New South Wales Court of Criminal Appeal CITATION : Regina v Troy Terrence Gibson [2002] NSWCCA 401 FILE NUMBER(S) : CCA 60295/02 HEARING DATE(S) : 17 September 2002 JUDGMENT DATE : 3 October 2002 PARTIES : Regina Troy Terrence Gibson JUDGMENT OF : Wood CJ at CL at 1; Sully J at 2; Howie J at 91 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0971 LOWER COURT JUDICIAL Hock DCJ OFFICER : COUNSEL : Mr. E. Wilkins - Crown Mr. P. Byrne SC/Mr. G. Turnbull - Appellant SOLICITORS : S. E. O'Connor - Crown Forsters, Solicitors - Appellant CATCHWORDS : Criminal law - procedure at trial - Crown Prosecutor's decision not to call in the Crown case a particular witness - discussion of the duty of a Crown Prosecutor in that connection. - Criminal law - alleged miscarriage of justice at trial deriving from the decision of the Crown Prosecutor not to call a particular witness in the Crown case - discussion of principles to be applied in determining whether or not a miscarriage of justice has in fact occurred. - Criminal law - procedure at trial - admission of photographs depicting the physical injuries sustained by the victim of a very severe physical assault - discussion of relevant principles. LEGISLATION CITED : Crimes Act 1900 Evidence Act 1995 The Queen v Apostilides (1984) CLR 563 R v Kneebone (1999) 47 NSWLR 450 CASES CITED: Randall v The Queen [2002] l WLR 2237 Wilde v The Queen (1988) 164 CLR Festa v The Queen [2001] HCA 72 (13 December 2001] DECISION : Appeal against conviction dismissed; Leave granted to appeal against sentence; Appeal against sentence dismissed IN THE COURT OF CRIMINAL APPEAL 60259/02 WOOD CJ at CL SULLY J HOWIE J Thursday 3 October 2002 REGINA v TROY TERRENCE GIBSON Judgment 1 WOOD CJ at CL I have read the judgment in draft of Sully J. I agree with the orders proposed, and with the reasons of his Honour. 2 SULLY J: On 26 February 2002 Mr. Gibson, the appellant, and one Daniel David Stephens were jointly arraigned in the District Court upon an indictment containing three counts. 3 The first count charged the two accused jointly: "For that they on 1 August 1998 at Jindabyne in the State of New South Wales did maliciously inflict grievous bodily harm upon Clinton Joseph Portelli with intent to do grievous bodily harm to Clinton Joseph Portelli." Each accused pleaded not guilty, and was put accordingly upon trial by jury. The jury found the appellant and Mr. Stephens not guilty, of this particular charge. 4 The second count charged the two accused jointly: "For that they on 1 August 1998 at Jindabyne in the State of New South Wales did maliciously inflict grievous bodily harm upon Clinton Joseph Portelli." Each accused pleaded not guilty and was put accordingly upon trial by jury. The jury found the appellant guilty, and his co-accused not guilty, of this charge. An offence of this character contravenes section 35(b) of the Crimes Act 1900, and attracts upon conviction a maximum penalty of imprisonment for 7 years. In due course the appellant was convicted and was sentenced to imprisonment for 4 years and 6 months with a non-parole period of 3 years. 5 The third count charged both accused: "For that they on 1 August 1998 at Jindabyne in the State of New South Wales did assault Craig Michael Hansen thereby occasioning to him actual bodily harm." Both of the co-accused pleaded not guilty and they were put accordingly upon trial by jury. The jury found the appellant guilty, and his co-accused not guilty, of this particular charge. An offence of this character contravenes section 59 of the Crimes Act 1900 , and attracts upon conviction a maximum penalty of imprisonment for 5 years. In due course the appellant was convicted and was sentenced to imprisonment for a fixed term of 12 months. 6 The sentences of imprisonment thus imposed upon the appellant were partially accumulated. The practical effect of what was done was to pass upon the appellant sentences of imprisonment of 4 years and 10 months, of which 3 years and 4 months are actually to be served. That non-parole period expires on 4 August 2005. 7 The appellant challenges his convictions and seeks leave to appeal against the sentences passed upon him. 8 The essence of the Crown case at trial is summarised conveniently and as follows in the written submission lodged by the Crown in connection with the present appeal: "At about 3.30 to 4.00 am on 1 August 1998 the appellant became involved in a fight with the victims in the Aspen Hotel at Jindabyne. On the Crown case the appellant was the aggressor. He gave some advice regarding the rules of a pool game the victims were playing at the time with two girls. The appellant punched the victim Portelli in the face. The appellant gave evidence at the trial. He agreed that he had punched the victim in the face 'a couple of times' inside the Aspen Hotel. However, his evidence was to the effect that Portelli was the aggressor. His evidence was that someone hit him from behind, so he turned around and punched the victim Portelli, not knowing whether Portelli had been the one who hit him. He stated that Portelli was moving forward to punch him, so he punched Portelli first. Mr. Hansen came to Portelli's aid and other patrons intervened to break up the fight. Security guards intervened and the appellant was asked to leave the hotel, which he did. He and a number of other patrons gathered at the front exit of the hotel. After about ten minutes the appellant and his friend Hansen were ushered out the back of the hotel. At this time, the appellant was seen to point into the hotel and he and the group out the front ran to the right side of the hotel. It was the Crown case that the appellant was the leader of this group and that the plan was to assault the victims outside the hotel in revenge for what had occurred inside. The evidence of Hansen was that outside the hotel, the appellant led an attack on Portelli. Hansen said 'look who we've found here'. Another person said 'come on, let's fight, let's finish it'. The appellant then punched Portelli to the ground. Hansen was then punched to the ground by someone other than the appellant and while on the ground saw two people kicking Portelli in the head. Hansen was also kicked in the head. There was no direct evidence that the appellant kicked either victim in the head, although he was seen by the witness Robinson in a group of six people, one of whom was kicking Portelli in the head. When Robinson reached the group the kicking had stopped and the appellant was standing on the right hand side of the victim Portelli 'near the head end'. The appellant was sentenced on the basis that his role was that he punched Portelli to the ground and then remained there aiding and encouraging others who were kicking the victims. The victim Portelli suffered a number of injuries, the most serious being a serious head injury resulting in brain damage. Mr. Portelli had amnesia and could remember nothing of the events the subject of the charges. On 5 August 1998 on a chance visit to the Jindabyne Police Station to inquire as to the progress of the police investigation Hansen passed the appellant leaving the police station with two other people (his mother and solicitor Mr. Galanos). Sergeant Scott witnessed this event as he looked out from the police station. Hansen immediately told Sergeant Scott that the appellant was the person who had assaulted Portelli inside and outside the Aspen Hotel. The appellant, his mother and his solicitor (who had also been his step-father for many years) denied seeing Hansen outside the police station on 5 August 1998." [Note:the transcript references included in the submission as filed have been omitted] 9 Four grounds of appeal against conviction were argued. It is expedient to deal with them in the following order. Ground 2 10 The ground is: "The Crown's failure to call Guy Stephens, the brother of the Appellant's co-accused, who was an eye-witness to the relevant events, as a witness in the Crown case, occasioned a miscarriage of justice ( R v Kneebone (1999) 47 NSWLR 450)." · The Potential Evidence of Guy Stephens: his Interview, electronically recorded, on 24 August 1998 11 On 24 August 1998 Mr. Stephens was interviewed by investigating police. It seems that the prosecuting authorities did not have any further access to Mr. Stephens until 22 February 2002; and that a conference was had with him by the Crown Prosecutor on 25 February 2002. On 26 February 2002, the first day of the trial, the Crown Prosecutor intimated that she did not propose to call Mr. Stephens as a witness in the Crown case. 12 The interview of 24 August 1998 was electronically recorded. A transcript of the interview was available to the learned trial Judge. The interview occupied, inclusive of the attendant formalities, from 7 pm to 8.35 pm; and embraces, inclusive of formal questions, 455 questions. 