Caddies v Birchell [2017] QDC 274

DISTRICT COURT OF QUEENSLAND CITATION: Caddies v Birchell [2017] QDC 274 PARTIES: ALAN DAVID CADDIES (appellant) v BENJAMIN EDWARD MALCOM BIRCHELL (respondent) FILE NO/S: MAG77279/15; D192/2016 DIVISION: PROCEEDING: Criminal Appeal ORIGINATING COURT: Magistrates Court at Townsville DELIVERED ON: 15 November 2017 DELIVERED AT: Brisbane HEARING DATE: 9 June 2017 JUDGE: McGill SC DCJ ORDER: Appeal dismissed. CATCHWORDS: CRIMINAL LAW – Appeal against conviction – whether finding on credibility inconsistent with objective facts – whether appellant guilty on appellant’s own evidence. CRIMINAL LAW – Provocation – whether an omission can amount to provocation – whether conduct capable of provoking – whether appellant provoked. CRIMINAL LAW – Self defence – whether assault unlawful – whether force reasonably necessary to make effectual defence – whether open to appellant to withdraw. Criminal Code ss 267, 269, 271, 277. Allesch v Maunz (2000) 203 CLR 172 - cited. Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 – cited. Commissioner of Police v Al Shakarji [2013] QCA 319 – cited. Fox v Percy (2003) 214 CLR 118 – cited. McDonald v Queensland Police Service [2017] QCA 255 – applied. R v Cuskelly [2009] QCA 375 – cited. Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 – cited. -- 1 of 12 -- 2 Rowe v Kemper [2009] 1 Qd R 247 – cited. Shambayati v Commissioner of Police [2013] QCA 57 – applied. Walker v Davlyn Homes Pty Ltd [2003] QCA 565 – applied. White v Commissioner of Police [2014] QCA 121 – applied. COUNSEL: DW Honchin for the appellant SL Jerome for the respondent SOLICITORS: Stevenson & McNamara Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent [1] After a trial in the Magistrates Court at Townsville on 3 June 2016, the appellant was convicted of one count of assault occasioning bodily harm, committed on 12 December 2014. The appeal was only against conviction, as I was told that the appellant has not yet been sentenced for the offence. A number of matters were raised in the course of the argument for the appellant. [2] The appeal is brought under the Justices Act 1886, s 222. The appeal is by way of rehearing on the record, since neither side sought to lead further evidence: s 223. On an appeal by way of rehearing, it is necessary for me to consider the evidence and make up my own mind, particularly in relation to matters involving the drawing of inferences to primary facts, having due regard to the advantages that the magistrate had in seeing and hearing the witnesses, and in being conscious of the atmosphere of the trial generally.1 In the proceedings before me, the onus is on the appellant to show that there was some error in the decision under appeal.2 Background [3] The appellant and the complainant were formerly in a relationship. There is one child of the relationship, who is the subject of an order made in the Family Court: Exhibit 1. For some time prior to the date of the offence it had been the practice for the appellant to call at the home of the complainant in order to collect the child on the occasions when the child was to live with the appellant. On 12 December 2014 when the appellant arrived the child came out to his car, but informed him that he did not want to go with him that weekend, and returned to the house. The appellant left his car and a conversation occurred between the appellant and the complainant as a result of which the complainant went back into her residence, and later returned and informed the appellant that she had been unable to convince their son to go with him. 1 Fox v Percy (2003) 214 CLR 118 at [22] – [25]; Rowe v Kemper [2009] 1 Qd R 247 at [3] – [5]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7]; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at [43], [57]; McDonald v Queensland Police Service [2017] QCA 255 at [47]. 2 Allesch v Maunz (2000) 203 CLR 172 at [23]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [16]; Walker v Davlyn Homes Pty Ltd [2003] QCA 565 at [9]; Shambayati v Commissioner of Police [2013] QCA 57 at [23]; White v Commissioner of Police [2014] QCA 121 at [8]; McDonald v Queensland Police Service [2017] QCA 255 at [47]. -- 2 of 12 -- 3 [4] The magistrate found that the appellant then sought to force his way into the residence, which was initially prevented by his path being blocked by the complainant, who was able to push him back a little from the door, but he then punched her a number of times before entering the home unit. The complainant followed him into the unit and there was a further confrontation between them inside, during which she said she was again punched a number of times. As a result of this, the child was upset and yelling at the appellant, who then left the unit and drove away. [5] There was one count of assault occasioning bodily harm, though the evidence disclosed two extended periods of assault on the complainant. No issue was taken as to duplicity in the complaint, either at the hearing or before me. It was specifically conceded that the complainant had suffered bodily harm as a result of what the appellant had done to her. Evidence - The complainant [6] The complainant gave evidence that on the occasion her son went out to the car, opened the door, said he was not going,3 then walked back to the unit: p 9. The appellant yelled for the son to get in the car, then turned off the engine, got out and walked up to the front door where she was standing. She said the appellant said that she needed