Sorgenfrie, Peter David v The Queen

[1981] FCA 22

Re: PETER DAVID SORGENFRIE
And: THE QUEEN (1981) 51 FLR 127
No. ACT G25 of 1980
Criminal Law - Evidence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Smithers(2) and Fisher(1) JJ.

CATCHWORDS

Criminal law - evidence - unsworn statement by accused - probative value - inadequacy of direction to the jury - previous inconsistent statements of witnesses - whether judge should direct as to credibility of such witnesses. Jury - judge's discretion not to discharge. Sentence - exercise of discretion.

Australian Capital Territory Evidence Ordinance, s.74.

Criminal Law - Directions to jury - Unsworn statement - Whether it has probative value - Previous inconsistent statement by witness - No flat contradiction - Whether jury to be warned - Misdirection of jury - Whether new trial warranted - Evidence Ordinance 1971 (A.C.T.), s. 74 - Crimes Act, 1900 (N.S.W.), s. 405.

Evidence - Criminal law - Directions to jury - Unsworn statement - Whether it has probative value - Previous inconsistent statement by witness - No flat contradiction - Whether jury to be warned - Misdirection of jury - Whether new trial warranted - Evidence Ordinance 1971 (A.C.T.), s. 74 - Crimes Act, 1900 (N.S.W.), s. 405.

HEADNOTE

Held: Per curiam - (1) There was a misdirection in law in that the trial judge had failed to impress upon the jury that the unsworn statement of the appellant did have probative value, if believed.

Driscoll v. The Queen (1977), 137 CLR 517; Cranssen v. The King (1936), 55 CLR 509; Peacock v. The King (1911), 13 CLR 619; Howe v. The Queen (1980), 55 ALJR 5 applied.

(2) But as the jury must have returned the verdict of guilty if the misdirection had not occurred the appeal against conviction should be dismissed.

Simic v. The Queen (1980), 54 ALJR 406, applied.

(3) Appeal against sentence allowed.

HEARING

Sydney, 1980, December 16-17; 1981, March 19. #DATE 19:3:1981

The appellant was convicted in the Supreme Court of the Australian Capital Territory on a charge of assault occasioning actual bodily harm. He appealed to the Full Court of the Federal Court of Australia against the verdict of the jury, his conviction and the sentence.

C. S. Leahy, for the appellant.

J. R. Pritchard, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Livingston Cleary & Co.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

E. F. FROHLICH

ORDER

1. The appeal against conviction be dismissed.

2. The appeal against sentence be allowed.

3. The sentence be reduced to two years' imprisonment with hard labour with a non-parole period of one year.

JUDGE1

The appellant was charged on indictment before the Supreme Court of the Australian Capital Territory on a count of assaulting William Van Veen ("Van Veen") thereby occasioning him actual bodily harm. After a trial before a judge and jury the appellant was convicted on this count and sentenced to imprisonment for three years with a non-parole period of 16 months. He appeals to this Court against the verdict of the jury, his conviction and the sentence.

The essence of the Crown case at the trial was that the appellant and Brett Matthews, a person charged with the appellant, made an unprovoked physical attack upon Van Veen. The Crown relied upon evidence given by Van Veen and Miss Glendenning, who was in his company at the time, and on evidence given by police officers and admissions by the appellant and the co-accused. The defence case was put by way of unsworn statement and was to the effect that Van Veen consented to or voluntarily participated in the skirmish and that the appellant acted in self defence.

The evidence at the trial, in so far as it is necessary to state it, is as follows:

At about 10.30 p.m. in the evening when Van Veen and Miss Glendenning were seated on stairs in a plaza in Canberra they were approached by the appellant and the co-accused. The co-accused made a comment in what was said to be a sneering tone to Miss Glendenning and then put both of his hands on Van Veen's shoulders. Van Veen brushed the co-accused's hands off his shoulders and asked him what was his problem. The co-accused put his hands again on the appellant's shoulders, shook him and said that he had commented "what a good looking bird he had". Van Veen again brushed off the hands and told the co-accused to "back off" and that he did not want any trouble. Van Veen said that an argument broke out and that the appellant told the co-accused to stand aside as he would take care of Van Veen. Van Veen was taking his coat off when he was struck by the appellant on the left eye. A fight then ensued and Van Veen was knocked to the ground where he was hit by both the appellant and the co-accused whilst on his back. Eventually the police arrived and intervened to put an end to the fighting. Van Veen sustained a number of injuries, having a black eye, a bleeding nose, three broken teeth, an injury to the back of his head and bruising to his body. Statements were subsequently made to the police by the appellant and the co-accused and by Van Veen and Miss Glendenning.

The argument advanced before us on behalf of the appellant was based on a number of grounds of appeal, some of which were more strenuously pressed than others and were consequential upon the primary grounds of appeal. The grounds which were pressed can be stated as follows:

(a) that the trial judge's instruction to the jury on previous inconsistent statements was inadequate and he erred in law in rejecting the application that he further instruct the jury on such statements;

(b) that he misdirected the jury in relation to the appellant's unsworn statement;

(c) that he should have discharged the jury in consequence of the failure of a witness to refrain from referring to the appellant by the alias "O'Shea".

Reference was also made by the appellant's Counsel to the disallowance by the trial judge of questions to Van Veen which it was contended might have led the jury to believe that Van Veen was at the time "conducive to engage in a fight".

Counsel for the appellant relied mainly upon first, the allegedly inconsistent previous statements of Van Veen and Miss Glendenning and the trial judge's rejection of an application to further instruct the jury upon them, and secondly, his treatment of the appellant's unsworn statement.

Dealing with the alleged inconsistent statements, the appellant's Counsel pointed to a number of passages in the evidence of Van Veen at the trial. The following passage, to the extent material, appears in the cross-examination of Van Veen:

"You see, you told His Honour and members of the jury earlier today that Mr. Mathews put his hands on your shoulders and shook you. Do you remember giving that evidence this morning? - Yes.

You see, Mr. Van Veen, you never told Mr. Nichols that that is what happened when you gave evidence before him in September last year did you, that Mr. Mathews shook you when he put his hands on your shoulders? - I was definitely shaken.

But do you agree with me that you never told Mr. Nichols that in September of last year? - I cannot be sure.

You see . . . what I suggest that you told Mr. Nichols in September of last year was that Mr. Bentwood, who was acting for the Crown, said to you, "What happened next?" and you said "the smaller guy, he put his hands on my shoulders and he said to me 'what a great looking bird you have got'". Then Mr. Bentwood said, "what happened next". "I pushed his arms off me and told him to back off and leave us alone". There is no mention there, Mr. Van Veen, about the shaking of shoulders? - No, my shoulders were definitely shaken. That is something that has occurred to you between when you gave evidence to Mr. Nichols and today, is it? - That is correct."

In these passages Mr. Mathews is the co-accused and Mr. Nichols the magistrate who conducted the preliminary hearing.

Counsel emphasised the fact that before the magistrate there was no reference by Van Veen to the fact that his shoulders had been shaken by the co-accused, and that his subsequent evidence at the trial was inconsistent in that for the first time Van Veen made reference to the shaking of his shoulders.

