R v La Praik

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: REGINA v LA PRAIK [2000] NSWCCA 273

FILE NUMBER(S):
60063/00

HEARING DATE(S): 06/07/2000

JUDGMENT DATE: 06/07/2000

PARTIES:
Regina v Scott Bruce La Praik

JUDGMENT OF: Sheller JA James J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0329

LOWER COURT JUDICIAL OFFICER: Holt DCJ

COUNSEL:
Mr L M B Lamprati (Crown
Mr P M Winch (Appellant)

SOLICITORS:
S E O'Connor (Crown)
T A Murphy (Appellant)

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave to argue ground 3 be refused and the appeal otherwise be dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60063/00

SHELLER JA
JAMES J
ADAMS J
THURSDAY 6 JULY 2000

REGINA v SCOTT BRUCE LA PRAIK

JUDGMENT

ADAMS J: This is an appeal against the conviction of the appellant on 14 December 1999 upon a charge of maliciously wounding Eben Kelk with intent to do him grievous bodily harm.
The charge arose from a violent altercation in a hotel late in the evening of 13 November 1997. The fight broke out between the appellant and Mr Kelk during which the latter's face was cut by a broken glass which the appellant was holding. Mr Kelk's evidence was that the appellant simply hit him with the glass, whilst the appellant's case was that he acted in self-defence to deflect an attack and that the injury to Mr Kelk was accidentally inflicted.
Very shortly after, within a few feet or possibly metres (the evidence is confused on this point), Mr Peter Warhu, who was a friend of the appellant and Mr Nathan Fittler, a companion of Mr Kelk, were also involved in an altercation which developed into a fight and resulted in the latter being hit in the face with a glass by Mr Warhu and being seriously injured. It is not suggested by the Crown that these events were connected except that they occurred more or less coincidentally.
The witnesses differ somewhat, not surprisingly, as to the positions of Fittler and Kelk when each were struck in the face and as to the time which elapsed between these blows, though all agree that Kelk was struck first.
It is convenient to deal with the first and second grounds of appeal together. They are in the following terms -
1 The trial judge erred in refusing to discharge the jury.
2The trial miscarried when inadmissible and prejudicial material relating to Mr Warhu was admitted into evidence.
It is significant that in an early stage of the trial the Crown Prosecutor tendered a video recording made by a security camera in the hotel which showed a substantial part of the fight. This shows a group of men, what appears to be the commencement of the violence and the appellant and Kelk moving from that area towards and at the pool table. This film provided a context for much of the cross-examination of the witnesses. It seems to me that it provides significant support for the prosecution case.
Kelk's evidence was that he moved over towards three men, namely Fittler, Warhu and the appellant when he heard an argument begin amongst them. He heard the appellant say something about spending a night in gaol and commented to him, "Because you are a policeman doesn't make you a better person". He was half a step from and facing the appellant at the time and, immediately, he claimed a glass smashed across his face. Kelk thought that some earlier remarks had been directed to himself and Fittler. After he was struck, Kelk claimed that he fell forward and grabbed the appellant, wrapping his arms around him and putting his head down so he would not get hit again in the face. He said the appellant was shaking him violently and that he was hit at least ten times or more to various parts of his body. He could not see what was being used to strike these blows. He thought he had been hit a couple of times in the face with a knee. He claimed that in a desperate attempt to defend himself he tried to kick the appellant's legs and knee him. He conceded biting the appellant on his arm (the appellant claimed that he not only bit him there but also on his chest), but this had no effect. Eventually the fight stopped. Kelk thought that the whole incident took about a minute and a half to two minutes. A security guard came over. There was no suggestion that Warhu was involved in the fight that occurred between the appellant and Kelk. The Prosecutor elicited that at the time when the security guard came over the appellant and Warhu were gone. As there was no suggestion that Warhu was involved in the fight between the appellant and Kelk, it was not clear why the Prosecutor sought this evidence.
Kelk was cross-examined on the appellant's behalf as to what he had seen of the fight. It was suggested to him that he had started the fight and that he had been joined by Fittler. The case for the appellant put in cross-examination of Kelk in substance was that Fittler had approached the appellant and made some insulting remarks. Kelk was facing the appellant about a foot away and started to dance around in a fighting position with his fists clenched saying, "Come on cunt, I'll punch your fucking head in". It was put that he grabbed the appellant's right hand in which he was holding the glass and that the appellant reacted by pulling his hand back, pulling Kelk in turn off balance. It was put the appellant in the attempt to disengage himself from Kelk's grip pushed forward and that is how the glass came into contact with Kelk's face. The appellant's case was that Kelk tackled him at this point, got him onto the ground and then punched him in the groin. He slammed him against the pool table and put his left hand under his left leg to try to flip him over. It is unnecessary to go further into the details of the fight. It is sufficient to state that the appellant's case was that Kelk was essentially in control for most of this time.
