SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The appellants, Shane Byrne and Cherise Poid, were jointly charged with unlawfully doing grievous bodily harm to Tobias Prior at Proserpine on 17 February 2005.  They were each convicted after a four day trial in the Bowen District Court.  They each appealed against their conviction.  On 5 May 2006 this Court ordered that in each case the appeal against conviction was allowed, the conviction quashed and a retrial ordered.  These are my reasons for those orders.

[2] Byrne contends that the learned trial judge erred, first, in failing to leave s 267 Criminal Code 1899 (Qld) for consideration by the jury; second, in failing to direct the jury that the defences under s 271(2) and s 273 Criminal Code extended on the facts to defending the children in the house and Ms Poid; and third, in failing to direct the jury that they had to be satisfied that his admissions to police were true before acting on them.

[3] Poid contends, first, that the verdict of the jury was unreasonable in that it was not open on the evidence to find that she had caused the wound amounting to grievous bodily harm nor that she was a party to the causing of that wound under s 7(1)(a), (b) or (c) Criminal Code; second, that the learned trial judge erred in directing the jury that the evidence of Poid's conversation with the witness Hall established liability under either s 7(1)(b) or s 7(1)(c) in that the conversation was not capable of that interpretation and that his Honour erred in effectively withdrawing that issue from the jury; third, that the judge erred in failing to leave to the jury s 271(2) Criminal Code in relation to Poid's defence of herself and s 271(2) and s 273 Criminal Code in relation to Poid's defence of the children in the house and of Byrne; and finally, that the judge erred in failing to direct the jury that they had to be satisfied that the admissions Poid made to police and to the witness Hall were true before they could act on them.

The relevant facts

[4] A consideration of these grounds of appeal requires an understanding of the relevant evidence at trial.

[5] Byrne lived and worked in Mackay but regularly stayed over at his girlfriend Poid's home in Proserpine.  Poid lived there with her 15 month old child.  Some of her other four children also regularly stayed with her.  Byrne visited Poid on Wednesday 16 February 2005.  Poid had three of her young children staying with her, including the 15 month old.  Poid's father and some other family members arrived for a drink at about 8.30 pm.  At about 9.45 pm the complainant and his male companion, Sean Donnelly, arrived uninvited.  The complainant had consumed alcohol before arriving and consumed more alcohol from the Poid home during the evening.  He became abusive and aggressive to guests and to Byrne as the evening progressed.  Byrne was looking after the children and was drinking very little alcohol.  The complainant said words to the effect of "I'll kill you.  I'll damage you.  I've just gotten out of prison.  You don't know what I'm capable of."  It was not clear on the evidence whether this was said to Byrne or to Poid's father.

[6] Poid called police in an effort to make the complainant leave.  Police arrived at Poid's home at about 1.30 am the next day.  Poid complained to them about the complainant's aggression and that he and Donnelly were causing fights.  The complainant and Donnelly had by then left the house but the police officers spoke to them nearby at about 2.00 am, and told them that the party was off and not to return to Poid's home.

[7] Unfortunately the complainant and Donnelly ignored that advice and returned to Poid's house.  The complainant had previous convictions for breaking and entering dwelling houses with intent and for assaults.  The complainant tried to forcibly enter the house through the back door.  Byrne and the children were inside.  There are then varying accounts as to what happened.

[8] Allyson Kissier, a friend of Poid's, gave evidence that she was at Poid's home at the time of the incident.  She was drinking on the patio with her mother and uncles.  The complainant and Poid went into the house.  Byrne was already inside.  After about half an hour the complainant came out of Poid's home bleeding.  Poid seemed worried and said that Byrne had stabbed him.  Ms Kissier agreed in cross‑examination that she told police that Poid said Byrne stabbed the complainant in self-defence.

[9] The complainant was drunk and had very little recollection of events.  He remembered returning to Poid's home, being involved in a "wrassle" after arguing with Byrne, seeing Poid, and leaving with Donnelly who called an ambulance.

[10]  When the ambulance arrived the complainant was still agitated and aggressive and appeared intoxicated.  Ambulance officer Shields heard him say repeatedly words to the effect of "I'm going to go back and finish the cunt off.  It's not over.  I'm going to finish the cunt off.  He's fucking dead."

[11]  The complainant received 12 stab wounds: one to the right shoulder and back; three penetrating wounds to the back of the neck; and eight penetrating wounds to his back, including a larger penetrating wound over the right scapula.  The medical evidence was that the only injury capable of amounting to grievous bodily harm was the wound to the complainant's right scapula into the pleural space, which caused a haemothorax and related serious blood loss.  It was highly likely that the complainant would have died from this injury had he not received medical treatment.

