R v Stone
[2000] QCA 509
•15 December 2000
SUPREME COURT OF QUEENSLAND
CITATION: R v Stone [2000] QCA 509 PARTIES: R
v
STONE, James Allen
(applicant/appellant)FILE NO: CA No 190 of 2000
DC No 443 of 1999DIVISION: Court of Appeal PROCEEDING: Appeal against Conviction and Sentence ORIGINATING COURT: District Court at Cairns
DELIVERED ON: 15 December 2000 DELIVERED AT: Brisbane HEARING DATE: 3 October 2000 JUDGES: McPherson and Davies JJA, Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER: 1. Appeal against conviction on count 8 allowed. Conviction set aside and a new trial ordered.
2. Otherwise appeal against conviction dismissed.
3. Application for leave to appeal against sentence refused.CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – adequacy of jury direction – whether defective – inconsistent verdicts – unsafe and unsatisfactory – application for leave to appeal against sentence – "domestic violence" – whether manifestly excessive.
Jones v The Queen (1997) 191 CLR 439, applied
M v The Queen (1994) 181 CLR 487, appliedCOUNSEL: P J Callaghan for the applicant/appellant
C Heaton for the respondentSOLICITORS: O'Mara Patterson & Perrier for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent
McPHERSON JA: I agree with the reasons given by Mackenzie J. The appeal against the conviction on count 8 should be allowed. Otherwise the appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.
DAVIES JA: I also agree with the orders proposed by Mackenzie J substantially for the reasons which he has given.
MACKENZIE J: This is an appeal against conviction and an application for leave to appeal against sentence. The appellant was convicted in the District Court Cairns of one count of assault occasioning bodily harm whilst armed (Count 13) 6 counts of assault occasioning bodily harm (Counts 2, 4, 6, 8, 10 and 11) and 2 counts of common assault (Counts 1 and 12). He was acquitted of 3 counts of assault occasioning bodily harm while armed (Counts 3, 5 and 7) and 1 count of assault occasioning bodily harm (Count 9).
He was sentenced to 5 years imprisonment on Count 10, 2 years imprisonment on Counts 11 and 13, 1 year's imprisonment on Counts 2, 4, 6, 8 and 12, and 6 months imprisonment on Count 1. All sentences were to be served concurrently. No specific parole recommendation was made.
He had no directly relevant criminal history, his only previous offences being two for stealing in 1964 and 1974. Two charges of possessing unlicensed firearms came to light during the investigation into the offences for which he was convicted in the District Court.
The offences were characterised as domestic violence. They were committed on the complainant over a period of about 7 years at isolated places where they lived with their children on the Atherton Tableland.
The grounds in the notice of appeal were abandoned after leave was given to substitute the following grounds of appeal:
1. the learned Trial Judge erred in the directions that she gave to the jury as to the evidence which supported the evidence of the Complainant in respect of Counts 1, 2, 4, 8, 10, 12 and 13;
2. the verdict on Count 11 is inconsistent with the verdicts on Counts 3, 5, 7, and 9, and is therefore unsafe and unsatisfactory;
3. the verdict on Count 6 is unsafe and unsatisfactory.
Ground 1
This is concerned with directions given by the learned trial judge about evidence which was said to support the complainant's evidence with respect to particular counts. In her general directions she said:
"In this case, essentially you have two different versions of the events, two different versions of the nature of the relationship between James Stone and Beverley Fitzgerald. On the one hand, you have Beverley's version which is supported to some degree by her daughters Leanne and Stacey and by the other prosecution witnesses. On the other hand, Mr Stone gave you his version of the relationship and of the events and his version is supported to some degree by the family members that came to Court and came (sic) evidence on his behalf."
She also reminded the jury that the trial was about 9 years after the first event and that memories fade, and that in the case of the complainant's daughters Leanne and Stacey they were recalling events that occurred during their childhood, which was a factor which also had to be considered.
