R v Stevens

[2001] NSWCCA 330

CITATION:	R v Stevens [2001] NSWCCA 330
FILE NUMBER(S):	CCA 60120/99
HEARING DATE(S):	26 June 2001 and 16 November 2001
JUDGMENT DATE:	16 November 2001
PARTIES :	Russell John Stevens - Appellant Crown - Respondent
JUDGMENT OF:	Spigelman CJ at 1 and 82; Simpson J at 2; Smart AJ at 83

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/1050
LOWER COURT JUDICIAL OFFICER :	Tupman DCJ

COUNSEL :	26 June 2001 R D Ellis - Crown Appellant in person 16 November 2001 R A Hulme - Crown H Dhanji - Appellant
SOLICITORS:	S E O'Connor - Crown S E O'Connor - Crown Glenn K Walsh - Appellant
CATCHWORDS:	Criminal law - appeal aganst conviction and severity of sentence - maliciously inflicting grievous bodily harm - whether conviction unreasonable having regard ot the evidence - whether witness "coached".
LEGISLATION CITED:	Criminal Procedure Act 1986 Criminal Appeal Act 1912 Evidence Act 1995
CASES CITED:	Stanoevski v the Queen [2001] HCA 4; 202 CLR 115
DECISION:	Appeal against conviction dismissed; leave to appeal against sentence granted; appeal dismissed.

-IN THE SUPREME COURT

60120/99
SPIGELMAN CJ
SIMPSON J
SMART AJ


16 November 2001

REGINA v Russell John STEVENS

Judgment

1 SPIGELMAN CJ: I will ask Justice Simpson to deliver the first judgment.

2 SIMPSON J: On 10 February 1999, following a trial by jury in the District Court, the appellant was convicted on a charge of maliciously inflicting grievous bodily harm. On 18 March 1999 Judge Tupman sentenced the appellant for that offence, and also for an offence of supplying a prohibited drug (25.53 grams of methylamphetamine), to which the appellant had earlier pleaded guilty. The two offences were quite unrelated.

3 On the drug charge, which carries a maximum penalty of fifteen years’ imprisonment and/or a fine of $220,000, Judge Tupman imposed a fixed term of nine months’ imprisonment to commence on 3 February 1999. In doing so, she took into account, pursuant to s 21 of the Criminal Procedure Act 1986, a charge of possession of a prohibited drug (8.1 grams of cannabis leaf).

4 For the offence of maliciously inflicting grievous bodily harm, which carries a maximum penalty of seven years’ imprisonment, Judge Tupman sentenced the appellant to a cumulative term of penal servitude for five years, divided into equal minimum and additional terms of two and a half years.

5 The appellant appeals against the conviction and seeks leave to appeal against the sentences. The appeal was listed for hearing on 26 June of this year. On that day, the appellant appeared unrepresented in this Court. He provided written grounds of appeal, which are set out below.

6 The trial began on 3 February 1999 and concluded with the jury verdict of guilty on 10 February 1999. For reasons that cannot satisfactorily be explained, the transcription tapes of the evidence of virtually the whole of the prosecution case and much of the defence case cannot be found. What survives is a tape recording of part of the evidence given by a medical practitioner in the Crown case, part of the cross-examination of the appellant's de facto wife, and the whole of the evidence given by her mother. Evidence was also given in the Crown case by the alleged victim, his wife, one other woman and two other men; and, in the defence case, by the appellant.

7 The Crown case (in the circumstances, best discerned from the summing up, to which no objection was taken at the trial or on appeal) was this. On the evening of 21 August 1996 the appellant went with his de facto wife (Catherine Elizabeth Stevenson) and her mother (Kathleen Alice Stevenson) to the St Marys Leagues Club, where they remained for some time.

8 The appellant said that he consumed only a small amount of alcohol and there appears to have been nothing in the Crown case to contradict this. The appellant then drove away, with the two women as passengers. It appears to have also been part of the Crown case that there was at least one other person, a male, in the car. Just outside the exit of the club, on the highway, he overtook (on the wrong side of the road) a Commodore being driven by the wife of the alleged victim, a Mr John Dobbin, and in which Mr Dobbin was a passenger.