In respect of the same incident attention was also drawn to the fact that before the magistrate Van Veen said that when the co-accused first placed his arms on his shoulders he had said "what a good looking bird you have got". At the trial Van Veen denied that this was said on this first occasion. However, he said that when the co-accused again placed his arms on his shoulders he said "I was just saying what a good looking bird you had" or words to that effect. Furthermore, at the trial Van Veen said that the first comment he made to Mathews was to ask him what was his problem, whereas at the preliminary hearing the first remark he said he made was "back off and leave us alone".

Counsel also drew attention to a further discrepancy in Van Veen's evidence in that at the trial he said that the appellant hit him and then grabbed him by the throat and pushed him backwards, whereas at the preliminary hearing he made no reference to being pushed backwards.

It was also said that Miss Glendenning made inconsistent statements and that the trial judge should in this regard also have given the jury a direction. Attention was drawn to the fact that at the trial she said that the appellant pushed Van Veen's head whilst he was on his back so that it hit the ground on three occasions. However, she agreed that she had not mentioned this fact at the preliminary hearing. Counsel made the point that because she did not tell the magistrate, in circumstances where she was given every opportunity to do so, that Van Veen's head hit the ground on three occasions, there was a material inconsistency in her evidence. He acknowledged, however, that she was not specifically asked at the preliminary hearing whether Van Veen's head hit the ground and, if so, on how many occasions, nor did she say at that hearing that she had told all that she could remember. At the trial she said that she had been nervous on the earlier occasion and had omitted to tell all she could recollect of the incident.

A further alleged inconsistency in Miss Glendenning's evidence was that at the preliminary hearing she said that at the outset Mathews spoke to her saying "how are you" in a fairly loud voice. However, at the trial she said that these words were spoken in a very sneering and not a pleasant tone. Counsel contended that in saying this, matter prejudicial to the appellant was introduced which was not before the magistrate and ought to have been the subject of a direction by the trial judge. Such a direction, it was acknowledged, should have been in the nature of a warning rather than a direction to the jury to ignore the evidence.

Counsel's final alleged inconsistency was said to lie in the fact that at the preliminary hearing Miss Glendenning said that the appellant and Van Veen were still fighting when the police arrived, whereas at the trial she gave evidence that Van Veen was on his back with the appellant knocking his head on the ground. It is, however, in our view, impossible to describe such latter evidence as inconsistent, in that it cannot be said that the fighting had ceased by the time the police arrived.

After the jury retired at the conclusion of the summing up Counsel for the co-accused made an application based on what he described as the trial judge's failure to make mention or comment on what he alleged to be the prior inconsistent statements by Van Veen and Miss Glendenning. He referred in support of his application to a passage in the judgment of the Court of Appeal delivered by Lord Chief Justice Parker in Reg. v. Golder, Jones and Porritt (1960) 3 All E.R. 457 at p.459, namely:

"In the judgment of this Court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements, sworn or unsworn, do not constitute evidence on which they can act."

Counsel for the co-accused submitted that as there was uncontradicted evidence that statements (to which he indicated he had referred in his address to the jury) were earlier made by the two witnesses which were inconsistent with their evidence at trial, the trial judge should give a further direction to the jury in line with that stated by Lord Chief Justice Parker supra.

Counsel for the appellant supported the application, but the trial judge, after noting that by making it Counsel had protected their clients' rights, rejected the application.

R. v. Golder, supra, has been considered by the High Court in Driscoll v. The Queen (1977) 137 C.L.R. 517 and the passage set out above was held not to state correctly the law of this country. It follows that the trial judge was correct in refusing to give a further direction to the jury exactly in those terms.

Before us it was contended that in accordance with Driscoll's Case, supra, the trial judge should have warned the jury to treat with caution the evidence of the two witnesses because they had each been shown to have given evidence at the preliminary hearing inconsistent with evidence given at the trial. The question before us is whether in order to ensure a fair trial it was necessary for the trial judge to have given such a warning.

Counsel's submission was in essence that the trial judge was obliged as a matter of course to give such a warning if the subsequent evidence was more damaging to the appellant than the earlier statement, in which case his failure was a ground for setting aside the verdict. This submission was based on two assumptions, namely, that if a witness does give inconsistent evidence, it is a rule of general application that a direction or warning must be given and also that such a warning must be given if the evidence is inconsistent only to the extent that it includes a statement which earlier the witness failed to include.

In our opinion neither of these assumptions is necessarily warranted. Furthermore, the nature of the alleged inconsistencies, particularly if they do not amount to outright contradictions, is one of the circumstances to be taken into account in determining whether it is necessary to warn the jury. In the end, the only purpose of confronting a witness with his earlier statement is to indicate that he is unreliable and his evidence should not be accepted, which is a matter for determination by the jury.

Support for this approach is to be found in the reasons of Gibbs J. in Driscoll's Case, supra, with whose reasons the other members of the Court agreed. He went to some length to deny that where a previous inconsistent statement was made "it is always necessary or even appropriate to direct a jury that the evidence of a witness who has made a previous inconsistent statement should be treated as unreliable" (p.536). At p.537 he said:

"Although what was said in R. v. Golder, Jones and Porritt has since been cited with approval (see Reg. v. Oliva (1965) 1 W.L.R. 1028, at pp.1036-1037) it cannot be accepted that in cases where a witness has made a previous inconsistent statement there is an inflexible rule of law or practice that the jury should be directed that the evidence should be regarded as unreliable. I agree with the observations made on this point by Stanley J. and Lucas A.J. in Reg. v. Jackson (1964) Qd.R. 26, at pp.29, 40. A similar view has been expressed in Canada, Deacon v. R. (1947) 3 D.L.R., at p.776."

Earlier in his reasons Gibbs J. had indicated differing circumstances in which warnings might or might not be warranted, thereby acknowledging that the need for the warning would depend upon the circumstances of the particular trial. It is desirable to set out the passage in full as Counsel for the appellant relied strongly on that part relating to the circumstances where the subsequent statement is more damaging. At p.536 Gibbs J. said:

"As to the second question, the whole purpose of contradicting the witness by proof of the inconsistent statement is to show that the witness is unreliable. In some cases the circumstances might be such that it would be highly desirable, if not necessary, for the judge to warn the jury against accepting the evidence of the witness. From the point of view of the accused this warning would be particularly necessary when the testimony of the witness was more damaging to the accused than the previous statement. In some cases the unreliability of the witness might be so obvious as to make a warning on the subject almost superfluous. It is possible to conceive other cases in which the evidence given by a witness might be regarded as reliable notwithstanding that he had made an earlier statement inconsistent with his testimony".

It was contended by Counsel for the respondent that none of the previous statements relied upon by the appellant were in fact inconsistent because such a statement is one which flatly contradicts what was said before and in any event the rule was restricted by the authorities to statements by witnesses declared hostile. There are, however, cases (Reg. v. Thompson, an unreported decision of the New South Wales Court of Criminal Appeal delivered 25 March 1977; and R. v. Schmal (1965) V.R. 745) where consideration was given to the application of the rule when the evidence did not directly contradict and the witness was not declared hostile. In the circumstances of this matter it is not necessary for us to determine whether the application of the principle is restricted as contended for by the respondent.

