R v Lee[2005] QCA 122

SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I agree with Fryberg J's reasons for dismissing this appeal subject only to observing that I wish to neither join in nor dissent from the doubts expressed by his Honour in the last sentences of paras [12] and [19] of his reasons. 

2. JERRARD JA:  In this appeal I have read and respectfully agree with the reasons for judgment of Fryberg J, and with the order proposed by His Honour.

3. FRYBERG J:  On 25 November 2004 the appellant was convicted in the District Court at Maroochydore of unlawfully assaulting a motorist and doing him bodily harm.  He now appeals on the following grounds:

“1.The learned Trial Judge erred when he declined to accede to an application by the Appellant’s Counsel to not preside at the Trial in this matter after presiding at the original Trial and where an appeal had been allowed and the Jury’s verdict set aside. 

2. The learned Trial Judge erred when he refused Defence Counsel the right to cross-examine the Complainant on a prior inconsistent statement which was made by the Complainant at the first Trial, namely that he had “bopped” the accused, when such evidence was open to be found on other witnesses testimony and from the photographic evidence of the Complainant’s knuckles.
3. The learned Trial Judge erred when he refused “self defence” to go before the Jury when there was a significant body of evidence that the accused may have acted in self defence.
4. The learned Trial Judge erred when he declined to accede to an application by Defence Counsel in relation to a “no case” submission with respect to lack of evidence implicating the identity of the perpetrator.
5. Further and in the alternative to 4 above, the learned Trial Judge erred in suggesting to Defence Counsel that if Defence Counsel wished to persist with the application of the “no case” submission on the basis of lack of evidence indicating the identity of the perpetrator, then the learned Trial Judge would allow the Crown to reopen their case to establish identification.” 

4. The circumstances of the case and the evidence were sufficiently summarised in the respondent’s outline of argument:

“4.1The 56 year old complainant, Mr Cahill, was travelling to work at about 6.20am on 22 March 2003.  As he drove his vehicle along Nicklin Way, Kawana Waters he saw the appellant riding a bicycle.  The appellant rode that bicycle out into the lane of traffic the complainant was travelling in.  The complainant stopped his vehicle to avoid hitting the appellant.  The complainant called out, “Get off the road you bloody dick head.”  As the complainant started to drive off the appellant yelled something back so the complainant pulled over on an angle, as he described it, and said “You dick head.  I could’ve fucking killed you.  Just learn how to ride it or put it back in the shed.”  All this was said whilst the complainant was still in his vehicle and the appellant was at the front passenger-side window.  The appellant disputed the suggestion he was a dick head and said “Have you got a problem?”  The complainant, rather unfortunately, pulled up a short distance further on, alighted and called the appellant a “dickhead” again.

4.2The complainant said that he waved his arms everywhere and “I was … nearly hitting him” and he said “I could have killed you, you stupid prick.”  Abusive language was used by each man towards the other.  The complainant then walked back to the driver’s side door but the appellant put his bicycle between the door and the complainant.  When told to move it away so that the vehicle would not get scratched the appellant asked the complainant again if the complainant had a problem.  The complainant said he had not and walked around behind the bicycle so that he was between it and the vehicle.  The complainant asked the appellant to move away three times.  The appellant did not move so the complainant put his hand on the appellant’s shoulder and his other hand on a wheel of the bicycle and pulled the bicycle back and then shoved the appellant away. 

4.3The appellant said, “You shouldn’t have pushed me, I’m a boxer.”  The appellant then threw numerous punches at the complainant’s head and upper torso, the complainant tried to block the blows.  He pushed the appellant away and the appellant punched him again.  The complainant pushed him away and again said “Just piss off out of my life … I’m going to work.”  He turned towards his vehicle and the next thing he knew was that he was falling over.  He said he was “king hit”.