9 Mr Dobbin described the manner in which the appellant drove his car as "menacing". He said that the appellant prevented Mrs Dobbin from overtaking, alternately accelerating and slowing his vehicle. Eventually both cars were required to stop at traffic control lights, the appellant's car a couple of lengths in front of Mr Dobbin's car.

10 At that point, according to Mr Dobbin, three men approached him, where he was sitting in the passenger side of his vehicle. One or more of the men pulled Mr Dobbin from his seat and dragged him towards the median strip. Two of the men began hitting, kicking and punching Mr Dobbin. One of them used a clublock for the purpose. It seems, from the summary contained in the judge’s directions to the jury, that it was Mr Dobbin who first produced the clublock, in response to the threat he perceived from the approach of the men. The men obtained possession of the clublock and the appellant used it to assault Mr Dobbin.

11 Evidence in the prosecution case as to these events was given by Mr Dobbin and his wife, and two men, Mr Fawcett and Mr Gamble, who observed part of the events from Mr Gamble's nearby home.

12 The appellant gave evidence in the trial. The thrust of his evidence, which was essentially supported by his de facto wife and her mother, was that it was Mr Dobbin who initiated the aggression by approaching the appellant's car while it was stopped at the lights, and by using the clublock to assault the appellant. A fight then took place in which the appellant acted only in self defence. He denied ever having used the clublock and denied that there were any other men in his car.

13 In this latter aspect, he was supported by the evidence of his de facto wife and her mother. The appellant formally admitted that the injuries sustained by Mr Dobbin amounted to grievous bodily harm. There was, therefore, a relatively narrow factual dispute to be resolved by the jury. The question of who initiated the violence, and whether the appellant acted in self defence, was of central importance.

14 The appellant's original written grounds of appeal are as follows:

"1. The trial was unfair because witnesses were coached to perfection during periods where the trial judge sent the jury out. As such, the jury were not privy to vital visual and procedural evidence that may have led them to form different opinions than the one they arrived at.

2. In accordance with the above, undue weight was given to witnesses' evidence by the jury. Consequently, the jury were unable to arrive at a fair verdict based on them not having seen and heard all that occurred in the courtroom pertaining to the witnesses.

3. In summing up the judge failed to adequately direct the jury that witnesses had been permitted to study and revise their evidence prior to the jury being admitted into the courtroom. A direction according to the above may have left reasonable doubt in the jury's mind as to the weight they should or should not place on evidence given.

4. In accordance with points 1-3 above, the jury placed undue credibility on witnesses' evidence, which has resulted in a miscarriage of justice. As a matter of public interest , all juries should be made aware of any circumstances where a witness has been given time to refresh, revise or even plan strategies for the ensuing delivery of their testimony. Justice and Equity dictate the above. None of which was applied in my case." (Emphasis in original)

15 On the initial hearing of the appeal, the appellant raised additional matters which could most accurately be taken as raising a further ground to the effect that the conviction was, having regard to the evidence, unreasonable. He asserted that there was evidence that he had not been identified in an identification parade; that descriptions of the offender given by witnesses of the person who committed the offence did not match his own personal characteristics; that there were inconsistencies between the evidence of Mr Dobbin and his wife as to the number of men, besides himself, who were present; that Mrs Dobbin was unable to describe how her husband had left the car.

16 Another matter put by the appellant - that is, that he admitted having been present and had even handed police a piece of the clublock - somewhat, but not completely, diminishes the value of the complaints concerning the description of him and lack of identification. In any event, the appellant's own account given in the trial acknowledged his presence. Identification was never an issue. In my opinion, those complaints that raise identification are without substance.

17 Where the ground of appeal is that a verdict is, in the old language, unsafe and unsatisfactory, or, in the new language, unreasonable having regard to the evidence, the obligation of this Court is to make its own assessment of the evidence.

18 Having regard to the additional ground of appeal, and to the absence of transcript, the Chief Justice, pursuant to s 11 of the Criminal Appeal Act 1912, requested Judge Tupman to furnish to the Registrar of the Court of Criminal Appeal her notes of the trial and a report giving her opinion: (a) upon the case; and in particular (b) the extent to which any discrepancy appeared to her to be material; (c) the relative credibility of the various witnesses; (d) the extent to, and the circumstances in, which Crown witnesses were, during the trial, permitted or encouraged to refresh their memories from statements they had made.

