R v Rezk

[1993] QCA 379

IN THE COURT OF APPEAL [1993] QCA 379

SUPREME COURT OF QUEENSLAND

Appeal No. 281 of 1992

Brisbane
[R v. Rezk]

BETWEEN

T H E Q U E E N

- and -

CLAUDE JOSEPH REZK

(Appellant)

The Chief Justice
Mr Justice McPherson

Mr Justice Dowsett

Judgment delivered on 08/10/1993
Joint reasons for judgment by Macrossan C.J. & McPherson J.A.

Separate reasons by Dowsett J. dissenting.

APPEAL AGAINST CONVICTION DISMISSED AND APPLICATION FOR LEAVE TO
APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL LAW - Conviction and sentence - Admissibility of fresh evidence - Whether solicitor and counsel failed to follow instructions - Judge's summing up in relation to the interest of the accused - Whether proviso to s.668E(1) Criminal Code (Qld) is applicable - Effect of silence on a late defence.

Counsel:	Appellant in person Mr Hunter for the Director of Prosecutions
Solicitors:	Director of Prosecutions

Hearing Dates: 10-13 May 1993
THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 281 of 1992

Brisbane

Before The Chief Justice
Mr Justice McPherson
Mr Justice Dowsett

[R. v. Rezk]

BETWEEN

T H E Q U E E N

v.

CLAUDE JOSEPH REZK

(Appellant)

JOINT REASONS FOR JUDGMENT - MACROSSAN C.J. AND McPHERSON J.A.

Judgment delivered the Eighth day of October 1993

This is an appeal by Claude Rezk against convictions for attempting to kill Christine Rowan and for assaulting Rosina Rovan. At the date of the offences on 20 December 1991 Christina Rovan was the wife of the appellant. Rosina Rovan is her mother. The appellant was sentenced to imprisonment for 10 years on the first offence and 1 year on the second, to be served concurrently. He also applies for leave to appeal against those sentences.

The prosecution case at the trial was that for some time before the date in question there had been serious disharmony between the appellant and Christine. They had been married for some 23 years and had two children, a daughter Catherine aged 20, and a son Marcel who was 8 years old. The appellant originally came of a well-to-do Egyptian family and had received his tertiary education in France. He is evidently a man of intelligence and ability. In Australia he taught at various high schools and had owned or conducted more than one educational establishment in Victoria and Queensland. Initially these ventures were successful; but a recent business failure had a destabilising effect on him. He began drinking to excess and matrimonial differences followed.

Whatever the precipitating cause, the appellant began to use violence against his wife. The police were drawn into efforts to keep the peace between them, and Christine obtained a form of restraining order against the appellant. The parties separated in January 1991, but there were disputes between them over custody and property, and they continued to meet and communicate. On occasions the appellant telephoned and abused and threatened Christine. There is evidence confirming that such threats were made against her. According to her evidence he telephoned six times on the evening of 19 December 1991, which was the day before the incident giving rise to the charges. He threatened, as he had done before, to injure and even kill her.

It was not in dispute at the trial that on the afternoon of 20 December 1991 Christine was struck by shot discharged from a .410 double barrelled shotgun held by the appellant. He had considerable experience in the use of firearms and the weapon in question was his. Evidence of the state of relations between the appellant, his wife and his mother-in-law, and his threats against and conduct toward them was adduced as tending to show an intention on his part to kill Christine, as to which the Crown bore the onus of proof. The prosecution case was that the appellant pointed and fired the gun at Christine from a distance of only about six feet. He then pointed the gun at Rosina Rovan, thus constituting the assault against Rosina, which was the second offence of which he was convicted. In summary, the case for the appellant (who gave evidence in his own defence) was that for her own protection he retrieved the gun from Christine's residence; that he did not know it was loaded; and that on his way out of the property he had fallen over, with the result that the gun discharged accidentally and the shot hit Christine.

On the date in question Christine was living in a unit in a multiple dwelling at No. 5 Hemdan Court, Nambour. A Mrs van den Berg lived nearby in Waterfalls Road. At about 3.30 p.m. on 20 December 1991, she saw a man get out of a Toyota 4-wheel drive vehicle parked across the street. From the back of the vehicle he took what the witness described as a rifle. She saw him run down the street carrying the firearm in the direction of the rear of Christine's unit. There appears to be no question that it was the appellant. He testified to having parked his vehicle in Waterfalls Road. The only substantial divergence was that he said that what he took from the car was a plank and not a gun. Mrs van den Berg, to whom guns were a familiar sight through her childhood experience of war-time Holland, remained unshaken in her evidence that what she had seen was not merely a plank but a firearm.

Christine said she was standing outside her unit at the bottom of the stairs near the laundry door with her mother, who was seeing off a visitor, when she suddenly saw the appellant. He was standing on a grassy embankment, or the flower bed beside it, only some six feet away from and a little above her. She found herself looking directly into the barrel of a shotgun he was holding in both hands under his arm at about waist level. In cross-examination he admitted he had his finger on the trigger. As she turned and saw him, he fired. She heard two shots and felt excruciating pain. She fell to the ground. She said he came and lay on top of her, and kept shaking her and saying "I want you to die. Die in my arms". She was screaming, and she heard her mother screaming, and she remembered hearing more shots.

Her mother Rosina Rovan said she turned back from seeing off her visitor to see the appellant with the gun in his hands and under his right arm. He was standing beside the flower bed and he fired at Christine, who fell down. She saw the appellant (to use her words) pull the gun apart and put more bullets in. He pointed the gun at her and she ran around the corner. She was not sure how many shots she saw fired at Christine, she thought "a couple, a few". In all she thought she heard perhaps three or four "bangs".

There were no other eye witnesses to the shootings, although a number of residents of other units in Hemdan Court heard shots and came to the scene soon afterwards. There were variations in their evidence concerning the number of shots each heard fired. However, Snr. Const. Wort said that, on arrival at the scene at 4.00 p.m., he found a shotgun lying on the ground in a "broken" condition. It had two spent cartridges in it, and there were two unspent cartridges beside it. On the grass between it and the house next door he located three more cartridges, two spent and one unspent. A knife was also found in the vicinity. He photographed all of the cartridges, and the photographs were admitted without objection at the trial. His evidence to the foregoing effect was confirmed by that of Det. Farlow. Wort also testified that he examined the laundry door and found on its lower framework samples of what appeared to be lead shot and cardboard discs, as well as blood and flesh. Samples of the lead and cardboard were despatched to Sgt. Keller.

