Paisley v The Queen
[2012] VSCA 79
•4 May 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0042 | |
| CHRISTOPHER JOHN PAISLEY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, NETTLE and NEAVE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 27 April 2012 |
| DATE OF JUDGMENT | 4 May 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 79 |
| JUDGMENT APPEALED FROM | R v Paisley (Unreported, County Court of Victoria, Judge Bourke, 17 November 2011) |
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CRIMINAL LAW – Conviction – Recklessly causing serious injury – Verdict – Whether unsafe and unsatisfactory – Whether inconsistent with acquittal of affray – Whether state of evidence such as to preclude jury being satisfied of guilt to requisite standard – R v Klamo (2008) 18 VR 644; Baker v R [2010] VSCA 226, referred to.
CRIMINAL LAW – Practice and procedure – Application for leave to appeal against conviction out of time – Duration and cause of delay – Baltas v R [2011] VSCA 169, followed.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann | Chris McLennan & Co |
| For the Crown | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Nettle and Neave JJA. For the reasons which their Honours give, I too would refuse the application for leave to appeal against conviction.
NETTLE JA
NEAVE JA:
This is an application for leave to appeal against conviction of a charge of recklessly causing serious injury. The application was filed out of time, but only slightly late, and the applicant cannot be blamed for the delay. It was caused by his legal advisers. In the circumstances, we think it is appropriate to deal with the application as if it had been made in time.[1]
[1]See and compare R v Darby (Unreported, Supreme Court of Victoria, 2 May 1975); R v O’Keefe (1979) VR 1, 5; R v Davis (2003) 6 VR 538, 539 [5] (Winneke ACJ); Baltas v R [2011] VSCA 169, [35] (Redlich JA).
The Crown case at trial
The Crown case at trial was that, on 23 September 2007, the applicant and Colin Harrison travelled as passengers in a red Toyota Corolla driven by Jai Shore to 15 Achilles Court Lilydale where they planned to meet their friend, Amie West. Colin Harrison lay on the back seat and the applicant sat in the front passenger seat. All three men were affected by alcohol.
When they arrived at 15 Achilles Court, Lilydale, Shore parked the Corolla on the nature strip outside the premises. There followed a verbal confrontation between the men and Amie West, after which her father, Graeme West, approached the car and told the three men to leave. With that, Harrison leaned out of the rear passenger window and grabbed Graeme West by the shirt, pulling him partially into the back seat compartment through the window. He then kicked Mr West several times before getting out of the car and punching him in the face.
Jai Shore and the applicant thereafter got out of the car and became involved. Shore grabbed Amie West’s boyfriend, Steven Davis, who was attempting to separate Harrison from Mr West. Shore tripped Mr Davis and punched him in the back of the head. Shore, Harrison and the applicant next attacked Mr West by punching him and kicking him as he remained slumped on the ground. During the attack, Shore, Paisley and Harrison also punched Mr Davis as he attempted to assist Mr West. Those are the facts which comprised the charge of affray (Charge 1) of which the applicant was acquitted.
After that, Shore, Harrison and the applicant returned to the car and drove away from the scene and Mr West was conveyed to the Maroondah Hospital by ambulance. There, he was treated for facial injuries which included multiple fractures, facial bruising, swelling and a fractured left ring finger. In the opinion of the treating doctor, the injuries required referral to the maxillofacial surgical registrar and had the potential to cause serious brain injury. Those are the facts which comprised Charges 2 and 3, intentionally causing serious injury and recklessly causing serious injury.
Mr Davis also suffered swelling to his head and tenderness to his waist and back, although he did not seek medical treatment for his injuries. Those are the facts which comprised Charges 4 and 5: intentionally causing injury and recklessly causing injury
On 24 September 2007, Shore was arrested at his home. The red Toyota was located in the driveway. In his record of interview, he claimed to have reacted to Harrison being pulled out of the car. He admitted to punching Mr West twice in the face, causing him to fall to the ground.
On the same day, the applicant was arrested at his home. In his record of interview, he too claimed to have reacted to Harrison being pulled out of the car by Mr West. He said that he had grabbed Mr West in a ‘bear hug’ to prevent him from
assaulting Harrison. He denied punching Mr West or Mr Davis. He said that he got involved in an attempt to defuse the conflict.
The Crown alleged that the applicant acted in concert with Shore and Harrison or alternatively as an aider and abetter. The Crown relied principally on the evidence of Mr West and Mr Davis and also on evidence of Amie West that she saw the applicant swing at Mr West.
