R v Van Ling

Case [2003] QCA 382

SUPREME COURT OF QUEENSLAND

CITATION:  R v Van Ling [2003] QCA 382
PARTIES:  R
v
VAN LING, Johannes William
(appellant)
FILE NO/S:  CA No 109 of 2003
DC No 2601 of 2002
DIVISION:  Court of Appeal
PROCEEDING:  Appeal against Conviction & Sentence
ORIGINATING 
COURT: 		 District Court at Brisbane
DELIVERED ON:  5 September 2003
DELIVERED AT:  Brisbane
HEARING DATE:  7 August 2003
JUDGES:  McMurdo P, Jerrard JA and Muir J
Separate reasons for judgment of each member of the Court,
Jerrard JA and Muir J concurring as to the orders made,
McMurdo P dissenting
ORDERS:  1. Allow the appeal
2. Quash the conviction for grievous bodily harm and
substitute instead a conviction for assault occasioning
bodily harm while in company
3. Set aside the sentence of four years imprisonment
originally imposed and substitute a sentence of 18 months
imprisonment
CATCHWORDS:  CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL ALLOWED – where appellant convicted of unlawfully doing grievous bodily harm – where appellant complains that verdict is unsafe and unsatisfactory – where appellant not proven to have used a weapon – where appellant, if successful on conviction appeal, may still be liable for a conviction of assault occasioning bodily harm – whether this court should substitute a verdict of guilty for this alternative offence
CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMPLICITY – COMMON PURPOSE – GENERALLY – where appellant co-accused with two others – where learned trial judge gave careful directions as to complicity – whether appellant was a party to the plan to attack the complainant – whether appellant should be held criminally responsible for the complainant’s injuries
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where appellant sentenced to four years imprisonment for doing grievous bodily harm – where group of people, including the appellant, invaded complainant’s home – where appellant affected by alcohol – where appellant has no prior convictions – where appellant not proven to have used a weapon in the attack – whether sentence excessive in the circumstances
Criminal Code (Qld), s 7, s 8, s 668(2)
M v R (1994) 181 CLR 487, followed
R v Barlow (1996-1997) 188 CLR 1, applied
R v Nagy [2003] QCA 175; CA No 24 of 2003, 2 May 2003,
referred to
R v Parkes [1993] QCA 34; CA No 344 of 1992, 2 February
1993, discussed
COUNSEL:  The appellant appeared on his own behalf
M J Copley for the respondent
SOLICITORS:  The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the
respondent

  1. McMURDO P: I have read the helpful reasons for judgment of Jerrard JA in which the facts and issues are set out. I will repeat only those necessary to explain my reasons for reaching a different conclusion.

  2. The appellant, who represented himself on this appeal, raised two grounds of…

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Details
AGLC
R v Van Ling [2003] QCA 382
Case
[2003] QCA 382
Decision Date

CaseChat Overview and Summary

Van Ling appealed against his conviction of unlawfully doing grievous bodily harm, arguing that the verdict was unreasonable or unsatisfactory. The court considered whether the verdict was unsafe and unsatisfactory, and if the appellant could still be liable for a conviction of assault occasioning bodily harm. The court found that the appellant was not proven to have used a weapon, and that there was no evidence that the appellant used a machete. The court also found that the appellant, if successful on his conviction appeal, may still be liable for a conviction of assault occasioning bodily harm.

The court considered whether the verdict was unreasonable or unsatisfactory. The court found that the verdict was unreasonable or unsatisfactory because the appellant was not proven to have used a weapon, and there was no evidence that the appellant used a machete. The court also found that the appellant, if successful on his conviction appeal, may still be liable for a conviction of assault occasioning bodily harm. The court held that it was open to the court to substitute a verdict of guilty for this alternative offence. The court substituted a conviction for assault occasioning bodily harm while in company and set aside the sentence of four years imprisonment originally imposed, substituting a sentence of 18 months imprisonment.

Orders

Orders of the court

1. Allow the appeal

2. Quash the conviction for grievous bodily harm and

substitute instead a conviction for assault occasioning

bodily harm while in company

3. Set aside the sentence of four years imprisonment

originally imposed and substitute a sentence of 18 months

imprisonment

Background

Background to the litigation

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Evidence

Evidence Before The Court

In summary that was the evidence independent of Mr Prophet, his daughter, Mr Mahony, and those who were accused. None of those other witnesses saw that Mr Prophet had a machete in his hand or saw him use it. Despite this, it appeared common ground between all parties at the trial that the appellant’s vehicle was hit by Mr Prophet’s machete; and that Greg Rose had been struck (whether lawfully or not) with that machete by Mr Prophet. Other than the complainant and those accused, only Hayley Prophet described seeing the latter incident. Chris was not called as a witness by any party; the evidence did not disclose if he is or was, or is to be, charged with any offence. The appellant’s evidence Mr Van Ling’s evidence was that he had gone at that time (quite late at night) to Mr Prophet’s house because he realised that they both needed to work at their common place of employment as painters, and he wanted “to organise work and sort this mess out” (AR 415), as they were both supposed to be working the next day. Mr Van Ling had been originally driven away from the Sunnybank Hotel in Mr Van Ling’s utility by the man Chris after the first altercation at that hotel with Mr Prophet. They had been asked for a lift by Annette (apparently a stranger) and it transpired that she was friendly with and staying at the home of Mr Greg Rose, whom Mr Van Ling then met for the first time at the residence of Mr Rose. Likewise he met Jason Rose for the first time. That newly formed group of persons decided they would purchase more beer from the Sundowner Hotel and returned to it; and it was at that stage that the altercation occurred between Mr Van Ling and Mr Prophet, who had also been driven away from the hotel (by Mr Van Ling’s witness, Mr Grantham) and who had also returned to the hotel. This was the occasion as well of the assault by Mr Greg Rose upon Mr Prophet, at which time Mr Prophet was understood by Annette to have insulted her. This all resulted in a decision to buy another carton of beer and visit Mr Prophet’s house. Mr Van Ling agreed that he knew that the young woman was resentful that Mr Prophet had called her (at the hotel apparently) “you black slut”, and that Annette was being urged to “forget it” by Mr Greg Rose. The cross-examination by the Crown Prosecutor at the trial did not establish that Mr Van Ling actually knew, when he went to Mr Prophet’s home with those other people, that Mr Rose had already assaulted Mr Prophet at the hotel. Mr Van Ling’s evidence was that he directed Chris to Mr Prophet’s residence, and that when Mr Van Ling got out of the car he saw Mr Prophet at the front of the vehicle, with the machete. He saw him hit Greg Rose with it and saw Greg Rose fall down, and then Mr Prophet chased Mr Van Ling with the machete. It was dark, and when the pursuing Mr Prophet got close enough “I leapt out and grabbed him around his arms”[15]. Mr Prophet and Mr Van Ling then wrestled, with Mr Van Ling keeping “my eye on the machete” (AR 420), and he heard advice being yelled out “get in the fucking car, lets get the fuck out of here, fucking get here”. He saw Greg Rose in the passenger seat holding his head, and Mr Prophet got up and jumped in the vehicle. He could recall that he and Mr Van Ling were “getting hit” while they were wrestling, and he received some injuries to the knuckle of his left hand. The Crown did not challenge in cross- examination his claim that his hand received some injury from a hit with a pipe; it was suggested in argument on the appeal that could have happened while Mr Van Ling was wielding one. [15] This evidence of Mr Van Ling’s as at AR 418-419

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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