SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: / FREEMAN-QUAY v THE QUEENCitation: / [2016] ACTCA 43
Hearing Date: / 8 August 2016
Decision Date: / 6 September 2016
Before: / Burns, Elkaim and Ross JJ
Decision: / See [113]-[114]
Catchwords: / CRIMINAL LAW – appeal from a single judge of the Supreme Court – trial by judge alone – offence of grievous bodily harm – appeal against conviction – conviction unreasonable having regard to all of the evidence – reasonable possibility another person hit the complainant – appeal against conviction upheld.
CRIMINAL LAW – appeal from a single judge of the Supreme Court – offences against the person – assault occasioning actual bodily harm – plea of guilty – appeal against sentence – manifestly excessive – sentence not unreasonable – sentence not plainly unjust – appeal dismissed.
Legislation Cited: / Crimes Act 1900 (ACT), ss 20, 24, 25, 49
Criminal Procedure Act 1986 (NSW), s 133
Evidence Act 2011 (ACT), s 184
Supreme Court Act 1933 (ACT), ss 68C, 68D, 37O
Cases Cited: / Balthazaar v The Queen [2012] ACTCA 26
BCM v The Queen [2013] HCA 48; 303 ALR 387
DF v The Queen [2011] ACTCA 11
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Douglass v The Queen (2012) HCA 34; 290 ALR 699
Filippou v The Queen [2015] HCA 29; 256 CLR 47
Libke v The Queen [2007] HCA 30; 230 CLR 559
M v The Queen [1994] HCA 63; 181 CLR 487
Ngatamariki v R [2016] NSWCCA 155
RP v R [2015] NSWCCA 215; 90 NSWLR 234
R v Ellis (1993) 68 A Crim R 449
R v Freeman-Quay [2015] ACTSC 284
SKA v The Queen [2011] HCA 13; 243 CLR 400
The Queen v Hillier [2007] HCA 13; 228 CLR 618
TI v The Queen [2015] ACTCA 62
W v R [2014] NSWCCA 110
Parties: / Levi Freeman-Quay (Appellant)
The Queen (Respondent)
Representation: / Counsel
Mr D Dalton SC (Appellant)
Ms M Jones (Respondent)
Solicitors
Kamy Saeedi Law (Appellant)
ACT Director of Public Prosecutions (Respondent)
File Number: / ACTCA 42 of 2015
Decision under appeal: / Court: ACT Supreme Court
Before: Murrell CJ
Date of Decision: 4 September 2015
Case Title: R v Freeman-Quay
Citation: [2015] ACTSC 284
THE COURT:
Introduction
1. On 31 August 2015, following a judge alone trial, her Honour Murrell CJ found LeviFreeman-Quay (the appellant) guilty of causing grievous bodily harm to MatthewPridham (the complainant) on 21 September 2013, contrary to s 25 of the Crimes Act 1900 (ACT) (the Crimes Act): R v Freeman-Quay [2015] ACTSC 284 (R v Freeman-Quay). The appellant pleaded guilty to two associated offences, namely, that on 21 September 2013 he assaulted Ray Reynolds, occasioning him actual bodily harm, contrary to s 24 of the Crimes Act and he assaulted Ronnie Burt. On 4September 2015, the trial judge sentenced the appellant as follows:
(a) assault on Ray Reynolds occasioning actual bodily harm – six months imprisonment commencing on 4 September 2015;
(b) causing grievous bodily harm to the complainant – two years imprisonment commencing on 4 November 2015, suspended from 4 June 2016 upon the appellant entering into a Good Behaviour Order for two years; and
(c) common assault on Ronnie Burt – fined $750.
2. In total the appellant was sentenced to 26 months imprisonment, to serve 9 months by way of full-time imprisonment from 4 September 2015 to 3 June 2016, with the balance of 17 months suspended upon the appellant entering into a 2 year Good Behaviour Order on his release from custody.
3. The appellant appeals the conviction in respect of the charge of causing grievous bodily harm to the complainant on the ground that it is unreasonable having regard to all the evidence. The appellant also seeks an order that he be resentenced in respect to the charge of assault occasioning actual bodily harm on Ray Reynolds. He appeals on the ground that the sentence is manifestly excessive. The sentence appeal only relates to an adjustment of the sentences imposed if the conviction appeal is upheld. If the conviction appeal is dismissed then the sentence appeal will not be pressed separately.
4. On 24 November 2015, the conviction was stayed and the appellant granted bail, having served 2 months and 21 days. It is common ground that if the appeal is dismissed the sentence remaining is 23 months and 10 days and that having regard to time served there is 6 months and 8 days to be served before the sentence is suspended.
5. We propose to first summarise the trial proceedings before turning to legal principles relevant to conviction appeals and a consideration of the submissions advanced on the appeal.