[12]  Byrne gave conflicting versions to police as to what happened that evening.  He initially gave a statement to police in which he said that the complainant had been aggressive towards him all night.  After leaving when the police were called, the complainant returned and tried to barge in to Poid's home.  Byrne looked for a key to lock the door.  The complainant headed to the lounge room.  He heard Poid say "Leave me alone, get out."  This was a cry for help and he went to assist.  He saw blood on the carpet and Poid and the complainant rolling on the ground.  He pulled them apart.  He saw scissors drop to the carpet.  The complainant left.  Poid had no obvious injuries.  She said she had to do it.  The police arrived shortly afterwards.

[13]  On 4 March 2005 he told police that parts of his original statement to police were untrue and gave the following version.  The complainant had been drunk and aggressive all evening, threatening both Byrne and Poid's father.  After the complainant and Donnelly had been removed, they returned and Poid thought they were going to "belt her up".  Byrne was looking for the key to the back door to lock it so as to keep out the complainant.  Byrne told police "I was looking for the key on the table, had my back faced to him.  I copped a couple of hits in the back of the head.  When I spun around I happened to have my hand on a pair of scissors and basically protected myself, feared for - yeah, I mean, the guy's taller than me - feared for my life.  I had kids and a girl in the house at the time."  Byrne said that he stabbed the complainant twice but that the complainant just kept attacking him, threatening to kill him.  Byrne said "I was fearing for my life, for the kids and for [Poid].  I didn't know what he was capable of."  The complainant was threatening him, saying "'I'll kill you, you white bastard' ... was throwing punches at the time ... most of them were copping me behind my head because I was getting in close to him.  ... I didn't intend to do any damage to him.  I just intended to - to get him away from me."  The scissors were in Byrne's hand at the end of the altercation.  Byrne received a cut to his "pinkie" in the struggle.  His shorts were marked by some minor blood splatters.

[14]  The police showed him a diagram of the stab wounds to the complainant and asked how, on his version, he could have inflicted those wounds.  He said that after the first few stabs he did not have any recollection or memory for a period.  His next recollection was Poid calling his name at the end of the incident.  He had blacked out on previous occasions. 

[15]  When police arrived at Poid's home after the stabbing, she immediately said words to the following effect: "[t]hat black cunt's come back bridging up to us again."  She led police into the lounge room and said "So I've grabbed the keys and tried to lock him out, but he got in.  ... So I grabbed the scissors that were next to the keys and fucking stabbed him."  She gave police the scissors.  She did not appear to be injured and had no noticeable blood on her body or clothes.  She told police that the complainant had come to their home uninvited and became disruptive.  She rang for police assistance to have him removed.  He later returned and tried to forcibly enter through the back door.

[16]  On 25 February 2005 Toni Hall, who described herself as Poid's mentor, spoke to Poid about the incident.  Poid said the complainant had returned to her home and attempted to enter through the back door against her wishes.  Byrne tried to lock him out but the complainant entered, a struggle ensued and Byrne stabbed him with scissors.  Hall expressed shock at the reported 12 stab wounds to the complainant.  Poid said "Well, actually, [Byrne] stabbed him twice and I stabbed him a further eight times."  Hall said "My God.  Well, what's going to happen out of this?"  Poid replied "that [Byrne] was going to take the wrap [sic] for her because his mother is a very wealthy lady and she can afford the best of the best when it ... comes to solicitors."  Hall's version was disputed by Poid's counsel in cross‑examination but maintained by Hall.

[17]  There was conflicting evidence that the complainant was stabbed either by Poid alone or by Byrne alone or by both of them.  Byrne's statements to police were evidence only in his case.  Poid's statement to police and Hall's evidence of Poid's statements to her were evidence only in Poid's case.

[18]  Neither appellant gave or called evidence.

Should the defence under s 267 Criminal Code have been left to the jury in Byrne's case?

[19]  The judge left the defence under s 267 Criminal Code (defence of dwelling) in respect of Poid but Byrne contends that s 267 should also have been left as a defence in his case.

[20]  That section provides:

"267Defence of dwelling

It is lawful for a person who is in peaceable possession of a dwelling, and any person lawfully assisting him or her or acting by his or her authority, to use force to prevent or repel another person from unlawfully entering or remaining in the dwelling, if the person using the force believes on reasonable grounds -

(a)the other person is attempting to enter or to remain in the dwelling with intent to commit an indictable offence in the dwelling; and

(b)it is necessary to use that force."