It is clear from both the Crown case and the line taken in cross-examination on the appellant's behalf that, aside from the fact that Kelk approached a group which included Fittler, Warhu and the appellant, the fight between Kelk and the appellant did not involve either of the other two men. The appellant submits that whatever occurred between Fittler and Warhu after the initial exchange of words was irrelevant. However, Fittler was a witness to at least part of the events that occurred between the appellant and Kelk. Fittler gave evidence about how, according to him, the argument started and the striking by the appellant of Kelk with the glass. The defence took no point in respect of his evidence. He was cross-examined on the appellant's behalf as to what he had seen of the fight. It was suggested to him that he had started fight and that his friend Kelk had joined him. In re-examination he was asked by the Crown Prosecutor what was happening to him at the time that he saw Kelk and the appellant on the ground. Since there was an issue about the accuracy of Fittler's evidence and it was being contrasted with that of Kelk by the defence, this was a proper question in re-examination and it is not surprising that no objection was taken to it. Fittler answered,
"I was turning back around to see the other fellow behind me and as I have turned, I have got hit with the glass myself and pretty much lights out for me."
This answer was both responsive and relevant.
The next witness, a Mr Hutchinson, who was one of what might be called the Fittler group and who saw both fights, was asked by the Crown without objection a general question about what he noticed concerning any persons or people who were in the room when he first looked into it. He said that he saw Fittler on his hands and knees, the other fellow kicking him and, beyond, Kelk being assaulted as well. He was asked to describe that assault. After questions directed to this matter he was asked what happened in respect of Mr Fittler. He repeated his earlier evidence and the Crown elicited from him that the person involved in that fight was not the appellant. In a non-responsive answer he stated that that person told him not to come near or "I'll fucking kill you". He said that this man and the appellant then left the room together. It is submitted that this evidence was irrelevant, inadmissible and unfairly prejudicial. In my opinion, although the answer which I have referred to was not responsive, was irrelevant and I think therefore inadmissible, I do not think that it was prejudicial to the appellant.
The third member of the Fittler group was one Adrian Lowe. He was asked by the Prosecutor -
"At some stage did something happen in relation to your group leaving the hotel?"
His answer was -
"Yes. Once we had finished a beer between the four of us and a glass of water, we got up to leave and Nathan and me headed for the front door and I said, 'I will grab Hutcho' and I walked over to the banister and he was just starting to stand up and I said, 'Hutcho, we are going' and I turned to the side and Nathan and Eben Kelk were in this doorway talking to two people. I thought they knew each other and I sang out, turned and Hutcho was getting over the banister and bang...straightaway just both of them just stabbed in the face. That is all I can say. I was there, like that they looked at the side and there was blood everywhere, on the roof and the pool table, just flew out as if someone had been shot or something. Just full on."
The learned trial judge then asked a rather obvious question -
"Blood pouring out of whom?"
The witness answered -
"The both of them. It was everywhere, the blood was everywhere."
The Crown Prosecutor then asked what the witness meant by "both of them" and the witness replied -
"Nathan and Eben both stabbed in the face simultaneously."
In addition to these passages, the appellant draws attention to a later mention by Lowe in cross-examination, of a glass in Fittler's face. In my view, these particular answers were responsive to the issue raised by the cross-examination at that point.
Kelk's evidence may have been properly regarded by the jury with some scepticism. In particular, he gave different accounts of the fight, not only during examination-in-chief but also in cross-examination. Fittler's, Lowe's and, for that matter, Hutchinson's evidence also was in some respects unsatisfactory, mainly arising from inconsistencies between them. However, the jury may have taken the view that in the circumstances, it was unlikely that all the witnesses would remember the same event in the same way. On any account, the occasion was highly charged, the violence was considerable, the time frame short and the results apparently appalling.