The Defence case at trial
The defence case was that the applicant acted as peacemaker and attempted to defuse the violence. Defence counsel went to the jury on the basis that they should not be satisfied that the applicant was party to the attack on Mr West and Mr Davis. It was not disputed, however, that their injuries were serious.
The verdict
The jury convicted the applicant of the count of recklessly causing serious injury but acquitted him of the count of affray.
Ground 1 – Unsafe and unsatisfactory
The only proposed ground of appeal is that the verdict is unsafe and unsatisfactory. Counsel for the applicant argued that, although there was some evidence that the applicant kicked and punched Mr West, the only witness who effectively maintained that allegation was Mr West himself and that the jury should have viewed his evidence as unreliable.
It is convenient to deal first with Mr West’s evidence and then with the criticisms which counsel made of it.
Mr West said that after the verbal altercation with the three accused, he was dragged into the back seat of their car and kicked in the face.
Um I walked over to the car and um, the back window was about three quarters of the way down then I just said to them um, ‘Why can't you leave?’
…
How close to the car were you when you said, ‘Leave’?---I was bent over sort of like looking into the back door with the window down and then I was told to – I was told to piss off.
…
All right so you've decided to go inside, what happened then?---That's when I heard coming from the back of the car – what was it, ‘Piss off you silly old grey haired cunt’. Sorry for using that word.
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‘Piss off’ – go on?---‘You silly old grey haired cunt’. Then I turned around and I went back to the car and I said, ‘Don't call me a silly old grey haired cunt’.
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Can you tell us who you said that to?---To the person in the back of the car.
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What was your position when you said those words?---Um I was sort of like bent down sort of like facing towards the back of the – on the back of the window of the back of the car.
I think you said you told us what you said?---Ah yeah I just said – I really can't remember much of that but yeah, it was a while ago. Um yeah and then I was just grabbed by me V-neck of me shirt and dragged into the back window of the car and I got – my arms were stuck and I was pulled over and - - -
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How was that? Describe that?---Um as a – I didn't have much of a balance because as I was dragged into the car me feet were sort of like just touching the ground and then I was sort of like pinned there and then – yeah and they just started kicking me in the face.
All right well who started kicking you in the face?---Ah the person in the back seat of the car.
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So he started kicking you? Whereabouts?---Oh just in the head.
Yes and go on?---And he just kept on – he just kept on (indistinct) repeating kicking me in the head and then me face went all numb and then I tried – to try to get myself out of the car I grabbed him by the shirt to try to – what to free myself and I don't remember on how - - -
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All right and were you successful? Or tell us what happened?---Um, I – I freed myself I – just on what I'm going to – at the time, I was not all together there and I staggered backwards - - -
All right so I'll just stop you there. So you did actually free yourself, did you?---I think so. I think I freed myself. I'm not - - -
Now, there – what was the driver and the front seat passenger – were they doing anything or - - -?---No, they were just – they were just looking and then – didn't even stop to – try to help to stop me from being kicked.
Did they say anything?---Ah no.
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All right and if you could go on with what happened then?---And then um, I remember when I – I got out, the person in the back of the car, he got out and um he started kicking me in the face um and - - -
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Well I'll stop you there. So you saw him get out. Which door did he get out of?---Of the back of the car, on the driver's side cos that's the side I was on.
That's the side closest to you?---Yes.
Right, so he's got out of the car and you said – then what happened? He kicked?---And then ah, I slumped over and then he started hitting me with ah – with - - -
HIS HONOUR: I think he said before, ‘He started kicking me and he started hitting me.’ Is that what happened?---Ah yes, and then with um – with upper cuts and everything else that ah by that time - - -
MR GRAY: Yes?--- - - - I was a bit vague.
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MR GRAY: All right and what was your position as he was hitting you?---Ah Ok, what can – do you mind if I stand up?
Yes, you show us?---Um, I was bent over, I was just – I know I was in that much pain, I was bent over in this position and that's when I was starting to get the hits from the person that got out of the back of the car - - -
So you sit - - -?--- - - - I was slumped over like that - - -
Your head is down and you're bent forward?---Yes, yeah I was bent forward with my head down like – just down – just down like this.
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All right, now next. What happened then?---Um it's – Steven – um it's ah – well from what I can remember, Steven come over – and he then he's – he tried to break it up.
So Steven is – Steven, well that your daughter's, Amie's boyfriend at the time?---Ah yes.
All right, so do you know where he came from?---Ah he come from the right-hand side of me.
Right, yes?---And he come over and when he come over, I ah – I seen the um person in the front passenger seat – I just – just out the corner of me eye, which is almost completely closed that the time but I guess – y'know, could remember it and he come – he jumped out of the car and he ran around the front of the car - - -
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No, the person – the front seat passenger. What did he – you see him do and to whom? Don't worry about the order?---Oh. Um, just started – just started kicking, he started kicking and hitting me.