[21]  The evidence was capable of raising the real possibility that Byrne, as a temporary resident in Poid's home, was a person in peaceable possession[1] of Poid's dwelling and that during his altercation with the complainant he was using necessary force to prevent the complainant from unlawfully remaining in the dwelling, believing that the complainant had entered the dwelling with intent to commit an indictable offence in the dwelling, namely assault of either Byrne, Poid, or the children.  Byrne's counsel at trial submitted that the defence should be left to the jury.  The judge wrongly rejected that submission and erred in not leaving the defence under s 267 Criminal Code as an issue for the jury.

Did the judge err in his directions on s 271(2) and s 273 Criminal Code?

[22]  Byrne's counsel contends that the judge's directions on s 271(2) Criminal Code were flawed; although they were adequate in respect of Byrne's defence of himself from attack by the complainant, they did not deal with the real possibility raised on the evidence that he was acting in defence of Poid and her children.

[23]  Poid's counsel contends that the judge erred in failing to leave to the jury the defences under s 271(2) in respect of defending herself from the complainant and s 271(2) and s 273 in respect of defending Byrne and her children.  Poid's counsel at trial contended that self-defence should be left to the jury.  The judge refused to direct the jury on self-defence in Poid's case.

[24]  The learned primary judge's directions on s 271(2) Criminal Code in respect of Byrne are contained in about seven pages of transcript.  They emphasize the possibility that Byrne may have been defending himself in his altercation with the complainant.  On three occasions the judge refers to the possibility of him defending "others" but no reference is made to the possibility that he may have been defending Poid or her children or to the evidence relevant to the defence of Poid or her children.

[25]  These references to "others" were not sufficient to alert the jury to the fact that a defence under s 271(2) Criminal Code could be used by Byrne not only in defending himself but also, on the evidence here, in defending Poid or her children.  The judge should have explained to the jury that any defence under s 271(2) Criminal Code operated together with s 273 Criminal Code which provides:

"In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself or herself against an assault, it is lawful for any other person acting in good faith in the first person's aid to use a like degree of force for the purpose of defending the first person."

[26]  In Poid's case the learned primary judge did not give any directions as to the application of s 271(2) and s 273 Criminal Code.  The evidence at trial raised the real possibility that Poid may have stabbed the complainant in the course of defending herself or Byrne or her children.  The judge should have left these defences to the jury in Poid's case.

[27]  It follows that the judicial directions as to self-defence under s 271(2) and s 273 were on the evidence at trial inadequate in the cases of both appellants.

Were the judicial directions as to the evidence of admissions adequate?

[28]  In oral argument during the hearing of the appeal, each appellant raised a further ground of appeal, contending that the judge erred in not directing the jury that, before acting on the confessional statements said to have been made by each appellant, they must be satisfied not only that each appellant said things implicating himself or herself in the commission of the offence but also that the confessional statements were true.[2]

[29]  Such a direction is ordinarily required to ensure that a jury understands how to properly use evidence of alleged admissions made out of court.  In this case such a direction was especially important because there was a real possibility that one appellant may have falsely confessed to stabbing the complainant so as to protect the other.  The judge erred in failing to give this standard direction.

Could the jury have been satisfied on the evidence that Poid either herself caused the wound amounting to grievous bodily harm or aided Byrne in causing that wound under s 7 Criminal Code?

[30]  Poid's counsel contends that, whilst the jury would be entitled to accept the truthfulness of Poid's account to the police officers that she alone was responsible for stabbing the complainant so that she was guilty of doing grievous bodily harm, the jury could not also have been satisfied beyond reasonable doubt of Byrne's guilt of doing grievous bodily harm to the complainant; on the evidence she could not have been convicted of aiding Byrne to do grievous bodily harm to the complainant.

[31]  The prosecution case was either that each appellant did the actual act causing grievous bodily harm or that Poid aided Byrne in doing that act.  On the evidence, unless the jury were satisfied that one appellant was responsible for causing all the stab wounds, it was impossible to know which appellant inflicted the single major stab wound which caused the complainant's grievous bodily harm.  The only evidence in Poid's case that she may have aided Byrne in stabbing the complainant was Hall's evidence of Poid's statements to her that Byrne stabbed the complainant twice and that Poid then stabbed him a further eight times.

[32]  The judge's directions on this issue were as follows:

"Now, our Criminal Code provides this so far as parties to offences are concerned.  When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it, that is to say, every person who actually does the act or makes the omission which constitutes the offence - that in simple terms would be the person who does the stabbing, every person who does any act for the purpose of enabling or aiding another person to commit the offence, and every person who aids another person in committing the offence.

So far as that provision is concerned, ladies and gentlemen, on the last account given by Miss Poid, which I will remind you of in a moment, the Crown must prove that each accused stabbed Prior; that each was acting together in doing so; that both intended to stab Prior; and that by doing so, each assisted the other to do so and each intended to assist the other to do so. ...