Justin Kearney was working as a security officer in the centre in part occupied by the hotel when the incident occurred. He was asked to attend at the male toilets shortly after the fight and presumably as a result of it. He gave evidence that he saw the appellant and Peter Warhu standing near the washbasins. He was asked whether he was able to see what, if anything, either of them were doing. This question was not objected to. He answered that they were trying to stem blood coming out of cuts in their hands. He was asked, again without objection, whether he noticed something about the clothing that both of the men were wearing and answered that it was covered in blood. The Prosecutor then asked whether the witness noticed anything about the injuries to the two men. This question was objected to by defence counsel, who referred to a discussion at the commencement of the trial concerning the need to confine the evidence to relevant material so far as the appellant was concerned. The Prosecutor acknowledged the fairness of this objection and confined his question to the hands of the appellant.
The witness' evidence proceeded only for a short time before the adjournment at the end of the day's hearing and counsel for the defence indicated that she wished to make an application to discharge the jury. The learned trial Judge adjourned to the next morning when the application was duly made, relying on the submission that the evidence which had been adduced as to the assault on and injuries to Fittler were both irrelevant and prejudicial to the appellant.
In my opinion, the decision of the learned trial judge rejecting this application demonstrates no error. Having regard to the circumstances in which the alleged offence occurred, it could not be adequately described without some reference to the assault on Fittler, including, in my opinion, the blow which injured his face. To have attempted to elicit evidence from the eyewitnesses in which the assault alleged by the appellant on Kelk was kept, as it were, in an hermetically sealed compartment, would have been not only impracticable, but completely unreal. It is clear that the witness' recollection of the circumstances of the alleged offence must have been affected, probably adversely, by observing the almost simultaneous assaults and injuries they inflicted. This was so whether the appellant's account of events was to be preferred or not. Accordingly, the basic assumption of the submission, namely that the only assault that should have been referred to was that allegedly on Kelk, is misconceived. Furthermore, much of the evidence was given by responsive answers to questions which were not objected to and some was adduced in answer to cross-examination.
The major prejudice which it is submitted arose from the references to the assault on Fittler was the possibility that the jury might surmise that these attacks were concerted and that the appellant and Warhu were therefore involved in planned aggressive behaviour. If so, of course, this must have negated the defence which the appellant put forward that he was attempting to defend himself and Kelk was cut by accident.
The risk that the jury might draw this conclusion was not such as to have justified preventing the Crown from adducing the evidence in the way that it did. The possible prejudice, if any, was capable of being dealt with either by the trial judge then and there warning the jury that it was no part of the Crown case that Kelk and Warhu acted in concert and they should not speculate about this or suppose that they are entitled to reason in that way, adding perhaps that it would be most unfair if they did so, or the Crown Prosecutor may have made it clear in the presence of the jury what his case was in this regard.
Defence counsel did not seek any direction at the time that her discharge application failed. It may be because she did not wish to raise the speculative possibility of preconcert in the jury's mind. The trial judge implied that he would deal with the matter in the course of his directions as to the jury at the close of the case.
It was submitted in this Court, in addition, that the appellant may have been prejudiced by the reference to the injury to Fittler and the description of Warhu washing his hands and having clothes covered with blood at the washbasin in the toilets. To my mind, although strictly speaking, these matters except for the injury to the face were of limited importance and were arguably irrelevant, I cannot see for myself that they caused unfair prejudice to the appellant. This was, after all, a pub brawl, it was agreed that there had been a fair degree of violence. The jury, I think, was capable of realistically assessing such evidence without any undue emotional reaction that might have impinged unfairly on the case of the appellant.
It is unnecessary for present purposes to refer to the evidence of the remaining witnesses except that of Rosario Puglia who described the fight as involving four men who started pushing and shoving and then those with glasses in their hands "shattered them over the other two guys' heads in the split second".
Statements of two absent witnesses were tendered which described in general terms an argument between two pairs of men, but made no reference to violence.
