R v Perussich[2001] QCA 557

SUPREME COURT OF QUEENSLAND

1. McPHERSON JA:  I agree with the reasons of Jones J for dismissing the appeal against conviction.

2. The real problem confronting the appellant is not that anything was said at the trial that might have been better not said, but that the appellant’s account of how the complainant came to be shot in the leg and wounded on the head is essentially incredible. He said the complainant himself had the gun and pointed it at him, the appellant. In an attempt to wrest the gun away from him, it went off and shot the complainant in the leg above the knee. The bullet, according to the medical evidence, passed through the complainant’s leg in a straight line and exited from the thigh. In “reefing” the gun from the complainant after it had discharged, the appellant said he, it would seem accidentally, hit him on the head inflicting two wounds. According to his account of it:

“… I probably shook his hands loose because he’s came up that way and I’ve donged him down on the top of the head, and that’s when I sort of more or less had control of the gun, and that’s when he’s yelled out - like - I’m sure he didn’t say mate, ‘Matey, what’s going on?’. John Wayne’s not that tough. He put his hand down on his leg and he screamed. He said ‘I’m shot. I’m shot. I don’t believe it. I don’t fucking believe it. I’m shot’, and at that stage I asked him a pretty silly question, I said, ‘Bob, are you in much pain?’…”

3. The complainant’s version was that shortly before the incident, the appellant left the room and went out to his car. After he came back, he produced a gun from inside his overalls and suddenly struck him some three or four times on the right and left side of the head with the barrel end of the gun. After that, the complainant was looking down, with the blood running over his face, when the gun discharged. He did not see it discharge, but “the next thing a bullet went through my leg”. The complainant said “What the hell’s – what is this all about? what’s going on?”, and [the appellant] said to me ‘John Rice is going to get it next’”.

4. The appellant said under cross-examination that he did know how the complainant got two injuries on the other side of the head as well as the one he admitted inflicting; but:

“That was the blow down on the top of the head and there was only one blow so how the two injuries got there - I don’t know whether it was the - I know it was definitely the butt, but I don’t know if it was the trigger guard or part of the barrel hit him on the top of his head”.

The appellant claimed he told the complainant to settle down and that he would call an ambulance, to which he said the complainant responded “No ambulance, you fucking idiot, the coppers will come”.  In fact, the complainant later succeeded in reaching his own vehicle outside, and drove himself to the police station. He ended up in the foyer of the courthouse, where, it being evening, there was no one around; but a lady came and helped him, and an ambulance and the police were called.

5. Assuming the jury accepted, as they evidently did and were entitled to do, the complainant’s account of what had happened, there could have been no question of the appellant being so affected by alcohol as to prevent him from forming the necessary intention to commit grievous bodily harm. He had left the room and gone outside to collect the gun, concealed it inside his overalls, and then came back and used the barrel of the gun to hit the complainant about the head before shooting him with it. None of these things could have been done without forming an intention to do them. On the evidence, no question under s 28(3) of the Criminal Code was fairly raised. It is therefore not at all surprising that defence counsel refrained from asking for a direction on intoxication under that provision. In my opinion, once the jury accepted the complainant’s version of the incident, the injuries he sustained could only have been inflicted intentionally. The appellant’s own testimony about what had happened was consistent only with his having throughout acted with calmness and deliberation. It would have been quite contrary to the state of affairs he depicted in his evidence to suppose that he committed the offence in a drunken stupor.

6. As to sentence, the offence was certainly violent and it was serious. It has had far-reaching and permanent consequences for the complainant; but we are concerned with the overall impact of the sentence, and the declaration would invest it with an effect that goes beyond the range of sentences commonly imposed for offences even of this nature and extent. I agree with the conclusion of Jones J and the reasons he gives for saying that the declaration should be omitted from the sentence.

7. THOMAS JA: I agree with the reasons of Jones J in relation to the grounds which his Honour numbers 1, 3 and 4 in paragraph [14] of his reasons.. 