13 Mr. Stephens identifies himself in the interview as the elder brother of the appellant's co-accused. At questions 53 and following Mr. Stephens tells the police that he is acquainted with a person whom he knows only by the name of "Pep". He says that he knows "Pep" as a person living with his brother; that he has himself known "Pep" since about January 1998; and that he had most recently seen "Pep" on 1 August 1998 at the time of the incident which the police were then investigating and which they had earlier described to Mr. Stephens as "………………… the assault of a person by the name of Clinton Portelli on the 1st August 1998". Mr. Stephens describes "Pep" as "(p)robably medium" in build. Mr. Stephens expands that description as follows: "He's of, usually, usually has his hair short, old, older appearance, I suppose, probably round about 30 years old. I can't remember, yeah, well, sort of pale, pale complexion." Mr. Stephens says that, at the time of the relevant events of 1 August 1998, "Pep" had one of his arms in a sling because, Mr. Stephens understood, "Pep" had broken his collarbone snow-boarding on that day. Mr. Stephens tells the police that he does not know "Pep's" family name. 14 At questions 77 and following Mr. Stephens gives his first extended account of his recollections of the relevant events that occurred in the early hours of Saturday, 1 August 1998: "Q 77 Can you tell me what you did from the time you finished work on the Friday to the next day? A. From the time I finished work, well, this is going back, well, basically probably would, would have just gone home, chilled out on, on the lounge a bit, had something to eat at home and then I think by, by about, about 6.00, 6 o'clock or 7 o'clock, I would've headed down to, to Mario's for this coaches, coaches meeting and, I don't know, would have stayed there for a few hours. Q.78 Then what happened? A. And then, then, then I, I went down to the, well, I went from there with some, some of the, the other coaches that, that were there and instructors, down to the Jindabyne Hotel, and continued, continued drinking and did some gambling down there, which, I already told you before, had, had a bit of a win and, and then we were, yeah, shouting and hours, I was shouting lots of drinks all night. Q.79 Can you just speak up for us for the tapes. A. Yeah. Q.80 And what happened then? A. Then, well, after that I would have headed over to the, probably to the Aspen, I'm not too sure whether we stopped by the Balcony, or, or anything, but next thing I knew, I, I was at the Aspen, and, yeah, I, I was sitting at the table by the front window talking to, to Chris, and noticed, noticed these two, two guys that were, I don't know, they were going off quite, quite a bit, this, this, this Clinton guy and his blond haired friend, they seemed, seemed to be pretty aggressive. I don't know, just, don't really know what, what happened there, but a scuffle broke out and I just sort of jumped up and brake, broke it up. Then the, the bouncers, I don't know they, they kicked Troy, Troy out, Dan, Dan was there as well, Dan, Troy, I think that, that what happened were, I don't know these, these two guys were, were, were picking on, on, on these other friends, friends of Troy's or something, and they were giving them a hard time playing pool or whatever. And then just this Clinton guy was just going, he was breathing really heavily about you know, about centimetres away from Troy and then I, I would have probably just turned, turned my back and ……………….. and that's, that's when the, the scuffle broke out and I jumped up, broke, broke it up. And then, then the others, others left and I, I stayed there and finished, finished my drink. I actually shook hands with both Clinton and his blond haired friend, and they said to me, 'Thanks, thanks for breaking it up'. Yeah, and then walked outside and these two, these two guys must have been, must have been led out the back entrance, 'cause they were, 'cause, you know, I, I shook hands with them as I left and then, then when I came, came around the corner, one of them was charging up, charging up the hill into this group of, group of guys. There must have been, I don't know, eight, eight guys walking up there, and, and this guy just charged on in. Q.81 Then what happened? A. And then there was, you know, I could make out there was just lots of stumbling around and it was just like all, all over in 10 seconds. It was just a, a blur of shadowy, shadowy figures. Like, I must have been 40, 50 metres away from it. Yeah, and - Q.82 What happened then? A. Well, there, there just seemed to be a lot of yelling and stuff going on and it just seemed like the, the police came out of the station, started trying to break, break things up, settle things down and just, all, all these figures just started dispersing, and I, I went and, went and saw that, saw that the guy that had been, been knocked, and he was laying face, face down, rolled him over and he was sort of, like, snoring. And then the, the police was still trying to calm, well, I don't know, apprehend this blond haired guy who seemed to be going quite, quite nuts, and I, I basically just walked, walked home by myself. Yeah, yeah, that's basically what I saw." 15 In subsequent answers, Mr. Stephens says that he might have had a beer at home before leaving to walk to Mario's for the coaches meeting; that he had, at Mario's, a pizza to eat; and to drink, between five and ten stubbies of beer and some "regular shots, mixed with dry," of bourbon. He can say nothing about the number of bourbons, except to say that "it would have been a lot". 16 In later answers Mr. Stephens explains that, having walked from Mario's to the Jindabyne Hotel, he continued to drink bourbon at the latter place; being unable to say how many such drinks he consumed except to say that "they were flowing at a pretty steady, steady pace". 17 In the answers immediately following, Mr. Stephens explains that at the Lake Jindabyne Hotel he met up with his brother, Daniel, the appellant, and "Pep". He describes "Pep" as having been wearing "……….. a white, white T-shirt ………..maybe". As to anything then unusual about the appearance of "Pep", he says: "Well, he just sort of had, had his, actually I, I can't remember, he was wearing a sling but I'm not sure whether he was wearing it out, out, out at night. I can't recall." 18 The interviewing police then turned their questioning to an incident said to have occurred at the Lake Jindabyne Hotel while Mr. Stephens, his brother, the appellant and "Pep" were there. It is put to Mr. Stephens that the police information is that one of the group which included Mr. Stephens had fallen over smashing a glass, and had been thereupon removed by one Dave Ivorac, a security staff member. The upshot of this portion of the questioning is that Mr. Stephens tells the police that he can remember the incident, but cannot remember the identity of the person who caused the incident by smashing the glass, although he believes it could have been a person named Brett Vale whom he describes as "……………… a tall blonde-haired guy". 19 The questioning then turns to the course of events at the Aspen Hotel. Mr. Stephens says that he went to the Aspen Hotel, as best he can recall the fact, in company with a man called Chris Hillier; and that he sat quietly with Mr. Hillier in the hotel drinking bourbon and talking. 20 At question 172 and following the police questioning turns to the subject of the scuffle which Mr. Stephens had previously said he had witnessed inside the Aspen Hotel. His relevant answers are as follows: "Q.172 Can you tell me a bit more about that? A. Troy, Toy[sic] had some, another group of friends there, that were playing pool and I think they were playing against this Clinton guy and that, that other, what was that blond haired guy's name? Q.173 At this stage I would rather not let you know the names of the person involved. A. Yeah. Q.174 …………… A. Well, they, they were playing pool against those guys and, and those guys were, were I don't know, they were getting a bit aggro, and I don't know, they were sort of, giving, giving these, these other, these guys a, these friends of Troy's a, a hard time and, yeah, they were going, going crazy. And then, I don't know, I just sort of looked, looked over there and, and saw you know the, the tension, there was a lot of tension there and then I, I turned back to Chris and just kept, kept on talking to him when, when, when the fight broke, broke out there. Q.175 What did you actually see when you saw the fight break out? A. I didn't, I didn't see it start. Q.176 O.K. A. I saw it in, in progress and I sort of just turned around and, yeah, it was just a you know, just a blur of …………….. and I sort of just jumped up and pushed, pushed two people away from each other. Q.177 Who were the two people you pushed away from each other? A. Well, I, I believe one was this, this, this blond haired guy and I, I don't know who, who the other person was, and that was that. Q.178 And then what happened? A. And then the security guys, or the bouncers from, from the Aspen broke it up and kicked Troy out and I just pretty much sat, sat back down and continued drinking with, well, finished, finished my drink with Chris. Chris was playing his harmonica and sort of cruising around, yeah. Q.179 When you say Troy was kicked out, what do you mean by that? A. Well, the, the bouncers, one of them said he had to, had to go. Q.180 And what happened. A. He went, well, I, I think him and his mates, Dan, Pep, they, they all split. Q.181 Sorry, could you speak up? A. Yeah, well, him and all his mates just, just left. Q.182 I heard you say - ? A. Dan and Pep. Q.183 Dan and Pep. A. Yeah. Q.184 Are they the people that left with Troy? A. Yeah. Q.185 Did anyone leave with Dan, Troy - ? A. Yeah, there, there was, there was a few, few other people. A.186 Do you know who those people were? A. No, I don't know who those people were. Q.187 Do you know any of the people that were in that group other than Dan, Troy and Pep? A. No, they were the only, only ones I really knew. Q.188 Do you know them by sight or by name? A. No, not really, I don't think I've ever, ever seen them before and I didn't really take much notice of them anyhow because they were, they were in their own, own little group there. Q.189 And at the time that the security staff was escorting Troy out, did you hear them say anything? A. No. Q.190 How far away from Troy were you? A. Well, he was on, they, they were on the other side of the pool tables, so they would have been five metres away. Q.191 Was there any music playing at the time? A. Yeah, yeah. Q.192 Could you hear any voices on the other side of the room? A. No doubt. Q.193 Pardon? A. No doubt, but you know, it was just a bar, bar scene. Q.194 Now, you said earlier that after Troy and, was ejected from the hotel ----- A. Mm. Q.194 ------ that you stayed and finished your, your drink. A. M'mm Q.195 Is that right? I've been informed that yourself and Dan and Troy ----------- A. Mm Q.195 ------- were asked to leave the hotel? A. No, I wasn't. Q.196 I've been informed that security staff actually escorted yourself and Dan out of the hotel. Is there anything you can tell me about that? A. No, I would say it's not, not true at all. Q.197 I've also been informed that -------------- A. 