SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The three appellants were each convicted on 8 June 2006 after a nine day jury trial of one count of assaulting Stjepan Poljak and doing him bodily harm.  Each appellant was sentenced to 12 months imprisonment suspended after two months for an operational period of 12 months.  Five days of pre-sentence custody were declared to be time served under the sentence.  By the appeal hearings they had served the actual custodial portion of their sentences and they abandoned their applications for leave to appeal against sentence which were then each struck out.  Each appellant appeals against their conviction.

[2] Jerrard JA has set out the relevant issues and facts so that my reasons can be comparatively briefly stated.  I agree with Jerrard JA that the appeals against conviction of the appellants Steven Nahirni and Milan Zmire should be dismissed.  I agree with Jerrard JA's reasons in all respects other than those relating to the appellant Louise Zmire's appeal against conviction on the ground that the guilty verdict in her case was not supported by the evidence.  I would also refuse her appeal.

[3] The jury's guilty verdict in respect of Louise required the rejection of the evidence of the three appellants and the acceptance beyond reasonable doubt of the complainant Stjepan Poljak's evidence that Louise aided Milan in assaulting the complainant.

[4] Louise was in a de facto relationship with the complainant from about 1998 until May 2001.  She later commenced a relationship with Milan and they subsequently married.  Steven was her son from an earlier relationship and was 31 at the time of the offence.

[5] The particulars of the offence provided by the prosecution were as follows.  The prosecution case was that Milan was the primary offender and that he was assisted by the other two appellants and that all three assaulted the complainant in Petar Nanic's unit at Woodridge on 29 September 2001.  Milan punched the complainant in the head and or alternatively kicked the complainant whilst he was on the ground.  Louise pulled the complainant to the ground from a sofa and or alternatively kicked him and or alternatively spat at him.  Steven pulled the complainant to the ground and or alternatively kicked him whilst he was on the ground.

[6] The complainant was intoxicated at the time of the assault.  He was a Croatian by birth and English was not his first language.  He gave evidence at committal and at trial through an interpreter.  The transcript of evidence at trial suggests that this was not an entirely seamless process.  It included the following:

"[Prosecutor]:Now, if I can take you back just a little bit, Mr Poljak.  When [Milan] punched you in the head - in the forehead - where was [Louise]? --  When Petar pushed [Milan] to the side, she and Steven grabbed me and pulled me down to the floor, and then they all - I didn't understand the word he used, so I would need to ask him again what he meant by that.

Perhaps if I can ask you the question again and perhaps listen very carefully to my question.  When [Milan] punched you in the head, I want to know where [Louise] was? --  She was next to - close to him.

And how close to him was she? --  Maybe half a metre.

And what about Steven Nahirni, where was he? --  Behind his mother.

How close to his mother was he? --  Maybe this close again.

You are indicating about a foot again? --  Yes.

...

And where was Steven Nahirni holding you when you were pulled to the ground? --  The moment they grabbed me, they pulled me down and started beating me.

Where on your body were you grabbed? --  Like this.  They grabbed me and pulled me down.

For the recording, you are indicating they grabbed you by the shoulder? --  Yes.

Which shoulder did Steven Nahirni grab you by? --  They - I was grabbed on one shoulder and mother grabbed me on to the other shoulder and they pulled me down.

Were they doing anything whilst they pulled you down? --  They were kicking me with their legs and [Milan] was also kicking with his legs whilst he was held by Petar.

Did they say anything as they pulled you down from the couch? --  No, they didn't.  They were just beating me and spitting on me.  Steven did not spit on me, just his mother.

By 'his mother', you mean [Louise]? --  Yes.

When was she spitting at you? --  Once she was beating me, she was spitting on my face.

Where were you when you were being spat upon the face? --  I was on the floor.

And you can recall seeing [Louise] do this? --  Yes.

...

You say they were kicking you on the ground.  Who are they? --  It was [Louise], her son, and [Milan].

And where were you being kicked? --  All over my body, but the worst was on my ribs.  My ribs were injured.

...

And how close to you - how close to you was [Louise] when she was kicking you? --  This close, like the two of us.

So, that's about a foot again? --  I'm not really sure about distance.  I was already a bit dizzy.