19 Judge Tupman was able to provide extensive notes of the evidence, which she had recorded on computer. They cover sixty closely typed pages and, in fact, amount almost to a transcript, or so it seems. This substantially overcomes the difficulties created by the loss of the tape recordings. The notes show that a jury was empanelled on 3 February 1999, but the case was not opened until the following day, 4 February.

20 Thereafter, Senior Constable Peter Hartley, Selwyn David Gamble, Dr Stapleton, Mathew James Fawcett, Linda Dobbin (the complainant's wife), Naomi Walton, Senior Constable Frost and Mr Dobbin gave evidence in the Crown case. The appellant gave evidence and called Catherine Elizabeth Stevenson (his de facto wife) and Kathleen Stevenson (his de facto wife's mother).

21 Judge Tupman in her report has conveniently summarised, from her notes, the evidence of these witnesses. I have also had recourse, where necessary, to the notes taken by her on the computer during the course of the trial. According to that summary, Mr Dobbin gave evidence of an encounter with another car, a Fairlane, which was being driven by the appellant. When both cars were forced to stop at traffic lights, two men approached his vehicle; one of them pulled open the passenger door and grabbed Mr Dobbin by the jacket. Mr Dobbin reached down and picked up the clublock and used it to hit the man in the chest. The man then dragged Mr Dobbin from the car. Mr Dobbin continued to hit him once or twice with the clublock, which came apart in two pieces.

22 The other man then picked up a piece of the clublock that had fallen to the ground and hit Mr Dobbin over the head with it. He said he was hit several times with the clublock and was dragged across the concrete median strip, where he was repeatedly kicked and hit with the clublock. He said the first time he was hit was by the other man, but on every other occasion it was by the driver of the Fairlane.

23 The appellant was legally represented at the trial by Mr Sandilands, an experienced solicitor employed in the Legal Aid Commission. He cross-examined Mr Dobbin. Judge Tupman's notes do not indicate any cross-examination suggesting any inconsistency between the account given by Mr Dobbin in evidence and that given by him in statements made for the purpose of the proceedings.

24 Mr Dobbin's wife gave evidence that was substantially consistent with his. There was, however, one significant discrepancy: her recollection was that three men approached the car. Mr Dobbin had only ever described two men. The appellant has sought to make something out of the fact that she did not see Mr Dobbin get out of the car and did not know how he did so, suggesting that this reflected on her credibility.

25 Evidence broadly corroborative of the Dobbins' evidence was given by two uninvolved observers. Selwyn Gamble lived in a house overlooking the intersection where the altercation occurred. A friend, Mathew Fawcett, was also present. Mr Gamble's attention was attracted by yelling and screaming and he went to his window to investigate. He saw a woman and three men. They were standing in front of a Commodore.

26 Mr Gamble walked onto his verandah for closer observation. He said the three men appeared to be fighting and one was being punched or, at least, pushed or shoved. Towards the end of the incident he went inside to ring the police. At about this time he saw a clublock. It was then intact. Shortly after he saw that the clublock had separated into two pieces and that two of the men had a piece each. One was shouting and waving the clublock around. He then saw two men jump into a car and drive away.

27 The Crown made an application under s 38 of the Evidence Act 1995 for leave to question Mr Gamble as through cross-examining. Leave was granted. Subsequently a similar application was made in respect of Mr Fawcett, with the same result. Judge Tupman said in her report that, although she would have given extempore reasons for her decision, she could not, at the time of writing her report, recall what they were. For obvious reasons, they do not form part of the notes that she has provided.

28 Mr Gamble was then cross-examined by the Crown Prosecutor on the contents of a statement he had made to police shortly after the events. In the statement he said that he saw the man who had been dragged away from the car being kicked by one of the other two men, and being hit with a clublock by the other. In cross-examination, Mr Gamble rejected the proposition that it was Mr Dobbin who had approached the appellant's car (the Fairlane) rather than the other way around.

