R v Mullins and F - [2001] QCA 440

SUPREME COURT OF QUEENSLAND

CITATION: R v Mullins and F [2001] QCA 440

PARTIES: R
v
MULLINS, Paul Dale
F
(appellants)

FILE NO/S: CA No 139 of 2001
CA No 143 of 2001
SC No 227 of 2001

DIVISION: Court of Appeal

PROCEEDING: Appeal against convictions

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON: 16 October 2001

DELIVERED AT: Brisbane

HEARING DATE: 6 August 2001

JUDGES: McMurdo P, Thomas JA and Holmes J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER: Appeal against convictions dismissed

CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – WITNESSES – HOSTILE WITNESSES – witness’ evidence in court inconsistent with prior statement – trial judge declared witness hostile – whether factors considered by trial judge in deciding whether the witness was hostile were proper matters for her consideration – whether judge erred in exercising her discretion to treat the witness as hostile.

CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESS AND ACCUSED PERSONS – IDENTIFICATION EVIDENCE – DIRECTION TO JURY – WHETHER WARNING REQUIRED OR ADVISABLE – ADEQUACY OF WARNING – hostile witness provided identification evidence of the accused – whether trial judge sufficiently warned jury of the danger of relying on the witness’ evidence.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SUMMING UP – whether defence cases were adequately put to the jury by the trial judge – whether the failure to summarise counsels’ submissions deprived either accused of a real chance of securing an acquittal.

CRIMINAL LAW – ANCILLARY LIABILITY – COMPLICITY – COMMON PURPOSE – GENERALLY – whether two distinct assaults occurred – whether separate and subsequently formed intention to commit further assault – whether final piece of aggression could be regarded as anything but a continuation of a single assault - whether the second respondent withdrew before latter assault occurred.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SUMMING UP – whether trial judge put the defence argument of there being two distinct assaults to the jury – whether failure to put defence to jury eliminated any chance of acquittal.

Evidence Act 1977 (Qld), s17(1)

McLellan v Bowyer (1961) 106 CLR 95, considered
R v Mogg (2000) 112 A Crim R 417, cited
R v Andrews [1987] 1 Qd R 21, considered
R v Hadlow (1991) 56 A Crim R 11, considered
R v Parkinson [1990] 1 Qd R 382, considered
R v Shepherd (1990) 170 CLR 573, applied
R v Son Hoang Nguyen [1989] 2 Qd R 72, considered

COUNSEL: S Hamlyn-Harris for the appellant Mullins
A Rafter for the appellant F
M Copley for the respondent

SOLICITORS: Legal Aid Queensland for the appellants
Director of Public Prosecutions (Qld) for the respondent

McMURDO P: I agree with the reasons and proposed order of Holmes J.

THOMAS JA: I agree with the reasons and order proposed by Holmes J.

HOLMES J: On 6 February 2000, Mr Peter Cribb was assaulted at about a quarter to one…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] QCA 440
Decision Date: 16 October 2001

CaseChat Overview and Summary

In this case, Mullins and F were convicted of assault occasioning actual bodily harm and were subject to appeal. The trial judge had declared a key witness to be hostile after her testimony was inconsistent with a prior statement. The appellants argued that the trial judge did not properly consider the factors in determining whether the witness was hostile and that the judge erred in exercising this discretion. Additionally, the appellants contended that the trial judge failed to adequately warn the jury of the dangers of relying on a hostile witness’s identification evidence, and that the trial judge did not adequately put the defence cases to the jury, depriving them of a fair chance at acquittal.

The court found that the trial judge was entitled to consider the inconsistency between the witness’s evidence and her prior statement in determining hostility. The court also held that the judge sufficiently warned the jury of the dangers of relying on the hostile witness’s identification evidence. The court found that the trial judge adequately put the defence cases to the jury, including the defence argument that there were two distinct assaults, and that the failure to separately summarise counsels’ submissions did not deprive the appellants of a fair chance at acquittal.

The court also considered whether there were two distinct assaults or a single continuous assault, and whether the second respondent withdrew before the latter assault occurred. The court found that there was a single continuous assault and that the second respondent did not withdraw before the latter assault. The court concluded that these findings did not affect the safety of the convictions.

The appeal against the convictions was dismissed, and the orders of the court below were affirmed.

Orders

Orders of the court

Appeal against convictions dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Mullins and F [2001] QCA 440
PARTIES:	R v MULLINS, Paul Dale F (appellants)
FILE NO/S:	CA No 139 of 2001 CA No 143 of 2001 SC No 227 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against convictions
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 October 2001
DELIVERED AT:	Brisbane
HEARING DATE:	6 August 2001
JUDGES:	McMurdo P, Thomas JA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	Appeal against convictions dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – WITNESSES – HOSTILE WITNESSES – witness’ evidence in court inconsistent with prior statement – trial judge declared witness hostile – whether factors considered by trial judge in deciding whether the witness was hostile were proper matters for her consideration – whether judge erred in exercising her discretion to treat the witness as hostile. CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESS AND ACCUSED PERSONS – IDENTIFICATION EVIDENCE – DIRECTION TO JURY – WHETHER WARNING REQUIRED OR ADVISABLE – ADEQUACY OF WARNING – hostile witness provided identification evidence of the accused – whether trial judge sufficiently warned jury of the danger of relying on the witness’ evidence. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SUMMING UP – whether defence cases were adequately put to the jury by the trial judge – whether the failure to summarise counsels’ submissions deprived either accused of a real chance of securing an acquittal. CRIMINAL LAW – ANCILLARY LIABILITY – COMPLICITY – COMMON PURPOSE – GENERALLY – whether two distinct assaults occurred – whether separate and subsequently formed intention to commit further assault – whether final piece of aggression could be regarded as anything but a continuation of a single assault - whether the second respondent withdrew before latter assault occurred. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SUMMING UP – whether trial judge put the defence argument of there being two distinct assaults to the jury – whether failure to put defence to jury eliminated any chance of acquittal. Evidence Act 1977 (Qld), s17(1) McLellan v Bowyer (1961) 106 CLR 95, considered R v Mogg (2000) 112 A Crim R 417, cited R v Andrews [1987] 1 Qd R 21, considered R v Hadlow (1991) 56 A Crim R 11, considered R v Parkinson [1990] 1 Qd R 382, considered R v Shepherd (1990) 170 CLR 573, applied R v Son Hoang Nguyen [1989] 2 Qd R 72, considered
COUNSEL:	S Hamlyn-Harris for the appellant Mullins A Rafter for the appellant F M Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellants Director of Public Prosecutions (Qld) for the respondent