[1998] QCA 416 THE QUEEN. de Jersey CJ McPherson JA Chesterman J

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1 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND [1998] QCA 416 C.A. No. 358 of 1998 Brisbane [R v. Trifyllis] THE QUEEN v. JOHN THEO TRIFYLLIS Appellant de Jersey CJ McPherson JA Chesterman J Judgment delivered 11 December 1998 Separate reasons for judgment of each member of the Court, each concurring as to the order made. APPEAL AGAINST CONVICTION DISMISSED. CATCHWORDS: CRIMINAL LAW - appeal against conviction - assault occasioning bodily harm - particulars - whether disconformity between acts disclosed in evidence in Crown case and those particularised by Crown as constituting offence alleged - no contention by appellant that he did not assault complainant - whether appellant convicted of offence particularised - whether appellant able to contest Crown case - whether unfairness to appellant - whether indictment duplicitous - whether verdict unsafe and unsatisfactory - whether appellant acted in self-defence or in response to provocation.

2 Dare v. Pulham (1982) 148 CLR 658 M v. The Queen (1994) 181 CLR 487 R v. Chen (unreported, Court of Appeal, no. 129 of 1997, judgment delivered 21 October 1997) R v. Juraszko [1967] Qd R 128 R v. Morrow and Flynn [1991] 2 Qd R 309 R v. Saffron (1989) 17 NSWLR 395 Counsel: Mr D R Lynch for the appellant Mr M C Chowdhury for the respondent Solicitors: Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent Hearing Date: 27 November 1998

3 REASONS FOR JUDGMENT - de JERSEY CJ Judgment delivered 11 December I have had the advantage of reading the reasons for judgment of Chesterman J. I agree with those reasons, and that the appeal should be dismissed. REASONS FOR JUDGMENT - McPHERSON J.A. Judgment delivered 11 December I agree with the reasons given by Chesterman J. for dismissing this appeal. 2 It is to my mind plain that the Crown charged the events which led to the bodily harm as a single transaction and not as a series of blows each constituting a separate and distinct act: cf. R. v. Redgard [1956] St.R.Qd. 1, 6, where Philp J. considered that acts preliminary to sexual intercourse, if so connected with an ensuing rape as to form one transaction, should not be separately charged. There are obviously some practical limits to such an approach, but it is plain that they were not exceeded here. 3 The matter can in part also be tested by asking whether, if the appellant were in future to be charged with one of the other blows said by some of the witnesses to have been inflicted by him on the complainant, he could successfully plead autrefois convict. In my opinion, there can be no doubt that, in the circumstances disclosed by the evidence such a plea would succeed. 4 The appeal against conviction should be dismissed.

4 REASONS FOR JUDGMENT - CHESTERMAN J Judgment delivered 11 December On 18 September, 1998 the appellant was convicted of assault occasioning bodily harm after trial before a judge and jury in the District Court. The indictment alleged that on 21 September, 1997, at Brisbane in the State of Queensland that one John Theo Trifyllis unlawfully assaulted one Andrew Kenneth Beardmore and thereby did him bodily harm. Early in the trial, when the jury was absent, defence counsel told the court: My learned friend has given particulars, if you like, in the course of his opening and as is customarily the case the opening is not taken down. I would simply ask that there be something formally on the record as particulars relied upon in respect of the bodily harm. I m not making any complaint about the particulars given in the opening; I am asking that there be something on the record. The trial judge asked the prosecutor whether he was prepared to provide particulars. The prosecutor said he was and, when the jury returned, said: For the record it may be necessary that I place the particulars of the assault the Crown complains of.... Ladies and gentlemen, by way of particularity, and it may be obvious to you from my opening, anyway, but by way of particulars of the assault complained of so they can go on the record the Crown particularised the assault as the accused man punching the complainant repeatedly with closed fists at the upper body and head in a boxing style. 2 At the close of the Crown case, the appellant s counsel submitted that on the evidence adduced the jury could not be satisfied beyond reasonable doubt that the assault had occurred in the manner particularised. The trial judge ruled:... despite the particulars, I take the view that the case should proceed and proceed to the jury on the basis that if they find an unlawful assault on the evidence as a whole they are entitled to convict. 3 The appellant submits that:

5 5 (the ruling) deprived the defence of the certainty of knowing precisely what case they had to meet.... [T]his was especially important in the present case since the complainant... described two occasions when he was struck, none of the eyewitnesses saw all of the incident in question, and the assault particularised was fundamentally different from that described by the Complainant.... Further,... this resulted in unfairness to the Appellant because of the timing of the ruling (i.e. after the Crown case had closed) whereas the cross-examination of the witnesses had proceeded in the light of the earlier particulars placed on the record.... [T]herefore... in all of the circumstances the Appellant was deprived of a fair trial. 4 The substance of these submissions can best be evaluated after a consideration of the evidence. 5 The assault occurred at about 2:30 a.m. on a Sunday morning outside Cafe Mondial, which offered its patrons tables and seating on the footpath adjacent to its premises in Albert Street, near the intersection with Elizabeth Street, Brisbane. The complainant, Andrew Beardmore, his brother Sean, his fiancee and a friend had spent the evening at a nightclub in the city. They had all consumed some alcohol, though only Sean Beardmore was intoxicated. He was very drunk and required the assistance of his brother to walk. The party intended, having left the nightclub, to catch a taxi at the casino rank. Accordingly they walked up Charlotte Street and turned right into Albert Street, crossing over Elizabeth Street to where the assault occurred. 6 The complainant was walking, supporting, as I have said, his brother Sean. Sean s left arm was placed over the complainant s shoulders and held by the complainant s right hand. He explained: We walked along. We spoke to some patrons at a coffee shop there and just after we had said good evening to them my brother stumbled over my feet and then he pushed a chair along the footpath. I then reached out with my left hand and he was trying to put the chair back... [t]hen I was hit from behind.... To get his balance he put his hand on the chair, he push [sic] it along probably about two or three metres

6 6.... He just got his balance back... and we just kept going.... I was hit and I let go of his hand in shock and he ended up on the floor. I stepped over him around the chair and I had probably taken about three or four paces and then... put my hand up to my mouth.... I had blood on my hands... and I spat some teeth out on the floor. I turned around to look back and my fiancee is running across the road and my brother is just standing up and there was... the broke [sic] who was there yelling at each other and then my friend Lawrence has run past and tried to stop the two of them yelling and was trying to tell them all to settle down, and I walked back. Laurence [sic] was not getting anywhere so I grabbed hold of my brother just in a bearhug. I put my arm around him to turn him away and then sort of everything just gone, you know - everybody started swinging and then Lawrence and I dragged him out of the way and I have sort of fell laying on Shaun [sic].... In cross-examination this was asked: You say you were struck from behind? - Yes, I was. You had no warning of any blow coming or anything of that nature? - No, I didn t, no warning at all. So that you must have been struck over your left shoulder? - Yes. Is that what you say? - That is what I believe happened, yes. Later in cross-examination this was said: I think you said before that everyone started swinging? - No, I didn t say everyone started swinging, I said they were arguing with each other and I grabbed my brother before he could start to swing or as he started to swing I grabbed him... I know I was hit again a second time when I have actually got hold of my brother because I started to turn away when I was hit again and that is when I was hit on the right side. When you grabbed hold of your brother you say you were struck a second time? - Yes. Later he was asked: Because you can t recall what happened? - I can t recall getting hit, but I know that I told my brother to leave the chair alone and then next thing I m spitting blood and teeth out. I don t remember exactly at what point I was hit or where I was standing or where I was facing.... I know I was struck. What I am suggesting to you is that my client punched you once in the mouth?... That he was standing in front of you when he did that. You can t exclude that possibility? - If he was standing in front of me - no, I don t remember him standing fully in front of me, no.