The observations of Stanley J. in Reg. v. Jackson (1964) Qd.R. 26 at p.29 made in circumstances where the previous statement was in direct contradiction of the evidence at trial, are as follows:

"There may be some satisfactory explanation for the making of the original statement, e.g. it may have been merely ironic, or extorted by fear. If there is any alleged explanation for making the original statement, it is usually for the jury to say what weight should be attached to the evidence in the light of the circumstances. If there is no explanation, or if explanation is such that no reasonable man could give it any weight, a judge would properly direct a jury that the witness was unreliable and his or her evidence should be neglected, and that they should consider any other evidence in the case to determine whether any such other evidence alone justified a conviction beyond reasonable doubt."

That part of the reasons for judgment of Lucas A.J. which was approved by Gibbs J. appears at p.40 of Jackson's Case, supra. It is as follows:

"It cannot in my opinion be a rule of law of general application that a jury must be warned to disregard or even to treat with caution the evidence of every witness who is shown previously to have made an inconsistent statement about a material matter. One can imagine many instances in which a witness may change his testimony without any reflection upon his credit being proper: for example, a witness may genuinely change a previously held belief as to a material fact, or may correct a genuine mistake as to that fact."

The above comments apply in our opinion a fortiori if the allegedly inconsistent statement does not amount to a flat contradiction but merely the giving of more detailed evidence at the subsequent hearing. Whether any of the former statements are to be treated as inconsistent "is not to be determined by splitting hairs about the form of the statement but whether it is inconsistent as a matter of commonsense". See Cotton v. Commissioner for Road Transport (1943) 43 S.R. N.S.W. 66 per Jordan C.J. at p.71.

The reasoning of the Full Court of Victoria in R. v. Schmal, supra, and the judgment of Pape J. in particular illustrate the various circumstances which fall for consideration when a decision has to be made whether the inconsistencies require a warning.

The question for us is whether in all the circumstances of this trial, including in particular the nature of the alleged inconsistent statements, it was necessary for the trial judge to give the jury a warning on the question of credibility. Matters which persuade us to the contrary are that the case was relatively simple, the hearing was complete within two days, the issues were few and the evidence limited. Moreover, the inconsistencies were not flat contradictions, were drawn to the notice of the jury by Counsel for at least one of the defendants in his address and related primarily to peripheral and not crucial issues. In particular, in many instances the issues in respect of which the inconsistencies arose were corroborated by other witnesses. In our opinion the appellant fails on this ground of appeal.

We turn now to the treatment of the unsworn statement of the appellant. This unsworn statement was in the following terms:

"My name is Peter David Sorgenfrie. I met my friend Brett Mathews out at Woden Plaza, we were celebrating, having a drink for his birthday so we went into Civic to AJs, the disco. We were down there for a while and had a couple of drinks and then we left there and we come up the stairs. Brett was on my right hand side. We turned right at the top of the stairs. We were walking towards the car park and there was a woman and a man sitting on the step and as we were walking past my friend Brett Mathews leant over and rested his hands on the man's shoulders and he give him a compliment on his girlfriend. He said what a good looking bird he had.

With this this bloke just jumped up and started jumping around ready to fight and that and I seen this happening and I tried to get between it to break it up. I did manage to break it up and that and I called this bloke maggot and asked him what sort of a bloke he was. All my mate did was give him a compliment on his girlfriend and you want to punch his head in. And with this the bloke started jumping at me and bouncing, you know, shaped his fists up and that and I thought he was going to hit me so I hit him first and we were sparring around throwing punches at each other, both on our feet and while we were fighting I noticed a bit of blood running out of his nose and I asked him if he wanted to call the fight quits or what.

As I was saying he sort of hit me in the head, hit me, you know, pretty hard, and I just sort of lost my temper with him and just kept hitting him. In that, while that was happening, I remember Brett getting into it. I seen him come in. I do not think he hit him or anything, but I pushed Brett back out of the road. And the next thing I know the police were there and dragged us off. But I feel that I was put in a position where I was scared for myself and that and through trying to stop trouble I ended up in trouble myself, and I feel that I am not guilty of these two charges. Thank you."

In the course of his full and careful charge to the jury the trial judge made reference on a number of occasions to the defences of self defence and consent. He did not during his summing up read to the jury the appellant's unsworn statement but he made the following comments in reference to it.

"In this case each of the accused made an unsworn statement as he is entitled to do. That statement is not evidence in the sense that evidence from the witness box or the exhibits that have been tendered are evidence. Nevertheless, and though it could not be tested on cross-examination you are entitled to consider it as a possible explanation of the facts of the case. And you may take into account with the evidence in the case, giving it such weight as you think it should have in comparison with the facts which you find to be proved by the evidence. Had either of the accused chosen to do so, he could have gone into the witnessbox, given his version and submitted himself to cross-examination. He was not, of course, bound to do so. As he did not do so the only evidence you have is the evidence of the Crown witness and the exhibits."

With the exception that he directed the jury's attention to the fact that certain topics which were put to Van Veen in cross-examination were "echoed in the statement made by Mr. Sorgenfrie to the Court", he made no further comment on the unsworn statement.

After the jury retired the application was made for a further direction in respect of the prior allegedly inconsistent statements. This application was rejected. The trial judge then of his own volition and without any request or prompting by Counsel said that he was prepared to give the jury a further direction in that he would read to them the statements by the appellant and the co-accused. Counsel agreed to this course.

Prior to reading the statement of the appellant to the jury the trial judge made the following comments:

"Members of the jury, I had not read to you when I sent you out to consider your verdict, the two statements which were made by each of the accused to you from their places in the court room today. It seems to me that as I have given you some extensive passages from the evidence of the prosecution which came some time earlier in these two statements, it would be desirable for me to refresh your memory of what was said in these two statements.

You will understand that these statements are not evidence in the sense that the other pieces of evidence given from the witness box are evidence. They are not subject to cross-examination and testing in that way but they are nonetheless material which you are entitled to take into account in considering your verdict."

Counsel for the appellant challenged, in particular, the last sentence of the first passage quoted above concerning the unsworn statement where the trial judge, after drawing attention to the fact that the appellant did not go into the witness box and submit himself to cross-examination, said "As he did not do so, the only evidence you have is the evidence of the Crown witnesses and the exhibits".

Counsel acknowledged that apart from this sentence the trial judge's direction on the unsworn statement was "almost unimpeachable". However, his argument was that the consequence of the direction in this sentence was to nullify all he had earlier said about the use the jury could make of the unsworn statement and required them to ignore it when weighing up the evidence. When considering this submission it is of some significance to note that neither of the defence Counsel sought at the conclusion of the summing up any further direction on this aspect making it clear to the jury that the unsworn statements did have to be taken into account.

