McKinnin v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0128

HARLEY MICHAEL JAMES McKINNIN	Applicant
v
THE QUEEN	Respondent

S APCR 2018 0142

MICHAEL JAMES McKINNIN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL, T FORREST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 April 2019
DATE OF JUDGMENT:	28 May 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 114
JUDGMENT APPEALED FROM:	DPP v McKinnin (Unreported, County Court of Victoria, Judge Chettle, 4 May 2018 (Conviction), 1 June 2018 (Sentence))

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CRIMINAL LAW – Appeal – Conviction – Recklessly causing serious injury – Co-accused father and son – Victim assaulted with baseball bat or bats – Whether judge erred in refusing application by applicant’s mother to be excused from giving evidence pursuant to s 18 of Evidence Act 2008 – Whether question trail given by judge to jury inaccurately set out factual matters in issue and compromised applicants’ right to separate consideration of cases against them – Whether judge’s directions to jury regarding questioning witnesses occasioned a fundamental breach in integrity of trial and a miscarriage of justice – Applications for leave to appeal against conviction refused.

CRIMINAL LAW – Appeal – Sentence – Recklessly causing serious injury – Co-accused father and son – Victim assaulted with baseball bat or bats – Father sentenced to 7 years and 6 months’ imprisonment – Son sentenced to 8 years’ imprisonment – Whether judge sentenced son on factual basis inconsistent with jury’s verdict – Whether sentences manifestly excessive – Applications for leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Harley McKinnin	Ms S E Lacy	Stary Norton Halphen
For the Applicant Michael McKinnin	Mr R Nathwani	Criminal Lawyers Geelong
For the Crown	Mr J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

NIALL JA
T FORREST JA
WEINBERG JA:

Introduction

The applicants for leave to appeal against conviction and sentence are father and son, whose given names are Michael and Harley respectively. On 4 May 2018, a jury found them guilty of recklessly causing serious injury to Gavan Broad.[1] They were acquitted of charges of causing injury to Emma Ryan.
[1]They were acquitted of the alternative charge of intentionally causing serious injury.

The applicants were sentenced on 1 June 2018. The maximum sentence for the offence was 15 years’ imprisonment. Harley was sentenced to a term of eight years’ imprisonment with a non-parole period of five years and six months. Michael was sentenced to a term of seven years and six months’ imprisonment with a non-parole period of five years.

Circumstances of the offending

Late on the evening of 24 March 2017, as a result of being repeatedly struck by the applicants, Gavan Broad sustained serious injury outside of his place of business, the Pindarri Poultry factory (‘the poultry factory’). The extent of the injury and the fact that it was inflicted by the applicants were not in dispute.[2] They claimed, in detailed records of interview on which they based their defence, that they were acting in self-defence.
[2]At trial, the applicants put in issue the cause of the broken ankle sustained by Mr Broad and whether it was caused by being struck, by a twisting action in the altercation or by the collision of the BMW and the red Astra described below. For present purposes, that dispute can be put to one side.

At the time of the offending, the applicants were residing at an industrial property in North Shore, Geelong, which also housed Michael’s scrap metal business. At about 11:00 pm on 24 March 2017, a group of young people, including Danny Reid, Daniel Butcher and Molly Hawkins, came upon a utility motor car parked outside the McKinnin lot. They went to examine the utility with a view to taking a car battery. However, on inspection, they found the entire engine was missing. The applicants, who were inside, were roused by the noise, one of them yelled out to the youths and the youths fled.

The applicants got into a red Holden Astra (‘Astra’) to chase the group. It was the prosecution case that both applicants were armed with baseball bats.

The group ran down Seaside Parade and towards the poultry factory where staff were holding Friday night drinks. The staff members who were present included the two alleged victims, Mr Broad and Ms Ryan, and another co-worker, Leah Boxshall. Some of the young people sought shelter at those premises. Others scattered in other directions and at some point left the scene.

Mr Broad, the owner of the poultry factory, went out into the street to see what had caused the commotion. The Astra pulled up outside the front gate of the factory as Mr Broad was walking outside. The applicants got out of the vehicle, armed with a baseball bat (or bats). Mr Broad recalled being struck once by a baseball bat. He did not see any of his staff members outside the factory and did not see Ms Boxshall driving the BMW.

Mr Broad denied that he had approached the passenger side window of the Astra and denied grappling with the passenger or dragging him from the car. He said that the car rolled up in front of him, two people got out, one from each side, and hit him, and that no words were spoken. He was clear in his evidence that both of his assailants had baseball bats.

Ms Boxshall, the office manager at the poultry factory, saw a number of youths appear on the property. Shortly after noticing the youths, she saw a red car at the front of the property and two men get out of it. She described one as larger and the other as slimmer. The slimmer of the two men (which the evidence would suggest was Harley) got out of the driver’s side and the other from the front passenger side. The larger man was holding a baseball bat. She was firm in her evidence that only one of the two men carried a bat. She said that she observed the two men beating Mr Broad, who was on the ground, one using the bat to strike the victim with considerable force. On Ms Boxshall’s account, Ms Ryan was present and attempting to stop the incident. Ms Boxshall said she got into her BMW vehicle and rammed it into the red car to stop the assault.

Ms Ryan gave evidence that she went outside of the factory and saw Ms Boxshall driving from the factory towards her in Ms Boxshall’s BMW. She said she spoke to Ms Boxshall and told her not to worry about it and to go back to the office. At that point, the red car returned and Ms Ryan saw Mr Broad standing near the passenger side of the red car. She said that she saw fists come out of the window, the door open and then a baseball bat start to swing at Mr Broad.

Ms Ryan said it was the driver of the car who swung the bat. She said that she started yelling and as she got close the driver yelled out to her ‘you’re gonna cop it bitch’. Although she did not remember the point of impact, she recalled Michael swinging the bat towards her and remembered going down. She said Michael got out of the driver’s side, not the passenger side.

Ms Ryan said she saw both of the men hitting Mr Broad with baseball bats. Mr Broad was fighting back, but then fell to the ground and continued to be struck by both men.

The attack stopped when Ms Boxshall drove her car, a black BMW, into the Astra to distract the applicants from their assault on her co-worker. The force of the impact knocked one of the wheels off the Astra. The applicants then got into the Astra and somehow drove back to their premises.

Mr Broad was taken to hospital, where he remained for four days. He sustained a complex left cheekbone fracture (shattered into three parts) with extensive bruises; two fractured ribs with underlying lung injury; a large bruise to his upper and lower back and left upper abdominal tenderness; a spiral fracture of his right fibula; and a complex right ankle fracture with ligament involvement resulting in instability of the ankle joint.

The applicants were both arrested on 29 March 2017 and were interviewed by police. They were charged with intentionally or, in the alternative, recklessly causing serious injury to Mr Broad and intentionally or, in the alternative, recklessly causing injury to Ms Ryan.

They were convicted of recklessly causing serious injury to Mr Broad and sentenced on 1 June 2018, as set out above at [2]. They were acquitted on the charges relating to Ms Ryan.

The records of interview

Both applicants gave detailed records of interview.

In his record of interview, Harley said that a group of about 8 to 10 people were at the front of his premises. They were standing around a ute with a torch looking into the bonnet. He said that they were throwing stubbies and a couple of them had bats. He opened the door to confront them and chased them up the street on foot and they ran off.

He then returned to his premises and told his father that they were throwing ‘stubbies and everything’ at him and a couple of them had bats. He said his father responded by saying ‘fuck this’ and then his father jumped in the driver’s seat of the red Astra and Harley jumped in the passenger seat. When asked by the interviewing police officer whether, when he said ‘fuck this’, his father meant ‘let’s go get ‘em son’, Harley responded ‘yeah pretty much yeah’. He said that by that time they had asked his neighbour to telephone the police.

