R v McKiernan

[1995] QCA 197

IN THE COURT OF APPEAL	[1995] QCA 197
SUPREME COURT OF QUEENSLAND
BRISBANE	C.A. No. 507 of 1994
[R. v. McKiernan]

T H E Q U E E N

v.

KEVIN BARDON McKIERNAN

The Chief Justice
Mr Justice Pincus

Mr Justice Thomas

Judgment delivered 23 May 1995

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS: CRIMINAL LAW - conviction - grievous bodily harm - inconsistencies in evidence - whether verdict unsafe and unsatisfactory

Counsel:	A. Rafter for the appellant
L. Clare for the respondent
Solicitors:	Legal Aid Office for the appellant
Queensland Director of Public Prosecutions for the respondent
Hearing Date: 31 January 1995 Judgment delivered 23 May 1995	REASONS FOR JUDGMENT - THE COURT

On the night of 28 January 1993 one Jannese suffered injuries in two separate incidents at the Waterford Arms Hotel from which he eventually died. The appellant was charged with murder and doing grievous bodily harm with intent. The Crown case showed that serious head injuries were inflicted upon Jannese by a number of persons during the first incident. The case against the appellant was that while Jannese lay unconscious the appellant further attacked his head with a billiard cue.

The jury acquitted him of murder, manslaughter and doing grievous bodily harm with intent, but convicted him of doing grievous bodily harm. From this conviction the present appeal is brought.

Leave was granted to add as a ground of appeal that the verdict is unsafe and unsatisfactory. This ground rolls up the original four grounds which complained of particular matters occurring doing the trial. The most important question that now falls to be considered is whether the evidence is of sufficient quality to sustain the conclusion that the appellant was the person who wielded the billiard cue. In the circumstances of this particular trial this involves an extensive examination of the evidence.

Leaving aside the critical question of the identity of the last attacker, the following

On 28 January 1993 members of a motor cycle club had attended the funeral of one Kelli
Wright who had died in a road accident. The members wore dark jeans and dark shirts with
sleeveless dark leather vests which contained the club's "colours" or insignia patches on the back.
A wake was then held in a function room at the Waterford Arms Hotel which was a place
frequented by members of that club. The function room closed at about 8.30 p.m. Those
attending then left or moved to the public bar.
The appellant was known to some of the patrons and the hotel staff. Jannese (readily
identifiable by a yellow bandanna around his head) was also present. He had taken photographs
at the funeral, and in the public bar was carrying a radio scanner. Griffin, a club member, took it
from him and gave it to the appellant who smashed it. An altercation ensued between the
appellant and Jannese, and the latter left.
Jannese returned to the public bar more than an hour later. He had changed his clothes
and was dressed (and armed) in a manner consistent with an intention to fight. He wore a leather
trenchcoat and fingerless gloves. He walked into the public bar, confronted the appellant briefly
and walked out again. The appellant followed him.
Jannese produced a sawn-off gun from within his coat, pointed it at the appellant and
fired a shot. A struggle ensued as Jannese attempted to reload it. At this point the witness James
intervened. He punched Jannese to the ground and in the ensuing struggle slammed his head into
the asphalt until he was unconscious. Up to a dozen other persons came outside, including
Hendy. Hendy tried to kick Jannese's head, but whether he succeeded or not, no one was able or
prepared to say. (Hendy it may be noted was a co-accused, but late in the trial, on his Honour's
directions, the jury found him not guilty on all counts). One of those who spilled out from the
hotel at that stage (Griffin) took the gun and threw it into the river.
That incident occupied a short space of time. Some minutes later when the publican
O'Connor came out to check Jannese's condition, the bystanders had gone, and he was alone and
unconscious. This was estimated to be seven minutes after the gunshot. There was neither
injury nor blood on his face and very little blood on the ground, but his breathing was uneven
and was he described as making a "snoring" sound. O'Connor then went inside. A further six to
seven minutes elapsed before police arrived. It is during this period that the appellant is alleged
to have attacked Jannese.
During that time Jannese sustained serious injuries to his left cheek including multiple
breaks of the cheekbone and a circular laceration and abrasion measuring 2.1 centimetres in
diameter. The police found a pool of blood and pieces of a broken pool cue beside Jannese.
When the police went into the hotel the appellant was at the bar with James. The
appellant disappeared before police asked questions. After midnight he was seen asleep in the
toilet area. He emerged from there at about 6.30 a.m. after police and guests had left.
The eye-witness evidence primarily implicating the appellant as the final attacker was
that of James. No question of identification arises here because the men were known to each
other, and if James' evidence is to be accepted, he made a direct and adequate observation.
James, it will be remembered, was the person who came to the appellant's aid earlier,
immediately after Jannese had fired a shot at the appellant. James expressed no respect for
Jannese, describing him as "the idiot with the gun". His description of the first violent incident
attributes little violence to anyone other than himself and avoids the incrimination of others. His
evidence continues that he later looked outside and saw the appellant out in the car park with a
billiard cue. This was only about a minute before the police arrived. The appellant struck
Jannese in the head with it - "only once that I noticed" and the cue fell to pieces. When asked
"Where was the man when he was hit with the billiard cue?" he replied, "On the ground, where
else?". The appellant was alone during this attack. After seeing it, James stepped out of the
door, took hold of the appellant, told him to "Get the hell away" from Jannese, and "Leave it be",
and dragged him back inside the hotel as the first police car arrived. He described the appellant
at that point as being "on the verge of rage".
On the night in question the appellant had a beard and shoulder-length hair. He is
described by many witnesses as solid and as wearing dark jeans, dark Tshirt or singlet, and a
black vest displaying his bikie colours.

