R v Wade

[1996] QCA 225

COURT OF APPEAL

[1996] QCA 225

McPHERSON JA
DAVIES JA
DEMACK J

CA No 139 of 1996

THE QUEEN

v.

JASON BARRY WADE  

BRISBANE

..DATE 12/06/96

JUDGMENT

DAVIES JA:  This is an appeal against conviction and an application for leave to appeal against sentence.  The conviction was one of assault occasioning bodily harm and the sentence was one of six months imprisonment suspended after two months for an operational period of two years.

They arose out of events which occurred in and in the vicinity of Casey's Night Club at Bundaberg on the night of 2 June 1995.  On that night Mark Karl Span was at the night club with his girlfriend Karen Lee Cooper.  Prior to going to the night club he had consumed three or four stubbies of Powers heavy beer and at the night club he consumed a further or five stubbies.  That was his own evidence as to his alcohol consumption.  There was no contradictory evidence and there was no reason to disbelieve it.

It follows in my view that, prior to the disputed events giving rise to the appellant's conviction, Mr Span was drunk.  Possibly at least partly because of this condition he just decided to discuss with the night club owner an unpleasant event which had involved the latter, Mr Span's father and possibly Mr Span.  Whether this discussion included Mr Span abusing the night club owner, as the latter said it did, is of no great importance.  It is common ground that three or possibly four security officers employed by the night club, commonly called bouncers, then ejected Mr Span from the night club.  It is common ground also between the opposing groups of witnesses that Mr Span was thrown, or placed in a position outside the night club, where he was on his knees on the ground.
Mr Span himself was unable to say with any clarity as to what occurred then or even immediately before then.  However, there were as I have said two opposing groups of witnesses as to what then occurred.  On the one hand there was Mr Span's friend Ms Cooper and a Mr Bannerman a taxi driver who was sitting in his taxi at a rank opposite the night club.  On the other, there was the appellant and two other security officers, Mr Horvatic and Mr Blevens.  Not surprisingly there are inconsistencies between the evidence of Ms Cooper and Mr Bannerman, as there almost always are when two witnesses attempt to give their honest recollection of the same event.

There was a much closer correlation between the opposing evidence of the appellant, Mr Horvatic and Mr Blevens which led the learned Magistrate to think that they had together concocted a story.  However, the learned Magistrate before reaching that point understandably took the view that the most independent and consequently the most reliable evidence of what occurred outside the night club was that of Mr Bannerman who said he saw one of the doormen as he called them kick a man in the head with his foot whilst that man was lying on the ground.  He said that the man attempted to get up again and when he was on his hands and knees the doorman kicked him with the top part of his foot like kicking a football, this kick being to the head.  The doorman then crouched over the fallen man, held his clothing and punched him in the face.

It is true that Mr Bannerman could not identify the assailant as the appellant or for that matter the victim as Mr Span.  However, the date on which and the time at which he describes the incident to have occurred coincides accurately as the date and generally as to time with the incident which did occur involving the appellant and Mr Span.  The circumstances of that incident are as described by Mr Bannerman, also generally coincided with the evidence of Ms Cooper.  I should also add that there was no suggestion that at or about that time on that night any other similar incident occurred.

In my view, the learned Magistrate was entitled to conclude that Mr Bannerman was describing the incident involving the appellant and Mr Span and to accept Mr Bannerman's version of that incident.  The contrary version deposed to by the appellant, Mr Horvatic and Mr Blevens has the appellant punching Mr Span in self defence and apparently knocking him out.  According to them he was then placed in a recovery position and then left alone.  According to their version the appellant did not kick Mr Span at all.

Two grounds of appeal against conviction were argued and the first was that the decision of the Magistrate was against the evidence and the weight of evidence.  In my view that ground must fail.  The learned Magistrate was, as I have said, entitled to accept the evidence of Mr Bannerman, supported generally as it was by that of Ms Cooper.  Indeed, as I have already indicated, there was good reason for accepting Mr Bannerman's evidence over that of the appellant and his co-workers.

The second ground which is included in the outline of submission but was advanced orally but not abandoned was that the decision of the learned Magistrate was wrong in law in that he failed or failed properly to give consideration to the onus of proof.  This was apparently because the learned Magistrate thought that the appellant and his co-workers had colluded in making up a concocted version.  In my view, that was a reasonable inference but it not involve any error or law or failure to give consideration to the onus of proof.

In the first place, the learned Magistrate accepted the evidence of Bannerman for the reasons I have already mentioned.  Secondly, he as entitled to have regard to the fact that the evidence of the appellant and of his co-workers so closely coincided as to indicate an artificiality more consistent with concoction than honest recollection.  This was a valid additional reason for accepting the evidence of Bannerman and Ms Cooper over theirs, but it did not involve any reversal of onus.

For those reasons, in my view, the appeal against conviction must be dismissed.

The application for leave to appeal against sentence relies substantially on the age of the appellant and the absence of any previous convictions.  He was only 20 at the time of commission of this offence and 20 at the time of his conviction, having been born on 9 December 1974.  In his favour also, he had a good work history.

It was submitted that the learned Magistrate did not have proper regard to the provisions of the Penalties and Sentences Act, in particular subsections 3 and 4 of section 9.

It is true that for any young man such as the appellant with no prior convictions imprisonment would be a last resort.  On the other hand, as the learned Magistrate pointed out, this was a vicious and cowardly assault upon a drunken and apparently smaller man and it was carried out whilst the complainant was lying or crouching on the ground.  The savagery of the assault can be gathered to some extent by the injuries which it caused, which included a fracture of the jaw requiring insertion of a plate and loss of some teeth.  It must also be said that there was no remorse shown by the appellant here, as indicated by his contesting of the case, and this appeal. 

In my view, the sentence which was imposed in this case was not outside the range of a sound sentencing discretion and I would therefore refuse the application for leave to appeal against sentence.

McPHERSON JA:  I agree.

DEMACK J:  I agree.

McPHERSON JA:  The appeal against conviction is dismissed.  The application for leave to appeal against sentence is refused. 

The Court will order that a warrant issue.  It is further ordered that the warrant lie in the Registry and not be

executed until a week from today or until further earlier order.

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