'Cause, well, as far, as far as I can remember, I, I was allowed there to, to stay. I, I went on my, my own, own will. Q.198 Do you know why there is any reason why the security staff would, would tell us that they asked yourself and Dan to leave the hotel and escorted you from the hotel. A. No, I can't, can't understand that at all. I mean, yeah, it's news to me. Q.199 I've been informed that whilst Troy was being escorted from the hotel, he used words similar to, 'Come outside and we'll find out what sort of a man you are.' A. Yeah. Q.200 Do you know anything about that? A. No, I don't. No, I don't think that was. I, as far as I can remember, those, those guys just peacefully, peacefully left. Pep had been, been hit, hit in the, in the head and went outside, came, came back in, came back, went back into the toilet, cleaned himself up, 'cause he, he was trying to break, break it up as well, as well as Dan was, you know, well, this is you know, second-hand information because I didn't see it. Q.201 You say Pep had to come back inside and clean himself up. A. Mm. Q.202 What do you mean by that? A. Well he had, he had a nick on his eye. Q.203 For the tape we'll just note that you were using your finger to touch the eyebrow of your right eye. Is that right? A. Well, right or left. Q.204 O.K. Do you know whereabouts on Pep's face that he was injured? A. Just, just seemed about there at the end of the eyebrow ………… Q.205 Was that on the right or left side? A. Yeah. Q.206 Do you remember what Pep was wearing. A. Well, I thought he had a white T-shirt on, I don't know. Q.207 Anything else? A. No probably would have had a parker [sic] or jacket of some sort. Q.208 Where were you when Pep had to go and clean himself up? A. I was just sitting talking to Chris." 21 Mr. Stephens goes on to say that he left the Aspen Hotel by himself, his companion, Mr. Hillier, having gone to get a taxi. Mr. Stephens says that he was sitting and talking to people named Graham Kay and Richard Boyce; and he says that they would be able to verify what he has told the police about having been in their company. The interviewing police put to Mr. Stephens that both those named persons have been interviewed and have informed the police that Mr. Stephens was "actually asked to leave the hotel". Mr. Stephens responds that he cannot understand why they would have said such a thing. 22 At questions 223 and following, the police questioning turns to the events outside the Aspen Hotel. Mr. Stephens gives, initially, this version: "Q.223 And when you walked out of the hotel, didn't you see anyone? A. No, not, not really, probably said, said good-bye to Boycy and Graham and those guys, and then walked out round the corner where, where I saw, saw this guy Clinton running, running into, attack Troy." 23 Mr. Stephens goes on to say that Mr. Portelli was about 50 metres away from him at that point; and that Mr. Hansen was about 10 or 20 metres behind Mr. Portelli; both Mr. Portelli and Mr. Hansen having come out of "the back alleyway" near the Aspen Hotel. Mr. Stephens says that, at that particular point in the course of events, there were "about eight" other people with, or in the near vicinity of, the appellant; and that his recollection of them is that: "……….. there was a whole heap of friends of Troy's that I, I didn't know. I think they were friends of Troy's, I, I don't really know. But there was Dan there, there was Pep there". 24 The questioning then continues: "Q.245 Can you tell me where Dan and Pep were in relation to Troy? A. No, no, I can't, but I can only, you know, say that, that they were there, because they, they left with, with Ben, but, you know, I couldn't really see. Q.246 Do you know where the other people were in relation to Dan, Troy and Pep? A. Well, it just, just seemed like there was just a group, a big group of them and with, with this guy running, running towards them. Q.247 And what did you think when you saw this person Clint running towards Troy? A. I thought, what the hell is he doing. Q.248 How did that make you feel? A. I thought this, well, I thought this guy is just crazy, what's he doing, he's running into, I, I, I didn't, didn't really know what to think. I was just probably having enough trouble walking up the street. Q.249 Were you worried about what might happen with this person running towards Troy? A. Well, I, I didn't know, no, I didn't really know what, what to think. I was, yeah, you know, I didn't know whether, whether he had something or what, what, what he was thinking, but he was, from, from seeing him earlier, earlier on inside the, the guy was, seemed to be really highly strung and was very volatile and, yeah, I don't know, well, I don't know what he was on, you know, he was - Q.250 Having that in mind, did you feel that there may be a fight between Clint and Troy? A. Well, yeah, I thought, I thought something was going to happen like, this guy was charging in at a, at a rampant pace. Q.251 Did you see what happened then? A. Well, I did but there was people in, in the, in the way and I, I don't really know, you know, what, what I saw. Q.252 Can you try and describe to me what you saw? A. Well, there just seemed to be just a, just a blur of stumbling, and, you know, people falling over, tripping over each other, standing back up, tripping over. Q.253 Did you see anyone exchange blows? A. No, not really. Q.254 Punches or kicks? A. No. Q.255 So, is it the case that you saw people falling over each other? A. It was just, yeah, yeah, it was just like a, I don't know, just shadows rumbling. Q.256 What did you do then? A. Well, I, I continued walking, walking up in that, that direction and when, when I sort of arrived up there this, this guy Clinton was unconscious on, on the ground and I, I walked up to him and rolled him over to see if he was alright and he was, he was sort of snoring and, and there was still sort of scuffling going on between, between the police and, and, and this other blond haired guy, and then, then, then I just kept going. Q.257 Can you tell me where Troy, Dan and Pep were at, at that stage? A. Well, when, when I'd sort of walked up there, I suppose Troy, Troy was back from the, from the, from the crowd, I don't know where, where it, it just sort of everyone, everyone was just sort of bouncing around, I don't know, just looking pretty, pretty freaked out. Q.258 Can you tell me where Troy, Dan and Pep were standing in relation to the person on the ground, Clinton, at the time that ----- A. Well, there was no one around him. I was the only, only one near, near his, his vicinity." 25 There is a deal more material to the same effect; but its essential present relevance is that Mr. Stephens reiterates on a number of occasions that he did not have a really clear view of exactly what was going on in the scuffling earlier described; that he doesn't know "whether there, maybe, maybe there was a, was there, was there, I don't even know whether there was a bus there or something that may, may have blocked, blocked my vision or, or what it was, but, that was that. ……….. ."; and that, emphatically, he did not see Mr. Portelli and Mr. Hansen knocked to the ground and repeatedly kicked about the head and body. Mr. Stephens goes on to explain that he approached Mr. Portelli where the latter was lying on the ground; noticed certain injuries to Mr. Portelli; and that, as to any concern on his own part that Mr. Portelli had been assaulted, he was not really so concerned because "………….. you know, I saw him, you know, he could have quite easily walked, walked down, down the back alleyway, like, I thought it was insane for him to charge into, into a group of, you know, eight, eight or 10, 10 guys when, when he was quite a, you know, small sort of guy. He quite easily could have, could have walked down that back alleyway and, and had nothing to do with it. You know, he sort of chose to attack, you know, a group, a group of guys, so. But I certainly felt, you know, remorse but he, he was breathing heavily and seemed to be in a, he was unconscious, but – ". 26 Further questions are asked, later in the interview, about Mr. Stephens' observations of events inside the Aspen Hotel; and he answers to the effect that he was about 5 metres away, "across the room", at the time Mr. Portelli began to act aggressively, and at the time of the flaring up of the subsequent scuffle inside the Aspen Hotel. Shortly after these particular passages, the interview turns to Mr. Stephens' actions after the incident outside the Aspen Hotel. He gives this account: "Q.342 When did you next speak to Dan and Pep? A. That would have been Saturday afternoon. Q.343 Did you speak with them about this incident? A. Yeah, yeah. Q.344 What were you told? A. Basically, what, what I told you, that was, I don't think there was, you know, much, much more information there. Q.345 When you spoke to Dan and Pep about this incident, did they tell you what they did, if anything? A. Well, Dan, Dan told me that he, that he, you know, tried, tried to, well, he was just trying to break, break it up, and, yeah, that was about, about it from Dan. Pep, Pep, well, didn't really say much at all. Q.346 Did Dan tell you that he'd punched anyone? A. No. Q.347 Did Pep tell you that he punched anyone? A. No, he didn't tell us that. Q.348 Did either of them tell you, tell you that they had kicked anyone? A. No. Q.349 And since this incident have you spoken with Troy Gibson about it? A. Yeah. Q.350 What did Troy tell, tell you? A. Nothin', really, just said, you know, that he had, you know, tripped over, the guy was attacking him and he tried to, tried to fend him off and ended up tripping over, I think, the, the other guy and he just said that he, he sort of fell, fell back and was, was out of there. Q.351 Did Troy tell you that he had punched or kicked any of the persons? A. No." 27 There follows some fairly close police questioning of Mr. Stephens as to why he had not come forward earlier and given the investigating police such information as he had concerning the incidents inside and outside the Aspen Hotel. In the course of that questioning, the interviewing police put to Mr. Stephens some things allegedly said by him to another witness whom the police had previously interviewed. The relevant questions and answers are: "Q.397 Then you had a conversation with Mr. Ivorac, where you say that Dan gets a bit out of control and punched a couple of people. A. I, I don't think I said that at all. In fact I think that was, that was wrong, because the, the whole thing that Dan told me, well, I didn't see it, is that he was trying to break it up the whole time, inside and outside. So, I don't believe he, I would have said that at, at all. Q.398 Can you think of any reason why these people would tell us these conversations in the manner in which they've told us and the substance of which they've told us. A. No, no. I can't think for any reason, pretty much, you know, just, trying, trying to piece together what, what happened ourselves I suppose. It was really, you know, I really had no idea what, what was going on, and you know, probably a lot of information that, that I've given you has been accumulated from, from these conversations." 