to get the son to go with him or he would go into the house and get him himself. She replied that he was not going into her house, and that she would speak to the son. Her evidence was that she attempted to persuade the son to go but he refused to do so. She went back and told the appellant what he had said, and his response was that she needed to get him or he would go inside and drag him out himself: p 10. [7] After some further arguing, the appellant attempted to come into the unit and she put her arms up to block him: p 10. She was able to block him a couple of times, then he punched her on the cheek: p 11. The appellant then pulled her away from the front door, and she attempted to use her mobile phone, but he punched her again: p 12. She dropped the phone and when she bent to pick it up he punched her again a number of times, causing her to back away from him: p 13. She said she attempted to pick up a pot plant but it was too heavy: p 15. She said she was struck again and backed further away, then the appellant went into her unit. She followed him in and went to the telephone in the kitchen and attempted to phone the police, whereupon the appellant began to punch her again: p 17. She then heard her son yelling for him to stop. The appellant stopped and left the unit, and she called the police. [8] She identified a number of photographs showing injuries to her face, an injury behind her right ear which required stitches, and some bruises on her arms and shoulders. She was later treated at the Townsville Hospital: p 20. No material concessions were made by the complainant under cross-examination. She denied the version put to her as the appellant’s version in some detail. Much of the cross-examination was irrelevant and at one point (p 39) appeared to proceed on the basis that the effect of the Family Court order was that the appellant was entitled to enter the unit and take his son away by force. Clearly it gave him no such right.4 - A neighbour 3 Complainant p 8: This was not hearsay, but original evidence. 4 Though at the time the appellant thought it did: he told the police as such: Exhibit 4, transcript p 5, p 10. -- 3 of 12 -- 4 [9] Evidence was given by a man who lived across the road at the relevant time. He said that after he heard an argument across the road, he went through the door to his upstairs balcony to see what was going on: p 47. He said he saw the complainant backing out from her unit and being punched continuously until she got to the back of the wall: p 48, that is, a wall between the two units away from her carport. He then saw the appellant go into the complainant’s unit: p 50. She followed him in, and there was more screaming and swearing going on. He then went down and opened his front door, but he could only move slowly and by the time he got out the front door the appellant was walking back to his car: p 49. Under cross-examination he said that his view was not obstructed by palm trees growing in his front yard: p 54. When he saw them, they were moving towards the dividing wall separating the complainant’s house from the semi-detached next door: p 57. He did not see her actually come out of her front door: p 57. He said that he did not see any pushing, it was just the complainant defending herself: p 59. He did not recall saying to police that night that the complainant gave the appellant a push away from her. - The appellant [10] The appellant, in his evidence, agreed that the son had said he was not going, and went back inside, and that after speaking to the complainant she went inside and then reappeared and said the son did not want to go. He said he then indicated to the complainant that he would come inside and get him and tried to walk towards the door, when the complainant pushed him hard in the chest, causing him to fall over backwards: p 22. He said that while he was on the ground the complainant picked up a rather large pot plant that was next to her and tossed it towards him, and it fell and impacted on his foot: p 2-22. He said the pot was blue. He said that he then crawled away backwards to get on his feet again (p 2-23) and he felt a lot of pain in his foot. When he got to his feet he noticed his left shoe had come off, and he then saw that the complainant had her fist raised, “it was indicating that she wanted a fist fight”. [11] He put his foot back into his shoe while moving his head out of the way of the complainant’s lunging towards him with her fists, and after he got his shoe on he took a step backwards and threw a short jab, missed, and repeated that two or three times. He stopped walking backwards, stood his ground and they had a fist fight, and he managed to “strike a very clean right hand which seemed to shock or stun” the complainant. She then came forward again (p 2-24), her hands swung again, and again he connected with “a good right hand”. The complainant turned away from him, and then he “struck her with two right hooks to the side of the head”: p 2-25. He said he did this because “she was still standing and still quite dangerous”. He then went inside to talk to his son. The complainant followed him inside, went into the kitchen and armed herself with a bottle which she held by the neck. He said he then started punching her: p 2-26. She retreated out of his range, and he left. [12] After he got home that evening he telephoned triple zero and had a brief conversation with the operator, which was recorded and which was put in evidence: Exhibit 8. He said he had had a