R v Cumberworth & Juma - [1999] QCA 249

IN THE COURT OF APPEAL [1999] QCA 249
SUPREME COURT OF QUEENSLAND

CA No 475 of 1998
Brisbane

[R v Cumberworth]

THE QUEEN
v

NIGEL GORDON CUMBERWORTH
(Applicant) Appellant
CA No 489 of 1998
CA No 103 of 1999

[R v Juma]

THE QUEEN
v

SHUKURU JUMA
(Applicant) Appellant
Pincus JA
Derrington J
Chesterman J

Judgment delivered 16 July 1999
Separate reasons for judgment of each member of the Court; each concurring as to the orders made.
CA NO 475 OF 1998 - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED AND APPEAL AGAINST CONVICTION DISMISSED
CA NO 489 OF 1998 - APPEAL AGAINST CONVICTION DISMISSED
CA NO 103 OF 1999 - APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPLY FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED
CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION - MISCARRIAGE OF JUSTICE - PARTICULAR GROUNDS - UNREASONABLE AND INSUPPORTABLE VERDICT - whether conviction was unsafe and unsatisfactory - whether the appellant could understand the charge against him and the evidence to support it.

CRIMINAL LAW - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION - POWER TO MAKE ORDERS AS TO TIME COUNTED AS PART OF SENTENCE - whether the trial judge should have made an order under s 158 or s 161 of the Penalties and Sentences Act.
CRIMINAL LAW - JURISDICTION PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION - whether counsel’s conduct at trial was “flagrantly incompetent”.
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - PRACTICE AND PROCEDURE - whether the trial judge properly directed the jury regarding conflicting evidence and intoxication.
Ebatarinja v Deland & Ors (1998) 157 ALR 385 considered
M v The Queen (1994) 181 CLR 487 considered
R v Birks (1990) 19 NSWLR 677 considered
R v Blake [1995] 2 Qd R 167 followed
R v Paddon (CA No 122 of 1998, 28 August 1998) followed
Criminal Code, ss 7(1)(a), 7(1)(c) & 305
Penalties and Sentences Act 1992, ss 158 & 161

Counsel:Each applicant/appellant appeared on their own behalf
Mr D Meredith for the respondent

Solicitors:Each applicant/appellant appeared on their own behalf
Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 11 May 1999