Keller is a police ballistics expert who examined the shotgun and other materials. The gun was a Rossi double barrel break action .410 shotgun with two triggers, the right-hand trigger being placed slightly ahead of the other. Two shells or cartridges could be loaded on any one occasion. Standard tests showed the weapon to be in good condition and not prone to discharge accidentally except in extreme circumstances. More than twice the acceptable minimum safety degree of trigger pressure was required to discharge a shot. Examination of the four spent cartridges led Keller to the conclusion that three of the four spent cartridges were fired from the right hand gun barrel, and only one from the left hand barrel. His opinion to that effect was based on the distinctive markings left by each of the firing pins on the base of the discharged cartridges. It followed that, to discharge those shots, the gun would have had to have been reloaded on at least two occasion after the first shot was discharged from the right hand barrel. Reloading is effected by swinging the lever on the top of the gun enabling the gun to be broken and the spent cartridges to be removed and replaced. To discharge a shot, an external hammer must be manually cocked and then released by operating the trigger mechanism.

Dr A.F. Smith gave evidence of treating Christine after she was brought to the Nambour General Hospital. He found a gunshot wound on the right side of her neck, which was cleaned and debrided in the operating theatre. Exploration disclosed disruption of the soft tissue muscles exposing the nerve roots running into the right arm, in which Christine now has a permanent disability. In the wound Dr Smith found a wad and numerous pellets. He said he removed the wad from the depths of the wound and some pellets, but numerous pellets were left behind. He placed the items removed in a jar, which was sealed.

In fact the relevant jar (ex. 7) tendered at the trial contained only one pellet, a plastic wad, and two circular cardboard discs. When this was drawn to his attention Dr Smith confirmed that the other pellets - he estimated at least 50 in number - were left in the wound, and were still there. The reason, he explained, is that the root of the neck is quite a vital area, and "it would do more harm than good trying to retrieve all the pellets" which were in that tissue.

Some reference must be made to the evidence concerning the composition of the shotgun cartridges and the damage detected at the scene. The cartridges were Fioke brand. Starting at the leading end of the cartridge case, there is a cardboard disc or "overshot wad" followed by the column of pellets. Keller counted 93 pellets in one of the undischarged cartridges he opened. Next after the pellets is plastic wad, which separates them from the powder charge at the base of the cartridge case. On discharge the contents may be expected to emerge from the barrel in the sequence in which they were packed; that is, first the cardboard overshot wad, followed by the pellets, and then the plastic wad. Material of all three kinds was apparently found by Dr Smith in the neck wound.

Shotgun damage was visible in three different places. First, there was the wound in Christine's neck, from which the plastic wad, single pellet, and discs were removed. This and the appearance of the wound tended to suggest that it was not a glancing impact caused by ricochet of the shot off concrete or other solid object. That was the first place where damage was located. Then there was the area at the base of the laundry door, from which pellets and two halves of a cardboard disc or overshot wad were recovered, in conjunction with blood and particles of human tissue. The discs tend to delaminate on impact, which may explain why Dr Smith apparently found two in the wound. Keller said that the presence of discs in both the wound and the door suggested that they were caused by two separate shots. A third area of shotgun pellet damage was located in the building next door, which was No. 3 Hemdan Court.

It consisted of impact damage to a pane of glass, a panel of fibro, and some hardiplank below the window. It was at a distance of some 26 metres or more from the laundry, and was probably due to a shot being fired from about that distance in a slightly upwards trajectory. It may be contrasted with the laundry door damage, where the trajectory was slightly downwards. According to Sgt. Keller, it would have required a minimum of three shots to have caused the various areas of damage that were observed.

When account is taken of all these matters, it is obvious that there was ample evidence to justify the jury finding the appellant guilty of attempting to kill his wife by firing at least two shots at her. His account of what happened was contradicted by that evidence and was essentially implausible. It was that he came to see Christine to talk about access to their son Marcel. He parked his vehicle in Waterfalls Road so as to avoid being seen by Christine's friend. From the rear of his vehicle he took a plank which he needed in order to make his way through two fences, of which one was made of barbed wire on which he had previously torn a pair of trousers. As he approached Christine's unit he saw someone in a dress turn the corner of the building followed by Christine herself.

It then occurred to him that he now had the opportunity to run into her upstairs flat and look for the shotgun which he said she had. He went in, located her bedroom, and was able to find the gun standing between the wardrobe and a set of drawers.

In the second drawer he found four shotgun shells and a knife. He put the shells in his pocket and the knife in his waist, and

raced out again. He did not load the gun and did not know if it was loaded. The appellant was outside the building on his way out and standing on the embankment when he heard his wife call out "What are you doing there". Knowing there was an order prohibiting him from having a firearm and that she would call the police, he "just froze". He turned and walked toward her holding the gun.

He explained to her that she did not need a gun and he was going to give it to their daughter to pass on to the police. There was a discussion about custody and about items of property; at the end of it he suggested, and she agreed, that they should go inside. He started down the embankment and then fell, twisting his right ankle; as he fell the gun discharged. He thought he had shot his foot. Then he looked up and about and saw Christine lying on the concrete with blood running "like a river" on the driveway.

The appellant said he started calling for help, and walked toward the corner to look for someone he had seen there. He saw Christine again, lying there not moving, and "for the first time I thought she was dead". He loaded the gun and placed it under his chin intending to kill himself. He was getting ready to pull the trigger when he saw her move her foot. At that he moved the gun to the left, and it discharged (he thought) in the air. Later in his evidence he said that two shots were fired on this occasion. He threw the gun down, and knelt beside Christine. Realising she needed help, he raced upstairs to her flat and telephoned the emergency number, and then tried to call his daughter. She was not at home, and he spoke to her flatmate Ms. Rothenberger. He then ran downstairs again and tried to comfort Christine. The ambulance was a long time coming, so he ran upstairs and again dialled 000. He went back downstairs on hearing the siren, and collapsed in the arms of a neighbour, a Mr Michael Carr, whose help he sought. The next thing he knew was that he was handcuffed and in the police car. So far as Rosina Rovan was concerned, she was, he said, never there at all on that occasion on 20 December 1991.

