New South Wales Court of Criminal Appeal CITATION : R v Harriden [2000] NSWCCA 118 FILE NUMBER(S) : CCA 60509/99 HEARING DATE(S) : 22 March 2000 JUDGMENT DATE : 22 March 2000 PARTIES : Regina David George Harriden JUDGMENT OF : Powell JA at 19; Hulme J at 1; Dowd J at 20 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/41/0155 LOWER COURT JUDICIAL Sides DCJ OFFICER : COUNSEL : C K Maxwell SC - Crown P Byrne SC - Appellant SOLICITORS : SE O'Connor - Crown Bernard Collaery & Associates DECISION : Appeal dismissed; Sentence confirmed - 4 - IN THE COURT OF CRIMINAL APPEAL No: 60509/99 POWELL JA HULME J DOWD J Wednesday 22 March 2000 REGINA -v- David George HARRIDEN JUDGMENT 1 HULME J: On 4 August 1999 the appellant was convicted before Judge Sides Q.C. and a jury of a charge that on or about 1 March 1997 at Queanbeyan he maliciously wounded Leslie Hanrahan. On 6 August 1999 his Honour imposed a sentence requiring the appellant to perform four hundred hours community service. 2 The only ground of appeal is that the jury's verdict was unreasonable, although it is probably desirable to record that, in addition to the review of evidence generally inherent in this ground, the Court was asked to take into account a comment made in the Crown Prosecutor's address about the failure of the appellant's legal advisers to call at the appellant's trial his brother. 3 At about 2.30 on the morning of 1 March there were a number of unseemly disturbances in Monaro St, Queanbeyan. On one side of the street near where these disturbances occurred was the Queanbeyan Leagues Club. On the other was the Riverside Tavern. 4 In the course of the evening Senior Constable Hanrahan was on or close to the ground more or less in the middle of the roadway struggling with a Mr Webb whom he had shortly before arrested. While Constable Hanrahan was engaged in this exercise his police baton was removed from his belt and he was struck over the head with it twice, causing wounds at least one of which bled profusely and which required stitching. 5 It is common ground that shortly thereafter the appellant, carrying a baton, moved from the vicinity of Constable Hanrahan, more or less in the direction of the Riverside Tavern near where he was apprehended by two doorman on duty that night at the Tavern. These doormen were Messrs Munroe and McCallum. Both of these persons were firm in their evidence that they had seen the appellant remove the baton from Constable Hanrahan's belt and strike him with it and that they had thereafter kept their eyes on him until they apprehended him. 6 Evidence was given that the Riverside Tavern or at least the area immediately adjacent to it where Messrs Munroe and McCallum were standing is some three metres above the roadway where Constable Hanrahan was attacked. There is a ramp and set of stairs which leads from the roadway up to the Tavern. Messrs Munroe and McCallum must have attained the roadway by descending the ramp or steps prior to their apprehension of the appellant. 7 Messrs Munroe and McCallum were the only witnesses who gave evidence of the appellant being seen to strike Constable Hanrahan. There was evidence from other witnesses who placed the appellant in proximity to Constable Hanrahan prior to the latter being attacked, including evidence from one witness that the appellant had been following Constable Hanrahan a few minutes immediately prior. 8 On the other hand, the evidence is clear that there were a number of other persons also in close proximity and at least some of whom attacked Constable Hanrahan when he was on or near the ground. Estimates as to the number of these persons varied but they were sufficient to lead some witnesses who had been near the entrance to the Leagues Club to say that while they saw a hand raise the baton the number of people surrounding Constable Hanrahan precluded sight of more of the person who inflicted the blows. 9 The appellant himself gave evidence and said that he had picked up the baton but had neither removed it from Constable Hanrahan's belt nor attacked him with it. His evidence was supported by that of a number of other witnesses most or all of whom had been with the appellant at a social function earlier that evening. This group of witnesses also gave evidence that the appellant was with them, away from the area, at an earlier time when Mr Munroe (but not Mr McCallum) said that the appellant had sought entry into the Tavern. 10 There were a number of branches to the attack made on the credibility of Messrs Munroe and McCallum. It was said that the evidence as to the number of persons surrounding Constable Hanrahan at the time he was attacked and the evidence that persons at the Leagues Club could not see the attacker meant that Messrs Munroe and McCallum could not. However, the fact that persons looking from one direction cannot see anything says little or nothing about the visibility from a different direction. Furthermore, the evidence that Messrs Munroe and McCallum were some three metres above the roadway clearly provides an explanation for them being able to see matters which others, lower down, could not. Those standing at the Leagues Club were elevated by only three steps or so. Messrs Munroe and McCallum were something of the order of fifty five metres away from where Constable Hanrahan was attacked, littlemore than the width of a football ground. Having regard to the three metre elevation to which I have referred I see nothing in the distances involved to cause one to reject the evidence of Messrs Munroe and McCallum as to identification, nor does the presence of other persons, referred to in evidence adjacent to Constable Hanrahan, cause me to reject or say it was unreasonable to accept the evidence of identification (which I note is appreciably different in form from the evidence usually referred to by that description). 