REASONS FOR JUDGMENT - PINCUS JA

Judgment delivered 16 July 1999

I have read the reasons of Chesterman J and agree with his reasons and the orders he proposes.
REASONS FOR JUDGMENT - CHESTERMAN J
Judgment delivered 16 July 1999
On 25 November, 1998 both appellants were convicted of the murder of Gordon Charles Mott. The deceased had been an occupant of a house which had been converted into flats at 68 Browning Street, West End. He was a small man, 1.72 metres in height and weighing only 55 kilograms. He died shortly before 7:00 p.m. on 1 February, 1997 while undergoing emergency surgery.
The deceased had been subjected to an attack of prolonged savagery. The cause of death was heart failure consequent upon loss of blood and air. The post-mortem examination revealed five slash wounds across his left buttock and two stab wounds to the left armpit. There were three stab wounds to the back of the left thigh and twenty-five stab wounds to the left upper arm.
There was a cut to the left cheek and two gashes to the neck. These resulted in a large gaping hole. The windpipe was completely severed.
There were more stab wounds, six in number, to the chest. One penetrated the left ventricle of the heart and another cut the pulmonary artery. There were twelve slash wounds across the lower abdomen, the longest of which was twenty-seven centimetres. There were three more stab wounds to the abdomen, one of which had penetrated the liver. There were four slash wounds across the penis.
Some of the stabs had been inflicted with such force that rib bones were cut. The slash wounds, as well as varying in length, differed in width. They were wider in places consistent with the blade having been turned as it cut through the flesh.
As well as being wounded by a blade the deceased had been kicked or hit with a blunt instrument. There was extensive bruising to the face, neck and scalp. Both eyes were blackened and a laceration had been opened in the right eyebrow.
The principal Crown witness was Waged “Lizzie” Epseg who occupied the flat adjacent to the deceased’s. She met the appellants some weeks earlier at the St Vincent de Paul’s hostel in South Brisbane. They became acquaintances and occasional drinking companions.
Ms Epseg’s account was that on the day of the murder she had met the appellants at the Melbourne Hotel. She returned to her flat and some time later the appellants joined her. They were sitting in her kitchen talking when Cumberworth left the room. Very shortly afterwards Juma also left. The witness heard “kicking sounds ... banging” coming from the deceased’s room. She went there and saw Mr Mott on the floor of his flat lying on his back. Cumberworth was standing between his legs. He had a knife, which she described as a red-handled Swiss army pocket knife, with which he cut the deceased across the stomach. After he had gashed the deceased’s stomach, he cut his penis and then stabbed him in the scrotum. I interpolate that there were no wounds to that particular part of the body. She saw Cumberworth cut the deceased across the throat. Juma was standing on Cumberworth’s right as the latter stabbed and slashed the deceased. He was bending over the victim. Cumberworth then gave the knife to Juma who stabbed and slashed in the region of the deceased’s genitals. He then stabbed him in the heart. The witness also said that she saw both men kicking the deceased. She was shocked by what she had seen and fled from the house.
In cross-examination Ms Epseg insisted that both appellants attacked the deceased with the knife and denied suggestions:
(a)that Juma had been the first to leave the kitchen and go to Mr Mott’s flat; and
(b)she had gone with Cumberworth to see what was happening and that Cumberworth did not take part in the assault.
When cross-examined by counsel for Juma, she denied that she had gone to her bedroom with him and embraced on the bed. She further denied the suggestion that they were interrupted by Cumberworth coming to the room and saying he had “cut someone’s throat”.
Evidence was called from another occupant of the flats, Mr Richter, who had left his flat for a time because of the excessively loud noise coming from the radio in Ms Epseg’s flat. When he returned after about forty minutes the radio was still playing loudly. He heard “loud moaning noises” coming from Ms Epseg’s flat. The noises indicated to him that she was engaging in sexual intercourse. No long afterwards, Mr Richter heard the deceased calling out a request that the radio be turned down. It was. Mr Richter then heard “a lot of commotion that sounded like crashes and bangs like some heavy object was being thrown around and that lasted a couple of minutes at the most” (R207.20). A woman screamed. He then heard footsteps along the corridor past his door. The person was walking quickly and with a heavy tread. He heard Ms Epseg say “Come back here quickly, come back, come back ...” (R211.48). A male voice which Mr Richter could not identify said “I know what to do in this situation. When the police come it is best that he should be found in his flat” (R212.40). A male voice said “we need to get towels to mop up the blood” (R213.1). Mr Richter then heard a noise outside the house. He went to his kitchen window where he saw a man standing at the fence swaying and calling out “What have I done, what have I done?” (R215.50). Counsel for Juma admitted that it was his client whom Mr Richter observed though he did not admit that Juma had spoken the words recounted by the witness.
After a period of silence, Mr Richter heard voices from outside the building. He went again to his window and saw a figure passing below. He could not identify it but thought it was female. He heard voices, one male one female, saying “Come on Sharka, come on, come on” (R219.10-20). The appellant Juma was known as “Sharka”.