Kicking who?---Pardon?
Who did he kick?---Ah, kicking, he was kicking me.
Yes?---And um he – I think he only kicked Steven once.
Yes?---He just continuously kept hitting me and then when that kinda happens Steven – with Steven the driver got out - - -
Yes?---And then that's when all three of them started hitting and started hitting and kicking me.
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Started? All right. Now who did they start – all three start to hit?---Ah it was only just me. And then I do remember Darren[2] tried to help and Darren – Darren got kicked in the – Darren got kicked in the chest. I'm not quite sure who that was - - -
[2]Darren was the victim’s stepson.
In cross-examination, he gave this evidence:
I want to suggest to you that the guy that you're saying got out of the front passenger seat at no stage – I put to you at the start of this cross-examination, at no stage did he throw a punch or kick or assault you in any fashion. So would you take a moment and just reflect on that and then after you've done that can you give us your response?---It's a – it's – yes – sorry. Yes, it happened, yes. He did hit and kick me.
He did?---He did.
Are you saying he did punch you or he did kick you or he did both?---Both.
I suggest to you that the only thing he did at the moment in relation to you was he grabbed you away from the motor vehicle when you were bent over and perhaps halfway in or halfway out, as you've described, through the window. He put you in a bear hug and pulled you away and that's how you broke free from the car?---No, that – no, that wasn't the person. It was – I just vaguely can't remember on how I did get out but yeah, no.
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All right, so let's be clear about this. You deny the suggestion I'm putting to you and I'll put it to you that it's my client, but that a person really grabbed you from the side or behind and pulled you away from the car where you're being punched or kicked, whatever it was, and in that process, you fell to the ground on the driveway? With that person? You say, ‘That didn't happen,’?---Nuh, that – that's right because – because I never fell over. I was – I was still standing and in a crouched position as I showed you before.
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See I'd suggest you were – I'm not suggesting you weren't, if we used that verb, ‘dragged into the car’, I'd suggest you in fact went to grab, and did grab, that bloke who was, if we assume this is like the window of the car, is leaning out the wound-down window of the car. You follow? And I'm suggesting, you actually grabbed onto him and then he's gone back into the car, seemingly to break the grip you had on him and you've been, as you used this word, dragged, halfway in through the window yourself. What do you say to that?---No, I – I did that to try and break free - - -
I'd suggest at that point – and I'm not suggesting you weren't necessarily punched or kicked once you – half your body's going through the window. At that point if you'd noticed you would have seen the front passenger get out of the car very quickly and come around to the side you were on?---No he didn't. He sat there and the driver just looked – just turned around and looked and thought it was just - - -
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See I'd suggest to you as I put to you that having been grabbed in this bear hug by my client the two of you then did fall more or less to your knees in the driveway and my client was saying to you, ‘Settle down, come on mate settle down’?---No.
What do you say to that?---No.
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All right well you've got two partially closed eyes because of the assaults you're getting to your face but you've got yourself looking down at the ground with whatever restricted vision you've got. You follow? At that point you wouldn't see whether you're being punched or kicked or if it's both who actually was doing the punching or kicking? What do you say to that?---I remember – I can remember the three of them doing it, thank you.
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Well it – do you accept this, it is easy to make mistakes in such a dynamic, flowing, volatile situation. Isn't it? Do you accept that?---No.
As to whether it's necessarily three people are actually doing the punching or kicking or it was two of them but it appeared to be three of them. Is that possible you could make a mistake with that, sir, given the condition you were in?---No.
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MR DESMOND: Look really what I'm putting to you Mr West – I'm not suggesting on no occasion have you said this front seat passenger guy who we've identified as Chris didn't assault you, what I'm putting to you is you weren't able to say at the committal that he necessarily punched or kicked you as opposed that he got stuck into you or that he was hitting you? You follow?---By that - - -
You're telling this jury, ‘I can say he did kick me’ and ‘I can say he did punch me’? That's what I'm putting to you?---Yes he did.
In re-examination, he said this:
Do you have any doubt that you saw Steven punched by the front seat passenger?---I have no doubt.
Do you have any doubt that you were punched by the front seat passenger? --- I have no doubt.
Do you have any doubt that you were kicked by the front seat passenger?---I have no doubt.
Counsel for the applicant submitted that Mr West’s evidence as to the attack should have been viewed as unreliable because it stood in contrast to the evidence given by a number of the other witnesses. The first to whom counsel referred was Darren Brehaut who, having given evidence in chief that the applicant had been ‘laying into Graeme’, then expressly withdrew that evidence in cross-examination:
So you were all out the front. All right. Talking or about five minute I think you said? Is that right?---Yep.
