SUPREME COURT OF QUEENSLAND

1. WILLIAMS JA: I have had the advantage of reading the reasons of Chesterman J and the additional reasons of Mackenzie J and I agree that for those reasons the appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.

2. MACKENZIE J: The facts of the case and the conduct of the complainant which is alleged to have led to an unfair trial are set out fully in Chesterman J’s reasons for judgment.

3. The issue litigated in the trial was whether the jury accepted that the accused did not act in self-defence. The evidence upon which the defence was founded came solely from the appellant’s record of interview. He did not give evidence, with the result that a number of circumstances consistent with the complainant’s account, referred to in Chesterman J’s reasons, which may have appeared to the jury to be inadequately explained in his record of interview, remained that way at the end of the evidence.

4. The learned trial judge was faced with a difficult task in trying to control the witness. The outbursts, which were in many cases offensive and disrespectful to the court, counsel and the accused, were in all probability the product of an impaired capacity to exercise self-control, not a calculated decision to make them. There is no reason to think that the jury would have thought otherwise, especially given the medical evidence and the careful and forceful warnings during the evidence and in the summing-up by the learned trial judge.

5. The ultimate question is whether the appellant was deprived of a fair trial. The underlying proposition is that the outbursts may have poisoned the jury’s minds against him to such an extent that the jury should have been discharged.

6. R v Kenward [2000] QCA 482 provides an example of a case where a conviction was quashed because of a complainant’s conduct.  There appears to have been a quality of deliberateness in the complainant’s remarks which is absent from the present case.  It was also a case involving child abuse which had occurred many years before, where particular care needs to be taken to ensure that the trial is conducted as dispassionately as possible. 

7. Each case will depend on its own facts. The circumstances which may make it necessary to discharge a jury or set aside a conviction if the jury should have been discharged but was not are many and varied. Where conduct of a witness is alleged to have distracted the jury from performing its task by injecting personal prejudice against the accused into the trial, the conduct must be viewed in the context of the whole of the trial.

8. When the principal issue in the present case is focused on, it is, in my view, not the case that the conduct of the complainant, in all the circumstances, rendered the trial unfair. I would dismiss the appeal against conviction, and refuse the application for leave to appeal against sentence for the reasons given by Chesterman J.

9. CHESTERMAN J:  On 19 June 2001 the appellant was convicted of doing grievous bodily harm to Barry William Hohn on 26 June 2000 and, on the same day, robbing him of $3,000 whilst armed with a home made cricket bat with which he twice struck Hohn severe blows to the head.  He was sentenced to concurrent sentences of imprisonment: 4 years for doing grievous bodily harm and 8½ years for armed robbery.  He appealed against the convictions and applies for leave to appeal against sentence though the application for leave was not pressed.  It was, however, not formally abandoned. 

10. The facts can be stated with relative brevity. The appellant was 25 years old at the time of the offences. His victim, Barry Hohn was a man of middle age. They did not know each other before the day of the robbery but had a mutual acquaintance Matthew Bayliss. Hohn wished to buy a substantial quantity of marijuana and asked Bayliss if he knew of a likely supplier. Bayliss mentioned the appellant and a meeting was arranged for 26 June at the Withcott Hotel.   The complainant took with him $3,000 in cash which he put in a plastic bag and placed in his underpants.  He wore, in addition, a shirt, stubby shorts and a pair of thongs. 

11. The introduction having been effected the appellant and Hohn drove from the hotel to a location known as Murphy’s creek, somewhere between Withcott and Helidon where the appellant’s uncle had a property. The appellant left the complainant with a stubby of beer while he went to obtain the drugs or to meet another man who would supply them. The complainant sat at a picnic table to drink his beer. He was surprised by the appellant who approached from behind and hit him with a fence paling fashioned into a rudimentary cricket bat. Mr Hohn was severely injured. His skull was fractured in two places and he suffered a degree of brain damage. He bled profusely. The appellant stole his money and left him for dead. When the complainant regained consciousness he managed to crawl to the road that ran past the property. He clung to a tree and luckily was seen by a neighbour driving to town. He was taken to the police station at Helidon and then to hospital.

12. A police officer who went to the scene identified by Mr Hohn found a number of items of property generally corroborative of the complainant’s testimony. He saw the home made cricket bat and observed blood in the vicinity of the picnic table and chairs described by Mr Hohn, and on the bat. There was a stubby bottle of beer of the brand the complainant said he was drinking.

