Convicted jaw breaker says jury got it wrong

A MACKAY visitor convicted of breaking a man's jaw over a nightclub seating spat is arguing the jury got it wrong.

Kevin David Thomson, 43, from Grasmere in southern Sydney, was sentenced to two years and six months in jail after a jury found him guilty of grievous bodily harm.

He has argued in the Queensland Court of Appeal that the Mackay jury's verdict was unreasonable.

Barrister Michael Copley told the court the case against his client, who was in Mackay for a mining conference, came down to identity.

"The issue in the case was the identity of the assailant and a very live issue is whether my client was even the person in the toilet (where the assault occurred),” he said.

"The victim of the assault could not describe the person he argued with over the seat, 20 minutes before the assault, or the person who attacked him in the toilet.”

Mr Copley submitted to the court that witness testimony about a "big guy” leaving the toilets at Rum Bar and saying the victim got what he deserved did not mean the man accepted personal responsibility for the assault.

"(Witnesses) were consistent with him simply making an observation about what he had seen or consistent with having drawn an inference about what might have gone on and thus expressed his satisfaction with it but not at all an admission of personal responsibility,” he said.

Justice David Boddice suggested the man who made the comment must have known something about what had occurred to make that observation.

Mr Copley said: "It's possible he gained the knowledge after he saw the outcome, he might have gone in and seen or heard something going on in the bathroom done by somebody else, perhaps the man at the basin, and that could be the basis for why he said he deserved it.”

"He may have seen nothing at all but discerned the man in the cubicle had been assaulted, and had seen that man around the hotel earlier in the night and taken the view that he was a nuisance.”

Justice Boddice said: "That's starting to really go into the realm of pure speculation, isn't it?”

Mr Copley said the man could have "approved subjectively of what the assailant had done” but still not be a party to what had occurred.

"It's a scenario that is reasonably open on the evidence that the man washing his hands was the assailant rather than the big guy,” he said.

Mr Copley said his client's achilles heel "in the eyes of the jury” was that he tried to flee after speaking to police.

Crown prosecutor Mark Whitbread said it was also that Thomson ran down an alley when he saw the security guard had pointed him out to police.

The court has reserved its decision on the appeal until a later date. - ARM NEWSDESK

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