He said that, as they were driving, a black BMW was coming head on towards them, which caused them to stop the Astra. He said a man in a black beanie lent through the driver side window and punched his father in the head. His father then jumped out of the car and there was a fight between the two men. He said that he then jumped out of the car to assist his father. In the meantime, the driver of the black BMW collided with the red Astra. He said that glass bottles were being thrown and there were a couple of people with bats. He said he was worried about getting his father out of the scene and that his father could not see after the man had hit him in the face. They then got in the red Astra and returned home.

Michael told police that Harley had initially chased the young people by driving after them in the red Astra and had then returned. He said that Harley told him that the youths were yelling at him and throwing stubbies at the car. He said he then jumped in the car with Harley, taking a wooden baseball bat for protection. He said they drove around the streets to chase the people who were trying to steal his car. He had then seen a black BMW coming towards them head on, which caused them to pull up. He said that when their car stopped they ‘got jumped from the left and the right’.

He said that people tried to grab him out of the car. He had tried to grab the bat, but the other person had grabbed the bat and swung at him. He then grabbed the bat off the man who had attacked him and threw it into the back of the car. He said there were another three or four people behind him trying to bash them as well.

He said his car was rammed just after he had been pulled from the car. He said one person had already punched him through the window, even before he got the door open.

He said that he had been hit in the left eye with a bat and had sustained marks and bruises as a result of the fight. He claimed to be in fear of his life as a result of being punched through the window and then being dragged from the car.

The prosecution case

The prosecution case was that the two applicants went looking for the youths who had been outside their property and came upon Mr Broad. They arrived at an agreement or understanding to assault Mr Broad. They then got out of their car and assaulted Mr Broad with both, or at least one, of them armed with a baseball bat.

The prosecution case in relation to the charges concerning Ms Ryan was different. The prosecution contended that Michael assaulted her with a bat and that Harley was guilty of that assault on the basis of extended common purpose. To inculpate Harley, the prosecution relied on the doctrine of extended common purpose because the offence of assaulting Ms Ryan was not the same as the enterprise agreed, namely assaulting Mr Broad. The jury acquitted both applicants of the charges in relation to the assault on Ms Ryan.

The defence case

The applicants did not dispute being present or that there was a physical altercation between them and Mr Broad. However, they contended that Mr Broad, or other unidentified persons, had first assaulted Michael and that they were defending themselves. They accepted that Michael had a baseball bat in his possession, but said that he did not use it in the course of the incident. They denied hitting Ms Ryan.

It follows from the above that the jury were faced with markedly differing accounts of what happened on the night. The prosecution case was factually straightforward, with its centrepiece being the evidence of Mr Broad that he went outside the front of his workplace in response to commotion and the applicants jumped from their car and started assaulting him. Ms Ryan was collateral damage, having been hit by Michael with a bat. The defence case had a simple factual answer: their car was forced to stop, one or more persons approached their car, Michael was punched and dragged from the car and Harley left the car to come to his aid. Ms Ryan was not hit with a bat, however must have hit her head when she fell after being caught up in the fight.

Grounds of appeal against conviction

As originally formulated, Harley sought to appeal his conviction on three proposed grounds of appeal and Michael on a single ground. There was no overlap in those grounds. With one exception, each applicant, by leave, adopted the other applicant’s grounds and the argument in support, with the result that there are now three common grounds of appeal against conviction.

The exception is Harley’s first ground of appeal, which contended that the judge erred in refusing the application of Nicola Southam to be excused from giving evidence pursuant to s 18 of the Evidence Act 2008 (‘Evidence Act’). As that evidence was of admissions made by Harley, and was not admissible against Michael, this proposed ground is only relevant to Harley. Ground 1 is as follows:

1.The trial judge erred in refusing the application of Nicola Southam, the applicant’s mother, to be excused from giving evidence pursuant to s 18 Evidence Act 2008.

The common grounds of appeal (which we have numbered 2 to 4), are as follows:

2. The trial judge erred in providing the jury with a question trail that:
a. inaccurately set out the factual matters in issue; and
b.compromised the applicant’s right to separate consideration of the case against him.

3.The trial judge erred in charging the jury that: if they were satisfied that both men jumped out of the car and assaulted the complainant with a bat or bats, then the Crown will have likely negatived self-defence.
4.The trial judge erred in directing the jury that they could question witnesses in the trial, causing the proper bounds of the jury’s role to be breached. It occasioned a fundamental breach in the integrity of the trial and a miscarriage of justice.

Ground 1 — Evidence of Nicola Southam

Shortly before trial, the prosecution served a Notice of Additional Evidence indicating that it proposed to call evidence from Nicola Southam, the mother of Harley. In a written statement to police, Ms Southam recounted a telephone conversation between her and Harley on 29 March 2017 (five days after the incident). She said that Harley told her that, on the previous Friday night:

a bunch of kids were trying to steal something from his dad’s car or trying to steal the car. He said that he and his father got into his car and chased the kids to some factory where some people came out to them carrying on. He didn’t say what was said but he did say that they grabbed their bats and started swinging them at them to defend themselves. Harley said that he got into his car to leave and was T boned by a 4 x 4. He also said that his eye had been hit and was really sore.

The evidence was said to constitute a series of admissions made by Harley and was important, so the prosecution contended, because he had referred in the conversation to multiple bats.

On the first day of the trial, the prosecutor informed the judge that he expected that Ms Southam would not wish to give evidence against her son and would seek to be excused from giving evidence under s 18 of the Evidence Act, and informed the judge that the prosecution had arranged for Ms Southam to be provided with independent legal advice and that the advice was imminent.

The evidence given by Ms Southam on the s 18 inquiry was brief and it is convenient to set it out in full.

HIS HONOUR:        You’re here, Ms Southam, because I understand the prosecution want to call you to give evidence in accordance with the statement you made, or apparently made, to the police?
SOUTHAM:Yes.
HIS HONOUR:        You have been made aware of your right to seek to be excused from giving evidence because you are the mother of – someone’s made you aware of that?
SOUTHAM:Yes.
HIS HONOUR:        And you wish to avail yourself of that right?
SOUTHAM:Yes.
HIS HONOUR:        Why, is my first question?
SOUTHAM:Well, I can’t remember the phone conversation. The only thing I can remember of the conversation is from the statement, but I can’t remember the whole thing, really.
HIS HONOUR:        So you don’t want to give evidence because you don’t remember what’s in your statement. Is that what it comes down to?
SOUTHAM:Well, and, being Harley’s mum, it’s caused a lot of problems in our family and – – –
HIS HONOUR:        How’s that? I need to understand – – –?
SOUTHAM:– – – with my other children as well.
HIS HONOUR:        So the other kids are upset because you’re going to give evidence about Harley?
SOUTHAM:Well, it’s a 50/50 sort of thing, yeah. Some are upset, some – some aren’t.
HIS HONOUR:        Is there any other reason why you don’t want to give evidence?
SOUTHAM:No.
HIS HONOUR:        Do you live with either of the accused people?
SOUTHAM:No, no.
HIS HONOUR:        You don’t live with Harley?
SOUTHAM:No.
HIS HONOUR:        Do you see him often?
SOUTHAM:Not very often, no.
HIS HONOUR:        Is there any other – so, if I’ve got this right, it’s – you now claim you don’t remember what’s in your statement? You don’t remember the conversation and you don’t want to upset some of your children because you’re giving evidence against your son?
SOUTHAM:Yep.
HIS HONOUR         And that’s it?
SOUTHAM:Yep.
HIS HONOUR:        All right.

At the conclusion of the judge’s questions, counsel for Harley asked the judge whether she would be permitted to ask questions of the witness. The judge declined to permit that course, indicating that it was for the Court to investigate the application of s 18. No separate complaint is made about the failure of the judge to permit questioning by counsel.

The judge gave brief oral reasons for overruling the objection under s 18. The judge noted the two reasons given by the witness as to why she should be excused. Firstly, she had no recollection of what was in her statement and, secondly, she said that some of her children were annoyed with her or upset because she was giving evidence against her son and she did not want to upset them. The judge said that neither of those matters provided a sufficient reason to excuse her from giving evidence. His Honour said he was not satisfied that there was any likelihood of harm to her relationship with the applicant, noting that she did not live with him. The judge noted the nature and gravity of the offence and concluded that the evidence was clearly important in that it was critical to a central issue in the trial, namely whether or not both of the accused men were carrying baseball bats.