29 Mr Fawcett's evidence was also largely corroborative of Mr Dobbin's evidence. However, it seems unlikely that Mr Fawcett made any observation of the commencement of the altercation and, indeed, it seems unlikely that Mr Gamble saw its commencement. He described seeing two cars, one a Commodore parked in the street, and three people, all men, who were in a group and seemed to be having an argument. He then saw a woman alight from the passenger's side of the Commodore. One of the men was being "thrown around" by the other two. The two men had possession of a club lock but he didn't see how they came to have it. They used it to strike the third man around the body. They also kicked him.

30 Evidence was given in the Crown case by Ms Naomi Walton, who was acquainted with the appellant and who was walking along the highway on her way home when she saw a car she recognised as belonging to the appellant. She saw two men rolling on the ground, one of whom held a metal object aloft, but she was unable to say who was holding the object because of an obstruction to her view. She paid no further attention at the time. The following day she saw the appellant at his home and saw that he was bruised. She said that the appellant told her that when he had stopped his car at the intersection a second car had stopped behind him and a person had alighted and approached him with an iron bar. Leave was given, in a limited way, to the Crown to cross examine Ms Walton, but neither the notes nor the summary of evidence suggest that this cross examination threw any further light upon the issues.

31 That was the conclusion of the Crown case.

32 The appellant in his evidence maintained that Mr Dobbin was the aggressor and had hit him at least three times with the club lock. He asserted that it was only after this and in self defence, that he hit Mr Dobbin. He denied ever having had possession of the club lock. He said that an unidentified person entered the fray, pulled him off Mr Dobbin, and assaulted Mr Dobbin. He denied that any third person had been in his car and taken part in an assault of Mr Dobbin. This account was corroborated by Ms Catherine Stevenson, and, to a lesser extent, by Mrs Kathleen Stevenson. However, Judge Tupman in her report expressly observed that her memory of the demeanour of Miss Catherine Stevenson "made her not particularly compelling". Her Honour noted that Miss Stevenson's evidence was given over two days, or with an adjournment at some point in her evidence, and that, at one stage at least, she gave the appearance of a person affected by some form of substance. Judge Tupman was of the view that she was more probably than not under the influence of some sort of drug.

33 In relation to the specific questions asked of Judge Tupman, she expressed the view that discrepancies between evidence given by the Crown witnesses and that given by the accused and his witnesses were very significant. These discrepancies involved the issues of who had instigated the fight, at which car it took place, who had the club lock, the number of people involved and many other issues relevant to the Crown case. She considered that the resolution of these questions hinged upon the jury's acceptance of the reliability of the accused and his two female witnesses. That opinion is borne out by the summary of the evidence I have given above. The trial really involved a clear factual contest between the competing versions. It is, therefore, to be observed that in the summing up Judge Tupman correctly directed the jury that the onus of proof lay upon the Crown and the jury's task was not to determine which of two competing versions of events it preferred.

34 Judge Tupman had no clear recollection of her impressions of the credibility of the witnesses other than Ms Catherine Stevenson (which have been outlined above) nor of the appellant's assertion that witnesses had been permitted to refresh their memories from statements.

35 Finally, Judge Tupman said that as far as she could recall she had regarded the verdict as appropriate and available on the evidence. She considered that, in addition to other factors, the version of events contended for by the appellant was undermined by the medical evidence as to the number and severity of injuries suffered by Mr Dobbin.

36 I have attempted to make an independent evaluation of this assessment by Judge Tupman. Given the difficulties, it nevertheless appears to me to be in accordance with her quite extensive notes of the evidence of each witness. That is, an assessment of the evidence, both Crown and defence, leaves no sense of disquiet about the verdict of guilty. I would, accordingly, reject the ground of appeal that asserts that the verdict could not be sustained by the evidence. It was open to the jury to be satisfied beyond reasonable doubt that the altercation had taken place as contended in the Crown case.