Before this Court the appellant conducted his own appeal. Like many in that position he insisted on pursuing at great length matters of detail that had little (if any) significance for or relevance to the issues involved. The result was that the hearing of the appeal extended over four days, which was at least as long as the trial itself. In part the time it occupied was due to the appellant's presenting on the appeal what he claimed was fresh evidence. Much of what was advanced as having that character fails to satisfy the tests governing the admissibility of such evidence on appeal. The appellant was nevertheless allowed considerable latitude in pursuing such matters, and several witnesses were called and cross-examined by him, including two of the police officers who had testified at the trial. In addition the appellant himself gave evidence before us and was cross-examined.

Of the two principal matters about which the appellant now complains, the first was that his legal representatives had failed to follow his instructions. At the trial the appellant was represented by a barrister instructed by a local solicitor.

Counsel, who was Mr J.C. Parker, is a practitioner of experience in criminal matters, having been admitted in Manitoba in 1977 and in Queensland in 1985, and having, according to what he said, since acted extensively as prosecutor or defence counsel on many occasions.

In his affidavit and in oral evidence before us, Mr Parker dealt with the appellant's complaints about the manner in which he conducted the defence case at the trial. He said he had not pursued the appellant's claim of a conspiracy between Christine, Rosina Rovan and the police because he considered that any further detail of the pre-marital disharmony would serve only to emphasise the motive that the appellant might be seen to have for wishing to kill his wife. Consistently with this attitude, he had decided that Hoffman, a police officer who had attended to Christine's complaints against her husband, should not be called or cross-examined. Hoffman would, Mr Parker suggested to the appellant, have given evidence about "your cutting up your wife's underwear because you were jealous ...". Likewise, he had not insisted that Jean Cannon be called because, although she might have testified that she did not see Rosina Rovan there, she would also have said that she had seen Marcel run off crying out "Daddy's come to shoot mummy". He had not required the Boggo Road prison hospital records to be produced because at the trial the appellant himself had given unchallenged evidence of suffering an injury to his right foot, and the records therefore went at most only to his credit. He had not required production of the hospital x-rays of Christine's wound because, even if they were available, he thought it made little difference to the appellant's defence whether or not the discs or pellets were visible in the wound. According to the view formed by Mr Parker, it was not sufficiently relevant to the appellant's case of accidental discharge of the shotgun whether Christine's wound resulted from an impact that was direct or from a ricochet.

There were other decisions taken at the trial for which Mr Parker explained his reasons. It is naturally difficult for us, sitting here, to disagree with his professional judgment in relation to any of them. It is, in any event, not necessary to try to do so. We accept that in each instance counsel explained to the appellant his reason for a proposed course of action, and that the appellant accepted the force of that reasoning and agreed to leave the decision to Mr Parker. In these circumstances it is not now open to the appellant to complain that Mr Parker acted contrary to the appellant's instructions.

The solicitor instructing counsel at the trial was Mr C.J. Lavery. He had been acting for the appellant for some time before the incident giving rise to these charges; he thus had an intimate knowledge of the appellant's previous conduct. Against him the appellant asserted on appeal that he had ignored or acted contrary to explicit instructions given by the appellant.
In many instances the instructions were said to have been given in writing in the form of facsimile letters communicated to Mr Lavery by the appellant from Boggo Road prison, where the appellant was detained pending his trial.

Copies of the facsimile letters of instructions are annexed to the appellant's affidavits in support of the appeal. They contain passages purporting to instruct Mr Lavery to do certain things, or obtain certain evidence. They were things the appellant complained Mr Lavery did not do. The appellant's difficulty is that Mr Lavery was able to produce the original facsimile letters received by him. They contain none of the critical passages now relied on by the appellant. Because it is possible that other charges may follow this discovery, it may not be desirable to set out the obvious inference that is to be drawn from the conflicting appearance of these two sets of documents. It is enough to say here that we do not accept the appellant's evidence before us, whether given orally or by affidavit, in relation to any matter in dispute. His testimony on appeal has been shown to be quite unreliable.

Two of the police officers, Farlow and Wort, who gave evidence at the trial, were also cross-examined by the appellant at the hearing of the appeal. If it is possible to summarise what was put to them, it was that they had conspired to fabricate the evidence on which the appellant was found guilty; or, in short, that (to use his own words) he had been "set up".

To the extent that cross-examination had an identifiable focus, it appeared to concentrate on some particular aspects. One was Mrs van den Berg's description of the vehicle from which she saw the man alight in Waterfalls Road. It was said that she misdescribed its colour. An acceptable explanation of how this might have happened was given by Det. Farlow; but, in any event, the point was not relevant to any matter in issue. The appellant himself testified at his trial that he parked his vehicle in Waterfalls Road at about the time in question, and the witness's description of what she saw tallies generally with his account except as regards the question whether it was a gun or a plank she saw him carrying away.
Another pre-occupation of the cross-examination of Farlow
and Wort was the scene of the crime, and the photographs that
were taken of it at or shortly after the arrival of the police.
It was put that using a magnifying glass to examine a
photograph showing a police car at the scene it was possible to
see a figure seated in the back seat, whom the appellant
identified to us as Rosina Rovan - and, said the appellant, "if
that is Rosina Rovan in that car, then I think we need to know
why and how".
Having looked at the photograph using a magnifying glass, we now record our impression that there is no one in the back seat of the car. That impression is in no way affected by the appellant's claim that a black poodle dog is also visible in an enlarged photocopy of the same or another photograph; or that Rosina's attachment to that dog was such that, wherever Rosina went, the dog was sure to go. Even if accepted as accurate, these matters afford no evidence capable in law of affecting the outcome of this appeal. The same applies to the claim that in the photocopy enlargement of another photographic exhibit, it is possible to identify the silhouette of the appellant's daughter Catherine. No member of the court has been persuaded that any human figure is visible in the enlargement, or that it is Catherine, or that it proves that therefore the photographs were not taken on the day of the incident, but are fabrications that were manufactured on some other day.