After telling the jury that the Crown Prosecutor had rightly pointed out that the complainant's evidence was crucial and had to be carefully considered she said the following:
"In addition to Beverley Fitzgerald's evidence, you have her daughter, Leanne's evidence, which supports her in material particulars with respect to counts 1 and 2 and with respect to counts 4 and 8. Stacey's evidence supports her with respect to count 6, that is the incident where Kevin and Teresa Stone were staying the night.
.....................................
And Dr Connolly's evidence which supports Beverley Fitzgerald's evidence with respect to counts 4 and 10, both times when she did go to receive treatment; the incident with the eye where, according to Dr Connolly, she did actually say that it was her de facto that had caused that injury and the incident at the end of the time, the so-called scooter incident. Dr Connolly pointed out that her injuries on those occasions were consistent with the way in which she described her injuries having occurred. Dr Beaton, who referred to the examination of Beverley Fitzgerald on 16 March and 22 April '98, also said that her version was consistent with the injuries that were found and he stated it was consistent with what he called domestic violence."
She also pointed out, when summarising the defence case, that defence counsel had pointed out that there were "quite significant inconsistencies between (the complainant's) version of events and Leanne and Stacey's version of the events as they recalled them".
(a) Counts 1 and 2
With regard to counts 1 and 2 the evidence said to support the complainant's evidence came from Leanne who was about 5 at the time. The complainant's evidence was that in about March 1991, when she was pregnant with her daughter Ivy, the appellant had come home drunk from the local hotel. He argued with her abusively. She was standing at one end of the table when he grabbed a knife from the table and chased her, making threats against her. She fled outside with the accused slashing at her but only managing to cut the coat she was wearing. This is the assault alleged in count 1.
When she came back inside after about 10 to 15 minutes the argument continued. The appellant then struck her in the face with his fist, giving her a black eye. This is the assault alleged in count 2.
Leanne's evidence was that the appellant had come home from the hotel. The complainant had let him in and after a short time an argument began while they were sitting at the table. Leanne was in bed at the time. She said that both the complainant and the appellant stood up. The appellant followed the complainant as she tried to move away and grabbed her arm and kicked her in the body. The incident then moved into the lounge area where the appellant slashed the complainant's coat. The appellant threw the knife down and the complainant went to the bedroom.
Leanne gave evidence that she got out of bed and saw the appellant on top of the complainant. Later she heard thumping noises as if he was hitting her. Later she saw the complainant crying and with blood on her face.
She agreed in cross-examination the complainant did not go outside at any time. She also gave evidence that the complainant was pregnant at the time although she appears to have been unclear as to which pregnancy it was.
There was no suggestion that there was any similar incident. The common features in the two bodies of evidence were that the appellant had come home drunk, that he had argued with the complainant, that he had picked up a knife, that the complainant's clothing had been slashed and that the complainant was pregnant at the time. There were undoubtedly discrepancies as to where the various phases of the incident happened. The jury had been correctly directed that they could accept certain parts of a witness' evidence and not accept other parts provided they were satisfied that what they accepted was accurate.
There was also a specific direction that the fact that the complainant's daughters were recalling events that occurred in their childhood was a factor to be taken into account. A direction was given, although most likely in the context of repeating the Crown submissions, that Leanne's evidence supported the complainant's in material particulars in respect of these counts. The jury was also reminded that the defence had pointed out that there were "quite significant inconsistencies" between the complainants and Leanne's versions of events.
Mr Callaghan characterised the last direction as a "mere reference to counsel's submissions". He submitted that it was an insufficient direction, the implication being that it should have been given the authority of the judge's office instead.
Reading the summing-up as a whole, in my view the learned trial judge sufficiently drew the jury's attention to issues they had to consider before they could convict on these counts. The absence of any suggestion that there was more than one incident of this kind rendered it unnecessary to warn the jury that it had to be satisfied that both witnesses were describing the same event. There were sufficient consistencies as to the nature of the assaults to allow the jury to accept the substance of Leanne's evidence as supportive of the complainant's, even though there were significant differences in the detail of their recollections.