37 The four grounds of appeal originally pleaded and set out above all concern one matter: the appellant's assertion that witnesses "were coached to perfection" in the jury's absence. There is no evidence of any such coaching and, even taking into account the difficulties confronting the appellant by reason of the absence of transcript, I am satisfied that these grounds are based upon a misunderstanding of criminal trial procedure. It is not uncommon for witnesses to be permitted to refresh their recollections from statements, whether this occurs in or outside the court. There is no impropriety in the use of statements for this purpose. This falls far short of "coaching". It maybe that what the appellant is complaining of is the use of statements by two witnesses after the Crown had made an application under s 38 of the Evidence Act. This was, in each case, a perfectly proper application to make and was completely above board. While I can understand that the appellant might have felt that that course gave the prosecution an unfair advantage, I am of the view that that perception is a result of a lack of legal training. There was nothing untoward about what took place. I would, therefore, reject each of the grounds of appeal based upon the proposition that witnesses were coached. On the resumption of the hearing of the appeal the appellant was legally represented. Counsel then appearing challenged the leave granted by Judge Tupman under s 38 of the Evidence Act to permit two witnesses, Gamble and Fawcett, to be cross examined. In this respect exactly what happened can be discerned from the notes Judge Tupman has furnished.

38 Mr Gamble was called to give evidence and he gave evidence that covers about two and a half closely typed pages. Towards the end of that process he gave an answer that he couldn't remember and he was shown a photocopy of a statement that he made to police. At that point Judge Tupman's notes record that an application was made and this obviously was an application under s 38 for leave to cross examine.

39 The notes then refer to a series of paragraphs and contain a very short summary of what may be taken to be contained in those paragraphs. It is reasonable to infer that those paragraphs are references to the statement made by Mr Gamble, which is also before this court as part of the police brief which the court has in the circumstances of this case, received.

40 A short summary of what those references show and reference back to the notes of the evidence given by Mr Gamble shows that there were some discrepancies between what was contained in the statement and what he said in his evidence.

41 Further light is cast upon this in the affidavit evidence, particularly that of Miss Taylor, the solicitor who instructed the Crown Prosecutor at the trial, who said that a conference had been held with both Mr Gamble and Mr Fawcett. The affidavit does not identify when that conference was conducted but it does show that both witnesses had said in conference that they had some difficulty in recollection but when shown these statements they agreed that the statements appeared to be the statements that they had made at an earlier stage, and it may be presumed when their recollections were fresher.

42 As I have said, when Mr Gamble gave evidence the evidence he gave was in some respects not in accordance with that statement. It was that that gave rise to the application under s 38.

43 Section 38 (1) is relevantly in the following terms:

38. Unfavourable witnesses

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:

(a) evidence given by the witness that is unfavourable to the party, or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or

(c) whether the witness has, at any time, made a prior inconsistent statement


The particular criticism that was made of the leave granted under s 38 relied upon the decision of the High Court in Stanoevski v The Queen [2001] HCA 4; 202 CLR 115

44 In that case the High Court drew attention to the provisions of s 192(2) of the Evidence Act, specifying certain matters that must be taken into account when a court is asked to give any “leave permission or direction” under the Evidence Act. Leave under s 38 to cross-examine a witness is subject to s 192(2).

No reasons for the s 38 decision have survived.

45 Mr Sandilands, the solicitor who appeared in the trial, has furnished an affidavit setting out his recollection of what occurred. He had some better than normal recall because this was his first trial after returning to work from long service leave.

46 As to the s 38 decision, he had only scant notes because he appeared as a solicitor advocate without an assisting solicitor. He recalled opposing the application but not the nature of the argument that he advanced. However, his practice, he deposed, was to record in note form any statutory provisions that were mentioned either in the course of argument or in the reasons for decision.

47 His notes indicated to him that he referred to sections 135 and 137 of the Evidence Act and that after the decision he unsuccessfully sought a limitation on the use of the evidence under s 136.

48 Significantly there was no mention in his notes of s 192 from which he had adduced that the section was not raised in argument or in the reasons given by the trial judge and it was for that reason that the appellant had recourse to the decision in Stanoevski v The Queen (supra).

49 The basis on which the applications were made is not at all clear on the unsatisfactory state of the evidence now available. Having regard to Mr Sandilands' affidavit it may safely be inferred that express mention was not made of s 192 either in the argument or in the judgment.

