New South Wales Court of Criminal Appeal CITATION : R v MARTIN [2002] NSWCCA 290 FILE NUMBER(S) : CCA 60897/01 HEARING DATE(S) : 11 July 2002 JUDGMENT DATE : 23 July 2002 PARTIES : Appellant - Peter Leslie Martin Respondent - Crown JUDGMENT OF : Sheller JA at 1; Dowd J at 70; Carruthers AJ at 71 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/51/0016 LOWER COURT JUDICIAL Ducker DCJ OFFICER : COUNSEL : A J Bellanto QC - Appellant P J Power - Crown SOLICITORS : James Fuggle - Appellant S E O'Connor - Crown CATCHWORDS : CRIMINAL APPEAL - application for extension of time to appeal - appeal against conviction - whether verdict was unsafe - Grevious bodily harm - blood DNA evidence - explanation for presence of blood - alibi - evidence of good character - confession evidence LEGISLATION CITED : Criminal Appeal Act 1912 CASES CITED: R v Markuleski (2001) 52 NSWLR 82 DECISION : Extend the time to appeal up to and including the date of the filing of the notice of appeal.; Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60897 of 2001 SHELLER JA DOWD J CARRUTHERS AJ REGINA v Peter Leslie MARTIN Judgment The appellant applied for an extension of time to appeal against his conviction on 28 September 2001 by a jury in the District Court in Lismore on two charges. The first charge was that on 3 July 1998 he maliciously inflicted grievous bodily harm upon Gary Edwards with intent to do grievous bodily harm. The second charge was that on the same date he maliciously wounded Eli Edwards with intent to do grievous bodily harm. Both charges arose from the appellant's involvement with two other men in an attack on Gary and Eli Edwards. One of the assailants, Colin Stevens, was subsequently convicted for his role in instituting and coordinating the attack. The appellant denied that he had been involved in the incident. The appellant was arrested after the police identified his blood on a bat used in the assaults and on the inside of the left shoe which was worn by Stevens during the assaults. The appellant sought to explain the presence of his blood on these articles by arguing that the blood must have been spilt during the afternoon of the day of the assaults after a wound he had sustained to his left index finger on the day prior had bled when he accompanied Stevens to Stevens's farm. The appellant relied on this explanation; an alibi which was supported by his wife; the uncontested evidence of his good character; and the evidence of Stevens, who named two other men as the people who accompanied him to commit the assaults. The Crown case was based on the blood/DNA evidence and the testimony of the appellant's former business partner who claimed that the appellant had made confessions to him as to his involvement in the attacks. The appellant challenged the reliability of the evidence of his former business partner on the basis that the animosity between them was such that his evidence was untruthful. It was argued on appeal that the verdict was unsafe in that the jury should have found reasonable doubt in relation to the guilt of the appellant. HELD (per Sheller JA, Dowd J and Carruthers AJ concurring) 3. The appellant's attack on the verdict amounted to no more than saying that the Crown's case could not safely and beyond reasonable doubt be accepted in preference to the appellant's denial that he took part in the assault, his alibi supported by his wife's evidence and an innocent explanation for the presence of his blood. 3. The Court applied the test identified in R v Markuleski (2001) 52 NSWLR 82 at 87-88. The jury heard the evidence of all the witnesses and saw them give it. Upon the whole of the evidence it was open to the jury to be satisfied beyond a reasonable doubt that the appellant was guilty of the offences charged. 3. An extension of time up to and including the date of filing of the notice of appeal was granted. The Court dismissed the appeal. ORDERS 1. Extend the time to appeal up to and including the date of the filing of the notice of appeal. 2. Appeal dismissed. ********** IN THE COURT OF CRIMINAL APPEAL 60897 of 2001 SHELLER JA DOWD J CARRUTHERS AJ Tuesday, 23 July 2002 REGINA v Peter Leslie MARTIN Judgment 1 SHELLER JA: The appellant, Peter Leslie Martin, applies for an extension of time to appeal against his conviction on 28 September 2001 by a jury in the District Court in Lismore on two charges. The first charge was that on the 3 July 1998 at Alstonville he maliciously inflicted grievous bodily harm upon Gary Edwards with intent to do grievous bodily harm to him. The second charge was that on the same date he maliciously wounded Eli Kabe Edwards with intent thereby to do grievous bodily harm to him. The presiding judge, his Honour Judge Ducker, on 8 November 2001 for the first offence imposed a sentence of three years and six months imprisonment to date from 28 September 2001 with a non-parole period of two years and for the second offence imposed a sentence of two years and six months imprisonment to date from 28 September 2001 with a non-parole period of one year and nine months. An appeal by the Crown against these sentences was abandoned. The