...

[Poid's statement to Hall is] evidence only in the case against Poid.  So Poid is effectively saying in that statement that she stabbed - she, with Byrne acting together and helping and aiding each other in the way I described to you before and intending to assist each other, each stabbed Prior.  Byrne stabbed him twice, and then she stabbed him another eight or so times."

[33]  Poid's counsel further contends that the judge's observations on Hall's evidence amounted to a misdirection.  A judge is entitled to make comments on the facts and his Honour's observations in themselves probably do not amount to a judicial error.  They were, however, not helpful to the jury and confused rather than clarified the issues for them.  The real issue in these grounds of appeal was whether s 7(1)(b) and (c) should have been left to the jury.

[34]  The appellants were not charged with any alternative count such as unlawful wounding.  This was not a case where the prosecution was alleging that Byrne and Poid counselled or procured each other to commit the offence (s 7(1)(d) and s 9 Criminal Code) or that each appellant formed a common intention to prosecute an unlawful purpose (s 8 Criminal Code).  The evidence in this case differed from factual situations which commonly arise like that in R v Sherrington and Kuchler[3] where the evidence clearly established that a complainant had been injured by one or more blows in a fracas in which more than one accused person was involved.

[35]  Had the jury accepted Hall's evidence as a true and accurate statement by Poid as to the relevant events of the evening, the jury may have inferred that in all the circumstances when Poid stabbed the complainant she was acting with Byrne in an attempt to get the complainant out of her home.  But if, as Hall said Poid told her, Poid inflicted the eight stab wounds after Byrne had inflicted two stab wounds on the complainant, the jury could not be satisfied beyond reasonable doubt that the stab wounds inflicted by Poid had caused the grievous bodily harm.  Nor could they be satisfied beyond reasonable doubt that in inflicting any one of those eight stab wounds Poid was aiding Byrne in doing grievous bodily harm because Byrne may already have caused the grievous bodily harm in his two acts of stabbing the complainant.

[36]  In attempting to defend Poid's conviction, the respondent's counsel emphasizes the post-offence behaviour of Poid and Byrne, that is, their inconsistent versions of the evening's events demonstrated that the appellants were acting together in their attack on the complainant.  This was not, however, the way the case was conducted at trial.  It was not suggested that the inconsistent account of either appellant could be used against the other in his or her case.  No doubt this was because the appellants' inconsistent unreliable or untruthful accounts given to others out of court were equally consistent with them panicking about the serious consequences to the complainant from the altercation or with an innocent appellant attempting to protect his or her partner as with them acting together in attacking the complainant.  As I noted earlier, the prosecution case was not based on s 7(1)(d), s 8 or s 9 Criminal Code.  The appellants' inconsistent statements to others after the stabbing of the complainant did not repair the serious deficiencies in the prosecution case against Poid based on s 7(1)(b) or (c).  On the evidence at trial, Poid's case should not have been left to the jury on the basis of s 7(1)(b) or s 7(1)(c).

Conclusion

[37]  The multiple judicial errors in this case require that the appeals of both Byrne and Poid be allowed.  Although there was a reasonably strong case against each appellant for the offence of unlawful wounding, the case against each of them for the offence of grievous bodily harm was, for the reasons I have given, somewhat tenuous.  In neither case is it appropriate to apply s 668E(1A) Criminal Code: it cannot be said that no substantial miscarriage of justice has actually occurred in each case.

[38]  The next issue is whether this Court should order a retrial in either case.  The indictment charges only grievous bodily harm, not unlawful wounding.  The difficulty for the prosecution in proving the charge of grievous bodily harm is in establishing beyond reasonable doubt on the evidence called at trial which appellant caused the single stab wound resulting in the complainant's grievous bodily harm.  A jury in a joint trial would be entitled to accept as true Byrne's account to police accepting responsibility for all the stab wounds to the complainant and to convict Byrne but acquit Poid of grievous bodily harm.  Alternatively, a jury in a joint trial could accept Poid's initial statement to police of her responsibility for all stab wounds to the complainant and so convict her but acquit Byrne of grievous bodily harm.  A jury in a joint trial could not, however, on the present evidence logically convict both appellants of doing grievous bodily harm to the complainant.  If separate trials were conducted, it would, at least in theory, be possible for different juries to convict each appellant of grievous bodily harm.  The reality is that the inconsistent confessional statements make a verdict in respect of either appellant of guilty of grievous bodily harm unlikely on the present evidence, so that there may be little point in this Court ordering retrials.  The prosecution case against both appellants is much stronger on charges of unlawful wounding but as both appellants have been in custody at least since their conviction on 14 November last year until the orders in this appeal were pronounced by this Court on 5 May 2006, a period of almost six months, the utility of the prosecution now pursuing charges of unlawful wounding may also be questionable.  Ultimately, however, it remains a matter for the Director of Public Prosecutions (Queensland) whether to proceed afresh against either appellant and, if so, on what charge;  this Court should order retrials.