When it appeared safe to do so, Mr Richter left his room and hurried to an adjacent house from which he was able to see into Mr Mott’s flat. He saw him writhing on the floor, covered in blood. He spoke to the occupants of the house and calls were made to the ambulance and the police.
Mr Richter’s evidence casts doubt upon some aspects of Ms Epseg’s testimony. If his evidence were accepted, Ms Epseg did not leave the flats as soon as she had seen the assault on Mr Mott. She stayed with the appellants and was in their vicinity when there was discussion of removing blood and ensuring the body was left in the flat. There were other inconsistencies in her story. When interviewed by the police on the night of 1 February, 1997 she described the slashing wounds to the abdomen as having been inflicted by Juma, not Cumberworth. She did not mention that she had seen either or both of the appellants stab the deceased in the area of his genitals. Because of the possibility that Ms Epseg had been an accessory after the fact to the murder an undertaking was given to her by the Attorney-General that nothing said by her at the trial would be used against her in any prosecution.
A friend of Ms Epseg’s, Florence Nona, testified that some days before the murder she and the appellants were drinking in Ms Epseg’s flat. Ms Epseg let them in and then left to have a shower. When the witness was in the corridor near the kitchen where the two men were sitting she heard them discussing “doing” the deceased and the man who shared the flat with him “for money, but not just yet”. The suggestion came from Cumberworth. Juma replied “yeah ... plenty of time” (R558.30, .55). A little later she heard the appellants calling out to the deceased “Shut up you faggots” (R559.28).
At about 9:00 p.m. on 1 February, 1997, Ms Nona met Cumberworth in the Melbourne Hotel. He approached her and told her not to go to Ms Epseg’s flat because “something had happened there, someone had got stabbed”. He bought some beer and cigarettes and then left the hotel. He was not found by police until 20 February, 1997 when he was located at an address in Kingston.
A thumbprint of Cumberworth’s was found on the wall of the deceased’s flat.
When interviewed, Cumberworth did not make any incriminating admissions. His account was that he and Juma had been drinking with Ms Epseg when Mr Mott knocked on the door and asked if he could join the party. His request was refused and he went back to his flat. Juma left the room after which Cumberworth could hear sounds of “pushing and shoving” as well as shouting. He and Ms Epseg went to Mr Mott’s flat where they saw Juma “getting into him” with his fists. Juma then pulled out a pocket knife and stabbed the deceased who, by this time, was on the ground. Juma was “going off his head ... and he just kept stabbing him and stabbing him”. Ms Epseg screamed. They both said to Juma “take it easy ... Let’s just go ... before he dies”. Cumberworth and Ms Epseg left, followed by Juma who went no further than the stairs where he sat down. Cumberworth urged him to leave but Juma remained seated. Cumberworth and Ms Epseg then ran away.
He admitted that he threw a blood-soaked towel to Ms Epseg who put it in her room, though he denied having used the towel to remove blood. His explanation for this conduct was:
“I was frightened because you know after - I think Shucker (sic) was, you know, doing that there and I was right there and he’d done something”.
When asked directly why he threw the towel to Ms Epseg he answered:
“Because I suppose Shucker (sic), you know and ... well he was just too drunk and he was you know doing it all ...”
Later he said in answer to the same question:
“Because I just saw it there and it had blood on it and she said ‘Yeah we’ll put it in here in my room’. She just opened the door quickly, threw it in on the thing and then came back. Shucker (sic) was still there and then we got him and said ‘Come on, lets just go. Lets go’”
No blood from the deceased was found on any of Cumberworth’s clothing or possessions.
Juma was found sitting on the footpath in Gladstone Road at about 5:30 p.m. His evidence was that he had gone to the West End police station to report the incident and found it unattended. Walking away from the police station he tried to attract the attention of the driver of an ambulance which was, in fact, bound for 68 Browning Street. The driver either did not see him or ignored him. Sometime later, however, he was approached by an ambulance officer and then a police officer. The evidence of Mr Law, the ambulance attendant, was that he had gone to the boarding house in response to a call. His was the second ambulance to attend. The first crew put Mr Mott onto a stretcher, loaded him into the ambulance and went quickly to the Mater Hospital. Mr Law’s ambulance followed but was flagged down by a pedestrian who had seen Juma sitting, apparently distressed, on the footpath. While Mr Law spoke to him a police car, also bound for 68 Browning Street, stopped.
Sergeant Dodd, who spoke to Juma, gave evidence that he was wearing only a pair of tracksuit pants and was barefooted. He was carrying a knapsack. Among its contents was another blood-stained towel. Scientific testing showed the blood to be the deceased’s. Some of the deceased’s blood was found on his tracksuit pants. Despite his reason for going to the police station, namely to inform the authorities of the attack on Mr Mott, when spoken to by Sergeant Dodd, Juma did not mention it. When asked where he had been, he said “nowhere”, and when asked where his shoes were he said he did not know.
At about 8:30 p.m., Juma was interviewed by Detective Sergeant Hatton who identified himself and informed Juma that he was investigating an incident in Browning Street. Juma asked what incident and was told that a man had been stabbed. Juma replied that he knew “nothing about that”. He said he had been at “Lizzie’s” but did not know “about any stabbing”.
