SUPREME COURT OF QUEENSLAND

1. THE COURT:  The appellant was convicted in the District Court at Toowoomba on 24 January this year of unlawfully doing grievous bodily harm with intent to do grievous bodily harm to Christopher Brian Scott.  He was sentenced to six and a half years imprisonment.  He appeals against his conviction and seeks leave to appeal against his sentence.

2. As ultimately argued the appeal against conviction was on two grounds. They were that:

1. a miscarriage of justice occurred due to interference of the trial judge in the process of the trial;  and

2. the trial judge misdirected the jury by instructing them "that juries, by their verdicts, whether they be guilty or not guilty, help set the standards for the community the jury represents".

It is convenient to consider those grounds in that order.  However, before doing so, something should be said of the facts of this case.

3. The complainant moved to Millmerran in mid-August 1997. He met the appellant later that month. Although they got along reasonably well for the first few years there was ultimately a falling out. Reference will be made later to the way in which the appellant asserted the complainant "terrorised" his wife and children. However about five days before the date of the offence, which was 29 June 2000, they agreed to "bury the hatchet".

4. On that day the complainant commenced to walk from Millmerran to Toowoomba in order to collect his motor cycle. As he walked along the Gore Highway in the vicinity of the appellant's property he observed a Land Cruiser pulling out of the driveway. The appellant got out of the vehicle and closed the gate. He then returned to the vehicle and sat there for a minute before the vehicle was driven off in the direction of Millmerran. The complainant said that he walked a further distance of about half a kilometre past the appellant's gate when the Land Cruiser reappeared. The vehicle drove towards the rear entrance of the appellant's property. The vehicle re-emerged a further couple of kilometres down the road.

5. Eventually the Land Cruiser stopped in the vicinity of where the complainant was walking. It was driven by Lawrence Stevens, described in the evidence as "Trousers". The appellant was in the passenger seat. The appellant offered the complainant a lift. According to the complainant he declined the offer saying "Oh right. You've gone past me a couple of times now. Why stop now? I'll be right thanks." According to the appellant he was less polite in declining, saying "No, fuck you, you've passed me three times now, why come back?" The complainant continued walking. He said he heard the appellant call out "Fuck you".

6. The complainant said he then heard the car door opening and as he turned, he said, the appellant confronted him with a rifle and fired two shots one of which struck him above the right knee. The complainant said "What the fuck did you do that for?". He said the appellant started yelling and screaming and waiving the rifle around saying "You threatened me, you threatened my family, you threatened my kids."

7. The appellant's evidence was that indeed there had been a number of threats by the complainant both to his wife and in respect of his children and that he had driven at the appellant's wife in a way at least to frighten her and possibly even cause her injury. He agreed that he and the complainant had agreed to end their differences but he said that nevertheless he remained worried about the complainant. He said that, on the day of the incident in which he admits shooting the complainant in the leg, he was still apprehensive of the complainant.

8. The appellant said that on the day in question, after he had offered the complainant a lift and the complainant had refused, he had got out of the cabin of the truck and called out to the complainant: "Come on, don't be a fucking idiot, jump in. You know it's a long walk". At that point the complainant, he said, turned around and walked to him in an apparently threatening manner saying something like "I've got you". He said he also saw the sunlight shining on something metal in his hand and he thought that it may have been a knife. He then went to jump back into the cabin of the vehicle but his rifle, which was on the seat, would have prevented him from doing that quickly; he was short and there was a substantial step up. He then grabbed the rifle, and when the complainant kept walking towards him, fired a warning shot to his side. He said the complainant kept walking towards him and he then fired at his leg.

9. A doctor gave uncontradicted evidence that the complainant's injury was of such a kind that if left untreated, it would be likely to endanger his life. Accordingly grievous bodily harm was not really in doubt.

10. The Crown case was a strong one. The only possibility of a verdict of not guilty was if the Crown failed to negative self-defence in which the appellant was relying upon an honest and reasonable but mistaken belief that the complainant had a knife and, on the basis that that belief was correct, a belief on reasonable grounds that he could not preserve himself from death or grievous bodily harm otherwise than by shooting the complainant.

Intervention by the trial judge

11. It is undoubtedly the case that his Honour intervened on many occasions during the course of the appellant's evidence both in his examination-in-chief and in his cross-examination. Counsel for the appellant referred to at least 30 occasions on which his Honour did so, some of which span several pages. A total reading of the evidence of the appellant reveals many more than that. However there was plainly justification for many of these.