Crown case 2 A summary of the Crown's case is as follows. At approximately 8.15pm on 3 July 1998 three men entered the property of Gary Edwards and his son, Eli Edwards, at 8 McGill Place, Alstonville. The men wore balaclavas. One was armed with a baseball bat and the other two were armed with pieces of timber. Hearing the sounds of footsteps outside his window, Eli Edwards, then aged 21 years, went outside to investigate and was set upon by three men. Eli Edwards called out to his father and when Gary Edwards stepped outside he too was attacked. Gary Edwards was knocked to the ground and was beaten by one man while the other two continued to attack Eli Edwards. At one stage during the attack Eli Edwards managed to lie on top of his father in an attempt to protect him, and the three men continued to beat the two victims as they lay together on the ground. Eventually the three men decamped from the scene and the police and ambulance were called. 3 As a result of the attack Gary Edwards suffered injuries which included: a deep laceration to his left temple and zygomatic region, an 18 centimetre by 9 centimetre L-shaped laceration to his right thigh, a 5 centimetre by 5 centimetre laceration to his right forearm, a fracture of the olecranon process of the right elbow, a fracture of the left zygomatic arch and a left side pneumothorax. Eli Edwards suffered a 7 centimetre by 2 centimetre laceration to his scalp and a one centimetre laceration to his right elbow as well as multiple skin bruises and welts. 4 At one stage during the attack Eli Edwards struggled with one of his assailants and was able to dislodge the man's balaclava. Eli Edwards recognised the man as Colin Stevens. Gary Edwards died, from unrelated causes, before the matter came to trial and a statement that he made to the police on 22 July 1998 was read to the jury. Gary Edwards told police that he was able to recognise the voice of a second attacker as that of a man named Shane Campbell. In his evidence, Eli Edwards stated that Stevens and the man, whom he believed was Campbell, attacked him, and that the third man carried out the main attack on his father. 5 Eli Edwards said that the third man was taller and skinnier than the other two. Eli Edwards said that he himself was six feet one or two inches tall and taller than the third man, who he said, would have been "a bit shorter" than his eye level. The other two men were short men. 6 There had been a history of animosity between Colin Stevens and the Edwards family because of a relationship between Colin Stevens's then 14 year old daughter, Tara, and Gary Edwards's then 19 year old son, Jesse. During the early hours of 4 July 1998 police attended the home of Colin Stevens where he was arrested. A white Toyota Camry sedan was parked in the driveway of Stevens's premises. Colin Stevens had hired the vehicle at about 9.45 am on 3 July 1998 from Hertz Rent-a-Car at Lismore for a one day period. 7 Detective Senior Constable Day of the Crime Scene Section gave evidence that he went to the crime scene and then to Stevens's premises. At Stevens's premises he observed a number of blood stains on the off-side of the Camry's bonnet and further blood stains in different areas of the interior of the vehicle. On the floor of the vehicle, on the near-side of the front passenger seat, he saw a piece of timber that appeared to be the handle section of a recently broken timber baton. He observed a small stain on the handle that appeared to be blood. Later that day he collected samples of blood stains from six locations on the vehicle: · two from the bonnet, · one from the rear-vision mirror, · two from sections of carpet fibre, and · one from the rear off-side floor door. Detective Day also examined a pair of Boarders brand shoes that were seized from Colin Stevens. He observed what appeared to be blood stains on the inside white wall of the left shoe and on the outside lower portion of the left shoe. 8 On 8 July 1998 the officer in charge of the investigation, Detective Saad, spoke to the appellant at his home. Detective Saad asked the appellant about his movements on 3 July 1998. The appellant said that his mate, Col Stevens, came around about 4 o'clock and that he had a few beers with him. Stevens drove him in a white car to Stevens's hydroponics farm where he got some spinach. Stevens dropped him off at about 5.30 or 6.00pm and he stayed up with the kids until about 8.00pm or 8.30pm. He got up at about 11.00pm and went to work at midnight. He had a couple of beers on the way to the farm and a couple of beers at the farm. He said that he sat in the front of the car on the way to the farm and that when he was there they sat around drinking and he sat in the back. 9 Detective Saad asked the appellant about an injury that was visible on the appellant's left index finger. The appellant, who worked as a baker, said that he sustained the injury at work when he was cleaning the high-speed dough mixer. He said that the injury occurred "about last Wednesday or Thursday". It bled for a while and he put a Band-aid on it and it stopped. Detective Saad asked the appellant if it bled when he was with Colin Stevens, and the appellant said he was not sure. Detective Saad asked the appellant if he could remember whether the injury bled whilst he was in the car with Stevens. The appellant replied, "I don't know, if the Band-aid was off it probably did, but I can't remember". 