28 There are then some further questions put to Mr. Stephens about his failure to come forward earlier with whatever information he was able to give the investigating police; and these further questions elicit the following response: "Q.400 Do you think that the information you had is important? A. Well, I didn't, didn't really think so. I, I thought, you know, that, that this guy, like, really, brought, brought it on him, on himself, and you know, I thought, you know he had the choice of, of walking down that, that alleyway, or charging into, into a, you know, group, group of guys, and, you know, I didn't really, really think of it, you know, it had anything to do with me. I thought there was a lot of people standing round there, that, that'd seen, seen more that what, what I saw, and you know, what I saw, through, through my blurry eyes was, I don't know, you know, how true or how, what it was that I saw. It was very, you know, difficult to, to remember, very difficult to, to even ------ even see, see what was happening. I don't know what, what time the, it took place or, but I can imagine it was pretty late and – ." 29 After some further questioning, the interview proper with Mr. Stephens concludes with his agreeing to take part in an identification parade, should it be possible to arrange one; and to be photographed by the police to the end of that photograph being shown, in an undifferentiated group of photographs, to potential identification witnesses. 30 Relevant for present purposes is the following sequence taken from the post-interview questioning of Mr. Stephens by the police officer then in charge of the police station: "Q.443 Have you, have the answers you have given in this interview been made of your own free will? A. Yeah, I believe so, yeah, I was perhaps pressured into, to making statements that I was unsure about but basically, yes. ……………………………………………………………….. Q.449 And do, and what do you mean by pressure, like --- A. Well, you know, you know just ----- Q.449 ------- A. A, a lot of things I, I was very uncertain about. Q.450 Mm. A. I saw it in a, I don't know what, some ungodly hour through, through drunken eyes in, in the dark and ----------- Q.451 All right. A. ---------------and I, I just felt that they were trying to be so specific, but I just wasn't, wasn't able to, to verify, yes or no, or, or whatever, because I just didn't really see the incident -------- Q.452 Alright. A. ----------- as clearly as, as they would have liked me to have seen it, or wanted me to see it." · The Potential Evidence of Guy Stephens: The Interview on 25 February 2002 with the Crown Prosecutor 31 Extensive notes were made either by the Crown Prosecutor or by the Crown Prosecutor's instructing officer of the detail of this conference. 32 The recorded answers of Mr. Stephens confirmed that he had been drinking heavily during the relevant period. He says at one point during the conference that, at the time at which he saw Mr. Portelli and Mr. Hansen running towards the group outside the Aspen Hotel, he, Mr. Stephens, was well affected by alcohol; that he could have had, by that stage, something like 26 drinks; that his actual recollection of Mr. Portelli running up to the group is "hazy", and that he "(c)ould not really see what was happening when he came to the group". 33 According to the conference notes, Mr. Stephens, when he arrived at the Aspen Hotel, saw inside that hotel his brother, the appellant, and Mr. Hillier. He saw also two girls playing pool, but did not know who they were. There were "two guys" at the pool table; they were "harassing the girls"; the girls were "annoyed with them", and "indicated by hand gestures: Leave us alone.". Mr. Stephens himself was "about 10 feet" away from that scene and was "looking the other way". He heard a commotion; saw that there was a fight in progress but "…..did not know which guy did what. It was not Troy or Dan. One guy was a blonde-haired guy and one was Craig Hansen". Mr. Stephens tried to separate the fighters; and Mr. Hansen "tried to pull me down with him", ripping his shirt in the process. According to Mr. Stephens, the appellant "was over the other side" and "(t)he only person I could say for sure was fighting, was Craig". 34 Mr. Stephens is recorded in the notes as having said that he could see Mr. Portelli "breathing heavily" with pupils "fully dilated". Mr. Portelli was visible "over Hansen's shoulder. They were about 10 feet away". As to the course of that particular fight, Mr. Stephens is recorded as having said that Mr. Portelli and Mr. Hansen "were out of control"; that, after his own encounter with Mr. Hansen and the tearing of his shirt, everything "settled down"; and that security guards told the appellant "and the other guys" to leave, which they did, walking out the front door of the hotel. At that stage, according to the conference notes, Mr. Stephens was talking to Mr. Hansen and to Mr. Portelli who thanked him for breaking up the fight. The doorman then "kicked them out the back". He himself walked out the front door of the hotel, made his way to Thredbo Terrace, and then saw Mr. Portelli "running on his own up the hill shadowed by Craig Hansen". 35 According to the notes, Mr. Stephens reaffirmed his dispute about his supposed conversation with Mr. Iverach; answered affirmatively a question: "You strongly support your brother?"; and in answer to a question: "Do you think you have a bias in support of your brother?", is recorded as having answered: "I wanted to be truthful. I was the first person to get to the wounded guy. I turned him over on his side to make sure his airway was clear.". · The Decision of the Crown Prosecutor not to call Guy Stephens: relevant events at trial 36 On 4 March 2002, the fourth day of the trial, there was a major forensic confrontation concerning the calling of Guy Stephens as a witness in the Crown case. The relevant exchanges occupy some 16 pages of trial transcript. It is convenient, for present purposes, to begin with the following submissions put by the Crown Prosecutor: "In relation to the Kneebone matter, I was able to obtain the case. I would just like to place on the record some facts that are pertinent to the course of the trial. In a correspondence directed to the solicitor for public prosecutions, the learned counsel for the accused Mr. Gibson inquired whether or not the Crown would call a person by the name of Guy Stephens who was present at the Aspen Hotel in the early hours of the morning on 1 August 1998. Your Honour is aware that this matter was listed for trial in November of last year and it is my instructions that Mr. Stephens was not available at that time in November. He was subsequently, to my knowledge, found by police investigating this matter on the last Friday – the Friday before the nominated Monday commencement of this trial. I think that was about 15 February. He was subsequently requested to attend Sydney for the purposes of this trial and when police spoke to him they served him with a subpoena to secure his attendance. I think it wasn't the 15th, it was 22 February because last Monday was the day that I held the conference, which was the following Monday after him being located on the Friday. On last Monday, 25 February, I held a conference with him in my chambers in the presence of my instructing solicitor, ……………… . During the course of that conference certain questions were put to him and answers were made. As a result of that conference, I formed a view that the Crown would not call him on the basis of his unreliability, untruthfulness and otherwise incredible witness. It goes beyond his account being merely inconsistent with another witness. I have been anxious to put these matters on the record in a timely fashion. I can indicate that the witness remains under subpoena if he is required to be called by either of the defence counsel. If your Honour wishes me to go into the reasons why I have formed that view, there are some particular reasons that I can expand on, if that's required." 37 The learned trial Judge indicated that her Honour did not see the need for any such expanded reasons. 38 Learned counsel then appearing for the present appellant, (not being learned Senior Counsel who argued the appeal on behalf of the appellant), then addressed on the issue. The kernel of counsel's argument appears, as it seems to me, in the following submissions: "Can I say that Guy Stephens's account not only is, prima facie, consistent and truthful, but it is also exculpatory in many respects of Troy Gibson, and incriminatory of a man called 'Pep', who I apprehend Mr. Scott doesn't even believe exists. He's the informant of the case. I refer specifically to Mr. Scott's answers on that particular issue in the voir dire." 39 The lengthy and strenuous submissions of defence counsel focused essentially upon the following propositions: first, that no satisfactory explanation had been given by the Crown Prosecutor for her decision not to call Guy Stephens as a witness in the Crown case; secondly, that section 38 of the Evidence Act 1995 provided, in any event, every proper protection for the fair and complete presentation of the Crown case should Guy Stephens be called as a witness in that case; thirdly, that the Crown Prosecutor had a so-called "case theory" and was shaping the Crown case, deliberately and improperly, so as to fit that preconceived theory; fourthly, that, were Guy Stephens not to be called as a witness in the Crown case, a miscarriage of justice would inevitably follow in the case of the present appellant; and fifthly, that given the foregoing considerations, it was up to the learned trial Judge to do something herself in order to avoid such a miscarriage of justice. Various proposals were canvassed in this latter connection; but it is not necessary now to consider them in detail. 