R v Hughes

[1996] QCA 125

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND  C.A. No. 490 of 1995

Brisbane

Before             Fitzgerald P.

McPherson J.A.
Byrne J.

[R. v. Hughes]

T H E Q U E E N

v.

MICHAEL WILLIAM HUGHES  Appellant

Judgment delivered 10/05/1996

SEPARATE REASONS FOR JUDGMENT OF FITZGERALD P., MCPHERSON J.A. AND BYRNE J. CONCURRING WITH FITZGERALD P. AS TO THE ORDER MADE.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:     CONVICTION - murder - whether conviction unsafe and unsatisfactory - identification of appellant as the deceased’s killer - intent - leave to add to the grounds of appeal dismissed given the strength of the prosecution case and the course of the trial.

Counsel:Ms J. Dick for the Appellant

M. Byrne Q.C. for the Crown

Solicitors:Legal Aid Office for the Appellant

Queensland Director of Public Prosecutions for the Crown

Date(s) of Hearing:      30 April 1996

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 10/05/1996

The appellant has appealed his conviction of the murder of Todd Ward at Mooloolaba in the early hours of 1 August 1993.

On the night of 31 July, kick-boxing contests held at the “Ettamogah Pub” on the Sunshine Coast were attended by both the appellant and a number of his companions and the deceased and a number of his companions.  At the conclusion of the kick-boxing, the two groups travelled together to the Mooloolaba Hotel, where the deceased was employed, and entered an upstairs nightclub known as “Troppo’s”.  At about 1.30 a.m., a dispute arose which developed into a fight, involving the deceased, the appellant and others, during the course of which the deceased punched the appellant and knocked him down.  Security staff intervened and escorted those involved in the fighting through the upstairs entrance to the nightclub to the stairs leading down to a “breezeway”, an internal laneway between the front of the hotel and a bottle shop towards the rear.  There was further scuffling, and the appellant and a number of his companions were ejected down the stairs, where the appellant ended up lying on the ground near a wall of the breezeway with a head injury.

The appellant had a distinctive appearance on that night.  He and his companions were members of the “Odin’s Warriors” motorcycle club.  While his companions were dressed in dark clothing, the appellant was wearing a long sleeved sweat shirt or sloppy joe, which was variously described as “red”, “maroon” or “purple”, which had the “Odin’s Warriors” motif in white on its front.  Further, the appellant was shorter than his companions, and had a moustache, a “goatee”-style beard and the whole of his head, except the very back, was close-shaven. 

After their removal from the hotel, the members of the two groups gathered outside the hotel and the deceased was challenged to a fight by one of the appellant’s companions.  The prosecution case was that, as the deceased stepped towards his challenger, the appellant approached him from the right and stabbed him once in the abdomen, severing his portal vein, causing haemorrhaging which led to his death some hours later.

The appellant’s trial commenced on 23 October 1995 and, on 10 November, he was convicted and sentenced to imprisonment for life.  His original grounds of appeal were that the conviction was unsafe and unsatisfactory because of inadequacies in the identification of the appellant as the person who stabbed the deceased and/or because, having regard to the appellant’s head injury and the medical injury, the prosecution had not proved beyond reasonable doubt that the appellant intended to kill or cause grievous bodily harm to the deceased.  Counsel who represented the appellant before this Court, who did not appear on his behalf at his trial, sought leave to add three additional grounds, one contending that a single piece of evidence led from one of the medical experts was inadmissible or should have been excluded because its prejudicial effect was disproportionate to its probative value, and the other two grounds complaining of two statements by the trial judge in his summing up to the jury.  The Court reserved its decision on the appellant’s application for leave to add these additional grounds, and it is convenient to pass over that issue for the moment.

I intend no disrespect to the counsel who represented the appellant before this Court, who presented the case for the appellant with care and candour.  Nonetheless, it is difficult to find a means by which to discuss the appellant’s arguments concerning identification and intent in a meaningful manner.  There was an overwhelming body of evidence to identify the appellant as the person who stabbed the deceased and the appellant’s argument in relation to intent amounted to no more than propositions that he had (1) suffered a head injury, either when he was knocked down by the deceased or ejected down the stairs by the security staff, after which he was seen slumped in the breezeway with blood on his head and appeared dazed, and (2) it was the opinion of one medical expert, which was disagreed in by others, that he had suffered concussion and that his alleged inability to recall significant events resulted from amnesia.  As counsel conceded, there was no evidence which questioned his capacity to form the requisite intent even if the doctor who diagnosed concussion and amnesia was correct.  All the evidence pointed to a conclusion that, whoever stabbed the deceased in the abdomen, did so quite deliberately.