50 Section 192 is in the following terms:

192. Leave, permission or direction may be given on terms

(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and
(b) the extent to which to do so would be unfair to a party or to a witness, and
(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and
(d) the nature of the proceeding, and
(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

51 In Stanoevski the High Court held, as I understand the decision, that the terms of s 192 are to be given full effect in any decision in which leave, permission or directions may be given during the course of the trial. Subsection 2 sets out (non exhaustively) five matters to which a judge is obliged to take into account in making such a decision.

52 Stanoevski does not in my opinion require a ritual incantation of each of the five considerations listed in subs 2. What it requires is that such of those matters, as well as other matters, be raised for consideration as a relevant to the particular application, be considered and taken into account. What distinguishes Stanoevski from many other cases is that the majority in the High Court took the view that if certain of the matters listed in s192 (2) had been taken into account and given due consideration a different result may well have eventuated. In other words, what the High Court held was that there was real substance in the particular application of s 192(2) in that case. What Stanoevski does not hold is that failure to mention the section, or any of the matters listed in sub s (2) necessarily constitute error. Failure to mention either the subsection globally or the individual considerations, provides the foundation for a finding of error. But the finding may only be made if it is also shown that one or more of those conditions was actually material to the decision.

53 That means that it is necessary to ask which, if any, of those considerations were here truly material to the two s 38 decisions. Once again the capacity to do that is impeded to some extent by the absence of transcript but I do not think the task is impossible. Miscarriage in the exercise of discretion is not established by the mere failure to refer to a relevant statutory provision. For an appellant to succeed it is, in my opinion, necessary also to establish that the statutory provision was in reality material to the exercise of discretion that it at least potentially bore in a real sense on a decision to be made.

54 Nothing is here identified as material in that sense. Looking through the five considerations listed in s 192(2), it can be seen that the failure to mention the section or the considerations did not affect, and could not have affected, the decisions.

55 It was accepted there was no real impact or potential impact on the length of the trial: (sub para (a)); the evidence was important to the Crown case: (sub para (c)); the nature of the proceedings (a criminal trial) was so obvious it does not need to be stated (sub para (d)); there was no suggestion that the power of the court to adjourn or make any other order or directions (sub para (e)) was material.

56 That leaves only subpara 2(b) - the question of the extent to which to grant the leave would be unfair to a party or witness.

57 Although the issues are not identical, general questions of unfairness were raised for consideration by Mr Sandilands' reference to sections 135 and 137.

58 True it is that the phrasing of the sub paragraph is slightly different and what was required under s 192 was consideration of the extent to which to grant the leave would be unfair to a party or to a witness. There is nothing pointed to here, which, in my opinion, suggests that any unfairness to the appellant would or could have been caused by granting the leave Judge Tupman did.

59 In saying that I am conscious that counsel for the appellant referred to a particular piece of evidence that was elicited in cross examination concerning something said to have been done by Mrs Kathleen Stevenson which would have suggested that she was attempting to cover the number plate of the Fairlane.

60 I do not think that this caused or had potential at that stage to cause any real unfairness but in any case it is a question of the admissibility of the evidence or whether that particular piece of evidence should have been excluded under s 135 or 137.

61 Counsel for the appellant also directed attention to subsection (1) of section 192 arguing that if consideration had been given to the section there may well have been some limitation on or terms imposed in relation to the leave that was given. And once again reliance was placed upon the evidence suggesting that Mrs Stevenson had attempted to cover up the number plate and thereby showing some consciousness of wrong doing.

62 I am not satisfied that that evidence did, or, looking at the material as the trial Judge had to look at it at the time of the argument, had potential to cause any unfairness to the appellant such as contemplated by s 192(2)(b) and I am not satisfied that it would have required that any terms be imposed or limitation made on the use that could have been made of the evidence.

63 I am, therefore, satisfied that there was no miscarriage of justice in the grant of leave to cross-examine the two witnesses.

64 I should add that during the course of argument I made reference to s 32 of the Evidence Act but I am satisfied that if that section had been used either as a preliminary or alternative to s 38 there would have been no different result because it would have permitted the statements of the two witnesses to have been read and that is in effect what was put before the jury, although through cross-examination rather than having statements read.