12. In the first place the appellant, it seems, was difficult to hear. A number of his Honour's interventions were to ask him to speak up. No complaint is, of course, made of these.

13. Secondly it is plain that the appellant seemed unable or unwilling, probably the former, to answer questions. He tended rather to say what he wanted to say. So a large number of his Honour's interventions, indeed most of them, were attempts to have him answer the question he had been asked.

14. Thirdly, and related to this, was the lack of clarity of the appellant's evidence. It is often unclear whether or not he had indeed answered a question or what his answer was. So a number of his Honour's interventions were concerned with clarifying the appellant's evidence. And it should be said that some of these attempts assisted rather than hindered the appellant's case.

15. It should also be noted that there were some questions attributed to his Honour in the transcript, which Mr Rafter for the appellant accepted were in fact questions asked by the prosecutor. Accordingly they should be ignored.

16. However there were a number of occasions on which, in our opinion, his Honour went beyond what was appropriate and on which he appeared to take on the role of cross-examining prosecutor. In considering these it should be said that by no means all of them are obviously hostile cross-examination but that, when taken together, they tend to evince a hostility appropriate for cross-examining counsel but inappropriate for a trial judge. Interventions occurred at various stages of the trial, but those primarily relied on occurred when the appellant was giving his evidence-in-chief, and during his cross-examination. We propose to mention only the most significant of these.

17. The first of these occasions occurred after the appellant had given evidence about what he said were many phone calls which had been received at his residence from the complainant which were threatening, abusive or otherwise concerning. He said that he had taped only two of these and one of those recordings had been lost. The other one was played in court. His Honour's questioning took the following form:

"How did it come about that you kept the tape on the answering machine, but you only taped one other call, and that tape's been lost.  How is it you only taped one call out of this great number that caused you concern?--  Do I have to answer this 'Yes' or 'No' or can I explain?

Why did you tape only one, which has been lost?--  The answering machine-----

No, not talking about the answering machine?--  Well it's the answering machine, that's why you can't do it.  The answering machine, you've got to put your message on, then they put their - then they talk after the beep.

No we're not talking about the answering-----?--  That's why you could not tape it.

I'm not talking about the answering machine.  You said you taped one other call.  By 'taped one other call' did you mean there was one other message on the answering machine?--  Yes.

You are aware that you can tape all incoming phone calls, are you?--  No.

Yes or no?--  No."

18. The appellant's credible explanation for not having or preserving more recorded phone messages from the complainant was, as seems to have emerged when he was permitted to explain, that the only means of recording messages was on the answering machine and that not all were recorded or preserved on it. His Honour's apparently hostile questioning, which may have been based on a misapprehension by his Honour that the appellant had a tape recorder available for this purpose, appears to have prevented him from giving this explanation earlier than he did. This exchange occurred during the appellant's examination-in-chief.

19. Shortly after this, also during examination-in-chief, the appellant, as lay witnesses sometimes do when asked to recall a conversation, after relating in direct speech part of a conversation between a man called Ken McDonald and the complainant, said "Ken wasn't impressed with it at all. Then he-----". He was then interrupted by the prosecutor, his Honour and his own counsel, the latter reminding him to relate the actual conversation. His Honour then intervened again in the following terms:

"HIS HONOUR:  You're not an unintelligent person.  You know those asides, those non-responsive irrelevant asides, you know they're inadmissible?--  Mmm.

Your counsel is trying very hard to keep you on the track?--  Well you've lost me, your Worship.

You listen to his question, and answer the question."

His Honour's frustration at the appellant's inability to relate only the conversation is understandable and, taken in isolation, this passage was no more than a frustrated attempt to confine the appellant to answering the question asked.  But his rebuke of the appellant in front of the jury, which does not seem to have been merited, assumes greater importance in the context of his overall conduct.