8. However, I take a different view in relation to ground 2, which relates to impermissible cross-examination of the appellant. Relevant parts of the cross-examination of the appellant are set out at paragraph [23] of Jones J’s reasons. I consider that the questions asked by the Crown prosecutor were indefensible, and that as there was no proper correction by the trial judge there was an error in the conduct of the trial.

9. The proposition that another witness (Ms Pocock) had told lies emanated not from the witness but from the Crown prosecutor. The witness had said no more than that she was incorrect and that the proposition that he carried a gun in Ms Pocock’s presence was ridiculous. The further statements of the witness derogatory of Ms Pocock were deliberately incited by the Crown prosecutor. The questioning produced an unnecessary issue about the circumstances of the break up of the appellant’s relationship with that witness. It was in my view unfair cross-examination. It was permitted to continue for some time. Far from halting it, the learned trial judge seemed to have endorsed this argumentative attack on the witness.

10. This seems to have been an enthusiastic example of the practice which this court in R v Foley^[1] said should cease.  It went beyond the limits of cut and thrust which may be reasonably tolerated.  I therefore consider that an error occurred in the conduct of the trial.

11. However for the reasons which emerge in the judgments of both Jones J and McPherson JA, it is obvious that this was a very strong Crown case, and in the end I am unable to see that this blemish could have had any effect upon the result. In my view an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof would inevitably have convicted this appellant. I would therefore apply the proviso and dismiss the appeal.

12. I agree that the sentence (nine years with a serious violent offence declaration) was beyond the range commonly imposed in comparable circumstances. It would be open to this Court either to reduce the sentence to seven years and retain the serious violent offence declaration, or, as Jones J suggests, simply to delete the serious violent offence declaration from the present sentence. It would be difficult to say which of the two options would be regarded as the heavier sentence overall. In the circumstances the order proposed by Jones J produces an appropriate result and I agree with his Honour’s proposal.

13. JONES J:  The appellant was convicted in the District Court at Maroochydore of the offence of intentionally doing grievous bodily harm to one Robert James Jones.  The appellant was sentenced to nine years imprisonment with a declaration that he was a serious violent offender.

14. By his Notice of Appeal the appellant contended that the verdict was unsafe and unsatisfactory. This ground is not now pursued but by leave, the appellant seeks to argue further grounds namely that the learned trial judge –

1. failed to direct the jury adequately in respect of the complainant’s evidence during cross-examination of his belief that the appellant had used “speed”;
2. allowed impermissible cross-examination about possible reasons why a witness, Ms Pocock, was telling lies;

3. failed to direct the jury with respect to the appellant’s intoxication;
4. failed to leave for the jury’s consideration the alternative verdict of grievous bodily harm simpliciter.

15. The appellant applies also for leave to appeal against sentence on the ground that it is manifestly excessive.

Facts

16. On 8 August 2000 the complainant went to the Waterfront Hotel, Maroochydore, at about the middle of the day. He remained there for 3-4 hours. Some time during the afternoon, the appellant joined him for a drink. They had known each other for some time. The appellant was then aged 40 years and the complainant 43 years. The appellant was wearing overalls with a bib in the front held up by braces. At about 4.30 pm the complainant went to his home where he consumed more beer and smoked some marijuana. According to the complainant the appellant arrived unexpectedly some time later bringing a quantity of beer with him. They sat at the kitchen table where more drink was consumed by both of them.

17. During the course of this activity the complainant gave evidence that he rejected an invitation to go to the appellant’s home. The complainant said the appellant then left the room. The complainant believed the appellant had gone to his home. However, the appellant returned to the kitchen table soon thereafter. When he did so, he had his hands inside the bib section of his overalls. The appellant sat down at the table. The complainant said he had another swig of beer and as he was putting the bottle on the table, the appellant struck him about the head with a gun. He was struck at least 3-4 times and soon after the appellant shot him in the leg. When asked why he did that, the appellant responded “Nobody fucks with me” and later that “John Rice is going to get it next”.

18. John Rice was a friend of the complainant and a person with whom, the complainant alleges, the appellant had a prior altercation.