4.4Mr McArthur was also travelling along Nicklin Way.  He saw the complainant’s vehicle parked in an odd position on the road and he saw the appellant and the complainant arguing.  He saw the complainant pointing.  As he drove nearer he saw the complainant turn to walk away or “he took a step – he turned” when the appellant hit him in the side of the face.  The complainant went down head first into the gutter.  McArthur was about 20m off when he saw this.  He described the hit as “a punch”.  He stopped to assist the complainant.  He said the appellant told him to keep out of it.  He said the appellant bounced around like a boxer calling on the complainant to get up.  This was a detail the complainant also spoke of to the extent that he recalled the appellant being over the top of him saying, “You shouldn’t have picked on me.  I’m a boxer, I’m a fighter.”

4.5Ms Alexander, who was out walking a dog, heard the complainant’s vehicle screech to a halt.  She saw a man standing next to the vehicle talking to the driver.  From her position across the street she saw the complainant alight from the vehicle and he was holding onto the other man’s bicycle as if he was pushing it away.  The dog walked off so she looked away.  When she looked again she saw both men throwing punches.  She did not see how that started but the bicyclist was punching and moving forward whilst the complainant was swinging and moving back.  It appeared to her that the complainant was trying to block the blows.  She said the bicyclist then took a big swing and hit the complainant in the face and he went down to the ground.  The bicyclist remained there with his hands up ready to continue to fight. 

4.6Constable Betts arrived at 6.30am and saw the complainant sitting by the road in a bloodied condition.  After getting a description of the other party he located the appellant in the next street parallel to Nicklin Way.  The appellant was riding a green ladies’ mountain bike.  The appellant had a lump on the bridge of his nose and blood was coming from it.  The appellant said, when asked, that he suffered the nose injury whilst sparring with his nephew earlier that morning.  The appellant gave off an odour of liquor, was unsteady on his feet and said he was intoxicated.”^[1]

Ground one: recusal

5. The trial was held before Judge Robertson and a jury. It was a retrial. The appellant had been tried before the same judge and a different jury for the same offence in March 2004. He was then convicted. His appeal to the Court of Appeal was successful on the basis that the trial process had been compromised when a witness unexpectedly gave evidence which the majority of the court held ought to have been excluded.^[2]  No application had been made to the trial judge to discharge the jury, nor had a direction regarding the evidence been sought.  Fifteen days before the retrial commenced the appellant applied to the judge for the matter to be delisted on the ground that it should be retried before a different judge.  The Court of Appeal had made no order to that effect (and none had been sought) and counsel for the appellant told his Honour that no allegation regarding him was made by the defence.  He supported the application only with the assertion that the appellant was concerned about his opportunity to get a fair trial before the same judge.  He conceded he had no authority to support the application.  The application was dismissed and the trial proceeded in due course.

6. Before us the appellant submitted that the trial should have been removed from the judge's list on the ground that there could have been a perception of bias. This was said to arise from the grounds of appeal advanced after the first trial. Apart from the ground upon which the appeal succeeded those grounds were that evidence of a police officer of certain statements made by the appellant ought to have been excluded and that the jury should have been directed not to place undue weight on the extent of the injuries suffered by the complainant. Both grounds were described by the Court of Appeal, unanimously, as “without substance”. Before us the appellant conceded that there is no general rule that a new trial must take place before a different judge, and he alleged no impropriety by the judge.

7. I see no basis for the judge to have disqualified himself. No rational person could have perceived bias in what occurred. This ground of appeal should be rejected.

Ground two: prior inconsistent statement

8. In the course of cross-examination, counsel for the appellant suggested to the complainant that he was trying to punch the appellant. The complainant denied that suggestion. Counsel then drew the witness’s attention to his evidence at the first trial and the following exchange took place:

“… at page 12 line – approximately line 10.

HIS HONOUR:  I don’t have any – show me.

MR WALLACE:  Sorry, your Honour.  It’s more like about line 6.  “I pushed him away a couple of times and, once again, said, ‘Just nick off.  Leave me alone,’ sort of thing, and we finished up round the back of me wagon and he came at me again, throwing left, right and centre and all sorts of things and in the finish, I gave him a big shove in across the chest here.  Like, I bopped a few, pushed him and once again, I said, ‘Just fuck off.’”

