SUPREME COURT OF QUEENSLAND

CITATION:	R v Agius [2015] QCA 277	
PARTIES:	R
v
AGIUS, Vincent Lawrence
(appellant/applicant)	
FILE NO/S:	CA No 139 of 2015
DC No 408 of 2014	
DIVISION:	Court of Appeal	
PROCEEDING:	Appeal against Conviction & Sentence	
ORIGINATING COURT:	
District Court at Maroochydore – Unreported, 3 June 2015	
DELIVERED ON:	Orders delivered ex tempore 4 December 2015
Reasons delivered 18 December 2015	
DELIVERED AT:	Brisbane	
HEARING DATE:	4 December 2015	
JUDGES:	Fraser and Philippides JJA and Bond J
Judgment of the Court	
ORDER:	Orders delivered ex tempore on 4 December 2015:
1.	The appeal against conviction is allowed.
2.	The verdict of conviction is set aside and instead a verdict of acquittal is entered.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted by a jury of attempted robbery – where the appellant handed the complainant a note containing an implied threat – whether the handing over of the note when in close proximity to the complainant was sufficient to prove the assault element of the offence – whether the verdict is unreasonable or insupportable having regard to the evidence
Criminal Code (Qld), s 245, s 409, s 412, s 414, s 535
Dearnley v The King [1947] St R Qd 51, cited
Fogden v Wade [1945] NZLR 724; [1945] NZPoliceLawRp 13, considered
R v Bayliss [1996] QCA 32, cited
R v Brown [2003] QCA 372, cited
R v Brown; Ex parte Attorney-General (Qld) [1995] QCA 347, cited
R v Dale [1969] QWN 30, considered
R v RAU [2015] QCA 217, cited
R v Smith [1999] QCA 250, cited
Stephens v Myers (1830) 172 ER 735; [1830] EngR 750, considered	
COUNSEL:	J J Allen QC for the appellant (conviction)
The applicant appeared on his own behalf (sentence)
S J Farnden for the respondent	
SOLICITORS:	Legal Aid Queensland for the appellant (conviction)
The applicant appeared on his own behalf (sentence)
Director of Public Prosecutions (Queensland) for the respondent	
[1]	THE COURT:  The appellant was tried upon an indictment charging one offence of attempted robbery pursuant to s 412 of the Criminal Code Act 1899 (Qld) (the Code) in the following terms:
“[T]hat on the twenty-first day of May, 2013 at Noosa Heads in the State of Queensland, VINCENT LAWRENCE AGIUS assaulted ANDREW FEICHTER with intent to steal, and at the time of the assault, threatened to use actual violence to ANDREW FEICHTER to obtain the thing that he intended to steal.”
[2]	The appellant’s trial commenced on 2 June 2015.  On 3 June 2015 the jury returned a verdict of guilty and he was on the same day sentenced to 18 months’ imprisonment with a parole release date of 3 March 2016.
[3]	The appellant appealed against his conviction on the ground that the verdict is unreasonable or cannot be supported having regard to the evidence.
[4]	On 4 December 2015 the Court pronounced the following orders with reasons to follow:
1.	The appeal against conviction is allowed.
2.	The verdict of conviction is set aside and instead a verdict of acquittal is entered.
[5]	What follows are our reasons for concurring in those orders.
Relevant principles
[6]	The principles governing consideration of the ground of appeal raised, that the verdict is unreasonable or cannot be supported having regard to the evidence, were summarised in R v RAU:
“The ground of appeal against conviction is to be regarded as a contention pursuant to s 668E(1) of the Criminal Code that the jury’s verdicts were ‘unreasonable, or cannot be supported having regard to the evidence’. It is, therefore, necessary for this Court to review the appeal record and determine whether it was open, upon the whole of the evidence, for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. In MFA v The Queen, McHugh, Gummow and Kirby JJ noted that a review of this kind:
‘... involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials.’
In R v SCH, the relevant principles were summarised as follows:
‘In such a case, the question which an appellate court must ask itself is whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty. In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. In such a case of doubt, it is only where a jury’s advantage in seeing and hearing the evidence can explain the difference in conclusion as to guilt that the appellate court may conclude that no miscarriage of justice occurred. However, if the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
This Court must, therefore, undertake “an independent assessment of the evidence, both as to its sufficiency and its quality” in accordance with the principles to which I have referred.’”