7 7 The cross-examination went on: The incident where you were struck in the mouth..., that was one blow on its own; is that what you are saying? - Yes. This second blow that you said...? On the right-hand side.... [T]hat was in a separate part? - That is when I came back and... grabbed hold of my brother. So that on your account of things the injuries to your teeth didn t occur in the course of you being punched repeatedly? - No. I wasn t punched repeatedly; I was hit solidly the first time with no warning. You say only once, don t you? - I don t know.... [Y]ou ve said once and I m saying... I don t know how many times I was hit. I know I was struck - I know I stepped over my brother. I spat my teeth out Sean Beardmore had been too intoxicated to recall much of the evening s events. His recollection was:... I sort of remember being knocked down and then as I got back up my brother put me back down on the ground and held me back down on the ground. I don t remember too much of him actually getting hit because I was not looking in that direction at the time, and then noticed my brother was bleeding quite badly from the mouth Anthony Sutton was a patron at the cafe when the Beardmore brothers wandered by. Members of the group of which Sutton was one spoke briefly, but pleasantly, to the two Beardmores as they ambled on their way. Sutton remembered that: They bumped a table or a chair and put it back... and then... continued on up the street.... I looked back again and there was another guy there and he was punching into them.... There was just a flurry of punches and that was basically it.... [T]he waiter that was at our table went up there and grabbed the guy who was throwing the punches. 9 Melanie Barnard was the complainant s fiancee in September, She and the other member of the group, Lawrence Odlin, were walking behind the brothers and crossed to the other side of Albert Street to withdraw money from an ATM. Her

8 8 attention was attracted to the incident outside the cafe. Mr Odlin left her and ran towards it. She said: I m not sure what... Andrew and Sean were doing but... I saw another man running out towards them He ran towards them and... he sort of raised his arm up towards the two boys but after that... everything sort of happened pretty quickly.... [I]t appeared... like he was punching him.... I couldn t say because it was a fair distance away but it appeared he was sort of swinging his arms towards the two boys. 10 Mr Odlin was asked what happened when he got towards the intersection of Albert and Elizabeth Streets. He answered: I crossed the road. Then I looked around. I was with Melanie at that stage. I turned around to see how both Melanie, Sean and Andrew were going and I saw Sean fall across Andrew and then Sean grabbed, from memory, a chair... so he would break his fall. At the same time Andrew was holding Sean so he can help him up.... I saw a waiter running up. I saw an arm go up.... I knew... that it was going to be an aggressive manoeuvre and I ran across the road to assist both Sean and Andrew.... (I) saw like an arm go up, then down and made contact with Andrew s jaw and I saw Andrew come away from Sean holding his face like if you are in pain I was still travelling towards the group.... Sean then was trying to push the waiter away because he was... trying to continue the tussel [sic]... and then all I saw was punches being thrown and then - I... assisted and was trying to break it up. 11 In cross-examination he said:... it would be completely wrong to say that the waiter approached and pushed the two brothers knocking Sean and the chair to the ground? - Yeah, that would be true.... That s why Andrew was looking over his shoulder because there was a nudge and Andrew was seeing who was pushing him and that s where the arm came up.... [M]y statement says that there was a push... in the back and then Andrew was looking over his shoulder to see who pushed and then that s where the hand came up, or the arm came up and then Andrew made contact with - made contact with the other jaw.... [I]t is not true that he simply ran in and punched him? - Yes, that is true.

