R v Ward

[2000] QCA 77

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ward [2000] QCA 77

PARTIES:

R
v
WARD, Dennis Francis
(appellant)

FILE NO/S:

CA No 358 of 1999
DC No 23 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Dalby

DELIVERED ON:

17 March 2000

DELIVERED AT:

Brisbane

HEARING DATE:

1 March 2000

JUDGES:

Pincus JA, McPherson JA, Williams J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – SELF-DEFENCE AND OTHER FORM OF DEFENCE – PARTICULAR CASES – victim threw keys towards appellant – whether blows subsequently inflicted by appellant necessary for self-defence

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SUMMING-UP

Criminal Code s 271(1), s 272(1)

COUNSEL:

The appellant appeared on his own behalf
Mr T Winn for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

1. PINCUS JA:  This is an appeal against conviction.  The appellant was convicted of having unlawfully assaulted Christine Lorraine McClelland and thereby done her bodily harm, then being armed with an offensive weapon.  It was common ground at the trial that McClelland assaulted the appellant by throwing a bunch of keys at him and that he retaliated by striking her with a bar or pipe;  but the extent of his retaliation was in issue.  Another question which was raised for the jury's consideration was whether any assault committed on McClelland by the appellant was excused by reason of provocation.  The appellant abandoned that defence in this Court but relied, as he had below, on the provisions of the Code relating to self‑defence.  The main argument was that there should, on the facts, have been an acquittal – i.e. that the verdict was an unsafe one.

1. The events in question took place against a background of difficulties relating to access by McClelland to a girl who was in the custody of her ex-husband Louis Ward, the girl being a daughter of the former marriage.  On 19 August 1998, McClelland had access to her daughter in the afternoon;  the access was to cease at 6.30 pm.  Both her former husband Louis Ward and his father, the appellant, attended at the house where the child was to be returned to Louis.  The appellant parked his car outside the property, but Louis parked his in the driveway, restricting ingress and egress;  Louis' headlights were on and, apparently because the car was parked at an angle, they illuminated McClelland's house.

1. There were five people who were able to speak of the events which followed:  the appellant, his son, McClelland, her mother P M McClelland, and a neighbour Danny Du Rietz.  The versions given by the appellant and McClelland were, to a considerable extent, in conflict.  Du Rietz, who was in some respects an unsatisfactory witness, gave an account more in accord with that of McClelland than that of the appellant.  The mother's (P M McClelland's) account appears to me clearly to be inaccurate, and unlikely to have influenced the jury.  Louis Ward, who was charged with the same offence as the appellant and tried with him, gave no evidence.  He was acquitted.

1. McClelland's account was that she heard Louis' car pulling up in her driveway.  She heard Louis coming up the front steps shouting some kind of abuse and then heard him go up the back steps and tap on the daughter's bedroom window;  he invited her to leave the house and the girl became upset.  McClelland took the girl, carrying her, down the front stairs and went to her car.  She buckled her daughter in the car and then called out to the appellant, who was using a video camera beside Louis' car, to shift it.  McClelland said that she had insisted that the changeover would happen at the police station.

1. McClelland, according to her evidence, got into her car and started to reverse it.  No attempt was made to remove Louis' car which was obstructing her and the appellant continued video taping McClelland. Becoming angry, McClelland told the appellant to get off her property and threw the car keys  "in the direction of the camera".  They struck the appellant on the forehead.  She said that the appellant then put his video camera inside Louis' car and punched her in the face twice.  She called out to her mother to call the police;  Louis put the daughter into his car, then obtained a three foot iron bar from the car and passed it to the appellant saying something to the effect of "There you go, Dad.  Go for it".

1. According to McClelland, she was then stabbed or jabbed in the side with the bar.  She was walking or staggering away, being winded by this blow and was pursued by the appellant with the iron bar, when he hit her with it twice.  The first blow was to the shoulders and head and the second blow in the same place on her head.  He then kicked her "at least twice".