40 Counsel for the appellant's then co-accused, having indicated that he was not intending to call Guy Stephens or to seek to tender the electronically recorded interview between that person and the investigating police, learned counsel appearing for the appellant made further submissions. The conclusion of those submissions put, in relation to the calling of evidence from Guy Stephens, the following propositions: "I am going to press this evidence, as I am instructed to do – I know ……………… (counsel at trial for the co-accused Mr. Daniel Stephens) ………….. has addressed on the record his concerns about it – so I am just flagging that I intend to press the evidence. If my friend is not going to call him, then we will call him. The implications on ………….. (the co-accused's counsel's) …………… is something that may yet have to be canvassed. I am making that clear for ………….. (the co-accused's counsel) …………". 41 During the course of submissions, and after the appellant's co-accused's counsel had indicated his attitude towards the calling of Guy Stephens, learned counsel for the appellant pressed once again for an expanded explanation from the Crown Prosecutor of her decision not to call Guy Stephens as a witness in the Crown case. The Crown Prosecutor then made the following statement: "I can say in broad terms I formed the view that he was – and I want to go to the words – unreliable, untrustworthy and otherwise incapable of belief. In general he has given inconsistent accounts. He agreed that his level of intoxication was indeed such that he had had more than 26 glasses of alcohol during that evening and one of his aims that evening was to get as much alcohol into himself as possible, that his recollection was hazy, and vague, that he had spoken to a lot of people in town about these events and people who had been interviewed by the police, and that the Crown formed the view that he had a clear allegiance to the accused Mr. Daniel Stephens. For those reasons, after a conference held on 25 February 2002, I formed the view that he would be an unreliable, untrustworthy witness and incapable of being put forward to the jury as a witness of truth." 42 On the following morning, 5 March 2002, learned trial counsel for the appellant returned to the issue. Counsel made an application that the trial be stayed temporarily until the Crown indicated that it would call Guy Stephens as a witness in the Crown case. 43 Opening his submissions in support of the application, counsel said this: "……………………………………… (I)n my respectful submission the only possible reason for failure to call Guy Stephens is a tactical advantage. That is an improper basis on which to fail to call someone who on all the information we have, is wanting to be truthful and capable of giving an eye-witness account and was some way involved in the first fight inside the pub. He was present and observant in relation to the altercation outside the public house and who says in response to the Crown question – Do you think you have a bias, as in support of your brother? I want to be truthful - prima facie his record of interview is, with respect, truthful. My friend, I can hear, is obviously concerned about my assertion there is an improper tactical advantage being sought here but on the information we have and your Honour has there can be no other proper inference and to that extent that is an improper basis on which to fail to call Guy Stephens. ………………………: 44 As counsel developed his submissions, it was suggested to him by the learned trial Judge that Guy Stephens, even if not called as a witness in the Crown case, was available, nevertheless, to be called in the appellant's own case. Counsel resisted strenuously any such suggestion. He explained as follows what he saw as being the unfairness of his being put in such a position: "If my friend wants to adhere to this particular decision, then the only other way – if your Honour is not minded to grant the application – then the only other situation is to separate the two accused in the dock, so at the end of the day evidence admissible to Troy Gibson's defence, but opposed by ………(counsel for the co-accused) ……., can be run in the ordinary course of events. The difficulty of calling Guy Stephens where only one accused is involved is far less than the difficulty of an injustice that will arise in calling him, sandwiched as we are between a Crown who says that he is unreliable, and counsel for Daniel Stephens who obviously does not favour the reception of the evidence. Can I suggest, and I don't know his instructions, but there is absolutely nothing on the papers to suggest that he is unreliable, certainly not more so than any other witness who was there that night drinking in the way we can see." 45 These submissions drew from the Crown Prosecutor the following response: "I will just repeat the situation that I had a lengthy conference, lengthy in terms of approximately half-an-hour to 45 minutes, with Mr. Guy Stephens on 25 February 2002 in the presence of my instructing solicitor. I had in fact the case of Kneebone with me. I made reference to that case in the conduct of the interview. I took Mr. Guy Stephens to various aspects of his interview and various other aspects of the events of the night. I tested him in relation to some aspects of his recollection. I asked him particular questions, and after that conference I conferred with my instructing solicitor and I came to the view that I put forward yesterday, for the various reasons that I outlined, including internally inconsistent accounts with other eye-witnesses, excessive level of intoxication and inconsistency, that his recollection was vague and hazy, an assertion that he was supporting his brother, an account which included conferring with various other people and listening to town scuttle-butt. In addition your Honour to those matters, there was also a view based on the witness's general demeanour and attitude, and it's my respectful submission in forming the judgment that I am entitled and must come to, in forming my decision whether or not to call a witness in the Crown case I took those matters into account, including his demeanour and attitude, and I formed a view that the witness was not capable or was not a witness that the Crown could put forward confidently as a witness of truth, that his recollection was unreliable, his account was untrustworthy, and I made a considered and deliberate decision in carrying out my obligations according to the law and according to the Bar Association rules which bind me as a Crown Prosecutor, and I reject the suggestion by my learned friend that I engaged in a tactical manoeuvre." · The Decision of the Crown Prosecutor not to call Guy Stephens: Relevant Principles 46 These are stated definitively for Australian Courts by the decision of the High Court of Australia in The Queen v Apostilides (1984) CLR 563. The propositions of particular relevance in the present case are as follows: "1. The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. ………………………………………. 6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice." [154 CLR 575] 47 These two basic propositions are further developed and explained by the High Court as follows: "We have not attempted in our first proposition to deal exhaustively with the responsibility of the prosecutor. The description of that responsibility, …………….., emphasises that the prosecutor's role in this regard is a lonely one, the nature of which is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system. It is not only a lonely responsibility but also a heavy one. A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment, but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined. ……………………………………………………………………………. In our formulation of the sixth proposition we have omitted .. [a] .. reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome. It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice. No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being called. In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness. Nevertheless, the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred. …………………………………… So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the central question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory." [154 CLR, 577, 578] 48 The foregoing propositions were the subject of examination and comment by a Bench of this Court, (Spigelman CJ, Greg James J and Smart AJ), in R v Kneebone (1999) 47 NSWLR 450. It was this decision to which reference was continuously made in the shorthand form "Kneebone" during the course of the relevant submissions at trial. During the course of argument at the hearing of the present appeal, there was comment to the effect that the decision in Kneebone can be regarded as having expanded further the propositions established by the decision in Apostilides. As at present advised, I am not persuaded that such is the case; but I do not think that it is necessary to become embroiled in that particular technical argument. The fact is that as matters stand the guiding Australian authority is the decision of the High Court in Apostilides; and I see no reason to travel for present purposes beyond the propositions of law there established by the High Court. 49 I do think, however, that for present purposes it is useful, in applying the Apostilides principles, to bear in mind something said by the Privy Council in a recent advising: Randall v The Queen [2002] 1 WLR 2237 at 2243: "It cannot be too strongly emphasised that these are not the rules of a game. They are rules designed to safeguard the fairness of proceedings brought to determine whether a defendant is guilty of committing a crime or crimes, conviction of which may expose him to serious penal consequences. In a criminal trial as in other activities the observance of certain basic rules has been shown to be the most effective safeguard against unfairness, error and abuse." 50 The gravamen of the present appeal being the proposition that there has been in fact a miscarriage of justice, it is useful to re-affirm what is meant by that expression. 51 The relevant principles are conveniently examined by the High Court of Australia in Wilde v The Queen (1988) 164 CLR 465, and in particular in the joint judgment of Brennan, Dawson and Toohey JJ at 371-373. It is there explained that there are, broadly speaking, two types of situation apt to be described as a miscarriage of justice. 