13. About a week later, on 3 July 2000, the appellant was interviewed by detectives from Gatton CIB. He admitted striking Hohn with the bat but claimed that he had acted in self-defence. He said that the complainant “reached down in his groin, in his shorts, and pulled out a concealable hand gun . . .”. He admitted taking the $3,000 but said it had been put in the glove box of his car by the complainant and that he “returned that to the people who owned it”. He did not identify the owners or explain how he knew the money was theirs. The appellant told the detectives that Mr Hohn did not take out the gun while the men were at the property but in his car in which they “just went for a drive to the road” after which they drove back to the property where they wandered around, the complainant holding the gun. According to the appellant “he turned around for a short period and (the appellant) took the chance to . . . get away”.

The police who attended the scene did not find a hand gun.  The appellant did not, it seems, take possession of it after he disabled the complainant.  Mr Hohn did not have a gun when rescued by the neighbour. 

There was some evidence that a day or so after the attack on Mr Hohn the appellant travelled to Nimbin “to do a drug deal” and was seen to possess a substantial sum of cash.

The complainant admitted having owned rifles in the past but denied ever possessing a hand gun. 

14. The only contested issue put to the jury was self-defence. The jury was directed that if they entertained a reasonable doubt that Mr Hohn had produced a gun and threatened the appellant they should acquit him of both charges.

15. The appellant’s complaint is that he did not receive a fair trial by reason of the complainant’s misbehaviour in the presence of the jury. The appellant contends that Mr Hohn improperly inflamed the jury against him. He submits that it should have been discharged.

It should be noted that the appellant’s conviction followed a second trial on these charges.  The first trial was abandoned when the trial judge did discharge the jury because of Mr Hohn’s misconduct. 

There is no doubt the trial judge was troubled by the complainant’s behaviour which was rude, aggressive and unresponsive.  He was abusive to counsel and disrespectful to the court.  He disregarded frequent warnings. The trial judge entertained but rejected several applications to discharge the jury. 

16. It is unnecessary to set out all the instances of Mr Hohn’s bizarre conduct. The following is a sample.

Having been called to give evidence he said, as he approached the witness box,

“I don’t have to go through this bullshit again, do I?”

Having been sworn he volunteered:

“I attend the church on Sunday so I’m pretty right.”

When asked to give his occupation he said he was a pensioner but went on:

“I’ve got a crook back and a crook knee.  I’ve got 5 pins in me knee and . . . a very crook neck.”

Very shortly into his examination-in-chief defence counsel sought to address the court in the absence of the jury.  He requested his Honour to direct the witness to leave the courtroom but when told to leave Mr Hohn retorted:

“I only just got here.”

Mr Thompson expressed his concern that the witness was “obviously drunk”.  His Honour remarked that the witness had not staggered and did not appear to smell of alcohol.  His speech was not slurred.  Counsel whom the witness had passed close by on his way to the witness box said he could not smell alcohol.  The bailiff also said he had not smelt liquor.   The complainant was recalled. 

17. During cross-examination the trial judge repeatedly had to warn Mr Hohn to restrain himself, to remain polite and to answer the questions.

18. When Mr Thompson stood up to cross-examine, Mr Hohn said:

“Now, here comes the bullshit.”

He was admonished immediately by the trial judge who told him:

“ . . . Do your best to try to answer questions.”

Parts of the testimony, though irrelevant, were remarkably inconsistent.  He said for example:

“I don’t mind a drink.  I can still hold me head.  I’m half pissed now but I’m still talking to you.

Yes?  -  I know what I’m talking about.  I’m not drunk.  Never have been drunk.”

19. It appears at times the witness directed his attention directly to the appellant rather than examining counsel. He became agitated when questioned about the presence of the cash in his underpants. He explained that it was there because his wallet and his glasses filled his pockets and left no room for the money. The trial judge attempted to calm him down but the witness went on:

“. . . so no-one could find it . . . no-one can find it.  And he found it well damn you . . .”

The trial judge again sought to restore order and asked him not to make comments to the appellant.  His Honour also told the jury to disregard the comments but the appellant went on, interrupting his Honour,

“If you’d laid in the hospital as long as I did you’d be . . . cranky too . . .  Eight weeks I laid in the hospital . . .  Eight weeks nearly dead.  Nearly dead.”

The passage just quoted does not give the full flavour of what happened.  While the witness was talking the trial judge was imploring the witness to show restraint and to answer questions responsively.  The complainant spoke across him. 

