R v Sambo

[2003] QCA 433

SUPREME COURT OF QUEENSLAND

CITATION:	R v Sambo [2003] QCA 433
PARTIES:	R v SAMBO, Phillip Peter Lawrence (appellant)
FILE NO/S:	CA No 227 of 2003 SC No 399 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING  COURT:	Supreme Court at Brisbane
DELIVERED ON:	3 October 2003
DELIVERED AT:	Brisbane
HEARING DATE:	22 September 2003
JUDGES:	Davies JA and Jones and Holmes JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES - CROSS-EXAMINATION - DISALLOWANCE OF QUESTIONS - where appellant and co-accused convicted of murder - where two witnesses gave evidence at trial as to recent violent conduct of co-accused - where trial judge disallowed cross-examination regarding violent conduct of co-accused shortly before murder - where appellant submitted that excluded evidence could have increased possibility of appellant's acquittal - whether trial judge erred in exercise of discretion
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - POWER TO DISMISS APPEAL WHERE NO MISCARRIAGE OF JUSTICE - GENERAL MATTERS - where evidence ought to have been allowed - where strong case against appellant - whether no substantial miscarriage of justice occurred by reason of rejection of evidence
Criminal Code 1899 (Qld), s 668E(1A) Festa v R (2001) 208 CLR 593, applied
COUNSEL:	P J Callaghan for appellant M J Copley for respondent
SOLICITORS:	Legal Aid Queensland for appellant Director of Public Prosecutions (Queensland) for respondent

1. DAVIES JA: After a trial lasting 11 days the appellant was convicted of the murder of Michael James Needham. At the same time Christopher Bradley Martin was also convicted of the same murder which occurred on 3 January 2001. The appellant appeals against his conviction. The sole ground of appeal is that the learned trial judge erred in not permitting cross-examination of crown witnesses regarding evidence of violent conduct by Martin shortly before the murder.

2. At the time of his death the deceased Michael Needham was living in the grounds of Central State School at Spring Hill. He had recently been a resident of the Pindari Men's Hostel. He had been obliged to vacate because of unpaid rental. At that time the appellant was a resident of the hostel. Martin had also been a resident of the hostel but had been evicted on New Year's Eve 2000 for violent behaviour towards other residents. However that evidence was not before the jury and is part of the evidence the exclusion of which is the subject of the appeal.

3. On the day in question, shortly after 1.30 pm, the appellant in company of a man Klinge, also a resident of the hostel, went to the school grounds where Needham was residing. They were carrying two casks of Moselle purchased by Klinge. They all commenced drinking. The following description of what took place thereafter comes from the appellant's statement to the police which was the main basis of his conviction. Neither the appellant nor Martin gave evidence.

4. The appellant said that, at some unstated time that afternoon or night, but before Martin arrived, when he returned from relieving himself behind a tree Klinge and Needham were fighting. He saw Klinge strike Needham on the face with his fist breaking Needham's nose. The fight concluded and the parties appeared to be reconciled. They were joined by Martin at about 10.00 pm.

5. There was a further dispute between Klinge and Needham who then also started to abuse Martin. The appellant saw Klinge bang Needham's head against the side of a vertical post four or five times and then drop him in a way in which Needham's head hit a step. Needham remained quiet for about 20 minutes. He then crawled back and began abusing the other three.

6. When the appellant was away again relieving himself he heard Needham swearing again. Needham said something to Martin which according to the appellant caused Martin to go "right off his head". Martin "went into" Needham and, according to Sambo, said to him and to Klinge "get stuck in boys because you're all accomplices. You're all here. If you don't you're not gunna be around much longer". He also said "I'm gunna make it bloody - don't you ever doubt me" and "help me finish him off" which the appellant understood to mean "end it … till he's no more … dead". Martin was kicking Needham, including to the head. The appellant said he gave Needham two swift kicks in the ribs and one further kick in the backside.

7. Martin then appeared to stab Needham several times and then used a block of wood to strike him a number of times. He also continued to kick him including to the face.

8. It does not appear that the stab wounds significantly contributed to his death. He died from head injuries. Dr Naylor, who examined his body, said that there had been a number of impacts to his head and that considerable force had been used.

9. Martin also gave a statement to the police in which he denied assaulting the deceased at all. He said it was the appellant who killed the deceased and that the appellant had admitted stabbing the deceased in the neck.

