SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  I have had the advantage of reading the judgment of Applegarth J and agree with what his Honour has said, except in respect of one issue, which has the consequence that I am unable to agree in the result.  I do not feel that one can comfortably draw from the trial judge’s remark, “we’ll have another look at this to avoid your having to come back into Court, because I have another trial running this morning” the inference that the unedited videotape[1] did not make its way into the jury room and was not seen by the jury in its entirety.

[2] The learned judge had directed counsel to edit the tape at the end of the evidence.  There was no further discussion of the matter or reason to suppose that he knew the editing had not been done.  While he may have thought the jury members would not have needed to view the tape again after it was shown to them in the course of the summing up, he did not give any direction that it was not to be available to them.  The usual practice when a jury retires to consider its verdict is that it is provided with all the exhibits in the trial.  No note was made by the associate in this case to suggest that that did not occur, and the prosecutor and his clerk have no contrary recollection.  There is a real prospect that, despite his Honour’s apparent expectation that the jury would watch the tape only in court, it went with the other exhibits into the jury room.

[3] All that is known of viewing facilities in the jury room is that when the prospect of editing the tape was first raised, the prosecutor suggested that there were two options: that the relevant part of the tape could be played in court, or, for the convenience of the jury, an edited tape could be made, which would be “the part they have in the jury room”.

[4] It may well be that some arrangement was made, which is not recorded in the trial transcript and is not now recalled by the prosecutor and his clerk, by which the decision to edit the videotape was reversed and it was agreed that it should not go to the jury.  But, in the absence of any evidence to that effect, I would infer that the ordinary course was followed: that the jury had the tape when it retired.  If the jury members did watch the tape, there can be no doubt that they were exposed to a good deal of inadmissible and prejudicial evidence without the benefit of any submission from counsel about it, let alone instruction from the trial judge.  The apparent failure to ensure that did not occur, in a case which turned on credibility issues, amounts to a miscarriage of justice.

[5] For those reasons, I consider it necessary to allow the appeal, set aside the verdict and order a re-trial.

[6] McMURDO J:  I have had the advantage of reading the reasons for judgment of Applegarth J.  I agree that the appeal should be dismissed for those reasons.

[7] APPLEGARTH J:  On 30 July 2008 the appellant was convicted of the offence that she unlawfully assaulted Skye Zuiderwyk, and did her bodily harm whilst armed with an offensive instrument.  The offence was alleged to have occurred just outside the front door of the appellant’s home on the Gold Coast on 29 September 2005.  The appellant was sentenced to six months imprisonment, wholly suspended for an operational period of three years.  She appeals against her conviction.

[8] Ms Zuiderwyk and two companions came to the appellant’s home on 29 September 2005 equipped with a video camera that had been supplied to them by the television program, Today Tonight.  The video camera was hidden in a handbag carried by Ms Zuiderwyk’s younger sister, Renee Dixon, who was 13 at the time.  The other uninvited entrant onto the appellant’s property was a Ms Tara Conlan, who was aged 26 by the time of the trial.

[9] There had been “bad blood” between the appellant and Ms Zuiderwyk.  They had complained to the police about each other.  Despite advice to Ms Zuiderwyk and her associates to ignore the appellant and stay away from her,[2] they did not do so.  They enlisted the support of a commercial television program ostensibly on the basis that they had to “gather evidence”.  Ms Zuiderwyk claimed that the night before the incident the appellant “tried to run down” a couple of her friends in a car, and that the main reason why she and her companions went to the appellant’s house was to say that people were getting hurt and that they had to stop such stupid behaviour.[3]  However, according to Ms Zuiderwyk, the purpose of the visit was not simply to make peace.  She admitted in cross-examination that she went to the appellant’s front door and did not leave when asked to do so because “we just wanted her to admit to what she had done the night before”.[4]

[10] Ms Zuiderwyk was followed onto the appellant’s property by Ms Conlan and Ms Dixon.  Ms Zuiderwyk knocked on the door and the appellant made it very clear that she was not welcome.[5]  The appellant remained inside her home and was heard to say “Get me those things”.[6]  The appellant’s son, who worked as a chef, was inside the appellant’s home at the time.  The appellant went to her son’s professional chef kit and took what she described as a bread-cutting knife which had “a bit of a razored edge”[7] in one hand and a skewer in the other hand.  She returned to the front door.  Ms Zuiderwyk and her companions were standing outside the front door.  The appellant opened the door, and, at about this time, Ms Zuiderwyk and her two companions retreated.  The interaction between Ms Zuiderwyk and the appellant near the door was not recorded, probably because Ms Dixon, who was carrying the hidden camera in her handbag, turned around and ran.[8]  According to Ms Zuiderwyk the appellant opened the door and motioned with both the knife and the two-pronged fork towards her stomach, and Ms Zuiderwyk pushed her hands down to push them out of the way of her stomach.  Ms Zuiderwyk said that she did not realise at the time that her hand had been cut.  She turned and ran away with her companions.

[11] The appellant’s evidence was that she “got frustrated”, was feeling threatened and took her son’s knife and skewer because she wanted to protect him and her home.[9]  She said that she did not intend to do anything and “just wanted to scare them out of my complex and away from my front door”.[10]  She denied that she lunged at Ms Zuiderwyk.  She told the jury that she was “very certain” of this because she had not come out of the door fully when Ms Zuiderwyk and her companions ran off.  She denied that she made contact with Ms Zuiderwyk, and denied that any cut could have been an accident.[11]

[12] The appellant chased Ms Zuiderwyk, Ms Conlan and Ms Dixon down the street.  Parts of this chase are recorded on the video tape that became exhibit 7.  The appellant said that when they got to the corner Ms Zuiderwyk was saying “You stabbed me.  You stabbed me”.  She says that she replied “You don’t have any blood”.  However, this alleged exchange is not recorded on the video.  The appellant’s evidence was that she saw Ms Conlan hand Ms Zuiderwyk something, which she assumed was a pocket knife, and she said to them “Is this your set up, you are going to slash yourself, is this your set up?”[12]  This statement is not recorded on the video.  The principal defence of the appellant at trial was that the wound to Ms Zuiderwyk’s hand was self-inflicted by a pocket knife which Ms Conlan passed to her.  The jury rejected this defence.  It also rejected a defence under s 267 of the Criminal Code that the trial judge left to it.

Defences left to the jury

[13] The appellant asserts that the learned trial judge misdirected the jury regarding the operation of s 267.  This contention was not developed in writing or orally, and it is without substance.  The learned trial judge was invited to leave that defence to the jury,[13] and did so.  Section 267 provides:

“Defence 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.”

[14] One basis upon which the jury was entitled to reject the defence was that the prosecution satisfied it beyond reasonable doubt that the appellant did not believe on reasonable grounds that Ms Zuiderwyk was attempting to enter or to remain in the dwelling[14] with intent to commit an indictable offence in the dwelling.  Another basis was that it was satisfied to the requisite standard that the appellant did not believe on reasonable grounds that using the force that she did was necessary to prevent or repel Ms Zuiderwyk from unlawfully entering or remaining in the dwelling.  The appellant acknowledged that she had her 19 year old son in the house, that she could have closed the front door and that she did not have to go and get the knives.[15]

[15] The appellant complains that the learned trial judge erred in failing to direct the jury of an available defence under s 277.  That section provides:

“Defence of premises against trespassers – removal of disorderly persons

(1)It is lawful for a person who is in peaceable possession of any land, structure, vessel, or place, or who is entitled to the control or management of any land, structure, vessel, or place, and for any person lawfully assisting him or her or acting by his or her authority, to use such force as is reasonably necessary in order to prevent any person from wrongfully entering upon such land, structure, vessel, or place, or in order to remove therefrom a person who wrongfully remains therein, provided that he or she does not do grievous bodily harm to such person.

(2)It is lawful for a person who is in peaceable possession of any land, structure, vessel, or place, or who is entitled to the control or management of any land, structure, vessel, or place, and for any person acting by his or her authority, to use the force that is reasonably necessary in order to remove therefrom any person who conducts himself or herself in a disorderly manner therein, provided that he or she does not do the person grievous bodily harm.

(3)In this section -

place includes any part of an enclosure or structure, whether separated from the rest of the enclosure or structure by a partition, fence, rope, or any other means, or not.”

[16] The appellant did not develop this argument.  The respondent noted that the learned trial judge was not asked to direct the jury in terms of s 277, and that even if s 277 could have been left to the jury it would have been negatived.  In that regard Mr Copley SC submitted that s 267 contained an element which was more difficult for the prosecution to negative than an element which the prosecution would have been required to negative under s 277, had it been left.  Under s 267 the prosecution had to prove that the appellant did not believe on reasonable grounds that it was necessary to use the force.  Under s 277 the prosecution had to prove that the force used was more than was reasonably necessary.  This imported an objective standard as to the force that was necessary, whereas the defence under s 267 depended upon the state of the accused’s belief.  The accused’s belief that it was necessary to use that force had to be based on reasonable grounds.  However, s 267 allowed for the possibility that reasonable people in the accused’s situation might have held a variety of beliefs, perhaps even diametrically opposed beliefs, about the relevant state of affairs.[16]

[17] The respondent’s submissions should be accepted.  The evidence did not provide a basis to conclude that the appellant’s use of a large, razor-edged knife and a skewer was “reasonably necessary” in order to remove Ms Zuiderwyk from her land.  The use of these instruments clearly was not reasonably necessary in order for her to do so.  The knife posed a serious danger even if the intent was to use it to scare Ms Zuiderwyk and her companions.  The appellant admitted that she acted out of frustration.  The appellant’s evidence that she could have closed her front door and did not have to arm herself with knives would have assisted the prosecution to negative the defence under s 277.  The learned trial judge did not err in failing to direct the jury on the defence under s 277.  There was no viable defence under s 277 on the evidence and it is understandable that reliance was placed by the appellant, instead, upon a defence under s 267.

Ms Conlan’s evidence by telephone

[18] The trial was held at the District Court at Southport.  Before the jury was empanelled on 29 July 2008 the prosecutor raised the fact that he proposed to call Ms Conlan, who was then residing in Perth, Western Australia, and that the day before the arresting officer had made contact with her and given Ms Conlan notice to appear at the trial.  However, Ms Conlan claimed that she was sick and could not travel by plane.  A medical certificate was sought, but Ms Conlan did not provide one.  The prosecutor explained to the learned trial judge that despite the best efforts of the arresting officer, he could not secure Ms Conlan’s presence that day, and did not know whether he would be able to have her there in person the following day.  The prosecutor raised the possibility that Ms Conlan could give evidence by telephone.  Defence counsel described Ms Conlan as a “fairly important witness”, and said that she thought that Ms Conlan’s demeanour in the witness box was “somewhat important”.  The learned trial judge gave his preliminary view that, on balance, the interests of justice did not necessitate Ms Conlan attending in person.  The jury was empanelled, the case was opened and evidence was given by Ms Zuiderwyk and Ms Dixon.  At the conclusion of Ms Dixon’s evidence, discussion turned to the taking of evidence by telephone from the general practitioner who examined the cut injuries to Ms Zuiderwyk’s hands and from Ms Conlan.  Arrangements were previewed for Ms Conlan to give evidence by telephone.  At that point, and in the absence of the jury, counsel for the appellant “put on the record” that the appellant’s objection to Ms Conlan giving evidence by telephone was maintained, and the reason for that objection was that, in the circumstances of the event, she was “an agitator” and was a person that ought to be seen in person by the jury.  The objection to evidence by telephone was not based upon the need to have Ms Conlan view a video or photographs. 

[19] The learned trial judge ruled that Ms Conlan be permitted to give evidence by telephone.  The ruling was based upon the fact that two eye witnesses had already given evidence, and that the video established what actually occurred at the house.  His Honour stated that he had to balance out the availability of witnesses, the nature of the case and the cost of further adjournments in a case in which there had been substantial delays in having the matter brought on to trial.

[20] The learned trial judge had to consider whether it was in the interests of justice to permit Ms Conlan to give evidence by telephone.[17]  His Honour was conscious that the defence case seemed to be that a pen knife was used intentionally by the complainant with the co-operation of Ms Conlan.  Ms Conlan was an important witness, and the fact that the defence case about the handing over of a pen knife had been rejected by both Ms Zuiderwyk[18] and Ms Dixon[19] did not make Ms Conlan’s evidence any less important.  However, in circumstances in which the objection to Ms Conlan’s giving evidence by telephone rested principally upon the advantage that the jury would obtain by seeing her give her evidence in person, I am not satisfied that his Honour’s discretion to allow evidence by telephone miscarried. 

Showing witnesses the video of events

[21] The appellant submits that the learned trial judge erred “in allowing hearing statements (sic) on the witness stand without cross-referencing to the video of events to confirm these accusations of events”.  This argument is misconceived.  It was for defence counsel, not the trial judge, to conduct cross-examination.  It was a forensic decision for defence counsel to show, or not show, witnesses part of the video tape.  The learned trial judge did not restrict the ambit of cross-examination.  The appellant gives the example that Ms Conlan stated that the appellant had four knives, two in each hand, when the video does not show this.  Ms Conlan’s evidence that there were four knives was contradicted by the other prosecution witnesses.  Ms Zuiderwyk referred to one knife with a blade about 20 centimetres long which was like a kitchen knife which the appellant held in one hand and a fork that had two prongs being held in the other.[20]  Ms Dixon described a chef knife and a “barbeque knife” that was like a fork that had two points on it.[21]  The appellant referred to a knife and a skewer.  Ms Conlan’s evidence that the appellant had four knives was contradicted by the evidence of other witnesses and not supported by the video.  The appellant’s trial counsel did not need to dwell on this part of Ms Conlan’s evidence.  The appellant’s argument is without merit.

Not allowing original witness statements to be put in evidence

[22] The appellant complains that the trial judge erred by not allowing the original witness statements that were taken prior to her arrest to be put into evidence, and by allowing witnesses to give “new evidence” orally.  This argument is misconceived.  The trial proceeded in a conventional manner and it would have been inappropriate for the prosecution to rely upon witness statements.

The viewing of the video tape

[23] The appellant complains that the learned trial judge erred in not showing the jury the whole video tape, which included a recording of events and conversations at Ms Zuiderwyk’s family home and discussions that occurred between individuals at the police station.  The video tape also depicted Ms Zuiderwyk and her associates returning to the appellant’s home at night with a television crew and “ambushing her”.  This aspect of the appeal requires some explanation of the course of the trial and the provenance of the video recording that became exhibit 7.

[24] As previously noted, representatives of Today Tonight arranged to put a hidden video camera in a handbag.  The evidence referred to a Col Chapman from Today Tonight, but he was not called as a witness.  According to Ms Dixon, Col Chapman turned the camera on when she left her home and it was later turned off by Col Chapman.[22]  Ms Dixon denied having altered the video in any way.  Ms Dixon explained that the footage on the video recording that became exhibit 7 only started from when she and the others were at the appellant’s home because Col Chapman “cut out what we did from my house to Susan’s house until we were at the front of her house”.[23]  She said he did this so that it could go on TV, that the footage of them driving there was cut because it was “a waste of tape” and nothing was cut from the events that occurred at the appellant’s door.[24]

[25] Part of the video recording was played to the jury during the cross-examination of Ms Zuiderwyk.  Before it was played the prosecutor stated that there was a point at which he would ask to stop the tape.[25]  The relevant part of the tape was played and counsel for the defendant put to Ms Zuiderwyk that the tape was an accurate depiction of what took place on the day, to which she agreed.  Ms Zuiderwyk agreed that there was nothing on the tape that showed that the appellant lunged at her with the utensils, but Ms Zuiderwyk explained that Ms Dixon, who was holding the camera, turned and ran just when the appellant came at them and so she did not actually record Ms Zuiderwyk’s hands connecting with the utensils.[26]

[26] After lunch on the first day of the trial, and in the absence of the jury, the prosecutor explained that the video tape in question continued after “the bit that was played to the jury”.[27]  The part of the tape that showed Conlan and Dixon going to a police station was described as “not relevant”.  He asked for the tape to be edited in a way so that it consisted of only the part that was played to the jury and that would be the tape that they had in the jury room.  An alternative was suggested that if the jury wanted the video tape replayed it could be replayed in the court, however, at the time, the convenience of the jury and also of the court made editing the tape a preferable course.  Defence counsel indicated that there was no objection to that course, and the learned trial judge indicated that the tape would be edited at that stage.  His Honour stated that he was anxious about people editing tapes and inquired whether those instructing the prosecutor could do it.  The prosecutor indicated that they could, and that he also understood that there were facilities within the Court Registry to do the same thing.  The learned trial judge said that he preferred those instructing the prosecutor to do it so there would be no misunderstanding.  The matter was left at that point on the basis that the editing would occur after the evidence finished.[28]

[27] The summing up to the jury continued on 30 July 2008.  During the summing up the learned trial judge arranged for the tape to be played and advised the jury before playing it “we’ll have another look at this to avoid your having to come back into Court, because I have another trial running this morning”.[29]

[28] The jury retired at 9.54 am.  Before doing so it was not told about arrangements that could be made for it to replay the tape in the jury room during its deliberations. 

[29] The appeal record did not disclose what happened, if anything, in relation to the editing of the tape and the jury’s access to the tape that became exhibit 7.  At the hearing of the appeal the Court requested evidence on the point.  The respondent filed affidavits sworn by the prosecutor at the trial and the officer of the Director of Public Prosecutions who instructed him at the trial.  Neither was able to recall whether exhibit 7 went into the jury room with the jury, and neither had any notes about that matter.  The Crown Prosecutor recalled that when exhibit 7 was replayed during the summing up, the only portion of the tape that was played was the same portion that had been played when the tape was tendered as an exhibit.  His recollection is that the tape was stopped at the point where the complainant ran away through the townhouse complex up to a motor vehicle, and that the balance of the tape, including the part that showed two women at a police station talking to the police was not shown.  The respondent submitted that although neither affidavit assisted in relation to whether the exhibit went into the jury room when the jury retired to consider its verdict, it appears most unlikely that this occurred, having regard to the learned trial judge’s remarks that preceded the playing of the tape during his summing up when he said “we’ll have another look at this to avoid your having to come back into Court”.

[30] The appellant was given an opportunity to respond to these submissions, but did not do so.  Instead, she filed further written submissions relating to other topics and which were not responsive to the supplementary submissions of the respondent as to whether exhibit 7 was taken into the jury room.

[31] The remarks that the trial judge made when the relevant part of the tape was played during his summing up make it unlikely that the video tape was edited so as to allow only that part of it which constituted exhibit 7 to be taken to the jury room.  The remarks indicate that if the jury wished to have another look at exhibit 7 it would be necessary for them to return to the courtroom and view it on the video-playing facilities in the courtroom.  In the circumstances, I conclude that the jury was only shown that part of the tape that became exhibit 7, and did not take the whole of the tape into the jury room.

[32] Contrary to the appellant’s submission, the learned trial judge did not err “in not showing the whole video tape”.  The trial was not conducted on the basis that the whole of the video tape would become an exhibit.  It was open to counsel for the defence to put the video recording of what was said and done at Ms Zuiderwyk’s mother’s house, at the police station or when the television crew returned to the appellant’s home that evening to the prosecution witnesses if that served some legitimate forensic purpose.  The forensic choice was made to not do that.  The appellant is not entitled to complain that the jury was not shown parts of the video tape that were not in evidence.

The absence of the appellant’s son as a witness

[33] The appellant’s son was a potential witness.  His evidence may not have assisted her defence.  The appellant complains that the learned trial judge did not give an adjournment to enable her to call her son as a witness.  This complaint is without merit.  The transcript of the trial does not record any request to an adjournment.  At the hearing of the appeal the appellant insisted that there was such a request at the start of the trial, but none is recorded in the transcript.  The appellant says that the trial proceeded faster than she expected, and this may be so.  The prosecution case closed at 12.55 pm.  The defendant was called upon and her counsel indicated that she would be the only witness.  When the Court resumed at 2.30 pm in the absence of the jury there was no request for an adjournment to enable the appellant’s son to be called as a witness, and no indication that he was not available that day to appear as a witness.  The case for the defendant was opened at 2.35 pm, the appellant was then called and gave evidence until 3.10 pm.  At that point counsel for the defence confirmed that she was “the one and only witness for the defence”.[30]  No mention was made of the appellant’s son and no application was made to delay addresses to the jury so that he could be called as a witness that afternoon or the following morning.

[34] The appellant’s son worked as a chef at night, and lived on the Gold Coast.  There is no evidence that he was not available to give evidence, if required, on 29 or 30 July 2008.  There were forensic reasons as to why defence counsel may have chosen not to call him as a witness.

[35] The learned trial judge did not err in not adjourning the case to allow the appellant to call her son as a witness since there is no evidence that an application was made for an adjournment.

Conclusion

[36] The complaints made by the appellant concerning the trial judge’s conduct are without merit.  Some of them misconceive the function of the trial judge.  The appellant lacks legal qualifications and, despite seeking assistance, was unable to be represented at the hearing of the appeal.  Neither her written submissions nor her oral submissions justify her appeal being granted on the grounds that there was a miscarriage of justice.

[37] It was open to the jury to conclude that the appellant inflicted the wound to Ms Zuiderwyk’s hand.  It was open to the jury to reject the appellant’s defence under s 267 of the Criminal Code, and the trial judge did not err in failing to direct the jury with respect to a defence under s 277.  The trial judge’s discretion to allow Ms Conlan to give evidence by telephone, rather than in person, did not miscarry.

[38] It was for the appellant’s counsel to determine the matters to be covered in cross-examination and whether it was advisable to play all or part of exhibit 7 to each witness in the course of cross-examination.  It also was for defence counsel, not the trial judge, to determine whether other parts of the video tape, which did not form part of exhibit 7, should be shown to witnesses and tendered as an exhibit.  The trial judge did not err in not showing the whole video tape to the jury because the whole of the video tape was not an exhibit.  No application was made to adjourn the trial to enable the appellant’s son to give evidence.

[39] The appellant’s submissions seek to agitate issues about the credibility and motivation of the prosecution witnesses.  These were matters for the jury to access, and the appellant has not shown that the jury’s verdict was unreasonable.

[40] The appeal should be dismissed.