[39]  WILLIAMS JA:  The issues raised by these appeals are fully set out in the reasons for judgment of the President which I have had the advantage of reading.  The conflicting evidence in the cases against each appellant called for clear and precise directions in the summing up by the trial judge on the various defences available to each appellant, and also as to the evidence on which the jury could rely in each case.  As is amply demonstrated by the reasons for judgment of the President the summing up did not deal appropriately with all of those matters.

[40]  There are clearly serious issues for the Director of Public Prosecutions to consider on the question whether or not there should be re-trials, and if so, on what charges.

[41]  I agree with the orders proposed by the President.

[42]  FRYBERG J:  Most of the facts which led to these charges are set out in the judgment of the President.  There were significant differences in the evidence led in relation to each appellant.  I therefore prefer to consider each appeal separately.

R v Byrne

Ground 1

[43]  The first ground in the amended notice of appeal was, “The trial judge erred in failing to leave s 267 of the Criminal Code for consideration by the jury”.

[44]  The address where the stabbing occurred, 3 Florence Street, Proserpine was described by all witnesses who dealt with the matter as “Cherise's” or “Cherise's house”.  The precise legal character of the possession implied by those terms was not in evidence, but that does not matter.  The evidence was sufficient for a finding that the premises contained a dwelling (Ms Poid and at least one of her children occupied the house at those premises) and that Ms Poid was in possession of it.  There was no suggestion that her possession was other than peaceable, at least until Tobias Prior and Sean Donnelly went there on 16 February 2005.  However in my judgment there was no evidence that Mr Byrne was in possession of the dwelling, whether one applies the inclusive meaning of “having under control” found in s 1 of the Criminal Code or any other definition.  He lived and worked in Mackay.  He told police in a statement made on the day of the incident, “I have been coming up to visit Cherise and stay at her place on weekends and sometimes during the week”.  Even if one takes his conduct on the night in question into account, I do not think it reasonable to infer that he was in possession of the dwelling.  In this respect I do not agree with the reasons of my colleagues.

[45]  However that does not dispose of this ground of appeal.  Section 267 makes lawful the use of force by any person lawfully assisting a person who is in peaceable possession of a dwelling.  In the statement referred to above, Mr Byrne said:

“I suggested to her that we lock up the house and she agreed.  At that time we were searching for the back door key and while we were looking for the key, the darker fellow of the two, Tobias PRIOR was trying to get in through the back door.  He was trying to push the door open and calling out to Cherise, he wanted to speak to Cherise.  She was calling out to him, telling him she wanted to lock up the house and go to bed.  She asked him to leave and he kept saying no, that he wanted to sort it out.  He’d been arguing and been trying to fight with everyone there that night, even Cherise’s old man.  I kept searching for the key and he barged his way through the door.  I had been standing near the door at the time about a foot behind it.  I can’t say whether he damaged the door, but when he came into the house he headed for the lounge room.

I could see that he was extremely pissed, I could smell it all over him, and I knew that he had been drinking.  He headed towards the lounge room.  I remember at this time that Cherise had mentioned the key to the back door may be on the table outside, so I went outside to look for it.  Then all of a sudden, I heard a heap of yelling, it was Cherise’s voice saying ‘leave me alone, get out’.  It was more of a cry for help, as if she was being harassed at the time.”

It was open to the jury to accept that evidence, even if they did not accept the statement in whole.  If they did so, they might not have been satisfied beyond reasonable doubt that Mr Byrne was not lawfully assisting Ms Poid at the time of the stabbing.

[46]  As to each of the other elements of s 267, the surrounding circumstances were sufficient to raise the issue.  Inferences could have been drawn, on the basis of which the jury might have held a reasonable doubt.

[47]  I therefore agree that Wall DCJ erred in not leaving this defence to the jury.  For that reason the conviction could not stand.

Ground 2

[48]  The second ground of appeal was, “The trial judge erred in failing to direct the jury that the defences under s 271(2) and/or s 273 of the Criminal Code extended to defending the children in the house and Ms Poid".