big domestic and a big fight and that she had probably called the police, and “I want to give my version”. He said “we are both injured I’m sure”. He accepted that the purpose of that call was not to make a complaint to the police: p 2- 43. When the police came later that evening he had a conversation with them which was recorded in a field tape: Exhibit 4. During that conversation he told the police that the complainant had hit him over the head with a pot plant, which had cracked right on his face; something else happened, and he thought the pot plant fell on his -- 4 of 12 -- 5 foot. He told the police that she started clawing, scratching at him and ripped his clothes, and “we got into a fight at that point”. [13] On the field interview the appellant accepted that he left after his son started crying: Exhibit 4 and see p 2-40. He said under cross-examination at one point that his foot “started to become rather painful when I got home”: p 2-28. He also said that his head hurt, the front of his face was very sore, the back of his head was sore and he had bruises all over his body. Two photos of him (which became Exhibit 9) were taken while he was waiting for police to arrive. These show some darkening around his left eye, the pocket of his shirt torn, and some dirt marks on the back of his shirt. He said that another photo (Exhibit 10) was taken a few days later. This shows some bruising in the corner of the left eye, and in the area above the eye. Overall it does not look as dark as the area around the left eye in Exhibit 9, but that photograph was taken with the light coming from the appellant’s right side, so that the area of his left eye was to some extent in the shadow. The explanation he offered initially for claiming to have been hit on the head with the pot plant was that his memory was very jumbled up at that point: p 2-31. Later when asked to explain the discrepancy he said: “The police wanted to know what had happened, and I didn’t know what had happened and that’s the best I could come up with at the time”: p 2-62. [14] Under cross-examination he denied that the complainant had said that he was not going into her house (p 2-38), but agreed that he was not given permission to enter and that his intention was to go into the house and talk to his son “and get him if necessary”: p 2-35. He agreed that he delivered blows to the side of the complainant’s head while she was turned away from him, but denied that this was at a time when she was bent over trying to pick up her mobile phone: p 2-39. During this visit he did not make a formal complaint to police about being assaulted by the complainant; when asked if he would like to he said that he was then unsure: p 2-44. On the other hand, in his evidence he said that the pot plant was picked up by the complainant using both hands near her body to about waist height and then she threw it at him: p 2-46. He agreed there were no handles on the pot, and said it was thrown rather than being dropped on him: p 2-46. [15] At one point under cross-examination when he was asked about how long it took the complainant to pick up the pot plant and do what he said she did with it he said “I do remember lying on my back. The world is sort of spinning, and I can see her with the pot plant in her hand and I am sort of reaching out towards her”.5 At one point in cross-examination it was put to the appellant that during his recorded interview on 6 February 2015 he said that he stood up and the complainant was in the front door, and he denied that he said that: p 2-52.6 Under cross-examination he said they were both standing but in front of the unit. [16] When asked whether he could have walked away at that point he agreed that he could have walked away and said he did try to back away when the complainant was coming towards him: p 2-52. When asked whether he was angry with the complainant he said he was annoyed but he would not say he was angry: p 2-53. The appellant accepted under cross-examination that, as he put it, he shouldn’t have invited himself in: p 2- 53. The appellant accepted under cross-examination that the injuries suffered by the complainant had been caused by his punches on this occasion: p 2-61. 5 Appellant p 2-50, a very evasive answer. 6 In fact he said when he stood up she was in front of her door, and later moved to his left: Exhibit 5 transcript p 12. -- 5 of 12 -- 6 Police officers [17] Two police officers gave evidence, including the respondent, who attended the complainant’s residence after the incident and had a conversation with the complainant, who was being treated by an ambulance paramedic, and subsequently taken to hospital: p 65. He looked into the complainant’s unit but did not observe any damage in there; he saw the partner’s son in his bedroom: p 66. About 20 minutes later he and his partner went to the appellant’s residence where he spoke to the appellant and obtained a version of what had happened from him. He said that while he was there he noticed the appellant was not wearing shoes, and that there was a bruise on one of his ankles: p 66. There was also some swelling of the foot: p 76. He also saw some redness to his face which looked like he was flushed but did not see any swelling or any marks of an injury: p 76. The pocket of his shirt was torn, and there were dirt marks on the back of it: p 66, p 77. [18] He later returned to the complainant’s residence where he looked for any indication that a pot plant had been disturbed, but did not find any: p 69. By