Ms Southam gave evidence in the trial. Initially she had a very poor recollection of the conversation. After being permitted to refresh her memory from her statement, she gave evidence that Harley had told her that:

he was gonna to be on the news that night, he’d had TV people around, talking to them about an incident the week before and someone was trying to steal his dad’s car or steal something from his dad’s car and they chased him up the road and went to a factory or a residence and people came out at them and they got their bats out and defended themselves.

In cross-examination, Ms Southam agreed that she could not remember the exact words that Harley had used in the conversation.

In his charge to the jury, the judge noted that the evidence given by Ms Southam was relied on by the prosecution as an admission by Harley, and could only be used in the case against him. The judge noted that the prosecution relied on it as an admission of ‘two critical facts’, namely that he was chasing the young people who had fled from the front of his premises and that there were multiple bats used by them.

Harley submitted that the judge erred in refusing Ms Southam’s objection pursuant to s 18 of the Evidence Act, by not making a sufficient inquiry as to whether Ms Southam had received independent legal advice, as is required by s 18(4). Further, it was submitted that the judge made insufficient inquiry upon which he could satisfy himself of the test in s 18(6); that the judge failed to take into account the nature of the relationship between Ms Southam and her son; and that the application was peremptorily dealt with.

Consideration of ground 1

Section 18 of the Evidence Act allows specified persons, including a parent of an accused, to object to being required to give evidence of a communication between the person and the accused as a witness for the prosecution.

Section 18(4) provides that if it appears to the court a person may have a right to make an objection, the court is to satisfy itself that the person is aware of the effect of the section as it may apply to the person. Section 18(6) provides that a person must not be required to give evidence if the court finds that:

(a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the accused, if the person gives evidence; and
(b)the nature and extent of that harm outweighs the desirability of having the evidence given.

Section 18(7) sets out a non-exhaustive list of the matters that the court must take into account for the purposes of s 18(6). Those matters include the nature and gravity of the offence; the substance and importance of the evidence that the person might give and the weight that is likely to be attached to it; whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor; the nature of the relationship between the accused and the person; and whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence.

As to the first complaint, we are persuaded that the judge satisfied himself that Ms Southam was aware of the effect of s 18, as it might apply to her. We reach that conclusion for two reasons. First, it was open to the judge to proceed on the basis that the witness had received independent legal advice. The judge was told that advice had been organised and that it was imminent. Secondly, the judge directly asked the witness whether she had been made aware of her right to seek to be excused from giving evidence because she was the mother of one of the accused, to which the witness gave an affirmative response.

The judge’s question did not precisely correspond to the terms of s 18(4). It was directed to her knowledge of the existence of the right to seek to be excused, rather than all of the relevant matters detailed in the provision. Nevertheless, in circumstances where the judge was entitled proceed on the basis that the witness had received independent legal advice, the question was adequate to enable the judge to be satisfied as to the matters provided for in s 18(4).

It is convenient to address the remaining complaints together. In our view, although the questioning by the judge was brief and comprised a relatively small number of open-ended questions, we are not persuaded that the judge failed to make an adequate inquiry. His Honour’s questions were aimed at the principal matters to which s 18 is directed, namely, the nature of the relationship and the existence and extent of any impact on the witness as a result of her giving evidence.

The witness was given the opportunity to identify the harm that she believed would follow as a consequence of her giving evidence. In response, she indicated that at least some of her children were upset about her giving evidence against Harley. She did not say that the giving of evidence would cause her harm by reason of any fracture in her relationship with Harley and she told the judge she did not live with him and did not see him very often. There is no reason to conclude from the nature of the questioning that material evidence was not forthcoming. The nature and extent of harm that might flow from being required to give evidence were matters that the witness might be expected to be able to readily identify.

The pressure of giving evidence may have engendered some inhibition or affected her ability to recount, in full, the matters of concern to her. Nevertheless, we are not persuaded the process of inquiry miscarried.

On the evidence given by Ms Southam, the conclusion reached by the judge that she should not be excused under s 18 was plainly open to him. The reasons expressed in the ruling were succinct. However, we are not persuaded that the judge failed to take into account any of the mandatory considerations in s 18(7). The judge accepted that there was the prospect of some harm to Ms Southam, by reason of the attitude of at least some of her children to her giving evidence against Harley. His Honour was not, however, persuaded that this outweighed the importance of her giving evidence, having regard to the nature and significance of the evidence proposed to be given.

Even if we had been persuaded that there was a relevant error in the judge’s determination of the objection under s 18, it would not follow that there had been a substantial miscarriage of justice. Faced with her objection to giving evidence, the evidence of Ms Southam would not have been admissible until the objection had been properly determined in accordance with s 18. However, a breach of s 18 alone would not be enough to impugn the conviction.

Reaching that conclusion would depend on, firstly, whether, had there been a proper enquiry, the objection should have been upheld and, secondly, whether, in that circumstance, the evidence that was given by Ms Southam occasioned a substantial miscarriage of justice.

On the first consideration we note that the applicant did not adduce any evidence on the application for leave to appeal as to what additional matters the witness would have detailed, had she been given a fuller opportunity to recount the potential consequences of giving evidence. In substance, the complaint is that the witness was denied the opportunity to provide a fuller account because the judge’s enquiry had been peremptory. Whether a different approach would have elicited further relevant evidence is a matter of speculation. Given the failure to identify, either by evidence or submission, what the witness would have said had there been a fuller inquiry, we are not persuaded by the applicant’s submissions on this issue. In other words, it has not been established that there was any further evidence that the witness could have given that would have supported her objection to giving evidence.

Although it is not necessary to decide, we would add that having regard to the evidence as a whole, we are not persuaded that the admission of the evidence of Ms Southam entailed a substantial miscarriage of justice. We note that, in his charge to the jury, the judge described her evidence as being an admission of two critical facts. The first was that Harley was chasing ‘the kids’ and the second was that there were multiple bats. However, her recollection was heavily qualified and did not materially add to the body of evidence about the number of bats that were used. There was direct evidence from Mr Broad and Ms Ryan that each of the assailants had a bat. Although evidence of an admission by an accused of an important aspect of the prosecution case will usually have potent force, in the present case we are not satisfied that the admission of the evidence had that effect.

It follows that we would refuse leave to appeal on ground 1.

Ground 2 — The question trail

At the conclusion of the evidence, the judge provided to the parties a six page document that he said he intended to provide to the jury. The first five pages dealt with the elements of the offences,[3] including self-defence, and the last page was described by the judge as a question trail. In relation to the elements, the first two pages dealt with the charges concerning Mr Broad, the next two pages dealt with the charges concerning Ms Ryan and the penultimate page dealt with self-defence.
[3]Intentionally and recklessly causing serious injury to Mr Broad (ss 16 and 17 of the Crimes Act 1958 (‘Crimes Act’), respectively) and intentionally and recklessly causing injury to Ms Ryan (s 18 Crimes Act).

The structure of the pages dealing with the elements of the offences can be demonstrated by the first page which was in these terms:

CAUSING SERIOUS INJURY INTENTIONALLY
1.GAVIN BROAD suffered serious injury.
2.The defendants caused those serious injuries.
3.The defendants intended to cause serious injury.
4.The defendants were not acting in self-defence. (Without lawful justification or excuse).[4]

[4]Emphasis in original.

The second page related to the charge of recklessly causing serious injury was in the same form, other than item 3 which read ‘the defendants were aware that their act would probably cause serious injury.’ The two pages relating to the assault on Ms Ryan were in the same form, dealing respectively with the intentional and reckless injury charges.

The fifth page of the document given to the jury was headed ‘self-defence’ and stated:

A person acts in self-defence if the person:
1. believes that his conduct is necessary in self-defence, and
2.the conduct is a reasonable response in the circumstances as the person perceives them.