What about Steven Nahirni?  Where was he? --  He was beating me together with her.

...

And how many times were you kicked whilst you were on the ground? --  Maybe 10 times each of them, but I'm not sure.

And how long were you kicked for? --  Maybe altogether before they left, it was between five and 10 minutes.

And how hard were you being kicked? --  They were kicking hard and later on I recovered a bit and I was able to ring."

[7] He added that Louise's spittle hit him in his face.  He felt dizzy for about five minutes and then got up after the appellants left.  The complainant's son-in-law (also a son of Louise) and daughter picked him up from Petar Nanic's unit and took him to his own flat.  He refused to let them take him to hospital because he was under the influence of alcohol.  Later when the alcohol wore off he felt pain in his ribs.

[8] He visited Dr Maxim on 1 October 2001.  Dr Maxim recorded that he had three scratches with swelling on the right side of the forehead and a scratch on the nose.  There was a swelling on his right thigh.  He was tender around the thoracic spine and rib cage on the left side.  An X-ray revealed a fracture of the tenth rib on the left side laterally.

[9] The complainant was then cross-examined over three days.  He believed he had drunk 13 stubbies of beer and half a bottle of whisky on the evening of the assault and did not have a good recollection of what happened because he was drunk.  He was referred to inconsistencies in respect of some details of the assault between the evidence he gave at committal in the Magistrates Court and his evidence at trial.  The judge inquired whether there was an interpreter in the Magistrates Court.  The complainant responded "Yes, but I couldn't understand her much when she was talking".  The complainant suggested that the interpreter at the Magistrates Court had translated his answers wrongly or misunderstood him.  The complainant maintained that both Louise and Steven pulled him to the floor after Milan punched him.  He agreed that his statement to police dated 3 October 2001, about four days after the assault, did not mention Louise's involvement in the assault but referred only to the roles of Milan and Steven.  The complainant said that he did tell the police about Louise's involvement in the assault and he thought the police had recorded this in the statement which he signed.  He again maintained that Louise was involved in the assault on him.  In a second statement to police dated 17 July 2004 he described Louise's involvement in a more limited way:  when he fell to the floor she and Steven spat on him.  At trial he said:

"... but to clarify they pulled me off the couch, then beat me up and spat on me.

When you say 'they', who do you mean? --  [Louise] and her son."

He agreed he was suing the three appellants for damages for civil assault in the Beenleigh Magistrates Court.  In the criminal trial he strongly maintained his claim that all three appellants beat him;  Louise beat him, kicked him and spat on him.

[10]  In re-examination he said that when he gave his initial statement to police he was assisted by a friend who was not a qualified interpreter but who spoke better English than he did but "perhaps he didn't catch up everything what I told him".  The complainant could not read English.  He did not have the first statement to police translated to him before he signed it.  When he gave the second statement to police he was accompanied by a different friend who could read and write English.  This friend translated the statement for him before he signed it.

[11]  The complainant's friend, Petar Nanic, gave evidence.  English was not his first language either but he testified without an interpreter.  He was present at the time of the assault which occurred in his flat.  He had also been drinking that evening but he had only had about one beer.  The three appellants entered his unit.  Milan hit the complainant in the head.  Petar could do little to intercede because he was incapacitated with a back injury.  In response to the prosecutor's question as to what happened next, he said:

"They pulled him down on the couch, then coffee table and kitchen table.  He was trying sort of to protect his head with hands, that's how he stayed when they were beating him.

By 'he', do you mean [the complainant]? --  ... Yes.

You say 'they pulled him down'.  Who are they? --  Well, was [Louise], [Milan], [Louise's] Steven ... - son".

He added that he thought Steven "was the one who did it mostly and he spat at him".  He was asked what Louise was doing and responded:

"It was hard to see [Milan] and hitting and how because the whole incident didn't take hours, but only a couple of minutes, and that's it.

What could you see [Louise] doing? --  I don't remember.  It's some times now.  I can't remember."

[12]  In cross-examination he agreed he was not asked to provide police with his account of events until three years later in early April 2004.

[13]  The complainant's son-in-law (and the son of Louise), Michael Nahirni, in the course of his evidence said that the complainant's broken English was even to him sometimes hard to understand.

