R v D & G[2003] QCA 425

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The appellants, who are juveniles aged 15 and 16 respectively at sentence, were convicted on 13 March 2003 of committing a serious assault upon the complainant, W.  The appellants appeal against that conviction. 

[2] The two grounds of appeal set out in the notice of appeal are that the learned trial judge erred in law, first, in directing that there were only two possible verdicts open, (either that both were guilty or both not guilty), and, second, in failing to identify to the jury the weaknesses in the identification evidence.  A third ground of appeal was added in the course of oral argument, namely, that the verdict was unreasonable as it was not reasonably open to the jury to be satisfied that the appellants were mutually aiding each other in assaulting the complainant.

The evidence

[3] W suffers from the neurological impairment of cerebral palsy and requires a wheelchair for mobility.  He is able to speak but he is sometimes not easy to comprehend, especially if distressed.  Applications to have him give evidence by way of a statement tendered under s 93A Evidence Act 1977 (Qld) and to have his carer interpret his evidence were rejected by the learned primary judge. 

[4] He gave evidence that, at about 11.20am on 26 September 2001, he was travelling in his wheelchair to the Mackay court house in the course of his employment as a courier.  As he was coming up to the court house one boy threw a cigarette butt at him and the other called him a spastic and pushed his chair back.  He had seen these boys around Mackay on prior occasions when they called him a spastic and other names.  He said that on this day, "… they got me and – and they – they hurt me and they were holding my chair back.  They called me names."  The boy on the bike held his chair back; he was wearing a green shirt.  The boy who flicked his cigarette butt at the complainant was wearing a pinkie-red cap and called him a wanker; the other boy laughed and then they both laughed.  The cigarette butt hit him in the middle of his chest and burnt him; it stung like a bee.  His shirt was not burnt by the cigarette.  After he was hit by the cigarette and called a wanker he had tears in his eyes and did not see anything else.  He told them to get away but the boys would not let go of  his wheelchair.  He did not do anything to the boys.  After a while he was able to leave.  He went up the ramp into the court house and complained to a court staff member whom he knew.  He pointed out two boys on the other side of the road as the two boys involved.  He saw the court staff member cross the road and approach the boys.  Later, he spoke to police and gave a statement.

[5] On 16 February 2002 the complainant identified the appellant D as one of the offenders from a photo board.  On 2 March he failed to identify G from a photo board and selected another person.

[6] Under cross-examination, the complainant gave confusing and contradictory evidence as to what each boy was wearing and what each boy did.  Because of his confused evidence he was later recalled.  He said that the flicking of the cigarette and the holding of the chair occurred at the same time.  He denied ramming the boy's bike with his wheel chair.  He agreed he became angry when the boy called him spastic because he hated that name and he kicked his foot around and moved the controls on his chair but he did not hit the bike with his wheelchair.  The following exchange occurred in further cross-examination:

"And is it then when the boy reached out and held your chair? – Yeah.

So he hadn't done that before that? – No.  Then he called me a spastic. 

He called you a spastic? – Mmm.

OK. Alright? – And then the other boy -----.

You say – which boy flicked a cigarette; the boy standing against the wall or the boy on the bike? – Standing on the wall.

Right.  Now which one of those two boys ----? -- Right there. ---- was sitting on the wall? – Right there."

The complainant then identified the appellant D as the boy who flicked the cigarette.

[7] Greg Tandy, a court staff member, spoke to the complainant, whom he knew, at the court house.  Mr Tandy gave evidence that the complainant was upset and had tears in his eyes; he had never seen him like that before; he was normally very happy.  The complainant pointed out the two boys who had upset him on the corner across the road.  Mr Tandy walked across the road to a group of about four or five boys and recognised the appellant, D.  He asked D  if he had been throwing things at the complainant.  D denied this and pointed to the appellant, G, who was inside the Youth Information Referral Office.