20. The next passage, again in the appellant's examination-in-chief, was in the context of the appellant packing his truck prior to leaving home on the journey which ended in the shooting. The appellant had earlier said that he bought a rifle after he had received threats from the complainant. Here he said that on this occasion he put his rifle in the truck. The following questions and answers ensued:

"HIS HONOUR:  Why did you put your rifle in?--  I always carry it until as far as I get-----

Sorry----- --  to the other.  I always-----

Tell the jury, thanks?--  I always put it in the car, take it with me, in case I get any problems with Chris or that - I put it in the car and usually when I get past Pampas, which is in between Toowoomba and Millmerran, I zip it up, unload - I unload it, zip it up and put it behind the seat.

One of the reasons, so as to understand what you are saying that you put the rifle in, is because of trouble with the complainant?  That's one of the reasons you put the rifle in the vehicle, if I follow you correctly?--  I - no, I always - it was like a habit.  I carried it with me for two - I carried the rifle for two years, and everywhere I went - every time I went out in the car.

I thought you said something about because of the problem with Chris?--  Yeah.

We can have it replayed-----?--  But that - that's what the rifle was there for all the time, yeah, it was like a habit that I - I'd put it - I'd take it with me all - every time I left to go out - out, or into town.  It was always in the car."

Again that passage could be construed as either clarification of the appellant's evidence or as hostile cross-examination.  It is only in the context of the whole of his Honour's questioning that it appears to assume more of the character of the latter than of the former.

21. The next of these passages occurred, again in examination-in-chief, after the appellant had given evidence of his first offer of a lift to the complainant and the complainant's rejection of it. He then said that the complainant started walking off. His counsel then asked the following question:

"Right.  How far did he walk?--  Only about - about five, six metres, and then I felt - I got out of the car and I said:  'Look'-----"

At this point his Honour interrupted once again.

"HIS HONOUR:  Right.  Now you got out of the car.  Will you give the jury as much detail as possible why you got out of the car then.  If I understand, you say you've been told all these things about how he's threatened violence and whatever, and that Ken McDonald has told you that he's two personalities and that after he said:  'Let bygones be bygones' a couple of weeks ago, you're still on your guard.  You had taken the precaution of locking the door.  When you asked him if he wanted a lift, to your generous request, one might think, he said something like:  'Oh fuck off', or whatever and wandered off.  Now if I understand what you've said correctly, if that was your state of mind will you tell the jury why you got out of the vehicle?  Tell the jury thanks?--  Well, Chris didn't act really aggressive against me for not - for offering him the ride."

Here his Honour could be thought to be implying doubt as to the veracity of the appellant's evidence that, notwithstanding his apprehension about the complainant and the latter's rejection of his request, he got out of the truck and renewed his offer of a lift.

22. At this point the appellant's counsel renewed his questioning:

"MR LYNCH:  Yes?--  So, I just thought he - he had the shits.  So, I said:  'Come on, don't be a fucking idiot, jump in.  You know it's a long walk' and then he turned-----

Where was he facing at that time when you said that?--  He - he was about - still about five metres away from me facing - facing me.

Yes?--  And he started walking back towards me-----".

At this point his Honour again intervened.

"HIS HONOUR:  Did it make you cranky at all, not only that he refused your lift, but he told you to fuck off?  Did that make you cranky at all?--  No, not really, 'cause it wasn't really aggressive 'fuck off', to - to what Chris - Chris comes out with."

This further questioning by his Honour appeared, consistently with his earlier questioning, to be suggesting that, by this stage, the appellant was angry rather than, as he may have been saying somewhat inarticulately, that he was apprehensive but was nevertheless being conciliatory.  His Honour repeated this theory to the jury during the summing up.

23. The appellant's counsel managed one more question:

"MR LYNCH:  So, tell us what happened?--  I opened the door out, I got out.  And he - then he started walking towards me, and the suggestion on his face and I thought he had a knife or something in his hand 'cause there was all silver there."

His Honour then took over again.

"HIS HONOUR:  Sorry, can you just say that again, thanks?--  I thought he had a knife or something in his hand 'cause he had all silver, I - I'd say it would have been his rings, thinking about it now, but at the time - 'cause the sun - it was fairly high, the sun.  And he had the - this look on him that he - like 'I've got you', you know, like - and I said:  'You're right?' and he come a bit more aggressive and I went to jump into the ute and the gun sits up about that high-----

So, you went to jump into the ute?--  Yeah.  And I realized I didn't have enough time to get into the ute 'cause - 'cause the gun - when you open the door up the gun nearly falls out, and I grabbed it and I just – back off.

