Rockley v Braithwaite

[1995] QCA 54

IN THE COURT OF APPEAL	[1995] QCA 054
SUPREME COURT OF QUEENSLAND

C.A. No. 410 of 1994.

Brisbane

[Rockley v. Braithwaite]

SHANE ALLAN ROCKLEY

v.

JOHN HORACE BRAITHWAITE

(Appellant)

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Fitzgerald P.
Pincus J.A.
Davies J.A.

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Judgment delivered 08/03/1995

Judgment of the Court

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APPEAL AGAINST CONVICTION DISMISSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

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CATCHWORDS:	CRIMINAL LAW - Conviction - whether appellant had honest and reasonable but mistaken belief that complainant consented to what was done - onus of proof -s. 24 Criminal Code - sentence - discretion to record conviction - penalty - s. 35(2) Penalties & Sentences Act.
Counsel:	D R Lynch for the appellant.
D L Bullock for the respondent.
Solicitors:	Legal Aid Office for the appellant.
Director of Prosecutions for the respondent.

Hearing date: 01/03/1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 08/03/1995

This is an appeal against conviction and an application for leave to appeal against sentence, relating to a conviction and sentence in the Magistrates Court. The appellant was charged with and convicted of assault occasioning bodily harm and the conviction is challenged on the ground that the magistrate did not consider whether the prosecution had proved an absence of consent to the assault, nor whether it had excluded the operation of s. 24 of the Criminal Code. As to the latter point, the argument was to the effect that a question of the appellant having an honest and reasonable but mistaken belief that the complainant consented to what was done to him was raised by the facts of the case.

The appellant gave two accounts of the circumstances giving rise to the charge. The first was given in a conversation with the police and was recorded, very poorly, on tape; the tape was tendered with a synopsis of its contents, so far as relevant. The second was that sworn to in evidence before the Magistrate. His Worship said that after hearing the witnesses he preferred the account of the appellant. So far as can be discerned from the tape, the description of events then given did not accord precisely with that later given in court; it seems probable that the magistrate intended to refer to the latter when expressing a preference for the appellant's account, and Mr Lynch for the appellant argued the case on that basis.

The appellant said in evidence that he admitted having assaulted the complainant at the time alleged and that he had injured him, but that he was not guilty on the ground of "verbal provocation". He explained that he had been insulted and that he had warned the complainant that "I'd had enough and I'd bop him on the nose if he did it again, and he did". The appellant gave the court details of insults which had been directed at him by the complainant and of having warned the complainant about the likely consequences of their repetition. He said that on the following evening, that on which the assault occurred, the complainant insulted him again and then walked out of the place where the two had been. The appellant followed and 'I walked straight up and put him in a headlock and walked him straight onto the back lawn". He then "walked around with him for a minute" and again warned him about insults.

The appellant then said:

"At that stage he swung around and put his head into my stomach and his arms around my waist and squeezed and pushed me back and said, 'Now, you've done it, you're going to get it.' And that was indication for me that he was going to hit me or put - something, so I punched him in the nose a few times and then I hit him in the ribs, and then I went off balance and ended up grabbing him in the - in the testicles. And then that was about it. Then he went down on his knees and I put him in a wristlock, and he - then he said to me, 'You've won. You've won. I give up.' And at that stage Kevin Reagan was standing about five feet away from me waving his arms saying, 'Stop it. Stop it'."

In cross-examination the appellant gave the court some further details of the background of the incident and his feelings at the time. He also explained, in more detail, the nature of the assault; the evidence was to the effect that he hit the complainant on the ribs, that he hit him with uppercuts, that he seized him by the testicles to disable him, that he threw about four or five punches into the complainant's face hitting him twice, and kicked him about twice. The complainant did not strike the appellant. With particular reference to the question of consent, the appellant said that the complainant was pushing against him and squeezing him and saying "I'm going to get you. Now, you've done it, I'm going to get you"; the appellant said "To me it was an invitation to fight".

In his address to the magistrate, then counsel for the appellant referred to the words "I'm going to get you" only as being a basis for a dismissal of the complaint on the ground of self-defence. The contention now raised is that the words just quoted or those to similar effect, coupled with the complainant's actions at the time, amounted to a consent to the assault, which was admitted. That was not specifically put to the magistrate, although there were general references to the question of consent. His Worship reviewed the evidence and, in his reasons for decision, referred to the defence of provocation, holding that it did not apply to the case. He said "...the picture that emerges from [the appellant's] own evidence is not that his reason was blinded but rather that he had decided to draw the line and make good his threat of physical violence". He went on to say in effect that the appellant did not act "on the sudden".

In essence, what the magistrate held was that the assault was committed by the appellant with deliberation, rather than because he lost control, and was committed to carry out his previous threats. These findings are inconsistent with a view that the reason for the assault was that the complainant consented to a fight or that the appellant thought that he had done so. While it is true that one can find a part of the evidence of the appellant, "...to me it was an invitation to fight", which suggests that the assault was a response to such an invitation, the thrust of the appellant's evidence was in accordance with the magistrate's conclusions.

Reference was made in the appellant's submissions to Lergesner v. Carroll [1991] 1 Qd.R. 206, in support of the view that an absence of consent is an element of an assault occasioning bodily harm; that decision was referred to in Robinson (Court of Appeal, 22 June 1994, unreported).

The evidence was that the appellant delivered a number of blows (including uppercuts while the complainant was on his knees) and kicks, apparently also inflicted when the complainant was no longer standing. These, according to uncontradicted evidence, produced significant injury. The argument advanced to us might have had some substance if there had been any real fight. What happened was that the appellant repeatedly struck the complainant, who did not retaliate or attempt to do so. In these circumstances it is understandable that the magistrate made no specific reference to the question of consent; his Worship presumably regarded that as not being a serious issue and that view of the matter was correct.

The appeal against conviction fails.

The magistrate recorded a conviction and, by way of penalty, ordered that the appellant pay $600 within 6 months to the Clerk of the Court at Cairns on behalf of the complainant and in default of payment ordered imprisonment for a period of 30 days. That order was challenged. In argument, the appellant's counsel Mr Lynch contended that the magistrate should not have recorded a conviction. The question was one within the magistrate's discretion and there is nothing to show that his Worship wrongly exercised that discretion. He expressed the view that recording a conviction would not affect the appellant economically or socially; that view of the matter is not challenged.

The only other point which it is necessary to make, concerning the penalty, is that it was suggested by counsel for the respondent that s. 35(2) of the Penalties & Sentences Act 1992 implies that compensation cannot be ordered unless there is imposed in addition some other penalty. The provision reads:

"An order may be made under subsection (1) in addition to any other sentence to

which the offender is liable".

Subsection (1) gives power to order, among other things, compensation for personal injury. Subsection (2) does not say that unless another sentence is imposed as well, an order may not be made into subs. (1), nor is that a reasonable implication.

The appeal against conviction is dismissed and application for leave to appeal against sentence refused.