Did – you were then saying a car rocked up?---Yep.
Well tell us about that?---Um, Amie – we'd seen them earlier on in the day just out front of the Lilydale pub then Amie went up to em and told them to go away and there was a bit of a commotion.
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Amie's dad's house, yes all right and there's – you said there was a bit of a kafuffle. Just in your own words explain what happened. What you saw or heard?---Ah, Amie was telling them to leave and they did not leave, at which point Graeme went up and asked them to leave and they – the guy in the back grabbed Graeme by the shirt and was trying to pull him in to the car.
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All right tell us about how did that happen?---Um, he just – the window was down and grabbed him by the shirt and started kicking him.
The guy in the back?---Yep.
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What happened next?---Um, me and Steve jumped the fence to go over and assist Graeme.
Yes?---Um, we got to Graeme, we started attempting to pull him out of the car.
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So you were telling us that Graeme bent down to try and look at the number of the car?---Yeah.
What happened then?---Um, the person – the two front people that were in the front of the car started laying into Graeme again, Steve was - - -
That is the passenger and the driver?---Yep.
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You're talking about the – tell us?---The front driver and passenger.
So there was punches being thrown at Graeme, were they connecting?---Yes.
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But what I'm putting to you is that really you're – and it's not criticism because it's a violent, fast paced event, it's an assault in progress you're unable to say whether one or both of the front seat driver and the front seat passenger involved himself as a real active participant in the assaulting? Do you understand what I'm putting to you?---Yeah.
All right. Now what do you say to that?---Yeah.
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MR DESMOND: True, true. I'm putting to you he [the applicant] walked around and grabbed Graeme from the side or behind and pulled him away and they fell onto the ground. Now can you on oath – take a moment, think about it – can you deny that that occurred?---I can't deny that.
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But just so we're clear about this what I'm putting to you is that it was one person who was throwing the punches when Graeme was away from the car, not two? Now you're nodding your head there, could you just - - -?---Quite possibly yeah.
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In light of could I suggest to you what you've indicated today or this morning in the cross-examination that you're unable to say that the front seat passenger necessarily threw any punches? You would – would you withdraw that evidence that you gave on Friday?---Yes.
Counsel also relied on what he said was the witness Steven Davis’ ambivalence as to whether the applicant punched Mr West. In chief, Steven Davis said this:
All right now the car rocked up and did you see how – at that stage could you see how many people were in it or not?---Um no I could only see two people getting out of the car – the front – two people getting out of the front passenger seat and the front driver's seat.
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So we've got Amie standing a bit closer to the car than her father and this exchange. Did Amie say anything?---Um she was talking to them but I don't know what she was saying but then um the dad started saying, ‘Just leave’ to them, to the people in the car.
Then what did you see?---Um and then I saw um – um, he – getting pulled – pulled into the car and then that's as soon as I jumped the fence, straight away.
Yes?---And then I run – as I ran up um, I ran up to the car and um I could see some feet coming like at his feet and he was kept on getting kicked in the head.
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Do you know, where was anyone else situated?---Um the two men from the front were standing next to – on the other side of the father [Mr West], next to each other.
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HIS HONOUR: And where was Graeme at this stage?---He was getting kicked in the face and he was getting – pulled – he was pulled into the car.
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Well what did they – what were they doing?---They just stood there and watched.
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Then tell us what happened?---Um I got him out and he had blood all on his face and then he stepped back a bit and I got knocked to the ground.
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Now, one man is punching Graeme?---Yes.
In terms of the people in the car, was it the driver, the front seat passenger or the man in the back?---It was the driver.
All right so the driver - - -?---Yes.
- - - punched Graeme?---Yes.
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All right - - -?---Mr West was just standing there and it – the driver had like a boxing pose and he was like stepping up, hitting him, then jumping back and then jumping back in and hitting him again.
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MR GRAY: Yes?---And then he grabbed and threw me to the ground.
Who is that he?---The driver.
Yes?---Yes and then as I get – got up I saw Graeme. He was further towards the house.
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Getting laid into?---Well yes, getting um – getting bashed.
By who?---Um it was the driver.
Yes?---And also there was the man from the back seat. They were both hitting him.
So the man from the back seat and the driver are hitting him?---Yes.
Do you know what the front passenger seat was doing? Did you see - - -?---He was there as well. They all were – they were all – all of them were attacking him.
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Are you able to say how many of them were striking him?---Three.
The three?---Three of them, yes.