In our opinion it is possible that the jury was misled by this sentence coupled with the absence of any comment concerning its bearing on the two defences raised by the appellant of self-defence and consent and in consequence failed to give adequate consideration to the version of the incident put forward by the appellant. Doubtless the learned trial judge was using the word "evidence" as meaning "sworn evidence" and was contrasting the unsworn statement of the appellant with the sworn evidence. But in our opinion he did not make this sufficiently clear to the jury and, in particular, he did not impress upon them that with all its inadequacies the unsworn statement did have probative value. He did, of course, draw to the attention of the jury on a number of occasions the appellant's defences of self defence and consent but his failure to indicate the particular passages in the statement which were capable, if accepted, of supporting such defences would tend to confirm in the mind of the jury that the statement had no probative value. The overall impression which we have of the summing up and its likely impact on the members of the jury is that it is possible that they felt they should exclude the material in the statement from their minds in arriving at their opinion as to what happened on the evening in question. Because all reasonable doubts are to be resolved in favour of the appellant it is essential to ensure that the jury understands that the statement is "evidence", albeit not sworn evidence, and as such forms part of the probative material capable of raising such a doubt. We agree with the conclusion that Smithers J. has reached that there was a misdirection, which misdirection is a misdirection in law.

It is necessary to decide whether in these circumstances a new trial should be ordered, and the Crown carries the burden of satisfying us that if there had been no error such as we have found, the jury would have come to the same conclusion. This aspect of the matter has been considered in some detail by Smithers J. We adopt his view that a new trial is not warranted and the reasons which he gives.

Counsel also complained that the trial judge erred in failing to discharge the jury after a witness had made reference on a number of occasions to the use by the appellant of an alias, "O'Shea". This reference was made when the witness told of words spoken to him by the co-accused. It is for the trial judge to determine on the facts before him whether there was sufficient prejudice to the appellant to warrant a discharge of the jury. An appellate court will not lightly interfere with the exercise of that discretion, and only if the trial judge was manifestly wrong and the appellate court is of opinion that it would have discharged the jury (R. v. Ball (1961) 61 S.R. (N.S.W.) 37). In this matter there is nothing to persuade this Court to interfere and no reason to think that the trial judge exercised his discretion other than correctly.

We reach the same conclusion in respect of the ground of appeal relating to the alleged refusal by the trial judge to permit the appellant's Counsel to pursue a line of cross-examination directed, we were told, to show that at the time Van Veen was conducive to a fight. On our reading of the transcript Counsel elected not to pursue this line of questioning and we do not see any prospect of a miscarriage having ensued.

The appeal against severity of sentence was based on a contention that the trial judge failed to take into account certain material which was before him and, in particular, the opinion of a welfare officer that the appellant was "susceptible to welfare supervision". It was also submitted that on the aspect of deterrence the trial judge should have taken into account the appellant's relatively recent period of imprisonment for another offence. Neither these particular matters nor any of the other matters put before us by Counsel on this score satisfied us that we should interfere with the sentence of imprisonment imposed.

However, this appeal against sentence is an appeal from the discretionary act of the trial Judge and there are grounds upon which we consider it necessary and proper that we should review the sentence. In particular, we should review it to determine whether the trial Judge has erred in the exercise of his discretion because he has taken into account circumstances which as a consequence of our findings on the summing up must be regarded as insufficiently proved. In Cranssen v. R. (1936) 55 C.L.R. 509 at p.519 the High Court in the joint judgment of Dixon C.J. Evatt and McTiernan JJ. said:

"The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made.

Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority."

It could not be said that in the present matter the sentence appears unreasonable but in the events that have happened and with the benefit of hindsight it was not "fixed in the due and proper exercise of the court's authority". The trial Judge took into account circumstances and considerations which because of the misdirection can not be found to be satisfactorily proven and in consequence his exercise of his discretion miscarried.

The circumstances which he took into account in determining the appropriate sentence of imprisonment were stated as follows:

"You attacked Van Veen without provocation. As he was bending down you struck him a severe blow. When you and your companion, if you had both attacked him had driven him to the ground you bent over him and continued to thrash him and did substantial injury. There are no redeeming features in the circumstances of your attack. It was gratuitous and violent and you desisted only when Matthews pulled you off and the police sergeant arrived. . . . The circumstances leave me no option but to sentence you as I say to a period of imprisonment."

It is apparent that in the sentencing the appellant to a term of imprisonment for three years the trial Judge acted on the basis that the verdict of the jury established that the appellant was guilty of unprovoked aggression and that there were no redeeming features. In our earlier reasons we were of opinion that the consequences of the misdirection was that there was doubt whether the jury were aware that they should take into account "redeeming features" set out in the appellant's unsworn statement. The trial Judge understandably assumed that the jury had taken that into account and that the effect of the verdict was that that had been rejected. However, the consequence of the misdirection is that this assumption is not warranted. We can not conclude with certainty that the jury if properly directed would have found that the assault was unprovoked or Van Veen was not consenting at least in the earlier stages to the fight. Thus these factors should not have been taken into account by the trial Judge. The consequence of his having done so is that it may be said there are grounds upon which his discretion has been improperly exercised.

With the benefit of hindsight we can say that it was unsafe for the trial Judge to sentence on the assumption that the assault was unprovoked or that there were no redeeming features. In sentencing on this assumption he acted in circumstances where it must be held he was mistaken as to the facts. The discretion should be exercised on the basis that having become involved in a fight the appellant lost his temper, used far more force than was necessary in the circumstances and occasioned actual bodily harm to Van Veen.

An adequate sentence in our opinion is two years imprisonment with hard labour with a non-parole period of one year. It follows that the appeal against sentence will be allowed and the sentence reduced accordingly.

JUDGE2

The appellant Peter David Sorgenfrie was convicted in the Supreme Court of the Australian Capital Territory on 29 August 1980 of assault occasioning actual bodily harm to one William Van Veen. He was sentenced to imprisonment with hard labour for three years, and a non-parole period was fixed of one year and four months. He appeals to this court against both conviction and sentence.

On various grounds it is urged that the conviction should be set aside and a new trial ordered. It is said first, that the learned trial Judge erred in that,

(a) he misdirected the jury with respect to the weight to be given to an unsworn statement made by the appellant;

(b) he failed to accede to an application that he further instruct the jury concerning statements made by the witnesses which were inconsistent with earlier statements made by them,

(c) he disallowed a certain line of cross-examination of the witness Van Veen, and,

(d) he did not accede to an application that the jury be discharged by reason of the failure of a Crown Witness to comply with his Honour's ruling that the appellant not be referred to by the alias "O'Shea".