this time it was dark. He said most of the pot plants there were fairly small and in plastic pots, but there was one in a large blue pot, which he did not try to lift: p 72, 3. The respondent was cross-examined about the wording he had put in an application for a protection order under the Domestic and Family Violence Protection Act 2012: p 79 +. That was relevant to his credibility but, that application having been completed by him, it was not a prior statement by either the complainant or the appellant, and was not relevant to the credit of either of them. Again there was a good deal of irrelevant cross-examination of this witness. [19] The other police officer who was with the respondent that night also gave evidence, essentially along the same lines as that of the respondent. He also said that when they spoke to the appellant he noticed that the pocket on his shirt was ripped, and that he had a swollen foot: p 2-7. He also said that he did not see any evidence of disturbed plants or anything unusual about the pot plants when they went back to the complainant’s residence: p 2-12. Nothing of relevance emerged during his cross- examination. [20] The remaining witness was an orthopaedic surgeon who gave evidence about an injury to the appellant and its treatment; it is more convenient to deal with that evidence later. Magistrate’s decision [21] The magistrate recited the facts, broadly speaking in line with the evidence given by the complainant. The magistrate referred to the evidence of the appellant, and noted the difference between the version given that evening during the visit by the police officers and the evidence, and indeed with what had been said during the later interview with the police. [22] The magistrate said he was not impressed by the appellant as a witness, and noted inconsistencies in his different accounts of the incident. The magistrate then dealt with the submission that there was a defence of provocation, which he rejected. The magistrate accepted the evidence of the complainant as being honest and accurate. In particular he rejected the proposition that she had lifted the blue terracotta pot and dropped or thrown it at the appellant. He also accepted her evidence that she was repeatedly attacked and punched by the appellant. He considered that the -- 6 of 12 -- 7 complainant’s evidence was supported by the evidence of the neighbour, so far as it went, and in particular that it showed that the complainant was not fighting back when she was being attacked by the appellant. [23] The magistrate accepted that the appellant had suffered an injury to his foot but said he was unable to identify how he came to suffer that injury, but he was satisfied it was not as a result of any deliberate act with a pot plant of the complainant. He also did not accept the appellant’s evidence that he was threatened by the complainant with the bottle after he entered the unit. On this basis he rejected a defence of self- defence. He concluded therefore that the assault on the complainant was not authorised, justified or excused by law, and noted the concession that the injury sustained during the assault amounted to bodily harm; on that basis he found the appellant guilty of the offence. Grounds of appeal [24] The grounds of appeal relied on in the notice of appeal include that the prosecution had not negatived self-defence, provocation, or the proposition that the parties were involved in a consensual fight, that the conviction was unreasonable or against the weight of the evidence, and that a number of findings of facts favourable to the complainant made by the magistrate were unjustified or contrary to the evidence. [25] Some of these grounds can be speedily dealt with. In my opinion it is clear that the defence of provocation was not raised on the evidence. The argument of the appellant was that the provoking conduct was the complainant’s failure to comply with her duty in relation to the order of the Family Law Act. The first difficulty with that argument is that that is not an act or insult, but an omission, and there is no provision in s 269 for provocation by something which is a mere omission. The code deals separately with acts and omissions in a number of places,7 and therefore the omission of “omission” from s 269 is deliberate. It is what one would expect, since the concept of being provoked by a mere omission is inherently unreasonable. [26] Apart from that, the magistrate found that the provocation was not of such nature as to deprive an ordinary person of the power of self-control, and that the appellant was not himself deprived of the power of self-control; in the later finding the magistrate relied on the appellant’s evidence. The former finding, in my opinion, was clearly right, and I entirely agree with it. An ordinary person might be angered or upset by the failure to obtain the benefit of an order in relation to possession of a child, but I do not consider that the omission on the part of the complainant to do more than she did on the present occasion, even on the appellant’s evidence, would amount to conduct of such a nature as to deprive an ordinary person of self-control so as to induce that person to assault the complainant. [27] In relation to the question of whether the appellant was in fact deprived of the power of self-control, the appellant’s own description of his actions on that occasion indicate that it was not the mere omission of the complainant to do more to cause the child to go with his