The evidence at trial
[7]	On 21 May 2013, the complainant, Andrew Feichter, was working at a pharmacy in Noosa Fair Shopping Centre.  At around 11.30 am that day the appellant entered the shop and asked to speak to a pharmacist.  Shortly after, the complainant met the appellant at the prescription counter.  The complainant spoke to the appellant across a waist high counter, asking how he could help the appellant.  The appellant turned to face the complainant and handed him a torn piece of cardboard of the type used in packaging medication on which was written:
“IMEDIATELY (sic)
2 X 80 MG OXY
CONTIN
2 X 40 MG II
PLEASE MATTER
OF LIFE AND
DEATH AND NO
ONE GETS HURT”
[8]	The complainant gave the following evidence as to what occurred thereafter:
“Now, sir, what did you say or do once you had a moment to read that piece of cardboard?---I said I can’t give you any without a script from the doctor.
And did the person say anything back to you?--- He said you have them here, don’t you? And I said yes. They’re locked in the safe, but I’m not going to give you any.
And then what happened from there, sir?---At that point he tried to grab back the piece of cardboard from me.
What did he actually do? When you say tried to grab it back?---So leaned forward over the counter to try and grab it out of my hands.
And were you within reaching distance of him at that point in time?---Yes, but I took a step back.
And did you say anything to him?---I said you can’t have it back. I’m going to keep it.
What happened after that, sir?---He turned and left the store via the exit closest to Coles.”
[9]	The complainant gave further evidence when cross-examined as follows:
“All right. And you’ve told the prosecutor that the counter you were standing beside had two gaps on either end of it?---Yes.
From those photos. Mr Agius made no attempt to go around the counter towards the dispensary?---No.
And when you say he grabbed at the note, when you took a step back he desisted. He didn’t continue, didn’t lunge at you?---No.”
Relevant provisions of the Criminal Code
[10]	The appellant was charged pursuant to s 412(1) of the Code which provides:
“Any person who assaults any person with intent to steal anything, and, at or immediately before or immediately after the time of the assault, uses or threatens to use actual violence to any person or property in order to obtain the thing intended to be stolen, or to prevent or overcome resistance to its being stolen, is guilty of a crime and is liable to imprisonment for 7 years.” (emphasis added)
[11]	The term “assault” is defined in s 245 of the Code as:
“(1)	A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.
(2)	In this section—
applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.” (emphasis added)
Appellant’s submissions
[12]	The appellant’s argument was that the evidence did not support proof of the requisite element of the offence that the appellant assaulted the complainant; there being no evidence that could constitute the “assault”.  In that regard, the appellant argued that there was no application of force by the appellant to Mr Feichter.  Nor was there “any bodily act or gesture” by which the appellant attempted or threatened to apply force to the person of Mr Feichter.  Thus, there being no evidence of an “assault” by the appellant upon Mr Feichter, the appeal was made out.
Respondent’s submissions
[13]	The respondent contended that it was not argued at trial that the facts in evidence could not amount to an assault.  Whether or not the facts amounted to an assault was the primary trial issue for the jury’s consideration.  In any event, it was open for the jury to find the appellant guilty of the offence.  The Crown case at trial relied on that part of the definition of “assault” established where a person “by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another … under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose”.  The bodily act relied upon at trial was the handing over of the note containing a threat when in close physical proximity to the complainant.  It was contended that the words “any bodily act or gesture” were wide enough to encompass that act in circumstances where the appellant was in a position to be able to carry out any threat.
[14]	It was further submitted that the appellant could also have been charged with an offence of attempted robbery pursuant to s 409 and s 535 of the Code.  If the appellant had been charged pursuant to those provisions, “assault” would not be an element of the offence.  There are numerous examples where a person has been convicted of robbery offences on the basis of handing a note to a complainant containing a threat.
Discussion
[15]	It is convenient to deal firstly with the contention that the appellant could also have been charged with an offence of attempted robbery pursuant to s 409 and s 535 of the Code.  Regardless of the correctness of that proposition, it is not to the point as the appellant was not charged pursuant to those provisions and it was acknowledged by the respondent that another verdict could not be substituted by this Court.  Nor do the authorities concerning robbery assist the respondent, since that offence does not include the requirement that there be an assault.