The appellant was charged in the alternative with common assault. The charges against him were heard jointly with a charge against one Matthews, of common assault. The charges against the appellant and Matthews arose out of events which occurred in a plaza in Canberra in the A.C.T. on the night of 17 April 1979. It is common ground that at about 10.30 p.m. on that night the appellant and a friend Brett Matthews were walking from a discoteque in Civic, a part of Canberra City, when they observed a young man and woman, namely, William Van Veen and Sally Glendenning sitting on a step. Matthews approached Van Veen, placed his hands on his shoulders and referred to Van Veen's companion as being a good looking girl. Van Veen took Matthews' conduct to be offensive and rose to his feet. There was a heated exchange between them whereupon the appellant intervened. A fight then developed, the appellant striking the first blow. Blows were exchanged for a short period and Van Veen fell down at least once and the fight ended with Van Veen on the ground and the appellant on top of him delivering blows. The incident came to an end as police arrived and pulled the appellant off Van Veen. Van Veen suffered severe injuries to his face, teeth and eyes and the back of his head.

There was little dispute that save for the injury to the back of the head, these injuries were caused almost exclusively by blows delivered by the appellant. The defences were that they were delivered in self defence or that Van Veen consented thereto in the sense that he voluntarily joined in a fight with the appellant and consented to receive the blows incidental thereto.

The case for the Crown was supported by the evidence of the events which occurred on the night in question as experienced and observed by Van Veen, Miss Glendenning and a police officer, Sargeant King, and a record of interview between the appellant and Sargeant King. The appellant called no witnesses and did not give evidence on oath but made an unsworn statement from the dock. The case for Matthews was conducted in the same way.

For reasons hereafter appearing it is my view that the grounds of appeal other than that relating to the direction concerning the unsworn statement made by the appellant are not established. However, in my opinion there is substance to the ground concerning the unsworn statement. And that is because his Honour adopted a view concerning the role of an unsworn statement which, although in line with certain authority, is not in accordance with the weight of authority bearing more directly upon trials of indictable offences in the A.C.T. The issue depends upon whether according to his Honour's direction, the jury would understand that statements of fact made by the appellant in his unsworn statements and relevant to the issues lacked probative value notwithstanding that they might be believed.

In essence the basis of the appellant's submission is that his Honour directed the jury, in effect, although not in express terms, that statements of fact made by the appellant in his unsworn statement did not have probative value although they might in some way be taken into account by the jury in deciding issues before them. A direction to this effect immediately raises the question as to the manner in which, as a practical exercise, the contents of the unsworn statement so far as they consist of statements of fact, can be taken into account by the jury. What use are they if they lack probative value? Where a direction concedes that statements of facts in an unsworn statement do have probative value a further direction that those statements are not evidence in the same sense as testimony on oath given from the witness box are evidence, but that they may be taken into account for what they are worth, causes no problem. Put in this traditional way facts stated in the unsworn statement are accorded the status of evidence, albeit evidence in a special sense. That special sense arises from what O'Connor J. calls the "infirmities" of an unsworn statement. It has not the sanction of an oath and the prisoner who makes it is deeply interested in asserting his innocence. (See Peacock v. King (1911) 13 C.L.R. 619 at p. 674) In addition the statements proceed under a pretence of full credibility whilst taking shelter from the revealing light of cross-examination. Also false unsworn statements will not sustain a charge of perjury.

With respect to evidence which suffers from these infirmities a direction that it be taken into account "for what it is worth" can be readily understood. Assessment of the worth of such evidence inevitably requires not only the application of the usual tests to determine credibility such as demeanour and probability, but also consideration of the infirmities themselves as affecting at least the prima facie quality of that evidence.

But if the direction is that the statements of fact lack probative value then in attempting to take them into account, the jury face a difficult intellectual problem, likely, in the absence of further direction to be resolved by some kind of guess work or by ignoring them altogether.

The view that assertions of fact contained in an unsworn statement are not evidence has, as pointed out by Windeyer J. in Bridge v. The Queen (1964-1965) 38 A.L.J.R. 280 at p. 284, been much discussed. See R. v. Riley (1940) 40 S.R. (N.S.W.) 111, R. v. Kelly (1946) 46 S.R. (N.S.W.) 344; R. v. McKenna (1951) St. R. Q'd. 299, and in South Africa in R. v. Woolridge (1956) 1 S.A. 5; also Cross on Evidence 2nd Ed. (1963) pp. 163-164, Cowen & Carter, Essays on the Laws of Evidence (1956) pp. 209-218. Expressing the view that the statements of fact are not evidence, in the most categorical form, is the observation of Townley J. speaking for the Full Court in R. v. McKenna (supra) at p. 307 as follows:-

"In my opinion an examination of the authorities quoted and of others leads to the conclusion that in Queensland an unsworn statement by an accused person is not evidence. It should be accorded persuasive rather than probative force. The practice has grown up of allowing a prisoner to make statements of fact but those statements are not evidence of the facts stated. Such statements of fact have come to be regarded as something less than evidence but something more than mere argument.
. . .
It follows that I think the learned trial judge was correct in telling the jury that the appellant's statement was not evidence of the facts stated. I think he was also entitled to tell them the statement was merely the appellant's explanation of the facts and his doing so involved no misdirection.

It may be observed that a direction to the jury that an unsworn statement is less than evidence, but more than argument which without more would leave a jury in an impossible position. The Jury would inevitably be faced with the intellectual problem of devining just what was the significance of the statement and how to deal with it. For such a matter to remain in a state of uncertainty would not be compatible with the rational performance of the jury's task. In R. v. McKenna (supra) it was a central consideration in the reasons of the Court that so far as Queensland was concerned, the making of an unsworn statement proceeded without statutory authority. It was pointed out that, unlike corresponding provisions in other states the Queensland statute permitting a prisoner to give evidence on oath did not provide for the retention by accused persons of the privilege of making an unsworn statement. The Court took the view that the procedure, although well established, of permitting a prisoner to make such a statement was but a continuation as a matter of practice of the previous Common Law procedure. The Court took the further view that at Common Law the unsworn statement of the prisoner was not evidence. Accordingly the unsworn statements made as a matter of practice was not evidence. It would seem however, that this was not the universal view at Common Law. Thus as early as 1837 Lord Coleridge in Reg. v. Beard (1837) C & P 142 held that a prisoner unrepresented by counsel might "tell his own story which is to have such weight with the jury as all circumstances (sic) considered it is entitled to." Further in R. v. Shimmin (1882) 15 Cox C.C. 122 at p. 124 Cave J. after consulting with his brother judges said:_

"'A prisoner . . . ought to be heard in his defence, and have the opportunity of making his explanation of the circumstances proved against him. True his statement was not made on oath, and he was not liable to be cross-examined by the prosecuting counsel, and what he said was therefore not entitled to the same weight as sworn testimony. Still it was entitled to such consideration as the jury might think it deserved . . . '

This means, clearly enough, (as the learned authors of unsworn statements by accused persons, Essays on the Law of Evidence, comment) that the unsworn statement may be received into the body of proof, although its weight will be less than that of sworn evidence."

In R. v. McKenna (supra) the Court relied particularly upon the observations of Windeyer J. in R. v. Morrison (1889) 10 L.R. N.S.W. 197 and the decision of the Full Court of New South Wales in R. v. Tyford (1893) 14 L.R. N.S.W. 5. In this latter case the Court said that the unsworn statement,

"cannot be regarded in the nature of evidence, as we understand the word 'evidence' in Courts of Justice. The statement is not upon oath nor is the prisoner liable to be cross-examined upon it."