19. The appellant gave evidence of an entirely different chain of events. He said that whilst at the house it was the complainant who became agitated when the discussion turned to an earlier event in which the complainant had been robbed by a woman. The appellant alleged that the complainant went to his bedroom and when he returned he was holding a large hand-gun; that the complainant sat at the table holding the gun talking in an animated way; that he asked the complainant to hand the gun over and when the complainant refused he made an attempt to take the gun from him. In so doing, the gun discharged wounding the complainant in the leg. The appellant seized the gun and hit the complainant on the side of the head with it to further subdue him.

20. No one else was present at the time. The essential issue at trial clearly, was defined as a matter of credibility. To convict the appellant the jury had to accept the evidence of the complainant beyond reasonable doubt. If not, the appellant was entitled to an acquittal.

21. There were a number of factual issues which also affected the question of credit. The first of these was which of the two men had access to a firearm. The complainant and the appellant each said he had never owned one and did not have access to one. However, the prosecution adduced evidence from Michelle Pocock who, at the relevant time, had a close and intimate relationship with the appellant. She recalled an incident approximately two months before this shooting when the appellant visited her residence. She said he had in his possession a hand-gun which she described as 5-7 inches long and of a dark grey colour. She described it as having a flat handle part.^[2]  She said that she had seen this gun only on one occasion but she handled the gun and saw it for some time.^[3] Differing descriptions of the weapon used at the time of the incident were given by the complainant and the appellant.  The complainant described it as “silvery grey” with something on the side of it.  The police were unable to find the weapon that was used, but established that a .45 cartridge was discharged.  In cross-examination it was put to Ms Pocock that the appellant never produced a gun at her place and that at no stage had she ever seen the appellant with the gun.  Ms Pocock denied those suggestions. The learned trial judge identified the issue as going only to the credit of the appellant,^[4] although in my view, it was a circumstance capable of supporting the crown case.  The direction, however, was favourable to the defence.

Impermissible cross-examination of the appellant

22. The second ground of appeal can more conveniently be dealt with first. This concerned the cross-examination of the appellant as to whether Ms Pocock was lying when she gave evidence of having seen the appellant in possession of the hand-gun prior to the incident. The appellant argues that the cross-examination was improper and contravened the principle that questioning of this kind diminishes the onus of proof as was set out in Palmer v R .^[5]

23. The relevant passage in the appellant’s cross-examination is as follows:-

PROSECUTOR: You’re the one who carried a gun, weren’t you? – No I did not.

You say, do you, that Michelle Pocock is incorrect? – I say she’s absolutely incorrect.

You carried a gun? – Yes.  She’s incorrect.  It’s ridiculous.

Ridiculous, is it? – It is ridiculous.

So in effect you are saying that she’s come to court here and simply told lies.  Is that right? – Well she gets into the box and says that she knows me intimately.  That is to square up for the short relationship we had. (my emphasis)

 …

So, let me get this right.  Are you telling us that you broke up with her, she was so distraught about that – and so vengeful that she has come to court and perjured herself and made up a story about a gun?

MR. BUTLER: I object, your Honour.  He’s not saying that.

HIS HONOUR: No. That’s a perfectly acceptable question.

MR. PARKER: Is that what you’re saying? – Could I have that question again sir.  I missed what you were saying?

You’re saying that you had a relationship with this woman.  That you wanted to break it off, is that what you’re saying? You were the one who broke it off? – Yes.

She was pursuing you like Glenn Close, in Fatal Attraction, is that what you’re saying? – Well you’re the one giving examples.  I’m not saying anything.

All right.  You’ve seen that movie, haven’t you? – Well it wasn’t like that.  There wasn’t any dead rabbits anywhere, anything like that.

But she’s pursuing you, you say? – Yes.

Is that right?  You want to end the relationship?  Is that right? – Talked to her about it, yes.

She therefore has come to Court and committed perjury, made up a story about a gun, because she is so distraught that you’ve brought the relationship to an end? – Is that what you think?