(b) Count 4
With respect to count 4, the learned trial judge directed the jury that Dr Connolly's evidence supported the complainant's evidence with respect to count 4. Count 4 is concerned with an allegation that the appellant had gouged her eye causing an abrasion to it. It was common ground that she had seen Dr Connolly about her eye, but the appellant's explanation of the injury was that she was chopping wood and that she had suffered it when a piece of wood hit her there while she was doing so.
Dr Connolly said, by reference to his notes, that he had seen bruising around the left eye and to the right eardrum. There was no specific reference to the eyeball but he had prescribed drops for it. In cross-examination he said that he had given the drops because he suspected that there was an abrasion or a minor scratch to her eye.
He was also asked in cross-examination if he had made a note of the stated cause of the injury. He replied that the complainant had told him she had been assaulted by her de facto. He said there was no reference in his notes to chopping wood and getting a splinter in her eye. Later, counsel who appeared for the appellant at trial returned to the subject. He asked Dr Connolly whether he had any note of removal of an object from the complainant's eye at any time and he said that he had no such record.
By the time Dr Connolly gave evidence, the complainant had already been cross-examined as to whether the injury had been attributed to an accident while chopping wood. She had also been cross-examined about telling the doctor that the appellant had gouged her eye. This appears to have been done as a tactical decision, since it was elicited that the doctor had not taken the allegation further, and it was then immediately put to her that she had actually injured her eye chopping wood.
Leanne had also given evidence of an incident in which the appellant had tried to gouge the complainant's eye, and of the appellant telling the complainant to tell the doctor she had been injured by a piece of wood when chopping it. She gave evidence that the complainant had been taken to the doctor after the incident.
Against that background the learned trial judge gave the direction complained of, which is reproduced in paragraph [10].
I am unable to find any evidence in terms of the second last sentence of the direction. Dr Connolly was not asked by either counsel whether what he observed was consistent with eye gouging or an injury from a splinter. Mr Callaghan submitted that the direction was inaccurate. He also submitted that the statement that the injury was caused by complainant's de facto was hearsay and that repeating it in conjunction with the inaccurate statement of the effect of Dr Connelly's evidence without a direction that it was not evidence of the truth of the statement as to the cause of the injury, rendered the direction defective.
One of the difficulties about the hearsay point is that it was the appellant's trial counsel who opened up the question of what had been said about the injury with the complainant and who sought to establish subsequently from Dr Connolly whether the history given to him was inconsistent with the complainant's evidence. The result was that he was told not only that she said it was because of an assault on her, but also that there was no record of any occasion where she was treated for an eye injury caused by a splinter of wood. Having elicited both a prior consistent statement and evidence which excluded mere confusion on the part of the appellant as to the occasion on which the complainant suffered an eye injury from a splinter the creditworthiness of the appellant's account may have been severely damaged. No redirection was sought. While that is not necessarily fatal, the conduct of the defence case cannot be ignored when it is apparent that the evidence was introduced for tactical reasons.
Mr Callaghan advanced the argument that at that stage trial counsel may have felt the case was an all or nothing case. He submitted that nevertheless the verdicts showed that the jury had apparently relied on supporting evidence in convicting. Because of that the inaccurate statement as to the effect of Dr Connolly's evidence was a critical error.
It was erroneous to direct the jury that Dr Connolly had pointed out that the complainant's injuries were consistent with the way she described them as occurring. However, when the evidence as a whole is taken into consideration, I am satisfied that no substantial miscarriage of justice occurred. The appeal against conviction on count 4 fails.
Count 8
The complainant's evidence concerning count 8 was that the assault occurred on a day when Leanne had visited to celebrate her birthday with them. The accused had gone to his nephew's home to dispose of some turkeys and had stayed there drinking. The complainant and the children went there for the evening meal and the family came home about midnight. After an argument, the accused punched her and gave her a black eye. The complainant also gave evidence that count 10 occurred when Leanne and Stacey were visiting her in connection with her own birthday. She said that the appellant accused her of having affairs. He grabbed her by the ankles and pulled her from the bed upon which she was lying. She suffered a gouge to the arm as a result. The appellant then kicked her repeatedly and punched her in the face. She managed to crawl from the bedroom to the kitchen and then went to the bathroom. In the early hours of the morning an ambulance was called and she was admitted to hospital as a result of that incident.