sequence of events seems well established. Griffin was described as having sandy or reddish hair and a beard. He also wore black clothes with the club's colours. James wore blue jeans and a white Tshirt. He seems to have been the only relevant patron in a light shirt. He was a large man, sixteen and a half to seventeen stone, and had a wooden leg.

It is now necessary to give a short statement of the evidence of each relevant witness.

James

The effect of his evidence has already been mentioned. In his original statement to police and in committal evidence he said that he had not seen the cue used and that he had not seen the appellant hit or kick Jannese with anything. He explained his initial attitude, mentioning that he had "gone mad" at his wife for going and talking to the police, and said that in those earlier statements he had "told a white lie".

Ms Kim Gilbert

This witness was the de facto wife of James. Her evidence vacillated. Her initial response when the Crown Prosecutor asked if she saw the appellant with a billiard cue was that she could only remember when he was handing something to the barmaid. However in later questioning she described the appellant as having struck Jannese on the head with a sawn-off gun during the first incident, gone back into the hotel, gone outside again with a broken pool cue, struck Jannese on the head with it and jumped on his head also. In cross-examination she returned to the position of having no memory of the appellant doing anything other than handing a pool cue to the barmaid. She said she might have been mistaken when she originally told the police that she saw the appellant hit the deceased with the pool cue. She said that she now really could not recall what actually happened.

Benjamin Keskitalo

This eleven year old boy was sleeping in the publican's house which stands next to the tavern. He heard the gunshot and looked out from a window in the upstairs bedroom. A man was lying on the ground. At that stage the man was not moving and he was alone. A man in a creamy white button-up shirt then came out, looked at him and went back in. This was consistent with his having seen Mr O'Connor, the licensee, checking on Jannese. Benjamin then left the window. When he returned some minutes later, he saw another person come out. The only persons then present were that man and the man on the ground. This person hit the man on the ground really hard with a thin pole. He did so four or five times. He was loudly swearing as he struck the man on the ground. The hitter walked toward the hotel door. Then the police came. Benjamin initially said that he did not think that the man had a beard, but he only saw one-half of the man and his back. The man was solid, and was dressed "like a bikie." He was wearing a black leather jacket and jeans.

Benjamin gave these details in a video-recorded interview within twelve hours after the attack. During cross-examination (21 months after the incident) he agreed with an isolated suggestion from the cross-examiner that the man was in a white or light shirt. His attention was not drawn to his earlier statement referring to the black leather jacket and the cross-examiner immediately ceased questioning. Benjamin's evidence strongly supports the fact that there was a second incident such as that described by James in which a single attacker struck the prostrate victim with a stick-like object. The effect of the above answer in cross-examination will be considered later.

Theresa Blahaus

This witness lived in a house 150-200 metres from the hotel carpark. A road and park were in between. She saw an incident involving a group of people with one man kicking an object on the ground. He was pulled off by others but broke away and kicked the object again. She describes an observation some minutes later that may be thought to be the second incident. She saw a man jump or dance on an object. He swung something at the object and he was pulled

away. This occurred less than five minutes before she heard the police sirens. According

to her view of it, the attacker was skinny with spindly legs. His shirt or top was "white", although she could not swear to it. Similarly his hair was light coloured or blond but she could not swear to it. She could not see the colour of the pants because the light was too strong. She thought all the people there had light tops but again she could not tell the colour "because the light was very strong". The learned trial Judge suggested to the jury that she may be a witness upon whom they might choose not to place a great deal of reliance. Whether this suggestion favoured the defence or the prosecution is open to debate, but in any event it was within the trial Judge's province to make such a remark. The jury however could take the view that the sequence of events is consistent with the sequence described by James, and that the main problem attending her evidence was colour identification. Certainly she described all persons as dressed in white or light clothes. There were fluorescent lights and a carpark spotlight shining back towards the tavern and it is by no means impossible that some reflective effect of the light could give such an impression irrespective of the actual colours. Her husband recognised this problem, commenting that in lighting such as this even dark hair reflects light at night.