Other matters that were pursued on appeal as involving fresh evidence are discussed in detail in the reasons of Dowsett J. We agree with what he says about them. There is no substance at all in these or any of the other matters advanced by the appellant as constituting fresh evidence that would justify ordering a new trial.

From this we turn to other questions of possibly greater concern. On behalf of the Crown, Mr Hunter of counsel conducted the respondent's case with candour and restraint. He directed us to two matters in the summing up that he suggested might merit the attention of the Court. These were in addition to the series of criticisms that the appellant made of several matters of detail in the trial judge's summing up. None of them justifies separate consideration. One such complaint, which may be taken as typical of the others, is his Honour's statement in summing up the defence case that immediately before the gun discharged, the appellant had "slipped on his feet" on the embankment; the appellant claimed that what he said in evidence was that he "fell" or, as he himself stated it on appeal, he "tripped" and fell. His Honour's misstatement of the evidence on this point might, the appellant suggested, have led the jury to think the appellant was not telling the truth. Clearly the appeal does not fall to be determined on points as insignificant as this; but, as it happens, the record (at p.314) shows that the appellant did at one stage describe himself as having slipped.

Neither of the two matters raised by Mr Hunter was the subject of a ground taken in the notice of appeal, which had already undergone extensive amendment before the hearing. We nevertheless undertook to consider both matters. The first concerned a reference in the summing up to the "interest" of the appellant as a witness at the trial. His Honour introduced his remarks on this subject by saying that the jury should look for disinterested witnesses, "people who you think would have no axe to grind whatever, and their evidence, you might think, is more capable of credence". He referred to those he described as professional witnesses, and went on to give the example of Dr Smith. Then he mentioned the ambulance man, various neighbours and Sgt. Keller, who, his Honour said, "you might think ... were impartial witnesses, but that is a matter for you".

Having referred to some other individuals as being possibly impartial witnesses, his Honour continued:

"Next you consider whether there was any interest or motive a witness might have in bringing about a particular result. Someone might have a particular interest in securing a result in different ways. It was suggested throughout the case by the defence that Christine and Rosina got together to paint a very bad picture of the accused. Also, the defence suggested that Mrs Vabec, who is Rosina's sister and Christine's aunt, and who is very close to Rosina and Christine, gilded the lily, and that they all got together and painted a very, very bad picture of the accused which was wrong and incorrect.

The Crown Prosecutor had also suggested that the accused had a great interest in that he fabricated his story.
Certainly you pay particular attention to the evidence of people who you might think have an interest in the case, but this does not mean that you necessarily reject all or any part of it. It is simply a factor you bear in mind. You consider closely the evidence, particularly that of the accused, and it might well impress you as being reliable, and evidence on which you can act or it might be such as to at least raise a reasonable doubt, but you do not assess his evidence any differently from the way in which you assess the evidence of any other witnesses in the case. Just give it a fair, sober consideration to see whether it impresses you as being reliable evidence on which you can act or whether it is such as to raise a reasonable doubt.

I mentioned earlier that the accused is on trial on serious charges with the focus of attention on him by everyone in the courtroom. You may, if you see fit, make due allowance in your assessment of his evidence for the fact that he may be nervous and apprehensive.

On the other hand, you might come to a different

conclusion. These are matters entirely for you."

The summing up then proceeded to deal with the status of police witnesses, and the attitude that the jury might adopt in approaching their evidence.
The difficulty that is suggested in relation to the foregoing passages arises from the decision of the High Court in R. v. Robinson (1991) 65 A.L.J.R. 664, where a summing up was condemned because of the references in it to the interest of the accused in the outcome of the case and the weight to be given to that factor in assessing his evidence. There is, it may respectfully be suggested, an element of ambiguity in some of the remarks of their Honours in the joint judgment in that case that left it uncertain whether it was intended to preclude from a summing up either (1) any reference at all to the interest that an accused, in giving evidence, obviously has in the outcome of the case; or (2) only such references to the matter of the interest of the accused as might have the effect of diminishing the fundamental presumption of innocence of the accused. The latter may sometimes be the unintended but effective consequence of inviting the jury to undertake a comparative assessment of the weight of the evidence of witnesses according to the extent of the interest of each in the outcome of the trial. It was the case in R. v. Robinson.

Deciding which of these two interpretations of the judgment in Robinson is correct occasioned a difference of judicial opinion in R. v. Wilson [1992] 2 Qd.R. 174, where the first interpretation was adopted by the majority of the Court of Criminal Appeal; and again in R. v. Roach (CA 185 and 214 of 1991), where the second interpretation was favoured by a majority of the Court of Appeal. The question was considered again in the High Court of Australia in Stafford v. The Queen (1993) 67 A.L.J.R. 510), which was an application for special leave to appeal. In refusing the application Deane J. on behalf of himself, Dawson, and Toohey JJ. is reported to have said:

"It follows from the decision of this Court in Robinson v. Reg (No.2) (1991) 65 A.L.J.R. 644, that a trial judge should not direct the jury that the 'interest' of an accused in the outcome of his or her trial is a 'factor' to be taken into account in assessing his or her evidence. Nor should a trial judge direct the jury to the effect that, in assessing the evidence of all the witnesses, they should take account of their relative interests in the outcome. Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness. That is what the decision in Robinson was directed against.

Ordinarily, and notwithstanding what is said by the Court of Appeal of Queensland in this case about 'an admission of impotence', it is preferable that a trial judge refrains from directing attention to the interest of the accused in the outcome of the trial as a relevant factor in assessing the reliability of his or her evidence. If the circumstances of a particular case are exceptional and require some reference to the accused's interest in the outcome as a matter of fairness to the accused, it should suffice to inform the jury that they must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the indictment and that it would be wrong and unfair for the jury to discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome of the trial."

