SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I agree with the reasons and proposed order of Holmes J.

2. THOMAS JA:  I agree with the reasons and order proposed by Holmes J.

3. HOLMES J:  On 6 February 2000, Mr Peter Cribb was assaulted at about a quarter to one in the morning, while riding his bicycle along a bikeway adjacent to the Brisbane River.  Ms Melanie Isaacs, his companion, was cycling ahead of him as they rode down the ramp to the section of the bikeway running towards Coronation Drive.  As she reached the bottom of the ramp, she saw a number of people in two groups.  She rode past them, but looked back to see a figure running at Mr Cribb and striking him side on with his shoulder.  She heard sounds of someone being hit or kicked and loud voices.  A scuffle was taking place in the shadows. A figure which appeared to be Mr Cribb staggered out onto the bike path, moving backwards diagonally away from her before being attacked again.  She saw him being kicked, and then rode to get help. 

4. Police arrived at about 1.00 a.m. and found Mr Cribb floating face down about two metres from the wall which edged the bikeway.  His helmet was still strapped around his throat, its internal padding badly damaged.  Mr Cribb had suffered a severe brain injury.  The medical evidence was to the effect that the damage to the brain was likely to be the result of hypoxia (lack of oxygen) consistent with immersion in the river, rather than trauma.  Mr Cribb remains in medical care; he has been left with severe memory deficit and myoclonic, or jerking, movements of his trunk and limbs.

5. The appellants stood trial on one count of attempted murder of Mr Cribb and one count of grievous bodily harm with intent to do grievous bodily harm.  The appellant Mullins was convicted of attempted murder and the appellant F of grievous bodily harm with intent.  Mullins appealed his conviction on the ground of an alleged error by the learned trial judge in declaring a witness, Nanae Suzuki, hostile and failing adequately to warn the jury of the danger of acting on her evidence.  Both appellants complained of a failure by the learned trial judge to put the defence case in each case to the jury. Mullins relied also on a general ground that the verdict was unsafe and unsatisfactory, which was in effect a catch-all for his complaints in relation to the witness Suzuki and the failure to put the defence case to the jury.

The evidence against the accused

6. Jai Christie and Thomas Hare were part of a group of people which went down to the bike path beneath the freeway to drink alcohol. Mr Christie saw the young man on the bike being chased and then kicked and punched by three or four people. He had previously identified the appellants from photo boards as among the attackers, and said in examination in chief that he could remember them kicking and punching the fellow on the ground. In cross-examination, however, he said that he could not be absolutely certain that F was involved, that it was possible that he was mistaken as to Mullins’ involvement in the assault, and, indeed that at the committal he had conceded that he had no idea what, if anything, Mullins did. He had left the scene while the assault was still taking place. The others then “came too”, but he did not see what became of the cyclist.

7. Hare said that the man on the bike, when he first saw him, was surrounded by people hitting him with their fists. The cyclist dropped to the ground, and they started kicking him. Mr Hare thought three or four people were involved. He and Jai Christie started walking away up the ramp. The last he saw of the group, they were kicking the man. He had identified Mr F from a photograph as one of the people that was in the group, but did not attribute any particular role to him. He agreed in cross-examination that he had not in his statement mentioned the cyclist being on the ground or being kicked.

8. F was spoken to by a police officer at about 5.30 a.m. in the morning on the day of the assault.  He had fresh grazing to the knuckle of the middle finger of his right hand.  A friend of F’s, Rebecca Crawley, gave evidence of a conversation with him, about the 9^th  of February, when she mentioned hearing something of Mr Cribb’s having been found in the river.  F’s response was, “Oh, that was us… Yeah, we bashed him”.

9. The Crown’s most significant witness was Nanae Suzuki, who was 15 years old at the time of the assault. She was a friend of F’s but had met Mullins only the day before the incident. She had made a statement to police in which she described being at the riverside with persons named Sean, Paul, Smokey, KO and Jai. She saw the two cyclists come down the bike path. The contents of her statement about what followed were in evidence:

“I saw the male reach the bottom of the path.  He was riding very slowly.  I saw one of the guys run past me.  I think it was KO.  KO ran after the guy and jumped and kicked him.  The guy kind of fell off his bike but he put his foot down to balance himself.  The guy tried to get back on his bike.  He only got about one metre when KO then started punching him in the head and back and was pushing him off the bike.  I saw the guy on the bike was still trying to get back on and get away.