52 First, there is the case of a trial, the conduct of which has involved an error so fundamental that it can be said reasonably that "…….. the proceedings before the primary court have so far miscarried as hardly to be a trial at all". Error of this kind is "radical or fundamental". It entails an irregularity "….. which is such a departure from the essential requirements of the law that it goes to the root of the proceedings". In a case of this kind, it is not necessary to establish anything beyond the fact of the "radical or fundamental" error, in order to establish a miscarriage of justice. Brennan, Dawson and Toohey JJ, examining and explaining this particular type of miscarriage of justice, say: "There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. ………………… In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances." 53 Secondly, is the case of a trial in which there has been "a departure from the requirements of a properly conducted trial", and it cannot be said that the particular appellant has thereby not lost, quoting from other and earlier decisions of the High Court, "a chance which was fairly open to him of being acquitted", or "a real chance of acquittal". Of this particular type of miscarriage of justice, Brennan, Dawson and Toohey JJ say: "Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside ………………… . Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence strictly followed ……………. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case." See also the discussion in Festa v The Queen [2001] HCA 72 (13 December 2001). · The Decision of the Crown Prosecutor not to call Guy Stephens: has the Appellant demonstrated a Miscarriage of Justice? 54 Two aspects of this question can be despatched, in my opinion, in short order. 55 First, any criticism of the conduct at trial of the Crown Prosecutor, being criticism which amounts in substance to an accusation of professional misconduct on her part, should be, in my opinion, firmly rejected. The reasoning of the Crown Prosecutor was fully exposed in her submissions to the learned trial Judge. There is, so far as I can see, no evidence whatsoever from which there could be drawn a rational inference that any part of what was thus said by the Crown Prosecutor was untruthful. Neither, so far as I can see, is there any evidence from which it would be possible to draw a rational inference of improper motive; or of deliberate unfairness or impropriety of any other kind. 56 Secondly, the material before this Court could not support, in my opinion, a rational conclusion that there had been a miscarriage of justice in the sense that "the proceedings before the primary court have so far miscarried as hardly to be a trial at all". 57 The question now to be decided becomes, thus, whether the appellant has demonstrated that the fact that Guy Stephens was not called at all at the trial entails that there has been a miscarriage of justice in that, had Mr. Stephens been called, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would not inevitably have found the appellant guilty on counts 2 and 3 of the indictment. 58 Before embarking upon that assessment which the law requires this Court now to make of the facts of the appellant's particular case, it is expedient to note the following matters: [1] Mr. Portelli, one of the victims, was called at trial; but was unable, because of post-traumatic amnesia, to give any useful evidence in connection with the events of 1 August 1998. [2] Fundamental to the exercise is a particular assessment of the evidence which it is reasonable to suppose Mr. Guy Stephens could and would have given had he been called as a witness at trial. The making of that particular assessment by this Court is no easy task. All that the Court has is a transcript of Mr. Stephens' electronically recorded interview with the police; and a transcription of the notes taken in connection with the Crown Prosecutor's interview on 25 February last. All that this Court can do is to proceed upon the assumption that Mr. Stephens, had he been called as a witness at trial, could and would have given evidence to the effect of his statements in the two interviews. [3] An assessment of the contents of the transcript of the police interview presents a number of difficulties. The police questioning is, as it seems to me, poorly structured. Mr. Stephens' recorded answers are for the most part barely articulate. It seems that the interview was electronically recorded, as it progressed, on audio tapes but not on video tapes. This Court has not heard the audio tapes themselves played. It is, therefore, impossible for this Court to come to any rational conclusion about the demeanour of Mr. Stephens throughout his interview; or about the potentially very important question whether his apparent inarticulateness is a mark of evasiveness; or is the mark, merely, of natural nervousness; or, indeed, is the result of some actual speech impediment. [4] Much the same can be said about the present assessment by this Court of the contents of the conference notes of February last. The notes themselves are, understandably, cast in a very summary form. There is no way for this Court to assess for itself whether it shares the adverse view taken by the Crown Prosecutor of Mr. Stephens' demeanour during the course of the conference. [5] Had Mr. Stephens been called as a witness at trial, the impact of his evidence might have depended significantly upon the way in which his evidence was elicited. Had the Crown called Mr. Stephens, either as a witness in the Crown case or for the purpose only of presenting him for cross-examination by counsel for the two accused, it is safe to say that it would not have taken the jury very long to understand that the Crown was not putting Mr. Stephens forward as a witness of truth; an impression likely to have been reinforced by the practically certain need for the Crown to seek leave to cross-examine its witness pursuant to section 38 of the Evidence Act . It is not likely that the jury's view of Mr. Stephens, as a witness of truth, or as a reliable witness, would have been enhanced by two further cross-examinations by counsel appearing, respectively, for the two co-accused. 59 Bearing in mind all of the foregoing considerations, my relevant assessment is: [1] The significant questions which were controversial at the trial, and as to which it is relevant to consider what evidence Mr. Guy Stephens could have given had he been called as a witness at trial, are: (1) What caused the fight inside the Aspen Hotel? (2) Who struck the first blow? (3) Who struck, thereafter, what blows to whom? (4) How was that fight brought to an end? (5) What were the relevant movements thereafter of any of the persons who were involved in the later fight in Thredbo Crescent? (6) What caused that fight to break out? (7) Who struck the first blow? (8) Who struck any blow(s) to either Mr. Portelli or Mr Hansen? [2] A fair reading of the recorded interview, and the conference notes of February last, suggests that Mr. Stephens could not say anything useful about the questions numbered above (2), (3), (7) and (8). [3] As to the question numbered (1), it seems to me that Mr. Stephens cannot say anything more than he says in his answer to question 174 in his recorded interview: that is to say, that his best recollection is that immediately before the outbreak of the fight inside the Aspen Hotel there was "a lot of tension" ; and that the tension derived from some aggressive interaction between Messrs. Portelli and Hansen, on the one hand, and the appellant and his friends, on the other hand. It was not controversial at the trial that things had been somewhat tense immediately prior to the outbreak of the scuffle inside the Aspen Hotel. What was controversial at the trial is what actually triggered the undoubted exchange of blows that occurred inside the hotel. It seems to me that Mr. Stephens, upon a fair reading of the interview and conference notes, has nothing precise to say on this topic. [4] As to the question numbered (4), it is fair to say that Mr. Stephens gives in his recorded interview a version of his having assisted to break up the initial scuffle. According to Mr. Stephens, he actually shook hands with both Messrs. Portelli and Hansen, both of whom thanked him for his assistance in breaking up the scuffle. That material, if accepted, does not seem to me to strengthen the version given by the appellant in his evidence of the course of events in connection with the scuffle inside the Aspen Hotel. The way in which Mr. Stephens describes the relevant sequence is as consistent, in my opinion, with Messrs. Portelli and Hansen not having been the aggressors, as it is consistent with the contrary inference. [5] As to the question numbered (5), the appellant's own version was that he was "grabbed around the waist" and pulled back, he thought by "a bouncer" , from the melee then in progress on the floor of the Aspen Hotel. The appellant says that: "I was saying 'look, mate, it's alright, it's okay, you know, I'm not going to do anything,' and he said 'well, can you just leave the front?" The appellant's version was that he then walked peaceably out of the Aspen Hotel; and that, presently, another man who had been involved in the fight inside the hotel was forcibly ejected from those premises. This man was described by the appellant in his evidence as having been about 6 feet in height with blonde-coloured hair and a medium to large build. The appellant narrated in his evidence some conversation which he says that he had with this other man, but its details are not at present significant. The appellant's version then has him standing at the front of the Aspen Hotel on what he describes as "this little platform there" , and "trying to indicate to Jasmine and Troy (sic) that I was out there and I was not coming back in" . The appellant's evidence at trial was to the effect that, thereafter he began to walk home. He described his then motivation as having been: "I couldn't care less. I just wanted to go home, just finish" . His evidence was that his co-accused, Mr. Guy Stephens' brother, had caught up with him shortly after he began to walk home, and that the two of them had thereupon begun walking up the hill in Thredbo Terrace towards the point where the second, and more serious, fight subsequently erupted. Mr. Guy Stephens, in his answers to questions 179 through 188, seems to be suggesting that the appellant did not walk alone out of the Aspen Hotel, but "split" in