In the present case it appears that in the passage above taken from the summing up, the trial judge probably did infringe the prohibition stated in the first of the two paragraphs quoted from Stafford. Although his Honour did not expressly direct the jury that the interest of the appellant in the outcome of his trial was a factor to be taken into account in assessing his evidence, it can be said that he did at least indirectly invite the jury to assess the reliability or relative reliability of that evidence by reference to the interest of a witness in the outcome of the trial. The question is whether his Honour's doing so is fatal to the verdict of guilty against the appellant, or whether it is open to this Court to apply the proviso to s.668E(1) of the Code.

In considering whether the proviso is capable of being applied it is necessary to examine the effect that the error may have produced. We are satisfied that the error in this instance did not have the effect that the accused was deprived of a chance of acquittal. There may be cases, of which Robinson v. The Queen (No. 2) (1991) 65 A.L.J.R. 644 is an illustration, in which the effect of referring to "interest" in the context of credibility of witnesses including the accused, may, in the form in which it is stated, lead to a reversal of the onus of proof.

Such a defect in a summing up would in most circumstances plainly be so fundamental as to preclude the proviso to s.668E(1).

We are not here concerned with any such defect. His Honour's observations on interest were very far from amounting to a reversal of the onus of proof. It is likely from the context that what he said on the subject was a response to counsel's addresses at the trial. Counsel for the appellant had, it appears, attacked the two principal prosecution witnesses Christine and Rosina Rovan as having conspired against the appellant, and also suggested that Mrs Vabec, who, being Christine's aunt and Rosina's sister, was "very close" to them both. She and they had an obvious interest, which might well have tended to colour their evidence against the appellant.

Likewise, from what the learned trial judge said next, it appears that the appellant was identified in the course of the address of counsel for the prosecution as having a "great interest in that he had fabricated his story". In this the sequence of cause and effect seem to have been reversed; but, however the matter was stated, it emerges from what follows that his Honour's only concern was to discourage the jury from discounting the appellant's testimony on the ground that he was the accused. The whole of the third paragraph in the extract from the summing up which is set out above has that end in view.

The case is therefore one in which the trial judge invited attention to the relative interests of the witnesses, but he did so for the purpose of attempting to redress the balance in favour of, and not against, the appellant as a witness.

The case before us resembles Stafford, because in this Court the assessment was that the direction in Stafford was, on balance, favourable to the accused, and that there was no miscarriage of justice. The decision shows that infringement of the prohibition is not necessarily fatal, although in the course of restating the rule, the High Court in Stafford said that it is "preferable" that a trial judge refrain from directing attention to the interest of the accused in the outcome of the trial as a relevant factor in assessing the reliability of his evidence. Such an approach is consistent with many of the American authorities on the point. Even in those jurisdictions in the United States where a reference in the summing up to the interest of the accused is considered to be inadvisable or inappropriate, it has been held not to constitute reversible error for the trial judge to do so. See State v. Bester 167 N.W. 2d 705 (Iowa), where the authorities are reviewed; cf. also 75B Am.Jur. 2d §1423.

In deciding in terms of s.668E(1) whether there has been "no substantial miscarriage of justice", the test stated in Driscoll v. The Queen (1977) 137 C.L.R. 517 and adopted in Wilde v. The Queen (1988) 164 C.L.R. 365, 372, is whether it can be said that "had there been no blemish in the trial, an appropriately instructed jury acting reasonably on the evidence properly before them ... would inevitably have convicted the accused ...". In the present case we think that that question must be answered in the affirmative. The evidence of a motive on the part of the appellant for killing his wife, and of his threats to do so, was extensive and to some degree corroborated by witnesses outside the immediate family circle. The act of shooting and wounding Christine was not in dispute. The appellant admitted that, although well versed in handling firearms, he had his finger on the trigger of the gun before it discharged. His account of having, for no apparent reason, fallen, so as to cause the gun to discharge is entirely at odds with the scientific evidence about the trigger pressure required to fire the gun, as well as the evidence based on the number of spent cartridges found at the scene that, in all, four shots had been fired.

The jury may well have considered it most improbable that both barrels of the gun would have been accidentally discharged at Christine. In any event, the appellant's evidence of having thereafter fired a shot in the air over his shoulder fails to account for all of the four spent cartridges. It also leaves unexplained the critical fact that, according to the unchallenged evidence of Keller, three of the four cartridges were discharged from the right hand barrel of the gun. The process of loading, discharging the gun, breaking it, removing the spent cartridges, reloading, cocking the hammer, and firing, are all acts involving such a degree of deliberation as to exclude any notion of accident. If the appellant twice reloaded and twice fired the right hand barrel of the gun after the first two shots had been discharged at Christine, it would have been impossible for a jury to give any credence to his claim that he was preparing to commit suicide until he saw her foot move. Reloading and discharging the gun on two further occasions after the first two shots is consistent only with an intention on his part to shoot Rosina Rovan, which would be wholly inconsistent with his claim that his shooting of Christine was an accident.

On the objective evidence located at the scene, and independently of the credibility of the principal protagonists who testified at the trial, it is thus a rational and compelling conclusion that the verdict would certainly have been the same if the offending reference to the interest of witnesses had not appeared in summing up. When all the evidence is considered, it is plain that any conclusion other than that the appellant was guilty of the attempt against Christine would have been absurd.

Once that verdict had been found, the verdict of guilty on the charge of assault against Rosina would follow as a matter of course. In our opinion, no miscarriage of justice was occasioned in this case by the judge's reference in summing up to the interest of the witnesses at the trial.

This leaves for consideration the second of the two matters raised by Mr Hunter. It involves consideration of part of a single sentence in the following passage in the summing up:

The accused says he tripped - slipped or tripped - resulting in the accidental discharge of the gun and the twisting of his ankle. This, as already indicated, has been contradicted by Christine and Rosina who said that he had a firm stand, and by other evidence concerning no slip marks, no early complaint by the accused to the police or others that it was an accident; his expertise with safety matters relating to guns and by various witnesses who gave evidence of his statements of intention over a long period."