father that led to the assault, but rather the complainant’s attempts to prevent the appellant from entering the unit. Those attempts led initially to a pushing contest which on the appellant’s version he lost, and it was only at that point, well after the conduct relied on as provocation, that he resorted to physical violence to overcome the complainant’s resistance to his entering the unit. Overall, there was 7 See for example Criminal Code ss 11-14, 16, 22-25, 27, 29-31, 34. -- 7 of 12 -- 8 clearly no defence of provocation in the circumstances of this matter. Indeed, counsel for the appellant virtually abandoned reliance on provocation during oral submissions. [28] With regard to self-defence, that in my opinion was also not available to the appellant. The position is that the appellant was attempting to force his way into the complainant’s home unit, and the complainant was entitled to use force reasonably necessary to prevent his doing so, pursuant to the Criminal Code. There are two relevant provisions in relation to the protection of the premises in this case. Section 277(1) provides: “It is lawful for a person who is in peaceable possession of any land, structure, vessel or place … to use such force as is reasonably necessary in order to prevent any person from wrongfully entering upon such land, structure, vessel or place, or in order to remove therefrom a person who wrongfully remains therein, provided that he or she does not do grievous bodily harm to such a person.” [29] That section would not have assisted the complainant in her initial attempts to prevent the appellant from entering the premises if in fact it was her action which caused grievous bodily harm in the form of a fracture of the bone in the appellant’s left foot. Once he entered the premises however it was lawful to use such force as was reasonably necessary in order to remove him from there, as long as she did not at that point cause further grievous bodily harm to him. [30] Apart from that, s 267 provides: “It is lawful for a person who is in peaceable possession of a dwelling … to use force to prevent or repel another person from unlawfully entering or remaining in the dwelling, if the person using the force believes on reasonable grounds – (a) the other person is attempting to enter or remain in the dwelling with intent to commit an indictable offence in the dwelling; and (b) it is necessary to use that force.” [31] That section in my view is not subject to the same limitation about not causing grievous bodily harm, and applied here because the complainant at the time believed on reasonable grounds that the appellant was intending to enter the dwelling in order to take their son by force, which would have involved an assault upon the son, which would have been an indictable offence committed in the dwelling. The appellant conceded that he was not given permission to enter the premises (p 2-35) but that after he was told that his son did not want to come with him he decided to go into the house and get him, presumably by force: p 2-22, p 2-35. It is clear therefore that at that stage his position was that he was going into the house and taking the son, if necessary by force. When speaking to police later on that day, he said that he had the right to go and get him to bring him out, that is, that he had the right to enter the dwelling and remove the son by force.8 [32] In those circumstances it was lawful for her to use such force as she believed on reasonable grounds was necessary in order to prevent or repel him from entering the dwelling. It has been said that the section gives effect to a policy of the law which recognises a legitimate use of force to defend hearth and home and to prevent the 8 Transcript, Exhibit 4. -- 8 of 12 -- 9 commission of offences by others in one’s home, and that a person defending his or her home need not retreat from a threat even if retreat is a reasonably available way to make effectual defence: R v Cuskelly [2009] QCA 375 at [29], [30]. On the face of it therefore the complainant was entitled to use whatever force she believed on reasonable grounds was necessary to prevent the appellant from entering her home, even if that caused him grievous bodily harm. [33] In these circumstances, on the appellant’s evidence what the complainant did did not amount to an unlawful assault on him, laying the foundation for a right of self- defence. Apart from that, it is in my opinion abundantly clear from the evidence that at all times it was entirely unnecessary for the appellant to use any force to defend himself, because it was always open for him to desist from his attempts to enter the premises, to get back into his car and to drive away. At one point he spoke about moving away from the complainant, which had the effect of avoiding any further attack upon him, something which on his account must have occurred before he did anything to her which caused her an injury. At that stage he clearly had the option to leave the premises and thereby prevent any further attack upon himself, and his failure to do so demonstrates that he was not thereafter in fact acting in self-defence. Rather, he was acting to prevent her interfering with his attempt to enter her unit. This was an excellent opportunity to withdraw. [34] Even if he had been the subject of an unlawful assault, in my opinion on his own evidence the force used by him was more than was reasonably necessary to make effectual defence. When she turned away after he landed a hard blow