[49]  The trial judge did not direct the jury in relation to s 273.  It seems that both he and counsel overlooked the existence of the section.  Counsel became aware of it only during the course of oral submissions in this Court.  That is deplorable.  It seems to have been assumed that s 271(2) provides for both self-defence and defence of another.  That assumption was probably contributed to by amendments made to the section not by Parliament but on the authority of the Parliamentary Counsel pursuant to s 7 of what might have been called the Fashionable and Politically Correct Drafting Act 1992, but was in fact called the Reprints Act 1992.  The amendments tend to obscure the close relationship between what are now two sub‑sections of s 271.  Section 271(1) plainly applies only to self-defence.  So, in my judgment, does s 271(2), notwithstanding some superficial appearance that it might be read as a stand-alone provision.  The division of the section into sub‑sections was not permitted to change its effect.[4]  The assumption may also have resulted in part from the original use of the words “the person defended” rather than “himself” in what is now s 271(2).  However, those words should not be construed to refer to third persons.  Had that been their intended operation, s 273 would have been otiose.

[50]  For that reason, directions in relation only to s 271(2), even including references such as the judge gave to “others”,[5] could not amount to proper directions in relation to the defence provided by s 273.

[51]  Was there material in the evidence which squarely raised s 273?  The elements of the defence provided by that section (read with s 271(2) and applied to the persons involved in the present case) are:[6]

• Mr Byrne acted in good faith in Ms Poid’s aid;
• The force used by Mr Byrne was used for the purpose of defending Ms Poid;
• It was lawful for Ms Poid to use force for the purpose of defending herself against an assault;
• The degree of force used by Mr Byrne was no more than that which it was lawful for Ms Poid to use.

In my judgment inferences available from the proved facts were sufficient to raise the first two of those elements.  As to the third and fourth elements, the position is more difficult.  They first require the identification of a provision or provisions which might have made it lawful for Ms Poid to use force against Mr Prior for the purpose of defending herself against an assault by him.  The possibilities seem to be s 271(1) and s 271(2) - no one suggests s 272 could have had any operation and s 273 does not seem to have been drafted so as to catch up s 269.  If Ms Poid might have had a defence under s 271(1), Mr Byrne might have had a defence under s 273 provided the degree of force which he used was not such as was likely to cause death or grievous bodily harm (even if it in fact did so).  If Ms Poid might have had a defence under s 271(2), Mr Byrne might have had a defence under s 273 even if the degree of force which he used was such as was likely to cause death or grievous bodily harm.  Because it could not be known in advance how the jury would characterise the degree of force used by Mr Byrne, both possibilities had to be considered.  To add to the complexity, the existence of a possible defence for Ms Poid had to be considered by reference only to the evidence in the case against Mr Byrne.

[52]  The submissions in this Court did not essay an analysis of the evidence on this basis and I do not propose to undertake one now.  Mr Byrne must have a new trial by reason of his success on ground one of the appeal, and at the new trial the evidence may be different.  My primary purpose in raising the matters set out in the foregoing paragraph is to draw attention to issues which the parties may wish to address in that trial.  It is also appropriate to point out the difficulties which a strict application of the hearsay rule and the notorious complexities of s 271 can produce in a case such as the present.  That section is ripe for reform.

Ground 3

[53]  The third ground of appeal was, “The trial judge erred in failing to direct the jury that they had to be satisfied that what the appellant said to police was true before they could act on it.”

[54]  In Burns v The Queen, Barwick CJ, Gibbs and Mason JJ (Jacobs JA agreeing) said:

“It is clear and elementary law that once a confessional statement has been admitted into evidence its weight and probative value are matters for the jury. It is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part. Unless the jury are satisfied that so much of a confession as tends to show the guilt of the accused was true they cannot treat it as a proof of guilt.”[7]

[55]  On this ground, I agree with what the President has written.  However in the unusual circumstances of this case, it was necessary to go further. It was in my judgment necessary to tell the jury that in assessing the truthfulness of Mr Byrne’s confession, they should take into account (among other things) the self-inculpatory parts of the two confessional statements made by Ms Poid.  They should have been instructed that to the extent that they found that there was a reasonable possibility that a self-inculpatory statement made by Ms Poid in either of her confessions was true, they would necessarily have a reasonable doubt as to the truth of any inconsistent statement in Mr Byrne’s confession.