Is that what you’re saying? – I’m not saying it at all.

Well, tell us why, in your view, she has come to Court and told lies about a gun? – In my view, I have no idea.

MR. BUTLER: Your Honour I object.  He can’t say what her view is.

HIS HONOUR:  He just did.  He said, “I’ve got no idea”.  So it’s all over.

MR. BUTLER: Thank you, your Honour.^[6]

The appellant then went on to say that he had never owned a hand-gun and never had one in his possession.

24. In Palmer, the High Court considered the effect of cross-examination of a man who was accused of 11 counts of sexual assault on a girl aged 14 years.  He was asked in cross-examination whether he could suggest any reason why the complainant should invent the allegations against him.  He said he had no idea why she might have done so.  In their judgment, the majority (Brennan CJ, Gaudron and Gummow JJ) made the distinction between the cross-examination of a complainant in an attempt to elicit a motive to lie and the cross-examination of an accused person for the same purpose.  The majority considered that the disadvantage to an accused person by such questioning arose at three levels which were identified by Sperling J in the Court of Criminal Appeal of New South Wales in R v E. ^[7]  Firstly, such questioning invites the jury to speculate; secondly, it might be unfair to the accused who is not in a position to know what is in the mind of the complainant; and, thirdly, the effect of the question might have the effect of reversing the onus of proof.

25. In Palmer the thrust of these concerns was that the questioning was directed to the complainant’s motive in making the allegation which constituted the offence.  Here, the questioning was directed to a witness whose evidence went only to an issue of credit. The authority which relevantly goes to this issue which was relied upon by counsel for the appellant is R v Foley.^[8]  In that case, the Court of Appeal was considering the cross-examination of an accused person but commented upon the impropriety of such cross-examination in the questioning of witnesses generally.  The cross-examination of the accused in that case included:-

“If you are correct then Ms Purkiss can’t be correct can she?

Neither can her sister Tanya Purkiss?

So, either he (your barrister), is incompetent or you’re telling a lie?

All these other witnesses are telling lies”

26. The following comment appears in the judgment of the Court:-

“The resort by Counsel to questions which invite a witness to answer by reference to comment on the truthfulness of other witnesses is to be deprecated.  On a level of professional practice, it is regarded as “not a proper question”.^[9]  The error, however, goes beyond one of professional practice; such questions are actually inadmissible.^[10]  The literal object of such a question is to obtain an opinion whether someone else is a liar, and that of course is not an issue in the case or a matter for any other witness to express an opinion, it is a matter for the judge or jury.  It is also unfair, because it forces the honest witness into a recrimination and seeks to rely upon the natural reluctance of a person to defame another.  It is also a form of bullying, using unfair means to persuade a person to retract his or her evidence.  Such questions are inadmissible and we agree with Professor Harrison’s view that they are improper.  Regrettably the practice of asking such questions is by no means uncommon. It should cease.

There must of course be a certain degree of tolerance of loose practices in cross-examination, and such errors commonly occur without impairing overall the receipt of a fair trial by an accused person” ^[11]

27. What must be considered is the impact of the cross-examination in the context of the whole trial. The cross-examination relevant to the credit of Ms Pocock was, to a degree, made necessary because the accused’s counsel at trial had in cross-examination of her raised the issue of her relationship with the appellant and the circumstances in which that relationship terminated. But it was the appellant himself who, in cross-examination, suggested the reason why Ms Pocock should not be believed. In response to an impermissible question he replied:-

“Well, she gets into the box and says that she knows me intimately.  That is to square up for the short relationship we had.”

But, the question having been asked and that reason given for the witness’ untruthfulness, cross-examining counsel was entitled to pursue the circumstances of the relationship breakdown and whether they were such as to cause the witness to tell lies.  When Ms Pocock was cross-examined, no suggestion was made that she may have been motivated by revenge to give the evidence she did.  The topic having been raised for the first time by the appellant in his cross-examination, the prosecutor was entitled to test the allegation.