HIS HONOUR:  I think that should be “copped”.

MR WALLACE:  And – I’m sorry, your Honour?

HIS HONOUR:  That’s – “bopped” should be “copped”.  Is that what you’re relying on?

MR WALLACE:  Yes.  I-----

HIS HONOUR:  “Bopped”.

MR WALLACE:  “Bopped”.”

The jury was then sent out and the judge affirmed his view that the transcript was in error.  Neither counsel had appeared in the first trial, so neither could contradict his Honour's assessment.  His Honour ruled that the proposed cross-examination was unfair, saying that if counsel wanted to persist with it he would stand the trial down and find that tape recording from which the transcript had been made.  Counsel then announced that he would not persist with the matter.

9. On the second morning of the trial the jury sent his Honour a note asking to be told the outcome of “bopped or copped”. Subsequently his Honour told the jury,

“[A]s a result of the discussion that we had in your absence, Mr Wallace did not suggest to Mr Cahill that on any previous occasion when he's given evidence on oath about these matters, he himself has admitted to punching Mr Lee. … Mr Wallace didn't continue with that line of questions, so it didn't lead anywhere.”

The appellant submitted that the cross-examination should have been permitted to continue given that there was evidence from another witness of an exchange of punches and photographic evidence of the complainant's knuckles.

10. It would be sufficient to dismiss this ground of appeal to observe that counsel did not persist with his question. The judge did not prohibit him from putting to the witness a previous inconsistent statement. What he prohibited was doing so from the transcript, which the judge thought was in error. In adopting this course his Honour was quite correct. The transcript was prepared by a typist from an audio tape. The typist might or might not have been present in the court room when the evidence was given. The transcript was not the best evidence of what was said. The audio tape was. The judge offered to have the tape found and to stand the trial down for that purpose, but counsel declined that offer.

11. Had counsel wished to persist with the question, the correct course would have been for him to put the circumstances of the prior inconsistent statement and, if it were denied, to have played the audio tape to the witness. If the witness did not distinctly admit having made an inconsistent statement on the earlier occasion, counsel could have called evidence to identify the tape and then tendered it. It would then have been a question for the jury to determine whether the witness had made an inconsistent statement.

12. But the outcome of the appeal on this point need not depend on that. Before the hearing I obtained from the State Reporting Bureau an extract containing the relevant section of the original audiotape of the first trial. All members of the Court listened to it. It is plain that the word used by the complainant on the earlier occasion was neither “copped” nor “bopped” but “blocked”. Counsel's judgment in not pursuing the question is therefore vindicated. Not only would the tape not have advanced the appellant's case, it would positively have disadvantaged it. Moreover by going into evidence to prove the tape, counsel would have lost the right of last address (the appellant neither gave nor called evidence). That right is perceived by many defence barristers to be one of great value; they often devote considerable tactical energy to retaining it. Although I doubt the accuracy of that perception I have no doubt counsel made a considered tactical decision not to pursue the question.

13. It cannot be said that the judge's ruling in any way affected the appellant's prospects of acquittal or denied him a fair hearing.

Ground three: self defence

14. The judge refused to leave self-defence to the jury on the ground that the issue had not been raised by the evidence. The appellant submits that it was. The basis for that submission was that one witness, Ms Alexander, who did not see the start of the altercation, gave evidence that at one point she saw two people throwing punches at each other. However she qualified that evidence in the following passage:

“All right.  Now, you say they were both throwing punches? -- Mmm.

Was there anything different between the punches thrown by each man? -- Well, it seemed the bike rider was sort of throwing and sort of moving him forward.

Yes? -- And the driver of the car was sort of swinging but moving backwards, sort of like, he wasn’t – didn’t seem to be connecting like the bike rider was.

