R v Wortley

[1998] QCA 379

COURT OF APPEAL

[1998] QCA 379

PINCUS JA
THOMAS JA
SHEPHERDSON J

CA No 279 of 1998

THE QUEEN

v.

DOROTHY ANN WORTLEY  Appellant

BRISBANE

..DATE 14/10/98

JUDGMENT

PINCUS JA:  This is an appeal against conviction.  The appellant was charged on indictment alleging that on the twenty-first day of December 1997 at Charleville, she unlawfully assaulted a certain person and thereby did her bodily harm.  The indictment also alleged that at the time aforesaid she was armed with a dangerous weapon, namely a length of timber.  The jury convicted the appellant of the offence of assault occasioning bodily harm without the element of aggravation, that is without being satisfied that she was armed with a dangerous weapon.

The argument which Mr Leask has put forward on behalf of the appellant is, in essence, that there was no rational basis on which the jury could have found the appellant guilty absent of the circumstance of aggravation, because it was clear that that circumstance existed; he argues that the two verdicts were inconsistent, that the situation is redolent of compromise and that therefore the conviction should be set aside.  The case for the Crown was that there was an assault with a stick which was variously described.  At one point in the evidence the stick is described as resembling the handle of a shovel.  At another point it is described in such a way as to suggest that it was something taken from a tree.  It is also described as round and it seems to have been about a metre long or a bit less.

What the judge said about it was principally this.  His Honour referred the jury to the fact that there was an assault charged and that it was also alleged that the appellant was armed with a dangerous weapon, namely a piece of timber.  His Honour went on:

"Well, the piece of timber here was a stick.  It is a matter for you, but obviously, a piece of stick can be a dangerous weapon and can inflict serious injury.  Sometimes it can inflict minor injury.  So depending on how it is used, it is potentially a dangerous weapon.  You would not have any doubt that if you come to the view that she was armed with a stick, then it comes within the terms of a dangerous weapon, and that therefore would be established by the Crown."

Later in His Honour's directions, he suggests to the jury in effect that they should consider the charges laid or nothing:  that is, that the verdict should be either guilty of the charge with the circumstance of aggravation or not guilty; but His Honour did not direct them that they must do this.  He said, "I think logically you should proceed without really considering those questions of the alternatives", meaning that logically, he thought, the jury should not be concerned with the lesser verdict of assault occasioning bodily harm without the dangerous weapon aspect of the still lesser verdict of common assault.

Now, the task which Mr Leask has undertaken is to show us that the jury necessarily behaved illogically in returning the verdict which they did.  It appears to me difficult to establish that in view of the directions which His Honour gave.  The part which I have quoted first of all indicates to the jury that the question is one for them and then suggests to them that it is a question to which there is only one reasonable answer.  The jury in those circumstances, it seems to me, acting properly, would have regarded the question as ultimately one for them although His Honour had indicated a strong view about it.
It was not suggested by the judge that the expression "dangerous weapon" has any particular legal or technical meaning and it does not seem to me inconceivable that a juror attentive to his or her duty could have entertained some doubt as to whether this rather vaguely described stick fell within the description of "dangerous weapon".

In those circumstances, it seem to me impossible to sustain the view that the verdict was necessarily a compromise.  It may be simply a reflection on the fact that members of the jury, unlike the judge, had some doubt as to the proper answer to the question, "Was this stick shown to be a dangerous weapon?"

In those circumstances the basis of the attack upon the jury's verdict fails.  That is, whereas it is said that there was no logical path to the conclusion which the jury reached, in my opinion there was such a path and the jury may well have taken it.  I would therefore dismiss the appeal.

THOMAS JA:  I agree.

SHEPHERDSON J:  I agree.

PINCUS JA:  The order of the Court is appeal dismissed.  We will now adjourn.

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