28. When the cross-examination of the appellant moved beyond exploring the question of revenge being the motive as suggested by the appellant, he was next asked –

“Well, tell us why, in your view, she has come to Court and told lies about a gun? – In my view, I have no idea.”

At this point the appellant’s counsel objected and His Honour upheld the objection and terminated further cross-examination on that point.

29. In his address, the learned Crown Prosecutor made reference to this passage of cross-examination (transcript p 385/50-386/20) but at no time did he rely on the answer “I’ve got no idea” which brought the objection and His Honour’s termination of that line of cross-examination. Rather, the prosecutor focused on the appellant’s earlier suggestion that vengeance was the motive for her lying. He was entitled to do so. It was noted in R v Uhrig that the principles enunciated in R v E “should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in a particular case.”^[12]

30. Although the issue of Ms Pocock’s motive was raised by the appellant in response to an impermissible question, his answer was not responsive to the question. The question itself could have been answered in a neutral way. The response seems to have been an attempt by the appellant to bolster his credit to the detriment of Ms Pocock’s. The challenge went to the credit worthiness of a witness and not directly to the issue at trial, namely whether the complainant was telling the truth. I see nothing in the prosecutor’s cross-examination of the appellant nor in the remarks made in his address which, in the circumstances of this case, impaired the fairness of the trial.

Cross-examination about the use of “speed”

31. The first ground of appeal concerned the cross-examination of the complainant. Late in his cross-examination, the complainant was being pressed about evidence which he had given at the committal proceedings which was said to be inconsistent with evidence given at the trial. Counsel for the appellant at trial (who was not Counsel on appeal) then proceeded:-

MR. BUTLER:  All right.  What do you say was the motive that caused this; what was the trigger? – I wouldn’t have a clue, to tell you the truth.  I’ve been putting it through my head trying to wonder whether it was either because he was upset with John or because I – well, I didn’t go up to his place for a beer.  But I reckon he went out and had a big snort of speed and come back in and lost the plot.

Well, I ----?—Well, that’s what I reckon; that’s my opinion.

HIS HONOUR: You – you asked the question, Mr. Butler.

WITNESS: Because he was so calm and ----

MR. BUTLER: All right.  But he appeared completely calm, didn’t he? – Yeah, very calm.

Okay.  There was nothing that indicated violence? – No.

He wasn’t agitated; you hadn’t been arguing? – No.

He was happy sitting there having a drink? – He was getting agitated towards John Rice.^[13]

32. It was only in that context that there was any reference to “speed” (the common term for methylamphetamine) during the evidence and no reference was made to it in his Honour’s summing up. For the appellant it is submitted that the learned trial judge ought to have directed the jury that the complainant’s answer did not constitute evidence that the appellant had in fact consumed the drug. It was argued that the jury may have attached weight to the evidence and if so, it would have been seen as being prejudicial and that its prejudicial effect was emphasised by his Honour’s comment to Counsel –

“You - you asked the question, Mr. Butler”.^[14]

33. Counsel at trial made no request for any direction to overcome this supposed prejudice either when the answer was given or at any stage thereafter. Counsel on appeal submitted that notwithstanding that no direction was sought, the jury should be given a direction. The concern was that the reference to the use of “speed” might be picked up as an explanation for the bizarre behaviour of the appellant as the complainant described it. Counsel referred to a decision of this Court, R v Jurick^[15], as support for the obligation to give directions in these circumstances.  However, that case was dealing with the need to give directions on the effect of intoxication on capacity to form an intent which was an element of the offence.  That is quite a different issue to the effect of a comment which might only possibly be an explanation for bizarre behaviour.  A trial judge has no obligation to give directions on every minor incident that occurs in the cut and thrust of cross-examination.  The need for directions must depend on the impact the particular answer has on the jury’s task of fairly considering the issues at the trial.

34. The first point to be made is that the response which the question invited was only given only as an opinion of a lay person and was never put forward as being based either on evidence or expertise. In the context in which it was given it could only be seen by an ordinary person as mere speculation. Moreover, the effect of this answer and the comment of the learned trial judge has to be looked at both in the context of the whole trial and against the background that the trial counsel did not, either at the time of the answer or before the summing up, seek any direction from the learned trial judge to correct any adverse impression that the answer may have given rise to.