All right.  Are you able to describe the manner in which the driver was swinging?  Can you describe that? -- It was more like a defence, sort of thing rather than actual going at it.  He was sort of, you know, more, you know, trying to stop the blows or whatever.

All right.  Yes, thank you for that.  Okay.  All right.  And how long do you say that occurred for? -- Not very long at all.

All right? -- It was just a – yeah, couple of blows each, sort of thing and then the big one came.

So, you say a big one came? -- Yeah.

Who delivered the big one? -- The bike rider.

All right.  And what did you observe?  What did you see happen? -- Well, there was just a big swing, the car driver just went down like a sack of potatoes.”

In cross-examination she affirmed that both men were throwing punches, but said that she couldn't say whether every punch was connecting. 

15. In addition the appellant sought to rely upon the complainant's evidence that, while the appellant was astride his bicycle, he pulled it back from the door of his car and shoved the appellant away.

16. It is insufficient to raise an issue of self-defence merely to show that in the course of an altercation the alleged victim might have thrown punches at the accused. An element of the defence is that the accused was unlawfully assaulted; another is that the force used by the accused was reasonably necessary to make effectual defence against that assault.^[3]  For the defence to be raised there must be “some evidence fit for [the jury’s] consideration”^[4] of those elements.  Of course it need not be direct evidence; evidence capable of supporting an inference would be enough. In the context of the present case it is necessary to find some basis in the evidence to support the proposition that the blow which injured the complainant was reasonably necessary for the appellant to defend himself against an assault.

17. No such evidence was given. On the contrary, the complainant’s evidence that before he was hit he had turned his back to the appellant and begun to move away was accepted, indeed relied upon, by the appellant’s counsel. Even if the complainant’s shove and any punches which Ms Alexander saw thrown constituted an unlawful assault, on no view could it be held that the appellant’s punch was reasonably necessary for his own defence. However provocative the complainant’s conduct may have been (and provocation was left to the jury), self-defence simply was not raised by the evidence.

Grounds four and five: identification

18. At the close of the Crown case defence counsel submitted that the appellant had no case to answer by reason of the absence of any acceptable evidence of identification. He submitted that the only evidence of identification came from a witness who saw the appellant being placed into a police vehicle, thus tainting the identification. The judge pointed out that on a number of occasions counsel had put suggestions in the form “my client did this” or “you did that in relation to my client”; and that the whole case had been conducted on the basis that there was no issue as to identification. He intimated that if counsel persisted with the submission, he would adjourn the trial to give the prosecution an opportunity to reopen its case. After taking instructions defence counsel withdrew the submission; but later, again on instructions, he renewed it. The Crown prosecutor did not seek an adjournment and did not apply to reopen his case, but relied on evidence supporting the appellant’s identification and on the conduct of the defence case. The judge rejected the no-case submission.

19. In this court the appellant was unrepresented, but his outline of submissions was evidently prepared by someone with legal training. In that outline it is submitted, citing Lawrence v The Queen^[5], that any reopening of the Crown case as foreshadowed by the judge would have represented a gross unfairness to the accused.  The relevance of that submission is unclear, for the Crown did not reopen its case and the application was determined on its merits.  I doubt the correctness of the submission, but it is unnecessary to determine the point.

20. There was sufficient evidence to support an identification of the appellant as the perpetrator, particularly when regard is had to the conduct of his case by his counsel. I do not propose to list it. The submission has no substance. Moreover, in the course of his submissions in this court the appellant handed us a handwritten document addressed to the members of the court, signed by him and dated 22 March 2005. In part that document states:

“I am here before you today because I was riding my bike one morning and an angry man in a 4WD pulled alongside me hurled a torent [sic] of abuse at me.  Pulled his vehicle over and hopped out and physically attacked me.  In the past where I’ve allways [sic] admitted a digree [sic] of guilt, on this occasion I had no choice whatsoever but to defend myself.”

I therefore take ground four to be abandoned.

21. The appeal should be dismissed.