[56]  What made the circumstances unusual was the fact that Mr Byrne had confessed to striking all of the blows inflicted on Mr Prior, while Ms Poid had also confessed to striking some, and arguably all, of those blows.  The evidence established that only one blow amounted to grievous bodily harm[8] and the case against Mr Byrne was that he had struck it.  It was not suggested that he could be convicted under s 7(1)(b) or (c) or s 8 of the Criminal Code.  The truthfulness of what he said in his confession was critical.  The existence of Ms Poid’s self-inculpatory statements and their weight were important factors in assessing to what extent if any the statements in Mr Byrne’s interview with the police were true.  Their existence and weight were not evidence against Mr Byrne; they were evidence in his favour.  The fact that they had been made and their apparent weight were facts in the case.  They were not hearsay.  They were, in my judgment, admissible in Mr Byrne’s case to assist the jury's assessment of the truthfulness of his confession.  “[W]hen the evidence that an accused person has made a confession is not the only evidence in the case the jury are entitled to consider the whole of the evidence in deciding whether or not they are satisfied of the guilt of the accused.”[9]

[57]  Wall DCJ gave the jury a conventional direction for a trial of joint accused:

“Now, there are separate cases against each accused, ladies and gentlemen.  There is separate evidence in the case against each accused, and each case must be considered separately.  The evidence in the case against Byrne is not evidence against Poid; and the evidence in the case against Poid is not evidence against Byrne.

Now, you don’t put both cases together and try and figure out what happened.  You consider the case against each accused and the evidence referable to that case separately.  The end result, should you convict each accused or one of them, may seem quite inconsistent and it may seem to be based on an inconsistent case.  But that is a consequence which flows from considering each case separately.”

He then reviewed the evidence in each case separately, beginning with a case against Mr Byrne.  When he came to the case against Ms Poid, his Honour summarised the two confessions, that to Senior-Constable Rasmussen and that to Ms Hall.  Of the latter he said, “The statements there about Byrne stabbing Prior twice are not evidence against Byrne.  They are evidence only in the case against Poid.”  Then, toward the end of the summing up, he said:

“Now, it’s very important, as I said, that you consider the case against each accused separately, and, as I said, that has to be done in a trial such as this.  Because the complainant Toby Prior is unable to throw much light on what happened, the fact that you consider the case against each accused separately, as I said, that of necessity involves approaching the matter on a different basis for each accused.  That is one of the consequences of having a joint trial like this.  You don’t put both accounts together and try and figure out what happened; you consider each account separately and see whether you are satisfied beyond a reasonable doubt that each is guilty.  To convict each you would have to exclude the application of the defences I mentioned beyond reasonable doubt.”

[58]  It was undoubtedly correct that Ms Poid's self-inculpatory statements were not evidence against Mr Byrne.  However it was not correct that those statements were not evidence in his case.  There can be no criticism of his Honour’s having given the conventional direction regarding separate cases.  The unusual circumstances of this case, however, required those directions to be supplemented in the manner which I have described above.[10]

[59]  It may be that Ms Poid's self-inculpatory statements were admissible in the case against Mr Byrne not only to cast doubt on the truth of his confession, but also to cast doubt directly upon his guilt, particularly in relation to the issue of causation.  (Only one person could have delivered the critical blow.)  They could be admissible for that purpose only pursuant to an exception to the rule against hearsay.  Whether such an exception exists (or should be created) remains an open question.[11]

[60]  The omission of a direction that the jury should be satisfied that a confession was true before they could act on it might not always result in a miscarriage of justice.  In the present case I am satisfied that it did.  On this ground also the conviction could not stand.

R v Poid

Ground 1

[61]  The first ground of appeal was, “That the verdict of the jury was unreasonable in that it was not open on the evidence to find that the Appellant had caused the wound which amounted to grievous bodily harm, nor to find that she was a party to the causing of that wound, pursuant to Sections 7(1)(a), (b) or (c) of the Criminal Code”.

[62]  I reject the first limb of that ground.  In my judgment it was open on the evidence for the jury to find that Ms Poid had caused the wound which amounted to grievous bodily harm.  They could do so if they accepted the accuracy of her confession to Senior-Constable Rasmussen.  His evidence was:

“We’ve gone around to the back door, and that’s when we were approached by the accused Poid, who, before we said anything, stated words to the effect of, ‛That black cunt’s come back bridging up to us again.’  She has then walked inside the premises.  We followed her.  She has walked -----

...

MR RICHARDS:  What did you understand her to mean by that term?—I understand it to be either shaping up or being tough to people.

So it’s a term you’ve become familiar with in your service as a police officer? – Yes.

Where did that – where was that comment made?—That was made at the back door where we were first approached by the accused Poid.  At that point she has led us inside the house into the lounge room area and at that point she stated, ‛So I’ve grabbed the keys and tried to lock him out, but he got in.’  Then she has stated, ‛So I grabbed the scissors that were next to the keys and fucking stabbed him.’

Did she do anything at that time?—Yes, she picked up the scissors – a pair of scissors and made a motion along the lines of that with her hand.”

He said that at that time she seemed very agitated and upset, but coherent.