35. For the learned trial judge to have referred to the answer in the course of a summing up with an instruction to the jury to disregard it, would give the answer undue prominence and may have had a contrary effect. In the context of all the evidence led at trial, no prejudice, in my view, arose from the complainant’s answer to this ill-considered question.

Intoxication of the accused

36. Both the complainant and the appellant had been drinking beer during the course of the day prior to the assault. More detail was revealed about the complainant’s consumption and as well the fact that he had smoked two cones of marijuana. The complainant’s description of the appellant’s state of sobriety was that he was “a bit pissed” and “drunk”^[16].  The complainant was, however, unable to particularise how many drinks the appellant had whilst in his presence.

37. The appellant gave evidence that he thought the complainant was drunk but when describing his own consumption, said that he had two stubbies whilst fishing (in the morning), two pots at the hotel (during the afternoon) and “probably about a stubby and a half or two stubbies at (the complainant’s) place”.^[17]  The appellant maintained that he was not drunk, a claim which would certainly be consistent with that relatively low level of consumption.

38. Before counsel addressed the jury the learned trial Judge discussed with them what were the relevant issues. Specifically he inquired whether the effect of liquor on the appellant would enable him to leave as a possibility that intoxication was relevant to the issue of intent. The trial counsel agreed that intoxication was not raised as an issue^[18].  The question of intoxication was raised again in connection with the discussion as to whether the alternative verdict of grievous bodily harm simpliciter was available to the jury.  In the end result both counsel involved at trial and the learned trial Judge took the view on the evidence as they heard it that intoxication relevant to intent was not an issue in the trial.  His Honour specifically mentioned this in his summing up and pointed out, favourably to the appellant, the effect alcohol might have on credibility.^[19]

39. Counsel for the appellant now argues that notwithstanding that position adopted particularly by defence counsel, the learned trial Judge had a duty to direct with respect to the issue of intoxication. Counsel relied on the statements in Van den Hoek v The Queen ^[20] and in R v Rose.^[21]  Those cases confirm the duty of a trial Judge to give directions to the jury upon issues not specifically raised by the parties if the evidence is such that the jury may well decide the case on the basis of the facts relative to the issue before them, even though those issues are not articulated by the parties.

40. The question which arises “is whether there was evidence which, if believed, might reasonably have led the jury to return a verdict” based on intoxication. See Van den Hoek ^[22].  The assessment by the complainant of the appellant’s sobriety was made at a time when the complainant admitted that he was under the influence of liquor.  The assessment was made in response to the question –

“… how would you describe his condition? – Well, he seemed pretty calm.  He seemed, you know, like he was a bit pissed.”^[23]

This assessment by the complainant obviously did not resonate with either counsel nor with the trial Judge as being significant.  It was not even mentioned during the discussion held prior to the commencement of addresses.  In all the circumstances it would seem to me not evidence which, in contrast to the appellant’s own evidence as to his state of sobriety, might reasonably have been acted on by a jury.  I see no error in the learned trial Judge not allowing the issue of intoxication go to the jury.

Whether the alternative verdict of grievous bodily harm simpliciter was available

41. The question of whether the alternative verdict of grievous bodily harm simpliciter was open to the jury was another topic discussed before the addresses commenced. The learned trial Judge took the view, quite firmly, that the evidence and the conduct of the trial gave rise to an “all or nothing” case. Before addresses the learned trial Judge discussed with counsel whether the jury should be directed in terms of the alternative verdict of grievous bodily harm simpliciter. His Honour’s view was that the evidence “does not permit of (the offence) not being a deliberate act” ^[24].  His Honour had a further opportunity to consider the position after he had given redirections at the jury’s request on the question of “intent”.  His Honour reasserted his view that the alternative verdict was not open.  The appellant’s trial counsel did not demur to that statement.