I then saw Sean, Paul and Smokey run over to where KO and the guy was.  The guy was on the ground now and they were all kicking into him.  They were full on.  They were not mucking around but going really hard.  They didn’t stop kicking him.  I saw KO jumping on the guy’s head.  As they were kicking him they went behind a pillar and I could not see for about 30 seconds.  They then came out the other side of the pillar which was close to the water, probably about one metre.

Jai hopped up and went over to them but I think he was just watching.

As they were kicking him towards the water, the guy was putting his arms out to try and stop going into the water.  It only stopped him for about five seconds and KO jumped on his head again and again.  The guy then just stopped moving and wasn’t trying to stop any more.  I was surprised he lasted that long.

At this stage Sean started to run away.  He came over to me and picked something up.  As Sean was coming over I saw Paul kick the guy and he rolled over the edge into the river.  I don’t know if he landed in the water or not.”

“Paul” as referred to that statement was Mullins; “Sean”, F; and “Smokey” Justin Jones.

10. In evidence-in-chief Ms Suzuki referred to a group consisting of herself, Sean, Justin, Jai and Mad Dog (who seems to be “KO”). She said that Mad Dog kicked the male cyclist in the back of the head or back, and then started to bash him.  Sean, Paul and Justin went over to where the two were.  Some joined in, but she was unable to say who the participants were.  Jai also went over, but she could not say whether he was involved.  Mad Dog stomped on the cyclist and jumped on his head.  Sean came back over to her; while that was happening the cyclist was rolled into the river.  She was unable to say who did that.  The group walked away from the river.  Everyone was told not to say anything, and Mullins said that, “if we said anything that he was going to kill us too”.  On being asked to repeat the last answer, Ms Suzuki gave it as “Paul said that if we said anything he was going to kill us, something like that”.

11. The Crown made an application to cross-examine Ms Suzuki on her statement, on the basis of her inability at trial to identify who was involved in the assault apart from Mad Dog, and her failure to refer to Mullins kicking the cyclist into the river. This was in a context in which after leaving the scene of the attack on Mr Cribb, she and Mullins had gone to a nightclub, from where she had gone home with Mr Mullins and stayed with him for a week.

12. Under cross-examination by the Crown prosecutor, Ms Suzuki confirmed that she had made the prior statement to police. After hearing submissions, the learned trial judge declared her hostile. In doing so, her Honour observed that Suzuki’s demeanour was that of a person extremely reluctant to provide evidence on crucial matters. She had not come close to the evidence in her statement; and her Honour referred also to her alacrity to correct the statement as to what was said after the incident (the omission of the word “too”, when she repeated her initial evidence as to Mullins’ statement, “he was going to kill us too”).

13. For the appellant Mullins it was argued that the opinion formed by the trial judge that the witness Suzuki was hostile (or “adverse”, to use the language of s 17(1) of the Evidence Act 1977) was without a proper basis.  The formation of such an opinion required a satisfaction that the witness was deliberately withholding material evidence by reason of an unwillingness to tell the whole truth. In the present case all that had been demonstrated on the part of Ms Suzuki was an inability to remember matters in her police statement rather than an unwillingness to tell the whole truth.  Insufficient allowance was made, it was contended, for the facts that the witness was only 17 and was describing, 15 months later, events for which the lighting was poor.  Regard should also have been had to Ms Suzuki’s claims as to the circumstances in which her statement was taken. She said she had told the police at the time the statement was made that she could be wrong; that the police had put pressure on her, and provided her with a list of names of people they were “blaming it on”.  It was also argued that some evidence Ms Suzuki had given before the making of the declaration, as to Mullins having been in the group around the cyclist when he was being kicked, and his having later made the threat, was not consistent with a desire to exculpate him.

