R v Warr

[1995] QCA 443

IN THE COURT OF APPEAL	[1995] QCA 443
SUPREME COURT OF QUEENSLAND

C.A. No. 226 of 1995

Brisbane

Before	McPherson J.A. Moynihan J. Fryberg J.
[R. v. Warr]

T H E Q U E E N

v.

MICHAEL JOHN WARR

McPherson J.A.
Moynihan J.

Fryberg J.

Judgment delivered 03/10/95

Joint reasons for judgment by Moynihan & Fryberg JJ. Separate concurring reasons by

McPherson J.A.

APPEAL DISMISSED.

CATCHWORDS	CRIMINAL LAW - Grievous Bodily Harm - Self-Defence - Whether trial judge erred in directing the prosecutor not to lead evidence constituted by a record of interview when the prosecutor had previously agreed to do so - Whether trial judge erred in refusing applicant's application to put the record of interview before the jury.
Counsel:	K. Mcginness for the appellant L.J. Clare for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	17 August 1995

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 3rd day of October 1995

I have read the reasons for judgment of Moynihan and Fryberg JJ. For the reasons they have given, I agree that the appeal should be dismissed.

REASONS FOR JUDGMENT - MOYNIHAN J. AND FRYBERG J.

Judgment delivered 03/10/95

This is an appeal against a conviction for doing grievous bodily harm which was recorded in the District Court at Brisbane on 19 May, 1995. At the trial it was not seriously an issue that the appellant had inflicted grievous bodily harm on the complainant. The appellant gave and called evidence and the case went to the jury on the basis that self-defence had been raised. The jury was entitled to conclude that the appellant had given various accounts of the assault prior to the trial which involved claims that the complainant had hit or threatened him with a bottle. At the trial the appellant gave evidence that he had been struck by the complainant with a bottle a number of times was beaten profusely and thought his throat had been cut. There was evidence which it was open to the jury to accept controverting these various accounts of events given by the applicant and the verdict reflects their rejection.

The appeal was argued on the basis that the trial judge had erred in directing the crown prosecutor not to lead the evidence constituted by a record of interview the appellant had given to the police some 12 days after the assault when the crown prosecutor had previously agreed to do so. Secondly, it was argued that the trial judge erred in refusing the appellant's counsel's application to have the record of interview put before the jury when the crown prosecutor alleged recent invention during the course of cross-examination of the appellant.

In the record of interview the appellant admitted the assault

The record provides no basis for concluding that there was an
agreement between prosecutor and defence whereby the prosecutor
would lead the record of interview. A number of matters were
canvassed before the trial judge before the prosecution opening.
One of them was the record of interview. When it was raised the
trial judge said he hadn't had the opportunity of looking at it
but that if it was self-serving it should not go before the jury.
Defence counsel, in answer to a question by the judge, said the
record should go before the jury but did not advance any further
argument at that stage. He did not say there was an argument.
The matter was, in effect, stood over without any ruling having
been made. There was no attempt to which we were taken in the
course of the cross-examination of the prosecution witnesses by
which it could be said the record of interview was made
admissible.

and had much to say on the issue of self defence. of the jury towards the end of the prosecution case. The trial judge, in the course of an exchange with defence counsel indicated that he considered the record of interview to be self-serving. The crown prosecutor indicated that he did not propose to lead it.

Defence counsel did not seek a direction from the judge to have it lead or seek to have the judge call the evidence. Had such applications been made they would seem to have had little prospect of success; R v. Apostilides (1984) 154 C.L.R. 563. The first basis on which the appeal was argued therefore fails.

In the course of a not particularly elegant cross-examination of the applicant, the crown prosecutor put it to him that the account of events he gave in evidence was in effect a stage performance and that he was lying. The trial judge concluded that the cross-examination did not impugn the appellant's evidence on the basis that his account was a late invention or lately devised reconstruction as distinct from alleging that it was a fabrication. That is a necessary basis for admitting a statement or rebut invention: The Nominal Defendant v. Clements (1960) 104 C.L.R. 476. That determination is one particularly for the trial judge, The Nominal Defendant (ante), R. v. Shum (1968) Q.W.N. 7. The conclusion was clearly open and it has not been shown the judge erred in arriving at it.

The appeal should be dismissed.