20. When asked whether a man named White had also been at the hotel the complainant described him as the:

“Biggest arsehole that ever walked on two legs.  It’s like this prick over here.”

The second sentence was a reference to the appellant. 

21. At 4.30 pm on the first day of trial the judge excused the jury and then spoke to the complainant. His Honour warned him again not to make derogatory comments about the appellant. Mr Hohn interrupted his Honour to say:

“Just makes me sick to look at him.”

He was warned again that his Honour would not “tolerate you continuing to make these comments”. 

Mr Hohn replied:

“He tried to kill me . . . he tried to kill me . . . I’ve been suffering ever since . . . been suffering ever since.”

The trial judge spoke sternly and threatened the witness that he could be found guilty of contempt of court.  Mr Hohn then apologised and said that he understood that the judge wanted him to “behave meself”.

Despite having expressed such contrition he said immediately:

“Well don’t have him in the room when I (come back).” 

 He was told the accused had to be in the courtroom.  Hohn replied:

“He’s a fucking arsehole . . .”

22. When the court resumed next day the trial judge gave the jury a clear warning that they were to disregard Mr Hohn’s erratic behaviour and his abuse of the appellant in evaluating the case against him. They were clearly directed that they were not to be swayed one way or the other by his antics but were to concentrate upon his testimony.

23. Unfortunately the adjournment had not improved things. When Mr Hohn was recalled for further cross-examination he burst out:

Mr Hohn: “Get him out of here. Get him out of here.

His Honour: Would you get into the witness box? 

Mr Hohn:  I don’t want him here.

His Honour: Well . . . that is not for you to decide

Mr Hohn:  . . . Well he . . . belted me.  He bashed me. 

His Honour: This . . .

Mr Hohn:  . . . took my life.  Nearly took my life.

His Honour: Would you get into the witness box and . . . give your evidence and stop making those outbursts?

Mr Hohn:  . . . Alright I’ll have a go.”

24. A little further into the cross-examination he was questioned about the sequence of events when he sat at the table. He was asked if he had his glasses. He said:

“Well they should have been on me head, which I think they were, until he flogged me nearly half to death . . . the biggest arsehole you ever seen on two legs.  Come up behind a man and tried to kill you.”

The jury was immediately sent out and the witness warned in straight terms that he faced being punished for contempt of court.  He responded by saying he would “shut up and say no more”.  Unhappily he did not keep his promise.

25. The complainant was contemptuous of counsel. When pressed in cross-examination for his recollection of a conversation with Bayliss he told the cross-examiner:

“Look . . . you’re a duck fucker.  Hey.”

Later, when the trial judge sensed that the cross-examination might have become repetitious and, for obvious reasons, wished to limit the witness’s opportunity to be disruptive, cautioned counsel.  Mr Hohn offered his observations on the point.  Referring to counsel he said:

“He’s raving on . . . raving on like a kookaburra.  He don’t know where he’s going.”

26. When cross-examination finished the prosecutor, understandably, did not re-examine. The trial judge told Mr Hohn to leave the witness box. This then happened:

Mr Hohn:  “Can I tell them my story?

His Honour: No, you have already told it . . .

Mr Hohn:  No, I haven’t.  I haven’t.  No no - I haven’t started yet.

His Honour: Well?

Mr Hohn:  I haven’t started.

His Honour: Well we . . .

Mr Hohn:  I haven’t started.

His Honour: We have heard as much as we need, thank you?

Mr Hohn:  No I haven’t started.

His Honour: Right, well . . .?

Mr Hohn:  He’s the guilty one.

His Honour: No just move . . .

Mr Hohn:  He tried to kill me.

His Honour: Mr Hohn, please . . .

Mr Hohn:  He tried to kill me.

His Honour: . . . do what you are told

Mr Hohn:  I will.  But I tell you what, I’ll come back and have a talk to you.”

27. There was convincing evidence that the complainant’s outrageous demeanour was a consequence of brain damage sustained when the appellant struck him. Dr Nowitzke was a neurosurgeon who treated Mr Hohn at the Princess Alexandra Hospital.  Having had the complainant’s behaviour described to him he was asked whether his conduct could be attributed to the head injury.  The doctor replied

“It’s the same behaviour . . . he exhibited in the . . . committal . . . and at that time I made the point that this is very consistent with post head injury type changes.  It’s quite common for . . . people who have had head injuries to suffer changes in their behaviour, in their personality.  They do become quick to anger. They become irrational. . . .  The behaviour that he is exhibiting now would be very consistent with post traumatic brain injury.”