14. It was also suggested, although not pressed, that reliance by the Crown on Ms Suzuki’s earlier statement as a basis for having her declared hostile was inconsistent with the acceptance of a plea from another member of the group, Justin Jones, to a charge of grievous bodily harm with intent on the basis that he was not physically involved in the attack. The acceptance of a plea on that basis was not consistent, it was said, with Ms Suzuki’s statement, in which she had attributed serious violence to him.  As to this, it seems to me that the acceptance of a plea of guilty on a particular set of facts will, in the usual course of events, reflect no more than a realistic appraisal of what verdict might be obtained on the evidence available against that accused at trial.  It cannot bind the Crown, as against other accused, to the evidence relied on for the plea to the exclusion of other evidence which might also implicate the accused who has pleaded guilty.  I do not, therefore, consider that the acceptance of Jones’ plea has any bearing on the issue of whether the trial judge properly exercised her discretion in declaring Ms Suzuki hostile.

15. It is a matter peculiarly for the discretion of the trial judge whether leave should be given to treat a witness as hostile.^[1]  Whether a witness should be regarded as hostile may be assessed by reference, among other things, to a prior inconsistent statement, the witness’s demeanour, his or her conduct in the witness box, the answers he or she gives to non-leading questions and his or her choice of language^[2].

16. To persuade a court upon appeal that the discretion of a trial judge should be interfered with in this regard, an appellant must demonstrate that leave was granted on wrong principles.^[3]  In the present case, her Honour had regard to what she perceived as an inconsistency of recollection between the witness’ evidence in the witness box and what she had said in her statement; to the witness’ demeanour; and to the witness’ manner of answering questions.  All of those were proper matters for her consideration.  No error of principle in the exercise of her discretion has been identified.

17. Next, it is said that the learned trial judge failed adequately to warn the jury in relation to Suzuki’s evidence. Her Honour warned the jury to:

“approach the evidence given by Ms Suzuki and, in particular, the evidence provided in the statement to the police, with great caution”. 

Having pointed out a number of inconsistencies and other matters, such as the effect of alcohol and fatigue on Suzuki’s evidence, her Honour went on to say:

“For these reasons you should approach the evidence which Ms Suzuki gave in the trial with great caution.  Where her evidence is the only evidence on a relevant matter you should consider whether you are able, in those circumstances, to accept her evidence.  Furthermore, I should warn you that given what I have said, there are dangers in accepting her evidence on critical matters, and that it would be dangerous to convict Mr Mullins where hers is the only evidence.”

18. It was certainly the case that Ms Suzuki’s was the only evidence to implicate Mullins in the offences.  It might be said also that her evidence was crucial in F’s case as the only evidence of that assault, or part of the assault, by which the Crown said grievous bodily harm was caused: the kicking or pushing of Mr Cribb into the river.  However, at trial F relied on Ms Suzuki’s evidence as accurate (presumably because it contained an account of his leaving the assault) and did not seek any direction as to the dangers of acting on it. Nor was any point taken in relation to it on F’s appeal. 

19. While, strictly speaking, it might have been preferable to warn the jury that Ms Suzuki’s evidence was the only direct evidence of Mr Cribb's being pushed into the river at all, it was made clear to the jury that her evidence was critical to the case against Mullins.  The question is whether the direction was in sufficiently strong terms.  To argue that it was not, Mr Hamlyn-Harris relied on the following statement by Matthews J in R v Son Hoang Nguyen ^[4] :

“…in a criminal case I would suggest that statements such as those with which we were concerned and, although there be other evidence tending to incriminate an accused, should be made the subject of a direction to the jury that it should only act on those statements, if satisfied beyond reasonable doubt that they were made and were true; in other words out of court statements should be treated as circumstantial facts and the direction should follow Chamberlain v The Queen (No. 2) (1984) 153 CLR 521.” 

Nguyen’s case concerned out of court statements which were the only evidence against the appellant.

20. I have some difficulty in accepting that evidence in a statement received under s 18 of the Evidence Act 1977, which by virtue of s 101(1) is evidence of the facts therein, should be regarded as circumstantial, and therefore subject to a Chamberlain^[5] direction.  In any event, in the light of Shepherd v R^[6]   I do not think it follows that such a direction was imperative.  The jury had been directed at the outset of her Honour’s summing-up as to the need to be satisfied beyond reasonable doubt of the accused’s guilt before convicting. It was reminded again of that requirement in the context of directions in relation to the elements of the offences with which Mullins was charged.  Taking all that was said in relation to the witness Suzuki together with those warnings, I do not consider that there was any deficiency in her Honour’s summing-up in this regard.