9 12 Mrs Gilby was also a patron at Cafe Mondial when the assault occurred. She observed: 9 Two young lads walked past us and asked the time of day.... We had a little joke and they walked on up the footpath.... A little while later someone else at our table made a comment and I looked back towards the boys and I saw a person running towards them.... I saw this third person be quite aggressive and throw punches towards the taller of the boys. She was asked: Did you see where those punches landed? - Yes, I did. Are you able to say whereabouts they landed? - Around the head area. Can you tell us... how the punches were thrown? - Well,... they looked like a boxer. It was sort of a - two or three, three or four very quick punches.... I then glanced away to speak to my friends and when I looked back again, there was a fourth person there... (whose) body language was sort of saying Stop. Leave it alone. Don t do it., and then the waiter from our table went up... by then the littler boy had fallen on the ground and then the waiter went up, from our table, and the third person returned to the coffee shop. That is the person who had thrown the punches? - That s correct.... When your friend at your table said something... and you turned away and saw the third person come towards them, can you tell us what he was doing...? - Well, he was moving in, running,... moving quickly down and then in no time at all he just seemed to be throwing punches at them. In cross-examination Mrs Gilby was asked: You simply described these two being approximately front-on to each other, that s the taller man and the waiter, and the waiter delivering some blows and from a position in front of the taller man? - Yes.... You certainly didn t see the waiter deliver a blow from behind and over the shoulder, the left shoulder of the taller man? - I did not. 13 The appellant was a waiter employed at the cafe. The taller boy was the complainant. 14 The appellant s argument seeks to compartmentalise the altercation between the appellant and the complainant into separate assaults and then to contend that

10 10 the assault which is the subject of the Crown s particulars cannot be, on a fair reading of the evidence as a whole, the assault from which the complainant lost his teeth. From this it is submitted that the Crown has not proved beyond reasonable doubt the case it brought against the accused and, as a corollary, that the defence contested only the assault particularised. Then it is said to be unfair to the appellant to convict him of another assault which was not the subject of particulars and was not therefore defended. 15 It is apparent from the evidence of the eyewitnesses, the essence of which I have extracted, that there were not two separate and distinct assaults committed by the appellant upon the complainant. There was an occasion on which Sean Beardmore stumbled and, to prevent himself falling, grabbed a chair, no doubt the property of Cafe Mondial, and pushed it two or three metres along the pavement while he struggled to regain his balance. The appellant emerged quickly and aggressively from the interior of the cafe, approached the Beardmores and within a very short space of time began punching the complainant, probably from behind, when he was unable to defend himself by reason of his support for his brother. As one might expect, the various witnesses saw different aspects of the event and differed in their recollections of what they saw. It is, though, quite clear that the incident described by Mrs Gilby is the same as that described by the other witnesses, including the complainant. She saw it differently. She thought there were a number of quickly administered blows delivered while the appellant was more or less face-on to the complainant. In this, her description differs from the others but from its context there can be no doubt that it was her depiction of the event which was the subject of the charge in the indictment.

11 16 After the assault there was a scuffle in which the complainant and Mr Odlin 11 intervened to prevent a confrontation between the appellant and Sean Beardmore. In the confusion the complainant was hit again, but was not hurt. A fair reading of the evidence shows that the assault the subject of the charge occurred when the appellant first approached the brothers. It was this attack which is described in the passages I have quoted. 17 Does the fact that the Crown chose Mrs Gilby s description rather than some other to comply with a request for particulars mean that the conviction, as the appellant contends, cannot stand? 18 The function of particulars is to enable an accused to know the nature of the charge which he is called on to meet. See R v. Juraszko [1967] Qd R 128 at 135 per Stable J (with whom on this point Gibbs J agreed). Although it is often unhelpful and may be misleading to quote remarks directed to the facts of one case in another where the facts are different, there are passages in the judgment of Stable J which bear repeating in the present context. Juraszko involved an appeal from a conviction for dangerous driving. The defence asked for particulars and the prosecutor took the Crown case on the depositions and notionally drew eleven vertical lines through it, thus dividing the whole alleged course of conduct... into twelve parts each of which was called a particular. Stable J said (at 135): The conduct complained of was essentially a course and manner of travel over a short distance. The defence had the depositions containing all of what had been said on the committal proceedings. It was not as if the appellant was an accused person for the first time facing a tribunal on the charge. In the Magistrates Court it is usual to get particulars, for without them the accused person may have only a slight idea of what is being alleged. And in some cases upon indictment... particulars should be given In the present case there were matters which were obviously described in the depositions and which... were capable of being regarded... as importing... danger