Counsel for the appellant submitted that if her evidence were accepted the appellant would have to be acquitted because he did not have a white shirt or blond hair. However her own evidence concedes uncertainty on the question of colour. Whilst it is of no assistance to the prosecution in identifying the appellant, and indeed it tends to help the defence on that point it is not necessarily irreconcilable with the essential component of the Crown case that the appellant was the attacker.

Her evidence, along with that of Benjamin Keskitalo, is strongly supportive of the occurrence of a second incident such as that described by James, and of the fact that there was a single attacker who injured the prostrate victim by swinging something at him.

Peter Rolfe

Mr Rolfe attended the wake but did not know any of the people involved in the violence. He saw the initial incident involving the appellant smashing Jannese's scanner. Those persons were not known to him, but he was able to say that the person who smashed the scanner was the same person whom he described as later applying extreme violence to the victim. This included evidence that he saw that man "kick the crap out of his guts" describing "full on" kicks to the stomach, ribs and head. The same man also used the sawn-off firearm to strike the victim on the head several times. Then a couple of fellows grabbed him and dragged him away. Rolfe walked away from his point of observation a number of times during this sequence which he thought lasted from three to five minutes. The main attacker (that is the man who had originally broken the scanner) was then escorted back into the hotel by the group.

Rolfe gave a reasonable description of the appellant, but described him as wearing a white shirt. Some three weeks after the event he was shown fifty-four photographs at a police station in a procedure that was video-taped. He identified James as the person who dragged the offender away. He initially said, with respect to a photograph of the appellant, that he was not the man who attacked the man on the ground, and selected another photograph of a person who was not the appellant, observing that he "reckoned" that that was the one. He claims that almost immediately after the conclusion of the photographic line-up procedure he remembered that the photograph of the appellant was in fact the person. This fact was not included in a statement however until some months later.

Counsel for the Crown contended that his evidence was capable of being related to both the first and the second incident and that the striking of the victim's head with the gun might have been a mistaken description of the attack with a pool cue. We do not think that this contention is sustainable. At all times his evidence is of an incident when a number of persons were present, and the only reasonable interpretation of the evidence is that he was attempting to describe the first incident. So far as that incident is concerned, his account confirms that James ended up dragging away one of the attackers, although James says that the attacker he pulled away at that time was Hendy. Rolfe's evidence attributes far more violence during the first incident to the appellant than James was able or perhaps prepared to describe.

Whatever its value in relation to the first incident, we do not consider that Rolfe's evidence can be taken to relate to the second incident upon which the Crown case depends. He does however describe an extremely savage reaction on the part of the appellant during the first incident, and he identifies James as a person who dragged the attacker away.

Mr Hall

This witness gave evidence of the time when only two persons were present in the

carpark. An attacker was kicking a man on the ground. The relevant evidence proceeds: ". . . A bloke grabbed him off, grabbed him around the chest and the arms. He struggled

- the man struggled free and started hitting the bloke with a stick. With a stick? Can you describe the stick?-- Looked a bit like a pool cue. What made you think it was a pool cue?-- Well, I'm not sure, but it was about that length

and - not that length, that thickness.

How long was it?-- About a foot. It was the thickness of a pool cue.

A pool cue has got a taper to it, hasn't it - thick at one end, thin at the other. Can you demonstrate how thick this object was?-- I can't exactly tell you which end it was, but it looked like the thick end, which would have been that thick."

He said that the man hit him with the stick about three times. His Honour suggested to the jury that they may ultimately not wish to place great reliance on his evidence mainly because he said that he went over the window shortly after the shot. Also a third person had intervened before the commencement of the striking with the stick. It is of course evidence confirming that Jannese was attacked with a pool cue and it suggests that a third person intervened, although at an earlier stage than James' evidence suggests.