Whether the defence cases were adequately put to the jury

21. In the course of her summing-up the learned trial judge adopted an approach of outlining the elements of the offence which the Crown was required to prove and pointing to the relevant evidence. In the process of so doing she raised possible criticisms of that evidence and gave, as has been seen in the discussion of Suzuki’s evidence, necessary warnings. However, she did not at any stage of her summing-up assemble the arguments put by the defence counsel and the Crown and remind the jury of them. It is, I think, clear that such a course is desirable.^[7]

22. After the conclusion of the summing-up, both Mr East for F and Mr McGuire for Mullins sought to have the jury reminded of the defence submissions. Her Honour declined that application. On the eighth day of the trial, in response to an application for redirections, her Honour largely repeated her summing-up. Again, both counsel for the defence renewed, without success, their applications to have the defence cases put to the jury. It was contended, both at first instance and here, that the need for the jury to be reminded of defence submissions was particularly pressing in a context in which the address of counsel for Mullins was made on day four and that of counsel for F on day five, but the summing-up did not conclude until day seven, and the redirections were given on day eight.

23. What must be considered is whether the failure to summarise counsel’s submissions had any effect on either accused’s prospects of securing an acquittal.

24. Mr McGuire, in his address on behalf of Mullins, dwelt at length on the deficiencies in Suzuki’s evidence and, to a lesser extent, on Christie’s retreat from any identification of the persons involved in the assault. The case for Mullins, as put by his counsel, was that he was not a party to the assault on Mr Cribb. Those deficiencies in the witnesses’ evidence were also dealt with by her Honour in her summing-up, although her comments were not prefaced by any reference to their forming part of the defence submissions.  It can fairly be said, I think, that there was no aspect of Mr Maguire’s submissions which was not raised in her Honour’s summing up to the jury.  Accordingly, I do not think that this ground of appeal has substance in the Mullins case.

25. There remains, in the case of Mullins, a general ground of appeal, that the verdict was unsafe and satisfactory, because the Crown case depended on the evidence of Ms Suzuki as elicited by the prosecutor’s cross-examination, in circumstances in which she had claimed not to be able to remember certain matters, and should not in any event have been declared hostile. To that is added the complaint of failure to put the defence case.

26. There was, as I have indicated, no defect identified in the process by which Ms Suzuki was declared hostile. This was not a case in which she contradicted or retracted the contents of her statement; rather she confirmed their truth but professed a present lack of recollection. So far as the summing-up is concerned, although the defence submissions were not put as such, the circumstances underlying the defence case that Ms Suzuki was not to be believed were thoroughly explained to the jury. I would not conclude, therefore, that the verdict was unsafe or unsatisfactory.

27. The case advanced in F’s defence at trial was somewhat more complex. Mr East did not challenge the evidence of Suzuki as to F’s involvement in the initial part of the assault. However, he asked the jury to conclude that there were two distinct assaults, those being, respectively, the attack by blows and kicks on Mr Cribb on the bike path, and the pushing or kicking of his unconscious body into the river.  Mr F had not been a party to the second assault.  Alternatively, if there were a continuing assault, Mr F had withdrawn from any common intention prior to the point at which Mr Cribb was placed in the river. 

28. Her Honour summed up to the jury on the question whether there was a timely withdrawal in some detail, and directed that they should acquit unless satisfied that no such withdrawal had occurred. Given the paucity of evidence of words or conduct by F to support a conclusion of timely withdrawal, the direction may have been unduly generous. However as to the question whether there was separate assaults, her summing-up contains only this passing reference:

“It is a matter for you to decide whether you find that, by joining in the assault and the circumstances that occurred, Mr F thereby aided in the commission of attempted murder, that is, in joining in the violent assault, did he aid or encourage another to commit the offence of attempted murder of Mr Cribb by pushing him into the river or was that act of pushing into the river something quite separate.”

Mr East applied for a redirection to the effect that the jury, if satisfied that the common purpose had come to an end before Mr Cribb was pushed into the river, so that it was a separate event, should acquit Mr F.  Her Honour declined to do so on the basis that the reference to a separate offence as set out above was adequate.

29. It is clear that the defence as to there being two distinct assaults was not in any real sense put to the jury by the learned trial judge. It is necessary therefore to consider what substance there was in the defence submission in that respect, in order to assess whether a real chance of acquittal was lost thereby.