company with his co-accused, Mr. Daniel Stephens, the man known only as "Pep" , and "a few, few other people" who appeared to be "all his mates" . Mr. Stephens does not give any apparent support to the appellant's version as to his, the appellant's, having stood outside the Aspen Hotel making signs of the kind that the appellant described in his evidence. [6] As to the question numbered (6), Mr. Guy Stephens does have something to say in his recorded interview. The relevant material is contained in his answers, previously herein quoted in full, to questions 80, 223 and following, and 246 through 250. The appellant's own version in his evidence-in-chief is this: Q. "Then what happened? A. We walked around the corner of the hotel along the side of the footpath. Up the road, I believe it is the Terrace, Thredbo Terrace, we started going up the hill. There were some other people in the pub I noticed that were walking around behind us. Q. Were you running? A. No, definitely not. Q. How were you walking? A. Just walking at a normal pace that you do in the winter. Q. Go on? A. We walked up along the side in between the road and the footpath there and got to the crest of the hill part where I saw two people running up the back laneway or back entrance to the shops. At first I did not really think anything of it at all and just kept on walking. As I saw them come up closer they started yelling out 'There they are. Look who we found here', and as they got to the top of the road as it connects just like right across there they were really running. Then I noticed there was a blonde guy and they halted from their running for a second and I saw the blonde guy looking at me and he started just charging straight at me. I scampered a little bit to the left - Q. Scampered? A. Stepped, where he tackled me to the ground. I wrestled with him for a little while on the ground. I was trying to get away from him. He was pretty pumped up I think and I managed to get him off or someone helped him off me and I looked over to my right where I saw this, this guy there had a green jumper on and there was a man on the ground, face on the ground, and he was jumping up and down on him with both feet. I got to my feet as quickly as I could and I just ran at this guy and pushed him, pushed him off. He was really jumping on this guy and then from there I ran back because I didn't know what, how he would react to me pushing him. Q. Did you say anything? A. I was yelling out 'that's enough, that's enough'. I was yelling as hard as I could. Q. You looked across and saw this man. Was that the first time you had seen him in that area? A. Yes it was. I had not seen him prior to that. Q. Then what happened? A. I ran back, well I came back and the guy that tackled me to the ground was still trying to get at me and Jason, I believe it was Jason Robinson, was holding him sort of, I don't know, holding him or pushing him and pushing me back down the street. Q. Were there other people around aside from the people you nominated, at that point? A. Yes there was, just in that area there would have been ten, at least ten people." The appellant's version, as I read it, suggests that Messrs. Hansen and Portelli stalked and then attacked the appellant at a time when he was in the company of his co-accused, Mr. Daniel Stephens. On this version, the first act of overt aggression was that of Mr. Hansen in tackling the appellant to the ground. It is not clear from the appellant's version how it came about thereupon that a very ugly fight erupted involving a group in the order of ten people. This version does not seem to me to be supported in any significant way by the version given by Mr. Guy Stephens in his recorded interview. The latter version has, not Mr. Hansen, but Mr. Portelli charging "at a rampant pace" , and hurling himself in a virtual frenzy upon a much larger group of men in a fashion that caused Mr. Stephens to ask himself spontaneously: "………. What the hell is he doing?" . [7] It seems to me that, had Mr. Guy Stephens been called as a witness at the trial, and had he given evidence generally in accord with his answers recorded during the police interview, then he would have had nothing of practical utility to say as to most of the significant questions to which I have earlier referred; and insofar as he would have said something of potential practical worth, what he would have said would not have sat comfortably with the corresponding portions of the appellant's own evidence. Had Mr. Stephens been called, and had he not adhered to his version as given to the investigating police, then, in my opinion, it would have been, to say the least, highly likely that the Crown would have been given leave to cross-examine upon the basis of the prior inconsistent statement, a procedure which was at least as likely to damage the appellant's case as to strengthen it. It seems to me that it would have been in the highest degree likely that any such adverse effect would have been enhanced by a further cross-examination of Mr. Stephens by counsel for the appellant and for his co-accused. [8] For the whole of the foregoing reasons, I have come to the conclusion that the appellant has not demonstrated that the failure to call Mr. Guy Stephens as a witness at trial entailed, in the sense earlier herein discussed, a miscarriage of justice. 60 I would not uphold Ground 2. Ground 3 61 The ground is: "Her Honour erred in admitting evidence of the identification of the Appellant, following a confrontation between him and the witness Craig Hansen on the steps of Jindabyne Police Station, in circumstances where the witness would reasonably have believed the Appellant to be a suspect person." 62 An extensive hearing on the voir dire was conducted by the learned trial Judge upon this issue. The relevant facts can be taken, as follows, from her Honour's judgment on that voir dire: "On 5 August 1998, Mr. Gibson attended Jindabyne Police Station with his mother and a solicitor, Mr. Marcus Galanos. There they spoke to detective David Scott, who at that stage was the officer in charge of the investigation. At the conclusion of the interview the group walked out of the police station. On the voir dire the Crown called Mr. Craig Hansen, Detective David Scott and Mr. David Portelli and tendered various exhibits. Mr. Hansen and Detective ……….(Scott) …….. were extensively cross-examined. Mr. Hansen testified that having travelled from Sydney, he stopped in at the police station to check on the progress of the investigation. He was returning to work at Crackenback Resort. As he walked towards the entrance of the station he saw the accused, Troy Gibson, and recognised him 'almost immediately' as 'the blonde man from the Aspen Hotel'. He reported this observation to Detective Scott within minutes of entering the station. Detective Scott gave evidence that, having ushered the accused, Mr. Gibson, his mother and Mr. Galanos out of the police station, he remained standing at the front counter of the police station. He saw Mr. Hansen, who at that time was unknown to him, walk up the steps and look to his right at Mr. Gibson, who also looked to his right, apparently at Mr. Hansen. When Mr. Hansen entered the police station Detective Scott asked, 'What was that look about?', to which Mr. Hansen replied, 'I'm sure he's the man who punched Clint'. Detective Scott asked, 'Where did you see him?'. Mr. Hansen replied, 'first inside the Aspen. He' the blonde man who walked up to Clint and punched him outside'. Mr. Portelli's evidence, in summary, was that he did not and could not have communicated to police that Mr. Hansen was going to attend Jindabyne Police Station on 5 August 1998, as he did not know that that was the latter's intention. Counsel for the accused tendered a large number of statements and called the accused, his mother Mrs. Dianne Gibson, and his solicitor Mr. Marcus Galanos. The evidence of each of these witnesses was that no-one was seen to enter the police station at any time during the group's visit and departure." 63 The learned trial Judge, in her Honour's judgment on the voir dire, notes a submission by counsel appearing at trial for the present appellant that "……………….. the question for me is not whether this encounter occurred, but whether the identification was made without Mr. Hansen having been intentionally influenced to identify the accused". 64 This perception was, as I respectfully think, correct. An issue as to whether the encounter ever occurred at all was not, upon an approach correct in principle, a matter for a voir dire examination; but was a simple question of disputed fact proper to be left to the jury. 65 On the contained issue, as correctly defined, her Honour made findings of fact as follows: "I accept the evidence of Mr. Hansen and Detective Scott that the former had no prior arrangement to go to the police station, and I accept Mr. Hansen's evidence that he made a spontaneous decision to call in there on his way back from Sydney and had what was a chance encounter with the accused outside the police station. Although counsel for the accused pointed to discrepancies between the evidence of Mr. Hansen and Detective Scott to found a submission that I would have real doubts about their evidence, those discrepancies, in my view, are readily explicable given the period of time which has now elapsed – namely, approximately three and a half years. As I indicated earlier, both these witnesses were extensively cross-examined and both were unshaken, in my view. I am satisfied that Mr. Hansen made the identification without having been intentionally influenced and, therefore, the evidence is admissible under section 114 of the Evidence Act." 66 In my opinion this Court could not now say reasonably that the foregoing findings of fact, made with the advantage of having seen and heard the particular witnesses, were not reasonably open to her Honour. 67 It became, then, necessary for her Honour to consider the effect of sections 135 and 137 of the Evidence Act. Her Honour's judgment exposes a clear and rational process of reasoning in connection with her Honour's approach to the application of these two sections. In my opinion it has not been shown that her Honour fell into error in her analysis of the proper application to the given facts of either section 135 or section 137 of the Evidence Act. 68 I would not uphold Ground 3. Ground 4 69 The ground is: "In circumstances where there was no issue as to the fact and nature of injury suffered by the victim, Her Honour erred in admitting evidence of photographs taken of the victim in Hospital following the assault upon him, and in permitting the Crown to call the victim as a witness in the case although it was know that he had no recollection at all of the relevant events." 