We think that His Honour rightly warned the jury against placing much reliance on this

His Honour gave the jury directions with respect to the evidence of James, Keskitalo, Ms
Blahaus, Hall and Rolfe, reminding them of relevant parts of the evidence. The only request for
redirection concerned the evidence of Benjamin Keskitalo, and His Honour gave further
appropriate directions. There was also a request on whether or not the accused was sufficiently
identified as the person who attacked the other with the pool cue. His Honour also acceded to
that request, drawing attention in particular to Benjamin Keskitalo's evidence and the points upon
which it might be thought to identify or fail to identify the appellant. His Honour also gave
further general directions on the question of identification, referring again to Ms Blahous'
evidence. Counsel seemed content with that redirection except for a supplementary submission
suggesting that His Honour should have gone further and told the jury that they would need to
look for corroboration of Benjamin's evidence because he was a child. In our view no such
further direction was required.

evidence. His Honour was entitled to make the suggestion he did to the jury, and the jury (as His Honour had reminded) were entitled to act on their own view of such evidence. Overall it is not suggested that His Honour overbore the jury or that the summing up was unfair. The real question in this appeal is whether the evidence as a whole was sufficient to prove to the appropriate standard that the appellant was the final attacker.

Discussion

It was undisputed that the appellant was the person who destroyed Jannese's scanner and

The Crown case in the end depends upon acceptance of the evidence of James. It was
submitted that his evidence should be treated with suspicion because of his initial denial of
knowledge implicating the appellant. Close scrutiny of this is necessary, but in the context and
culture of this particular incident we do not think his initial reluctance to implicate the appellant
is a particularly telling circumstance.
The Crown case was one in which the prosecutor placed before the jury every witness
who could say anything about the relevant events, irrespective of whether they supported the
Crown case. It is of course not unusual to find inconsistencies of observation and recollection in
those who describe a series of violent incidents in which multiple persons participated. In the
end the question is whether the evidence is sufficient to enable a jury reasonably to arrive at the
conclusion that the appellant was the perpetrator of the second incident.
There are a number of respects in which the evidence of Mr James finds support from
other witnesses, and which tend generally to support the credibility of his description of the
ultimate event. A close reading of his evidence gives the impression that he was generally
attempting to protect the appellant and any others involved in the first violent incident. He
acknowledged his own violence but did not seriously implicate anyone else in what appears to
have been a very violent collective reaction to the highly reprehensible action of Jannese in
shooting at the appellant. His different attitude to the second incident may be explained by the
fact that it was a later attack upon a defenceless unconscious man. This emerges at several points
in his evidence. When asked, "Where was the man when he was hit with the billiard cue?" he
replied, "On the ground, where else?". Elsewhere he comments that the man was "doing
nothing, period, from the start to the finish" during that particular attack. He also observed that
the cue was used when "the blue was over". This tends to explain his preparedness to give
evidence with respect to that incident.
Mr Rolfe's evidence is of limited relevance, but it could be accepted as indicating that
during the first incident the appellant was venting an extraordinary rage against the man who
might nearly have killed him. It might also support the fact that the first incident ended with one
of the attackers being dragged off by another person. It is in the evidence of Benjamin Keskitalo
and Mrs Blahous that support is found for an attack of the kind described by Mr James as the
second incident.
Although contributing to the violence in the initial attack, James' role from that point on
seems in the main to have been to try to prevent other persons from overreacting or from going
on with it. Mr Rolfe's evidence tends to support that Mr James was not the principal attacker,
and that he was not the person who had to be dragged off.
There are points of consistency such as the extreme anger and swearing of the attacker
seen and heard by Benjamin, and James' description of the appellant after dragging him back
inside the hotel as being "on the verge of rage". Benjamin's evidence confirms James' account in
most important respects. His initial account, given when the events were firmly in his mind,
describes the attacker as wearing a black leather jacket. The jury was not in our view obliged to
conclude, from a response to an isolated question twenty-one months later, that the attacker was
wearing a white shirt. Some doubt might be cast on that part of the evidence, but in the end it
was a matter of weight for the jury. They were entitled to conclude, if they chose, that the
balance of Benjamin's evidence favoured the view that the attacker wore black even though it
could no longer be regarded as strong evidence of that fact. If considered in this way, it is as a
whole corroborative of James' evidence.
The evidence of Ms Blahous was submitted to be exculpatory. If interpreted as clear
evidence that the attacker wore a white shirt this would be so. However in the context of a
distant observation which gave her the impression that everybody present during both incidents
seemed to be wearing light-coloured clothing, this evidence does not necessarily exculpate. It
would seem that all the relevant "guests" had dark clothing. The only white shirts were worn by
James and the hotel staff. The evidence however does not seriously raise the hypothesis that
James was the attacker. In the end the risk associated with accepting his evidence is not that it
lacks cogency or that it might be inaccurate, but rather that he might be lying. This was a matter
for the jury, and there are no indications in the evidence that give cause for any particular
concern in this respect.

who later went outside upon Jannese's challenge. being sufficiently confirmed in material aspects. A properly instructed jury could reasonably arrive at a verdict of guilty of doing grievous bodily harm.

The appeal should be dismissed.