30. The Crown case was that there was a common intention to assault Mr Cribb, its end result being the deliberate infliction of grievous bodily harm on him and that result being a probable consequence of the type of assault committed on him.  The essence of the defence case was that any such common intention had ended, at least so far as F was concerned, when Mr Cribb lay unconscious on the bike path and F removed himself from the scene.  The pushing of Mr Cribb into the river was the product of a separate and subsequently formed intention to which F was not a party. 

31. What then was the evidence to support such a break in the common intention? F was reliant on the evidence of the witness Suzuki to show that he had left the assault. She had been seated close to the bottom of the ramp leading down to the bikeway. From F’s perspective, Ms Suzuki’s most helpful account of his movements emerged in cross-examination by his counsel. On that version, the cyclist was lying motionless, his body still entirely on the bikeway itself, at the time at which F ran from the group to her. The distance he ran was about the length of the courtroom, which, she agreed, was about 10 to 15 metres. When he reached her, he picked up the wine cask bladder they had been drinking from. The two started to run. As she ran, but before going up the ramp, Ms Suzuki looked around to see the cyclist being kicked into the river. (On her evidence in examination in chief and her statement, the cyclist was rolled into the river slightly earlier, either while F was still coming over to her, or at the point at which he had reached her.) On that version, the temporal gap between F’s last participation in the assault and the cyclist being pushed or kicked into the river was the time it took for him to run slightly more than 10-15 metres (as far as the ramp, to which Ms Suzuki was close) allowing perhaps a second or two for him to pick up the cask bladder.

32. That time interval can be improved somewhat for F if one allows for the possibility that the jury might reject the evidence of Ms Suzuki as to distance and prefer a combination of the evidence of Ms Isaacs and Mr Christie.  Ms Isaacs identified the point on the map where she last saw Mr Cribb in the course of the assault.  A measurement of the map, which is to scale, shows it to be about 40 metres from the base of the ramp. (There were references by counsel to its being 45 metres.) Mr Christie said that he saw the cyclist being chased from the area of a pole at the bottom of the ramp to an area beyond the next pillar.  (That account would place Mr Cribb in an area consistent with Ms Isaacs’ evidence as to where she last caught sight of him.)  At that stage the man was on the ground on the bikeway.  He, Mr Christie, was within two to three metres of him.  He turned and started to walk back in the direction he had come.  As he walked up the ramp, the remaining members of the group were also on the ramp. Mr Christie conceded in cross-examination however, that a male person whose identity he could not recall, had run past him before the others.

33. To complete the picture as to positioning, Mr Hare, the remaining witness as to the events, gave an account more consistent with Ms Suzuki’s. He described the assault as occurring about two-thirds of the way between two pylons on the river bank; in fact at about the point identified as where Mr Cribb was pulled from the river and an attempt made at resuscitating him. That point is about 20 metres from the bottom of the ramp.  Mr Hare did not think that Mr Cribb had moved any distance from the commencement of the assault to the last he saw of it, when he walked away with Mr Christie.  At that time Mr Cribb was still being kicked.

34. On the most benevolent view of the evidence, the sequence of events was: a kick or shoulder blow to Mr Cribb by “Mad Dog”; a joining in by the group, including F, to deliver kicks and blows to him as he lay on the ground; with the final assault on him, by way of kick or push, occurring when F had run, taking the evidence at its highest, some 45 metres away. There is no significant time interval involved between the second and the last events. There is no marked difference in the nature of the violence being inflicted. The jury could not, in reality, have regarded the final piece of aggression as anything but a continuation of a single assault by which the group intended to inflict grievous bodily harm on Mr Cribb.

35. It follows that I do not consider that Mr F lost a chance of acquittal by her Honour’s failure to sum up this aspect of the case to the jury.

36. There were other matters alluded to by counsel for F on the appeal which had been the subject of address by Mr East. They were F’s youth (he was 16 at the time); the possible effect of alcohol on him, in impairing his understanding of the seriousness of what was happening; and the limited use which could be made of the admission “we bashed him”. I do not think that any of those matters was of such importance or complexity that it was incumbent on the trial judge to deal with it in her summing-up, whether by way of reminding the jury of defence submissions or otherwise.

37. I would dismiss both appeals against conviction.