail. 

Ground 4 contends that the trial judge erred in law in failing to direct the jury on the question of self-defence.  However, prior to the summing up, the learned trial judge invited defence counsel to indicate the defences to be relied on.  He did not indicate self-defence.  He was then specifically asked by the judge:

"You are not suggesting self-defence or aiding in self-defence?  You are not asking the jury be addressed on that aspect?

Mr Smith -- No."

Mr Rafter correctly conceded that this exchange made this ground unarguable.

Ground 5 contends that the learned trial judge should have directed the jury that if the appellant was acquitted on counts 1 and 3, there was no basis upon which a conviction could be sustained on count 2.  We have already demonstrated that that is not correct.  The learned trial judge's direction that it was open to the jury to find the appellant guilty on one or more and not guilty of the others or not guilty of any of the counts was, in our view, correct.  No complaint was made at the trial about that direction.

Finally, grounds 3 and 6 submit that the verdict was unsafe and unsatisfactory.  No basis for this contention was advanced other than the matters with which we have already dealt.

The appeal must therefore be dismissed.

The application for leave to appeal against sentence does not seek to interfere with that sentence other than to contend that the learned sentencing judge should not have recorded a conviction.  In the appellant's favour it may be said that she had no previous convictions and that her frustration and indeed desperation over non-payment of her debt was understandable.  On the other hand, she was a mature woman of 44 years and the offence was a serious one for which she had failed to demonstrate any remorse.  Moreover his Honour was, we think, justified in concluding that the appellant had deliberately failed to identify her co-offenders to the police.  We cannot therefore be satisfied that the exercise of the learned sentencing judge's discretion miscarried.  The application for leave to appeal is refused.