12 Such matters and their context were all well known to the appellant and his advisors, and there could be no valid suggestion that anyone would be likely to be taken by surprise. 19 The same conclusion as to the function of particulars was arrived at by Hunt A-JA in R v. Saffron (1989) 17 NSWLR 395 at The point was discussed at a little more length than in Juraszko but, in essence, it was thought that the function of particulars is the same in criminal as in civil cases. Hunt A-JA said: In a civil case, particulars once given cannot circumscribe or modify the cause of action upon which the plaintiff sues.... The function of particulars in such a case is simply to relieve the other party of the need to investigate the issues of fact not identified by the particulars, or to show what will be put forward as constituting the case which has been pleaded.... Where a party seeks to lead evidence in support of his pleaded case which is outside the particulars which have been supplied in support of that case, it is for the trial judge to consider whether such evidence unfairly amounts to a case of which the other party has had insufficient warning.... It is a matter within the discretion of the trial judge whether to permit the evidence... or to hold the party whose particulars were deficient to the issues of fact to be investigated as limited by those particulars.... The exercise of that discretion must necessarily depend upon many things, including the amount of warning which the other party has had that such evidence was to be led. The relief which is granted to a party at the trial must in the end be founded on the pleadings and not upon any particulars which have been given of the matters alleged in those pleadings.... The appellant argues that the principles relating to particulars in criminal cases are different to those applicable in civil cases. No authority was produced for that submission. Nor is it easy to see why that should be so. Certainly, an accused s entitlement to particulars in a criminal case is the same as a defendant s entitlement in a civil case. An accused is not able to plead to the charge unless he knows the precise case which is the basis for the charge preferred against him.... Where the relevant particulars are not stated in the indictment (because the necessity to do so has been dispensed with by statute), an accused is entitled to have identified the specific transaction upon which the Crown relies and to be appraised not only of the legal nature of the offence with which he is charged but also the particular act, matter or thing alleged as the foundation of the charge....

13 13 If the Crown s obligation to give particulars in a criminal case is the same as a plaintiff s obligation to do so in a civil case, so should the consequences of having given those particulars be the same in each type of case - subject only to the trial judge s duty in each case to ensure that prejudice is not created by any departure from those particulars. 20 One of the authorities referred to was Dare v. Pulham (1982) 148 CLR 658. In that case, Murphy, Wilson, Brennan, Deane and Dawson JJ said (at 664): Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it...; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial.... Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings.... But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed..., though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence. 21 For completeness sake it should perhaps be noted that section 564 of the Criminal Code provides that an indictment must, subject to following provisions, set forth the offence with which the accused person is charged in such a manner, and with such particulars as to the alleged time and place of committing the offence, and as to the person alleged to be aggrieved, as may be necessary to inform the accused person of the nature of the charge. The section also provides that it is sufficient to describe an offence in the words of the Code or of the statute defining it. By section 573 the court may in any case if it thinks fit direct particulars to be delivered to the accused person of any matter alleged in the indictment and may adjourn the trial for the purpose of such delivery. By section 572 the court may order

14 14 an indictment to be amended where there appears a variance between the indictment and the evidence if the variance is not material to the merits of the case and the accused will not be prejudiced. Amendment may occur after verdict where the court is satisfied that no injustice will be done. 22 In this case particulars were not ordered by the trial judge. The prosecutor provided them because he was asked to do so by the defence. The case was not one where particulars were necessary and it was probably inappropriate for the prosecutor to comply with the request. The terms of the request are worth noticing. I have already set it out. It came after the opening when, presumably, in accordance with ordinary practice, the Crown prosecutor would have summarised the evidence he intended to adduce from all witnesses. The prosecutor had already identified the witnesses whose evidence I have discussed as persons whom he proposed to call. 23 It must follow that the defence was aware, in detail, of the evidence to be led by the Crown in support of the indictment and of the fact that there were discrepancies in the description of the assault to be proffered by those witnesses. 24 Defence counsel did not justify his request for particulars on the basis that the appellant did not appreciate the case alleged against him. He sought only that there be something formally on the record as particulars relied upon in respect of the bodily harm. He specifically eschewed any complaint that the opening was insufficient. His only concern was to ensure that there be something on the record. The prosecutor then gave the particulars which I have set out. 25 The trial proceeded, with the Crown calling evidence the gist of which I have reproduced. Counsel for the defence did not object to any of the evidence on the basis that it fell outside the particulars.