on her, she had again ceased to threaten him. The fact that she was still standing did not justify a further violent assault upon her. From the photographs he was a fit and strong young man and she was overweight and obviously unfit. Again, there is no substance to this argument, even on the appellant’s account of what occurred on that evening. [35] The notion that the parties were engaged in a consensual fight is ludicrous, even on the appellant’s account. Significance of the broken foot [36] The substantial matter in issue on the appeal was whether there was an error on the part of the magistrate, in that the magistrate failed to find that the complainant had caused the injury to the appellant’s foot, and that whether as a result the magistrate had failed to use or palpably misused his advantage in determining issues of credit. The appellant’s argument was that, in circumstances where the appellant had suffered a fracture of a bone in his foot, the symptoms of which were observed by the police officers who had come to his residence shortly after the incident, and where there was medical evidence that such an injury was consistent with a trauma such as having a heavy pot plant dropped on the foot, and where the complainant’s account did not explain any injury suffered by the appellant’s foot, the finding that the complainant was an honest and reliable witness was inconsistent with the fact of the injury. [37] This was particularly so in circumstances where the magistrate had failed to provide any alternative explanation for the injury, nor was one available on the evidence. It was submitted that in circumstances where it was not shown that the injury was not suffered by the appellant in the way in which he claimed, the magistrate could not properly accept the evidence of the complainant, because her account did not explain how the injury could have otherwise occurred. All the magistrate had said about this -- 9 of 12 -- 10 in his decision was that he accepted that the appellant had suffered an injury but was unable to identify how he came to suffer that injury, except to say that it was not as a result of a deliberate and calculated tossing, throwing or dropping of the pot plant on his foot by the complainant: p 7. That of course was not quite the issue that the magistrate had to resolve. [38] The question of whether the plaintiff’s foot was injured by the complainant, by being struck by a pot plant which the complainant had dropped, was on my analysis of the evidence of the appellant only relevant to the credibility of the complainant, in circumstances where the complainant had denied that such a thing had happened. It was not just that the complainant denied that she had deliberately dropped or thrown the pot plant on to his foot, but denied that the pot plant was lifted by her at all, and denied that it came into contact with the appellant’s foot. The complainant said she attempted to lift a pot plant to defend herself, but that it was too heavy and she was unable to do so. On her account, the injury to the foot was unexplained. [39] The appellant’s case was assisted by the evidence of an orthopaedic surgeon who had been involved in his treatment, who confirmed that the appellant had suffered a fracture of the base of the fifth metatarsal in his left foot: p 91. The fracture was quite displaced so that surgery was needed, and a plate and screws were used to reset the bone: p 92. The surgeon expressed the view that the injury met the definition of grievous bodily harm: p 93. After the injury, he would expect the foot to be painful and produce a limp or antalgic gait: p 94. He said that the pain could be masked by adrenalin or by alcohol: p 95. He said the injury was consistent with the foot being struck with a heavy object such as a pot plant being dropped on it while the appellant was lying down: p 95. The injury could also be caused by striking a solid object with the foot, p 97, but it would have to involve a direct blow in the area of the metatarsal, rather than, for example, striking a solid object with the toes: p 98. On this evidence the injury was not consistent with his having kicked a solid object in a moment of temper after the incident, and more consistent with the direct application of some force to that part of the foot, such as by dropping something heavy on it. [40] In this way it can be seen that the fact of the injury provides support for the version of events given by the appellant in his evidence in court, and in a later interview with the police on 6 February 2015, which was generally consistent with that evidence. This evidence provides particular difficulty for the credibility of the complainant, since her account provides no explanation for the injury to the foot. It is I suppose possible that the injury could have occurred at some time after the confrontation between the appellant and the complainant, before the police arrived, but it strikes me as unlikely that such an injury would have been suffered by the appellant after he arrived home and be manifesting some visible signs of injury in the form of swelling and the formation of a bruise by the time the police arrived, not that long after.9 [41] It is unfortunate that the neighbour was not asked to comment on whether or not the appellant was limping when he saw the appellant walking back to his car before he drove away. However, on the evidence before the magistrate I consider that the existence of the injury to the appellant’s left foot, the evidence