[8] At about 11.29am Constable Robertson attended the court house.  He noticed that D was wearing a red cap and G a green T-shirt.  He interviewed G at 12.45 pm.  G said in his interview that he and his friend, D, were walking along the street when the complainant approached them after they had stopped for a cigarette.  D was walking his push bike beside G.  The complainant spoke to D and then rammed D with his wheelchair.  D was walking along with his push bike beside G.  G denied flicking a cigarette butt and said he was just leaning against the wall minding his own business. 

[9] In his interview, D told police that he was riding a bike on the footpath in company with G when he saw the complainant in his wheelchair.  The complainant went mad and tried to ram him with his wheelchair.  D denied touching the complainant or throwing anything at him.

[10]  D did not give or call evidence.

[11]  G gave evidence that he and D came to the court house for G's court appearance.  They went around to the side entrance and had a bit of a chat.  They went up some stairs; D was stopped on his bike and he was sitting on the wall.  D finished a cigarette; he was unsure whether D shared the cigarette with him.  He could not recall what he said to the complainant but he thought he said, "How are you going, mate?"  He had a couple of draws on the cigarette and then gave it back to D because he had to leave quickly to go to court.  He did not call the complainant a spastic or say anything abusive or unkind.  He did not throw or flick a cigarette towards the complainant.   G said he had to go to court and D flicked the cigarette.  G turned around and noticed the complainant in his wheel chair getting angry, moving the wheel chair around and kicking.  G asked D, "What have you done?"; D replied, "Oh, nothing," and then G walked into court.  After he attended court he spoke to police and took part in a record of interview.  He was defensive in the interview with police because he was concerned they were trying to wrongly pin something on him. 

[12]  In cross-examination, when confronted by the prosecutor with the apparent differences between his evidence in chief and his record of interview as to D flicking the cigarette, he said he did not actually see D flick a cigarette.  He was also cross-examined about other inconsistencies between his evidence in chief and his statements to police. 

[13]  D's counsel cross-examined G about his previous criminal history for offences of assault, wilful damage and receiving.

[14]  In re-examination, G said he had no idea that D was going to do anything involving the complainant and he did not assist D do anything to the complainant nor do anything to the complainant himself.

Was the verdict unreasonable?

[15]  It is convenient to deal with this new ground of appeal first.  It was not possible on the whole of the evidence to be satisfied beyond reasonable doubt as to which appellant did which act.  The case was therefore left to the jury on the basis of s 7(1)(b) or (c) Criminal Code.  The learned primary judge, consistent with R v Lowrie and Ross,[1] directed the jury that they could only convict the appellants if they were satisfied beyond reasonable doubt that one flicked the cigarette at the time the other held the wheelchair for the purpose of aiding the boy who flicked the cigarette; if the chair was held or possibly held for some other purpose both appellants should be acquitted.  There is no complaint about that direction, which was plainly right.

[16]  The prosecution case was not without difficulty because of the inconsistencies in the complainant's evidence.  The learned primary judge nevertheless instructed the jury that the inference was open to them to conclude from the evidence that one boy held the wheelchair for the purpose of aiding the other to assault the complainant; but that if there was a competing hypothesis reasonably open on the evidence which did not lead conclusively to that conclusion, then they must acquit each accused. 

[17]  The appellants contend there was such a competing reasonable hypothesis which could not be excluded, namely that the appellants each acted independently of the other. 

[18]  Despite the confused state of the complainant's evidence, the jury were entitled to accept his account of a history of prior verbal abuse and harassment from the appellants; that one appellant did hold his wheelchair whilst the other appellant flicked the cigarette at him and that they then both laughed at him and called him "spastic" and "wanker".  They were also entitled to reject G's evidence and D's account to police.  Although another jury may have reached a different conclusion, I am persuaded that, once the appellants' versions were rejected, it was open to the jury to infer from the complainant's evidence that, with their past oral harassment of the complainant, the appellants acted together when one held the complainant's wheelchair for the purpose of assisting the other to assault him; this conclusion was consistent with the appellants' subsequent laughter and name-calling.  If these facts were inferred by the jury, they were entitled to reject the competing hypotheses that the appellants may have acted independently or that neither appellant acted unlawfully at all.  It was open to the jury to be satisfied on the whole of the evidence beyond reasonable doubt that the appellants were guilty: M v The Queen.[2]  It follows that in my view this ground of appeal should fail.