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What were they – the attacks? Was it by feet or foot or - - -?---They were all punching him in the face.
In cross-examination, however, Davis said:
And I suggest to you, Mr Davis, that the man you're saying came out from the front passenger seat at no time punched or kicked you. What do you say?---I can't remember.
I'd suggest in the violent, confusing event that clearly happened you did not see him punch or kick Graeme West either?---Yes, he punched – he was the first one – when Graeme got out of the car, he was the first one to punch him.
He was the first one?---Yes.
HIS HONOUR: After they got out of the car?
MR DESMOND: Yes, after they got out of the car. You mean after he got out of the car or after Graeme – after you got Graeme away from the car?---After Graeme gotten away from the car, yes.
HIS HONOUR: After – sorry?---After Graeme – I pulled him out of the car.
MR DESMOND: I put to you you're either lying or mistaken, and that in fact it was the driver who's known as [Jai] is the man who's walked up and had a go at Graeme after the back seat passenger has been assaulting Graeme. Now in fairness, would you just think for a moment, reflect on it. Is it possible – is it just possible you could be mistaken about that, sir?---Yes.
Counsel relied, too, on what he said was Amie West’s evidence that the applicant had attempted to play the role of the peacemaker and, although he swung at Mr West, she could not be sure he connected:
What did, if anything, did Mr Paisley the passenger do?---He got out of the car and tried to break Dad and Jai up.
Did he go around - - -
HIS HONOUR: Just – I'm getting that down - - -
MR GRAY: - - - the front or - - -?---Around the - - -
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HIS HONOUR: Yes. He got out and tried to break - - -?---Dad and Jai up because they were both yelling at each other.
MR GRAY: And I think you were - sorry, Your Honour.
HIS HONOUR: They were both – Jai and your father were yelling at each other?---Yeah, pushing each other and stuff.
Yes?---So Chris tried to get in between them and tried to break it up and then - - -
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MR GRAY: The next development is what?---Dad pushed Chris thinking – you know, like trying to get him off Dad so Dad can still, you know, yell because he got a – you know, really angry and then I - - -
Your father pushed Mr Paisley?---Yeah, trying to get him out of the way so he can get to Jai.
Yes?---And then I see Chris' fist just go smack – sorry – smack at Dad.
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It was a punch, was it?---Yeah.
Who did he punch?---Dad.
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MR GRAY: Whereabouts did – did the punch land?---I don't think so because I think Chris – I mean, Steve's run in at that time so I think it got Steve.
Do you have a memory of that or not?---No, but I remember Chris did raise his fists and swing at Dad.
HIS HONOUR: You don't think it landed and you said something about Steven at that stage. What did he do?---Yeah. Steve's run in to protect Dad so Chris couldn't connect to Dad.
MR GRAY: Did you see the punch – that is, Mr Paisley's punch connect with anyone?---No.
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What happened after that – I withdraw that. Are you able to say where Mr Paisley's blow was aimed?---To Dad's face.
What happened after that?---Um, because when Steve has run in to help Dad, Jai's gone and grabbed Steve and pushed him over near these rosebushes that we had and - - -
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HIS HONOUR: Darren also tried to get Jai off Steven did he?---Yes.
Yes.
MR GRAY: OK and was that successful? Was Jai – was Darren successful in getting Jai off Steven?---Yes but he also got punched in the stomach at the same time.
Darren did?---Yes, by Jai.
By Jai? All right. Yes and do you know what was happening with your father at this stage?---No not at this stage.
So your attention is on those two?---Yes.
Steven and Jai and Darren?---Yes.
…
Yes just stop there?--- - - - right next to – like right next to the letter box.
Yes. Just wait a moment.
HIS HONOUR: Yes.
MR GRAY: All right so we've got Mr Paisley telling your father to calm down. What was your father doing if anything?---Yelling at Colin.
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So the last we had was Jai running up and hitting your father twice with punches?---Yes and then started kicking into dad's ribs.
And - - -?---Kicking into Dad's ribs.
Who did this?---Jai.
Now, the last we've had of Mr Paisley is he was telling your father to calm down?---Yes.
What did Mr Paisley do, if anything, while this was happening, while these two blows were delivered by Jai to your father?---Nothing.
He did nothing?---No.
[Mr West was] Yelling at Colin?---Yes.
Yes?---Cos Colin was calling him, ‘Fucking old cunt’ and everything like that.
…
When Jai – you've told - - -?---Mr who? Sorry, what did you say - - -
Chris, Chris?---Chris.
No, I'm sorry, Mr – the backseat passenger?---Colin.
Colin, yes, what was he doing?---Yelling at him and spitting on him.