[14]  As Jerrard JA has noted, the evidence given by the three appellants exculpated Louise from the prosecution case as particularized.

[15]  In his directions to the jury the learned primary judge explained that in giving evidence the burden of proof did not shift to the appellants.  The prosecution retained the burden of proving each of the elements of the offence beyond reasonable doubt.  If the jury found the defence evidence unconvincing, they should set it to one side and look at the evidence they did accept and ask whether on that evidence they were satisfied beyond reasonable doubt of the prosecution case.  If they were not satisfied beyond reasonable doubt that the appellants committed the offence in the manner alleged by the prosecution in its particulars, then they must acquit.  If they accepted the versions given in evidence by the appellants or they were in doubt as to whether the events in question occurred as the appellants said in evidence, they would acquit.  It was for the prosecution to negative beyond reasonable doubt all defences raised.  The judge summarized the case for Louise:  the complainant's evidence was not reliable;  his injuries would have been much more extensive had he been attacked in the violent way he claimed;  he had brought a false complaint and a civil action out of spite over the breakdown of his relationship with Louise and her newly formed relationship with Milan;  the complainant had given inconsistent versions on different occasions;  he did not refer to Louise's involvement in his first statement to police;  in his second statement to police he only referred to her spitting, not to her physically attacking the complainant;  the complainant was jealous, vengeful and intoxicated and therefore unreliable;  Petar Nanic was also unreliable and had given inconsistent versions as to the events.

[16]  In the light of the judge's directions, the jury could have been in no doubt as to the heavy onus on the prosecution in establishing Louise's guilt and of the issues raised in her defence.  The jury's task was to assess the evidence of the witnesses.  They were entitled to reject the three appellants' evidence.  The complainant gave evidence over three days and was cross-examined by three barristers after giving his evidence to the prosecutor.  English was not his first language.  The difficulty for him in giving two statements to police and evidence in two different courts through interpreters must have been manifest to the jury and provided a plausible explanation for the weaknesses in his evidence.  The jury were entitled to accept his evidence that Louise was involved in the physical assault on him and spat at him, thereby aiding her co‑offenders in assaulting him and causing him bodily harm, and to reject beyond reasonable doubt all the defences raised.  The jury were entitled to conclude that the omission in his initial statement to police of any reference to Louise's involvement in the assault was because of communication difficulties.  They were not required to reject his evidence which was, in any case, supported to some extent by the evidence of Petar Nanic.

[17]  I am persuaded after reviewing the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant Louise Zmire was guilty of assaulting the complainant and doing him bodily harm:  M v The Queen.[1]

[18]  I would dismiss each of the appellants' appeals against conviction.

[19]  JERRARD JA: On 8 June 2006 the three appellants were convicted by a jury of the offence of having unlawfully assaulted Stjepan Poljak and done him bodily harm when in company with each other.  On 13 June 2006 each appellant was sentenced to imprisonment for 12 months suspended after serving two months, with an operational period of 12 months within which the appellants must not re-offend, to avoid being dealt with under s 146 of the Penalties and Sentences Act 1992 (Qld).  Each appellant has appealed against the conviction, but abandoned applications for leave to appeal the sentence.

Facts described by the judge when sentencing

[20]  The learned judge’s sentencing remarks reflect the view of the facts on which the jury must have come to convict.  That is that all three appellants came to the place where the complainant Mr Poljak was staying with a friend Petar Nanic on 29 September 2001, the day of the assault.  By the time the three appellants arrived at the flat they all intended in some way to perform a physical attack on Mr Poljak, to extract some sort of retribution for vulgar and offensive statements Mr Poljak had made to Louise Zmire, and about which Milan Zmire, (now her husband), and Steven Nahirni, her son, had heard. 

[21]  Louise Zmire, who was 58 when sentenced, had lived in a de facto relationship with Mr Poljak from about 1999 until May 2001, and had begun her relationship with Milan Zmire, who was 51 when sentenced, after the relationship with Mr Poljak ended.  Her son Steven Nahirni was 35 when sentenced.  Louise Zmire had only met Milan Zmire in or about late August 2001, and they had started going out.  Her son Michael is married to Mr Poljak’s daughter.  Her son Steven Nahirni first met Milan Zmire on 29 September 2001, the day of the assault, out beside Mr Nanic’s unit.  Louise Zmire and her son Steven had driven there together, and Milan Zmire, who had arranged to meet her there, made his way there independently.   Mr Poljak, Mr Nanic, and the Zmires required the assistance of Croatian speaking translators at the trial.

[22]  On 29 September 2001 Louise Zmire received an offensive telephone call (either directly from Mr Poljak, or from Mr Nanic, relaying statements by Mr Poljak) which had referred to her performing fellatio on Milan Zmire, and his performing cunnilingus on her. (Different versions of what was allegedly said were given at the trial; one involved the suggestion Milan Zmire had complained of boredom with those activities and of wanting to rid himself of Louise Zmire).  The phone call to Milan Zmire resulted in the three appellants visiting the unit intending to assault Mr Poljak.  The offensive phone calls were made around mid-morning that day, and the visit to the unit was at about 5:30 pm.  The delay was due to Louise Zmire not telephoning Milan Zmire to tell him what had happened until a little after 5:00 pm.  After that the events moved swiftly.

[23]  When they arrived, without any provocative act by Mr Poljak, Milan Zmire punched or hit Mr Poljak on the face, and Louise Zmire and her son pulled Mr Poljak from his seated position on a sofa, and all three appellants then kicked him.  Mr Poljak had injuries as a result, which included a broken rib, and he was sore to other parts of his body.  The learned judge was satisfied that the statements made to Louise Zmire, and relayed to the other two men, included what the judge described as disgraceful sexual references to Louise Zmire which had understandably made her upset, and which would be upsetting to her (now) husband and son.  The judge was also satisfied that some such statements had been wrongly attributed to Milan Zmire, by Stjepan Poljak.

[24]  The judge found there was a lapse of time between when the appellants heard the insults and when they arrived at the flat, and that the actions by the appellants in the flat when in company went, in retaliation, far beyond any provocative words used by Mr Poljak.  No remorse was expressed by any appellant, and perhaps because of an attempt at a form of mediation, two and a half years had passed before a prosecution was instituted.  Taking those and other matters, such as the appellants’ good work records into account, the judge imposed the described penalty.

[25]  Those comments by the learned judge necessarily reflect the facts the jurors must have found.  To those can be added that the evidence suggested Mr Poljak had been concerned about his break up with Louise Zmire, who had taken out a restraining order against him under the Domestic and Family Violence Protection Act 1989 (Qld).  Mr Poljak had seen her with Milan Zmire at a RSL premises on 28 September 2001, and on 29 September 2001 had been drinking alcohol at Mr Nanic’s unit.  Mr Poljak’s evidence was that he had consumed a bottle of whisky and some 13 beers, before the assault.

The particulars

[26]  The particulars relied on by the Crown were that Milan Zmire had punched Mr Poljak to the head and, or alternatively, had kicked Mr Poljak to the body when he was on the floor.  The particulars relied on against Louise Zmire were that she had pulled Mr Poljak to the floor from the sofa and, or alternatively, had kicked Mr Poljak to the body when on the floor and, or alternatively, had spat on Mr Poljak when he was on the floor.  The particulars for Steven Nahirni were that he too had pulled Mr Poljak from the sofa to the floor and, or alternatively, had kicked Mr Poljak when he was on the floor.  The particulars specified that the prosecution was not relying against Louise Zmire on her proximity or presence when an attack was made on Mr Poljak.

[27]  Mr Poljak’s evidence-in-chief accorded with those particulars; he swore that all three had kicked him when he was on the floor and that Louise Zmire had spat on him.  Mr Nanic’s evidence-in-chief was that Milan Zmire had “jumped straight away on Stjepan.  He hit him by fist – by hand”;[2] and that then “They pulled him from the chair to the floor.  There was screaming.  They were belting, hitting, whatever – however they could.”[3]  Mr Poljak “received few more kicks by feet.”  Mr Nanic added that he thought Steven Nahirni (“the youngest one”) “was the one who did it mostly and he spat at him.”[4]

[28]  Mr Nanic’s evidence-in-chief did not specifically implicate Louise Zmire in either pulling Mr Poljak from the sofa to the floor, kicking him, or spitting on him, and in cross-examination he said that either one or other or both of the two males pulled Mr Poljak to the floor.  His evidence, which did not implicate Louise Zmire as a principal offender in any assault, was consistent with some of the evidence adduced from Mr Poljak in cross-examination.  That included the acknowledgement that in his first statement to police dated 3 October 2001, he did not mention Louise Zmire participating in the assault, and said that it was “Steve” who had pulled him from the couch.   Further, the allegation that Louise Zmire had spat on him first appeared in a second statement he provided, in July 2004.  Those acknowledgements of prior inconsistent statements about the involvement of Louise Zmire significantly weakened the prosecution case against her as a principal offender.  Mr Poljak adhered to his account of assaults by the two men in cross-examination, and no other statements inconsistent with that description were established against him.

[29]  All three appellants gave evidence, in which each alleged that after they entered the unit Mr Poljak had stood up and raised his right arm at Milan Zmire, who then began wrestling with him.[5]  During the course of that wrestle Mr Poljak had fallen onto a coffee table.  All three denied kicking Mr Poljak, and Milan Zmire denied punching him.  Steven Nahirni and Louise Zmire both said that Steven Nahirni had pretended to spit on Mr Poljak.  They also each described Steven Nahirni attempting to separate Mr Poljak and Milan Zmire when those two were wrestling.

[30]  There was accordingly a quite clear difference in the accounts given by the prosecution and the defence witnesses, and it was for the jury to decide what facts were established beyond reasonable doubt.  The learned judge expressly directed the jurors more than once that they need not even consider whether there was a case established against Steven Nahirni or Louise Zmire, if they were not satisfied beyond reasonable doubt that the prosecution had proven a case against Milan Zmire; if not, all three defendants were to be found not guilty.[6]  That direction was given because the Crown case against the latter two defendants assumed a preliminary, unlawful, assault by Milan Zmire.

Grounds of appeal

[31]  The first is that the verdicts of the jury were unreasonable, and could not be supported having regard to the evidence.  That ground is really advanced only in respect of Louise Zmire.  Mr Poljak’s evidence did not include any explanation as to why he had not described Louise Zmire participating in the assault on 3 October 2001 when he supplied his first statement, in which he apparently did describe assaults by Milan Zmire and Steven Nahirni in terms similar to his evidence-in-chief.  He did say in cross-examination that the statement he gave to the police was correct, and in re-examination that while he had a friend present at the first police interview when his statement was taken, who spoke better English than Mr Poljak did, the friend did not translate to the police.  Mr R G Martin SC, for the Director of Public Prosecutions, suggested Mr Poljak may have been intending (by that evidence) to explain that he did at all times implicate Louise Zmire, and had simply been misunderstood.  But Mr Poljak did not say that, as translated, and there was no translated explanation for her not being accused then, if she was guilty.  His inconsistent accounts of what Louise Zmire allegedly did, the absence of any evidence supporting the prosecution particulars from the eyewitness Petar Nanic, together with Louise Zmire’s denial on oath, result in evidence against her falling below the necessary standard to sustain the conviction, on the particulars given.  That is, upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that Louise Zmire was guilty.[7] The evidence was sufficient to sustain the conviction against the two men, and those verdicts were not unreasonable.

Directions by the trial judge

[32]  Complaint is made that the following direction was confusing, and had the effect of undermining the defences on which the learned judge instructed the jury.  Those included a smorgasbord of lawful excuses: self-defence (s 271(1) Criminal Code 1899 (Qld)), aiding in self-defence (s 273), provocation (s 269), prevention of repetition of insult (s 270), justification (s 31), and mistake (s 24).  The passage complained of had been preceded by directions emphasising that unless the jurors were persuaded that the Crown had proven a case of preliminary unlawful assault against Milan Zmire, all three defendants should be acquitted.

[33]  The judge had reminded the jury of the particulars that Mr Zmire had come into the room, punched Mr Poljak in the face, and then kicked him when he was on the floor, and instructed the jury that they should acquit Mr Zmire unless they were satisfied of those matters beyond reasonable doubt, and if not so satisfied, should acquit the other two as well.  The judge then went on, before giving specific directions on the described defences, to tell to the jurors:

“These aren’t defences that have been raised in a separate and detailed and specific way by defence counsel.  They have been referred to briefly by the prosecutor but I want to say something about possible defences that arise for your consideration. 

Those defences are self-defence; that relates to Milan Zmire.  Aiding in self-defence, that applies to Steven Nahirni and Louise Zmire.  Provocation, that applies to all three.  The defence of justification or excuse, that applies to all three defendants.  Prevention of repetition of an insult, that applies to all three defendants.”

[34]  The judge went on to explain that the prosecution must demonstrate beyond reasonable doubt that those defences did not apply, and that the defendants did not have to prove those defences; the judge added that was simply a function of the prosecution having to prove the elements of an offence, and that where defences were raised, the prosecution had to prove those had no operation, and negate them.  The judge went on, in the passage now complained about:

“And although counsel have not dealt with them in great detail the duty to raise them or to direct you about them is mine.  It is my duty to direct you about all possible defences which arise and therefore need to be considered by you in reaching your verdict even where they are not raised by defence counsel and importantly, ladies and gentlemen, the fact that I am mentioning these matters to you does not mean that I have any particular view about them.

It is for you to consider these additional matters, these defences but of course as I have said you will not need to consider them or get to that point of considering these defences if you have not – or you will only consider them if you have got to the point where you are satisfied beyond a reasonable doubt about the guilt of, at least, one of the defendants and that on the directions I have given you would have to be, at least, Milan Zmire.”

[35]  That is the direction said to be confusing and to weaken the directions that then followed about self-defence et cetera.  But with respect to the criticisms made, the learned judge was carefully explaining to the jury the function then being performed by the judge, that of explaining matters of potential defence that had not been the subject of separate and specific submissions by defence counsel, but to which the prosecutor had made reference, and upon which the judge had to direct the jury.   Explaining it the way the judge did reduced the possibility the jury might consider that the defence counsel were being criticized by the judge for not making specific arguments about those defences.  The concluding remarks would be capable of causing confusion if considered out of context, but in context – if correctly transcribed – they would have obviously referred to the necessity, already explained by the judge, of being satisfied of the guilt of Milan Zmire before even considering any case against the other two defendants. 

[36]  Regarding self-defence, Mr P Smith submitted on the appeal that the learned judge had not referred to the defence contentions about that matter, but that submission is inaccurate.  The judge instructed the jurors on the possibility of Milan Zmire mistakenly believing Mr Poljak was about to attack him, and on the situation facing Mr Zmire on the latter’s account, namely that he was confronted with Mr Poljak standing with his arm raised and thereafter defended himself.[8]  There was also a complaint that the learned judge had misdirected the jurors that aiding in self-defence did not arise for consideration on Louise Zmire’s and Steven Nahirni’s cases, if the defence of self-defence was not available to Milan Zmire.  The judge did so direct the jurors at AR 535, but corrected that at AR 602, when the judge directed the jurors that if either of the former defendants had mistakenly believed that Milan Zmire was acting in self-defence, when in fact he was not and was actually (unlawfully) attacking Mr Poljak, then a defence of aiding in self-defence by the mistaken defendant would be available.  That correction removed any possible error resulting from the earlier direction.

[37]  It should be understood that on the evidence actually put before the jury, only self-defence by Milan Zmire was actually advanced.  All other defences depended upon the jurors accepting a portion of the accounts given by the prosecution witnesses, a portion of the evidence by the defence, and making some assumptions.  No witness specifically described any mistaken belief about any circumstances, or any loss of self-control because of provocation, or any apprehension of violence or of repetition of insults by Mr Poljak if some action was not taken by one or more defendants.  All the defendants simply denied that Mr Poljak had been punched or kicked as he claimed he had.  If the jurors were satisfied beyond reasonable doubt that he was kicked when he was on the ground, that was an end of all of the defences, since the jurors were entitled to find that that would have been an excessive and accordingly unlawful use of force against Mr Poljak.  It is clear that the jurors did find that he was kicked.

[38]  The directions given on the specific defences is also the subject of a complaint, that those directions largely referred to the arguments for the prosecution and not to those put by the defence.  But the defence did not specifically refer to all of those potential defences, whereas the prosecution did, which explains why the judge could refer only to arguments from only one side.  In any event, the point made in the directions was the argument the prosecution made about each defence, namely that if the jurors were persuaded that Mr Poljak was kicked when on the ground, then the prosecution had disproved that particular defence.

Cross-examination of Mr Nahirni

[39]  There is a separate complaint that Steven Nahirni was cross-examined about the contents of an interview he had had with the police, which the prosecution had not put into evidence in its case.  Mr Smith contended that the cross-examination breached the principles enunciated by the High Court in R v Soma (2003) 212 CLR 299.[9]  The argument was that the prosecution had thereby split its case, in breach of the general principle of long standing described in R v Soma, that the prosecution must offer all its proof before an accused is called upon to make his or her defence.[10]

[40]  The circumstances of this case are quite different from those in R v Soma.  In this matter Mr Nahirni had given the police an account which the prosecution contended was self-serving, and which had not been led in evidence against him for that reason, being inadmissible.  When in the witness box he had said he did not know the actual contents or details of the insult to his mother until after the incident, although he had understood when Milan Zmire first spoke to Mr Poljak in the unit that Mr Zmire was remonstrating with Mr Poljak about something Mr Poljak had said, about Louise Zmire.  Mr Nahirni’s evidence was that at that stage he did not know what had actually been said[11] earlier by Mr Poljak.  Before the Crown Prosecutor began the cross-examination, the prosecutor argued that he was entitled to cross-examine on the contents of the interview with the police, which the prosecutor contended included a statement that Mr Nahirni knew prior to entering the unit what had been said about his mother, and that Mr Nahirni had told the police that he learnt the specific words when walking up the driveway to the unit.[12]  That “application” by the prosecutor resulted in a submission by Mr Nahirni’s counsel that the contents of the interview were somewhat ambiguous or equivocal as to when his client learnt the words, and that all the answers should be put in, not one or more selected by the prosecution.[13]  The learned judge said the cross-examination would be allowed; the judge later explained it was allowed because the judge considered it was a matter going only to credit.[14]  When cross-examined, Mr Nahirni both agreed that he had told the police that he heard of the insult to his mother on the way up to the unit, and also said that he could not recall telling them that.[15]  That resulted in the prosecutor playing the tape of the whole interview to Mr Nahirni, whose counsel expressly said that counsel had no objection to the tape being played.[16]

[41]  On this appeal Mr Martin submitted that the prosecutor was entitled to cross-examine Mr Nahirni about an inconsistent earlier statement to the police, and that Mr Nahirni did not “distinctly admit” that he had made the earlier statement; and that it was understandable that the tape was then played without objection from Mr Nahirni’s counsel, because it was so largely self-serving.  He argued it had not been admissible in the Crown case, for that reason, relying on R v Kochnieff (1987) 33 A Crim R 1 at 4, 5; and R v Callaghan [1994] 2 Qd R 300, at 302 to 304.  Although the account in the interview did admit knowledge of the terms of the insult before the assault, the interview recorded a complete denial of any assault, and it was correct to consider it too self-serving to be admissible as against interest.  I agree therefore with the submission that the prosecutor was entitled to cross-examine on the inconsistency between the evidence-in-chief and the earlier account.  The matters necessary for proof of that statement under s 18 of the Evidence Act 1977 (Qld) had been established.  The prosecution did not split its case; the prosecutor had no reason to foresee the change in position by Mr Nahirni, and fairness to the prosecution required that it be allowed to establish that change in position.  There was no error in allowing that to happen, and no miscarriage of justice in the circumstances in which it did.  The learned judge directed the jury that they should consider only whether any lies they found Mr Nahirni told on that point affected his credibility.

Pressure on the jury

[42]  The final ground of appeal raises an unusual point.  The jury had retired at        12:31 pm, and after some brief re-directions retired again at 12:44 pm.  At 3:58 pm they sought answers to two questions, and a re-direction which the learned judge quoted as “Petar Nanic’s evidence – statement from court and statement from police at the point from Milan’s, Lubica’s (Louise’s) and Steven’s entrance to the flat be read to us again?”  After answering the two questions asked, the learned judge established that by “statement from court”, the jury meant the evidence Mr Nanic gave, and that by “statement from police”, the jury were referring to what Mr Nanic said in cross-examination about what he had said to the police.  The judge explained that the transcript of all that evidence took up about 60 pages, and it might take about two hours to read.  One juror immediately asked if “we” could “talk about it?”[17]

[43]  The learned judge advised the judge was happy to have the jurors discuss the matter and that they could have as much of the evidence read back to them as they wanted, and if they wanted it all, that would be organised.  The judge suggested, apparently responding to the question by the juror, that the jurors might “like to go” (presumably back to the jury room), and a juror asked if “we” could list the specific parts they wanted.  The judge agreed with that, but was concerned about evidence being taken out of context, and advised that “ladies and gentlemen, you will have, of course, all the time you wish.”  The judge then said:

“And depending upon how long this will need to take, I wonder whether you could answer this question – and you might want to talk about it – whether you expect to have a verdict in the near future, whether you would like a reasonable amount of time or you don’t want to put any time on it; you simply don’t know.” 

[44]  The judge added that the jurors had been listening to addresses from counsel (three defence counsel and the prosecutor) and the summing up since 10:00 am the day before, and so, the judge suggested, the jury might give consideration to whether they wanted to break off early that afternoon and come back the next morning.  The jurors then retired again at 4:23 pm, and steps were put in train to obtain an interpreter for the next day, and to prepare for reading the transcript.  The court adjourned; but at 5:19 pm the jury reached a verdict without any of the requested reading of the evidence, or any further communication with the court.

[45]  The complaint on appeal is that the reference by the learned judge to the length of time it might take to read the evidence back amounted to pressure on the jury to reach a verdict.  That complaint overlooks the totality of what was said, including that “Ladies and gentlemen, you will have, of course, all the time you wish.”  That remark expresses the general flavour of what the judge said to the jury at that stage, which in no way suggested they reach their verdict without having the evidence re-read; that was just something which the jurors did.  That was unusual, but I accept the submission by Mr Martin for the Director of Public Prosecutions, that the jurors concluded it was unnecessary for them to listen to that evidence.  It would be absurd to insist that the jury did hear it re-read, once they had reached a verdict. 

[46]  The argument on appeal was that the judge should have directed the jurors to suspend their deliberations until they clarified the position about re-reading that evidence.  But to so direct would unnecessarily intrude into the jury’s management of its business.  The judge had left it to the jury to discuss the matter and to tell the court what it wanted re-read, and the judge had not placed any pressure on the jury to take any particular course.  In those circumstances that ground of appeal should fail, and the others all be dismissed, except for Louise Zmire’s appeal on the sufficiency of the evidence.

[47]  I would allow Louise Zmire’s appeal, set aside the conviction against her and direct that a verdict of not guilty be entered and dismiss the other two appeals.  The applications for leave to appeal the sentences were abandoned during the proceedings.

[48]  WHITE J:  Jerrard JA has set out in his reasons the relevant facts and identified the issues with which these appeals are concerned.  I agree with his Honour that the appeals of Steven Nahirni and Milan Zmire should be dismissed.  I agree with his Honour’s reasons for rejecting the ground of appeal based on R v Soma (2003) 212 CLR 299 at [28] – that the Prosecution had impermissibly split its case; and the final ground of appeal that improper pressure had been put on the jury by the learned trial judge to return a verdict.  As to the latter matter, the jury had asked three questions at the same time.  Two related to the charges themselves in respect of which his Honour gave quite extensive redirections.  The other concerned Petar Nanic’s evidence.  It may very well have been the case that the redirections resolved the concerns of the jury and, accordingly, they no longer wanted to hear Petar Nanic’s evidence.

[49]  The President has set out comprehensively the evidence implicating the appellant Louise Zmire in the offence of assault occasioning bodily harm in company.  As her Honour has observed, the jury were entitled to reject the evidence of the three appellants exculpating her.  They were made abundantly aware by his Honour’s lengthy and detailed summing up that the burden of proof remained with the Prosecution notwithstanding that all appellants had given evidence.  His Honour identified the weaknesses in the case against Louise.  But the jury were also entitled to accept the explanation offered by the complainant that due to real difficulties in interpretation, his accusations against Louise had not been recorded when he said he had made them promptly.

[50]  It follows that I agree with the President that on a review of the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that Louise Zmire was guilty.  I would, therefore, dismiss each appellant’s appeal against conviction.