R v Weir

[1994] QCA 495

[1994] QCA 495

COURT OF APPEAL

DAVIES JA PINCUS JA DERRINGTON J

CA No 333 of 1994
THE QUEEN
v.

KEVIN JOHN WEIR Appellant

BRISBANE
..DATE 21/10/94
DAVIES JA: This is an appeal against the appellant's
conviction that on 28 August last year at Beerwah he did
grievous bodily harm to a man named Shaw. There is not much
doubt that there was a brawl which took place in a hotel at
Beerwah on the day in question and that involved in that brawl
were the appellant, his brother and the victim, perhaps
amongst other people.

There were a number of other people at the hotel that afternoon, many of whom witnessed all or part of what took place during the course of what was quite a serious attack upon the complainant as a result of which he lost the sight of his right eye. The assault being mainly with a billiard cue with which he was hit over the head and apparently it would seem from the doctor's evidence poked in the eye with it.

The appellant appeals against his conviction on three grounds.

The first of those is that the learned trial Judge erred in the exercise of his discretion in permitting a Crown witness to be recalled for the purpose of correcting evidence given earlier in the course of the trial.

The Crown witness was a Mr Hughes who was a bar attendant at
the hotel at the relevant time and one of the few people there
who appeared to be completely sober at the time of the
commission of the relevant offence. He described the brawl
and in particular he described the assault upon the victim by
a person who matched the description of the appellant.
He referred to two people who matched the description of the
appellant and his brother respectively and identified the
appellant by description as the person who had committed the
assault on the victim. However, during the course of his
evidence in chief he said that the appellant's brother
referred to the appellant by the name Wayne. Specifically, he
said that after the assault had been committed the appellant's
brother said to him, "Come on, Wayne, let's get out of here,
we've got to go".

The Crown later during the course of its case sought to and was allowed by the learned trial Judge to recall Mr Hughes to correct that part of his evidence and to say that after refreshing his memory from a statement which he had given, he recalled that the name had been Kevin, not Wayne. The appellant appeals on the ground that the learned trial Judge was wrong in permitting Mr Hughes to be recalled for the purpose of correcting his evidence in the manner in which I have described. It is not entirely clear what the basis of that ground is.

It is said that that was prejudicial to the appellant but of
course that will be true of any evidence which implicated him
in the commission of the offence. On the other hand, it seems
to me that it was proper for the learned trial Judge in the
exercise of his discretion to have allowed the witness to
correct what the witness said was an error in evidence which
he had been given.
The question was properly one for the jury to determine
whether in fact what the witness said was an error was in fact
an error or whether in fact for some reason unexplained the
witness had added that further piece of evidence to implicate
the appellant. In my view, therefore, there is no substance
in that ground.

The second ground of appeal in the notice of appeal was not pursued and I need not set it out.

The third ground of appeal is that the verdict of the jury was unsafe and unsatisfactory having regard to the identification of the defendant's brother as the assailant by a number of witnesses apparently affected by alcohol and having regard to the presence and participation of another assailant hitting the complainant with the instrument.

It is true that there were differences in recollection among
the witnesses who gave evidence. There were a number of
witnesses - in fact, the majority, including Mr Hughes to whom
I have just referred - who described the assault committed on
the victim as being one committed by the appellant. A number
of other witnesses, however, described the offender in terms
which identified the appellant's brother rather than him.
In the end, it seems to me that was entirely a matter for the
jury and in my view there was nothing unsafe or unsatisfactory
in that evidence.
Indeed, it was proper for the Crown in the circumstances to
call the evidence which assisted their case and, as well,
evidence which was contrary to the Crown case and as I said
that, in the end, was a matter for the jury to determine.
In my view, therefore, there is no substance in that ground
either and I would dismiss the appeal.

There was also an application for leave to appeal against sentence. Mr Alcorn, for the appellant has said that that application is not pursued and I would therefore refuse that application also.

PINCUS JA: I agree and would wish to add something only with respect to the point made by the learned presiding Judge with respect to the calling of witnesses.

It appears to me that if the Crown follows the general rule that relevant witnesses should be called it will inevitably happen from time to time that witnesses will be called who contradict the Crown case. That cannot be a ground upon which the verdict which results can be described as unsatisfactory.

I agree with the order proposed.

DERRINGTON J: I agree.

DAVIES JA: The orders are as I have indicated.

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