10. The appellant's counsel concedes that, on the appellant's statement, there was a strong case against him. There was also evidence of Needham's blood staining items of clothing worn by the appellant; his cap, shirt, socks and both shoes.

11. The Crown case alleged that the appellant had killed Needham; that is, that he was a primary offender. Alternatively it alleged that he was liable under s 7 or s 8 of the Criminal Code. It followed that the only basis upon which the appellant could have been acquitted was that Martin had been the primary offender and that there was a reasonable doubt as to the appellant's liability under s 7 and under s 8.

12. The evidence which the appellant submits was wrongly excluded by the learned trial judge was evidence from two witnesses, both of whom gave evidence on other matters at the trial, as to recent violent conduct by Martin. It was submitted that this was relevant to prove, in the appellant's case, the greater likelihood that Martin was the primary offender thereby increasing the possibility of the appellant's acquittal because it would have left him with the possibility of liability only as an aider or pursuant to s 8.

13. A statement to the investigating police by Mitchell Ambrose-Pearce, who had been employed as a doorman at the Pindari Hostel, had been furnished to the appellant. It disclosed that amongst the evidence which Mr Ambrose-Pearce was capable of giving was evidence that Martin had been evicted from the hostel on 31 December 2000 for "violent behaviour towards other residents"; and that he had returned to the hostel on 2 January 2001 and when refused admission had screamed out to Mr Ambrose-Pearce "You don't know who you are fucking with. I've killed people for less. I'll gouge your eye out and eat it". At the committal hearing Mr Ambrose- Pearce had testified that he did not believe Martin was drunk or affected by drugs when he made these threats.

14. The other witness was Gregory John Kingdom. He said in his statement that Martin injured his left ankle a few weeks before the murder and had started, to his knowledge, taking pain killers and Valium to ease his pain. From this time, Mr Kingdom said, Martin changed. He became aggressive and was always "aggro". He would get angry towards other people. One day he saw Martin looking angry and said to him "What’s the matter?". Martin said "The pills are starting to kick in and I am getting on edge". Kingdom told him to settle down. Later that day he was told that a fight had occurred between Martin and another man and that Martin had threatened to rip out a Welfare Officer's eye. A few days after this, Martin told Kingdom that he had got into a fight with a man known as Neil, had ripped Neil's cheek, poked out half his eye and kicked him in the head a couple of times. He said that Neil was in a coma in hospital and he was worried that he had hurt him.

15. None of this evidence from Ambrose-Pearce or Kingdom was adduced by the Crown Prosecutor. When the appellant's counsel sought to cross-examine on it, he was prevented from doing so by the learned trial judge. Relevantly her Honour said:

    " So far as the statements of Pindari residents are concerned, one is
    by Mr Kingdom, who talks about what he has heard about
    Mr Martin, which is irrelevant, and opinions he has which are also
    irrelevant, and so there is nothing in that.
    The only matter which I have more closely considered is a
    statement made by Mr Ambrose-Pearce, who was a doorman at
    Pindari, that on the 2nd of January Martin lost his temper and
    screamed abuse at and made threats to him on the 2nd of January
    when he was denied accommodation at Pindari. That evidence, of
    itself, does not make it more likely that Mr Martin would have
    murdered a homeless man on the following evening. The only
    matter it can go to, in Sambo's case, is whether or not he threatened
    Sambo and therefore Sambo was frightened and took part in the
    murder as a party, but, to that extent, it makes Sambo's story of
    partaking in the murder more likely and it would not assist his
    defence. While it might have some slight probative value, it is
    almost entirely irrelevant and is highly prejudicial to Martin's case
    and, therefore, in my opinion, should in any event be excluded."

16. Her Honour was not entirely correct in her recollection of Mr Kingdom's statement. It is true that he was simply told about a fight between the man called Kev and Martin and that he had threatened to rip out the Welfare Officer's eye. But he also spoke of Martin's recounting his assault on the man Neil and of his own observations of Martin's increased aggression in the period immediately before the murder.

17. As to the first of these, what Martin told Kingdom would not be relevant in the appellant's case to prove the truth of what Martin said, even assuming that to be relevant. It would plainly have been hearsay. Mr Callaghan, for the appellant, nevertheless submitted that it was admissible as original evidence. I do not think it was. If it was untrue it would prove only that Martin boasted of being involved in a fight in which he behaved violently, something which was plainly irrelevant.