Sorry?--  He didn't-----

You went to jump into the ute and you said you didn't have enough time.  What do you mean-----?--  Well, virtually-----

What did you have to do to get into the vehicle?--  I had to get up over the top of the gun.  I - the seats were packed up full of the bedding, there was a bag on - there was a bag on the floor, the video camera was on the floor as well, in between the seats, and I'm a very short person and to get into a ute that's - that high it's a - it's a big jump into - to get over it and get the door and window wound up.  When the gun sort of fell out, I thought-----

But was the-----?--  he'd back off.

If I understand you, the window was half up?--  Yeah.

Was it half up?  Yes?  So, he was about five or six metres away, and you had to climb into the seat and shut the door.  Did you have to do anything else?--  Open the door and climb into her, yeah.

Yes?--  I can get the gun out faster than I can climb into the gun - the - the - vehicle."

His Honour continued to take over the questioning of the appellant.  But the significance of this last passage is that it appears to imply doubt about the appellant's evidence, in particular about the difficulty which the appellant claimed to face, in the circumstances, in getting back into the cabin of the truck and closing the door in time to avoid being assaulted by the complainant with, as he said he thought, a knife.

24. The next passage occurred shortly after the commencement of the appellant's cross-examination. He was being cross-examined about the fact that he carried the gun with him notwithstanding the reconciliation which had taken place between him and the complainant, Mr Scott, shortly before the day in question. He answered this by saying that Scott had a split personality, a reference to an earlier statement apparently attributed to Scott himself; and by saying that Scott was "a big boy". Scott was apparently a very large man. The appellant himself was quite small and about 10 years older. The cross-examiner then focussed specifically on the time at which the truck in which the appellant was being driven approached the complainant.

"Okay.  So, as you approach Mr Scott, you're certainly not expecting any problems from him?--  He'd actually been seen in the streets more, he'd been quiet, no phone calls, no nothing.  He'd been really quiet."

At this point his Honour again intervened.

"HIS HONOUR:  But only a minute or two ago, didn't you tell me that he's a split personality, you've got to watch yourself, 'he's a big boy'?--  Yeah, well, you know, [indistinct] he'd still - you know, that's why I locked the door and the window.  You - you can't go waving a gun around a car - it's a rifle.

I'm trying to understand which one you're saying, whether you're saying you weren't worried about him at all 'cause of the reconciliation a couple of weeks ago or whether he was a split personality, you've got to watch yourself, big boy, and you'd lock the door as a precaution.  I'm trying to understand what you're saying?--  I was still watching him, because of his split personality.  I didn't have a gun held onto him while I was speaking to him.  I just locked the door to you know offer him a lift and he still - still seemed to be alright when I offered him the lift.  As I said, he wasn't that aggressive towards me."

Here his Honour seemed to be highlighting what he saw, possibly mistakenly, as inconsistencies in the appellant's evidence, a task which should have been left to the prosecutor.

25. A little later in cross-examination this occurred:

"MR LEHANE:  You would, of course, understand that you thinking he had a knife would have to be relevant to your defence in this case?--  Yeah, I - I suppose it would be, yes.

Extremely relevant?--  No, not for the size of the person.

HIS HONOUR:  Sorry?--  I said, 'Not for the size - size of him.'  He really doesn't need a knife for anything.  It was just that something was shining in his hand.  It was shiny.

MR LEHANE:  And you thought it was a knife? --  Yes.

And regardless whether he's 10 foot tall or three foot high, a knife's certainly going to help him in any confrontation?--  Yeah, I grabbed a gun.

Is that why you grabbed the gun, because of the knife?--  When he turned, yeah, with-----

Was it because of the knife you grabbed the gun?--  Well, I don't know whether it was a knife-----

HIS HONOUR:  Sorry, what-----?--  -----or-----

The question was, was it because of the knife you grabbed the gun.  What's your answer to that question?  What's the answer?--  Well, I was going to say it was the knife for sure, what - because of the item in his hand, the shine in his hand was one of the reasons why I actually grabbed the - the gun.

Correct me if I'm wrong?--  Sorry.

Did you say earlier the reason you grabbed the gun was you wouldn't have enough time to get into the vehicle?--  What was that - what - when the door opens, your Worship, the gun practically falls into your hand.  It falls out of the vehicle, because the vehicle's at the same height.  It's very narrow-----

No, the question I asked was a yes or no.  Did you say-----?--  Sorry.