That that person was the appellant was the only conclusion open on the testimony of numerous witnesses.  The attack on the ground that the identification of the appellant as the deceased’s killer was unsafe was based upon points of detail related to conflicts in the testimony either of individual witnesses on different occasions or between what was said by various of the witnesses at the trial.  However, the appellant was identified on a number of bases; for example, his personal appearance, the colour and design of his sweatshirt or sloppy joe, a “Bushido” cross around his neck, that he was the man whom the deceased had struck and knocked down inside the nightclub, and that he was the man who was later seen lying at the bottom of the stairs in the breezeway.  Further, the deceased’s killer was immediately grabbed by security staff and restrained against a wall and the appellant was again identified as that person.  A number of witnesses also described subsequent events, and also clearly implicated the appellant, tying him back to the stabbing.  Police arrived and the appellant and his companions were involved in an altercation with police and security staff as the appellant’s companions attempted to assist him into a nearby taxi cab, which one of the security staff prevented; the appellant’s release was then effected with the assistance of his companions; however, he was apprehended in the breezeway near the rear of the hotel, brought back, and placed in a police vehicle, with two of his companions placed in another police vehicle.  When the sequence of events is pieced together by reference to the various witnesses, there is not the slightest room for doubt but that the appellant was the person who stabbed the deceased.  Identification was further subsequently confirmed by a number of witnesses who picked out his photograph from a photo board.

I can see no purpose in a more elaborate discussion of the evidence.  The detailed matters raised by the appellant’s counsel before this Court were substantially, if not entirely, disposed of in the course of argument.

When attention is turned to the additional three grounds of appeal sought to be added, it is necessary to bear in mind not only the overwhelming strength of the prosecution case against the appellant, which, as his counsel substantially acknowledged, would invite attention to the proviso to sub-s. 668E of the Criminal Code, but also the course of the trial. The evidence of which complaint is now made was not objected to at the trial, quite possibly because of a tactical decision by counsel then representing the appellant in connection with the issue relating to intent. Further, there was no request for redirections. Indeed, as the trial drew to its conclusion, it was agreed before a weekend that defence counsel would “be permitted to address into Monday” and the trial judge gave each counsel a copy of his “draft summing up”. The transcript continues:

“His Honour: That will also give you the opportunity to examine that this afternoon.
[Appellant’s trial counsel]: Yes.
His Honour: I would appreciate it if there were any suggested changes, that they be drawn to my attention on Monday morning.  Are you happy with that?
[Prosecutor]: Yes, Your Honour.
[Appellant’s trial counsel]: Yes, Your Honour.
His Honour: All right.  I suppose what I had in mind was that you would nevertheless look through that now, at least before starting the addresses, and if you saw any major problem, let me know before you start the addresses.  Adjourn to 10.30 a.m.

...

His Honour: ... Is there any real problem with the summing-up?
[Appellant’s trial counsel]: No, not at all, Your Honour.
His Honour: Have you read it all?
[Appellant’s trial counsel]: I have read it all.
His Honour: You have no problem with it?
[Appellant’s trial counsel]: None at all, Your Honour.”

In part of the section omitted from that passage, one of the specific points now sought to be raised was discussed and agreed to by counsel.

In my opinion, it is unnecessary for the Court to discuss the three points sought to be raised since leave to add to the grounds of appeal should, in the circumstances to which reference has been made, be refused.
In summary, this is a case in which there is no significant possibility that an innocent person has been convicted.  Not only was the jury entitled to convict the appellant, but it would have been perverse if they had done otherwise.

The appeal should be dismissed.

REASONS FOR JUDGMENT - McPHERSON J.A.

I agree with the reasons of the President.

To what he has written, I would add by way of particular emphasis only that on the question of identification the evidence of continuity was impressive.  After seeing the appellant lunge at and evidently stab the deceased, two of the witnesses who gave evidence said that he ran off.  They followed, and one of them succeeded in apprehending him.  They then saw him being placed in a police vehicle.

There is no reason to think that they and the other witnesses who identified the appellant had mistaken him for anyone else.  The verdict of guilty reached by the jury was plainly open to them on the evidence at the trial.

The appeal should be dismissed.

REASONS FOR JUDGMENT - BYRNE J.

I agree with the President concerning the grounds raised by the notice of appeal.  And, as his Honour's reasons indicate, in all the circumstances, the proposed additional grounds of appeal are not tenable.
           The appeal should be dismissed.