She was cross-examined about the account she had given of the accident. She agreed that she had said that it was due to a motor cycle accident, although she claimed that she had done so because of pressure from the appellant.
Leanne gave evidence that an incident very similar in several respects to that described by the complainant with respect to count 10 had occurred on an occasion when she visited the complainant and the appellant, but said that it had occurred on the occasion of the visit for her own birthday. It is apparent that, while the accounts of the actual incident are very similar, they are alleged to have occurred on different days. Another major difference apart from the date is that Leanne's account is inconsistent with the complainant going to hospital in the early hours of the morning and being admitted. Her evidence is that her mother was at home all the next day until Leanne's father collected her. The complainant's evidence is that it was about 10 o'clock the following night when they arrived home from the hospital. Nor was it part of Leanne's evidence that it was an occasion when Stacey had visited as well.
The transcript of addresses shows that the Crown Prosecutor invited the jury to treat Leanne's evidence as being supportive of the complainant's in relation to count 8. It was not submitted that her evidence provided any support for count 10. The Crown Prosecutor invited the jury to consider rationalising the discrepancies on the basis that the complainant may have forgotten the full extent of the assault or that Leanne was muddled. She submitted that they should consider the fact that the evidence was not identical as evidence of lack of collaboration and an indication that Leanne was trying to tell the truth as best she could about events along time ago.
The complaint made by Mr Callaghan is that the discrepancies between the two accounts in respect of count 8 was so marked that Leanne's evidence could not in any real sense be said to support the complainant's evidence. It was submitted that it was an error to allow the jury to think it could.
It may have been the case that the learned trial judge was summarising the submissions of the Crown Prosecutor when the direction was given, although it is not entirely clear from a reading of the transcript what was intended to be such a summary and what was judicial comment. There were undoubtedly significant difficulties in treating Leanne's evidence as being supportive of the complaint's evidence on count 8. For that reason it was necessary in this case to point out those difficulties specifically. If the passage was repetition of the Crown's submissions, the general reference in the summing up to the defence saying there were discrepancies was not sufficient in this instance to highlight the fundamental differences in the accounts and surrounding circumstances and/on the face of it, that they related to different dates.
In the circumstances, the direction given with regard to count 8 was defective and the appeal against that conviction should be allowed and a new trial ordered on it.
Counts 10, 12 and 13
The complainant's evidence relating to count 10 is set out in paragraphs [30] and [31]. The complainant's evidence on count 11 was that on the night following her release from hospital she was subjected to further allegations of having an affair and the appellant kicked her leg until she fell down. She suffered considerable discomfort and feared it might be broken. Count 12 was an allegation that about 2 weeks after that the appellant argued with her about the parentage of the children. He got a knife and held it to her throat. With regard to count 13 her evidence was that he got a pipe and hit her across the knee and the side. Later that day she went to the hospital where she was apparently seen by Dr Beaton and Dr Connolly and arrangements were made for her to go to a women's shelter.
Dr Beaton said that on that occasion he examined her himself. She had bruising and swelling on her left shin and a bruise to her kneecap which he agreed was consistent with blunt trauma from an iron bar. There was also a black eye of recent origin. He was asked whether it was consistent with blunt trauma from a fist. He replied that it was consistent with "domestic violence". In his previous answer he had said she had given him a history of beatings. He agreed in cross-examination that the injury to the kneecap was also consistent with falling on it.
Also in cross-examination it was established that she had given the history of a motorcycle accident on admission to hospital on 22 March 1998. He was asked whether he had talked to her about the cause of the injuries or whether she volunteered information on the occasion of her consultation on 22 April 1998. He repeated the note made concerning the history of repeated beatings from 14 March 1998 and of intermittent incidents over the past 8 years. He had prefaced this by saying that those who worked in emergency departments were aware of domestic violence and had access to a network of social workers.