65 The next ground concerned the alleged failure of the Crown to call Mrs Stevenson and Miss Stevenson to give evidence in the Crown case thereby causing the appellant to call them in his case and depriving him of the opportunity to cross examine and giving that opportunity to the Crown.

66 This court received oral evidence about what had occurred in that respect. Mr Sandilands had, at the time of the trial, recently returned from leave (on 20 January 1999). He wrote to the Crown asking if they were going to call “all witnesses” and if that was not their intention to advise him accordingly.

67 The Crown produced a letter in reply of the same date advising that it was not its intention to call either Mrs Stevenson or Miss Stevenson.

68 The argument was that the obligation of the Crown was to call the witnesses or to make them available to the appellant for cross examination and reliance was placed on a number of authorities to which I will refer in the final version of this judgment.

69 I am not persuaded that the Crown was obliged to call these witnesses and it was entitled to regard them as unreliable. I am satisfied that no real request was made to the Crown to call them. The Crown’s intention, as expressed is the letter, was accepted. Consideration was not, therefore, given by the Crown to any obligation it might have had to call those witnesses.

70 The fact is that the two witnesses were called, they gave evidence, they were seen, of course, to be in the appellant's camp and their evidence was not accepted.

71 I would reject this ground of appeal.

72 The result is that I would dismiss the appeal against conviction.

73 The appellant, (as I shall continue to refer to him) did not address any separate argument to the application for leave to appeal against the sentences initially. I observe, firstly, it was entirely correct for the judge to make the sentences cumulative. The two offences for which the appellant was being sentenced were quite unrelated to one another. Submissions were subsequently made on behalf of the applicant on sentence, it being argued that the sentence was manifestly excessive.

74 The gravity of the malicious wounding offence may be gauged by, among other things, the severity of the injury to Mr Dobbin. As recounted by the judge in her summing up, he suffered a lacerated scalp, multiple bruising and sites of pain, a compound depressed skull fracture and a right pneumothorax with lung contusions. He had fractured ribs and required surgery. He had a period of hospitalisation and suffered from scarring.

75 To exacerbate the circumstances, the offence was committed by the appellant in the company of at least one other man and was, on the finding of her Honour, unprovoked by the victim. The appellant was on bail for the drug offence at the time. He had a lengthy criminal history, although, as her Honour noted, he had been convicted of no offences involving violence since 1984.

76 There was evidence of some subjective material. The appellant was forty nine at the time of sentencing. He had had a rather troubled start to life, his father having committed suicide when the appellant was three years old. His step father was a violent alcoholic. The appellant left home at fourteen and took up a transient lifestyle with, as his record discloses, frequent criminal enterprises.

77 He is the father of three children, aged 3, 6 and 10, of whom two were in his care at the time of his sentencing. He described his former de facto as a drug addict who had been in, but had voluntarily left, a rehabilitation centre. He expressed a great deal of concern about the welfare of the children in the event of his incarceration. He said that he would be devastated by imprisonment.

78 He has poor health. He claimed to have suffered several heart attacks, the most recent having occurred whilst he was in custody. He suffers from asthma and requires some orthopaedic surgery. Judge Tupman was aware of and took into account all of these matters.

79 This court received from the appellant a letter from a court prison chaplain from the Salvation Army. However, this material is available only to be taken into account for the purposes of resentencing in the event that this court were to find that there had been some error in the sentencing process. Particularly having regard to the ferociousness and severity of the attack, I am not satisfied that any such error has been shown. I would grant leave to appeal against the severity of sentence but dismiss the appeal.

80 The court was told that there may have been an earlier abandonment of the application for leave to appeal against sentence and, as already ordered, and to the extent it is necessary, leave has been granted to withdraw that abandonment.

81 Accordingly, the orders that I propose are that the appeal against conviction be dismissed; that leave to appeal against sentence be granted and the appeal be dismissed.

82 SPIGELMAN CJ: I agree

83 SMART AJ: I also agree.

84 SPIGELMAN CJ: The orders are as indicated by Simpson J.

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