42. Counsel for the appellant referred to R v Rehavi ^[25].  That case concerned an assault in a nightclub when the accused struck the complainant in the face whilst holding a beer glass.  There was an issue whether the accused deliberately broke the glass before he struck the blow.  He was charged with doing grievous bodily harm with intent to harm at the commencement of the trial. This was the third trial for the offence, an earlier trial having proceeded on the indictment of grievous bodily harm simpliciter.  After legal argument as to whether the new indictment should be so framed, the defence accepted that it should and that should be an “all or nothing” approach to the charge for obvious tactical reasons.  The accused was convicted and on appeal the court held that the trial Judge, notwithstanding that agreement, should have directed the jury on the alternative lesser verdict.  The court said:-

“…The evidence was far from clear as to whether the appellant broke the rim of his glass before thrusting it in the complainant’s face or whether the glass broke on his face.  If it were the former that would be compelling evidence of an intention to commit grievous bodily harm.  If the latter then a reasonable jury may have had a doubt as to his state of mind.  In the light of that evidence it was wrong not to inform the jury that they could convict of the lesser offence if they were not persuaded beyond a reasonable doubt of the appellant’s mental state at the time, notwithstanding the tactical decision taken by the appellant below and which the prosecution was content to adopt.  There is a public interest in a fair trial and a jury ought to be permitted to return any verdict available on the evidence if that is consistent with justice to the accused.” (my emphasis) ^[26]

43. The expression “consistent with justice to the accused” was relied upon in the reasons for judgment by Thomas JA in which the other members of the Court agreed in R v Willersdorf ^[27].  There His Honour said:-

“Consistently with the authorities including Rehavi, I conclude that whenever an alternative verdict fairly arises for consideration on the whole of the evidence then failure to leave it to the jury prima facie deprives the accused of a chance of acquittal of the principal offence.  A tactical request from defence counsel is a matter that must be taken into account in the overall assessment of miscarriage of justice, but it is not conclusive.  The ultimate duty to ensure fairness rests with the trial judge, and this is not always achieved by acquiescing in the request of defence counsel.”

44. In the present case it was not a matter of the Court acquiescing in any request or arrangement entered into by counsel, here it was simply a case that the evidence gave rise to an “all or nothing” situation if the complainant’s evidence was to be believed. If the complainant’s evidence was not believed then of course, the appellant was entitled to an acquittal. On the complainant’s evidence, he was struck across the side of the head three or four times and subsequently shot in the leg. It is hard to conceive how this combination of actions on the part of the appellant culminating in the shooting in the leg could have occurred without the appellant intending them to happen.

45. In my view the alternative verdict does not fairly arise on the whole of the evidence and for this reason the learned trial Judge was correct in not giving directions as to the alternative verdict.

46. As a result, whilst the appeal raises a number of issues the only ones which give cause for complaint arise from the instances of unfortunate cross-examination of each of the complainant and the appellant. In neither instance was the exchange between counsel and the witness such that there was any impairment to the overall receipt of a fair trial. I would dismiss the appeal against conviction.

Sentence

47. The appellant also applies for leave to appeal against a sentence of nine years imprisonment coupled with a “serious violent offender” declaration on the grounds that such a sentence was manifestly excessive.

48. The appellant had relevant prior convictions as follows:-

3.10.88  Melbourne M.C.  Intentionally cause injury  Fined $450.00

19.3.98 Broadmeadows M.C. Assault police  Fined $500.00

21.5.97 Wirrabee M.C.  Unlawful assault  2 months imprisonment

In imposing the sentence his Honour made the following points:-

1. The offence was very serious

2. Offences of violence involving use of firearms resulting in serious injury call for serious punishment

3. This was a cruel and callous act of violence

4. The sentence is not to be mitigated to avoid the automatic application of a serious violence declaration

49. The appellant bases his application on the grounds that although defence counsel at trial accepted 10 years as the top of the range for sentence, a comparison with other cases ought to have led to a lesser sentence. Counsel referred to R v Wease ^[28] and R v Beer^[29].  In Wease the accused used a shotgun in the course of an argument between neighbours and after being goaded by the complainant to shoot. A sentence of nine years imprisonment was imposed at trial was reduced on appeal to seven years.  Because of personal circumstances there was a recommendation for early release after serving two years.  In Beer the accused was sentenced to eight years imprisonment with a serious violent offender declaration for having stabbed a man in an altercation resulting from an attempt to recover from the accused’s house property owned by the victim’s stepdaughter.  When considering sentence on appeal, the majority of the Court set aside the sentence and imposed instead a sentence of seven years imprisonment without a declaration.

