R v Robinson

[1994] QCA 224

IN THE COURT OF APPEAL  [1994] QCA 224

SUPREME COURT OF QUEENSLAND
  C.A. No. 109 of 1994

Brisbane

[R. v. Robinson]

BETWEEN:
  T H E   Q U E E N

v.

MARK JOHN ROBINSON
  Appellant

Fitzgerald P.

Davies JA.

Pincus JA.

Judgment delivered 22/06/94

Judgment of the Court

APPEAL DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. SENTENCE IMPOSED BELOW ON 8 MARCH 1994 SET ASIDE AND IN LIEU THEREOF THE APPELLANT IS SENTENCED TO IMPRISONMENT FOR 9 MONTHS.

CATCHWORDS:CRIMINAL LAW - directions to jury - assault occasioning bodily harm - appellant punched an off-duty police officer in a nightclub - conflicting evidence as to the circumstances leading up to the offence - whether the issues of consent or mistaken belief arose in the evidence - whether the jury should have been directed as to the issues of consent or mistaken belief

Counsel:Mr. A. Rafter for the appellant

Mr. B. Butler for the respondent

Solicitors:Legal Aid Office for the appellant

Director of Prosecutions for the respondent

Hearing Date:16/06/94

REASONS FOR JUDGMENT - THE COURT

Judgment delivered   22/06/94

This is an appeal by the appellant, and an application by him for leave to appeal against sentence, following his conviction for assault occasioning bodily harm in the District Court at Brisbane on 8 March 1994.   The appellant was sentenced to imprisonment for 18 months.
     The charge against the appellant arose out of an altercation between the appellant and a companion, Wayne Raymond Moyle, and four police officers, two of whom were male, Gough and Hermann, and two female, Barker and Williams.  The incident occurred in the nightclub of a Redcliffe Hotel in the early hours of Saturday morning, 29 August 1992.  Both groups were drinking in the nightclub, although there was a dispute as to what the police officers were drinking. The evidence of at least some of the police officers differed from that of two nightclub employees who were called by the defence.
     It is unnecessary to discuss in detail the events which occurred.  The appellant insulted or, as he put it, gave "a bit of lip" to the police officers. A little later, Moyle threw part of a drink towards them and some struck Gough and Williams, who then approached the appellant and Moyle. According to the appellant, "Gough came straight for me, and it was on".  He said that Gough went to punch him and he defended himself, punching Gough in the face. According to the prosecution evidence, when Gough and Williams approached the appellant and Moyle, Williams asked which of them threw the drink and the appellant replied "Fuck off, you fucking pig slut".  Williams then arrested the appellant and Gough grabbed him.  The appellant then punched Gough in the face. The punch to Gough's face, which the appellant admitted, constituted the offence of which the appellant was convicted.  The evidence established that the blow caused Gough extreme pain to his left cheek bone and that he needed surgery to correct a problem which he experienced in closing his jaw.
     Various accounts were given of what followed.  As a result, the appellant was also charged with assaulting Barker, but was acquitted by the same jury which convicted him of assaulting Gough.  The jury also acquitted Moyle of counts of assaulting Gough and Williams.
     It was argued for the appellant that the different verdicts were inconsistent. This ground is plainly unsustainable.  A reasonable jury could easily have been satisfied beyond reasonable doubt of the prosecution case in relation to the appellant's first blow to Gough, but not satisfied to the requisite standard of what occurred in the ensuing melee.    Another ground raised for the appellant was that the appellant's conviction on the count of assaulting Gough was unsafe and unsatisfactory.  The grounds for this submission were (i) according to the appellant and Moyle, there had been "exchanges of insults" between them and the police officers, (ii) the police officers had consumed a considerable amount of alcohol according to the nightclub employees, (iii) the different verdicts and (iv) the circumstance that the appellant only struck Gough once - "an action which could not be considered as excessive force in the circumstances". However, counsel for the appellant was unable to explain why a reasonable jury, properly instructed and acting reasonably, could not have found the appellant guilty of assaulting Gough.  The matters advanced for the appellant were able to be assessed by the jury and are in no sense incompatible with a guilty verdict.