The final page of the document, described by the judge as a question trail, was in the following form:

1. Was GAVIN BROAD set upon by both defendants with a baseball bat or bats?
2. Was that attack pursuant to a plan, understanding or arrangement between both defendants?
3. Was EMMA RYAN struck in the face by MICHAEL McKINNIN during the joint attack?
4. Did HARLEY McKINNIN foresee the injury to EMMA RYAN as a foreseeable consequence of the implementation of the joint plan or arrangement?
5. Were the injuries inflicted upon BROAD and RYAN caused unlawfully? That is, have the prosecution established beyond reasonable doubt that the defendants were not acting in self-defence — in that the defendants did not believe it was necessary to act as they did and/or there were no reasonable grounds for them to think so?[5]

[5]Emphasis in original.

Counsel for Harley raised two objections to the document: the form of the document had the tendency to distract the jury from the separate consideration of the two accused; and it was not an appropriate case for a question trail. It was contended that the questions in the last page conflated the elements that had to be proved by the prosecution.

The judge rejected the submission on the basis that he would direct the jury that it was necessary for the prosecution to prove the elements in respect of each accused and said that it was unnecessary to provide a separate sheet for each accused. In relation to the question trail, the judge said that it was not intended to reflect the elements of the offence, but to identify the factual issues that the jury would need to determine to decide the case. It was clear that the judge intended the document to identify what he considered to be the real issues between the parties.

The judge said that it was not a question trail in the New Zealand sense, and not a direction of law, but an attempt to focus the jury on the issues that would need to be determined.[6] The judge said that separate consideration would be addressed by directions as to the elements and by explaining to the jury that the prosecution case was one of complicity and, in the case of the injury to Ms Ryan, extended common purpose.
[6]The reference to New Zealand practice was to the practice revealed in cases including R v Taylor [2005] NZCA 93 [128]–[129]; R v Campbell [2007] NZCA 121 [26], quoting R v Peters [2006] NZCA 389 [18] –[19]; R v Dixon [2008] 2 NZLR 617, 624; R v Rajamani (2009) NZCA 225 [3].

The charge

The judge commenced his charge to the jury by emphasising that it was necessary to separately consider the case against each accused and to only apply the evidence that was admissible in respect of that accused.

The judge then turned to the elements of the offences, and provided the six pages to the jury. He told the jury that the last page identified the five issues that would help them resolve the issues in the case, adding that it was the last sheet that they would find interesting. The judge said ‘it is five issues that would help you resolve the issues in the case as I see it emerging from the case’.

In relation to the elements of the offence, the judge again directed the jury that, although the document referred to the defendants in the plural, the jury would need to look at each accused separately. No objection was made in relation to the judge’s treatment of the elements.

Having set out the elements of the offences, the judge referred to the ‘issues sheet’ and explained to the jury that much of its determination of the elements would come from a determination of the facts. The judge went on to say that, if the jury were satisfied beyond reasonable doubt that the two accused ‘jumped out of the vehicle and beat Mr Broad with the baseball bat or bats, plural, causing him these injuries together you would be satisfied that that was intentional and that those who did it would have intended to inflict substantial and protracted injury’.

In that context, the judge addressed the need for separate consideration of each accused, telling the jury that each accused must be looked at in light of the elements, and that it was possible that the jury might be satisfied beyond reasonable doubt that one of the two was guilty, but find the other not guilty.

The judge then turned to charges 3 and 4, which concerned the injury to Ms Ryan. Given that the applicants were acquitted of charges three and four, it is not necessary to detail the judge’s directions in respect of them.

The charge on self-defence

The judge then dealt with self-defence and, by reference to the fifth page of the document provided to the jury, identified the two relevant matters to the defence: the person believed the conduct was necessary in self-defence, including the defence of another, and that the response was reasonable in the circumstances as the person perceived them.[7]
[7]Crimes Act s 322K.

The judge said that the prosecution bore the onus of proof and that there were two ways that the prosecution could prove that the relevant conduct was not undertaken in self-defence.

In relation to the first of those two ways, the judge told the jury:

The first way in which the prosecution can prove that an accused was not acting in self-defence is to prove beyond reasonable doubt that when he, depending on what you find they did, but in this case firstly, in dealing with Mr Broad, if you find they jumped out of the car and hit him with the baseball bats. They were not acting in self-defence. He did not think it was necessary or did not believe it was necessary to do what he did to defend himself. You will understand why I say to you that the factual determination of what occurred is going to go a long way to determining your verdicts in this case. If you are satisfied beyond reasonable doubt that the two men jumped out of the car and then jointly set upon Mr Broad in the way in which effectively, the Crown say the case for the prosecution establishes, you would be difficult — the Crown will be well on the way to negativing self-defence.
But on the other hand, if you thought it was a reasonable possibility that in the case of Michael McKinnin, he was set upon by a group of people who tried to drag him out the window and assaulted him, and what he did was in self-defence, the issue is pretty clear. This really gets determined by your factual consideration. Nonetheless, you need to know what the elements are of self-defence. What you need to do is assess the accused's state of mind at the time he does whatever it is you find that he did. What threat did he believe he faced? Did he believe it was necessary to react with the threat with force? Was he threatened at all? Or did he have some other purpose? Was it just an attack as the prosecution would have you say? These are things you need to consider.
In making this assessment, you must consider the circumstances as the accused himself perceived them to be at the time he did whatever you find him to have done. It does not matter if someone is mistaken about the danger he told he faced, or if you believed he overreacted to a threat. The question here is whether the prosecution has proved that the particular accused did not believe it was necessary to act in the way he did, to defend himself against the danger that he thought he faced at the time.
In deciding whether an accused believed that his conduct was necessary to defend himself, you can consider whether it would have been reasonable for him to hold that belief in all the circumstances. This is not because the law requires that the belief be reasonable. It does not. The reasonableness of an accused's belief is only a guide to help you decide whether or not the accused really believed that it was necessary to do what he did to defend himself, or to defend — in the case of Harley, his father.

The second way the judge said that the prosecution could prove that the accused was not acting in self-defence, was by proving beyond reasonable doubt that his conduct was not a reasonable response in the circumstances as he saw them.

The judge told the jury that they needed to take into account all of the circumstances in which the relevant act occurred. His Honour added that there was a vast difference between the facts as alleged by the prosecution and the facts as alleged by each of the accused in the records of interview, and that the determination of all of the issues in the trial would likely be determined by findings of fact.

The judge returned to the issue of self-defence near the conclusion of his charge. His Honour did so in the context of referring the jury to the last page of the document. His Honour told the jury that this page was his attempt to provide some assistance as to the issues in the case and the factual determinations that would need to be made in order to determine whether or not the elements of the offence had been established. The judge then went through each of the five questions. In relation to the final question, the judge said the issue was whether the prosecution had established beyond reasonable doubt that the relevant accused was not acting in self-defence. That is, whether the prosecution had established to the criminal standard that the accused ‘did not believe it was necessary to act in the way he did and there was no reasonable ground for him to think so’.

The judge emphasised that the jury were not bound by what was said in the final sheet, but that it documented the issues, as he saw them.

Consideration of ground 2

Given that there were two accused, that the prosecution case was based on an agreement or understanding formed only moments before the altercation, and that the cases against each of them were different, there were said to be risks associated with the use of a question trail and, in particular, one that did not in terms differentiate between the accused.

Further, it was inapt to describe the document as a question trail The question trail was not an integrated direction in accordance with s 67 of the Jury Directions Act 2015 (‘Jury Directions Act’). The questions were not tied to the individual elements of the relevant offence and it was not clear from the document what consequence flowed from each answer given for the next step in the reasoning.

As can be discerned from its terms, question 1 was not directed to a single element of a charge, nor did it seek to distinguish between the two defendants. Further, any answer to questions 1 and 2 would inevitably bear upon a consideration of the matters that would also fall under question 5, which dealt with self-defence. Again, the terms of question 5 did not suggest any difference between the two defendants.