On your father?---On my dad.
HIS HONOUR: This is the time the man called Jai Shore struck your father and kicked him?---Yes.
Colin Harrison was yelling?---And spitting on my dad.
Did he do anything else to your father?---No, not – no, sorry, yes, he did kick him as well.
Kicked your father?---Once.
All right, and did Mr Paisley do anything to your father?---No.
In cross-examination, she reiterated that there was a stage at which she was not aware of what was happening to Mr West:
There was a stage in your evidence where you said that Steve was on the ground near the rose garden?---Yes.
You went over to him. That was your evidence?---Yes, because Jai was over with him and my stepbrother.
At that stage, your attention was on Steven on the ground?---Yes, and my stepbrother.
Did you know what was happening behind you in relation to your father?---No.
No?---No.
Finally, on this point, counsel relied on the evidence of Lisa Korompay as, in counsel’s submission, supporting the conclusion that the applicant attempted to act as the peacemaker:
MR GRAY: Yes. Do you know who the two people were that were on top of that person?---Ah not really, I just saw it for a split second. I think one was from – one of them was from the car but I don't know – because one did get out of the car. The front passenger - the front passenger he got out and came around and said to Graeme – he was trying to sort of say to Graeme to stop it and I don't know what happened after that but I don't know really - - -
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HIS HONOUR: All right so what was Graeme doing when the front seat passenger told him to, ‘Stop it’?---Well he was – well he had his head in the car and I think he was just trying to get out and I don't know what actually really was – I couldn't really – don't really remember really what – why he said it for.
First stage of the attack
It is convenient to deal with counsel’s criticisms of the evidence by reference to the first and second stages of the attack. Beginning with the first stage, counsel argued that, apart from Mr West’s testimony, the net effect of the evidence concerning events up to the point where Mr West managed to extract his head from the car was that the applicant was not complicit and had attempted to play the role of the peacemaker.
We accept that the evidence was insufficient to establish beyond reasonable doubt that the applicant was complicit in Harrison’s initial attack on Mr West.
As to the applicant acting however as the peacemaker during the first stage, the highest the evidence goes from the applicant’s point of view is Lisa Korompay’s testimony that Mr West had his head in the car and was just trying to get out when the applicant got out of the car and came around to him and said to him to ‘stop it’. That version of events was inconsistent with the testimony of every other witness and also highly improbable. Given that Mr West had been dragged into the car and was being attacked by Harrison, facts about which there was never any real dispute, and was attempting to extract himself from the attack, it would have been complete nonsense for the applicant to get out of the car, walk around to Mr West and tell him to stop it.
Second stage of the attack
Moving then to the second stage of the attack, which counsel defined as having begun after Mr West separated himself from the car and the attack made on him by Harrison, counsel reiterated that the only evidence the applicant kicked and punched Mr West was Mr West’s testimony.
We do not accept that submission. Steven Davis was clear in his evidence in chief that all three accused punched Mr West. Admittedly, defence counsel later persuaded Davis to agree that ‘it was the driver who's known as [Jai] is the man who's walked up and had a go at Graeme’. But that concession appears to us to relate solely to the identity of the first of the accused to get out of the car and launch the further attack on Mr West.
Counsel for the applicant made much of the supposed unreliability of Steven Davis and the judge’s observation that:
I note that the jury did not act upon his admittedly vague [recollection] of you kicking or assaulting Steven Davis. You were acquitted of the alleged offence against him. The jury also did not act upon Davis’ account of the assault upon him, at least to the extent that his account, somewhat uncertainly, implicated you. I found him an unreliable witness. On reflection I consider the terms of my criticism of him at one point during the plea hearing to have been unduly strong. I regret that.
We do not think that to be especially important. Perhaps there were reasons to doubt the reliability of some aspects of Davis’ testimony. As the judge observed in his sentencing remarks, presumably that is why the jury acquitted the applicant of the attack on Davis. But Davis’ evidence as to the applicant’s involvement in the attack on Mr West was corroborated in significant respects by the testimony of Mr West and Amie West and the objective evidence of the scale of injuries inflicted on Mr West. The fact that Davis may have been uncertain about some aspects of detail, and when pressed was prepared to concede his uncertainties, does not require or even cause one to wonder whether the jury should have rejected Davis’ evidence on major points.
Then there is Amie West’s testimony that the applicant was the first of the accused to get out of the car and that she plainly saw the applicant’s ‘fist just go smack – sorry – smack at Dad’. It is true that she also said that she did not see the punch connect. But, as she conceded, there was a stage when her attention was on Davis, who was on the ground, when she did not know what was happening ‘behind you in relation to your father’. Moreover, even if her evidence as to not seeing the punch connect were taken to mean that it missed, the fact that the applicant attempted the punch at all was utterly opposed to the notion that his only role in the incident was peacemaker.