Did you say earlier - correct me if I'm wrong - did you say earlier the reason you grabbed the gun was because you wouldn't be able to get into the vehicle in time?  Did you say that earlier or-----?--  Yes.

Thank you.  Yes?"

26. His Honour's second intervention here again appears to be for the purpose of highlighting apparent inconsistencies in the appellant's evidence. Whether these were actual inconsistencies or whether the two explanations - that he grabbed the gun because he did not have time to get back into the vehicle and he did so because he thought Scott had a knife - were in fact consistent, his Honour appeared to be engaging in a hostile cross-examination of the appellant.

27. It appeared for the first time in the appellant's evidence in examination-in-chief that he thought that Scott may have had a knife in his hand when the latter turned to face him. He explained that what he saw was the sun reflecting on something shiny in his hand. It may have been a knuckle duster or rings but he thought it was a knife. Then immediately after the passage I have just quoted the prosecutor put to him that at no stage did he mention to his instructing solicitor or his defence counsel that he thought Scott had a knife. He answered that he did. His Honour then interrupted the appellant's answers:

"HIS HONOUR:  You don't know if they heard you when you mentioned he might have a knife-----?--  Yeah, I -----

-----Is that what you're saying?--  I told them.  I said he had an item in his hand with a bag in his hand as well.  I said, 'It could have been a knife or his knuckle dusters.  I'm not quite sure, but it shined."

Mr Lehane managed one more question before his Honour interrupted again.  Then Mr Lehane put to the appellant again that there had never been any suggestion that he had a knife, to which he did not have the opportunity of replying before his Honour interrupted again:

"HIS HONOUR:  Do you agree that the first time the jury in court that we have heard about the knife was when you gave evidence?--  I-----

Is that the first time?  You've been in court the whole time?--  I don't know really, I - I thought I told me barrister, I thought it was up to him to-----

Sorry?--  -----to use it.

Sorry?--  I thought I told me barrister that-----

No, don't answer a different question.  The question is straightforward.  You've been in court the whole time, do you agree that the first time the jury, the court has heard-----?--  That's-----

-----about the complainant allegedly having a knife in his hand, was when you gave evidence?--  I think so, I'm - I - I thought me barrister had - had asked him whether he had anything in his hands.  Sorry."

At this point defence counsel sought to say something and his Honour sent the jury out.  It then appeared from what defence counsel said that the appellant had indeed told defence counsel that he had thought Scott had a knife in his hand but defence counsel thought, it seems correctly, that he could not put to Scott what the appellant had thought.  But nor had he questioned Scott about what, if anything, Scott had in his hand although he did question Scott about the bulky jewellery Scott ordinarily wore on his hands.

28. There was some further discussion during which his Honour indicated that he would permit defence counsel to tell the jury what his instructions were in this respect. However the jury were brought back and cross-examination continued without their having been told anything about this. The court adjourned shortly after 5.00 pm and resumed the following day. When the jury returned to court the next day, the prosecutor, Mr Lehane, made the following statement to them:

"Ladies and gentlemen, as a result of confusion, the witness, being the complainant, was not cross-examined on the issue as to what he had in his hand at the relevant time.  It's also agreed counsel for the accused would not be permitted to cross-examine the complainant as to the accused's belief at the relevant time."

His Honour then said "That's correct, Mr Lynch?", to which defence counsel replied "That's correct".

29. It is difficult to be critical of his Honour for leaving it to counsel to work out a formula to repair any unfair impression that may have been given to the jury of recent invention by the appellant, although in the event the statement was neither timely nor enlightening. What the jury made of all this is difficult to say but his Honour's persistent and apparently hostile cross-examination of the appellant on this point may well have damaged his credibility.

30. The appellant was properly cross-examined on his previous convictions, as the complainant had been, a cross-examination which again his Honour appeared to take over. Whilst it may be accepted that a good deal of this was simply eliciting the details of his offences and sentences for them, one of his Honour's questions which sought to elicit whether the appellant pleaded guilty or was convicted by a jury of an offence of having possession of cannabis with intent to sell or supply, was irrelevant and arguably prejudicial.

31. Two further pieces of apparently hostile cross-examination by his Honour may be recited without further comment. They are:

"HIS HONOUR:  Why did you put it in the passenger side that day?

