Van Der Molen v Beehkuyzen

[1995] QCA 578

[1995] QCA 578

COURT OF APPEAL

DAVIES JA
PINCUS JA
MOYNIHAN J

CA No 254 of 1995

TRACEY LEE-ANNE VAN DER MOLEN

v.

JOHN BEEHKUYZEN  Appellant

BRISBANE

..DATE 13/10/95

JUDGMENT

PINCUS JA:  The appellant was charged with a number of offences allegedly committed on 18 February 1995 at North Ipswich, consequent upon an encounter he had with some other people, including the complainant.  He pleaded guilty to two charges arising out of the incident, but not guilty to one charge, the conviction on which is presently in issue - that was one of unlawfully assaulting Alfred George Colless and thereby doing him bodily harm.  The appellant's written submission makes a number of points which could be summarised, although they have been read and considered in detail.  It is said that there was no eyewitness testimony that the appellant hit the complainant.  It is suggested that the person in question was not assaulted, that the police officer gave unsatisfactory evidence, that the appellant grabbed a piece of wood to prevent himself from being further injured, that the complainant hit his head on the piece of wood, that the appellant believed he had not struck the complainant, that one of the witnesses discussed the case with the prosecutor before giving her evidence, and some lesser matters are mentioned.

In his oral argument today, Mr Beehkuyzen has told us, in effect, that he still does not believe he struck Mr Colless.  In fact, he seems confident that he did not do so, and he has become convinced, from reading the evidence again, that the injury which Mr Colless sustained was an accident when he moved forward and struck his head on a piece of wood. 

It appears to me that there are two possibilities.  Either the complainant was injured because in the course of a scuffle his head came into contact with a piece of wood, as I have just mentioned, or the appellant hit him with it.  The written outline seems to imply doubt on the part of Mr Beehkuyzen, as to whether he struck the complainant, but he now assures us that he does not believe he did so. 

The incident began when the complainant drove a 4 wheel drive vehicle to his daughter and son-in-law's house to load it up to go on holidays.  According to the prosecution case, the appellant, apparently objecting to the presence of the vehicle at a relatively early hour, threw oil upon it and the complainant's son-in-law remonstrated with him.  A scuffle ensued, in which the complainant joined.  Vicky Wilmott, the wife of Mr B Wilmott, who had remonstrated with the appellant (according to the Crown case, and this seems not to be disputed) picked up a large piece of wood.  Then the Crown's case is that the appellant got hold of the piece of wood, which was old and broken, and hit the complainant on the head with it.  That is the assault the subject of the conviction.

The critical part of the incident is described as follows, in the evidence of the complainant:

"And we were wrestling there for a while and then eventually we got up and I felt this blow on the head and I looked around and this fellow had a piece of wood in his hand."

The appellant says it is possible that in gaining the impression that he had been struck by the person who had the piece of wood, the complainant was mistaken.  The appellant put that:

"... There is no way that ... you could prove that I picked the wood up?"  The answer was, "I didn't see you pick it up.  All I know is, you had it after you hit me with it."

At that stage, the appellant's case seemed to be to put the prosecution to proof that he had possession of the piece of wood, but that issue is perhaps gone from the case. 
Mr B Wilmott said of the appellant that:

"... he had this piece of wood in his hand that we all grabbed for to try and contain it and then I noticed Alf was bleeding all over my left shoulder.  Blood was streaming down his face."

Mr Wilmott said that the appellant remarked a little later
"I will hit you in the fucking head too."  It is of interest to note that Mr Beehkuyzen does not dispute that he made that remark.  It appears to me that the cause of the injury to the complainant is, to some extent, a matter of inference, as no-one, as far as I can see from the evidence, claims actually to have seen the way in which the complainant received his injury.

But an obvious explanation, it must be said, is that which the Magistrate adopted.  A number of circumstances combined to support that inference.  One is that the appellant, it seems evident, was the initial aggressor.  The whole incident started by his throwing oil on the car.  The second is that according to the uncontradicted police evidence, the explanation he gave to them was not that the complainant ran into a piece of wood or accidentally came in contact with it, but he said "I must have punched him when I got a hand free."
The third circumstance pointing towards the correctness of the Magistrate's conclusion, is of course the evidence of the threat, admittedly made shortly afterwards, to hit someone else on the head. 

It is my view that the Magistrate was also entitled to take
into account the absence of any contradiction of the inference he was invited to draw.  That is, there was a strong circumstantial case that the person who caused the injury, which clearly came from contact with the piece of wood, was the person who was holding the piece of wood immediately after the injury occurred.  It would have been simple enough for the appellant, if he wished to argue against the drawing of the inference against him, to give evidence that he did not strike the complainant, but he refrained from doing so.  In those circumstances, the result was, in my view, practically inevitable.  In any event, it is not one with which we could interfere.  I would dismiss the appeal.

DAVIES JA:  I agree.

MOYNIHAN J:  So do I.

PINCUS JA:  The appeal is dismissed.

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