Richards v Jack

[1993] QCA 397

IN THE COURT OF APPEAL [1993] QCA 397

SUPREME COURT OF QUEENSLAND

C.A. No. 263 of 1993

BETWEEN:

GRAHAM JOHN RICHARDS

v.
PAUL DAVID JACK

(Appellant)

The President
Mr Justice McPherson

Mr Justice Davies

Judgment of the Court delivered on 19/10/93

APPEAL DISMISSED

CATCHWORDS CRIMINAL LAW - Common assault - Conflicting evidence -

Whether verdict unsafe and unsatisfactory

Counsel:	B. Devereaux for the appellant D. Bullock for the Crown
Solicitors:	Legal Aid Office for the appellant Director of Prosecutions for the Crown

Hearing Date: 13 October 1993
IN THE SUPREME COURT

OF QUEENSLAND

C.A. No. 263 of 1993

BETWEEN:

GRAHAM JOHN RICHARDS

v.
PAUL DAVID JACK

(Appellant)

REASONS FOR JUDGMENT - THE COURT
Delivered the Nineteenth day of October 1993

This is an appeal by Paul David Jack against his conviction for a common assault committed against Russell John Kaden on the afternoon of 28 November 1992.

Mr Kaden's company is the licensee of the Redbank Plains Tavern, of which he is the manager. On the date referred to, the appellant Jack had been drinking for some time outside the tavern. He then came into the public bar, where Mr Kaden was serving. Kaden said to him words to the effect that the appellant knew he was barred from coming into the bar because of his behaviour on three or more other occasions in the past. It was what followed this remark that gave rise to the charge against the appellant.

In the proceedings in the magistrate's court, Kaden testified that after he had made these remarks to the appellant, the latter hit him with what Kaden described as a "clenched fist, right hand, and a big one - good one". He said the blow struck him on the left temple at a point behind the hairline, throwing him back "a fair way", and making him hold his head. Needless to say, it was painful and he felt dizzy.

The appellant was initially prosecuted for an assault occasioning bodily harm. As well as Kaden's own evidence, one Roy Algra testified in support of the complaint. At the time of the incident he was sitting in the bar and his attention was attracted by the sound of an altercation. He turned round and saw the appellant Jack (whom he knew) throw a punch at Kaden. He did not see exactly where the punch landed, but he saw Kaden reeling backwards holding the left side of his head.

The evidence so far recounted might well have served to establish a case against the appellant on the offence charged. However, a Dr M.J.E. Patel also testified at the hearing. She is a medical practitioner who was acting as a locum when Kaden came for treatment for the injury caused by the blow. She recalled his complaining of a thump he had received at a hotel.
On examination she found a two-inch contusion above his temple where the skin had been rubbed off. It would, she said, have caused him some discomfort.

To this point Dr Patel's evidence was consistent with the accounts given by Kaden and Algra. However, she also said the contusion she saw was on the right temple and it was not behind the hairline. Dr Patel made notes, although not at the time of the consultation; but she did not have them with her in court when she gave her evidence. What she said was in some respects inconsistent with Kaden's evidence and perhaps also that of Algra. The objective probabilities slightly favoured their version as against hers because if, as they both said, the blow was delivered with the right hand, one would expect it to have landed on the left rather than the right temple. It should perhaps be added that Algra said the two men had been facing one another. This might suggest it was the doctor who was mistaken.

The difference was not resolved by any other evidence in the

case.
At the hearing, the witnesses who have been mentioned were followed by a submission from defence counsel that there was no case to answer. Faced with conflicting evidence on the point adverted to, the magistrate concluded that there was no case to answer on the charge of assault occasioning bodily harm; but he ruled that there was sufficient evidence for the hearing to continue as a complaint of common assault.
At that stage the appellant had not himself given evidence, which he then proceeded to do. He denied punching Mr Kaden and said he had done no more than push him. Even before this evidence was given it had become apparent to the magistrate from the form of the cross-examination that the appellant would be claiming that that was all he had done. The magistrate appears to have had this in mind when he ruled that a charge of common assault could be sustained.
In the end, however, he seems to have considered that it would not be proper to find as proved a common assault arising from a push when it was really a punch that the appellant had been charged with. He practically said as much in the reasons he delivered. He also decided that he was not satisfied beyond reasonable doubt as to the precise place where the blow landed.

Although the magistrate considered that the evidence did not identify beyond reasonable doubt exactly where the blow had landed, he was nevertheless satisfied that there had been a punch to the face area. He gave reasons for this finding, and they have not been challenged on appeal. It also seems clear that he rejected the appellant's assertion that all he had done was to give Mr Kaden a push.

On appeal it was submitted that the evidence showing that Kaden in fact sustained a blow could not be severed from the evidence that showed where the blow was sustained. We do not accept this submission. Even if the testimony of Kaden were entirely disregarded, the evidence of Algra would still support a finding that Kaden was hit in the area of the face. What Dr Patel said might have created a doubt as to whether the blow landed on the left or the right side of the face; but that doubt would not necessarily or logically extend to or infect the question whether the face was struck at all.

On the evidence in this case it was open to the magistrate to be satisfied that a blow was struck in Kaden's face area without his also being satisfied about the precise part of the face in which it landed. It was only because of a doubt about the latter aspect that the magistrate thought it impossible on the evidence to say whether or not the blow had occasioned bodily harm. It did not affect his conclusion that a blow had been struck at some part of Kaden's face

The appeal should be dismissed.