The passage in question appears at or shortly after the 40th page of a summing up occupying more than 50 pages of typescript.
It may fairly be doubted whether the sentence in the passage in question made any lasting impression on the jury. It was immediately followed by a quite precise direction from his Honour that it was not for the accused to prove accident but for the Crown to exclude it to the satisfaction of the jury beyond reasonable doubt.
The difficulty with the passage quoted is said to be that it contravenes the rule laid down in Petty v. The Queen (1991) 173 C.L.R. 95, where Mason C.J., Deane, Toohey and McHugh JJ. said (at 100):

"In the present case, Priestly J.A. expressed the view that there is a 'significant distinction' between inferring a consciousness of guilt from silence and denying credibility to a late defence or explanation by reason of earlier silence. His Honour suggested that in the first case there can be inferred an admission by reason of the consciousness of guilt whereas in the second case rejection of the defence or explanation has no evidentiary value in itself, though its effect may be to leave the prosecution case unanswered, or at least not answered by that defence or explanation. We acknowledge that there is a theoretical distinction between the two modes of making use of the accused's earlier silence. However, we doubt that it is a distinction which would be observed in practice by a jury, even if they understood it. And, what is of more importance, the denial of the credibility of that late defence or explanation by reason of the accused's earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his or her exercise of the right of silence. Such an erosion of the fundamental right should not be permitted. Indeed, in a case where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment. Accordingly, the distinction is, in our view, unsound."

It must be acknowledged that on first impression his Honour's reference in summing up to the fact that there was "no early complaint by the accused to the police or others that it was an accident" is capable of being viewed as contrary to the principle stated in Petty; it involves a denial of a credibility of a late defence or explanation by reason of the accused's earlier silence. That, their Honours said, "is just another way of drawing an adverse inference ... against the accused by reason of his or her exercise of the right of silence".

On closer examination, however, it becomes plain that this is not a case in which, in terms of the sentence just quoted from the judgment in Petty, the silence of the accused was the result of his exercising the right to remain silent. In that respect, the present case factually resembles Petty, where the principle was laid down but not applied. The High Court dismissed the appeal because the appellant Maiden had not previously remained silent about the subject matter of the charge; instead, having been interviewed by the police, he maintained up to trial a version of events that was inconsistent with the defence he later relied on at the trial. It was held in those circumstances to be open to the Crown to show that the version introduced at the trial had never previously been suggested.

There was a similar sequence of events in the present case.
The appellant had actually made some disjointed observations
concerning the incident to witnesses soon after it occurred. In
the course of cross-examining the appellant at the trial,
counsel for the prosecution put to the appellant that he had
spoken to Ms. Rothenberger and to Mr Michael Carr shortly after
the shooting, without telling either of them he had slipped over
on the grass and had an accident with the gun. The appellant
confirmed this, saying that he "didn't say anything to anybody".
It was then put to him that he had made the story up. He
denied doing so. The right to silence is regarded as protecting
against inferences which may be drawn from the absence of an
explanation given by an accused to persons who are in a position
of authority rather than to persons in general. See Petty, per

Brennan J. at 107, and per Dawson J. at 118; and Parkes v. R.

(1976) 64 Cr.App.R. 25.

On behalf of the appellant at the trial, Mr Parker of counsel correctly assessed this line of questioning as involving an assertion by the Crown of a recent fabrication by the appellant. In re-examination counsel's opening question to the appellant was whether he remembered being questioned to the effect that his defence of accident was a recent fabrication. The appellant said he did. He was then referred by counsel to the occasion of his first appearance in court on the morning after the incident, when Mr Lavery had appeared on his behalf. The appellant said he recalled Mr Lavery telling the court that the appellant had not taken the gun to his wife's place. That was, of course, a critical part of the narrative that the shooting occurred by accident. He was saying that he had not brought the gun with him. In re-examination at the trial Mr Parker also asked him about a document in the form of a plan he had prepared showing where he parked his car and the route he had taken from there to reach his wife's unit. The point being made was that the document referred to the plank he said he had used to negotiate the barbed wire fence. It was a document that was brought into existence in February, well before the trial, which was in August of the same year. The plan was tendered in evidence by Mr Parker to rebut the allegation of recent fabrication. After objection and argument, it was admitted by his Honour and became ex. 29.

The present case is therefore not one in which the appellant in the period immediately following the incident can be thought of as consciously exercising any right of silence, so as to attract the rule making it improper to draw an adverse inference against the appellant from his not having advanced the explanation of accident which he gave in evidence at trial. Indeed the appellant never at any stage claimed to have been relying on the right to remain silent. It does not appear that he was aware of any such right; but, whether he was or not, the fact is that he had not remained silent. Instead, at the trial he claimed to have produced at a much earlier stage explanations or evidence that were consistent with what he was saying at the trial. In doing so he was not resorting to any right to remain silent, but trying to persuade the jury by means of admissible earlier self-serving statements that his defence had always been the same and that he was telling the truth about what happened. It therefore became a question for the jury to determine whether in all the circumstances that was so, or whether, as the Crown was contending, the appellant had fabricated his account of what had happened after the shooting had taken place. It was to this question that his Honour's remarks and very brief reference to the absence of an "early complaint by the accused to the police or others" (underling added) were directed. We do not consider that they give rise to any ground of appeal to which effect can or should be given here.

It is useful to compare our conclusions with the reasoning of the Supreme Court of Wisconsin in State v. Brecht 421 N.W. 2d 96 (1988), which resembles this case in a number of respects both factually and legally. There it was not until trial that the accused put forward the accidental character of the shooting out of which the charge arose. His right to remain silent, and to receive a fair trial, were held not to have been infringed by evidence from prosecution witnesses concerning encounters with the accused soon after the incident in which he failed to mention the shooting. The reason for so ruling was that there was nothing coercive about those encounters or the questioning that took place in the course of them. (cf. Petty per Mason C.J., Deane, Toohey and McHugh JJ. at p.99.2 ("questioned by any person in authority ...). In addition, the Court held that once the accused chose to testify at his trial, cross-examining him about his earlier silence concerning the shooting did not violate his rights (at 103); nor did re-examining a police witness about it after the defence had elicited from him a statement by the accused that there had been "a big mistake", about which he wanted to talk to someone (at 102). In those circumstances prosecution references to accused's silence on his arrest were considered to be "a fair response" to defence questioning, after it had "opened the door" to that re- examination.