The Trial
6. On 25 May 2015, the appellant was arraigned on an indictment dated 16 March 2015 as follows:
(a) count 1 (CC2016/8493): recklessly inflict grievous bodily harm on the complainant on 21 September 2013 (s 20 of the Crimes Act );
(b) count 2 (XO2015/30183): assault Ray Reynolds and occasion to him actual bodily harm (s 24 of the Crimes Act); and
(c) transferred charge (CC2014/707): assault Ronnie Burt (s 26 of the Crimes Act).
7. The appellant pleaded not guilty to the first count and guilty to the second count. The related offence of common assault on Ronnie Burt, arising out of the same incident, was transferred from the Magistrates Court to be dealt with at the same time pursuant to s 68D of the Supreme Court Act 1933 (ACT) (the Supreme Court Act).
8. The appellant elected to be tried by a judge alone. The trial commenced on 25May2015, with the evidence concluding on 29 May 2015. Submissions were continued on 31 July 2015. On 31 August 2015, the trial judge found the appellant not guilty of recklessly inflicting grievous bodily harm on the complainant (count 1), but guilty of the statutory alternative of causing grievous bodily harm to the complainant, pursuant to s 49 of the Crimes Act. The trial judge found the appellant guilty of the transferred charge of common assault on Ronnie Burt. The appellant had pleaded guilty to the offence of assaulting Ray Reynolds and occasioning to him actual bodily harm.
9. The charges arise from the one event that took place in the early hours of Saturday, 21September 2013. The appellant met up with two friends in Civic: Tyler Stevens and Alexander Bower. They encountered another group comprising the complainant, RayReynolds, Ronnie Burt, Abby Pratt, Jessica McCallion and Samuel Thomas. Words were exchanged between the groups. Mr Burt became involved. As Mr Burt and the complainant walked away from the appellant, the appellant grabbed Mr Burt by his hoodie pulling him backwards (constituting the transferred assault charge). The two groups then came to face each other. There was evidence that at some stage the complainant attempted to headbutt Mr Stevens, and Mr Stevens grabbed the complainant to restrain him. The Crown case at the trial was that the appellant then forcefully punched the complainant to the face, causing him to fall straight back on to the pavement. The appellant then punched Mr Reynolds to the face causing bruising and swelling - this was admitted by the appellant. The complainant suffered a severe brain injury.
10. Under s 184 of the Evidence Act 2011 (ACT) the appellant made admissions of fact to the following effect:
(a) the incident on 21 September 2013 resulted in severe traumatic brain injury to the complainant, which amounts to grievous bodily harm; and
(b) the accused was present at the incident and is the man wearing a white t-shirt in the CCTV footage.
11. Accordingly, there was no issue that the complainant suffered a serious head injury, nor was there any issue that the injury amounted to grievous bodily harm.
12. In his opening address trial counsel for the appellant identified the issues in the case as being what caused the complainant to fall to the ground and, if it was due to a blow, who struck the blow. The trial judge framed the contentious issues this way at [10]:
As a matter of practical reality, in this trial I must be satisfied beyond reasonable doubt that:
(a) The punch that caused the complainant to fall was delivered by the accused. I must dismiss the reasonable possibility that it was delivered by Mr Stevens.
(b) The accused did not deliver the punch in defence of Mr Stevens.
(c) When the accused delivered the punch, he was reckless about whether it would cause grievous bodily harm to the complainant. In considering this matter, I must take into account the fact that the accused was intoxicated.
13. It is common ground that the incident giving rise to the charges took place at about 1:30 am on 21 September 2013 on the footpath outside the ACTEW building in Civic.
14. The people present during the incident can be divided into two groups, the appellant’s and the complainant’s, as follows:
Complainant’s group / Appellant’s group· Ray Reynolds – victim of assault occasioning actual bodily harm, grey top, jeans, white shoes
· Abby Pratt – wearing white high heels
· Matthew Pridham – the complainant
· Ronnie Burt – victim of assault, hoodie incident, jeans, black t-shirt
· Jessica McCallion – other female in group
· Samuel Thomas – dark top black shoes / · Tyler Stevens – in blue shirt, brown pants
· Alexander Bower – in white shirt, bald head
· Appellant – white t-shirt, black jeans
15. Evidence of the actual incident came from CCTV footage and witnesses who were present: Abby Pratt who gave evidence of seeing the punch land on the complainant. Ray Reynolds, the victim of the punch the subject of count 2, Tyler Stevens and Alexander Bower also gave evidence. Other evidence led in the Crown case included some limited evidence from a biomechanical engineer Dr Andrew Short, evidence of the informant, Detective Senior Constable Matthew Challenger, two further police witnesses and another friend of the accused who arrived on the scene after the incident, Christopher Filipe. The appellant did not call any evidence.
16. The issues at trial were whether it was the accused who delivered the punch that caused the complainant to fall and whether that punch (directly or indirectly) caused the complainant to suffer severe brain injury. In her judgment the trial judge observed that the prosecution case on these issues turned on what may be characterised as circumstantial evidence.