Question 1 asked whether Mr Broad was ‘set upon’ by both defendants with a baseball bat or bats. The phrase ‘set upon’ does not bear a single or clear meaning. In the context of the first question as a whole, the phrase connotes both the physical act of using the bat or bats against Mr Broad and also the motivation or intention of the defendants. The phrase is at odds with a description of the defendants using the bat defensively.

Read in isolation, the document might have led the jury to believe that, at least in relation to the charges in respect of Mr Broad, the two defendants were in an indistinguishable position. However, for the reasons that follow, we are not persuaded that the jury would have been diverted from considering each applicant separately.

The judge made it very clear from the commencement of his charge that the jury were required to consider each defendant separately. That adjuration was emphasised throughout the charge. The judge carefully explained that admissions made by an accused could only be used as evidence against that person. No complaint is made about the adequacy of the oral directions that were given by the judge.

The judge told the jury that the documents he had given them were not exhaustive and needed to be applied to each accused separately. It is not open to conclude that the jury would have regarded the questions set out in the document as replacing or supplanting the questions of fact that were identified by the parties in their closing addresses and emphasised by the judge in his charge.

We do not accept the submission that the jury would have failed to consider the aspects of Harley’s case of self-defence, including his version as to how the fight started and his role in it. The question trail is open to the criticism that it conflates a number of issues of fact. However, in the context of the trial, it would not have diverted the jury from considering all of the evidence and focusing on each applicant separately.

The document did not point the jury in any particular way as to how they might resolve the issues that are identified. The oral charge provided the necessary detail for the jury to address the broad issues identified in the question trail. It is not likely that the jury would have taken the document as an invitation or encouragement to ignore the detailed charge and to simply conflate the position of the two accused.

It is also relevant that the jury acquitted the accused on charges 3 and 4, being those related to Ms Ryan. That demonstrated an ability on the part of the jury to view the evidence discriminately and to not simply reason guilt once an agreement or arrangement had been found in relation to charges 1 and 2.

It follows that we would refuse leave to appeal on ground 2.

Ground 3 —Self-defence

There are two complaints about the judge’s treatment of self-defence. The first concerns a comment made by the judge that, if the jury accepted the prosecution’s case that the applicants had set upon Mr Broad, the prosecution would be well on the way to negativing self-defence. The second concerns the form of question 5 in the question trail.

Recently, in McKell v The Queen[8] four members of the High Court observed that:

A trial judge’s ‘broad discretion’ to comment on the facts of the case in a criminal trial is an aspect of the power by which a trial judge discharges the fundamental task of ensuring a fair trial of the accused. The discretion is to be exercised judicially as part of ensuring that the facts of the case are put ‘accurately and fairly’ to the jury. It is not exercisable, at large, independently of the fundamental task described above. A fortiori, the trial judge’s summing-up is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view. For that reason, as the plurality in RPS stated, judicial circumspection is required in the exercise of the discretion to comment.[9]

[8][2019] HCA 5.

[9]Ibid [3] (Bell, Keane, Gordon and Edelman JJ) (citations omitted).

In our view, it is arguable that the judge should not have entered into this area of debate. However, we are not satisfied that it occasioned a substantial miscarriage of justice. That is so for three reasons.

First, the prosecution case depended upon an agreement or understanding between the applicants to assault Mr Broad. We have already indicated why we are persuaded that the judge gave adequate directions to ensure that the jury gave separate consideration to the position of each applicant. If the jury were satisfied beyond reasonable doubt as to the existence of the agreement, in circumstances where the prosecution case was that both applicants got out of the car and, unprovoked, assaulted the victim, there was no basis upon which there could remain a viable argument of self-defence. That was because, if the jury accepted that the prosecution had established that the applicants had set upon Mr Broad with a baseball bat or bats, pursuant to an agreement or plan, then that would have inevitably led the jury to conclude that neither of the applicants assaulted Mr Broad in self-defence.

It is true that the issue of self-defence remained one for the jury. However, the judge’s comment highlighted that the resolution of that issue depended on how the jury resolved the factual issues, given that the facts as presented by the parties starkly differed.

Counsel for Michael commenced his address to the jury by stating that his client was not guilty of the charges because he did not set upon Mr Broad with a baseball bat. He emphasised that the prosecution had to disprove self-defence and detailed his client’s version of events. That version involved someone grabbing his bat through the car window and him being dragged from the car.

Counsel for Harley emphasised his account that their car had been forced to stop by the black BMW, that a man in a beanie had punched his father through the car window and that, when his father was outside of the car, the other man was ‘all over’ his father and Harley had come to his aid.

In those circumstances, and without losing sight of the prosecution’s onus of proof on which the jury were properly directed, the central issue in the case was a factual one. The judge’s comment did not intersect with the jury’s role and reflected the manner in which the trial had developed, namely, into a contest between the prosecution and defence versions of the facts.

Secondly, read as a whole, the passage does not reveal the judge placing a thumb on the scale in favour of the prosecution case. It does not invite the jury to make factual findings of a particular kind. The judge did not express favour to either side in the resolution of the factual contest. In the paragraph immediately following the impugned comment, the judge accurately summarised the competing defence account.

Indeed that was not the applicants’ complaint. Rather, the argument made by Harley, and adopted by Michael, was that there was a compression of the factual matters in issue.

Thirdly, there was no objection taken at trial.

Returning then to the second aspect of the complaint about self-defence, question 5 of the question trail stated that the prosecution could answer self-defence by proving that the defendants did not believe it was necessary to act as they did and/or there were no reasonable grounds for them to believe so.

The judge told the jury that the issues document did not contain directions of law and that they were free to put it to one side. The detailed and correct directions on self-defence would have impressed upon the jury their obligation to consider the circumstances as the accused himself perceived them to be at the time he did the relevant act. Further, they were specifically directed that the law does not require that the belief be reasonable. It is not likely that the jury could have been led to believe that the detailed directions should have been weighted less than the question trail in their consideration of the issues.

Further, if the prosecution established that the accused had jointly set upon Mr Broad, that would necessarily involve an acceptance of the prosecution case that neither of the applicants believed it was necessary to hit Mr Board in self-defence. No question would have arisen as to whether such a belief was based on reasonable grounds.

It follows we would refuse leave to appeal on ground 3.

Ground 4 — Jury direction regarding questions to witnesses

During the trial, the jury directly questioned four witnesses: Mr Butcher, Ms Boxshall, Dr Pun and Ms Ryan. The applicants submitted that the jury misunderstood their role and impermissibly took on an inquisitorial role at the trial.

Before coming to the arguments in support of this ground, it is convenient to deal with the evidence of each relevant witness in the order in which they gave evidence in the trial.

After the jury were impanelled, and before any witnesses were called, the judge addressed the jury on various matters. Relevantly he said:

A couple of minor things: if you can’t hear, let me know. These courts look pretty flash, but sometimes you can’t hear, particularly in the back row. If you can’t hear the witness, let me know and I’ll make sure I remedy it. You can ask questions if you have any questions. You’ll probably find that anything you want to know will be asked by one or more of the barristers; but, if it isn’t, write it down. Madam Foreman will give it to me and I’ll have it dealt with. If it relates to a particular witness, try and give it to me while they’re still here, because I can’t ask them if they have gone.[10]

[10]This address to the jury is reproduced from the respondent’s written submissions in response to Michael’s application for leave to appeal against conviction.

As the following extracts from the transcript demonstrate, the jury did not adopt his Honour’s instruction to write questions down and provide them to the judge. Rather, questions were asked orally.

Daniel Butcher

Mr Butcher was one of the youths who had walked past the applicants’ premises and stopped to look under the bonnet of the white ute. He heard someone yelling out from the shed and then started to run. He ended up, together with Danny Reid and Molly Hawkins, at the poultry factory. He said he heard and then saw a car he described as a red Nissan Skyline[11] doing burnouts at the front of the factory and shortly thereafter he saw two men holding baseball bats or poles, standing over Mr Broad who was lying in a foetal position on the ground. He then saw a large BMW ram into the corner of the red car.
[11]It was common ground at trial that the red car was a Holden Astra.