Finally on this aspect of the matter, there is Amie West’s further testimony that the applicant thereafter stood by as Shore repeatedly punched and kicked Mr West, and Harrison yelled and spat on him. That surely confounds the idea that the applicant was attempting to bring the conflict to an end and supports the inference to be derived from Mr West’s and Davis’ evidence that the applicant was at least by that stage acting in concert in the attack with Shore and Harrison. As the judge found when sentencing the applicant:
At least at one point of time during it in agreement, although quickly formed, with the others [the applicant] engaged in an assault upon Graeme West which involved punching and kicking him …
Counsel submitted that, be that as it may, the jury had reason to doubt the reliability of Mr West’s evidence because, among other reasons, his evidence was inconsistent with Amie West’s testimony; his ability to observe who was attacking him was compromised by the effect of the injuries which were inflicted on him; and the jury must be taken to have rejected his evidence that he had no doubt that the applicant punched Steven Davis.
We do not accept that submission either. To the extent that Mr West’s evidence was inconsistent with Amie West’s testimony, the differences were essentially confined to whether or not the applicant attempted to act as peacemaker. As we see it, there were good reasons for the jury to doubt that aspect of Amie West’s testimony. They included that the applicant did nothing to stop Harrison’s initial attack on Mr West; did nothing effective to prevent Mr West being bashed in the second stage of the attack; according to Amie West, either punched or attempted to punch Mr West and then stood by doing nothing while Shore and Harrison repeatedly struck Mr West; and then ran away with Shore and Harrison after Ms Korompay yelled out that the police were coming.
We allow that Mr West’s ability to make observations may have been compromised with respect to activities which occurred at any distance from him. But we see no reason for the jury to have doubted that he was able to and did see who hit him. After all, who better than the victim to know who struck him?
That point of difference also presents to us as a likely explanation for the jury accepting Mr West’s testimony as to what happened to him and yet not being prepared to rely upon his testimony as to what happened to Davis. Another and equally likely possibility, however, is that the jury were prepared to act only upon those aspects of Mr West’s evidence which were corroborated or substantially so. For even taking just the corroborated aspects of his testimony and treating them at their lowest from the Crown’s point of view, they were still more than adequate to support the conclusion beyond reasonable doubt that, at some point during the course of the fracas, the applicant implicitly agreed with his co-accused to assault Graeme West and, pursuant to that agreement, one or more of the accused carried out the agreement by inflicting serious injury on Graeme West while the applicant stood by playing his part in the performance of the agreement.[3]
[3]R v Lowery and King (No 2) [1972] VR 560, 560–1(Smith J); Matusevich v The Queen (1977) 137 CLR 633, 636–7 (Gibbs J).
Counsel invoked the observations of Maxwell P in R v Klamo[4] as to when a verdict should be regarded as unsafe and unsatisfactory:
[4](2008) 18 VR 644, 653–4, [38]–[40]; cf Baker v R [2010] VSCA 226 [40]–[44] (Maxwell P).
The approach required of appellate courts in considering the ‘unsafe and unsatisfactory’ ground involves the following steps:1
1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4.It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
A guilty verdict can only be said to have been ‘reasonably open’ to the jury if there was no aspect of the evidence which obliged — as distinct from entitled — the jury to come to a different conclusion. In Libke v R,[5] Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the ‘unsafe and unsatisfactory’ ground:
[5](2007) 230 CLR 559, 596–7 [113].
… But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[6] It is not sufficient to show that there was
material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[7][6]Citing M v R (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ).
[7]See also R v Tiburcy [2007] VSCA 124, [17] (Vincent JA).
In other words, the question posed in M v R,[8] namely:
[8](1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).
Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt?
requires the court of criminal appeal to decide:
… whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.
To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a ‘solid obstacle to reaching a conclusion beyond reasonable doubt’[9] or whether, instead, the ‘path to a conviction was open’.[10]
[9]R v Shah [2007] SASC 68, [4] (Doyle CJ).
[10]Morabito v R [2007] NSWCCA 126, [34] (Mason P).
It suffices to say concerning Klamo that, for the reasons we have given, we do not consider that there was a solid if indeed any obstacle in the way of the jury being satisfied of guilt beyond reasonable doubt.
Serious injury inflicted during second stage of attack?
Counsel contended in the alternative that, if it were open to the jury to conclude that the applicant joined the attack on Mr West, it could only have been for a fleeting period, and it would not have been possible for them to be satisfied beyond reasonable doubt that serious injury was inflicted during that period.