Whilst I am dealing with the evidence, I should say that the appellant gave evidence of what occurred, essentially saying that he acted in self-defence and the glass struck Kelk by accident when the latter either fell on or grappled with him. In some respects, possibly significant from the jury's point of view, his evidence as to this aspect contains some unlikely elements. The Crown Prosecutor did not suggest in cross-examination that the appellant had acted in concert with Warhu.
Ground 3 of the notice of appeal is as follows -
"The trial judge erred by failing to direct the jury about the evidence in relation to Mr Warhu [and his assault on Fitler]”
The learned trial Judge's summing-up to the jury commenced with conventional references to the relevant legal considerations applying to the case, including the onus and standard of proof. His Honour also gave warnings concerning the reliability of the eyewitness evidence. His Honour then moved to summarise the evidence in the order in which the witnesses gave it. With respect to the evidence of Kelk and Fittler, the judge did not mention the assault by Warhu though, in respect of both Hutchinson and Lowe, his Honour referred to their evidence that Fittler was struck in the face with a glass. His Honour also reminded the jury of Justin Kearney’s evidence that at the washbasins in the lavatory the appellant and Warhu were attempting to stem blood coming from their hands. So far as Puglia’s evidence was concerned, the judge reminded the jury only of his description of the appellant striking Kelk with a glass.
His Honour briefly summarised the submissions of counsel to the jury. The summary did not suggest that it was any part of the Crown case that Warhu and the appellant were acting in concert. Indeed, aside from a brief reference to Kelk's evidence that the appellant and Warhu had earlier been offensive and that they were standing together when Kelk and Fittler approached them, neither Warhu, nor Fittler were mentioned again. During his Honour's summary of the defence case, Fittler and Warhu were referred to only in passing.
Counsel for the defence did not seek any redirections, although the summing-up did not advert to the Crown case as such against the appellant and, in particular, his Honour did not tell the jury that they should not speculate that the appellant and Warhu were acting in concert in the assaults which were disclosed in the evidence.
There may have been a number of reasons for this reticence. Firstly, the Crown Prosecutor may have made it clear in his address, either explicitly or implicitly, that it was no part of the Crown case that Warhu and the appellant were acting together or that there was any preconcert at all. Secondly, having regard to the atmosphere of the trial, defence counsel may have thought that a suggestion of preconcert might raise a matter capable of prejudicing her client but which might well not have occurred to the jury and hence was best left unmentioned. Thirdly, counsel for the defence may have raised the matter in her own address and considered that that was sufficient for the purpose. But it is most unlikely, as it seems to me, that defence counsel would have forgotten to raise this matter with the trial judge if she thought it necessary to do so in her client's interest, having regard to the way in which it had been discussed, not only at the beginning of the trial but also during Hutchinson's evidence, shortly after which an application was made by her to discharge the jury upon this very basis.
It seems to me to be virtually certain that the omission by defence counsel of any application for further directions was made deliberately for tactical but quite understandable reasons which had much to commend them. These decisions are the essence of conducting a criminal trial before a jury and are made in the context of a dynamic process which cannot be reproduced by a transcript.
Because no redirection was sought, it follows that leave must be granted under Rule 4 of the Criminal Appeal Rules before this ground of appeal can be argued. I have carefully considered, nevertheless, whether the failure of the trial judge to identify the possibility of preconcert arising from the coincidental assaults on Kelk and Fittler and to instruct the jury that it should not take such a speculative possibility into account led, in the circumstances of this trial, to a miscarriage. To have done so, especially if neither prosecution nor defence had addressed on the matter may well have been highly prejudicial to the appellant. For these reasons, I am satisfied that no miscarriage of justice occurred. I consider that leave to argue this ground of appeal should be refused.

It appears that at one stage that, though omitted the notice of appeal dated 4 May 2000, it was to be submitted by the appellant that in the circumstances of the case the verdict was unsafe, counsel for the appellant in this court has informed us that that ground was relied on only if the court considered that the other grounds were made out but that each of them was insufficient to lead to a successful appeal. No submissions were put to us that having regard to the evidence as a whole, the verdict was unreasonable. In those circumstances, it is unnecessary to deal further with this ground.
I propose therefore that leave to argue ground 3 should be refused and the appeal otherwise be dismissed.
SHELLER JA: I agree.
JAMES J: I also agree.
SHELLER JA: The orders proposed by Adams J are the orders of the court.

**********

LAST UPDATED: 02/08/2000

[2000] NSWCCA 273

6 July 2000