Mr Butcher was extensively cross-examined. It was put to him that he did not see the assault on Mr Broad, but that he had emerged from the poultry factory after he heard the collision between the BMW and the Nissan.

After he had been examined in chief, cross-examined and then re-examined by the prosecutor, and just after the judge excused the witness, a question was asked by a juror.

The transcript records the following exchange with the judge:

HIS HONOUR:        Sorry, you have a question?
JUROR:I do. Can we ask if the headlights of the car were on?
HIS HONOUR: Good question. We’ll ask somebody.
JUROR:Thank you.
HIS HONOUR:       Do you want to grab that kid before he goes?
PROSECUTOR:       Yes. By all means, I’ll – – –
HIS HONOUR:       He’s one of the ones who should know, so we’ll get him back in.
PROSECUTOR :      By all means. I’ll just ask him.
HIS HONOUR:       It’s a good question. Someone should have asked it. One would assume in the middle of the night it is, but you don’t want to assume anything.

The applicants accepted that the above exchange was matter of clarification only. The applicants stated that, although the question should have been put in a note to the judge, they did not rely upon it as itself establishing error, but said that it provided the background of the increasing participation by the jury in questioning witnesses.

Dr Pun

Dr Pun was a medical practitioner working in the emergency department at the University of Geelong Hospital on the day of the incident. She gave evidence of taking a history from Mr Broad. He alleged that he had been attacked by people armed with blunt objects and was hit multiple times in the left side of the head, upper back and right leg. The doctor was asked about her observations of Mr Broad’s level of alertness, orientation and capacity to recall events. The doctor then her gave evidence about the nature and extent of the injury sustained by Mr Broad. We note that it was not in dispute at trial that Mr Broad had sustained serious injury. Dr Pun was not asked directly in examination in chief or cross-examination about whether Mr Broad was intoxicated or had been drinking.

At the conclusion of her evidence, the following exchange occurred:

COUNSEL FOR
MICHAEL McKINNIN: I think that’s all, Your Honour, I’ll just check I didn’t miss something. No further questions, Your Honour.
HIS HONOUR: [Counsel for Harley McKinnin]?

COUNSEL FOR
HARELY McKINNIN:       No questions, Your Honour.
HIS HONOUR:                 All right, thank you.
FOREPERSON:                 Excuse me?
HIS HONOUR:                 Yes, you do doctor?
FOREPERSON:                 The jury have a question.
HIS HONOUR:                 Yes, madam?
FOREPERSON:                 They are wondering if at any time the intoxication level of the patient is noted?
HIS HONOUR:                 Did you – – –
PROSECUTOR:                Sorry, I forgot to – – –?
DR PUN:– – – No.
HIS HONOUR:                 Did you take a blood test or something or – – –?
DR PUN:No.
HIS HONOUR:                   No. If you come in after a motor car accident, you do, but not in these situations?
DR PUN: Yes.

Counsel for Michael then sought leave to further question the witness. Counsel directed the witness to medical notes, which recorded that the individual had consumed alcohol and a reference to ‘ETOH’, which the witness explained as referring to ethanol and was used to describe a finding that the patient was under the influence of alcohol.

In re-examination, the prosecutor took up the topic of the victim’s alcohol level. The doctor noted that she had recorded a Glasgow coma score of 15, reflecting an assessment of the capacity of the patient to obey commands and provide a comprehensive level of response. Level 15 is the highest score that can be recorded. The doctor noted that an intoxicated person would usually score a Glasgow coma score of 14 out of 15.

Leah Boxshall

A summary of the evidence given by Ms Boxshall is set out above.[12]
[12]At [9].

At the conclusion of her evidence, the following exchange occurred:

HIS HONOUR:                  All right. You’re now free to go, Ms Boxshall.
PROSECUTOR:                  Question. Question, Your Honour?
HIS HONOUR:                  Sorry, a question.
FOREPERSON:                  We do. We were wondering if the witness has been drinking alcohol that night?
HIS HONOUR:                  Yes, she said – had you been drinking?
BOXSHALL:Yes, I had three or four – – –
HIS HONOUR:  How much had you had to drink?
BOXSHALL:I had three or four drinks over the course of the evening from 5 o’clock up until the incident occurred.
HIS HONOUR:  Would you regard yourself as affected by alcohol?
BOXSHALL:Uh, only a little. I wasn’t drunk.
HIS HONOUR:  All right.
FOREPERSON:                  And the headlights of the Astra from where she said she was standing out the front of the smoking room, so they were facing directly towards her, were they on high beam or – – –
HIS HONOUR:                  Do you know anything about the – – –?
BOXSHALL:I don’t think they were on high beam. They were very strong.
HIS HONOUR:  The lights were on though?
BOXSHALL:The lights were on.
HIS HONOUR:  But whether they were on high or low, you don’t know?
BOXSHALL:I think they were on low.
HIS HONOUR:  All right. Thank you. Thank you, now – – –
COUNSEL FOR
HARRELY McKINNIN:      Your Honour, could I just say I’m not sure the question about the Astra being in the direction - different direction than I understand this witness said it was?
HIS HONOUR:                  No, the question was when the Astra was facing her, whether the lights were on high or low?
COUNSEL FOR
HARELY McKINNIN:        Yes.
HIS HONOUR:                  Yes.
COUNSEL FOR
HARELY McKINNIN:         Sorry, Your Honour.
HIS HONOUR:                  Yes, thank you.

Emma Ryan

The last witness questioned by the jury was Ms Ryan.[13] Again, the questions were asked at the conclusion of her evidence. She was asked the following:
[13]A brief summary of the evidence given by Ms Ryan is set out above at [10]–[12].

FOREPERSON:       Going back to when Leah was driving up the road the first time, and you just said that you stood in front of the car to stop her, to stop her from doing what?
RYAN:Just to put the car away, ‘cause I didn’t – there was nothing to worry about at that point.
FOREPERSON:        So what was it that you think she was potentially worried about?
RYAN:To follow the car.
FOREPERSON:        That she was going to follow the car?
RYAN:Well, that was my opinion.
FOREPERSON:        Thank you. And then, the second time that Leah hit the red car, how far did the car move that time?
RYAN:It moved again. I know that, but I don’t know – memory.
FOREPERSON:        About the same distance as the first time she pushed it?
RYAN:Yeah.
FOREPERSON:        So that distance again?
RYAN:Probably, yeah.
FOREPERSON:        And did it twist that second time?
RYAN:Not that I can remember, but I do know it hit, and I remember it hitting hard.
FOREPERSON:        And how much time between you being hit do you think it was till Leah hit the car?
RYAN:It just – to stand there and watch someone getting baseball batted – – –
HIS HONOUR:       Hang on. Is the answer you don’t know?
RYAN:I don’t – I can’t remember the time frame, no, I don’t.
HIS HONOUR:        All right. Thank you. You’re free to go.

Parties’ submissions on ground 4

The applicants submitted that the questioning by the jury amounted to a fundamental breach of the integrity of the trial and a miscarriage of justice. They submitted that, over the course of the trial, there was a growing confidence in the jury to directly question witnesses and this demonstrated a shift to an inquisitorial function of the jury.

The applicants submitted that the long held purpose of the jury is to determine if the prosecution has proven its case beyond reasonable doubt and that it is not desirable for a jury to seek out additional evidence, notwithstanding the right of a jury to question witnesses.[14]
[14]The applicants’ submissions cited R v Lo Presti [1992] 1 VR 696; R v Cvijic (Unreported, Supreme Court of Victoria, Full Court, 21 February 1986); R v Boland (1974) VR 849; Tootle v R (2017) 94 NSWLR 430.