Cumberworth did not give evidence at the trial.
Juma did. He said that he, Ms Epseg and Cumberworth had been drinking in a park in South Brisbane. They walked back to Ms Epseg’s flat which he and Ms Epseg entered. Cumberworth walked down the corridor to the next flat. Ms Epseg had a shower and returned to her bedroom casually dressed. She had washed her hair and wrapped a towel around her head. She and Juma lay on the bed and started to kiss. They were interrupted after about five minutes by Cumberworth knocking on the door. When Juma opened it he saw Cumberworth holding a knife. There was blood on his hand. When asked what had happened, Cumberworth answered that he had been next door and gestured with the knife as though he were cutting his own throat. Juma was standing not far from where Ms Epseg had dropped the towel she had used to dry her hair. Cumberworth walked past Juma to where the towel lay on the floor. Juma said to Ms Epseg “Look, this is nothing to do with me. I get out of here” (R746.15). He went on: “So Mr Cumberworth pass me, went to the towel here but I didn’t see. I see bending to the blue towel. I just got out.”
The towel was the one found in Juma’s knapsack.
Having determined he should leave the flats he said to Cumberworth “look, mate, just go your way ... I go this way. Go this way., and he went back and I got out ...” (R746.55).
As I have mentioned he said he went to the West End police station but found it unoccupied. I have already described the sequel.
The presence of a towel stained with the deceased’s blood in his knapsack raised a suspicion that Juma had been involved in Mr Mott’s death. His explanation was to dispute that he had the bag when he was seen by police in Gladstone Street. He remembered being taken to Browning Street by the police who emerged from the flats with his bag and asked if it was his. He identified it and was told that it contained a blood-stained towel.
The evidence that Juma had possession of his knapsack when apprehended was overwhelming. The ambulance officer and at least two police officers saw it. One of them searched it and found the towel. The bag was taken to the Dutton Park police station where it was delivered to an exhibits officer who recorded its delivery.
During his evidence there was a pressing need to provide an explanation for the towel’s presence in his bag. His evidence on the point was inconsistent.
When interviewed formally by investigating detectives Juma said that after Cumberworth had come to the door of the flat and admitted knifing the man next door, he (Cumberworth) went to Juma’s bag, opened it and “put my towel back in there” (R1034.45). He repeated the account (R1037.15) in answer to a question whether Cumberworth was blood-stained when he came into the room. Juma answered:
“Yeah, he was use my towel ... He open my bag ... he opened my bag”.
At a subsequent point in the interview the police sought clarification about what had been put into the bag. He was asked:
“And what else was in your bag at the time? - A towel
Is this the towel that ... you say Nigel wiped himself on? - Yeah I think so
So he - he took it out of your bag, wiped himself and put it back in the bag? - Yeah.
Is that what you’re saying? - Yeah, I think so.” (R1045.40-.50)
When cross-examined by the prosecutor he was asked whether Ms Epseg or Cumberworth had taken anything from his knapsack while he was at the former’s flat. He categorically denied it (R771.48). His evidence-in-chief had been that the towel was not in his knapsack when Cumberworth came to Ms Epseg’s flat. It was on the floor where she had dropped it.
Also in cross-examination by the prosecutor, Juma said quite clearly that he had not seen Cumberworth pick up the towel. He had seen him bending over it but did not see him touch it (R788.1-.10). He repeated the substance of this evidence at R832.
When cross-examined by counsel for Cumberworth, Juma was non-plussed about the towel. This occurred:
“You know, don’t you, that the bag contains a towel with Mr Mott’s blood on it? - The towel, the the towel, the towel Mr Cumberworth at front that room, how it got in my bag?
You know ... that some of the things in that Billabong bag had Mr Mott’s blood on it, don’t you? - I don’t know.
You know that now, don’t you? - I don’t even know now because that towel, the one towel Mr Cumberworth was using to mop blood took to that room, how did he get to my bag, how? So you must tell Mr Cumberworth put blood there and try to put me in.
You think that the contents of that Billabong bag make you look guilty, don’t you? - It’s not [they] make me look guilty because I never been to that area and that blue towel, Mr Cumberworth, he had that towel, Mr Cumberworth. How it did got in my bag when he took that room?
...
The fact of the matter, Mr Juma, is that the contents of your bag had Mr Mott’s blood on it, your tracksuit pants? - Cumberworth put in there”. (R820.1-.60)
The case against both appellants was put on two alternative bases. Firstly, each was said to be a party to the murder pursuant to section 7(1)(a) of the Criminal Code in that each of them actually assaulted the deceased with a knife intending to kill him or to do him grievous bodily harm. The alternative basis rested upon section 7(1)(c) of the Code. Each appellant was said to have aided the other to inflict multiple wounds on the deceased by encouraging the attack and by assisting in it, by means of kicking and stabbing. In the case of Cumberworth a further particular of assistance was that he gave the knife to Juma so that he could continue the assault.
Both appellants argued their appeals in person.
Cumberworth’s Appeal
His notice of appeal sets out three grounds. The first is that the trial judge erred in law in failing to direct the jury that, unless they accepted the evidence of Ms Epseg beyond reasonable doubt, a verdict of not guilty must be returned.