Although mainly concerned with the accused's Fifth Amendment rights, the decision in State v. Brecht is relevant to the present appeal because of the fair trial question it raised; and also because, after deciding that some of his rights to silence had been infringed, the Supreme Court went on to conclude that the violation was, beyond a reasonable doubt, a "harmless error" and not such as required the conviction to be reversed. In doing so, Bablitch J., who delivered the judgment of the Court, emphasised the relative infrequency of the forbidden references (there were four comprising less than two pages of a 900 page transcript); the strong circumstantial evidence, including evidence of motive, that the shooting was intentional; and the physical evidence, which included the trajectory of the bullet and the absence of anything that might have tripped the accused, which contradicted his explanation of accident (at 104). By comparison, in the appeal before us, both the evidence of motive and the objective physical evidence against the appellant are even stronger than they were in State v. Brecht.

On all the other grounds of appeal that were argued by the appellant, we agree with what has been said by Dowsett J. in his reasons, which we have had the advantage of reading.

The appeal against conviction should therefore be dismissed. Turning to the question of sentence, we were referred to a series of different cases involving sentences for attempts to kill. They included Ronald Walter Matthew, Mark Hindson, John Hall, Paul Escreet, Arthur James Farrell, and Ethel Rafter. They disclose sentences ranging from imprisonment for 8 to 10 years for an offence of this nature. On that footing, the sentence of 10 years imposed on the appellant for his attempt to kill Christine falls fairly within the limits of the standard range. The only question is whether such a sentence could be considered excessive if account is also taken of the fact that the appellant spent some eight months in custody awaiting trial.

On reflection, we do not think that additional factor is enough to make the sentence excessive, particularly when it is recalled that the sentence of imprisonment for the second offence of common assault committed against Rosina Rovan was made concurrent. It is not clear whether the trial judge thought that a shot or shots had been discharged at her or in her direction. What is clear is that the jury must have accepted that the gun was at least pointed at Rosina after she had seen her daughter shot and the gun reloaded. That being so, the judge would have been justified in imposing an effective sentence of imprisonment of more than 10 years to reflect the overall criminality of the appellant's conduct on the occasion in question.

Several of the comparable sentence cases to which we were referred incorporated recommendations for early release. Without knowing more of the particular circumstances of the offence as well as the personal background of the accused in each of those cases, it is not possible to identify in them a settled pattern of making such a recommendation in the case of the offence of attempting to kill. The appellant has to his credit a past record of hard work, achievement, and good behaviour; but his actions on this occasion were the culmination of a lengthy series of abusive and violent acts or threats that were obviously designed to and did terrorise Christine and her mother. The deterrent factor in sentencing calls for the fullest recognition and emphasis in the case of behaviour like that. We do not think the sentence ought to be reviewed.

We would accordingly dismiss the appeal against conviction,
and refuse the application for leave to appeal against sentence.
THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 281 of 1992

Brisbane

Before

The Chief Justice
Mr Justice McPherson

Mr Justice Dowsett

[Re: The Queen v. Rezk]

T H E Q U E E N

v.

CLAUDE JOSEPH REZK

(Appellant)

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 08/10/1993

The appellant was convicted of one count of attempted murder and one count of unlawful assault and sentenced to terms of imprisonment of 10 years and one year respectively, the sentences to be concurrent. He appeals against both convictions and seeks leave to appeal in respect of both sentences. Although the appellant was represented at his trial, he was unrepresented before us with the almost inevitable consequence that whilst the trial was kept within fairly narrow compass, the appeal was rather more diffuse. The appellant also delivered amended grounds of appeal but was reluctant to abandon any of his earlier grounds, thus further confusing proceedings.

Briefly, the first count related to an incident involving the appellant's estranged wife who gave evidence at the trial under the name, Christine Rovan. She had left him in December, 1990 as a result of his aggression, including abuse and threats.

She gave evidence of his cutting up clothing on one occasion and of excessive consumption of liquor. On 20th December, 1991 as she was walking with her mother from her unit to the front of the unit block, she saw the appellant armed with a shot gun. He was holding the gun under his arm and with both hands. She turned around and he shot her. She initially heard at least two shots. Subsequently, she heard further shots. While she was lying on the ground, she became aware of her husband lying on top of her, shaking her and saying, "I want you to die. Die in my arms."
The other count concerned events alleged to have occurred shortly thereafter. The appellant's mother-in-law, Mrs. Rosina Rovan first saw the appellant just before he allegedly shot his wife. She said that thereafter, he reloaded the gun and held it pointed at her. She ran away.

The appellant's version of events was that he went to his estranged wife's unit after drinking some wine and that he approached the premises from the rear to avoid meeting any visitor she might have. Seeing that she was momentarily outside of the unit, he grasped the opportunity to go into the unit to recover a shot gun which he knew she had there. He had been concerned by its presence in the house on account of his young son, who was also living there. He said that he found the shot gun and also some shells and a knife, put the shells in his jeans pocket, the knife in his waistband and then ran out of the unit. He did not check the weapon for safety.

Outside the unit, he heard his wife call and stopped. He said that at this stage, he had the gun on his right side. He told his wife that she did not need a gun and that she didn't have a licence. He said that he had certain items in the car that she required and asked if they could go inside to, "discuss the matter and solve it". She agreed to their going inside and as he turned to do so, he fell and the gun discharged. It had been raining and the grass was probably wet. He was standing on a grassy slope. He said that he saw his wife lying on the ground, bleeding. He loaded the gun and placed it under his own chin, but she then moved, so he discharged the gun into the air.

He knelt down to attend to his wife and then went to call the emergency number. He denied the incident involving his mother- in-law.
Much of the appellant's complaint about his trial concerns various witnesses or areas of evidence not called or canvassed, allegedly despite instructions to that effect from the appellant to his legal advisers. We heard evidence from Mr. Parker, who was his counsel and from Mr. Lavery, the instructing solicitor.