By way of particulars to this ground, the applicants stated that:

(i)The judge encouraged the jury to ask questions in his opening remarks;
(ii)The judge allowed the jury to enter the arena and become investigators and inquisitorial;
(iii)The judge did not first vet questions (or canvass them with counsel) so as to ensure irrelevant/inadmissible questions were not asked;

(iv) No objection was taken by any counsel to the course taken;
(v)The jury became a participant in the process and in doing so compromised their impartiality; and
(vi)The judge praised the jury questions, whilst at times criticising Defence Counsel’s questions. This had the effect of undermining counsel in advance of their closing arguments and encouraging the jury to continue to act in an inquisitorial manner.

Further, the applicants relied on the following guidance in R v Lo Presti (‘Lo Presti’)[15] regarding jury questioning:

(i)Juries should not be told of any right possessed by them to question a witness.
(ii)A juror who wishes to put, or have put, a question to a witness has a right for that to be done, provided that the question or questions is or are limited to the clarification of evidence given or the explanation of some matter about which confusion exists.
(iii)It is not essential that the question asked be formulated by the foreman.
(iv)It is highly desirable that the question sought to be asked first be submitted to the judge so that he may consider its relevance and admissibility.
(v)If the judge allows a question it is immaterial whether it is actually asked by the juror or the judge. However, if the judge puts the question there will be removed the risk that exists when a layman is the questioner of the generation of a spontaneous exchange of questions and answers in the course of which improper material may emerge.[16]

[15][1992] 1 VR 696.

[16]Ibid 702.

The applicants relied on Tootle v The Queen (‘Tootle’),[17] in which a retrial was ordered in circumstances where the judge permitted the jury to ask questions of witnesses. The applicants submitted that the questioning by the jury comprised a significant procedural irregularity, with the result that the jury undertook an impermissible investigative and inquisitorial role.
[17](2017) 94 NSWLR 430.

Consideration of ground 4

In our view, the judge should have ensured at an earlier stage than he did[18] that the jury complied with the protocol that he outlined, namely, that if they had questions, they were to be written down and provided to the judge. That course would have enabled the parties to be heard on whether the questions should be asked.
[18]The judge reminded the jury of the direction regarding questions to witnesses after the evidence of Ms Ryan had been given and in response to submissions by the prosecution regarding Tootle (2017) 94 NSWLR 430.

However, the fact that this did not occur until four witnesses had been asked questions by the jury, does not mean that there was a fundamental irregularity in the trial or a substantial miscarriage of justice.

The questions asked were relevant and responsive to the evidence that the parties had adduced. The ability of the witnesses to observe the events of the night was an important feature of the trial. The questions relating to whether head lights were on and whether persons had been drinking were relevant to that matter.

None of the questions opened up new areas that the parties had expressly refrained from addressing. In relation to the questions asked of Dr Pun about alcohol, we do not accept the submission that counsel had deliberately refrained from asking questions on that topic. Although the topic of alcohol had not been taken up in either evidence in chief or cross-examination, it had been alluded to by counsel for Michael.

At an earlier point in cross-examination, counsel for Michael had taken the doctor to an entry in the clinical records which said that the ’54 year old male was drinking with friends at bar, patient got bashed by a group of teenagers – teenager tonight with baseball bat. Multiple hits to left side of the face, right leg, patient have pain and swelling to the left side of the face with right side knee swelling and ankle’.[19]
[19]Grammar and syntax as in transcript.

Further, counsel’s response once the question of the jury was asked, was to intimate that he had meant to ask about that topic but had forgotten. We would take that at face value. We are not persuaded that there was an obvious or deliberate forensic reason not to ask Dr Pun about the topic.

Had the questions been committed to writing and handed to the judge, we see no reason why they would not have been asked. The form of one of the questions to Ms Ryan was objectionable in that it asked the witness to speculate on the state of mind of another person and would not have been asked in that form. It was not, however, of any moment.

This case is very different to Tootle.[20] In Tootle, on the first day of the trial, the judge directed the jury that they were entitled to formulate questions to be asked of witnesses and to put them in writing.[21] During the trial, the jury asked questions that were investigative in nature (as opposed to mere clarifications). The jury also asked for clarification about the process of asking questions, in case they wanted to discuss questions before asking them.[22] In discussion of these questions, counsel for the appellant requested that a direction be given that the jury should not play an investigative role, however the trial judge refused to give this direction.[23]
[20](2017) 94 NSWLR 430.
[21]Ibid 433.
[22]Ibid 434.
[23]Ibid.

Justice Simpson held that neither the judge nor the jury has any investigative or inquisitorial role and that the trial process is structurally undermined if the jury is permitted to take on an inquisitorial role, and steer the trial in a direction different from that laid out by the prosecution and known to the defence.[24]
[24]Ibid 438–9.

This ground largely turns on matters of form. The manner in which the jury ask questions may be important, as Tootle shows, however, in this case, it did not result in either a misunderstanding of the role of the jury or an impermissible entry into the arena occupied by the parties.

We would refuse leave to appeal on ground 4.

Conclusion on the conviction appeals

We would refuse leave to appeal against conviction in each application.

Grounds of appeal against sentence

Harley advanced two grounds of appeal against sentence. The first ground was that the judge erred in sentencing him on a factual basis that was inconsistent with the jury’s verdict. The second ground was that his sentence was manifestly excessive, having regard to relevant sentencing practices, the applicant’s antecedents and his disadvantaged childhood, relative youth and prospects of rehabilitation.

Michael advanced a single ground of appeal against sentence, being that his sentence was manifestly excessive.

Reasons for sentence

After providing a brief description of the circumstances of the offending, the judge set out the injuries occasioned to Mr Broad and noted the victim impact statements filed by Mr Broad, Ms Ryan and Ms Boxshall. In his victim impact statement, Mr Broad said that, as a result of the assault, he had lost his independence; had to be driven everywhere; and felt insecure at his place of work and anxious in public. He has undergone three surgeries on his foot and has a need for ongoing rehabilitation and pain medication. Mr Broad stated that, 14 months after the incident, he was still limping; was only able to stand for short periods of time; and had been advised that his injury will never fully recover. He noted that the injury had caused him significant financial expense and he had been unable to return to work.

The judge noted that Michael had a limited criminal record, which he considered was irrelevant to the sentencing process for the offence. On the other hand, the judge noted that Harley had an extensive criminal record.

In 2012, Harley was convicted of driving offences in the Magistrates’ Court. In 2013, he was convicted, and received a community correction order, for offences of assault by kicking and threatening to inflict serious injury. The judge was told that these offences related to an assault on his former partner. In December 2013, he was fined for breaching a family violence intervention order, which also constituted a breach of the community correction order that had earlier been imposed.

In December 2014, he was convicted on charges of recklessly causing injury and unlawful assault, together with driving in a manner dangerous and contravening a family violence intervention order. On these charges, he received a term of imprisonment.

In October 2015, he was convicted for failing to stop after an accident, driving in a manner dangerous and other offences including possession of ammunition. He was then sentenced to an aggregate term of imprisonment of five months. In June 2016, he received a community corrections order for another offence of contravening a family violence intervention order and was subsequently convicted of perjury, possession of drugs of dependence and possession of property suspected of being the proceeds of crime.

In March 2017, shortly before the offending in these proceedings, Harley received a community corrections order for contravening a family violence order. Accordingly, at the time of the offending the subject of these proceedings, Harley was subject to a community corrections order. The judge considered that this was an aggravating feature of his offending.

The judge set out the details of the applicants’ personal circumstances. In relation to Michael, who was 47 years of age at time of sentence, the judge noted that he completed school to year 10, had had a number of jobs since then and over the last nine years had worked at a scrap metal business. The judge noted his history of issues with drugs and alcohol and his medical history of anxiety and depression.

In relation to Harley, who was 26 years of age at time of sentence, the judge noted a somewhat disjointed childhood. He left school part way through year eight and found employment at the age of 14.

The judge was guarded in his assessment of the prospects of rehabilitation for Harley. He referred to the references that were tendered on his behalf, which described him as engaging respectfully, appropriately and willingly with the Salvation Army Connect service. He also noted another reference describing Harley as demonstrating a desire to learn and being eager to work. Nevertheless, having regard to Harley’s criminal record, the judge described his prospects of rehabilitation as ‘somewhat opaque’.

