R v Koorts

[1994] QCA 566

[1994] QCA 566

COURT OF APPEAL

PINCUS JA
DAVIES JA
LEE J

CA No 394 of 1994

THE QUEEN

v.

HENDRICK JOHANNES KOORTS  Appellant

BRISBANE

..DATE 17/11/94

JUDGMENT

DAVIES JA:  The appellant was convicted after a trial in the Magistrates Court on 1 September last on two counts of assault occasioning bodily harm.  He appeals against each of those convictions on the ground that there was a miscarriage of justice in that counsel for him failed to put his case to prosecution witnesses and failed to argue in submission to the learned Stipendiary Magistrate defences which were open to him.

The alleged offences arose out of events which occurred at the home of the appellant's in-laws on Boxing Day 1993.  The appellant visited that home with his wife on that day, but on being told that he was unwelcome there, left.  His wife remained.  It is sufficient to say of the events at that time that there was bad feeling between his parents-in-law and his brothers-in-law on the one hand and the appellant on the other.

It was common ground between the prosecution witnesses who consisted of his brothers-in-law, Mr Travares, two Messrs Brian and a Mr Mayne on the one hand, and the appellant on the other that during the course of the afternoon of that day, the appellant made several phone calls to the Brian residence - that is the residence of his in-laws.

The appellant said in evidence that his phone calls were for the purpose of inducing his wife to return home to him.  At about 7 or 8 o'clock that night, the appellant arrived back at the Brian residence.  He said that his purpose was to see if his wife was still there and, if so, to induce her to return.  When he arrived there, he did not notice her car, but he thought that it may have been in one of the lock-up garages at the premises.  In fact, she had left. 

The assaults of which the applicant was convicted were one on
Mr Travares and one on Mr Mayne.  According to Mr Travares, when the appellant returned to the premises that night, he ran up the driveway shouting out, "I'm going to get youse", or words to that effect.  He then said something like, "Come on out, you cowards.  I'm going to get you."

Again, according to Mr Travares, when he met the appellant at the front door, the appellant shaped up to fight him.  He told the appellant to leave and the appellant threw a punch at him.  Mr Travares blocked it with his hand.  This was the first assault alleged because this blow apparently fractured a bone in Mr Travares' wrist.

Mr Travares then said that he kicked out at the appellant and that there was subsequently an exchange of blows between the appellant and Gavin Brian.  Gavin Brian generally corroborated that version of events.  Gavin Brian also gave evidence of the second alleged assault.  He said that the appellant was walking down the street and Mr Mayne put his hand on the appellant's shoulder to try to calm him down, upon which the appellant punched him in the mouth with his right fist.
Colin Brian and Terrence Mayne also gave evidence of this second alleged assault. 

The appellant's version of events which he gave in evidence was inconsistent with the evidence of the prosecution witnesses.  He said that as he approached the house, Gavin Brian said words to the effect, "Here he is now.  Let's get him."  Knowing that there were four of his brothers-in-law and his father-in-law in the house, the appellant said that he fled.

However, his path was blocked by a car, which he ran into.  As he did so, he was kicked from behind by Travares.  He then ran off, though he had difficulty in running because of a leg disability.  He was pursued by three or four of his brothers-in-law.  His intention, he said, was to run up the road, past his car and then to run back past his pursuers, get into his car and drive off.

As he ran, he said to his pursuers, "Please let me go.  I'm not here for any fight.  I just came to see what has happened to Cathy and my son and our daughter."  Having got 20 or 30 metres up the road, he then turned and ran back.  Terrence Mayne tried to grab hold of him.  The appellant broke loose.  He could not recall, he said when he was giving evidence, whether he threw a punch in order to do so or not.

He was frightened and did whatever he could do to defend himself and break free.  By this time, Gavin Brian had armed himself with a piece of wood and appeared to be trying to hit the appellant with it.  His pursuers had not included his father-in-law who had remained in the vicinity of the appellant's car.  When he returned to his car, the appellant said to his father-in-law, "Please let me go.  I'm not here to fight.  I'm here to ask about Cathy."

However, as he tried to unlock his car door, his father-in-law held him.  He broke loose and ran away again and shortly after this, the police arrived.  This version of events given by the appellant in Court is generally consistent with a statement taken from him by his solicitor and included in counsel's brief on trial.  That version, if accepted, was inconsistent with the incidents alleged to constitute the assaults as deposed to by the prosecution witnesses and was consistent with a defence that whatever blows he struck, were struck in order to defend himself and escape from his pursuers.

Unfortunately, a number of essential elements of the defence case were not put to the principal prosecution witnesses.  These were that the appellant came unaggressively and was set upon;  that he ran away and was pursued by several of his brothers-in-law;  that he repeatedly said in effect that he was not there to fight and that he only wanted to see what had happened to his wife, and that one of his pursuers, Gavin Brian, was armed with a heavy piece of wood.

The learned Magistrate pointed out that a lot of prosecution evidence was not challenged and a lot of the defence evidence was not put to the prosecution witnesses to give them the opportunity to comment on it.  He also said that he did not know what the defences were, nor does it appear from the address of defence counsel that the defence of self-defence
was clearly relied on as it should have been on the appellant's version.

Notwithstanding counsel's failure to put these points, a number of elements of the defence case were corroborated by statements made by prosecution witnesses in the course of their evidence.  Several of them said or implied that they had pursued the appellant.  One of them, Colin Brian, said he heard the appellant say that he did not want to fight.  Two of them, Colin Brian and Mayne, said that the appellant's father-in-law had seized the appellant in the vicinity of his car, and one of them - Mayne - gave a version of the incurring of Travares' injury which was inconsistent with the versions of Travares and Gavin Brian and consistent with the version of the appellant.

All of this leads me to conclude that either inexperience or general incompetence on the part of counsel in failing to put the defence case to the prosecution witnesses and then to address upon it caused this trial to miscarry by depriving the appellant of a defence which, if counsel had performed his duty, would have been open to him and might have resulted in an acquittal on each count.

For those reasons, I would set aside the convictions in each case and order a new trial.

PINCUS JA:  I agree.  One does not expect new counsel to be able to handle all cases adequately at the outset, but it is a matter of concern that here counsel seems to be unaware of the very basic elements of counsel's duty in conducting a defence.  I also think the appeal should be allowed.

LEE J:  I agree that the appeal should be allowed and I also agree with the comments that have fallen from my brothers.

PINCUS JA:  The orders will be appeal allowed.  Conviction set aside.  New trial ordered.

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