15 15 26 The Crown case was not one of a series of violent acts one or more of which might have caused the bodily harm specified. The Crown case was of one assault, one episode in which the complainant was punched and suffered bodily harm. The episode was sufficiently described as to time, place and the nature of the assault. The number of blows which landed and the particular pose of the appellant and his juxtaposition to the complainant at the time of delivering the blows were evidentiary details which did not affect the essential aspects of the described offence. 27 There is no material disconformity between the offence alleged and particularised and that proved. 28 Even if this be wrong the consequence is not that the conviction should be quashed. If there be a disconformity between the particulars and the preponderance of the evidence it is a case in which, applying the applicable principles, there is no injustice or unfairness to the accused in allowing the verdict to stand. The case proved by the Crown was that alleged in the indictment. Assuming the assault occasioning bodily harm was not exactly that which Mrs Gilby described, the appellant had notice of the Crown case in its entirety from the depositions, the committal proceedings and the Crown s opening at the trial. The particulars in this case were not to inform the appellant of the case against him. He knew that before the particulars were requested. Moreover the particulars were not really apposite to give that notice. They amounted to no more than part of one witness s account. 29 It is worth noting that the appellant did not contend that he did not assault the complainant. I have set out the passage in cross-examination in which counsel for the defence specifically put to the complainant that the appellant punched him once in the mouth when he was standing in front of the complainant. Apart from the

16 16 number of punches (one as opposed to two, three or four) the suggestion is similar to Mrs Gilby s account. 30 The appellant was unable to describe with any specificity how it had conducted the defence relying upon the particulars so as to make it unfair for the Crown to prove a case beyond the particulars. 31 In reality the appellant did not dispute the fact that he had punched the complainant dislodging his teeth. He defended the charge on the basis that he was provoked or was acting in self-defence. What was in issue was the lawfulness of the assault, not whether there was an assault. 32 In these circumstances the point is without merit and is an attempt to take advantage of the Crown s incaution in the manner in which it responded to a request for particulars which were not necessary and which did not affect the conduct of the defence. 33 The appellant relies upon the principles found in R v. Morrow and Flynn [1991] 2 Qd R 309 and R v. Chen (unreported, Court of Appeal, no. 129 of 1997, judgment delivered 21 October, 1997). These cases are different in kind from the present. In the first, the accused were tried upon an indictment which contained one count of unlawful assault occasioning bodily harm. The evidence established at least seven separate incidents which could have been the subject of the indictment. Some of the incidents involved only one or the other of the two accused while others related to both of them whilst in company with each other. The particular assault the subject of the charge was not identified. The relevance of the case for present purposes is that (per Connolly J at 313): The nature of the Crown case was never made clear, whether by particulars or otherwise. By this I mean that it was never made clear

17 17 what precise offence was charged against the appellants or, if it was sought to have the indictment understood not in its natural sense but as charging several acts by each of them, what those acts were. Even regarding the indictment as charging conjoint responsibility for the one offence, there was more than one such offence. It follows that what really happened in this trial is that the jury was faced with evidence of some seven offences where one only was charged and that they were left to decide for themselves of which offence, if any, they were prepared to convict. The case therefore was one in which there was... a latent ambiguity in the indictment. 34 Chen is in the same category. The appellant was charged on two indictments, each alleging one count of assault against a police officer. The occasion in question was shown by the evidence to involve six separate identifiable assaults on the officers. The indictments did not describe with any particularity which assault was charged. No particulars were provided. The evidence with respect to the assaults differed both in quantity and quality and there were defences open to some which were not open to others. It was impossible to say what the jury had found proved in convicting and it was likewise impossible to know on what basis the appellant should have been sentenced. 35 By contrast, the present appeal concerns one episode described a little differently by various witnesses. There is no latent duplicity or ambiguity in the indictment. 36 There was a second ground of appeal, that the indictment was duplicitous. The argument was encompassed within the first ground of appeal and need not be treated separately. 37 The third ground of appeal was that the conviction was unsafe and unsatisfactory on the basis that on the whole of the evidence the Crown had not proved beyond reasonable doubt that the appellant had not acted in self-defence or