[63]  Counsel for Ms Poid submitted that what she said to Senior-Constable Rasmussen could not be interpreted as meaning that she was the only person who stabbed Mr Prior.  I do not agree.  In my view her statements were reasonably capable of bearing the meaning that she inflicted all of the wounds suffered by Mr Prior.  In the alternative, counsel submitted that the jury could not have taken such a view because it would have been inconsistent with the verdict returned against Mr Byrne.  I agree that if the jury had been instructed that only one accused could be convicted on the basis of having struck the blow which caused grievous bodily harm, the verdicts would have been inconsistent.  However the jury were not so instructed.  On the contrary, they were told to consider the case against each accused and the evidence referable to that case separately; and that the end result should they convict each accused might seem quite inconsistent.[12]  There was therefore no reason why the jury should not have understood her statements to Senior-Constable Rasmussen as meaning that she inflicted all of the wounds suffered by Mr Prior.

[64]  The alternative basis of liability advanced on behalf of the Crown relied “primarily” (to use counsel's word) on s 7(1)(c) of the Criminal Code.  There was no suggestion that s 8 applied and no directions under that section were given.  It was not suggested that s 7(1)(c) applied on the basis that Ms Poid aided Mr Byrne by her presence and encouragement.  The case for the respondent was that (on the basis of the admissions made to Ms Hall) either Ms Poid's scissor blows aided Mr Byrne in inflicting the critical wound or one of them caused that wound.  Precisely how her blows were alleged to have aided Mr Byrne was not spelt out.  This was not a case of two assailants simultaneously attacking their victim, with the attack of one hindering the victim's defence against the attack of the other.  There was only one weapon and, according to the statement to Ms Hall, it was used by one person at a time.  Nor was this a case where the first attack wounded the victim so as to facilitate a later attack.  No such wound was identified, and in any event, on the admissions made to Ms Hill, Ms Poid was not the first attacker.  I am simply unable to see how it could be said that she aided Mr Byrne.

[65]  Counsel for the respondent submitted, perhaps somewhat faintly, that the whole set of wounds collectively constituted the grievous bodily harm, not the single wound which on the medical evidence was the most serious.  It cannot be said that the medical evidence in this trial was satisfactory.  It was given by telephone by the medical superintendent of the Proserpine Hospital.  He had not seen Mr Prior, but gave opinion evidence on the basis of the hospital records of the admission.  The respondent's submission was based on his final answer in evidence in chief, where he testified that had Mr Prior not been treated there was a high likelihood that he could have died from his “injuries”.  However it is quite clear from reading his evidence as a whole that the statement related to only one of the injuries.

[66]  That being so, the Crown not only failed to show that the events recorded in the admissions to Ms Hill amounted to aiding; it also failed (if those admissions were accepted) to exclude the possibility that the grievous bodily harm had been inflicted before Ms Poid took hold of the scissors.

[67]  The jury were instructed (in effect) that it was open to them to convict Ms Poid on the basis that she aided Mr Byrne and they may have decided the case on that basis.  Consequently Ms Poid's conviction could not stand.

Ground 2

[68]  The second ground of appeal was, “The learned trial Judge erred in directing the jury that the evidence of the conversations with the witness Hall established liability pursuant to s 7(1)(b) and/or 7(1)(c) in that:-

(a)The conversation was not capable of that interpretation; and

(b)The issue was one for the jury but his Honour effectively withdrew it as an issue for the jury.”

[69]  In the light of my conclusions regarding the first ground of appeal, it is unnecessary to deal with this ground.  I agree with the President's observations regarding his Honour's comments on the evidence.[13]

Ground 3

[70]  The third ground of appeal was, “The trial judge erred in failing to leave s 271(2) in relation to the appellant herself as well as failing to leave s 271(2) and/or s 273 in relation to the children in the house and Mr Byrne.”

[71]  Mr Glynn SC sought leave to add this ground of appeal only in reply, at the conclusion of the argument on the appeal.  He has not identified the evidence said to raise s 271(2) in relation to Ms Poid.  My colleagues have not identified that evidence and I do not propose to do so either.  The same is true of s 273 in relation to Ms Poid's children.  I have referred earlier to the difficulties to which this section gives rise.[14]  I am unaware of any evidence which would raise s 273 on the basis that Ms Poid was defending Mr Byrne.  Having regard to my conclusion in relation to the first ground of appeal, it is unnecessary for me to decide these matters.

Ground 4

[72]  The fourth ground of appeal was, “The trial judge erred in failing to direct the jury that they had to be satisfied that what the appellant said to police and to the witness Hall was true before they could act on it.”

[73]  I have set out above why in my judgment an equivalent direction should have been given in relation to Mr Byrne.  That reasoning is equally applicable in relation to confessional statements made by Ms Poid.  This ground also warranted setting aside her conviction.

[74]  In each appeal I concur in the orders made on 5 May 2006.