of the police officers who attended his home, and the evidence of the orthopaedic surgeon together provided a basis for the magistrate to have at least a reasonable doubt about the 9 The police would have been there within an hour of the incident. Unfortunately the surgeon was not asked to express a view as to how long it would take for the signs observed by the police officers to manifest themselves. -- 10 of 12 -- 11 reliability of the evidence of the complainant, so that it was not open to him on the evidence simply to accept her as an honest and reliable witness in all respects. I am conscious of the respect that should be shown to a magistrate when conducting a trial of this nature, particularly in relation to findings as to credibility of witnesses, but I consider that the injury to the appellant’s foot cannot be satisfactorily put aside simply on the basis that it cannot be explained but was not caused by the complainant. To that extent, I disagree with the approach adopted by the magistrate in finding the facts. [42] It does not however necessarily follow that the appeal against conviction must be allowed. It is still necessary for me to consider whether, on the whole of the evidence before the magistrate, the appellant’s guilt of the charge had been proved beyond reasonable doubt. It must be said that the evidence to which I have referred casts some reasonable doubt on the evidence of the complainant, but it does not mean that it automatically leads to a conclusion that the appellant’s evidence should be accepted, or that there are no difficulties for the appellant in his account of the events. On his account the complainant was standing in front of the door, the appellant attempted to go past her to enter, and she then pushed him in the chest causing him to fall backwards onto the ground. It was then that she picked up the pot plant and dropped it on his foot, causing the injury. So much is plausible and consistent with the medical evidence. [43] The appellant said at one point of his evidence that he felt a lot of pain when the pot hit his foot: p 2-23. On the other hand at p 2-28 he said the foot started to become rather painful when he got home. The appellant said that after he crawled backwards away from her and got to his feet, he noticed his left shoe had come off: p 2-23. At that point he put his left foot back into his shoe: p 2-24. That strikes me as a surprising thing to do, given that on his account his foot would have been quite painful at this point, but presumably it had not then begun to swell, so it was possible.10 Significantly however on his account the complainant did not take advantage of this distraction to attack him. He moved back a couple of steps but then as he put it “we had a big punch-up”: p 2-24. Clearly he easily won this, as shown by the evidence of the neighbour, which in this way can be reconciled with the appellant’s account. As I have indicated above, it was at the end of this that, after the complainant had turned away from him and was obviously no longer attacking him, he struck her hard on the side of the head, causing the injury there which subsequently required stitching. [44] For the reasons given earlier, that injury was not inflicted in self-defence. On the appellant’s own evidence, at that time he was no longer under attack from the complainant, and he clearly had the opportunity to leave the premises. But on his own evidence it was not his intention or desire to leave; rather his intention and desire were to go into the house to get his son, and after he had inflicted the injury on the complainant, that is what he did. It was only after the complainant followed him into the house and there was a further altercation inside, to which the son reacted, that he desisted and left. [45] I consider that the inference is irresistible that the hard blows which produced the injury to the side of the complainant’s head were inflicted in order to prevent her from continuing to interfere with his desire to enter her house and collect his son. That was not something he was legally entitled to do, nor were those blows inflicted in self- defence. The fact of the earlier injury is irrelevant to the criminality of that assault. 10 Again this was not something raised with the surgeon. -- 11 of 12 -- 12 On that occasion, on the appellant’s own evidence, he committed the offence of assault occasioning bodily harm on the complainant. In those circumstances, the evidence supports, indeed compels, the conclusion the appellant is guilty of the offence beyond reasonable doubt. On my review of the evidence, I so find. Accordingly, the magistrate’s finding to that effect was correct, though I have reached that conclusion by a different process of reasoning. [46] In those circumstances, the appeal against conviction is dismissed. Indeed, on the appellant’s evidence, this should never have been a trial, though it may well have been appropriate for it to be a contested sentence. If as I assume is the case the appellant has never been sentenced,11 the appropriate course is to order the matter be remitted to the Magistrates Court at Townsville, for the magistrate to enter up any necessary adjournments, and to proceed to sentence. There is no basis on which I can sentence the appellant for the offence. 11 That was not appropriate. The magistrate, having convicted, ought to have imposed sentence, so that any appeal against the sentence could be dealt with at the same time as the present appeal. -- 12 of 12 --