This ground rather mis-states the evidence against Cumberworth. Ms Epseg’s testimony was not the only evidence against him. Juma’s evidence was that Cumberworth admitted he had cut the throat of the man in the next flat. His appearance lent verisimilitude to the confession. He grasped a knife in a blood-stained hand. As well, his presence in the deceased’s room was proved by his fingerprint. His flight from the scene and attempt to evade detection were some indication of guilt. Realistically, however, it must be accepted that Ms Epseg’s evidence was critical. Without it the Crown case was equivocal, resting on a co-accused whose evidence, as far as it concerned himself, appeared unreliable.
The trial judge in his summing-up did warn the jury that they should not convict unless satisfied that the essence of her evidence was correct. His Honour said (R901):
“It is a matter for you, but you might think the bottom line is that you have to ask yourselves this question; and that is whether you are prepared to act on that critical core part of her evidence that the two men were in the room together stabbing Mr Mott in turn, notwithstanding her inaccuracy on the details leading up to the stabbing or whether her general inaccuracy on matters of details [were] lies that you find she has told you leave you in a state where you have a doubt whether you should accept her evidence on the core issue of how the stabbing occurred. Well that, ladies and gentlemen, is a matter for you.”
His Honour reminded the jury of defence counsel’s submission that “the only evidence linking Cumberworth with Mott was Epseg’s evidence and that she was unreliable and ... you would find no other evidence on which you could or would convict ...” (R948). His Honour warned:
“So far as this case is concerned it’s obvious that one of the important elements in the case is the credibility or acceptability of the core of Epseg’s evidence. Now, you have to be careful about the evidence of somebody who may be involved in some way or another in the offence itself. ... You should look very carefully at the evidence of such a person before you act upon it ... It is one of the critical questions in the case how you approach her evidence and it is important that you consider her evidence in the context of all of the other evidence and decide whether you are prepared to accept beyond reasonable doubt the core of what she says.” (R961)
There is no substance in the first ground of appeal.
The second ground is that the trial judge erred in failing to warn or adequately warn the jury of the dangers of acting upon Ms Epseg’s evidence unless it was supported by other evidence tending to confirm her testimony.
The trial judge did, in fact, give the “accomplice warning”. The passage last quoted from his Honour’s summing-up is part of that warning. The jury was sufficiently directed that Ms Epseg might have been an accomplice to the murder and that her evidence should be scrutinised with care. There is no substance in the second ground.
The third ground goes to sentence only and is that the trial judge did not order that time spent in custody prior to conviction be taken into account when his eligibility for parole is considered. Despite the fact that the penalty for murder is life imprisonment which cannot be mitigated (section 305 of the Criminal Code) an order made under section 158 or section 161 of the Penalties and Sentences Act 1992 may be made in respect of a person sentenced to life imprisonment: see R v. Blake [1995] 2 Qd R 167. However, the pre-condition for either section to take effect is that the offender must be held in custody in relation to proceedings for the offence (in this case the murder) and for no other reason. Cumberworth was arrested on a charge of armed robbery committed on the day of the murder but prior to it. He was held in custody on that charge also. The trial judge was right not to make an order pursuant to the Penalties and Sentences Act.
During the course of oral argument, Cumberworth advanced some other points. The first was that he was dissatisfied with the standard of his legal representation which had been provided by the Legal Aid Office. There were two aspects to his dissatisfaction. A first trial was abandoned when counsel then appearing for Cumberworth accidentally fell and broke his leg. The trial had been nearing completion and Cumberworth was confident that it had gone well. He gave evidence at the first trial and said he wished to give evidence in the second. The first aspect is that he was advised by his new counsel not to give evidence. He claims he was overborne and reluctantly agreed to remain silent.
The second aspect is that Cumberworth wished to call a witness, Janet Redgcliffe, who had allegedly heard Ms Epseg admit that she and Juma had committed the murder. She was not called because counsel advised that Redgcliffe had a criminal history and could easily have been discredited. Because no evidence was to be called that Ms Epseg had admitted involvement in the murder, defence counsel felt unable to put to her, in cross-examination, that she had admitted to implication in the murder or, more directly, that she had helped to kill Mr Mott. His tactic, as Cumberworth explained it, was to “make it look as if maybe she was an accessory or maybe she was [involved somehow] and let the jury try and work out themselves but obviously they didn’t”.
A conviction will not be set aside on the ground that the accused was not adequately represented at trial unless there has been something in the nature of flagrantly incompetent advocacy which results in a miscarriage of justice. The authorities are collected and discussed in R v. Paddon (CA No. 122 of 1998, judgment 28 August, 1998). Moreover, the same case is authority for the proposition that where such a ground is to be argued, the appellant should provide, in advance, notice of the respects in which it is said the representation was incompetent so as to allow the Crown a chance to answer the criticism. According to Paddon the court will not draw an inference that counsel’s conduct of an defence at trial was incompetent unless it is the only one available and is compelled by the circumstances.
In R v. Birks (1990) 19 NSWLR 677 at 683 and 685, Gleeson CJ said:
“As a general rule, a party is bound by the conduct of his ... counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case. ...
... If defending counsel in the course of the conduct of the case makes a decision, or takes a course, which later appears to have been mistaken or unwise, that, generally speaking, is not a proper ground for an appeal. ...”
Here, all that emerges is that having seen the result of his second trial, Cumberworth expresses a preference for the tactics of his counsel at the first trial which were not, in the end, put to the test. It is impossible to conclude from all that has been said by Cumberworth that the conduct of his defence was deficient, let alone to the standard necessary if a new trial is to be ordered on this ground.
The next point was that Cumberworth wished to call evidence from three witnesses, Janet Redgcliffe, who has been mentioned, Barry Duro and William Rowbotham. The last named could apparently give evidence similar to Ms Redgcliffe’s: namely that Ms Epseg had admitted to stabbing the deceased. The other witness, Duro, can apparently give a description of the clothes worn by Cumberworth on the day of the murder which differs from the description given by other witnesses. The short answer to the point is that prior to the trial Cumberworth was aware of the witnesses and what evidence they could give. The witness Duro in fact was called by the Crown at the first trial but not at the second. No reason has been suggested why Cumberworth’s lawyers could not have called him. Presumably Rowbotham was not called for the same reason that Ms Redgcliffe was not. He also has a criminal record. This point is really the same as the previous one. It is a criticism of the conduct of his defence by his counsel and/or solicitors. It fails for the same reason.
The next point centred upon the clothing which Cumberworth was described as wearing at the time of the murder. It is to be remembered that no item of Cumberworth’s clothing had the deceased’s blood on it. Cumberworth was not apprehended until about three weeks after the murder. In that time he could, of course, have disposed of any blood-stained clothing or removed the stains. The police took possession of a bag containing Cumberworth’s clothing. It was clearly established that some of that clothing had been worn by Cumberworth at about lunchtime or early afternoon on 1 February, 1997. This was proved by the fact that Cumberworth had been involved in an incident at the Melbourne Hotel at about that time. He was charged with robbery arising out of the incident. Some of the victim’s blood got onto his shirt which was among the clothing obtained by the police.
The bag was left at St Vincent de Paul’s hostel in South Brisbane. It, and those of others, was locked away in a secure area on the first floor of the building. Access to it could only be obtained between 3:30 and about 5:30 p.m. each day. Cumberworth was seen at the hostel between about 5:30 and 6:00 p.m. but not in the area where the bags were kept.
Cumberworth argued that he could not have had access to the bag until a time subsequent to the murder. Therefore he contends that the clothing he wore when he was involved in the fight at the Melbourne Hotel must have been what he was wearing when the deceased was killed. None of the deceased’s blood was on that clothing.
The Crown sought to diminish the force of this point by proving that it was possible for Cumberworth to have had access to his bag between the fight and the murder and by evidence of the description of what clothes he was wearing when seen after the murder. This description did not fit the clothing found in the bag.
Although the argument as to sequence and opportunity became convoluted the short point is that no clothing or other possession of Cumberworth’s was found to have the deceased’s blood on it. This point, he says, did not receive sufficient emphasis. But the trial judge in summarising the evidence against Cumberworth referred to the rival contentions about his clothing and the opportunity of changing it and said:
“I remind you that there was no blood at all associated with Mr Mott found on Cumberworth’s person or clothing”. (R942.50)
Another point taken concerns the credibility of Ms Nona. The importance of her evidence was that it supplied a motive for the murder. Ms Nona was first spoken to by police on the evening of 1 February, 1997. Her statement taken on that occasion did not mention the conversation which is summarised in paragraph 9 of these reasons. It appeared in an additional statement apparently taken in July 1998. The point loses significance when it is realised that the witness was cross-examined about the omission from her earlier statement and that the evidence was elicited when Ms Nona was interviewed by a solicitor retained for the defence.
The last point was that the trial judge did not sufficiently direct the jury in relation to intoxication as it affected whether Cumberworth intended to kill or maim Mr Mott, if the jury was satisfied that he took part in the attack. There were passages in the record of interview between Cumberworth and police officers in which he asserted that he was drunk when he returned to the flats. The complaint is, apparently, that the trial judge “just said a brief bit about [intoxication] in relation to me”. The appellant referred to the summing-up at R950. However, the trial judge (R956-961) provided the jury with a comprehensive and careful exposition of the relevance of intoxication to the formation of intention and directed it to consider whether the appellants were so intoxicated that they, or either of them, did not form the requisite intent. His Honour then rehearsed the evidence in relation to the consumption of alcohol by each appellant and the respective arguments by prosecuting and defending counsel. The matter was fully and fairly put before the jury.
In my opinion there is no substance in any of the arguments advanced by this appellant and I would dismiss his appeal.
Juma’s Appeal
The only ground taken in the notice of appeal is that the conviction was unsafe and unsatisfactory. No particulars are given. In M v. The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ explained the process of reasoning which is to be applied if a verdict is to be set aside on this basis. Their Honours said (at 493, 494-5):