--  I was a passenger.

We're aware you weren't driving, but why did you put it in the passenger side?--  Because I was the passenger.  It wasn't Trousers' gun;  it was my gun.

Why did you have the gun in the vehicle that day?--  I always - I've carried it for two years for protection for me family against Chris Scott."

and:

"HIS HONOUR:  After the first warning shot did you say anything to Trousers, or did Trousers say anything to you?--  Had no time, your Worship, he was still coming at me, he was only three - three metres away from me at this time.  He was right at the front of the vehicle.

No time to yell out one or two words?--  No, I'd - if someone's coming at you you haven't got time for a conversation or yell out to anyone else if - if someone's coming at you with a - with something.  You - you just haven't got time for that."

32. At little later the Crown prosecutor was cross-examining the appellant with a view, it seems, to showing that he could easily have caused the complainant more serious injury. The following question and answer from the appellant accepted that proposition:

"Exactly right.  I am suggesting that-----?--  'Cause if I couldn't have stopped him with that, I would have went higher."

The prosecutor then asked another question which was answered when his Honour intervened again.

"HIS HONOUR:  Was your answer, two answers ago, if the bullet in the leg hadn't stopped him you would have gone higher?  Is that what you said?--  Well-----

Is that what you said?  I'm only asking-----?-- I possibly would have been.  I - I possibly would have done.

Sorry.  Did I hear you correctly?  Is that what you said?--  I think - yes.

Thank you.  Yes?--  I was afraid."

This again was another piece of hostile cross-examination by his Honour with a view to highlighting the quite prejudicial evidence which the appellant had already volunteered.

33. The final piece of cross-examination by his Honour to which we should specifically refer occurred in the following context. The appellant had earlier said that when he got out of the cabin of the truck to offer Mr Scott a lift, his state of mind was, in effect, to keep the peace. He then said that, after he had shot Scott in the leg and while "Trousers" was getting the ambulance, he lectured Scott about the terrorizing he had done to everyone and told him he should wake up to himself or he wouldn't be in this position. It was put to him that he lectured Scott on all the reasons why he deserved what had occurred to which he replied:

"Not deserved it.  He - he did deserve it, but I lectured him because other people were going to shoot him and burn him and do everything."

34. His Honour then intervened and the following passage should be quoted in full.

"HIS HONOUR:  You said he did deserve it?--  He did deserve it.  I - I-----

Deserved to be shot in the leg?--  Well, he deserved a bit more than that, I reckon, your Worship, after the terrorization and terrorizing kids - have my - having kids in mental - in mental - things just 'cause of him.

MR LEHANE:  So your mindset was that he deserved more than just a bullet in the leg that shattered his femur?--  I reckon he deserves a lot more.

HIS HONOUR:  Was that your state-----?--  Yeah.

Was that your state of mind when you got out of the car?--  No, that's my state of mind now.

Was that your - sorry --- --?--  No, it wasn't.

Was that your state of mind when you got out of the car that he deserved to be shot?--  No.  My state of mind was still keep the peace, your Worship.  I-----

What, sorry?--  Still keep the peace.  Keep the peace.  You know, like, getting terrorized all your life it's - for two years - it's just no - no fun, I can tell you."

Again his Honour appears to be taking over the role of prosecuting counsel in attempting to have the appellant say that his state of mind when he shot Scott was that he deserved it, something which appears to be plainly inconsistent with what the appellant was in fact saying, namely that, whilst in retrospect he thought that Scott deserved what he got, at the time he was trying to keep the peace but fearful of being attacked by a very much larger man who he thought had a knife.

35. In considering whether, in consequence of these interventions, there has been a miscarriage of justice, it should be borne in mind that no objection was taken by defence counsel to his Honour's questioning; that, early in his summing up, his Honour told the jury that they alone decided the facts and that if they thought or suspected that he had any views on any question of fact to disregard it; and that no complaint could be made that, in his summing up, his Honour did not put the appellant's defence fairly to the jury.