The judge's directions to the jury

[19]  The appellants complain about the learned primary judge's following directions to the jury:

"… in this particular case the direction I'm giving you is that the accused will, in the circumstances of this case, each be guilty or each not guilty.  I'm not seeking to encourage you to any verdict of course by making a remark of that nature.  … 

When you return to the court, you will be asked whether you find each of the accused guilty or not guilty and asked to affirm that collectively.  As I have indicated to you, the verdict here should be not guilty for both or guilty for both on your assessment of the evidence."

[20]  Trial counsel for the appellant G asked for a redirection on the basis that it was open on the evidence for a jury to find separate verdicts.

[21]  It is trite to say that the directions to which objection is taken must be looked at in the whole context of the summing up.  Elsewhere in the summing up the learned primary judge told the jury that they could only convict the appellants if they were satisfied beyond reasonable doubt that one flicked the cigarette at the time the other held the wheelchair for the purpose of aiding the boy who flicked the cigarette.  If the chair was held or possibly held for some other purpose both appellants should be acquitted.

[22]  G's evidence at trial, however, was that D did something to the complainant which he did not see and in which he was not involved.  It was therefore possible on the evidence for the jury not to be satisfied beyond reasonable doubt that G was guilty of the offence but to conclude that D was.  It was also possible for the jury to reject G's evidence and those portions of the complainant's evidence implicating D and to accept, or be left in doubt about, the truth of D's exculpatory account to police and to be satisfied of G's guilt beyond reasonable doubt whilst acquitting D.

[23]  The difficulty for the appellants is that the jury verdict following his Honour's directions required the jury before convicting to be satisfied beyond reasonable doubt that one appellant flicked the cigarette whilst the other held the wheelchair for the purpose of aiding the first to assault the complainant; the conviction of the appellants necessarily involved a rejection of G's evidence and D's account to police. 

[24]  The appellants' counsel contends that the jury may have accepted G's evidence (or, alternatively, D's account to police) that he was not involved in the assault in any way, but that D (or, alternatively, G) was and because his Honour had instructed them they must acquit both or convict both, have wrongly convicted G (or, alternatively, D).  To impute this line of reasoning to the jury is to assume they did not follow his Honour's earlier clear directions.  I am not persuaded there is any reason to so conclude.  In the circumstances, the effect of the jury verdict is that they were satisfied beyond reasonable doubt that each offender knowingly played a role in the assault of the complainant;  if they were not so satisfied they would have acquitted both offenders on his Honour's directions; this means they rejected the exculpatory accounts of G and D.  In the light of his Honour's directions, it is impossible to see how the jury could have been affected by the knowledge that it was open to them to acquit one appellant and convict the other.  This ground of appeal is without substance.

Should there have been a direction in accordance with Domican v R?[3]

[25]  This was not a case on the evidence where a Domican direction was required because the issue at trial was not one of identification but rather whether the appellants knowingly joined in assaulting the complainant.  It was never on the evidence in dispute that both appellants were involved with the complainant in an incident at about 11.20am outside the Mackay court house.  The question of identification did not represent any significant part of the proof of guilt: Domican v R.[4]  The validity of this conclusion is supported by the absence of any application for a redirection in this respect.  This ground of appeal is also without substance.

[26]  I would dismiss each appeal against conviction.

[27]  MUIR J:  I have had the advantage of perusing the reasons of the President and gratefully adopt her statement of the facts, which I supplement only by the following observations.

[28]  The substance of the complainant’s evidence was as follows. He had been called names in the past by both accused. On the occasion in question the accused who was holding a bicycle took hold of his wheelchair. When the chair was so held the other accused, who was standing with his back against a wall nearby, flicked a cigarette butt towards him. It struck him on the chest and burnt him. The person who flicked the butt called the complainant a spastic and laughed and the other person involved also laughed.