We reject that contention, too, for three reasons. First, although it is not determinative, the argument was not put to the jury in the course of defence counsel’s final address. At trial, the defence conceded that the victim suffered serious injury and the only issue was whether the Crown had proven beyond reasonable doubt that the applicant joined the agreement to inflict it.
Secondly, for the reasons previously given, the jury may well have rejected Amie West’s testimony as to the applicant acting as peacemaker.
Thirdly, even if the jury accepted her evidence about the applicant acting as peacemaker, it was open to find on the basis of her evidence alone – put aside the evidence of Mr West and Davis - that the applicant ceased to be peacemaker, joined the attack by no later than the time of throwing the punch at Mr West, and remained party to the attack until, at the earliest, shortly before the accused decamped. It was open to find on the basis of her evidence alone that, during that period, Mr West was at least twice knocked to the ground and further kicked in the ribs while on the ground. And it was open to conclude as a matter of overwhelming objective probability that an attack of that magnitude and duration was sufficient in itself to inflict serious injury.
Relevantly Amie West’s testimony as to what happened during that period was as follows:
Yes?---And come to – cos as Colin and Dad were yelling Jai’s – thinks he’s (indistinct) like he always has been – has run over to punch dad in the face.
Jai punched dad in the face?---Right – right here on the left side.
On the left – you’re saying on the left side of dad’s face?---Yeah. So as he’s punched dad, dad fell straight to the ground.
Just stop there?---Sorry.
It’s all right.
HIS HONOUR: Yes.
MR GRAY: And that was as a result of a blow from Jai?---Yeah but as dad was stumbling back up Jai did it again.
Jai did it again as dad was - - -?--- Stumbling up to get back up off the ground.
And your dad was knocked to the ground?---Yeah and then as dad was stumbling back up Jai’s just gone smack again.
Another punch?---Yeah.
And these punches landed on your dad’s head?---My dad’s face.
All right, just take your time?---Sorry.
HIS HONOUR: That’s all right, you take your time. Have you got some water there?---Yeah.
…
So the last we had was Jai running up and hitting your father twice with punches?---Yes and then started kicking into dad’s ribs.
And - - -?---Kicking into Dad’s ribs.
Who did this?---Jai.
…
What did Mr Paisley do, if anything, while this was happening, while these two blows were delivered by Jai to your father?---Nothing.
He did nothing?---No.
So we’ve got your father – did your father, after the second punch, fall down?---Yes.
Again - - -?---Straight back down.
And what happened then?---My step mum’s come out, yelling that the cops were on their way,
…
HIS HONOUR: Just tell us what – what Chris did?---Chris just grabbed Colin and chucked him in the back of the car, and they drove off.
This is after your mother – your stepmother had said that - - -?---‘The cops are on their way’.
So he grabbed Colin, and did he push him into the car, did you say, or pushed him – what did he do? He grabbed Colin, what did he do?---Yeah, he just grabbed Colin, chucked him in the car, closed the door, and they drove off. May I add something - - -
It follows as we see it that, even if the injuries inflicted before the point at which the applicant joined the criminal enterprise were enough to cause serious injury, the jury were well entitled to be satisfied that the injuries inflicted thereafter were in themselves such that the applicant was guilty as charged.
Inconsistent verdicts
Finally, counsel contended that the fact the jury acquitted the applicant of the charge of affray threw real doubt on the efficacy of the conviction on the charge of recklessly causing serious injury; for, in counsel’s submission, it was impossible rationally to reconcile an acquittal of affray with a finding that the applicant was party to the infliction of serious injury.
We perceive no such inconsistency. The elements of the two offences are not the same. In order to convict the applicant of affray, the jury would need to have been satisfied beyond reasonable doubt not only that the applicant intentionally joined the unlawful fighting or violence but also that the fighting or violence was such that a bystander of reasonable firmness and courage might reasonably be terrified.[11] The jury could rationally be satisfied that the applicant was party to the reckless infliction of serious injury but have had a reasonable doubt as to whether the level of violence would have caused a person of reasonable firmness and courage to be terrified.[12] Contrary to counsel’s argument, we do not think it unrealistic to suppose that the jury reasoned in that manner, particularly in view of the meticulous fashion in which the judge directed the jury on the elements of affray and later re-directed them in response to their request for further assistance as to what the offence entailed.
[11]I v DPP [2002] 1 AC 285, 295 [17] (Lord Hutton).
[12]As opposed to nervous or frightened or some other such less agitated emotional state.
Conclusion
For those reasons, we would refuse the application.
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