[16]	The use in s 412 of the Code of the word “and” indicates that an “assault” is a distinct element from the accompanying threat to use actual violence, although, in some cases the same act may constitute both the elements of assault and threat: see Dearnley v The King (where the act of pointing a gun at a person was also regarded as the accompanying threat of violence).
[17]	As to the element of assault, the definition of assault in s 245 of the Code recognises two forms of assault.  The definition encompass what historically were separate offences at common law of battery (in the first limb of the definition) and of assault (in the second limb).  By virtue of the first limb of s 245, an assault involves an actual physical application of force.  By the second limb, an assault occurs where there is an attempted or threatened application of force.
[18]	The issue that arises is whether the second limb of the definition of assault was capable of being satisfied on the evidence.  The question for determination is whether the act of handing over the note amounted to a bodily act or gesture by which force was threatened to be applied within the meaning of the second limb.  The second limb of the definition requires proof that:
“A person … by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another … under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose”.
[19]	The respondent’s contention was that the bodily act or gesture which constituted the assault was the handing over of the cardboard note with the demand for drugs, in circumstances where that contained an implicit threat and the appellant had an actual apparent present ability to assault the complainant.
[20]	The starting point is that words alone are insufficient to amount to the requisite conduct comprising an attempt or threat to apply force for the purposes of the second limb definition of assault; that is made clear by the wording of the second limb which requires that there be a “bodily act or gesture”.  Secondly, the use of the word “by” in s 245 is significant.  What is required is that there is the attempt or threat “by” some act or gesture to apply force to another.
[21]	While words alone cannot constitute an assault, a bodily act or gesture is to be viewed taking into account accompanying words, which may add a further dimension rendering the act or gesture threatening.  In Fogden v Wade, it was held that the defendant’s conduct in following a girl, then coming up close behind so as to be able to touch her and making an indecent suggestion was capable of constituting an assault.  In Stephens v Myers, the defendant, upon a resolution that he be turned out of a meeting, advanced in a threatening manner with clenched fist towards the chairman, stating he would rather pull the chairman out of his chair than be turned out.  The jury were instructed that, though not near enough to have struck the chairman, if the defendant was advancing “in a threatening attitude” with intent to strike that would amount to an assault in law.
[22]	There must be a bodily act or gesture of the requisite nature, which may be associated with the words, indicating an intention to assault or which an ordinary person might reasonably construe as indicating such an intention.  The respondent placed reliance on R v Dale, which concerned a case where the defendant entered a shop and said, “This is a stick up” and demanded money.  At the same time, he had his hand under his jacket, pointing in such a way as to represent that he had a gun (and was taken as such by the shopkeeper), although he turned out in fact to have a ruler.  The only ground argued on the appeal was that there was no basis for the jury to conclude that there was an apparent ability to effect the threat to carry out an assault.  It was held that the use of the words together with the actions allowed the conclusion that a threat was made with an apparent ability to effect it, such that there was an assault.  The words in that case, when coupled with the act of the defendant, were capable of conveying that the appellant had a gun in his hand and would use it if necessary.  The defendant’s act was thus itself rendered capable of being viewed as threatening; that is, as a bodily act “by which” the force was threatened to be applied.
[23]	Similarly, in Fogden, the actions of following the girl and then moving very close to her, in the context of the indecent suggestion, rendered those physical acts ones by which force (by molestation) was threatened to be applied.  Likewise, in Stephens v Myers, advancing with clenched fist, although not being near enough to inflict a blow, were acts capable of effecting the threat.
[24]	In the present case, the threat implicit in the words on the note did not convert the act or gesture of handing over the note into the act by which force was threatened to be applied.  This was not a case where the assault and the threat were constituted by the same act.  The act of handing over the note was the means of communicating an implied threat but, even so, clearly there was no threat to apply force “by” that act itself.  The handing over of the note was not itself an act or gesture by which force was attempted or threatened to be applied, even when viewed in the context of the words on the note.  The contents of the note did not convert the act in question into one by means of which a threat was to be effected.
[25]	In those circumstances, the element of assault as defined in the second limb of s 245 was not capable of being satisfied by the evidence so that the appeal is made out.