The same class of comment appears in, R. v. Kelly (1940) S.R. N.S.W. 244. However, a further decision on the subject in the Full Court of New South Wales is that in R. v. Riley (1940) 40 S.R. N.S.W. 111 at p. 115 it was said by Jordan C.J. delivering the judgement of the Court,

"In R. v. Morrison (supra at p. 206) the view was expressed by this Court that the section which is now s.405 of the Crimes Act, 1900, 'really does nothing more than make permissible when a prisoner is defended, a statement which he would be at liberty to make at common law if he were not defended.' It is in that case pointed out that formerly prisoners were not allowed to be defended by counsel, or themselves to give evidence as witnesses. They were however, allowed to make an unsworn statement. This statement was not evidence in the ordinary sense, because it was unsworn, It was, therefore, not entitled to the same weight as sworn testimony. Still, it was entitled to such consideration as the jury might think it deserved. 'It would be against justice and utterly impossible to prevent the jury from taking that statement into consideration for what it was worth': ibid p.207; R. v. Shimmin (supra); Brown v. R. 17 C.L.R. 570 at 587. In Peacock v. R. 13 C.L.R. 619 at 640 Griffith C.J. said: 'The proper direction to be given, it seems to me, is this: that the jury should take the prisoner's statement as prima facie as possible version of the facts and consider it with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established by evidence.'

This being the position in New South Wales, can such a statement be regarded as 'proof' within the meaning of s.60? The late Mr. Phipson in his treatise on the Law of Evidence 7th ed., p.l defines proof as the establishment of a material fact by proper legal means to the satisfaction of the Court: c.f. Best on Evidence par. 10. This definition appears to be accurate so far as it goes. As a general rule, no material can be placed before a Court to establish a fact unless it is verified by oath. The Legislature may, however, if it chooses, depart from this general rule too any extent that it considers desirable.
. . .
The Legislature of New South Wales has thought fit to provide that an unsworn statement may be made by an accused person before the jury who are trying him. In our opinion this must be regarded as 'proof' in the sense of material to which the jury are entitled to give such weight as they think it deserves, for the purpose of determining whether the accused person had a lawful excuse within the meaning of s. 60? There is nothing in the section which states either expressly or impliedly that proof may be given only by sworn testimony."

In R. v. Brown 17 C.L.R. 570 at 587 it was observed by Isaacs and Powers JJ., speaking of the effect of s.470 of Statute 47 Victoria No. 17 of N.S.W. which empowered any accused person to make a statement without being liable to examination thereupon by the Crown or the Court:-

"The provision was a compromise. On the one hand it avoided compulsion and on the other it allowed the accused to place his personal explanation or contradiction of the Crown case before the jury, but only as an unsworn and untested statement, and so to be appraised." (emphasis added)

In R. v. See Lun and Welsh (1932) 49 W.N. 116 it was decided by the Court of Criminal Appeal per Davidson and James JJ, Streck C.J. dissenting, that when the accused referred to an article namely an oil drum, in the course of making his unsworn statement the drum should be marked and admitted for the inspection and consideration of the jury. In the reasons for judgment it was said by Davidson J. speaking of ss.405 and 407 of the Crimes Act of New South Wales: -

"It appears to me from this legislation that an accused person was given the privilege of being able to bring to the notice of the jury and for their consideration all facts relevant to his defence to which he could depose if he went into the witness box but without having to state them on oath. If he were denied the right to refer to some article of which he could only secure the benefit by enabling the jury to look at it and compare it with objects or other facts in evidence against him he would have no real opportunity of stating the facts of his case at all.

Assume for instance that the defence in a case of stealing was that the accused had bought and paid for the article in question and has been given a receipt from the prosecutor which had been lost. He would no doubt be disbelieved. But if at the time when he was entitled to make a statement from the dock in his defence the document was found and produced to him, and if he could not show it to the jury without going into the box he would be deprived either of his defence or of his right under that statute to refrain from giving evidence on oath."

In Peacock v. The King (1911) 13 C.L.R.619 Barton J. expressed the view that where the prisoner makes an unsworn statement pursuant to s.38 of the Victorian Crimes Act 1891

"he is entitled to have his statement considered by the jury, not only where it gives an explanation consistent with the assertions of fact sworn to by the prosecution, but where it flatly contradicts such assertions by its own."

It is true that in Peacock v. The King (supra) the Court was dealing with an unsworn statement made pursuant to the Victorian Crimes Act 1891 which authorised the accused to make an unsworn "statement of facts", and provided that such statement could be made "in lieu of or in addition to any evidence on his behalf". Accordingly it may be said, as was said in R. v. McKenna (supra) that the conclusions of the Court in Peacock's Case lack significance where it is made under different legislation or merely as a matter of judicially permitted procedure. However, s.405 of the Crimes Act of New South Wales which was the statutory provision pursuant to which the unsworn statement considered in R. v. Riley (supra) and R. v. See Lun (supra) were made contain no provision beyond the mere authority for the making of such statements. It is in the following terms:

"405. Statement and address to jury by accused. (1) every accused person on his trial, whether defended by counsel or not, may make any statement at the close of the case for the prosecution, and before calling any witness in his defence, without being liable to examination thereupon by counsel for the Crown, or by the Court, and may thereafter, personally or by his counsel, address the jury.

(2) Accused may open his case before calling witnesses. Where the accused intends to give evidence or to call any witness or witnesses in support of the defence the accused or his counsel shall be entitled to open the case for the defence before calling his evidence."

It is this section as applicable to trials of offences in the Australian Capital Territory which was applicable to the trial of the appellant. It is to be noted that s.407 of the New South Wales Crimes Act 1900 as applicable in the Australian Capital Territory was repealed in 1971. But in its place s.74 of the Evidence Ordinance 1971 was enacted. That section provides: -

"74. (1) On the trial of an indictable offence, the failure of the person charged or his spouse to give evidence shall not be made the subject of comment by counsel for the Crown.

(2) Where -

(a) two or more persons are being tried together for an indictable offence; and

(b) comment is made by or on behalf of any of those persons on the failure of any of those persons or of the spouse of any of those persons to give evidence,

the judge may make such observations to the jury in regard to the comment or the failure to give evidence as he thinks fit."

In the application of those provisions in accordance with the principles enunciated in R. v. Shimmin (supra) and R. v. Riley (supra) the Court is able to give to the jury "a direction based squarely on the character of such (unsworn) statements as evidence, but directing attention, as affecting their quality, to the fact that they are unsworn and have not been subjected to cross-examination" which, "is, in our opinion, preferable as candidly factual and more informative to the jury". See Masnec v. The Queen (1962) Tas. L.R. 254 at 260.

