R v Harris

[1997] QCA 180

[1997] QCA 180

COURT OF APPEAL
McPHERSON JA
MOYNIHAN J

de JERSEY J

CA Nos 124 of 1997

143 of 1997

THE QUEEN
v.

ROBERT JAMES HARRIS	Appellant
BRISBANE ..DATE 03/06/97
JUDGMENT
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McPHERSON JA: Robert Harris and Tony Olive were tried and convicted in the District Court of doing grievous bodily harm to Dennis Reseck in Warwick on 31 August 1996. Harris's appeal to this Court is based essentially on two grounds, namely that the trial Judge should have ordered separate trials, and that the verdict was unsafe and unsatisfactory.

No criticism is made of the summing up, which was careful and thorough. The assault was committed at night, probably at, or certainly after, 10.00 p.m. The weapon used was a steel pole or post, that was found somewhere in the vicinity of the place where the complainant himself was discovered at about 2.00 a.m.

He was very badly injured and had been bleeding heavily. The complainant had been at the Criterion Hotel that evening. The two accused were also there, drinking in the company of another man named Cope and two women, named Corinne Bradley and Rebecca Bradley, one or both of whom helped out at the hotel.

The complainant's jacket was later found by the police in Cope's car, but he was not charged with the offence of which the other two were convicted. In the course of the evening, the complainant, it seems, had come to be suspected by others of stealing some money. This became the subject of an altercation or difference in which Harris displayed hostility towards the complainant.

The appellant Harris is described as a strongly-built person and the complainant tried to slip away from the hotel unnoticed. He left the hotel and went and hid in a laneway somewhere near the

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town hall. He heard someone coming after him, approaching
nearby and asking in a loud voice where he could have gone.

The last he recals was seeing the face of a man who resembled the appellant Harris, but he did not know him, or had not met him before that night, and he could not be sure of his identity.

Because of the head injuries he sustained and consequent

amnesia, he could remember no more of what happened. described went out, and, when the appellant Harris and Olive returned to the hotel, Olive was seen to take his shirt off and place it behind the bar. He borrowed a jacket from Cope to wear in place of the shirt.

Olive's shirt was located by the police on the following day. Forensic examination showed that the blood on it belonged to a group or classification that is encountered in only one of 6,500 individuals in the community. It can safely be accepted that it was the complainant's blood.

Harris's clothing had, it seems, been washed before it could be examined forensically. The two women in the company of the appellant noticed that his feet were covered with blood when he came back. Corinne Bradley said the blood was splattered over the sides and tops of both feet up to the ankles. It was, she said, as if it had been sprayed with a spray can. Her sister, Rebecca Bradley, gave evidence to similar effect.

What is said to have detracted from the force of this evidence was that, either then or later, the big toe on the appellant's

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left foot was seen to be injured and bleeding freely. However, the jury may well have considered that the blood from that wound would not have produced the kind of spray pattern that was observed and described by the witnesses.

There was, therefore, in my opinion, a cogent circumstantial Crown case against the two accused, including the appellant, Harris. There was demonstrated hostility against the complainant. The three men had gone out together looking for him at one stage.

Evidence to that effect was given by Corinne Bradley, in the course of which she said, "They walked out the front door and I followed them to the front. I stood on the step where the door was and Tony and Mat-----", by which she meant Olive and Cope, "-----stood directly in front of the door on the pavement and Nashy" (which was the name used for Harris) "walked up and down in the front of the pub looking in our foyer. That is out at the front, and he said - I overheard him say, 'Oh, he must be out here somewhere; he must be hiding.'"

She went on to add that "Tony and Matthew never said anything whilst I was at the front". She added that "Nashy's demeanour was such that he looked pretty angry, because he could not find whatever it was". She proceeded in her evidence to add that, after about five minutes they walked back inside, though later in the course of cross-examination she said the delay was about 20 minutes before they returned.

The complainant was on any view of the evidence a person who had been severely beaten and had bled a lot. Both accused men had

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blood on them, which in the case of Olive was, as I said, later identified as the complainant's blood. The only weakness in the Crown case was in the times and the sequence of events described by the Crown witnesses. However, none of them appeared to have been wearing watches or to have been keeping an eye on the time.

Although it raises some questions about the precise order of events and the times at which they occurred, a matter of that kind was essentially one for the jury to assess, and they did so in a way which was unfavourable to the applicant.

The Crown case was that the two appellants had formed a plan to look for and assault the complainant. Once the evidence, such as it was, was accepted that they had formed such an intention, the conclusion that they had a plan and carried it out, followed almost as a matter of course. The evidence of Corinne Bradley, to which I have referred, is capable of supporting the conclusion that such a plan existed.

They then returned together bearing signs that they had carried the plan into effect. It was plainly open to the jury to find them both guilty, despite discrepancies with respect to times and sequence. It cannot be said, in my opinion, that the verdict was unsafe or unsatisfactory.

That ground of appeal therefore fails. The other ground of appeal was the refusal of the learned trial Judge to order separate trials of these two accused. To succeed on that point it is necessary for the appellant to show, not merely that the Judge was wrong in his decision on that point, but that the result was that the trial miscarried.

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There is a great deal of reported authority about the effect of not ordering separate trials or refusing to do so, and its consequence for a verdict of guilty following such a ruling. See for example Webb v. The Queen, [1994] 181 CLR 41, at 89. In the course of his reasons for judgment in that case, Mr Justice Toohey said:

"I respectfully agree with that discussion, which emphasises that when accused are charged with committing a crime jointly, prima facie, there should be a joint trial. There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused."

He went on to say:

"In the end, the critical question before an appellate Court in these circumstances is whether by reason of the joint trial there has been a substantial miscarriage of justice, or, put another way, whether improper prejudice has been created against an accused."

He added that in the case before him adequate directions had been given by the trial judge instructing the jury as to the use that they might make of the evidence.

In the present case, prejudice is said to arise from the fact that after this occasion, Olive made a statement to the police, which was admitted in evidence at the joint trial of him and Harris. It was a statement that sought to exculpate himself and place the blame on Harris. To that extent, the jury obviously did not accept it in full, because they found Olive guilty.

The trial Judge gave appropriate and adequate directions as to the use that could be made of that statement against Olive and

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not against Harris. Once it is accepted that there was evidence of a joint enterprise, a joint trial was, one might have thought, the likely result. Indeed, the passage from

Mr Justice Toohey's judgment suggests that it is appropriate that there should be such a trial in most cases, unless the prejudice is so great that it cannot be offset by an appropriate direction.

In a joint trial Olive's statement was admissible, and it was properly admitted here subject to the giving of a proper direction. Any prejudice arising from its being before the jury fell to be dealt with in that way. No complaint is made about the Judge's summing up in that regard.

It is a common feature of joint trials that evidence against one may not all be admissible against another. In order to justify this Court in setting aside a verdict in which a joint trial has been ordered with that consequence, it is necessary for the appellant to establish that there has been a substantial miscarriage of justice.

In my opinion, there was none in this case, because the jury were, in my opinion, justified in convicting the appellant Harris on the evidence as it stood, without reference at all to Olive's statement. The conviction has not been challenged on any other ground and in my view the appeal should be dismissed.

Leave to appeal against the sentence imposed was originally sought, but it has not been pursued before this Court and we have dismissed it. The orders in my opinion should therefore be that the appeal against conviction should be dismissed and as I

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have said, the application for leave to appeal against sentence

refused.

MOYNIHAN J: I agree.

de JERSEY J: I also agree.

McPHERSON JA: The orders of the Court will be as I have stated them.

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