[29]  Initially, the complainant said that one of the accused threw the cigarette butt and that one of the accused (not necessarily a different one) called him a “spastic”. Later in his evidence in chief he said that “they” were holding his wheelchair and calling him names. The plain effect of his evidence, however, is that one person held the wheelchair and other flicked the butt. Still in evidence in chief, he said that the person who flicked the cigarette butt at him called him a “wanker” as he did so and that the other person laughed.

[30]  In cross-examination, he said, in effect, that when the person holding the wheelchair laughed the other one started laughing also. He then identified the person holding the wheelchair as the one who called him a “spastic”. There was further confusion in the evidence as to the identification of the roles played by each accused. In the course of argument, after the summing up, his Honour observed that the directions he had given were fashioned because of his belief “that the evidence about identification is so unsatisfactory”. His Honour was referring to his direction to the jury that “because of confusion about who did what” the jury could convict beyond reasonable doubt only if when the cigarette was flicked by one of the accused the other held the wheelchair “for the purpose of aiding … the offence of … flicking cigarette at or near the complainant …”.

[31]  The primary judge had the advantage of seeing the events of the trial unfold. The complainant, because of his physical disabilities, was unable to speak clearly. Parts of his evidence were confused and also contradictory. His Honour’s approach, in these circumstances, seemed fair to the accused and reasonable.

[32]  On the basis of the primary judge’s direction, in order to convict, the jury would have needed to have been satisfied beyond reasonable doubt that the accused holding the wheelchair, knowing of the intention of his co-accused to assault the complainant, held the chair in order to assist the co-accused.[5] Was it open to the jury, upon a consideration of the whole of the evidence, to be so satisfied?

[33]  In my view, it was not. The conduct of the accused, beyond doubt, was insensitive and callous. Although the evidence disclosed that they may have engaged in name calling in the past, it does not suggest that the incident commenced by way of implementation of a preconceived plan. Nor is there any suggestion that either accused made a request or gave a direction upon which the other acted.

[34]  Accordingly, in order to satisfy the requirements of s 7(1)(b) or 7(1)(c) of the Criminal Code, the person who took hold of the wheelchair must have surmised that his co-accused intended to assault the accused. He must also have acted as he did so as to assist his co-accused in that regard.

[35]  It is possible that if the person who held the wheelchair believed his co-accused intended to assault the complainant, he held the chair to assist his co-accused in the perpetration of the assault. One would think it obvious enough that an assault on a seriously disabled person in a wheelchair by a youth without physical disabilities could be accomplished without much difficulty whether or not the chair was held. But acts of street violence and considered thought by the perpetrators are not invariably companions.

[36]  It is more difficult, however, to understand how the aider would arrive at the understanding that his companion intended to assault the complainant. Any past misconduct of the accused in relation to the complainant had been restricted to name calling. There was no evidence of any prior joint assault on anyone. The youths were in a public place and other were present. The assault, of its very nature, was one which was likely to be spontaneous. The complainant described it as the flicking of a cigarette butt.

[37]  Plainly, there were no physical precursors to the act from which an observer could have deduced that the cigarette butt was to be flicked at the complainant. As was intimated earlier, there was no prior oral warning of the offending act or any incitement to commit it. The absence of any such communication supports the view that the flicking of the cigarette butt was spontaneous and unaided.

[38]  The fact that the person holding the wheelchair may have laughed at the offending act and, possibly, its consequences says rather more about his decency, or lack thereof, than about his understanding of what his companion intended immediately prior to the flicking.

[39]  A person, of course, may aid the commission of an offence by encouraging it. The holding of the wheelchair could amount to an act of encouragement in appropriate circumstances, but only if the holder had the intention to encourage.[6] For the reasons discussed, it was not open to the jury to infer the existence of such an intention beyond reasonable doubt.

[40]  Accordingly, I would order that the convictions be set aside.

[41]  Having regard to the confused state of the evidence, I do not consider it appropriate that a re-trial be ordered.

[42]  HOLMES J: I agree with the reasons for judgment of Muir J and the orders he proposes.