Once it is conceded that statements of fact in an unsworn statement may, if believed, constitute proof of the facts stated then the observations of Barton J. in Peacock v. The King (supra) at p. 647 are necessarily applicable. It seems to me that there is no half way house and that to avoid intellectual uncertainties on the part of the jury in the performance of their task and to ensure that an informative and practical approach which is fundamental to the working of the system, those observations require to be implemented. Barton J. said at p. 647: -

"It follows then from the terms of the section that the accused is entitled to have his statement considered by the jury not only where it gives an explanation consistent with the assertions of fact sworn for the prosecution, but where it flatly contradicts such assertions by its own. It is the right of the accused in such circumstances that the jury be asked to decide how much credence they will give it where the two sides are in absolute conflict. They may conclude that it is not worthy of any weight at all. On the other hand, from observations of the utterances and demeanour of the opposing witnesses, they may conclude unsworn though it is, that it outweighs their testimony, or at any rate that it raises a reasonable doubt - and in either of the two latter views they may and ought to acquit. Such being the statutory right of the accused, the question is whether the direction of the learned Chief Justice assured it to him."

These observations do but amplify the words of Griffith C.J. adopted by the Full Court of New South Wales in R. v. Riley (supra) set out above.

Having regard to the foregoing it is my opinion that the trial in the Australian Capital Territory of the offences for which the appellant was tried it was necessary that the jury should be directed that statements of fact in the appellant's unsworn statement, were to be considered as evidence of the facts stated and given such weight, alongside the other evidence, as the jury might, in all the circumstances and having regard to its inherent "infirmities", consider it to be entitled. Whether any such statements would be believed would of course depend on whether it was, in itself regarded as credible by the jury, and whether although otherwise credible it might be contradicted by other evidence more credible. But the evaluation of the credibility of what was said in the unsworn statement, inherently in itself, or in competition with other evidence supporting a contrary inference or fact, would be for the jury. But nevertheless in some circumstances a jury acting properly and sensibly might believe the unsworn statement of the prisoner rather than the sworn evidence of some other witness. It is always possible that the truth may be spoken from the dock and falsehoods from the witness box.

I turn therefore to the question of whether the jury would have understood from the summing up that the statements of fact in the appellant's unsworn statement did not have probative value. For this purpose, because of the nature of the issues under consideration in this appeal it is necessary to set out certain of the evidence in some detail. The learned Judge in his summing up to the jury dealt with the incident in three parts, namely the start of the incident, what happened during the central part of it, and what occurred in the latter part of it. It is convenient to adopt this arrangement.

Van Veen stated that he and Miss Glendenning were sitting on a step as the appellant and Matthews came towards them from the direction of a discotheque known as "AJ's". He said: -

"One of them, Mr Mathews, said something to Sally. I am not certain what he said. He faced me and put both his hands on my shoulders, the palms of his hands. I brushed his arms off and stood up and said words to the effect, 'what is your problem?' He then put his arms on my shoulders again and said, "I was just saying what a good looking bird you had' or words to that effect. As he put his hands on my shoulders he shook me. I was standing at that stage. I brushed his arms off again, told him to back off and that I did not want any trouble. An argument broke out, the exact context I cannot remember, for maybe 30 seconds. It involved Mr Mathews. Sorgenfrie was to my right and Mathews to the left.

I told him I did not want any trouble. He started arguing and he pushed me again. I proceeded to take my coat off. I had it in my right hand and was looking for somewhere on the stairs to lay it. I was not even looking at him at that stage and he struck me in the left eye. It was solid. It was really hard. It stunned me.

Sergeant King said that he spoke to the appellant, told him that Van Veen had received three broken teeth and injuries to his eye and forehead and asked, "can you tell me anything about this assault?" and the following passage occurred, between them, Sorgenfrie said,

"Is he that bad? I didn't do that, did I? I believe in giving a bloke a punch, but I must have got carried away". I said, "Peter, I want to ask you some questions', Van Veen has told me that he was sitting on a ledge outside a shop in AJ's when he first saw you, is that correct?

"The essential question here is whether the trial judge should have perceived that an issue based on s.247 was fairly raised on the evidence. With respect, we think he should have done so. The appropriate principle is that stated by Barwick C.J. in Pemble v. The Queen (1971) 107 at pp. 117-118 as follows: -

'Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interests of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.'"

It was a consequence of the course taken that the case for the defence, so far as reference to the evidence by which that case was said by the defence to be supported, was not put to the jury. It led also to the absence of any consideration as to whether during the incident the role of aggressor may have passed from the appellant to Van Veen. The significance of the appellant's statement that he asked Van Veen if he would like to call it quits is not discussed because it is treated as not being evidence. In this respect it is significant that not only is that statement of the appellant not put before the jury as part of the unsworn statement, but in that part of the summing up referred to above where the cross-examination on the matter is referred to, it is referred to as an example of something of which there was no evidence at all. In addition, there was no consideration as to whether in that event the reaction of the appellant was out of proportion to the fear of attack by Van Veen. See Helmhout v. The Queen No. F.C. 6 of 1980, an unreported decision of the Full Court of the Federal Court of Australia, dated 20 October 1980. As hereinafter appears the omission of the last matter is not of ultimate importance. But on the terms of the unsworn statement these issues squarely arose.

Accordingly, the error had quite important consequences in relation to the consideration by the jury of the issues. In these circumstances the problem before this Court is whether a new trial should be ordered. It was pointed out in the unanimous judgment of the High Court in Simic v. The Queen (1980) 54 A.L.J.R. 406 at p. 409 that the test, as to whether, in the case of a mis-statement as to the effect of evidence expounded in R. v. Legatt (1971) V.R. 705, an appeal against conviction should be allowed, was that the Court should be satisfied that it is probable that but for the mis-statement the jury would not have returned the verdict it did, and it went on to say: -

"The test thus stated is less favourable to an appellant than that which is applied in cases where there has been a wrong decision of a question of law - - cases that would include those in which there has been a misdirection as to the law or in which evidence has beem improperly admitted or rejected. Some of the statements of the principle to be applied in cases of that kind are collected in Mraz v. The Queen (1955) 93, C.L.R. 493, at pp. 514-515. In such a case the Crown must establish that if there had been no error the jury would (or must) have come to the same conclusion. According to the test approved in R. v. Legatt, the applellant has the burden of showing that the mis-statement probably affected the verdict, whereas in the case of an error of law that appeal will be allowed unless the Crown shows that the error did not affect the verdict." SSBI0
It would seem that in this case the circumstances call for the application of the latter test.

In this connection the three phase division of the relevant incident is of assistance. So far as the firt phase is concerned it is my opinion that the omission to bring before the jury the statement of the appellant that he though that Van Veen had acted in a way by gestures and taking off his coat, which caused the appellant to think that Van Veen was about to attack him, and that he hit him first for this reason was an omission of a vital nature. It may well be that this version of the facts would not have been accepted by the jury but it might have been or at least have induced a reasonable doubt as to whether the Crown had negatived self defence or consent.