The passage of the summing-up from which the submissions isolate the reference to domestic violence is as follows:
"This is a case that involves allegations of very serious acts of domestic violence. The term domestic violence does tend to sometimes conjure up serious emotions, but I do urge you to put that to one side and try and consider this as clinically and impartially as possible. You may feel very strongly about these offences. They are offences of violence. They are serous offences and it certainly would be quite awful to be the victim of such offences of violence, but equally of course, it would be quite awful to be allegedly the perpetrator of such offences if in fact you were not. In the end, your verdict must simply be based on the evidence you have heard and your verdict must be honest and in accordance with the oath that you took when you became jurors."
It is self-evident that the allegations made by the complainant in her evidence were of serious acts of domestic violence. Read as a whole there is no lack of balance in the passage.
It was submitted that the direction that the complainant's "version was consistent with the injuries that were found and (Dr Beaton) stated it was consistent with what he called domestic violence" was defective in several respects. Firstly, it was submitted that it did not distinguish between the version given on presentation at the hospital on 22 March 1998 and the version given on 22 April 1998 which was consistent with her evidence at trial. It hardly seems likely that the jury could be misled in that regard by what was said.
Secondly, it was submitted that the direction left open the impression that domestic violence was something which could be diagnosed by medical practitioners and that Dr Beaton was in a position to make such a diagnosis. It was also submitted that Dr Beaton could in effect swear the issue and confirm that the complainant's injuries were consistent with domestic violence when he should have simply confirmed that the injury was consistent with being caused in a particular way.
It was conceded that the medical evidence might "technically have been capable of supporting the prosecution case", but it was submitted that the direction given implied that it did so in a manner which had far greater relevance to the case than it actually could have. It would have been better if Dr Beaton had answered the questions asked concerning the consistency of the injuries with certain kinds of trauma without trying to compendiously describe them as consistent with domestic violence. Having said that, the potential effect attributed in the submissions to the direction is overstated. There is no reason to think that the jury may have been misled. In my view the ground of appeal is not made out.
Ground 2
The appellant was acquitted on Counts 3, 5, 7 and 9. It was submitted that the conviction on Count 11 was inconsistent with those verdicts and therefore unsafe and unsatisfactory. It was accepted by Mr Callaghan for the appellant that each of Counts 3, 5, 7 and 9 depended entirely on the evidence of the complainant and enjoyed no support from other witnesses. It may be added to that concession that there was, in each case except Count 5, evidence which may have cast doubt on the accuracy of the complaints.
In relation to Count 3, in which it was alleged that the accused pushed a shotgun to the complainant's stomach in 1992, there was evidence from the accused that he had no firearms until 1994. In relation to Count 7, which was alleged to have occurred in the second half of 1995, she had previously said that it had happened in April 1996. In relation to Count 9, which was alleged to have occurred late on the evening of Christmas Day 1997 when the appellant and the complainant were alone together, the appellant gave evidence supported by his sister-in-law that he was in bed as the last guests were leaving because of chest pains caused by a heart condition, from which it was common ground he suffered.
The evidence concerning Count 11 was to an extent bound up with the evidence on Count 10, both of which offences occurred just over a month before the appellant was charged. On both occasions the appellant had accused the complainant of having an affair and assaulted her. On the first occasion she was admitted to hospital, with the injury being explained as having been caused by a motor cycle accident. On the second occasion, where it was alleged the assault occurred the night after her discharge from hospital, she saw a doctor as well.
There is no reason to suppose that the verdict on Count 11 is inconsistent with the acquittals on Counts 3, 5, 7 and 9. The offence in Count 11 was recent at the time the matter was investigated. The kind of difficulties the jury may have felt in finding that the complaints were made out in respect of Counts 3, 5, 7 and 9, which were quite old as well as uncorroborated were not present in relation to Count 11. Even though it may be characterised as an offence where there was no independent evidence that the injuries had occurred as a result of an assault, it was in respect of a recent event. The jury was entitled to accept the complaint as truthful and reliable in all of the circumstances. No inconsistency is demonstrated. The ground of appeal therefore is not made out.