70 The victim referred to in this ground is Mr. Portelli. It was not controversial at the trial that Mr. Portelli had been savagely assaulted in a way that had caused him serious injuries having serious continuing consequences for him. 71 As to the admissibility of the evidence of Mr. Portelli, there was a voir dire hearing in connection with which her Honour gave a judgment, part of which reads: "A fact in issue in the trial is whether either of the accused was a person who was responsible for the injuries inflicted upon Mr. Portelli. Mr. Portelli's evidence is relevant to that fact in issue as it explains his inability to give any account of the events in question, including any identification of his attackers. Evidence is not taken to be irrelevant only because it relates to a favour ….[sic: but read failure]……... to adduce evidence, see section 55(2)(c) of the Evidence Act [1995]. The probative value of the evidence is slight, however, there is no danger of unfair prejudice to the accused. The jury will be instructed in the summing-up that they must decide the case without sympathy or prejudice. As McHugh J said in R v Gilbert [2000] HCA 15, paragraph 31: 'Unless we act on the assumption that criminal juries act on the evidence in accordance with the directions of the trial judge, there is no point in having criminal jury trials.' " 72 In my opinion this analysis was correct both in law and in fact. 73 As to the photographs, her Honour delivered a separate judgment in which, among other things, her Honour said: "In my view the photographs are relevant to two facts in issue, namely, whether the injuries were inflicted with the intention of inflicting grievous bodily harm and, secondly, whether grievous bodily harm was inflicted on the victim. The photographs are highly probative of those facts in issue. As the Court said in R v Allen, CCA, unreported 1 December 1992: 'Photographs usually have a high probative value. They make clear to the jury what no amount of oral description can make clear and they are direct evidence of the injuries which they are tendered to prove.' Any danger that the photographs, if admitted, will give rise to the danger of unfair prejudice to the accused will be cured by a direction I will give to the jury before they are admitted and which I will repeat in my summing-up. In my view the probative value of the photographs is not outweighed by the danger of unfair prejudice to the accused and they will be admitted into evidence. Before they are admitted I propose to give the jury what I regard to be an appropriate direction and warning as to how such photographs will be dealt with." 74 In my opinion this approach of the learned trial Judge was correct. No present complaint is made that her Honour did not do, or did not do adequately, what she had undertaken to do in the matter of giving relevant directions to the jury. 75 I would not uphold Ground 4. Ground 1 76 The Ground is: "The verdict of guilty of malicious wounding (s.35 Crimes Act 1900) is unreasonable having regard to the evidence (Criminal Appeal Act 1912, s.6(1) ). 77 The written submissions of the appellant indicate that the success of this ground depends upon the success of some or all of grounds 2, 3 and 4. 78 Since I am of the opinion that none of grounds 2, 3 and 4 has been established, it follows that, in my opinion Ground 1, also, has not been established. The Application for Leave to Appeal against Sentence 79 It is convenient to quote the following extract from the written submissions of the appellant: "The Sentence imposed is manifestly excessive. Her Honour erred in not giving sufficient weight to the accused's previously good character, the time delay, rehabilitation or the fact that Gibson was not the kicker. Her Honour erred in law in imposing a custodial sentence in relation to the Hansen account [sic] as such was not warranted and, in partially accumulating the sentence." 80 It is useful to quote the following passages from the clear and careful remarks on sentence of the learned sentencing Judge: "The offender gave evidence in the trial. He gave an account of the events preceding and on Thredbo Terrace which clearly the jury must have rejected. The offender's culpability in this event is extremely high. Whatever else might be said about the incident inside the Aspen Hotel it was in itself quite minor. The offender had ample time to cool off after it, but he waited for the unsuspecting victims to leave in order to confront Clinton Portelli to exact revenge for some perceived slight or injustice. Not only did he wait, I am satisfied beyond reasonable doubt he was the ringleader of this joint criminal enterprise. The offender is to be sentenced on the basis that he intended to cause Mr. Portelli some bodily harm. He is entitled to the full benefit of his acquittal of the more serious charge that he intended the grievous bodily harm that was inflicted. I am not satisfied beyond reasonable doubt that he kicked Mr. Portelli to the head but he remained there aiding and encouraging those who did at a time when Mr. Portelli was lying defenceless on the ground as a result of his blows. This can only be described as a premeditated, cowardly and vicious attack by a larger group of at least four men on two others. The community rightly expects that those who inflict gratuitous violence on its innocent citizens will be appropriately punished. The sentences must reflect considerations of general and specific deterrence." 81 The submissions put for the appellant do not challenge in any specific way any of those findings of fact made by her Honour. In my opinion the findings were amply open to her Honour on the whole of the evidence before her. 82 It is not submitted that her Honour failed to take account at all of previous good character, time delay, rehabilitation, or the fact that the appellant was not the person who actually did the kicking to Mr. Portelli's head. What is contended, rather, is that it is plain on the face of the sentences passed upon the appellant that her Honour cannot have given proper consideration to those matters. 83 I do not accept that submission. 84 The attack on Mr. Hansen was, in the given circumstances, bad enough; but the attack upon Mr. Portelli was very much more serious. Mr. Portelli had to be brought by helicopter from Cooma to Sydney, such was the severity of the injuries inflicted upon him. He suffered a severe head injury, fractures to the right orbit and zygoma bones, fractures to the base of the skull on the right side, pneumothorax, lung contusions and anterograde and retrograde amnesia of the event. He required in-patient care at the brain injury unit at Ryde Rehabilitation Centre. 85 The consequences to Mr. Portelli of what was done to him were described by the learned sentencing Judge, with every justification in my opinion, as "catastrophic". Her Honour details, in her remarks on sentence, the consequences thus: "……………….. (H)e has permanent brain damage; he suffers from post-traumatic psychosis which is directly attributable to the assault and which is anticipated to be long term and which has required several admissions to a psychiatric hospital. He is on anti-psychotic medication which is anticipated to be for a long-term period. He has significant cognitive dysfunction with agitation, distractibility, reduced memory and reduced language skills. He has ongoing high level balance problems. He has changed from an independent young man working as a chef, to a man dependent on his family and unable to work in his previous occupation, or at all, since the assault. Long term parental, family, friend or agency support will be required for his accommodation, meals, clothing, finances etcetera. Doctor Norrie, his family doctor, noted his life achievement potential has been severely reduced by the assault." 86 It must surely go without saying that an assault which produces consequences of that kind calls, even after every proper allowance is made for relevant subjective matters, for the imposition of a severe sentence. I do not think it can be said reasonably that a sentence of 4 years and 6 months is an excessive head sentence in such a context, and bearing in mind that the statutory maximum penalty is imprisonment for 7 years. 87 The submission that the learned sentencing Judge erred in law in imposing a custodial sentence at all in relation to the attack carried out on Mr. Hansen, cannot, in my opinion, be responsibly accepted. To accept that submission would be tantamount to sending a signal into the relevant parts of the community that concerted attacks upon two separate victims are no more culpable, and no more punishable, than a concerted single attack upon one only of those victims; provided only that the separate attacks take place at, or more or less at, the same time. It seems to me that such a proposition is plainly unsustainable, both as a matter of law and as a matter of good sense. 88 The submission that the learned sentencing Judge erred in law by partially accumulating the sentences is, also, a submission that I do not accept. Her Honour's approach to the partial accumulation of the sentences seems to me, with respect, to have held a fair and sensible balance between the need, on the one hand, to punish and deter two distinct attacks upon two separate victims; and, on the other hand, the need to respect the principle of totality by not simply accumulating both sentences. 89 There is no particular attack made upon the non-parole period fixed by her Honour. In my respectful opinion it does not depart from the fair exercise of the relevant sentencing discretion. Orders 90 For the whole of the foregoing reasons I propose the following orders: [1] That the appeal against conviction be dismissed. [2] That leave be granted to appeal against sentence. [3] That the appeal against sentence be dismissed. 91 HOWIE J; I agree with Sully J. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.