     The only other ground of appeal was that the trial judge erred in refusing to direct the jury that the prosecution had to prove beyond reasonable doubt (i) that Gough had not consented to being struck by the appellant and (ii) that the appellant did not honestly and reasonably but mistakenly believe that Gough had consented.  His Honour held that no issue of consent arose in this case, and was not asked for a direction in relation to the possibility that the appellant was mistaken.
     In R. v. Raabe (1985) 1 Qd R 115, one member of the Court of Criminal Appeal expressed the opinion that an absence of consent is not an essential element of an assault occasioning bodily harm under section 339 of the Criminal Code.  The contrary was held in Lergesner v. Carroll (1991) 1 Qd R 206, which was accepted as correct by the respondent in this proceeding. Because the point was not argued, we do not express a final view on it, but think it likely that the concession was rightly made. 
     Whether or not a jury should be directed with respect to issues of consent, or mistaken belief in the existence of consent, depends on the evidence in the case.  In some circumstances, a consent to fight may be inferred from a complainant's conduct, which may include striking or attempting to strike an accused, and this may lead in turn to an inference that (i) the complainant consented to the retaliatory blow struck by the accused or (ii) an honest and reasonable but mistaken belief by the accused in the existence of such consent. However, a complainant's consent to a blow by an accused which forms the basis of a charge of assault occasioning bodily harm will not always be a possible inference whenever the complainant strikes, or attempts to strike, first. Nor will the circumstance that the complainant struck, or attempted to strike, first, necessarily give rise to a possible inference that the accused honestly and reasonably but mistakenly believed in the existence of such consent. 
     In our opinion, neither inference was available on the evidence in this case. As is summarised above, on the appellant's evidence, he struck Gough in the face, necessitating surgery, in response to Gough's attempt to strike him. There was no other evidence to suggest possible issues of consent or mistake.  The trial judge was correct in his decision that that evidence did not give rise to a possible inference that Gough consented to the appellant's blow, and we are similarly satisfied that the evidence did not give rise to a possible inference that the appellant honestly and reasonably but mistakenly believed that he had Gough's consent to strike him in the manner which he did.   It is desirable that we emphasise that the opinion which we have expressed is related to the evidence in this case.  It will be for the trial judge to decide, on the particular circumstances of each case in which the issues possibly arise, whether consent or mistake should go to the jury for its separate consideration.  In this matter, the appellant's case in relation to the charge on which he was convicted was largely, at least, based on self-defence (Code, section 271), as was acknowledged in this Court by his counsel.  The trial judge gave the jury directions in relation to self-defence which raised every possible point in favour of the appellant, yet by its verdict the jury must either have rejected the appellant's account of what occurred or concluded that the appellant's blow to Gough's face involved more force than was "reasonably necessary to make effectual defence".  There was no basis for a conclusion that Gough nonetheless consented to such a blow or that the appellant honestly and reasonably but mistakenly believed that Gough had consented.
     The appeal against conviction is accordingly dismissed.
     The offence which the appellant committed was a serious one.  As has been observed on a number of occasions, it is very important to deter assaults on police officers and correctional officers in the course of their duty, and the sentences which courts impose for such offences should reflect that need.
     Nonetheless, we are persuaded that the period of imprisonment imposed in this instance exceeds what was called for.  The appellant is still quite young, having been born on 3 August 1967, does not have a significant criminal history, and has never previously been incarcerated. He was employed at the time when he offended, and there was no suggestion that he does not have a satisfactory work history.  Having regard to these circumstances and such assistance as we have been able to derive from the cases to which our attention was drawn, we consider that an appropriate sentence would have been imprisonment for 9 months.
     Accordingly, we grant the application for leave to appeal and allow the appeal against sentence.  As stated earlier, the appeal against conviction is dismissed.  The sentence imposed below is set aside and, in lieu thereof, the appellant is sentenced to imprisonment for 9 months.