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
...
In most cases a doubt experienced by an appellate court will be doubt which a jury ought also to have experienced ... If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence ... The ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”
It was for the jury to decide whether the “core” of Ms Epseg’s evidence should be believed. If it was a conviction followed inevitably. Her evidence was susceptible of criticism and as a witness she was vulnerable to cross-examination. These points were made by counsel for the defence. The trial judge in his summing up drew attention to the point that the Crown case depended upon accepting her evidence.
It cannot be said that her evidence was tainted or inherently unreliable. I do not regard it as such that the jury must have entertained a reasonable doubt. Ms Epseg described Juma stabbing the deceased “in the heart”. There were stab wounds to the chest (one touching the heart). Juma’s evidence could scarcely have made the jury doubt Ms Epseg. He lied to the police when initially interviewed and his attempts to explain the presence of the towel in his knapsack were unconvincing.
During oral argument, with one exception, Juma did no more than take issue with questions of fact which had been adumbrated at the trial. He said the blood found on his tracksuit pants must have splashed from Cumberworth who passed close to him in Ms Epseg’s room. He claimed that Mr Richter was mistaken in his recollection of the soliloquy. He asserted that Cumberworth and Ms Epseg had colluded to lie about him, overlooking the point that she implicated both appellants.
There is no substance in any of these assertions. They were matters for the jury to consider and it determined those facts adverse to the appellant.
Juma raised one further point which was that he did not have an interpreter in court and was disadvantaged both in comprehending the Crown case and in giving his own evidence. He is Tanzanian. His native tongue is Swahili.
If it were true that Juma was not proficient in understanding the English language so that he could not comprehend the charge brought against him or the evidence to support it his trial must necessarily have been unfair and his conviction should be quashed: see Ebatarinja v. Deland & Ors (1998) 157 ALR 385 at 391. However, Juma’s knowledge of the English language was not so deficient. He argued his own appeal and was able to speak intelligibly. His pronunciation of some words made them difficult to recognise but such instances were rare. Moreover, he was represented by experienced counsel and solicitors during two long trials. They obviously did not feel the need to obtain an interpreter to obtain instructions, nor did they think it necessary to have such a person in court. He told police he had been in Australia for about ten years. They asked “Can you understand English alright?” He answered “yes”. When asked “You can read and write?” he said “I can read ... but I can’t write”. The transcript of the record of interview runs to twenty-five pages. One cannot see in it any evidence that Juma could not communicate in English. There are the usual passages which could not be transcribed because the tape was indistinct and there are instances in which Juma chose modes of expression that would not be used by a person of education whose first language was English. Nevertheless, there appears no difficulty in his comprehending what he was asked or giving his answers. He gave evidence at the trial. The record of it runs to about 130 pages of transcript. One sees errors of grammar and syntax and the use of wrong words but the meanings Juma intended to convey by his answers clearly emerge.
On the hearing of the appeal the court arranged for an interpreter to attend by telephone from Sydney, there being no such interpreter available in Brisbane. She listened on a conference telephone and could have interpreted if required. In fact the court heard argument from Juma who, as I said, was able to express what he wished to say intelligibly in English. He was offered the opportunity to address the court in Swahili utilising the services of the interpreter. He declined.
There can be no doubt the appellant felt at a disadvantage. He was arguing his appeal in person. He had been convicted of murder and sentenced to life imprisonment. His sense of disadvantage may have been increased by the fact that proceedings were transacted in English but he was able to make such points as he had without significant difficulty of communication. He could understand the questions put to him by the court and the explanation of the limitations imposed by the nature of the proceedings. It is not the case that he could not understand what was going on or make what points he wished to be reason of an inability to communicate.
In my opinion this appeal, too, should be dismissed.
There was also an application by Juma to extend the time within which to apply for leave to appeal against sentence. Nothing was advanced regarding this application and in any event a sentence for murder cannot be mitigated in any way (section 305 of the Criminal Code). Accordingly, this further application is dismissed.
REASONS FOR JUDGMENT - DERRINGTON J
Judgment delivered 16 July 1999
I have had the advantage of reading the draft reasons prepared by Chesterman J and I respectfully agree with the orders which he proposes and with his reasons. Because of the importance of the matter, however it is desirable to add some further individual observations.
Mr Cumberworth
This appellant faced a combination of very powerful evidence against him, which has been set out in detail by Chesterman J. In addition to that led by the prosecution, Mr Juma’s evidence also directly involved him in the attack, and although that must be taken with caution appropriate to the evidence of a co-accused, it may well have added significantly to the weight of the Crown case. Although there was no obligation on this appellant to give evidence in his defence, his failure to do so left the sworn evidence against him, particularly the evidence of his direct involvement in the attack on the victim, uncontradicted by him and otherwise generally acceptable if the jury so regarded it.