50. Further, the appellant argues that by imposing a serious violent offender declaration his Honour failed to take account of principles which were enunciated by the Court of Appeal in R v Bojovic.^[30]  The effect of the discussion in that case was that sentences are fashioned to meet the circumstances of the particular offence having regard to the need of punishment, rehabilitation, deterrents, community vindication and community protection and that the power to make a serious violent offender declaration is simply another option that has been placed in the Court’s armoury.  The Court went on to say:-

“In our view it is not appropriate that a declaration be made unless the overall sentence will be seen to be reasonably consistent with attaining the normal objectives of punishment.  One of the purposes for which sentences are imposed is to protect the community from an offender when it is appropriate to do so.”^[31]

51. The appellant argues that there is no element of community protection required and the danger of repetition of the offence by the appellant is remote.

52. Bojovic was a case of manslaughter where the accused had responded to a punch being thrown by the deceased with a combination of punches, five heavy blows in all, which caused fractures to the deceased’s skull.  The Court of Appeal reduced the sentence imposed at trial of 10 years, which included the serious violent offender effect, to eight years imprisonment without a declaration. 

53. The respondent pointed to various circumstances including the use of the firearm, the deliberate and callous nature of the attack, the aspect of the appellant arming himself with a weapon and ammunition that he carried with him in the motor vehicle and his previous convictions for violence. Counsel for the respondent referred to R v Bartorelli ^[32] in which the Court of Appeal varied a sentence of ten years imprisonment by making a recommendation for earlier consideration for parole.  The circumstances involved a young male accused who accepted the sum of $600.00 offered by a husband to shoot his wife’s lover in the foot.  As a consequence of his action the victim was left with a grave injury to his leg, requiring nine operations and leaving the leg with permanent disability.  The element of acting as a “paid hit-man” and the level of premeditation in Bartorelli makes it a more serious case than the present one. But it is relied upon by the respondent as setting the upper limit of penalty range referred to at trial.

54. The complainant’s victim impact statement points to a serious disabling injury to which has been added a depressive illness. He requires ongoing treatment. He has lost the capacity to work in his previous occupation and he faces a greatly altered lifestyle. He is now 43 years of age. The attack by the appellant was a serious one with those particularly disturbing elements of having readily available a firearm and ammunition. The fact that he had to go to his vehicle and collect the weapon also shows some premeditation in its ultimate use. Those facts, together with the serious harm which was deliberately inflicted, calls for the imposition of a heavy sentence. A sentence of nine years would certainly satisfy that demand having regard to other cases of a like nature.

55. The question in this case is whether the circumstances warranted the additional burden resulting from the serious violent offender declaration. Without the declaration, the appellant would be eligible for release at least at the half way point of 4.5 years with the prospect of further benefits from remissions. With the declaration, his eligibility for release would not arise until he had served 7.2 years. The difference of three years mandatory imprisonment is a very significant additional penalty which, in my view, is not called for having regard to the appellant’s prior criminal history and the nature of his conduct generally. The penalty of nine years imprisonment without a declaration sufficiently marks the seriousness of the offence and imposes, in my view, adequate punishment in the circumstances. Therefore, I would vary the sentence imposed by removing the declaration that the applicant is a serious violent offender.

56. In summary then, I would order that the appeal against conviction be dismissed.

57. I would grant the application for leave to appeal against sentence, allow the appeal and set aside the sentence imposed on 22 June 2001 and substitute the sentence that the appellant be imprisoned for a period of nine years.