The judge regarded general deterrence, denunciation and just punishment as the predominant sentencing factors and, in the case of Harley, regarded the additional need for specific deterrence having regard to his prior criminal history.

The judge noted that there were a number of factors that demonstrated that the offending was an extremely serious example of the offence of recklessly causing serious injury. Those matters were, first, that the applicants had acted in a vigilante fashion, overreacting in a gross way to the attempted theft from their motor vehicle and that there was no justification to pursue the youths who had tampered with the motor car. Secondly, Mr Broad was a completely innocent man who had not been involved up until the attack. Thirdly, the attack was sustained and continued after Mr Broad had been knocked to the ground and clearly severely injured. Fourthly, the attack involved a high degree of recklessness, as striking a man repeatedly with baseball bats carried a high probability of causing serious injury. Fifthly, the attack only ceased with the intervention of Ms Boxshall. Finally, the judge noted that the injuries were clearly serious.

The judge expressed his conclusion that the applicants were equally at fault for what occurred, and that there was nothing to distinguish between the two of them for the conduct in the evening. Having regard to the differences in prior convictions, including that Harley had a prior conviction for violence, the judge allowed for a relatively modest difference in sentence.

Parties’ submissions regarding sentence
Michael McKinnin

Michael submitted that the sentence imposed on him was manifestly excessive. He referred to the sentencing remarks, where the judge appeared to conclude that the offence was a serious example of recklessly causing serious injury; a vigilante attack; sustained; and the recklessness was high. The judge accordingly sentenced him on the basis of an upper range offence.

He submitted, however, that the offence was an upper-mid range offence, as it was unplanned; was not prolonged; the injury was not the most serious within the calendar of serious injury offences; more serious weapons were not used; and there had been a degree of provocation. Although he had prior convictions, he submitted that they were old and not related to violent offending.

He also took issue with the judge’s characterisation of the offence as a vigilante offence, on the basis that that terminology suggests that he set out to assault the victim in revenge and that the offence was intentional. However, he pointed to the fact that the verdict of the jury was that this was a reckless assault, not an intentional assault. Further, his defence was self-defence and he submitted that the jury’s verdict was consistent with excessive self-defence.

Finally, he submitted that it appeared as though Michael was sentenced for intentionally causing serious injury, as opposed to recklessly causing serious injury. He pointed to a few cases, in which he submitted more serious offending had attracted a comparable[25] or lower sentences.[26]
[25]Elmaghraby v The Queen [2016] VSCA 326.
[26]White v The Queen [2010] VSCA 261; Taupati v The Queen [2017] VSCA 106.

Harley McKinnin

Harley sought to challenge his sentence on two grounds. On the first ground, he contended that the judge erred in sentencing him on a factual basis that was inconsistent with the jury’s verdict. The prosecution had opened its case at trial on the basis that he and his co-accused conducted a joint vigilante baseball bat attack on innocent strangers; that they had set out for retribution in relation to youths tampering with their car; and that they had meted out vigilante justice in their attack on Mr Broad and Ms Ryan.

It was submitted that, had these facts been accepted by the jury, the only verdicts reasonably open in relation to the applicants would have been that they were guilty of intentionally causing serious injury to Mr Broad (charge 1) and, at least in relation to Michael, guilty of the charges in relation to Ms Ryan (charges 3 and 4). He referred to the acquittals on charges 1, 3 and 4 and submitted that it could be safely inferred that the facts as opened by the prosecution were not accepted by the jury.

On the second ground, he submitted that his sentence was manifestly excessive, having regard to all of the circumstances of the offending and the offender. First, he submitted that the judge gave insufficient weight to the relevant sentencing practices. In particular, he submitted that the sentence imposed fell outside the appropriate range, being more than half the legislative maximum. Secondly, he submitted that the judge gave too much weight to his criminal history. He had two prior convictions for violent offending, and the judge found that these antecedents called for a greater emphasis of specific deterrence as a sentencing purpose in relation to Harley. However, he submitted that the relevant incidents were of a different nature to the present offending in that they were not attacks upon strangers in the street.

Finally, he submitted that the judge failed to give appropriate weight to his disadvantaged childhood, relative youth and prospects for rehabilitation. In support of this submission, he referred to protective qualities that were said to reduce the risk of recidivism, including a demonstrated strong work ethic.

Consideration of grounds against sentence

It is convenient to deal first with Harley’s first ground which contended that the judge sentenced him on a basis that was inconsistent with the jury verdict. The essential point was that, had the jury accepted that he had been acting in a vigilante fashion and had been armed with a baseball bat, the jury must have found him guilty of intentionally causing serious injury.

That submission must be rejected because it focuses on the wrong state of mind element. The question of intent went to the extent of the injury. Although the use of a weapon may be relevant to the question of whether the extent of the injury that was inflicted was intended by the accused, the two issues are different. It was open to the jury to find that both of the applicants wielded a bat, however to also find that they were reckless as to the question of the degree of injury.

The findings of fact made by the judge were not inconsistent with the verdict and were open to him. The conclusion reached by the judge for the purposes of imposing sentence, being that both of the applicants held a baseball bat, was plainly open to him. There was evidence from the victim, Mr Broad, and from Ms Ryan that both of the applicants had baseball bats.

Given that the way the prosecution presented its case was one based on an agreement or understanding between the two applicants to assault Mr Broad, it was not necessary for the jury to be satisfied that each of the two accused held a baseball bat. However, there was evidence on which the jury could so conclude.

It was a matter for the judge to make findings in relation to sentencing. There was nothing inconsistent with the verdict of the jury in the findings that he made.

We turn then to the ground, common to both applicants, that the sentences are manifestly excessive.

In order to persuade this Court that the sentences are manifestly excessive, the applicants must demonstrate that the sentences are wholly outside the range of sentencing options available to the sentencing judge, in that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. The excessiveness must be ‘obvious, plain, apparent, easily perceived or understood and unmistakeable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error.’[27] It follows that the test is a stringent one that pays due regard to the discretionary power exercised by the sentencing court.
[27]McPhee v The Queen [2014] VSCA 156 [8], quoting Hanks v The Queen [2011] VSCA 7 [22].

An assessment of whether a particular sentence imposed is manifestly excessive does not turn on an assessment of whether the judge gave adequate weight to mitigatory factors or placed too much weight on the seriousness of the offence. The question is whether the result arrived at is manifestly excessive.

In our view, the applicants have failed to establish that the sentences were wholly outside the range open to the judge.

The offending was very serious. The attack on Mr Broad was sustained, involved the use of weapons and had a very severe impact on the victim.

Although the judge described both accused as acting in a vigilante fashion, the agreement to assault Mr Broad was made momentarily before it occurred and he was not the target of a reprisal. In that sense, the attitude of the applicants to Mr Broad stood in a different position to that directed towards the youths that the applicants had pursued. That said, it was relevant that the applicants came upon Mr Broad in circumstances where they had sought to pursue and at least threaten the youths who they suspected of theft.

There was an obviously volatile environment, created in part by their decision to pursue the youths, and when they came upon Mr Broad, who was entirely innocent, they got out of the car and assaulted him in a brutal and sustained fashion. The assault was a serious example of the charge.

In relation to Harley, the judge was entitled to give weight to the fact that he had prior convictions for violence and we agree that his antecedents called for a measure of specific deterrence. Although he was not to be punished for pleading not guilty, he was unable to call in aid any evidence of remorse, reinforcing the relevance of specific deterrence.

We are not satisfied the sentences, although stern, are wholly outside the range available to the judge in the exercise of his sentencing discretion.

We would refuse both applicants leave to appeal against sentence.

Disposition

For the reasons set out above, we would refuse both applicants leave to appeal on both conviction and sentence.

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Citations

McKinnin v The Queen [2019] VSCA 114

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[2019] VSCA 114

28 May 2019