1. Medical evidence was called which was to some extent consistent with McClelland's version.  There were found to be an abrasion and a small haematoma on the left rear of the scalp, a laceration to the chin which required three sutures, a laceration to the inner lower lip and a bruise on the top of the left shoulder.  On 24 August, five days after the assault, a chest X-ray showed a fractured rib on the left side and that appears to be consistent with McClelland's evidence that she was stabbed or jabbed there.

1. In the appellant's evidence, he admitted striking McClelland, but said the object he used was a very light one, which he thought was a piece of wood.  He said that he struck at McClelland with this at a time when he could hardly see, because of blood from a wound on his forehead caused by the keys. The appellant's evidence was that he swung at McClelland with the object a second time and again felt some resistance and "probably" swung again, feeling no resistance on that third occasion.  The appellant was asked about his thoughts at the relevant time and his answer was, in part:

"As I were walking back, I were thinking to turn away and I thought, I'm going to get more injured, and I grabbed the stick and I lost me temper a bit.  I had to keep her away from me;  I had to survive.  I weren't going to go back to hospital you know".

It will be noted that this suggests both provocation and self-defence as issues, but it is the latter which is pressed in this Court.  The appellant denied having punched McClelland.

1. Omitting discussion of less relevant points, Du Rietz's evidence conveyed that he saw McClelland's vehicle reverse and stop.  Then Louis got the child out of the vehicle.  The appellant was video taping;  McClelland had an argument with the appellant and abused him;  while the argument was going on, McClelland threw a set of keys at the appellant, striking him in the forehead area.  Then, according to Du Rietz, Louis handed the appellant a steel bar while McClelland was asking her mother to call the police.  He said that the appellant came up behind McClelland and hit her in the back of the head and then "Chris went down and he hit her a second time".  He said the first blow was on the head, but he did not see where the second blow connected.  Du Rietz said that the appellant also kicked McClelland in the head.  Du Rietz said he did not see the appellant punch McClelland in the face.

1. An important factual aspect of the argument in this Court was that, the appellant said, he was taking medication at the time, which caused blood to flow copiously from a wound on his forehead caused by the keys;  he said the blood obstructed his vision and as I understand the contention, increased his feeling of vulnerability.  There was a difference in the evidence as to the bleeding from the forehead between the appellant and Du Rietz and it was argued that a Dr Betchell who had been treating the appellant at the relevant time assisted his case.  The doctor's evidence was that he had prescribed for the appellant Warfarin, a drug preventing or inhibiting clotting of the blood.  He saw the appellant two days after the incident now in question.  In chief the doctor said that the appellant could have suffered a "potentially fatal haemorrhage if he hadn't had the wounds attended to".  When asked how long it would have taken the appellant to bleed to death his answer was:

"Possibly – this is, you know, a fairly big supposition on my part, but depending on whether it is arterial bleeding, which is more forceful than venous bleeding, it could occur over a period of hours" (179).

In answer to a question from the judge the doctor explained, as I understand the evidence, that it was not so much that the Warfarin caused more copious bleeding, but that the bleeding continued longer because of the interference with the clotting mechanism.  When asked whether the bleeding could be stemmed easily enough using "a hankie of some kind", the doctor answered:

"Yes, that would be a first -aid measure that most people would use".

The jury was not obliged, on the doctor's evidence, to find that the appellant's story of having bled copiously was necessarily true.

1. It would, as it seems to me, have been difficult for the jury to accept as literal truth either the version of the events given by McClelland or that given by the appellant. There was reason to suspect exaggeration in the account of the assault on her, given by McClelland.  The jury could properly have been satisfied that the appellant struck at least two substantial blows with a metal bar, one of which fractured a rib, and that he also attacked McClelland's face, presumably by punching;  that view of the matter would have been inconsistent with the appellant's evidence.  There was sound reason to think that at least one of the blows with the bar was struck from behind McClelland;  there was Du Rietz's evidence to back up McClelland's story that she was attacked from that direction, as well as the medical evidence.  The circumstance that, according to the appellant, he was partially blinded by his own blood had significance because if the jury thought that might be true, they would have been more inclined to entertain a reasonable doubt about the applicability of the plea of self-defence, on the basis that he could not see that when he hit McClelland on the head she was facing away from him.