18 18 in response to provocation. The basis for the submission is that all of the witnesses called conceded that they had not seen every detail of the contretemps. Although the appellant did not give evidence, an account of what happened which was given by him to a police officer was before the jury. He told Constable Alexander:... sometime previously he had seen two male persons knock tables and chairs on the footpath of the restaurant, that staff had then repositioned those tables and chairs and they had been moved again by these two males. He went out and confronted the two males. One grabbed him around the throat and he indicated that that was the person that received the injuries, Andrew Beardmore, and as a result of him being grabbed around the throat, he struck out at Beardmore thus inflicting the injury on him and he stated that he only punched him once with a closed fist. 38 When interviewed more formally at the City CIB on 6 October, 1997 the appellant expanded his account to say:... I... ran out of the cafe and I ran up to the guys because they were holding some chairs up and... asked him to put the chairs down.... [H]e said, Fuck off or I ll kill you,... and he went to put his hand on my chest area... and I struck him. Later in the interview he said: I said, Put down the chair. Put down the chair. I said, Put down the chair immediately. I didn t say it in those words. I said, Come on, mate, put down the chairs. He said..., Fuck off or I ll kill ya. He went like that on my throat sort of thing, around my throat area, and I just reacted and I hit him. I didn t mean to knock his teeth out or anything but I just was a little scared I suppose you could say. 39 Because all of the eyewitnesses conceded that they might not have seen everything, it is submitted that the Crown had not proved beyond reasonable doubt that things had not occurred as the appellant had asserted. This version, it is submitted, raised at least a reasonable doubt that the appellant had acted in selfdefence or because he was provoked.

19 40 Although each of the witnesses conceded, quite reasonably, that they might 19 not have seen everything, not one of them saw or heard anything approaching the appellant s account. All the witnesses saw the appellant as the aggressor. No one saw or heard him threatened. Mr Odlin gave this evidence in cross-examination: I suggest to you that Andrew grabbed him on the throat, somewhere on the neck? - Not a possibility. Sean was looking over his shoulder. He was holding Sean.... I suggest to you that when the waiter came up and said something to them, Andrew grabbed him on the throat? - Not a possibility because... Andrew was in the process of helping Sean up. I am suggesting that there was a chair which had been raised? - No, not a possibility, no, no weapon or no object was used to offend anyone in any way.... Would you necessarily exclude that the things that I ve put to you may have happened before the incident - before the part of the incident that you saw? - The possibilities wouldn t have been because I saw the event as it happened or as it occurred. You are only able to say what you saw from the moment you started looking? - Yes, that s true. I can honestly say there was no object used in a hostile manner. There was no-one grabbing anyone s throat and... Andrew was trying to assist Sean in getting up. 41 In M v. The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ explained the process of reasoning which is to be applied if a court of criminal appeal is to set aside a verdict on the basis that it is unsafe and unsatisfactory. Their Honours said (at 493, 494-5): Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself 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....

20 20 In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.... [W]here 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 the 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. 42 Having read the evidence I do not entertain a doubt that the appellant was not guilty nor do I think there is a significant possibility that an innocent person has been convicted. I cannot see any discrepancy, inadequacy or taint in the evidence such as to lead to such a conclusion. I do not believe that the jury should have evaluated the evidence differently. On the contrary, there appears to have been a coherent and compelling array of evidence against the appellant establishing a wholly unnecessary, unprovoked and cowardly attack. It was for the jury to determine whether there was a reasonable doubt that the events described by the appellant to the police occurred despite none of the witnesses having observed anything like them. 43 There is no basis for disturbing the verdict. In my opinion the appeal should be dismissed.