Accordingly in my view the Crown cannot show that the jury would have been satisfied beyond reasonable doubt that in relation to the first phase of the incident the appellant did not act in self defence or that Van Veen did not consent to fight. It would seem also that the same considerations apply to the second phase of the incident. But as to the third phase the situation is different. True it is that the appellant said that, at one stage, which may be regarded as the commencement of the third phase, he asked Van Veen if he wanted to call it quits and that he was answered by a hard blow to the head. It is quite arguable that this exchange of words and conduct caused Van Veen to adopt a beligerent role to which the appellant reasonably considered that he should defend himself. Owing to the course of the trial this issue was not presented. This was because the statement that the words were said and that Van Veen replied by a blow, being contained only in the unsworn statement, was never put to the jury as forming part of the evidence they had to consider. There was therefore an important omission in putting to the jury the case for the appellant. However, it is argued by the Crown that even had this case been put fully before the jury the verdict must have inevitably been one of guilty. It is said that the jury could not, on the evidence, have failed to be satisfied beyond reasonable doubt that in the third phase of the indcident the appellant was not engaged in self defence nor did Van Veen consent to what he did. It is said that this conclusion must follow from the terms of the unsworn statements and other evidence particularly that of Sergeant King both as to what he saw and what the appellant said to him and the omission of the appellant to contest the vital parts of Sergeant King's evidence. I accept this contention. After referring to the exchange of words and blows referred to above, the appellant, in his unsworn statement states, "I just sort of lost my temper with him and just kept hitting him." After referring to his pushing Mathews out of the way the statement continues, "The next thing I knew the police were there and dragged us off". This description of events covers the time from when, as the appellant alleged in his unsworn statement, Van Veen replied to the suggesztion of a truce with a blow, until the time when the appellant was dragged off Van Veen. It describes a bout of continuous hitting which caused Van Veen to go to the ground and persisted until the police dragged the appellant from on top of Van Veen. How long that was is not stated but it was long enough for the Sergeant in the police car to observe Mathews and the Appellant, neither of whom he knew, with the appellant on top of Van Veen, hitting him, to bring the police car to a halt and run to the scene some twenty yards away. Sergeant King stated that following passage occurred in his interview with the appellant: -

Q. Upon my arrival I saw you punching into Van Veen when he was lying on the ground. Do you deny this?

A. No, I was out to win.

Q. Do you consider that you lost your temper?

A. Yeah, I guess I did when you put it like that.

Q. Do you clearly recall punching Van Veen around the face?

A. It was a blue mate. You're out to win. You're out to get him before he gets you.

From the above and from the absence of any qualification of this in the unsworn statement there can be no doubt that in the third phase of the incident the appellant was acting through loss of temper and continued punching accordingly for some appreciable time including the time when such blows were quite unnecessary, Van Veen being on the ground. It is beyond doubt that numerous blows were struck when Van Veen was on the ground and more would have been struck but for the police intervention. It cannot be doubted that some of the actual bodily harm suffered by Van Veen was suffered while he was on the ground.

Having regard to the foregoing I am quite satisfied that had the summing up been in quite unexceptional terms the jury would (must) have returned the verdict of "guilty".

It is unnecessary to consider in detail the other grounds of appeal. It is clear that they related to alleged errors which, even if established were of much less significance than the matters alleged in the first ground of appeal. So far as they related to the matters of fact the onus would lie upon the appellant to show to the Court that it was probable that but for the matter complained about the jury would not have returned the verdict they did. See R. v. Legatt (1971) V.R. 705 at 708 and Simic v. The Queen (1980) 54 A.L.J.R. 406. So far as they relate to the matters of law, the Crown would be required to satisfy that the alleged errors, if they were made, did not affect the verdict.

For the same reasons as have satisfied me that had the summing up been in unexceptional terms the jury must have returned a verdict of guilty, it is apparent that the appellant could not carry the onus resting upon him and the Crown must succeed in satisfying the Court, that even if the errors alleged by the appellant were made, the verdict must have been guilty. The appeal against conviction must therefore be dismissed.

There is in this case an appeal also against sentence. If the situation were that the appellant should be regarded as having been found guilty of deliberately attacking a peaceful citizen and causing serious injuries for the mere satisfaction of so doing one would hestitate long before concluding that the sentence of three years imprisonment with hard labour with a non-parole period of one year and four months was excessive. But in the light of the discussion above the finding of the jury to this effect, although probably made, could not stand, because there was a fatal error in law in the direction to them in relation to phase one and two of the incident. In relation to the third phase there was an error of law but it was not fatal because of the great weight and nature of the evidence against the appellant on the critical issues. Where therefore one comes to the question of sentence, one is forced to ask what, in substance, is the crime which can be regarded as having been proved according to law against the appellant. In form it is that he was guilty of assault occasioning actual bodily harm. But in substance it is that being involved in a fight he lost his temper and used force well beyond what was proportionate to any peril reasonably feared by him and that in doing so he occasioned actual bodily harm to Van Veen. This is the only unlawful conduct proved according to law.

In a verdict of this class like that of guilty of manslaughter it is not always possible to divine the basis upon which the verdict is based. Thus "guilty of manslaughter" may sometimes mean either provocation or manslaughter as the result of an unlawful act, by wilful violence or merely culpable negligence. Thus in R. v. Doherty (1887) 16 Cox 306. Stephen J. said to the jury: -

"If, gentlemen, you convict the prisoner of manslaughter, I must ask you to be good enough to say whether you mean manslaughter by violence wilfully inflicted or by culpable negligence, for of course it will make a considerable difference in the punishment."

Similarly in the case of certain drug offences, the jury may have been told that the accused's ignorance of the precise nature of the tablets was as a matter of law immaterial, but no one would deny its relevance on the question of sentence.

In this case if any such question had been asked and the jury had said that it was satisfied of the applicant's guilt in respect of phase one or two of the incident the finding could not stand. But, for reasons stated above, the appellant might have been sentenced in respect of phase three. In sentencing the appellant the learned Judge said: -

"But the offence of which you have been convicted demands that you be imprisoned for a substantial period. You attacked Van Veen without provocation. As he was bending down you struck him a severe blow. When you and your companion, after you had both attacked him, had driven him to the ground you bent over him and continued to thrash him and you did him a substantial injury. There are no redeeming features in the circumstances of your attack. It was gratuitous and violet . . . " SSBI0
It is apparent that his Honour interpreted the verdict as a finding that the appellant had gratuitously initiated the incident by violently attacking Van Veen. But this was the issue on which the appellant's "evidence" had not been before the jury and a finding on which would if made have been a finding arrived at on inadequate materials and thus not sustainable. It is highly likely that his Honour correctly interpreted the verdict but the verdict, so far as it related to phases one and two, was undermined by the course taken in respect of the statements in the unsworn statement. In this present case, therefore, the proper course is to consider what sentence would be proper for the unjustified violence used by the appellant arising from his loss of temper in the course of a fight and injury caused thereby.

I consider that the period of imprisonment imposed by the trial Judge for the offence which he believed to have been proved was moderate in the circumstances. Therefore although I believe a substantial reduction in sentence is in order the magnitude of the reduction is less than it would otherwise have been. I concur with the sentence imposed according to the reasons of the Chief Judge and Fisher J., namely, that the sentence imposed by the learned Judge should be reduced to imprisonment with hard labour for two years with a non-parole period of one year.