That means the jury’s decision is reasonably supported by the evidence and there is no reason to find it unsafe or unsatisfactory. In those circumstances, this Court cannot embark on a new trial of the credibility of the witnesses whom the jury had the advantage of seeing and hearing and whose evidence could, with proper caution, have been accepted. There was also a body of independent objective evidence which, though not conclusive in itself, strongly supported the result.
This appellant also complains that his counsel failed to put to the principal Crown witness that she was the one who killed the deceased man, claiming that he could not do so in the absence of evidence from the appellant himself or some other witness to that effect. The appellant seems to have misunderstood the undoubted tactical disadvantage, which his counsel would have recognised, of making such a serious allegation to a witness without adducing any evidence to support it. The advice given by counsel is not surprising. However, when it is followed by an adverse result, such a tactical decision will rarely justify an appeal, and this complaint by the appellant is even less persuasive since counsel’s advice was sound.
His other complaints appear to be similarly based on assumptions of what might have been if different tactical measures had been followed, and they must be rejected for the same reasons. In any case, the validity of his expectation from pursuing the courses he says he would now choose is very doubtful.
It might be further observed that, although he has no legal training, this appellant is an intelligent man, and it is unlikely that he would have suffered from any passive incomprehension of or reluctance in participating in decisions in the conduct of his case. He has no valid grounds of appeal.
Mr Juma
This appellant too is an intelligent man. However, there was a need for some concerned scrutiny as to whether he had suffered, or was suffering, from any language disadvantages in the conduct of his trial or this appeal.
On the appeal, it was clear that his understanding of English was at least very adequate. His use of it, though ungrammatical at times, was quite fluent. His only language difficulty related to his pronunciation, and then only occasionally. His comprehension of what was said by others was sound, and his reasoning in English appeared to be unimpaired. Occasionally he rationalised heavily to his own advantage and his logic was also misdirected in the same way, but these were not language difficulties.
As for his language competence at the trial, a close perusal of his evidence, and particularly his cross-examination, shows that he was sufficiently capable in the language to acquit himself so far as the circumstances would allow.
While he understood what was required on the appeal, he was plainly more intent upon engaging in protestations of his innocence at large, and in making statements and presenting arguments without reference to the evidence because that suited his needs. This Court is not in a position to embark on a retrial of these matters, for they have already been decided by the jury who had the advantage of seeing and hearing the witnesses, including those whom Mr Juma called.
This appellant too wishes to have a second opportunity to run his trial by changing tactical decisions that produced an adverse result the first time. However, that is not open. Further, the evidence which he says he now wishes to advance is not fresh evidence, and there is no reasonable indication either that it is available or, to the extent that it exists, that it would have had any effect on the result of the trial.
The evidence of this appellant was plainly rejected by the jury, and a review of the record explains very comfortably why this is so. There is no reason to believe that the decision was unsafe or unsatisfactory.
There were no reasonable arguments supporting the appeal.