Ground 3
Count 6 is based on evidence that in about July 1995 the appellant accused the complainant of having an affair and punched her several times, inflicting a cut above her eye and a broken nose. The complainant's evidence was to the effect that when the assault occurred, Kevin and Teresa Stone, the accused's brother and sister-in-law, were present when the assault started but left during it. Both these persons gave evidence for the defence, denying the complainant's version of events and asserting that they stayed the night without seeing or hearing what was alleged. However, Stacey Ann Fitzgerald, the complainant's daughter, gave evidence for the prosecution that she heard an argument in which the appellant had accused the complainant of wanting to sleep with another man who had been present earlier and making threats to her. She said that she put her hands over her ears and did not hear anything else. She said that Kevin and Teresa Stone had been present and had intended to stay the night, but had left during the incident.
It is apparent from the transcript of discussions prior to the Crown opening that the supportive evidence of Stacey had emerged only in an addendum statement made shortly before the commencement of the trial. Mr Callaghan submitted that the fact that the evidence had only emerged at a late stage in less than satisfactory circumstances rendered it suspect. No cross-examination was specifically directed to the lateness of the statement. However, it was specifically put to the witness that there was no argument and that Kevin and Teresa Stone had stayed the whole night. She denied that and also denied making up her evidence to support her mother.
Mr Callaghan relied on the judgment of Gaudron, McHugh and Gummow JJ in Jones v The Queen (1997) 191 CLR 439, 451 where the majority judgment in M v The Queen (1994) 181 CLR 487, 494 was said to be the appropriate test for determining whether a verdict was unsafe and unsatisfactory.
The present case was one where the jury had the advantage of seeing the respective witnesses give evidence and no reason why they could not have legitimately preferred the evidence of the complainant and Stacey over that of the accused and Kevin and Teresa Stone is apparent. There is no reason to think that there is a significant possibility that an innocent person has been convicted on this count. The ground of appeal is therefore not made out.
Application for leave to appeal against sentence
It was correctly stated that the success of this application depends to an extent on the success of the appeal against conviction even if only partial. In the event, the appeal against conviction has succeeded only in respect of one count. Nevertheless, it was said, given that the relevant maximum penalty was 7 years imprisonment for count 10, a sentence of 5 years imprisonment was outside the appropriate range. It was conceded that the range of appropriate sentences must be wide for offences of this kind. The sentence is undoubtedly severe, but it must be viewed as having been imposed for a serious assault upon the applicant's wife and in the context that it was one of a series of offences committed against her over an extended period in isolated places where he and she lived.
In sentencing the learned trial judge took into account a number of factors. She observed that some of the offences involved extreme violence against the complainant. She expressed the view that the applicant's actions were cowardly and despicable and that he had subjected her to physical and emotional violence over a period of many years. She took the view that personal deterrence and general deterrence were both important. She noted that the applicant had shown no remorse. In his favour, she took into account his age and medical condition and his lack of previous convictions for violence.
Counsel for the Crown submitted that the head sentence was within a sound sentencing discretion, and that appropriate matters mitigating the penalty had been taken into account. He further submitted that it was not a case where the making of a recommendation for release on parole was appropriate having regard to his lack of remorse and insight into his offending behaviour.
The applicant's counsel submitted that even if the range did extend to a term of 5 years imprisonment it would be the very top of the range. It was submitted that to impose it on the applicant was to make no allowance for his age, ill health and lack of previous convictions for violence. It was submitted that he was no threat to anyone but his partner in a domestic relationship and that it might therefore be desirable to give him some incentive to address his offending behaviour by making a recommendation for parole at a slightly earlier date than would otherwise be the case.
While recognising that the sentence is a lengthy one the case is, as the learned trial judge categorised the complainant's allegations, a serious case of domestic violence. There is nothing to indicate that the learned sentencing judge has failed to exercise the sentencing discretion soundly. I would refuse the application.
Orders:
1. That the appeal against conviction on count 8 be allowed. The conviction is set aside and a new trial ordered.
2. Otherwise the appeal against conviction be dismissed.
3. That the application for leave to appeal against sentence be refused.
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