11 It was also said that Mr Munroe's credibility was affected by the inconsistency between his evidence that he had seen the appellant earlier in the evening when many witnesses said he was elsewhere. Even making the assumption that the jury were obliged to, or should have, accepted the evidence on this point of those other witnesses, it does not follow that the jury were obliged to reject Mr Munroe's evidence of seeing the appellant attack Constable Hanrahan or that a verdict based on an acceptance of that evidence is unreasonable. Particularly is this so given Mr McCallum's evidence to similar effect. Similar comments may be made in respect of the evidence of those witnesses who denied that the appellant attacked the Constable. In that regard it is, in my view, nothing to the point that there were significantly more than two witnesses who denied the appellant's involvement. This court does not see the witnesses; we are in no position to make a judgment to the effect that the jury should have accepted the evidence given by the greater rather than the lesser number of witnesses. 12 A further basis of attack was that given the general melee and the risks in descending the ramp or stairs without looking, it was impossible to believe the evidence of Messrs Munroe and McCallum that they had not taken their eyes off the person who wielded the baton until they had apprehended the appellant while carrying it. This argument has some force but it is not necessarily so that one cannot descend steps or a ramp with which one is familiar without looking at the ground beneath one's feet and, in any event, the jury may have taken the view that such shift of gaze as was necessary to negotiate the ramp or stairs was insignificant in terms of keeping the person who had assaulted Constable Hanrahan under observation. 13 Our attention was directed to remarks made by Judge Sides during the course of his sentencing exercise. It is, I think, a fair inference from those remarks that his Honour was or may not have been as impressed as the jury was with the evidence of Messrs Munroe and McCallum. However, I must confess that I do not find in his Honour's remarks matters which either in combination with the other criticisms made on behalf of the appellant or alone incline me to the view that the decision of the jury was unreasonable. Indeed, I think there is much to be said for the view that his Honour's findings, particularly in relation to the removal of the baton from the belt of Constable Hanrahan, was, if not literally inconsistent with the jury's verdict, at least perverse in the light of it and in the light of the evidence which Messrs Munroe and McCallum had given. 14 There were other, but less significant, inconsistencies to which attention was drawn in the case of the written and oral submissions made in support of the appeal. No doubt these and all of the others to which I have referred were advanced to the jury who had the advantage of seeing both the two principal witnesses for the Crown and all of the other witnesses called in the case. 15 I see nothing in the matters to which our attention has been drawn to justify this court, in accordance with accepted principles, in upsetting the jury's verdict. 16 As I said earlier, the point was made that upon a comment made by the Crown Prosecutor during the course of the address to the effect that the jury had not heard from the appellant's brother, the address was transcribed and the comment, to which we were taken in the written submissions of counsel for the appellant, was in these terms: "Now he, that is the accused, gave evidence that his brother Justin was the person who had his, I think it was his foot on the baton and of course we have not heard from Jason - no doubt a misrecording of "Justin" - although we have heard a lot about him but of course, members of the jury, he says that he picked up the baton because he did not want somebody else to use it and my recollection is that in cross examination he said it was Jason who had his hand on the baton or foot on the baton - Justin I should say - and he did not want Justin to use it, and I would stand corrected if I am wrong but I also recollect that he said he actually saw Justin after he bent down to pick it up". 17 His Honour directed some remarks to this in the course of summing up the case to the jury. At page 7 of the summing up, as transcribed, his Honour referred to the remarks of the Crown and instructed the jury that they must not speculate as to what Justin Harriden might have said if he was called as a witness or, for that matter, what anyone else who was at the scene and had not been called might have said. His Honour went on: "You must not make an inference adverse to the accused that he in the course of his case did not call his brother. There may be very good reasons why the brother was not called by either party because it would have been open to the Crown to call Justin as well. You have heard of course that Justin was arrested later that morning and that may explain why no one has called him but you must not infer adversely to the accused that he has chosen not to call him for any particular reason". 18 Having regard to the remarks of his Honour, it does not seem to me that the Crown Prosecutor's marks on the topic go any way to advancing the appellant's cause in this court. In my view the appeal should be dismissed. 19 POWELL JA: I agree. 20 DOWD J: I also agree. 21 POWELL JA: The order of the court then is that the appeal is dismissed and the sentence is confirmed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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