18. As to the second, Kingdom expressed this opinion without giving examples. His evidence about this would be arguably relevant only if, from examples of his conduct which Kingdom could give, it would have been open to the jury to infer a likelihood that Martin would behave violently without undue provocation. Without evidence of this I do not think that Mr Kingdom's opinion evidence on this question would have been relevant. In my opinion therefore her Honour was correct in preventing cross-examination of Kingdom about any of the above matters.

19. Mr Ambrose-Pearce's statement that Martin had been evicted from the hostel for violent behaviour towards other residents does not, on its face, appear to be based on personal knowledge. Without more, it was hearsay and therefore inadmissible. His evidence of what Martin said to him, however was original evidence of violent conduct by Martin, without provocation, on the evening before the murder. Given its proximity in time to the murder it was, in my opinion evidence showing a propensity on the night of the murder to act violently without provocation.

20. In my opinion this evidence, if admitted, would have substantially increased the probability that it was Martin, and therefore not the appellant, who was the primary offender.[1] Indeed the appellant's statements to police that Martin went "right off his head" and "went into" Needham, that he continued to viciously attack Needham ("he just kept going off his brain") and that he threatened the appellant and Klinge, bear a strikingly similarity to Ambrose-Pearce's statement describing Martin's sudden and unprovoked threat of vicious assault upon him.

    [1]            Compare O'Leary v The King (1946) 73 CLR 566; contrast Priestley and Mason (1985) 19 ACrimR 388.

21. If this evidence had been tendered by the Crown as part of its case against Martin the question would have been whether it would have been of sufficient strength in the Crown case to outweigh the prejudice which it undoubtedly would have caused Martin.[2] However where, as in the present case, the evidence was sought to be tendered by Sambo in his defence to negate an inference which the Crown sought that he was the primary offender, the possible prejudice to Martin assumes less importance though that possibility cannot be entirely ignored. In my opinion the evidence was of sufficient relevance to the question, in the Crown case against the appellant, whether Martin, not the appellant, was the primary offender as to justify its admission.

    [2]            Harriman v The Queen (1989) 167 CLR 590 at 594, 598; see also BRS v The Queen (1997) 191 CLR 275, Gipp v The Queen (1998) 194 CLR 106.

22. The question then is whether this Court is of opinion that no substantial miscarriage of justice has actually occurred by reason of the rejection of this evidence: Criminal Code, s 668E(1A). I have already mentioned the concession by the appellant's counsel that, on his own statement, there was a strong case against the appellant. It is significant that the strong case against him, on his own statement, was one based on s 7 (aiding in the commission of the offence) or s 8 of the Criminal Code.

23. The case against the appellant under each of these sections was, in my opinion, an overwhelming one on his own statement, supported as it was by the evidence of blood on the appellant's clothes. He knew that the viciousness of Martin's attack was such that Needham was likely to be killed. And he was informed by Martin that he was an accomplice in what was being done. With that knowledge he kicked Needham several times thereby aiding or encouraging Martin in his more vicious attack.

24. Mr Callaghan relied on a passage in the appellant's statement that, by the time Martin was hitting Needham with the block of wood, the appellant was walking away. However by then he had, by his conduct, offered encouragement to Martin in what the latter went on to do. I do not think that, even if he walked away at that stage, it in any way diminished his liability under s 7.

25. In summary, the effect of the admission of Ambrose-Pearce's evidence would have been no more than to increase the likelihood that the appellant would have been found guilty on the basis of aiding in the commission of the offence rather than as having been the primary offender. It would not have diminished the strength of the Crown case on the former basis on which his conviction was, in my opinion, inevitable.[3] For that reason, in my opinion, the appeal must be dismissed.

    [3]            Festa v The Queen (2001) 208 CLR 593.

26. JONES J: I agree with the reasons for judgment of Davies JA and with the order that he proposes.

27. HOLMES J: I have had the advantage of reading the judgment of Davies JA. The question of the relevance of the evidence sought to be adduced as to Martin’s propensity to unprovoked violent conduct is really one of degree, and it is clear that minds may differ on the point. I am not convinced that the learned trial judge was wrong in this case in refusing to permit cross-examination designed to elicit from Mr Ambrose-Pearce that the appellant had made to him, some 32 hours earlier, the threat described in the judgment of Davies JA. There is, I think, a significant difference between making extravagant and improbable threats and actually battering someone to death. However, even if I were to take a contrary view, I would reach the same conclusion that Davies JA has reached: that there was such a strong case against the appellant as an aider that no substantial miscarriage of justice has occurred in his conviction. I agree with his Honour therefore that the appeal should be dismissed.