1. One can readily understand that, to put the matter generally, the jury might have thought that the throwing of the keys, as an isolated act, did not make necessary the blows which it appeared were delivered by the appellant; there was little to suggest he was really in such danger of further harm as to make it reasonable to attack heavily McClelland's face, her ribs and the back of her head. The judge summed-up accurately the effect of ss 271(1) and 272(1), the self-defence provisions the appellant's counsel relied on below. Unless the jury were inclined to give some credence to the appellant's version of events, which was not easy to reconcile with the medical evidence and that of Du Reitz, rejection of the self-defence plea must have been almost inevitable.

1. It is in my opinion clear enough that it was open to the jury to find for the prosecution on this issue and to do so beyond reasonable doubt.  The jury were, depending on the evidence they accepted, entitled to be satisfied that after the initial blow from the keys there was no particular reason to apprehend further violence from McClelland and that the blows struck by the appellant upon her were neither "reasonably necessary to make effectual defence" (s 271(1)) nor reasonably necessary for "preservation from death or grievous bodily harm" (s 272(1)).

1. It follows, in my view, that unless there was a misdirection which vitiated the verdict, the appeal must be dismissed.  The appellant has placed before me numerous criticisms of the primary judge's conduct of the trial.  It does not appear to me, with all respect to the appellant, that they have any real substance, but examples should be given. 

1. The judge referred the jury to "what she says were the verbal arrangements to hand [the child] over outside the police station". The appellant's criticism, as I understand it, was that there were no arrangements but simply a demand or request by McClelland.  It does not appear to me that this point is of any consequence.  Another passage from the directions to which objection was taken appears in the record as follows:

"When a person is unlawfully assaulted, that is according to Dennis, him, and has not provoked the assault, he claims that he did not provoke the assault, it is lawful for the person, that is him, to use such force to the assailant as is reasonably necessary to make effectual defence against the assault". 

The appellant's contention was that these remarks were made in a way which undermined his credibility.  I do not understand how that could be contended;  the interpolations the judge made when reading out the relevant part of the law were neither for nor against the Crown case.  Then, the appellant objected to a statement by the judge concerning the evidence Dr Betchell gave relating to the appellant's condition.  His Honour said:

"The doctor's evidence seemed to be directed to what happened from the beginning of 1998 till April".

The relevant passage of the evidence, dealing with a period when the appellant was "very unwell", (p. 175) does indeed deal with "early 1998 leading up to April".  There is other evidence, relating to blood tests, at later dates but none of it (except the evidence of an examination on 21 August relating to this incident) speaks of the appellant's physical condition.

1. When attempting to explain the law relating to the case against each accused, the judge began:

"Our law provides that when an offence is committed – in this case, unlawful assault – each of the following persons are deemed to have taken part ... ".

The objection to this appears to be that the judge should have said:

"Our law provides that when an offence is committed and that is of unlawful assault ... ".

And the criticism is that the judge was "obviously stating quite categorically that in this case it was" i.e. that the direction was that the appellant was guilty.  Reading the remark in context, that is plainly not so.

1. A reading of the judge's summing-up gives the impression that his Honour was more impressed with the Crown case than with that of the defence and some of the remarks made were by no means entirely neutral.  It does not appear to me, however, that the judge attempted to overbear the jury or to force his own view of the facts upon them.

1. One must feel some regret that an apparently respectable man with an impeccable record has, unfortunately, breached the law.  But in my opinion his appeal must be dismissed.

1. McPHERSON JA: I agree with the reasons of Pincus JA.  The appeal should be dismissed.

1. WILLIAMS J:  I agree with the reasons of Pincus JA and the order he proposes.  The appeal should be dismissed.