17. As to the approach to be taken in such a case the trial judge said at [14]:
In a circumstantial evidence case, the tribunal of fact must first determine the circumstances that are established by reliable evidence. The tribunal must then consider the established circumstances as a whole and decide whether, having regard to all the established circumstances and any direct evidence, the only available rational inference is that the accused is guilty
18. On appeal there is no criticism of the trial judge’s formulation of the relevant legal issues.
19. The trial judge found that the circumstances established by the uncontested evidence, when considered together with the evidence of Ms Pratt established that the only rational explanation for the complainant’s fall was that it was caused by a forceful punch delivered by the appellant.
20. CCTV footage was tendered at the trial. It is common ground that the two most relevant files are the ‘Bunda St Cnr Bible’ file and ‘Bunda St Cnr Mort’ files. Both files capture the incident but there is no footage clearly depicting a punch hitting the complainant causing him to fall.
21. In the CCTV footage, the complainant is wearing grey. Mr Reynolds is also wearing grey, but can be distinguished by his white shoes. Ms McCallion is wearing a white jacket. Mr Burt is wearing a black “hoodie” over a black shirt. Mr Thomas is wearing a black top. Ms Pratt is wearing a bright pink or red dress and white shoes. The accused is wearing a white t-shirt and jeans. Mr Stevens is wearing a blue shirt and beige pants. Mr Bower is wearing a long-sleeved white shirt and tie, and is also distinguishable because he is bald.
22. The trial judge found that the CCTV footage depicted the following at [22]:
1:29.43am / Mr Stevens is standing near a wall and using his mobile telephone.1:30.07am / The complainant and Mr Reynolds are standing near the accused. The complainant may be speaking to the accused.
1:30.18am / Mr Burt shepherds the complainant away from the accused.
1:30.28am / The complainant looks back towards the accused and Mr Bower, and may be speaking.
1:30.29am / The accused speaks to Mr Bower.
1:30.36am / The accused walks away from Mr Bower, towards the complainant’s group.
1:30.43am / The accused grabs the back of Mr Burt’s “hoodie” and pulls him backwards. There is a “tug o war” over the “hoodie” and the accused succeeds in pulling it off Mr Burt.
1:30.45am / The complainant circles around the accused, next to the kerbside of the road, and is looking towards Mr Stevens. Mr Stevens walks towards the group with his hands in his pockets.
1:30.47am / The complainant lunges towards the accused with his left hand extended as though to grab or strike at the head of the accused. The complainant then steps back.
1:30.50am / Mr Reynolds steps between the accused and the complainant. Mr Stevens stands to the right of the accused, and between the complainant and the accused.
1:30.52am / The complainant’s attention is focussed on Mr Stevens. The complainant circles to the right of Mr Stevens, which brings him closer to the accused.
1:30.53am / The complainant draws back and then attempts to head-butt Mr Stevens. Mr Stevens does not “duck” the attempt. He moves forward towards the complainant and struggles with him. The complainant raises his arms towards Mr Stevens in a fighting stance, and moves forward towards Mr Stevens and the accused.
1:30.54am / The accused draws his right hand and shoulder back, and then steps forward, bringing his right arm over Mr Steven’s left shoulder, and delivering a strong punching motion towards the complainant and Mr Reynolds (who is facing the accused). Mr Reynolds’ head moves back and to his left. It is not possible to see whether the punch delivered by the accused connects with the complainant. At this stage, the group is compressed.
At the time when any impact would have occurred, one of the complainant’s legs is visible. It is vertical to the ground and thereafter it falls towards the pavement without any apparent hesitation or break in the fall.
Mr Reynolds positions himself between the complainant, and the accused and Mr Stevens.
1:30.55am / Mr Stevens lifts his right arm towards the complainant.
The complainant’s body strikes the pavement.
1:30.56am / The accused punches Mr Reynolds with his right hand, and Mr Reynolds stumbles backwards.
1:31.00am / Mr Stevens stands over the complainant, who is lying on the pavement.
Mr Reynolds places the complainant in the recovery position.
1:31.03am / Ms McCallion remonstrates with Mr Stevens.
1:31.15am / Ms Pratt remonstrates with the accused before Mr Bower escorts the accused from the scene.
1:31.56am / Mr Burt remonstrates with Mr Stevens.
As Mr Bower and the accused are walking down Mort Street, the accused removes his right hand from his pocket and examines it.
Mr Stevens runs to catch up with the accused and Mr Bower, and they are followed by Mr Christopher Filipe, who also runs.
23. As to Ms Pratt’s evidence, the trial judge found her to be an honest witness, who gave evidence in a ‘natural manner’ and was ‘genuinely doing her best to recall the events of 21 September 2013’. Her Honour accepted Ms Pratt’s evidence that she saw the blow being struck. The trial judge made the following observations about Ms Pratt’s view of the incident at [32]: