R v Deen[2022] QCA 274

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  Each of the appellants was convicted after a trial, on identical counts, namely that on 3 January 2020 each of them, contrary to s 339(1) of the Criminal Code (Qld), unlawfully assaulted their cousin, Mohammed Illyas Deen, causing him bodily harm, whilst armed with an offensive instrument and in company.  Each of the offences was a domestic violence offence.
2. [2]
   For ease of convenience only, I shall refer to the appellants by the names Zain,^[1]Imran^[2]and Umar.^[3]
3. [3]
   The appellants were given leave to challenge their convictions on three grounds:

   1. (a)
      Ground 1: the verdicts are unreasonable, or cannot be supported having regard to the evidence;
   2. (b)
      Ground 2:  the learned trial judge erred in failing to adequately direct the jury in accordance with Liberato v The Queen,^[4]and a miscarriage of justice occurred;
   3. (c)
      Ground 3: the directions given by the learned trial judge caused a miscarriage of justice, in that those directions:

      1. (i)
         impermissibly suggested to the jury the resolution of a disputed question of fact, namely that there was a competing reasonable hypothesis for the car reversing after the alleged assault; and/or
      2. (ii)
         permitted the jury to engage in consciousness of guilt reasoning in circumstances where the Crown did not rely on such reasoning as part of its case and where no protective direction was given preventing such reasoning.
4. [4]
   The offence was particularised^[5]as involving a joint assault by the three appellants.  The prosecution’s case was that each appellant was guilty because the complainant was injured in an unlawful assault by the three of them, where any one of the appellants was either the person who unlawfully inflicted that injury or encouraged another appellant who inflicted it.
5. [5]
   The Crown particularised five injuries, namely a scalp laceration, a T7 fracture, a fractured finger, a bruised jaw and bruising to the back and ribs.^[6]

Background

6. [6]
   The following basic facts, largely taken from the trial judge’s synopsis, were not in issue at the trial:

   1. (a)
      the complainant had done some work for the appellants’ father,^[7]and a dispute arose between them about the wages owed to the complainant; 
   2. (b)
      on 3 January 2020, the complainant tried to greet Umar at the mosque, but Umar snubbed him and said something about sorting it out;
   3. (c)
      at about 3.00 pm that day, Umar called the complainant and said he was outside the complainant’s workplace, and he wanted to meet;
   4. (d)
      the complainant suggested that they go to the street behind the workplace so that they could avoid being recorded on CCTV cameras;
   5. (e)
      Umar then drove to Loam Street, with Zain and Imran in the same car; and
   6. (f)
      the complainant drove to Loam Street in his truck;
   7. (g)
      there was an altercation between the complainant and Umar, Zain and Imran; and
   8. (h)
      the complainant sustained injuries to his head and back.
7. [7]
   What happened at Loam Street was the subject of conflicting evidence.
8. [8]
   The complainant said that he was confronted by the three appellants almost as soon as he got out of his truck.  They had two bats with them.  He was alone and tried to get away by climbing back into his truck.  He was pulled down onto the road and hit 25-35 times.  The appellants stopped hitting him and got into their car.  The complainant got back into his truck and videoed the appellants’ car reversing at great speed out of Loam Street.
9. [9]
   Only Zain was called to give direct evidence.  He said that the complainant attacked Umar first and Umar defended himself.  There were no weapons and Imran and Zain did not participate.
10. [10]
    Umar did not give evidence but an out of court statement by him was tendered by the Crown.  In it Umar said the complainant threw the first punch, which missed.

Legal principles – unreasonable verdicts

11. [11]
    The legal principles applicable where the ground in that the verdict was unreasonable are well known.  They were recently restated in Dansie v The Queen.^[8] Dansie reaffirmed the approach set out in M v The Queen:^[9]
12. [12]
    The Court reaffirmed the relevant task as being that laid down in M v The Queen:^[10]

3. “[8]
   That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that "the question which the court must ask itself" when performing that function is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”, that question being “one of fact which the court must decide by making its own independent assessment of the evidence”.

3. [9]
   The joint judgment in M made clear that “in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”. The joint judgment equally made clear how those considerations are to impact on the court's independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated:

3. “It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

13. [13]
    The High Court also said:^[11]

3. “[12]
   The authoritative guidance to be gained from the joint judgment in M has not diminished with time. M was unanimously affirmed in MFA v The Queen and again in SKA v The Queen, where it was spelt out that the “test set down in M” required a court of criminal appeal to undertake an “independent assessment of the evidence, both as to its sufficiency and its quality” and that consideration of what might be labelled “jury” questions does not lie beyond the scope of that assessment. Coughlan v The Queen illustrates that an independent assessment of the evidence in a case in which the evidence at trial was substantially circumstantial requires the court of criminal appeal itself “to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard” and in so doing to form its own judgment as to whether “the prosecution has failed to exclude an inference consistent with innocence that was reasonably open”.

14. [14]
    In Pell v The Queen^[12]the Hight Court said:

3. “[39]
   The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

15. [15]
    In R v Miller^[13]this Court said:

3. “[18]
   An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted. The mere identification of weaknesses in the prosecution case is not enough to sustain the ground. As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecution’s “weak point” is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.”

The evidence

16. [16]
    Evidence in the Crown case came from the complainant, his wife, Hapu (a cousin of the complainant and the appellants), Dr Chowdhury (treating doctor at the hospital), an investigating police officer, and a police officer who attended at the scene on 3 January.
17. [17]
    For Zain’s defence case, evidence came from Zain and Dr Duflou, a forensic specialist.  Umar and Imran neither called nor gave evidence.

Complainant’s evidence

18. [18]
    The complainant’s evidence included the following aspects:

    1. (a)
       he was a first cousin of Umar, Zain and Imran;
    2. (b)
       in October 2019 he was working as a truck driving subcontractor for Uncle Louis; on 10 December 2019 there was a heated conversation between he and Uncle Louis about non-payment, and the complainant was told that he would not be paid;
    3. (c)
       after he had gone home that day Zain and Imran arrived at the gate of the complainant’s house; they were honking a car horn and smashed into the gate with a truck; Zain called the complainant on the mobile and told him to come outside; the complainant’s wife called triple zero, and the police moved Zain and Imran on;
    4. (d)
       on 3 January the complainant went to the Darra Mosque for the prayer session; on the way out he saw a cousin, Hapu,^[14]sitting beside Umar; then:^[15]

“I saw Hapu and I tapped him on the shoulder and offered the – a sign of greeting, which was a Muslim greeting, and he greeted me back as well, and then I proceeded to do the same thing to Umar, and he straightaway put his arm straight to the back of the chair and said, “Nope, no way.””

5. (e)
   the complainant responded to Umar:^[16]

“I said, “Well, what have I done to you?” At this stage, we were – we were talking with a good cousin relationship, and then he said that – excuse the – he said, “You’re fucked, cunt, for what you’ve done to my father.” and he said that, “We’re going to get you, and you – you won’t see it coming.””

6. (f)
   then followed this exchange:^[17]

“Right. What did you say in response to that?---In response to that, I said, “Well, mate, don’t threaten me.” I stepped outside of the mosque. I said, “Come and give me whatever you’re going to give me.” I said, “I’m here.” Yep.

What did he do when you said that?---He said, “Nah, not right now. We’ll get you when you least expect it.””

7. (g)
   he stepped outside, left it at that and left the mosque;
8. (h)
   while the complainant was at work Umar called saying that they needed to meet up and talk about the incident that happened at the mosque, and work through it and try to resolve the matter; they agreed to meet;
9. (i)
   Umar suggested they meet at the complainant’s place of work; the complainant said  to meet around the corner because he could be dismissed if there were verbal arguments; he suggested meeting in Loam Street, directly behind his workplace;
10. (j)
    the complainant was still working so he drove there in his Mack truck semi; when he arrived Umar’s LandCruiser was already there; the complainant reversed his truck into Loam Street and parked some distance from the LandCruiser; Umar drove his car down to the driver’s door of the truck, and parallel with the truck;^[18]
11. (k)
    Umar got out of his car, standing at its front; the complainant remained in the truck for a while as he had to cool the turbo; he then got out of the truck; he looked at Umar’s car and it did not seem as though there was anyone else in it;
12. (l)
    Umar pulled a shiny bat out from behind his jeans and over his head; he spoke and Umar answered:^[19]

“I said, what’s going on, and he said first, straight away, all he would reply was, “What’s up, cunt.” He says, “It’s fucking payback time.”

13. (m)
    the complainant saw Imran and Zain get out of the car; they ended up about a metre from him;
14. (n)
    the complainant gave details of what each cousin was wearing;
15. (o)
    Zain was holding a silver bat, smaller than that held by Umar; the complainant spoke to Zain:^[20]

“Well, I said to him – I said, “Is this what you cowards are going to do to me; gang bash me?” And then Zain said, “You’re not going to get away from – you’re not going to walk away from this this time, you cunt.”

Did you respond to that at all?---I said to him, “Can we at least do this honourably and amicably and can we at least have a one on one and not be gang bashed unfairly.”

Okay. And was there a response to that?---Yes.

Who – who responded?---Umar.

What did he say?---He said, “No fucking way.” He said, “It’s happening right here,  right now.””

16. (p)
    the complainant turned round and tried to get into his truck, so he could lock himself inside; he got up two of the steps and grabbed the steering wheel; he could hear Umar say, “Quick, get the cunt. Quick, grab him”;
17. (q)
    he described what happened next:^[21]

“And what happened then?---And then I grabbed hold of the steering wheel. I could feel there was three people grabbing my legs and I just held on as tight as I could to the steering wheel and they were pulling – like, my legs were then in mid-air and they were pulling me as hard as they could, and then I was getting hit in the back with a bat on my back and all of my back, and I – then I remember Zain on the righthand side was slamming the door trying to get me to let go, onto my head and my shoulders and then I just couldn’t hold on any longer.

You couldn’t hold on any longer, you said?---No, not – my belt broke. My belt snapped in half and then my – my pants came down and then I couldn’t – just couldn’t hold on any longer.”

18. (r)
    the complainant identified the broken portion of his belt in two photos that became Ex 3;
19. (s)
    the complainant explained what happened when he let go the steering wheel:^[22]

“Okay. Now, you said you let – you let go of the steering wheel?---Once my belt snapped, yes.

And what happened at that point?---Then I was dragged by tremendous force by two grown men and I fell head first down to the – down to the bitumen.

Okay. Now, what happens – what happened once you were pulled onto the road?---Well, once I – I hit the step on the way down. I remember that that was quite – quite a large bang on my head, and then I – when I hit the bitumen, it was pretty much all over for me. I couldn’t – yeah. But then – then they started to – yeah – just hit me with bats on my head and kick me in all directions and it was like my – tried to – to just – to snap my finger. Yeah.

Okay. How were you positioned on the road when they were doing that?---Face down.”

20. (t)
    he could feel more than one bat hitting him, one to the back and one to the head; asked how many times he was hit with a bat, he said he did not count, but “it felt like for a few minutes”, and “it would have been twenty, thirty, thirty-five times”;^[23]he shielded his head with right hand;
21. (u)
    he said Zain was in the middle, kicking him from the side and hitting him with a bat; Imran was behind him; Imran “pulled my left hand up and was trying to snap my fingers back”; the fingers were the little and ring fingers on the left hand;
22. (v)
    the assault stopped; he sat up against the step of the truck; he “felt pain everywhere, my head, my back, my fingers, my knees”;
23. (w)
    Umar said to him:^[24]

“He said, “You got payback, cunt.” He said, “This is what you get for messing with my family.” And he goes, “You know, if you go to the coppers,” he said, “I’m going to come back and finish the job properly.” He said, “It ends here.””

19. [19]
    The complainant explained how the appellants left him and drove away:^[25]

“Did they ultimately leave?---Yeah. Well, after that, Zain went back into the righthand door that he exited out of. Umar went to the front of his door and Imran was still at the bonnet and just as Umar went – was going into his right-hand door, he said keep – “Imran, grab the fucking dashcam out of the truck, rip it out of the truck. Grab the evidence.” And Imran said, “No, I’m not going up in the truck. Fuck that. Let’s go.” Yeah.

Do you have a dashcam in your truck?---No, I don’t. Only a phone.

All right. And where did they go after that?---After that, they proceeded to reverse up Loam Street, but I quickly – I knew in my head I was alone. There were no witnesses that I could see so I tried to, as fast as I could, to catch them before they left the scene. I grabbed the video and I hit video back on my phone and was straight to video mode and I got into the windscreen, reversing out of the street at, like, a 100 mile an hour. They would’ve been doing at least 60 in reverse. And when they – they reversed around Loam Street onto Colebard Street, they had absolutely no respect for anyone.”

20. [20]
    The video of Umar’s car reversing away became Exhibit 4.  Photos of his injuries, taken while still in the truck, became Exhibit 5.  Other photos of the injuries taken later at hospital became Exhibits 6-15.

Cross-examination

21. [21]
    The normal order of cross-examination was, by agreement, altered so that Counsel for Zain went first.  The following relevant points emerged:

    1. (a)
       it was put to the complainant that his interaction with Umar at the mosque was an invitation by the complainant to a mutual fight; the complainant denied that, saying he had not threatened Umar, but rather Umar had threatened him with violence; and, he said if Umar wanted to get it off his chest by inflicting some violence, he (the complainant) was going to take it without retaliating;^[26]
    2. (b)
       Umar’s car was originally about 30 metres from the truck; Umar drove it down close to the truck; the complainant denied that Umar walked down without having moved the car;^[27]
    3. (c)
       it was put that the only reason for the trial was that the complainant had come off second best in a fight between he and Umar;^[28]
    4. (d)
       Zain was holding a “tyre buddy”, an implement that is shaped like a baseball bat but smaller, only half the length; it is used to test whether truck tyres are inflated;^[29]
    5. (e)
       it was put, and denied, that neither Umar nor Zain had a bat that day;
    6. (f)
       when he was holding onto the steering wheel he was repeatedly hit on the back of the legs and his back; the blows “felt heavy”;^[30]Zain was slamming the padded area of the arm rest on his head and side;^[31]
    7. (g)
       at the time he was on the ground he was face down and felt like he was losing consciousness;^[32]
    8. (h)
       as he was pulled down from the truck he hit his head on the step;^[33]
    9. (i)
       it was put that he threw the first punch at Umar; it was put that the fight involved the complainant throwing the first punch, Umar responded, and then both of them ended up on the ground with the complainant on his back and Umar on top of him; those propositions were denied;^[34]
    10. (j)
        he denied that he had complained about a fracture to the neck, and said that a claim to that effect, made by a solicitor acting for him in a personal injuries claim, was incorrect;^[35]
    11. (k)
        it was put that on 10 December 2019 Zain attended at the complainant’s house but Umar did not; the complainant affirmed that Umar was there;^[36]and
    12. (l)
        after the assault the complainant’s doctor told him to take 12 months off work due to his injuries.^[37]
22. [22]
    Next to cross-examine was Counsel for Imran.  Out of that cross-examination the following additional points emerged:

    1. (a)
       it was put, and denied, that the complainant had told his wife to say that she had seen Imran at the house on 10 December; and
    2. (b)
       before the incident on 3 January the complainant and Imran had a normal relationship.
23. [23]
    Next to cross-examine was Counsel for Umar.  Out of that cross-examination the following additional points emerged:

    1. (a)
       the complainant gave a statement to police on 6 January, three days after the event;
    2. (b)
       it was put, and agreed, that at the mosque the complainant had offered salam to Umar but “he refused by putting his hands behind his back and saying, ‘No way’”;^[38]
    3. (c)
       the version of events put, and denied, was: the complainant got out of his truck and swung a punch that missed; Umar then hit the complainant in the face with two punches; the complainant then fell back onto the truck, and then onto the roadway;^[39] and
    4. (d)
       the complainant lost consciousness afterwards in the truck.

Evidence of the complainant’s wife

24. [24]
    The complainant’s wife said that on 10 December 2019 she overheard a call from Zain, in which he said, “We are outside, waiting for you”.  She could hear the horn of their truck and shouting for the complainant to come outside.  It was Imran and Zain.  She called the police and Imran and Zain left after speaking to the police.
25. [25]
    She got a call from the complainant on 3 January.  He was crying.  She then went to where he was.
26. [26]
    In cross-examination the following points emerged:

    1. (a)
       in the phone call on 10 December Zain was saying “Come outside. We are waiting for you. Don’t be a coward.”;^[40]and
    2. (b)
       they tried to rip a side panel of the fence;^[41]
    3. (c)
       she could see that it was Imran and Zain; she explained the absence of reference to Imran in her statement by saying she actually did see them so she must not have put Imran down; she denied that she was saying Imran was there because she had been told to say so by the complainant.
27. [27]
    Counsel for Zain did not challenge her account of what Zain said on the phone call, nor the truck horn being honked, nor that they tried to rip a side panel on the fence.

Hapu’s evidence

28. [28]
    Hapu was a first cousin of the complainant and the appellants.  He said:

    1. (a)
       on 3 January at the mosque the complainant shook his hand and went to shake Umar’s hand but Umar refused, saying “I’m not shaking your hand.”;^[42]
    2. (b)
       he explained what happened next:^[43]

“What did – did Freddy say something to that?---He said, he said, I think he said, “Why not? And let’s go sort this out now outside.”

And what did Umar say?---“Not the time and place. This is a mosque. I’ll sort it out later.”

Now, did Umar say something a short time later?---No, he just said, “I’m not shaking your hand.” And “This is not the time and place at the mosque and I’ll ring you when I’m ready. I’ll sort it out later.””

3. (c)
   later that night he saw Umar again; Hapu asked Umar if he knew anything about how the complainant came to be in hospital; Umar told him:^[44]

“And what did he say to you?---He said that., “We met up with Freddy at Bell Road, and he called Freddy – he called Freddy and then, Freddy said, “We’re at Bell Road waiting,” and he said Freddy in return and said to him, “We’ll meet up at Loam Street, I don’t want nothing happening near Cleanaway.” So – and then he went there and waited for Freddy at Loam Street, at Archerfield.

…

Okay. And what happened after that?---He just said that he waited and Freddy turned up, sat – well, Freddy was sitting in the truck and he just waited for him to get out, then Freddy swung at him. Then he ducked and hit Freddy and then – then they – he was on top of Freddy or hitting Freddy or whatever. I don’t really know what he – recall that it was word for word, but he said that he was hitting and then, in the end, Zane pulled him off Freddy.

Did he say where Freddy was, when he was hitting him?---He was on the ground.”

29. [29]
    There was no cross-examination.

Evidence of Dr Chowdhury

30. [30]
    Dr Chowdhury treated the complainant upon his admission to hospital.  Relevant aspects of his evidence are:

    1. (a)
       when he presented that day he had a 3 cm laceration to his scalp, a fracture to his T7 vertebrae, a left distal phalanx fracture, and some bruising to his jaw, his back and his ribs;
    2. (b)
       the T7 fracture was diagnosed by a CT scan; it was assumed that it was from the trauma experience on the day;
    3. (c)
       the left finger fracture was diagnosed by X-ray; it was likely caused by direct trauma to that area, such as impact or flexion; given it was tender it was treated as a new injury, though it could be old;
    4. (d)
       there was some bruising on the ribs on the back (on the left-hand side, as well as the mid-upper back and the upper back); and there was some bruising around the back as well;
    5. (e)
       the bruises were recent; the injuries to the back were likely caused by trauma or impact, such as blows or punches; those bruises could be multiple blows, given their distribution; and
    6. (f)
       the laceration to the head was likely caused by impact from a blunt instrument.
31. [31]
    In re-examination Dr Chowdhury said the likelihood of the back injuries being caused by a fall onto a flat surface was “pretty low just given the multiple areas of bruising that are quite delineated”.

Evidence of Police officers

32. [32]
    Detective Johnson and Officer Tanner attended at the scene of the assault on 3 January.  Relevant parts of their evidence were:

    1. (a)
       the complainant was in his truck; there was a large amount of blood to his head, and one of his knees was puffy; there was blood on his face;
    2. (b)
       the complainant was speaking intermittently, and appeared to possibly be going in and out of consciousness; his eyes were closing; he appeared to be physically unable to answer some questions;
    3. (c)
       the area was at the rear of an industrial area but not out of public view;
    4. (d)
       no fingerprint matches to the appellants were found on the truck door or step; and
    5. (e)
       the complainant told Office Tanner that: Umar had got out of his car holding a steel baseball bat; Zain and Imran appeared from the rear of the car; Imran was also holding a bat; Zain grabbed his little finger and bent it back; the conversation with the complainant was recorded on the officer’s body worn camera.

Evidence of Zain

33. [33]
    Zain said the other appellants were his brothers.  He was a truck driver working for his father, Louie.  He spoke with his father on 10 December.  As a result of what he was told Zain drove to the complainant’s house.  He called him saying “Come outside” so “we could have a talk about it”.  The complainant did not come out.  The police arrived and while they were there Zain’s father arrived.  He denied making any threats.  Imran was not there, but a couple of employees of his father were.
34. [34]
    As to the events of 3 January Zain said he did not go to the same mosque as Umar.  Umar told him about what happened at the mosque.  Zain and Imran went with Umar to the complainant’s workplace.  The complainant said to go to Loam Street to avoid the cameras in front of his workplace.  Imran and Zain were in the back seat of the car as it parked about 25 metres from the truck.  Umar got out of the car and walked to the truck.  Zain was still in the car.
35. [35]
    Zain’s account of what happened was:^[45]

“What do you see take place?---Well, I can only see between the headrest and the steering wheel, but I could hear them having a verbal altercation and they were getting quite heated and yelling at each other, but I couldn’t quite work out what they were saying.

Yep?---I seen Freddy throw the first punch at Umar, a big haymaker, right-hander. As soon as that happened, I got out of the vehicle.

Okay. Once you’re out of the vehicle what were you able to see?---I could see – I wanted to get a better view and Umar defended himself and took a couple of swings back at Freddy. There was a – a wrestling together for a bit, and then they – wrestling up against the truck, around the edge; they were still on the ground. And then they both ended up falling to the ground onto - - -

Okay. And you say both men went to ground?---Definitely, yes.

Okay. And where was Umar positioned at that time?---Umar – they were just rolling around wrestling on the ground together.

Okay. What happened next?---I yelled out, “Let’s go”, and Umar proceeded back to the car and Freddy was climbing back into his truck … at that time.

Umar gets back to the vehicle?---Yes.

Okay. And what happens next? What’s the next thing that occurs?---I yell to Umar, “Hurry up. Let’s go. He’s back in his driver’s seat, he’ll probably ram us.”

Yep. And what happens?---So we’ve reversed out of the street as quick as we could so he didn’t try and run us over.”

36. [36]
    Zain denied that he or Imran took part in the assault, and he said there were no weapons there.
37. [37]
    Cross-examination of Zain by the prosecutor elicited the following relevant points:

    1. (a)
       he estimated that Umar threw a number of punches, “Probably four, five, maybe, before they ended up wrestling around”; the complainant was throwing about the same amount back, and connecting;
    2. (b)
       Umar’s punches were landing on the complainant’s head, cheeks, back and ribs;
    3. (c)
       when the two men fell to the ground they were locked together; they were each punching the other while on the ground; that part of the conflict was very brief;
    4. (d)
       Zain was upset when his father told him about the incident between the complainant and his father; at the complainant’s house Zain called the complainant a coward; and
    5. (e)
       Zain denied the complainant’s account of how the assault happened.
38. [38]
    Cross-examination by Counsel for Umar elicited these extra points:

    1. (a)
       there was a heated argument between the complainant and Umar for more than a minute before any punches were thrown;
    2. (b)
       Zain said there was contact between the complainant and the truck in the course of the assault:^[46]

“All right. Now, do you accept that Freddy’s back was to – Freddy came into contact with the truck during those exchange of blows?---Yes.

Can you tell us what part of his body came into contact with the truck?---Parts of his body; his abdomen, like, his – like, torso area. His knee, maybe. His head.

What about the back of him?---The back of him; definitely.

Okay?---That was the torso, but the back part, yes.

All right. And then you say that both fell to the ground?---Yes.”

3. (c)
   Umar did not move his car closer to the truck.

39. [39]
    In answer to a question from the trial judge as to why they went to a place out of range of cameras, Zain said:^[47]

“I was there for the safety of the both of them in case they did get into an altercation and got out of hand.”

Evidence of Dr Duflou

40. [40]
    Dr Duflou is a forensic pathologist.  There was no issue as to his relevant expertise.  He was provided with the complainant’s statement, hospital records and photos of the injuries; he did not examine the complainant at the time, or since.  Based on the documentary records he was asked his opinion about the injuries and their possible cause.

Finger

41. [41]
    As to the finger injury, the records showed that there was no indication of deformity of the finger.  Dr Duflou said it was unclear whether it was actually an old fracture.  He said bending the finger back would produce dislocation and rupture of tendon rather than fracture.^[48]

Knee

42. [42]
    As to the knee, on the records there was no indication of recent injury.

Head

43. [43]
    The only abnormality identified on the head was a laceration with underlying bruising.  Dr Duflou said it was typical that if there is a laceration, there is bruising associated with it because of the blunt force injury that caused the laceration. He said otherwise what was noted in the records had nothing to do with the injuries sustained in the assault.  The surrounding abrasion indicated a forceful contact with a rough irregular surface such as a roadway.

T7 fracture

44. [44]
    He said the T7 fracture was an old fracture, sustained earlier and not at the time of the event in question. He explained why that was so, in terms that are not relevant to the present issues.  He explained that the notes saying “treat as acute fracture” simply meant that there was a complaint of pain in that area and, to be on the safe side, I think a decision was made to treat it as an acute fracture, i.e. one that had been sustained at that time, but not because there was proof of a fracture but rather because it was safer to treat it as a fracture.

Bruises to the back

45. [45]
    There were bruises involving soft tissues of the back and of the abdomen but not of organs within the abdomen or organs within the chest.
46. [46]
    The bruises to the left upper back and the left lower back indicated contact with a blunt force of some type or impact caused by a blunt force of some type.  He could not say whether it was an object striking the back, or the back striking an object.  It was possible that the back being forced against a truck could cause it, depending on what part of the truck was involved, and exactly how you strike them.
47. [47]
    Dr Duflou said there was nothing he saw in the records that suggested the injuries were caused by being repeatedly hit on the right shoulder and head by the truck door.
48. [48]
    As for the injuries being caused by repeated blows from a baseball bat, he said:

    1. (a)
       being struck with a baseball bat causes a wide range of injuries, many of which can be very severe and potentially lethal; if the head is struck with any degree of severity one can get, firstly, extensive laceration of the skull, and you can skull fracturing, and if the body is face down, crushing injuries to the face;^[49]
    2. (b)
       in terms of the trunk, forceful strikes with a baseball bat can produce extensive rib fractures, fractures to the spine (typically to that part of the spine more superficial rather than deep), and then injury to organs in the body such as the lung, the liver, and the bowel;^[50]
    3. (c)
       it did not appear to him that there were any injuries which could be identified as being likely caused by a baseball bat to the head;^[51]
    4. (d)
       in terms of the back of the trunk, and using Exhibit 8, those areas of bruising with what appear to be central clearing in some of them, i.e. red marks with a pale area in the middle, one possible mechanism of those injuries was impact with a baseball bat;^[52]he was not saying it was exclusively the result of a baseball bat, but the mechanism of a baseball bat was “certainly my view”;^[53]and
    5. (e)
       at about that point of Dr Duflou’s evidence a juror asked a question about Exhibit 8 and Exhibits 8 and 13 were circulated to the jurors.^[54]
49. [49]
    In cross-examination by the prosecutor the relevant points to emerge were:

    1. (a)
       by reference to Exhibit 8, the the bruising to the back was consistent with a number of blows being struck in that area because there were a number of different areas of bruising;^[55]
    2. (b)
       it was potentially consistent with blows from a baseball bat;^[56]
    3. (c)
       it was possible for someone to be struck a number of times to their body with a bat without any bones being broken; it depended where and with how much force, and the position of the person at the time;^[57]and
    4. (d)
       he reiterated his opinion as to the finger, T7 fracture, and the laceration and abrasion to the head.^[58]
50. [50]
    In cross-examination by Counsel for Imran the additional relevant points to emerge were, by reference to Exhibits 8 and 13:

    1. (a)
       “There’s a pattern to the bruising which has a general appearance of a wide rod-like object and any repeated impact of the body against such an object or vice versa – the object against the body can – can cause such injury”;^[59]
    2. (b)
       “I don’t think that those marks would be typical of impact against a bitumen road. As I’ve said, they’re more likely … an object which has a rod like profile, at least for part of its … structure”;^[60]and
    3. (c)
       He would expect severe injuries if the blows were multiple and severe: “If [the blows] are multiple and severe, then yes, I would think that fracturing of ribs, fracturing of the … Shoulder blade”; the injuries here were not of a type he would call severe.^[61]
51. [51]
    In cross-examination by Counsel for Umar the following points were made:

    1. (a)
       having had Zain’s account read to him, Dr Duflou was asked: “… in terms of the constellation of injuries that you have observed through the medical material that was provided to you and the photographs, do you accept the proposition that the combination of injuries that you see are consistent with the version which that witness gave?” Dr Duflou said, “I believe it could be”;^[62]
    2. (b)
       he was then asked whether “the constellation of injuries that you have observed through the material is more consistent with that version than it is with the version which Freddy gave, namely that he was pulled down from the truck and received multiple blows from baseball bats?”; he answered:^[63]

“In terms of being pulled down from the truck, that I can’t answer one way or the other, because I don’t know if you’d get any specific injuries from that. In terms of multiple blows from baseball bat, and especially when a number of 20 to 35 is mentioned, to me, the appearances are not that of being struck 20 to 35 times with a baseball bat”;

3. (c)
   then followed this exchange:^[64]

“So do you accept the proposition that the injuries are more consistent with the witness’ version than with Freddy’s version?---Well, there’s nothing inconsistent with that witness’ version as far as I can tell, while there are inconsistencies with the complainant’s version, Freddy.”

52. [52]
    In response to questions from the trial judge Dr Duflou offered this summary as to the “constellation of injuries”:^[65]

“Overall to me, there – there’s nothing which argues against the complainant in some way falling out of the truck. There’s certainly nothing there being a physical altercation of some type, involving one or more other persons and coming into contact with the truck or being struck a number of [indistinct] to the back with an object such as a baseball bat. I see no indication of being struck to the head with a baseball bat, for example.”

53. [53]
    Then, asked by Counsel for Zain to comment on his overall impression as to whether the observable injuries correlated with the complainant’s description:^[66]

“My overall view is that the description as given both at the time of the statement and in the transcript of this trial as provided to you – to me by you – is that the description is one of a much more severe assault than what the injuries portray.”

54. [54]
    With that review of the evidence in mind I can turn to the grounds of appeal.

Ground 1 – unreasonable verdicts

55. [55]
    The contention advanced by Mr Holt SC and Mr M Jackson of Counsel, appearing for the appellants, was that this was a case where the jury should not have rejected the appellants’ evidence that the complainant threw the first punch.  The rejection of that evidence was unreasonable because:^[67]

    1. (a)
       the complainant’s credibility was profoundly damaged by the irreconcilable differences in the account of the preceding conversation with the evidence of Hapu, an independent witness;
    2. (b)
       the complainant’s account of how the injuries occurred was inconsistent with the medical evidence such that the jury could not have rationally concluded that it occurred in that way; and
    3. (c)
       as a result, it was not rationally open to reject the combination of Zain’s evidence and the evidence of Umar’s account to Hapu as – at the very least – creating a necessary reasonable doubt.

Hapu’s evidence versus the complainant’s evidence

56. [56]
    Hapu was not really an independent witness.  He was a first cousin of each of the appellants as well as the complainant.  And while it is true to say that his evidence was not challenged, his position as a cousin of the appellants would have been well appreciated by the jury, and no doubt that was a factor in their assessment of the evidence of what happened at the mosque.
57. [57]
    The complainant’s evidence was that Umar had refused to greet him at the mosque, then threatened him saying, “we’re going to get you and you won’t see it coming”.  Then when the complainant responded by requesting Umar come outside the mosque and “give me what you’re going to give me”, Umar said “we’ll get you when you least expect it”: see paragraphs [18](d)-[18](f) above.
58. [58]
    Hapu’s evidence was that when Umar refused to shake the complainant’s hand, the complainant suggested they “go sort this out now outside”.  Umar said it was not the time or place at the mosque, that he would ring the complainant and “sort it out later”.  See paragraph [28](a) above.
59. [59]
    On this issue, the only cross-examination of the complainant by Counsel for Umar, was to suggest that the complainant had walked out of the mosque and then returned saying “Come outside and I’ll sort you out”.  This was rejected by the complainant.  That proposition was not put to the witness Hapu.
60. [60]
    The jury were directed that they could accept or reject a witness’s evidence, either in whole or in part.  They were in the pre-eminent position to make a finding regarding credit on this issue if they considered it was a matter that required a resolution.  They had the advantage, which this Court does not, of seeing and hearing the complainant and Hapu give evidence.
61. [61]
    In my view, the jury were not bound to accept Hapu’s evidence in preference to that of the complainant, nor was it of the compelling or damaging character urged by the appellants.
62. [62]
    In considering the difference in evidence, the jury could have reasonably considered that the complainant had more reason to take note of what was said than Hapu did.  After all, when the greeting was offered by the complainant to Umar, his refusal was, on the evidence, an insult.  There was no evidence as to whether Hapu was between Umar and the complainant or on the other side.  Further, the conversation was not directed toward him.  Finally, Umar’s case (that the complainant had walked out of the mosque and then returned saying “Come outside and I’ll sort you out”), was not put to Hapu.
63. [63]
    At the trial it was not in issue that Umar’s attitude at the mosque was the direct result of his view of the complainant’s alleged treatment of Umar’s father.  That was the only suggested reason for any conflict between them, in what was otherwise a normal cousin relationship.  On the complainant’s evidence that reason was identified by Umar when he said he was going to get the complainant “for what you’ve done to my father”.  Given Umar’s refusal of the greeting was an offensive response, the jury may well have concluded that Umar was most likely to have identified that reason at the mosque.
64. [64]
    Further, it was Umar who then called the complainant to organise the meeting.  It was an invitation to meet that, on the complainant’s version, the complainant was expecting.  The jury could readily conclude that Umar did not reveal he was bringing Imran and Zain.  The fact that he did so could reasonably be seen by the jury to lend support to the complainant’s version of what Umar had said.

The complainant’s account of how the injuries occurred

65. [65]
    The appellants’ submissions on this point were that:^[68]

    1. (a)
       the jury was properly directed that they did not need to not automatically accept the expert opinion evidence of the doctors; they were told that is for them “to decide what importance you give to the doctors’ opinion or whether you accept their opinion at all”;
    2. (b)
       the jury was also reminded that the “doctors, in considering the nature of the injury, considered possible causes and questions were asked of them putting various scenarios, various circumstances to them and they gave their opinion about that”;
    3. (c)
       the problem for the prosecution case was that “Dr Duflou’s opinion cast essentially unchallenged and profound doubt on the complainant’s description of the assault for the reasons set out earlier in this outline”; his compelling expert evidence could not stand together with an acceptance of the credibility of the complainant’s account.
66. [66]
    In oral address the appellants’ submissions on this ground centred on the photographs of the complainant’s injuries.  Much emphasis was put on Exhibit 9, on the basis that what it revealed was so far from what the complainant described as the assault that the jury should have had such a doubt as to acquit.
67. [67]
    In my respectful view, these submissions should be rejected.  They proceed on a misapprehension as to Dr Duflou’s evidence.
68. [68]
    Dr Duflou’s evidence did not assist the jury in the critical question as to whether the complainant threw the first punch, nor did it assist the jury as to whether more than one person was involved in the assault on the complainant.  His evidence also did not contest the issue to be determined, namely that the complainant suffered bodily harm.
69. [69]
    It is true to say that Dr Duflou’s opinion was that the injuries to the head, T7 vertebrae and left finger were not compatible with the assault being of a series of 25 plus blows with a baseball bat.  But that was not the case with the injuries to the back.  As noted above in paragraphs [46] to [50], Dr Duflou considered that:

    1. (a)
       those injuries were consistent with impact with a baseball bat; he was not saying it was exclusively the result of a baseball bat, but the mechanism of a baseball bat was “certainly my view”;^[69]
    2. (b)
       the bruising to the back was consistent with a number of blows being struck in that area because there were a number of different areas of bruising;^[70]
    3. (c)
       it was possible for someone to be struck a number of times to their body with a bat without any bones being broken; it depended where and with how much force, and the position of the person at the time;^[71]
    4. (d)
       “There’s a pattern to the bruising which has a general appearance of a wide rod-like object and any repeated impact of the body against such an object or vice versa – the object against the body can – can cause such injury”;^[72]and
    5. (e)
       “I don’t think that those marks would be typical of impact against a bitumen road. As I’ve said, they’re more likely … an object which has a rod like profile, at least for part of its … structure”.^[73]
70. [70]
    Critically, Dr Duflou’s evidence was that there was a pattern to the bruising which has a general appearance of a “wide rod-like object” and “repeated impact of the body” by or against such an object.  Further, those marks were not typical of impact against a bitumen road. They were more caused by “an object which has a rod like profile, at least for part of its … structure”.  Nothing in the case supported the conclusion that the complainant came into contact with a “wide rod-like object” (or an object with a rod-like profile) on the truck.
71. [71]
    It is true that Dr Duflou was of the view that the injuries were not of a type he would call severe, and the jury could take the view that that opinion cast doubt on the accuracy of the complainant’s account.  However, the jury could reasonably have concluded that the cause being from a rod-like object was consistent only with the complainant’s account.
72. [72]
    The jury did not have to be satisfied that all of the complainant’s account given was completely reliable and accurate.  The jury could have reasonably made allowance for the injuries he suffered, and they could find his evidence to be honest even if it was not necessarily completely accurate as to the number of times he was hit.
73. [73]
    The complainant’s evidence as to how his belt was broken was not explicable or consistent with Zain’s account.  The jury had the photographic evidence that the belt was broken.
74. [74]
    Further, on Zain’s evidence the bruising to the back could not have occurred in such a way as to leave the marks as described by Dr Duflou (a pattern to the bruising which has a general appearance of a wide rod-like object and any repeated impact).
75. [75]
    The jury were not obliged to reason that it must have been exactly the number of blows recalled by the complainant, or the severity he recalled.  The assault he described was rapid and brutal, to the point where he was lapsing into unconsciousness.  The jury could reasonably accept his evidence as to how it happened without accepting his account that it was 25 or more severe blows.  It was severe enough to cause him the head laceration and the bruising, the latter being caused by something like a baseball bat.
76. [76]
    Moreover, Dr Duflou’s evidence as to the cause being consistent with multiple impacts involving a “wide rod-like object” or an object with a rod-like profile, could be seen to be wholly inconsistent with Zain’s evidence that there were no weapons at all.

Motive to lie

77. [77]
    In the written outline the appellants urged that the complainant had a motive to lie based on the fact that a claim for a neck injury was lodged weeks after the alleged assault, but the medical evidence was clear that he did not have a neck injury.
78. [78]
    The submission should be rejected.  The complainant did not say he had a neck injury from the assault.  No mention of such an injury was made in his police statement.  A solicitor put the claim in, and the jury may well have thought that the solicitor was working off the medical records from the hospital, which recorded the T7 injury as well as the finger to be treated as part of the injuries, not because there was proof of a fracture but rather because it was safer to treat it as a fracture.
79. [79]
    Further, the suggested motive to lie as impacting negatively on the complainant’s credit is particularly weak when the complainant’s account to the attending police officer was largely consistent with his later evidence.
80. [80]
    My review of the evidence does not lead me to conclude that it was not open to the jury to reach the requisite state of satisfaction as to the appellants’ guilt.
81. [81]
    This ground fails.

Ground 2 – Liberato direction

82. [82]
    The appellants’ submissions on this point accepted that a Liberato direction was given in respect of Zain’s evidence, appropriately adjusted because Zain’s evidence was used for all three defendants.  The complaint made is that the trial judge did not include the evidence of what Umar said to Hapu within the Liberato direction.
83. [83]
    The appellants’ submissions were:^[74]

    1. (a)
       the jury was given a Liberato direction, in that they were told that if it considered Zain’s account (of a one-on-one fight with Umar after the complainant threw the first punch) was credible and reliable and that it gives a satisfactory answer to the prosecution case, then the verdict would be “not guilty” for all three defendants; alternatively, the jury was told that even if Zain’s evidence is not convincing, but the jury is left in a state of reasonable doubt, then the verdict would be “not guilty”;
    2. (b)
       the trial judge was not asked to include Umar’s out-of-court statement in that direction, and it was not included;
    3. (c)
       the absence of Umar’s evidence in a Liberato direction occasioned a miscarriage of justice^[75]because the evidence was unsworn but contemporaneous and was recounted by an independent witness; the evidence bolstered the sworn evidence of Zain and vice versa; the combined effect of the evidence had real potency given the way in which the trial was conducted; it should have been assessed within the Liberato framework;
    4. (d)
       the error became clear when the jury asked the following questions after the summing up:

“Does the Prosecution need to prove that Freddy didn’t throw the first punch?

…

If so, why was this brought up so late in the trial?

…

If we regard Zain as completely unreliable, does the prosecution still need to prove that there was no first punch?”

5. (e)
   the trial judge instructed the jury that her Honour “missed the fact that there was evidence from Hapu about what he said Umar told him”; her Honour referred to her previous direction about an “out of Court statement by the accused”; however, in what the jury were then told the trial judge did not repeat the earlier Liberato direction; rather, the focus of the re-direction was whether the evidence of Zain and Umar had the capacity to establish self-defence;
6. (f)
   however, the critical issue was whether the prosecution had negatived the reasonable possibility that the complainant threw the first punch; in short, if the evidence of Umar was able to be placed in the same category as Zain’s for the issue of “self defence”, then it should have been included in the earlier Liberato direction; that would have resulted in the jury being told:

   1. (i)
      if it considered Zain’s account and Umar’s account of a one-on-one fight with Umar after the complainant threw the first punch was credible and reliable and that it gives a satisfactory answer to the prosecution case, then the verdicts would be not guilty for all three defendants; and
   2. (ii)
      alternatively, the jury should have been told even if Zain’s evidence and Umar’s account is not convincing, but the jury is left in a state of reasonable doubt, then the verdict would be not guilty;
7. (g)
   such a direction would have prevented a real risk that the jury will reason that the accused’s answers in his or her record of interview can only give rise to a reasonable doubt if they believe them, or that a preference for the evidence of the complainant over the accused’s account in a record of interview suffices to establish guilt.

84. [84]
    Resolution of the issues on this ground of appeal require an analysis of the directions actually given by the trial judge, in the context of what is required to warrant a Liberato direction.
85. [85]
    Having told the jury that Zain’s evidence could be used not only for or against Zain but also for or against Umar and Imran, the trial judge said:^[76]

“It’s not as simple as choosing between the evidence of the prosecution on one hand and the defence evidence. You must consider the evidence of all witnesses along with the exhibits. It is upon the whole of the evidence that you must be satisfied of guilt beyond reasonable doubt before you could convict.”

86. [86]
    Her Honour then gave a Liberato direction in these terms:^[77]

“After considering all the evidence adduced in this case, there are, you might think three possibilities – three possibilities in respect of your assessment of Zain’s evidence. You might think that Zain’s account of a one-on-one fight with Umar after Freddy threw the first punch was credible and reliable and that it gives a satisfactory answer to the prosecution case. And if that was your judgment then your verdict would be not guilty. For all three defendants. You might think, alternatively, that Zain’s evidence, while not convincing, left you in a state of reasonable doubt as to whether he committed the offence or whether any defendant committed the offence, in which case your verdict would be not guilty. The third possibility is that you might conclude that Zain’s evidence should not be accepted. If that is your assessment, it does not mean that you automatically convict. You cannot automatically convict. I can see that you had already grasped that principle. But if you find Zain to be unreliable or even dishonest, that is not evidence of his guilt. If you find his account unconvincing, you put it to one side and ignore it. Go back to the rest of the evidence. Focus on the evidence that you do accept. The question for you then must be whether you’re satisfied on the evidence that you accept that all of the elements of the offence have been proved beyond reasonable doubt in respect of the particular defendant.”

87. [87]
    No submission is made that the direction did not contain all that it should, except for omitting to refer to Hapu’s evidence of what Umar said to him out of court.
88. [88]
    The trial judge then reminded the jury that the elements of the offence had to be proven beyond reasonable doubt.  That reminder followed a more specific direction on the burden of proof, given only shortly before.
89. [89]
    After a break the trial judge addressed the question of self defence.^[78]No complaint is made about those directions.
90. [90]
    Her Honour dealt also with the issue that some parts of the evidence related only to some of the defendants and not all of them.^[79]In that context her Honour said that Zain had been present at the mosque when the complainant spoke to Umar.^[80]In a break soon after, her Honour was reminded that Zain was not present at the mosque, but Umar was.  The jury sent a note in that break, asking a question relating to self defence, namely the position if the complainant threw the first punch but that the injuries are beyond such forces as reasonably necessary for self-defence.^[81]
91. [91]
    After the break the trial judge dealt with the jury’s question, which included saying, “the prosecution and the three defence counsel all agree that the critical first step is a determination of whether Freddy started it.  If it’s reasonably possible he did the first act of violence, they are not guilty …”.^[82]
92. [92]
    The trial judge then corrected what she had said about Zain being at the mosque, and moved to the elements of the offence, the opposing submissions, and then concluded the summing up.  No application for a redirection was made.
93. [93]
    About 30 minutes later the trial judge raised another note that had been sent by the jury.  It said:^[83]

“Does the Prosecution need to prove that Freddy didn’t throw the first punch?

If so, why was this brought up so late in the trial?

If we regard Zain as completely unreliable, does the Prosecution still need to prove that there was no first punch?”

94. [94]
    In the course of discussing the response to those questions her Honour asked Counsel “if Zain’s evidence is out they have to focus – well, there is no evidence of self-defence, is there?”^[84]The response from Counsel for Zain was “No, it’s only Zain’s account”.  No-one contradicted that answer, and the following exchange took place between the trial judge and Zain’s Counsel:^[85]

“HER HONOUR: So if Zain’s evidence is ruled out, then self-defence is excluded but they still need to go to the complainant’s evidence to identify an assault and there does not seem to have been any dispute that there was at least an assault by the application of force - - -

MR GODBOLT: Of course.

HER HONOUR: - - - multiple times to his body.

MR GODBOLT: Of course.

HER HONOUR: And you have to – the Prosecution has to prove that the others were involved and that was in dispute.

MR GODBOLT: Yes, the only other aspect of the evidence is the – what is relied on is an admission against Umar, which was to Hafez and it – in that, Umar’s account was one of acting in self-defence as well. And obviously, the Prosecution have to take the good with the bad with that, I suppose.”

95. [95]
    The evidence of what Hapu was told by Umar was then identified. What followed was a discussion with Zain’s Counsel about how that evidence might impact on the question of self-defence and the need to tell the jury that if they rejected Zain’s evidence they would not automatically jump to the conclusion of guilt, but rather, they still needed to consider the other evidence of the assault.^[86]
96. [96]
    In that context the trial addressed the jury:^[87]

“HER HONOUR: Ladies and gentlemen, I have to confess, when I told you Zain’s evidence was the only evidence of self-defence, I missed the fact that there was that evidence from [Hapu] Deen about what he said Umar told him.

I have already talked to you about an out of Court statement by the accused. But it is not just Zain’s evidence that you have to consider in relation to self-defence, it is also Hapu’s evidence about what he was told by Umar. It is a matter for you what you make of Hapu’s evidence. If you – the first question would be do you – are you – do you accept that that was an accurate account of what Umar actually said to Hapu? And if it is, the next issue is what weight do you place on it, on the fact that Umar said that at some earlier point before the trial?”

97. [97]
    By that direction the jury were plainly told that the evidence of what Hapu said to Zain was evidence to be weighed by them on the question of how the assault occurred, i.e who threw the first punch, and the impact of that on self-defence.  Thus, after reading the evidence of what Umar said to Zain, her Honour directed the jury:

    1. (a)
       it was a matter for them, but they might think, based on that evidence, that the complainant threw the first punch;^[88]and
    2. (b)
       on the self-defence issue of excessive force, “if you accepted that is what Umar said about what happened, the question that you would also need to consider is the force used” excessive;^[89] if they accepted Umar’s version, it was open to decide that self-defence has been excluded in respect of Umar.^[90]
98. [98]
    Her Honour then reminded the jury:^[91]

“As I say, there are all these parts of the evidence, it is on the whole of the evidence you decide this case and you make your assessment of those parts that you find credible, those parts that – and reject those parts that you do not accept.”

99. [99]
    The trial judge then turned to directing the jury how to go about the their task:^[92]

“So how you go about your task. It is not for me to tell you whose evidence you are going to rely on and so forth but when you are considering the case against Umar – it is Zain’s evidence of what happened at the scene, it is Hapu’s evidence of what he said Umar later told him about what happened and you have the denials from Freddy in relation to the first punch and so forth – Freddy’s description of what happened.”

100. [100]
     The trial judge then answered the jury’s questions in some detail.  In doing so her Honour again told the jury they might decide to act on the out of court statement by Umar as to what happened as accurate, and in relation to Umar “… you do not just consider what he – the evidence of Hapu of what Umar said, you also consider Zain’s evidence”.^[93]And, her Honour reminded them that the evidence of self-defence was not only Zain’s evidence but also what Hapu said.^[94]
101. [101]
     Then, answering the third question,^[95]the trial judge directed the jury:^[96]

“If you reject Zain’s testimony, so you have asked me what happens if you completely – if you find Zain unreliable. Does the Prosecution still need to prove there was no first punch? Well, if you reject Zain’s testimony about that, in respect of – sorry, it is a little more complicated than that because you could reasonably view the first part of Umar’s state – I am sorry to be so round about. You put your finger on something that is quite complicated. I know you are an intelligent jury, but if you want me to come back to you in a more concise way, I will do that but if I can say this. It has taken me a while to reason through this, but what Umar – that part of what Umar said supports self-defence, could be used against all three. So where he said there was a swing – he swung at him and Umar ducked and hit Freddy instead and then took him to the ground. That first part that – that Freddy took a swing at Umar, that actually is some evidence in favour of self-defence. It is not all of the evidence but it raises the question of whether what happened and these injuries that were caused were committed in self-defence. So you take that account. What weight you place on it, up to you. Whether you think it is important part of the evidence or of real value, up to you. You can, depending on the view you take of it, to weigh it in the case of all Defendants. So there is the evidence from Zain and this evidence – that Freddy threw a punch and it missed.”

102. [102]
     The second half of that direction plainly told the jury that: (i) they had to take into account what Umar said; (ii) that it was only part of the evidence to be taken into account; (iii) the other evidence was Zain’s evidence; (iv) what evidence they accepted was a matter for them.
103. [103]
     The trial judge continued, after reminding the jury that the evidence as to what happened came from both Zain and what Umar said:^[97]

“If, after considering all of those pieces of evidence, the whole of the evidence, you regard Zain as completely unreliable – and you do not place any weight on what Umar is said to have told Hapu, then you do not need to consider self-defence further. In the case of Umar, if you think that he actually said what Hapu said he said, you may think it is open to you to conclude that even on that basis, self-defence is excluded because he is describing something more. But if you reject all of the evidence of self-defence, you still need to consider the evidence you do accept. Remember what I said? You do not just say, well, I do not believe Zain, I do not believe what Umar said, he therefore must be guilty. You need to go back to the evidence that you do accept. If Zain’s evidence is excluded, if you do not accept Zain’s evidence and you do not place weight on Umar’s account, or you do not accept it, the Prosecution has excluded self-defence in respect of that Defendant. There is no other lawful excuse for an assault raised in the evidence.

You still must work through the elements for any of the Defendants. So when you are looking at one Defendant, was there an assault that is, the application of force, without his consent to Umar that caused him a bodily harm injury? If there was, that would be unlawful. And then the next question is does the reliable evidence, the evidence you accept, prove that the Defendant was either the perpetrator of that injury or at least an accessory to it in terms of the previously instructions for accessories?”

104. [104]
     There was no request for a redirection.
105. [105]
     The trial judge’s reference to “Remember what I said?” was plainly to the passage set out in paragraph [86] above.  I do not consider that the jury would have forgotten that, given it was the only part of the previous directions where the trial judge had discussed that rejection of a witness’s evidence “does not mean that you automatically convict”.^[98]Thus, in my view, the jury were told that what had been said in relation to Zain’s evidence, in what the appellants accept was a proper Liberato direction, equally applied to the evidence of what Umar had said.
106. [106]
     Further, the jury were directed specifically that Zain’s evidence and the evidence of what Hapu said were two pieces of evidence, each of which had to be separately weighed by them, and that acceptance or rejection of either did not mean the other fell away.
107. [107]
     There is no doubt that the jury were directed adequately on where the burden of proof lay, and to what standard.
108. [108]
     In my view, the directions, read as a whole, adequately directed the jury that they had to weigh each set of evidence, that it was not a question of preferring one set over the other, and that they should not automatically reason to guilt just because one set or the other was accepted or rejected.
109. [109]
     The appellants postulated that two extra and alternative directions should have been given, namely:

     1. (a)
        if it considered Zain’s account and Umar’s account of a one-on-one fight with Umar after the complainant threw the first punch was credible and reliable and that it gives a satisfactory answer to the prosecution case then the verdict would be not guilty for all three defendants; and
     2. (b)
        alternatively, the jury should have been told even if Zain’s evidence and Umar’s account is not convincing, but the jury is left in a state of reasonable doubt then the verdict would be not guilty.
110. [110]
     In my respectful view, the directions, read as a whole, directed the jury in those terms.  Nothing further was required.
111. [111]
     In De Silva v The Queen^[99]the High Court said, of a Liberato direction:^[100]

“The Liberato direction is addressed, in terms, to a trial at which there is conflicting sworn evidence. Intermediate appellate courts have expressed differing views as to whether a Liberato direction is appropriate in a case in which the conflicting defence version of events is not given on oath, but is before the jury, typically in the accused’s answers in a record of interview. If the trial judge perceives that there is a real risk that the jury will reason that the accused’s answers in his or her record of interview can only give rise to a reasonable doubt if they believe them, or that a preference for the evidence of the complainant over the accused’s account in a record of interview suffices to establish guilt, a Liberato direction should be given. Where the risk of reasoning to guilt in either of these ways is present, whether the accused's version is on oath or in the form of answers given in a record of interview, the Liberato direction is necessary to avoid a perceptible risk of miscarriage of justice. When an accused gives, or calls, evidence there is a natural tendency for the focus to shift from the assessment of the capacity of the prosecution case to establish guilt to an assessment of the perceived strengths or weaknesses of the defence case. Recognition of this forensic reality suggests that the risk that the jury will reason in either of these ways is more likely to arise in a trial in which the conflicting defence account is on oath.”

112. [112]
     I am unable to conclude that there was any real risk that the jury would reason that Zain’s evidence or Umar’s account could only give rise to a reasonable doubt if they believed them, or that a preference for the evidence of the complainant over those accounts would suffice to establish guilt.
113. [113]
     This ground fails.

Ground 3 – reversing the car – alternative hypothesis

114. [114]
     This ground arises from the way the trial judge explained the evidence as to how Umar’s car reversed down the street after the assault ceased.
115. [115]
     In the defence closing address submissions were made that the complainant’s video recording^[101]of the rapidly reversing car supported Zain’s account.  The suggested support was because of Zain’s evidence that the appellants were “trying to get out of there because he’s back up in the cabin of the truck, that they’re worried about what he might do in a truck”.^[102]
116. [116]
     The learned Crown Prosecutor did not address on that aspect.  However, the learned Trial Judge referred to the defence submissions and directed the jury that:^[103]

“And you’ll have the video for yourself. You might think that it shows the car was there and that it left in a hurry. But you might think logically on the evidence before you, that piece of evidence doesn’t take either case any further. It doesn’t advance either the prosecution or the defence case”.

117. [117]
     The learned Trial Judge told the jury why it might not advance either case:^[104]

“I say that because looking at that evidence logically you might think – in the context of the evidence given in this trial, you might think that there are two possible explanations – at least two possible explanations for driving off in a hurry. You might think it could reasonably be because the defendants were afraid of Freddy, which would be consistent with the defence case. Or you might think – another reasonable inference is that the defendants wanted to get away from the scene after they had unlawfully attacked Freddy”.

118. [118]
     Her Honour then said:^[105]

“Where there are two competing inferences, those two competing inferences from the car, if both of them are equally reasonable, you cannot use it to advance the prosecution case, firstly. That’s the first point. So you can’t rely on it to say, well, it supports the prosecution case because there is another reasonable explanation. But if the other reasonable explanation is no better – no more likely, it doesn’t advance the defence case either. That’s just a matter of logic. It would be neutral evidence.”

119. [119]
     The appellant’s submissions were that:^[106]

     1. (a)
        the net result is that her Honour identified of her own initiative a competing hypothesis on an important factual issue and then provided the jury with directions that neutralised that fact as advancing the defence case;
     2. (b)
        in McKell v The Queen^[107]the High Court held that the discretion of a trial judge to comment on the facts should be exercised with circumspection and observed “the respect due to juries as the constitutional tribunal of fact strongly supports judicial reticence as to the determination of questions of fact”; and
     3. (c)
        this is not a case where a comment was required to ensure the jury did not engage in improper reasoning; rather, the trial judge’s comment had the capacity to undermine the appellants’ case because her Honour created a competing reasonable hypothesis on this factual issue; the effect of the direction was to neutralise a reasonable inference open in respect of Zain’s evidence, and the appellants’ case more broadly.
120. [120]
     It is important to note the precise bounds of the evidence on this issue, and what was said in address.
121. [121]
     The complainant said they proceeded to reverse up Loam Street at speed.  He tried to catch them on video “before they left the scene” because he knew “there were no witnesses that I could see”.  The car “would’ve been doing at least 60 in reverse”.  He said when they reversed around Loam Street onto Colebard Street, “they had absolutely no respect for anyone”.
122. [122]
     The video shows the car reversing at speed.
123. [123]
     Zain said Umar proceeded back to the car and the complainant “was climbing back into his truck”.  When in the car, Zain yelled to Umar, “Hurry up. Let’s go. He’s back in his driver’s seat, he’ll probably ram us.”  He continued: “So we’ve reversed out of the street as quick as we could so he didn’t try and run us over.”
124. [124]
     Zain’s version was raised by his Counsel in address as a counterpoint to the complainant’s version.  Having read out the essence of what the complainant said (see paragraph [121] above) he said:

“You have the video. It’s only a six-second clip. The Landcruiser clearly is trying to get out of there as fast as they can. You know what Zain says about that. They’re trying to get out of there because he’s back up in the cabin of the truck, that they’re worried about what he might do in a truck, given that they’re in a Landcruiser in comparison.”

125. [125]
     Counsel for Umar referred to the video showing that the car was reversing in a way which was “what you’d expect with a car that’s parked facing down a road, faced by a truck, that’s trying to get out of there”.^[108]

The directions

126. [126]
     Properly construed, the trial judge’s comments were:

     1. (a)
        that the jury might think that the fact that the car left in a hurry does not advance either the Crown case or the defence case;
     2. (b)
        that view might be drawn “logically on the evidence before you”;
     3. (c)
        “in the context of the evidence given in this trial”, that is, all the evidence given at the trial;
     4. (d)
        “you might think” there are at least two explanations; that does not say that there are two explanations, but merely that the jury might think that;
     5. (e)
        the two explanations were for driving off in a hurry;
     6. (f)
        one was what Zain said, that they were afraid of the complainant; and
     7. (g)
        another was the inference that they “wanted to get away from the scene after they had unlawfully attacked [the complainant]”.
127. [127]
     To that point all the trial judge said was that the jury might think that the evidence raised at least two explanations.  One was that they were afraid of the complainant.  The other was they simply wanted to leave, “get away from the scene”.
128. [128]
     The trial judge did not create a competing reasonable hypothesis on this factual issue.  In fact, those two possibilities had already been raised as part of the defence case.  Zain had said one in his evidence.  The other was raised by Counsel for Umar in address: i.e. the car reversing as shown in the video was “what you’d expect with a car … that’s trying to get out of there”.
129. [129]
     The trial judge’s next comments – see paragraph [118] above – explained that if the two competing inferences were “both … equally reasonable”, then one did not advance the prosecution case and the other did not advance the defence case.  But that was only where the two inferences were equally reasonable.
130. [130]
     Notably the trial judge did not say “get away from the scene because they had unlawfully attacked Freddy”.
131. [131]
     The defence arguments were as to why the car reversed at speed, not just the fact that it did.  Thus, Counsel for Zain said it was because they feared being rammed.  Counsel for Umar said it was because that was the normal way a car would reverse.  However, the jury had heard what Freddy said, namely that he wanted to get them on video because there were no witnesses and before they left the scene.
132. [132]
     The jury would have understood that the alternative explanation given by the trial judge went no further than Freddy’s evidence and was designed to say why the evidence of how and why the car reversed as it did, did not support either case.  In my view, the effect of the direction was not to neutralise a reasonable inference open in respect of Zain’s evidence, and the appellants’ case more broadly, as contended by the appellants.  The jury were told that only if the two competing inferences were equally reasonable then the net effect was neutral.
133. [133]
     The effect of the trial judge’s directions on this issue were to ensure that the jury did not engage in improper reasoning with respect to the evidence about the car.  The jury had already been directed that a rejection of the appellants’ evidence did not mean that they could automatically reason to a finding that guilt was proved.  Further, they had been directed that the prosecution always bore the onus of proof.
134. [134]
     Zain’s evidence as to why the car was reversing at speed was due to his expressed concern that the complainant might ram them.  Zain’s evidence as to that was in the context of the complainant having initiated an assault on Umar.  But if the jury rejected Zain’s evidence they would have been left with the evidence of the car leaving at speed with no explanation for the conduct, except what had been postulated by Umar’s Counsel, i.e. they were just trying to get out of there.
135. [135]
     By giving the challenged direction, the trial judge ensured that if Zain’s evidence was rejected, the jury did not engage in improper reasoning, namely that they could infer the appellants’ guilt because of the manner in which they fled the scene.
136. [136]
     The appellants’ contentions cast the evidence about the reversing car as “an important factual issue”.  What the car actually did was not in issue as the jury had the video. What might have been an issue the subject of the jury’s considerations were the two explanations raised by the defence.
137. [137]
     It is also notable that the challenged direction was given immediately before a break in the trial.  On resumption, after discussion regarding other matters, the trial judge asked Counsel whether there was anything arising out of the summing-up so far.  The responses were that there were not.  No redirection was sought by any of the three defence Counsel.  Of course, the failure of Counsel to seek a redirection is not determinative of the issue if there is a misdirection, however the absence of an application for a redirection regarding this issue supports the conclusion that even if the direction was in error, it did not result in a miscarriage of justice.
138. [138]
     In my respectful view, the appellants’ contentions on this point should be rejected.

Ground 3 – failure to direct on consciousness of guilt reasoning

139. [139]
     The second aspect of this ground arises out of the same set of directions as just considered.
140. [140]
     The point made here is that the appellants’ contention is that the effect of the directions was to raise the possibility of inviting the jury to engage in consciousness of guilt reasoning when that was not part of the Crown case.
141. [141]
     The trial judge evidently conscious of the potential perception that the manner in which the appellants left the scene could have raised an inference against them.  After the evidence had finished and during discussion of the directions sought, her Honour raised with the prosecutor whether he sought directions on “flight”, and he indicated he did not.^[109]Of course, defence Counsel were present for that.
142. [142]
     The contended point could only arise from the statement in the directions that one inference that the jury might think arose was that the appellants “wanted to get away from the scene after they had unlawfully attacked Freddy”.
143. [143]
     In my view, properly construed, the directions do not invite or leave open the risk of impermissible consciousness of guilt reasoning.  The appellants’ submission places too much emphasis on the phrase “after they had unlawfully attacked Freddy”.  No-one had raised the question that the appellants fled because they thought they were guilty.  The prosecutor had said no such thing.  None of the defence Counsel addressed such an issue.  What Counsel for Umar said was that the car reversing that way was “what you’d expect with a car … that’s trying to get out of there”.
144. [144]
     The focus of what was put to the jury was simply that the appellants wanted to get away from where the assault happened.  In that context the trial judge’s comment did no more than say that the appellants wanted to get away from the scene where the assault had happened.  In my view, the jury would have understood it that way.
145. [145]
     In my respectful view, there was no reasonable prospect that the jury would engage in impermissible reasoning based on concepts of consciousness of guilt.  Neither the prosecutor nor any of the three defence Counsel evidently thought that to be a risk.  Neither did the trial judge.  And, no redirection was sought.
146. [146]
     Further, it seems the risk was not evident to the appellants’ Counsel on this appeal until part way through the oral argument.  Of course, that is not determinative but it perhaps serves to highlight that the risk was inconsequential.

Conclusion on Ground 3

147. [147]
     This ground fails.

Conclusion

148. [148]
     For the reasons expressed above all grounds of appeal fail.
149. [149]
     I propose the following order in each of CA 111 of 2022, CA 113 of 2022 and CA 114 of 2022:

3. 1.
   The appeal is dismissed.

150. [150]
     McMURDO JA:  Justice Morrison has thoroughly discussed the evidence, the arguments at the trial and in this Court and the judge’s summing up.  I agree with his judgment in every respect, except in relation to ground 3 of the appeal.  In my view, there was a miscarriage of justice because the trial judge suggested that the jury might infer that the appellants’ car was driven from the scene at high speed because the appellants wanted to get away “after they had unlawfully attacked [the complainant]”.
151. [151]
     An element of that hypothesis was that the appellants had unlawfully attacked the complainant.  It is likely that the jury understood the hypothesis as being that the appellants were leaving the scene in a hurry because that was the scene of the crime which they had just committed.  The problem was that this came after the conclusion of counsels’ addresses and after the prosecutor had told the judge, in the absence of the jury and before the addresses, that no direction would be necessary on a question of flight.
152. [152]
     Because the prosecutor had disavowed an argument of flight in the absence of the jury, not only should this hypothesis not have been raised by the judge, but also a direction was required in the appellants’ favour.  Against the risk that the jury might infer that the appellants were fleeing the scene, the jury should have been directed that this was not a possibility for which the prosecution was contending, and that they should not draw that inference.
153. [153]
     It is true that counsel did not seek a redirection.  However, as the respondent agrees, that is not determinative.  Further, the respondent does not argue for the application of the proviso.
154. [154]
     There was a miscarriage of justice which in my opinion would require the convictions to be set aside and a retrial ordered.
155. [155]
     BOND JA:  I agree with the reasons for judgment of Morrison JA and with the orders proposed by his Honour.