Mr. Parker was cross-examined by the appellant concerning the former's alleged failure to raise at the trial, evidence of incidents involving the appellant and his family occurring after the alleged offences. Mr. Parker's response was that he had advised against leading such evidence in view of the fact that the principal issue at the trial was whether or not the appellant had an intention to kill. Mr. Parker said that he advised the appellant that it would be unwise to venture into such evidence, given the nature of that issue. The appellant asserted that he instructed Mr. Parker to lead the evidence notwithstanding that advice. Mr. Parker said that the matter was finally left to him by the appellant. Even if I were minded to reject Mr. Parker's account (which I am not, for reasons which appear hereafter), I cannot see how such evidence could have been of any assistance to the appellant.

A second complaint made by the appellant in the course of his cross-examination of Mr. Parker was that he had been denied access to him in the course of the trial. Mr. Parker was clearly of the view that there had been sufficient opportunity to take appropriate instructions. I am satisfied to conclude that such was the case. A perusal of the transcript suggests that counsel was well in control of the issues of which complaint is now made. Mr. Parker saw the appellant prior to the committal proceedings, once whilst he was on remand, and again on the morning of the trial. This was sufficient, given the relatively narrow issues involved in the case. The record of proceedings before us suggests that the appellant was a client of the kind who persists in inundating counsel with pieces of paper upon which are written various thoughts which have occurred to him in the course of the trial. Whilst such clients may be of assistance in some cases, and whilst the thoughts of even the most difficult client can be helpful and should be considered, counsel must regulate the flow of such information as it may otherwise distract him from the principal issues. Perhaps Mr. Parker showed less interest in the appellant's notes than the appellant thought appropriate, but it was not demonstrated that this lack of interest in any way detracted from the proper conduct of the trial.

A further matter of concern was that in the course of the evidence, there was a suggestion that two small cardboard discs had been found in the wound suffered by the appellant's wife. These discs were part of the discharged contents of one or more of the shells. I am in some doubt as to whether the discs were extracted from the wound. The appellant was anxious to have the discs examined scientifically for some reason, but Mr. Parker could see no point in this, and as the appellant's defence was being funded by the Legal Aid Office, he thought it unlikely that funds would be forthcoming. I also can see no possible benefit to the appellant's case from such examination, and I do not think it necessary to take this matter any further. After all, the appellant did not deny the discharge of the weapon or that the complainant was injured as a result.

Associated with the latter question was the question of x-rays of the wound. Dr. Smith, who examined the complainant said that some pellets had been left in the wound. The appellant was anxious to produce the x-rays at the trial to demonstrate his belief that such was not the case, or at least I infer as much from the questions which he asked of Mr. Parker. Again, given the nature of the appellant's defence, I cannot see how this would have assisted. Dr. Smith had testified to having removed a pellet and some wadding material from the complainant's wound. This was no doubt sufficient to lead to the inference that a substantial part of the contents of a cartridge had travelled in her direction. It is difficult to see how the matter could have been improved for the appellant. The doctor gave evidence that the x-ray showed numerous pellets still in place. He also had discerned their presence by physical examination.

Part of the appellant's defence was that the weapon in question discharged as a result of his slipping or falling on the grass. In the course of his cross-examination at the trial, he was shown photographs, one of which displayed three discharged shells lying on the ground. He said that following the conclusion of his cross-examination, he asked his solicitor to have various Crown witnesses recalled because he thought that there was "something wrong" with the photographs. Mr. Parker denied having received such instructions but said that in any event, he would not have complied with them as he could see no reason to ask the Court to depart from the usual course. This was obviously correct. The appellant was proposing nothing more than a fishing expedition.

There were other witnesses not called by the Crown whom the appellant says he wished to have called. These witnesses included Constable Hoffman, Jean Cannon, Lanton and Cain. It was Mr. Parker's considered view that these witnesses did not assist the appellant in any way and he so advised. The advice was accepted. I can see no reason to believe that the appellant's defence was in any way prejudiced by these decisions as to the conduct of the trial. I do not accept that the appellant insisted on their being called contrary to Mr. Parker's advice.

The appellant also complained that Mr. Parker declined to demand scientific examination of the jeans which the appellant was wearing at the relevant time. There were no apparent grass stains on the jeans, causing doubt as to the appellant's claim that he fell or slipped. The appellant hoped that there may have been stains discernible by chemical tests but not visible to the naked eye. This was of only marginal relevance in any event and clearly, a fishing expedition. The presence or absence of such stains would not be conclusive either way. I can see no justification for incurring such expense against the mere possibility that something may be discovered of little more than passing interest in the conduct of the trial.

The question then arises as to whether or not this matter is an appropriate one for the exercise of the proviso notwithstanding the technical defects in the charge. As I have said, the principal issue was the intention with which the appellant discharged the firearm. On the one hand was evidence of alleged objective acts coming principally from the two complainants. On the other was the assertion by the accused that the discharge was accidental and without intention to harm.

Obviously, the appellant's case stands or falls upon the impression formed by the jury of his evidence. Of course he did not have to satisfy them of his innocence, but nonetheless, a

careful evaluation of his evidence was necessary. Unfortunately, the jury was invited to discharge this task by making improper use of the absence of any early complaint of accident and with inappropriate emphasis placed upon the position of the accused person and his interest in the outcome of the trial. Both of these matters were likely to affect adversely the jury's view of his evidence. Given that the only weapon he had was the impression he was able to make upon the jury, it cannot be said that he has had a fair trial. There is no room for the operation of the proviso. The second count is so closely tied up with the first as to demand similar treatment. In the circumstances I would quash both convictions and set aside the respective sentences. I would order a new trial on both counts.

As to the application for leave to appeal against sentence, I am generally in agreement with the observations made in the joint reason of the Chief Justice and Mr. Justice McPherson. If the appeal against conviction is not to be upheld, I would agree that the application should be refused.

Although it is not completely clear, I understand that the appellant was refused legal assistance for this appeal. If so, then I would suggest that it was an unfortunate decision. Quite apart from my view of the merits, I have little doubt that the appeal on all the grounds raised by the appellant could have been disposed of very quickly by competent counsel without abandoning any of them. Instead, three judges of this Court were forced to sit for four days and then to take further time sifting the evidence. Any overall assessment of the use of resources would indicate that public money was wasted by denying this man access to legal aid.