36. Nevertheless both the nature and extent of his Honour's interventions had the tendency to cause unfairness to the appellant in two ways. The first was in impeding the orderly elicitation of his evidence-in-chief by his own counsel in a way which best presented his defence; and in impeding him from answering, as best he could, questions put to him by the prosecutor in cross-examination. And the second was in giving the jury the impression that he had a strong view that the appellant's evidence was, in a number of respects, incredible and that they, too, should disbelieve it; to such an extent that it may have overborne the jury's own assessment of this question.^[1]  Of course that does not preclude a judge from asking questions of a witness, not only to clarify his or her evidence, but also to test that evidence where the judge perceives that it may be untruthful or even inconsistent with other evidence.^[2]

37. Counsel for the Crown referred to the fact that his Honour also interrupted the prosecutor in his examination of the complainant and that there was some intervention in the course of the Crown case. This addition was intended to suggest a degree of even-handed, proactive, judicial intervention. However, it is noteworthy that the interventions during presentation of the Crown case do not tax or challenge what the complainant was saying and they lack the adverse attitude of incredulity or hostility that pervades the interventions when the appellant was giving evidence. The impression is also given of the Crown prosecutor and the judge acting in tandem. Of particular significance is the manner in which his Honour assisted in eliciting, and it would seem, emphasizing, the criminal history of the appellant.

38. It is impossible in cases such as this to know what effect interventions such as these have had on the jury. As we have already said, this was a strong Crown case; it was one in which the jury may well have convicted whether or not his Honour had intervened as he did. However, as has been pointed out on many occasions, juries sometimes accept defences which appear highly improbable to judges. And the more improbable the defence, the more difficult is the task of defence counsel and the greater is the need for a trial judge to defer to defence counsel in the way in which the defence case is presented.

39. It is possible that an imbalance created by undue judicial intrusion during the presentation of evidence may be redressed in a summing up. However, we can find no remedial effect of this kind in the summing up in the present case. Indeed, his Honour revisited the question of the appellant's criminal history in the course of the summing up, presented it in some detail, and saw fit to make a pointed connection between the statement made by the appellant in evidence that he did not like using abusive language when young ladies were present, and the fact that he had been convicted of using insulting words on one occasion and of using unseemly words on another.

40. Having regard to all of these matters, we are of the opinion that the nature and extent of his Honour's interventions was so prejudicial to the appellant as to cause his trial to miscarry. Accordingly this ground of appeal must succeed.

41. It is unnecessary therefore to deal with the other ground of appeal. But in case there is a new trial we should say something about it.

The alleged misdirection

42. This was in the following terms:

"What would be obvious to you, is that juries, by their verdicts, whether they be guilty or not guilty, help set the standards for the community the jury represents".

43. It is, however, important to see the context in which his Honour made this statement. He was instructing the jury as to the task which they performed in the case and reminding them of their obligation in reaching a verdict. This is what he said:

"It has been a system that has served Queensland well for a good hundred years that judges decide questions of law, juries representing a community decide questions of fact.  Juries representing a community resolve verdicts.

I stressed at the outset, and I stress again, it is not my view or the view of any person other than you 12 on a question of fact that matters.  Any finding of fact, any resolution of verdict, are your responsibility and yours alone.

In the discharge of your function you must, as much as is humanly possible, embark on a clinical, dispassionate evaluation of the evidence.  You must, as much as is humanly possible, remove considerations of sympathy and prejudice from your deliberations.  What you are asked to do is keep you feet on the ground, use your combined wisdom, experience and common sense, and what you are asked for is an honest verdict according to the evidence, no more and no less.

The evidence is the oral evidence from the witness box and the exhibits that you will have with you in the jury room when you retire to consider your verdict.

It is one of the beauties of the jury system that when you have 12 responsible adults representing a community, 12 responsible adults of different ages, different occupations, different experiences, different walks of life, both genders, that matters such as sympathy and matters such as prejudice can safely be said to level themselves out.  If you had one person deciding a question of fact, a matter such as sympathy or a matter such as prejudice might loom unduly large."

Then followed the passage in contention.

44. This is not a case like Maloney^[3] in which the jury were told what the consequences were for the accused of alternative verdicts.  But it was submitted that the direction might, unintentionally, convey the impression to the jury that an acquittal could contribute to the lowering of community standards.

45. We do not think that was a reasonable possibility. His Honour was saying no more, in the context of his earlier remarks, that community standards are set by juries who perform their duties without fear or favour. That seems to us to be a correct though unnecessary remark.

46. For that reason we think that this ground would have failed.

Orders

1. Appeal allowed.

2. Conviction set aside.

3. New trial ordered.