28. In his summing up the trial judge paid particular attention to the complainant’s behaviour and the problems it posed for the trial. The jury was advised again that they were to disregard the abuse and insolence directed towards the appellant and his counsel, and they were not to be influenced by any feelings of sympathy for Mr Hohn.  They were warned to direct their attention only to the evidence and to the points in issue which were, as I said, whether there was a reasonable doubt that Mr Hohn threatened the appellant with a firearm.  The direction which I have summarised was very full and explicit. 

29. The appellant pins his hopes on a decision of this court, R v Kenward [2000] QCA 482.  Kenward was convicted of raping and of indecently dealing with a girl under the age of 16. The trial took place about 20 years after the alleged events.  The complainant behaved throughout her evidence in a histrionic and manipulative way designed to elicit feelings of hostility in the jury towards the accused man.  On one occasion, as the complainant walked past the jury box, she turned towards the accused in the dock and said:

“You make me sick you do - the whole thing.  Disgusting pig.”

When questioned about the fact that she had not made a complaint for about 20 years she addressed the court:

“What do I say to people . . . guess what . . . I was molested by my step-father all my childhood and he knows he did it and still says he didn’t . . . (He) sits there . . . You make me sick.  I hate you so much.  I’m starting to get a hate for you. . . . Destroyed my whole family.  My relationship with my daughters, everything.  Every time I come to court . . . I get so angry.  I can’t stand anyone near me.  He doesn’t care . . .  If he cared he’d admit what you did to me . . . tell me that you’re sorry.”

As a child the complainant had wet her bed.  She said, in answer to a question in cross-examination, that as an adult she knew that that was “a psychological symptom of abuse”.

The complainant was warned by the trial judge and had been expressly cautioned by the prosecutor before the trial not to behave in such a manner.  Previous trials had been abandoned because of such conduct.  Both the accused’s instructing solicitor and Crown prosecutor indicated to the trial judge that they believed the jury had become prejudiced against the accused by reason of the outbursts. 

30. It seems to have been assumed that the complainant’s inflammatory and prejudicial comments were deliberate and were intended to persuade the jury that she was a truthful witness whose sexual molestation at the hands of Kenward had had such a psychological effect on her as to deprive her of self control.

The convictions were quashed on the basis that her outbursts had made the trial unfair. 

31. There are obvious differences between Kenward and this case.  The conduct there was deliberate and was engaged in for the very purpose of having the jury believe the complainant in preference to the accused. The complainant’s evidence was uncorroborated so her credibility was essential to the Crown case.

32. The critical difference is that Mr Hohn’s conduct was not deliberate. It was the result of organic brain damage which deprived him of self control. Once the cause of the misbehaviour was known it took on a wholly different significance. Mr Hohn’s antics, his outbursts of anger, disrespect for the court and his unresponsive answers lost their capacity to improperly influence the jury who knew that his behaviour was the product of a disordered mind.  That knowledge would facilitate their ignoring it.  The trial was not unfair because there was a known cause for his conduct which did not therefore tend to inflame the jury. 

Moreover the prosecution case was not entirely dependent upon Mr Hohn’s evidence. The appellant admitted doing him grievous bodily harm and taking his money.  The only issue was self-defence.  The circumstances apart from Mr Hohn’s testimony strongly suggested that he was not armed.  The appellant did not give evidence. 

33. The trial judge put the matter perceptively when he said in passing sentence:

“It would have been a cruel irony if, as a result of the injuries sustained by the complainant, there had been a necessity to declare a mistrial which may have resulted in you going scott free as a result of what you had done to this man.”

34. In my opinion the trial judge was right not to discharge the jury. I would dismiss the appeal.

35. The sentence was not the subject of any real criticism. Although a substantial term of imprisonment was imposed the offence was a serious one. The blows which the appellant inflicted on the complainant were severe. The attack was calculated. The motive was theft. The complainant was left severely injured in remote bushland. As well the appellant had been previously convicted of a similar offence, robbery, on 7 January 1999 when he was sentenced to 18 months’ imprisonment with a recommendation that he be released on parole after serving 7 months.  He was on parole when he struck and robbed the complainant.  The circumstances called for a substantial term of imprisonment.

36. I would dismiss both the appeal against conviction and the application for leave to appeal against sentence.