10 Janelle Kopp gave evidence that she was a pastry cook employed by the appellant's bakery. She normally worked from about 1 am to 8 or 9am, five days per week. She was not able to say exactly what hours the appellant worked in early July 1998. He usually came to work at about 4 to 5am. She did not have a recollection of the appellant's having an injury to his hand in the few days leading up to 3 July 1998. She was not aware of any staff members injuring themselves whilst cleaning the high-speed dough mixer at the bakery. 11 In cross examination Ms Kopp said that she was aware of animosity between the appellant and his then business partner, Mr Jeffrey Eyles. She was unable to say one way or another whether the appellant did or did not have an injury to his hand around the time in question. 12 Bradley Walker gave evidence that in 1998 he was a baker, employed by the appellant and Mr Eyles. He knew of Colin Stevens, who used to come to the back door of the bakery two or three times a month to visit the appellant. In July 1998 he was working from midnight until about 6 or 7am. One Saturday morning in July 1998 the appellant received a telephone call at about 2 or 3am. After he took the phone call the appellant came back and continued working and was quiet. Later that morning a paddy wagon drove past and the appellant shut the bakery door. 13 Mr Walker said that he had jammed his finger in the dough mixing machine. He had not suffered an injury from the machine that required a Band-aid. On the morning that the paddy wagon drove past he noticed that the appellant had Band-aids on two fingers. He did not know how the appellant had sustained the injury. He did not know if the appellant had ever injured himself on the dough mixing machine but he had not seen the appellant injure himself on the machine. 14 In cross examination Mr Walker agreed that the door may have blown shut itself when the paddy wagon drove past. He said that he observed angry exchanges between the appellant and Mr Eyles. 15 Darren McFadden said that at one time he was employed at the bakery as a bread maker. He normally started work at midnight or 1am and that he finished anywhere between 8 or 9am. Mr McFadden knew Colin Stevens. Stevens would visit the bakery at least once per week to speak to the appellant. On occasions he had bruised his finger when he had been cleaning the high-speed dough mixing machine. 16 Mr McFadden said that on one Saturday morning when he was working, the appellant received a phone call from a lady. He could not be exact on the date but that he thought it was 14 July. The appellant, Bradley Walker and he were working during that particular shift. The appellant had telephoned at about 1am to let them know that he was on his way to work and that he was running a bit late. In the early hours of the morning he answered a telephone call from a female. He spoke to the appellant and told him that 'Debbie' was on the phone. The appellant took the call and was on the phone for "roughly 10 to 15 minutes". He did not observe any injuries to the appellant's hands on the night that the appellant took the phone call. 17 The appellant was arrested on 20 September 1999. When cautioned, the appellant replied, "I don't know nothing about it". The appellant consented to the taking of a blood sample. 18 Christine Gill, a forensic biologist employed by the Division of Analytical Laboratories, analysed a number of articles including the following: · the timber baton handle, · blood swabs and carpet fibres taken from the Toyota Camry vehicle, · the Boarders shoes that belonged to Colin Stevens, · a blood swab from a stool at the crime scene, · a blood swab from the rear steps of the crime scene, · a pair of jeans that belonged to the appellant, and · a pair of joggers that belonged to the appellant. Ms Gill analysed blood samples taken from Gary Edwards, Eli Edwards, Colin Stevens, Shane Campbell and the appellant. A schedule, setting out the results of the various tests that were carried out, was tendered as exhibit F in the Crown case. 19 Ms Gill gave evidence that the appellant's DNA profile, using the Profiler Plus system, was the same as the DNA recovered from the blood stain on the timber baton handle. She said that the profile is expected to be found in fewer than one in 10 billion individuals in the general population. DNA testing was also carried out on a blood stain on the inside step of the left boarders brand shoe. The DNA recovered from that area was also the same profile as the appellant's. 20 Blood grouping tests revealed that it was possible that the blood on the swabs from the bonnet of the vehicle, from the rear vision mirror, from carpet fibres from the vehicle and from the rear off side floor door had come from the appellant. No blood was detected on the appellant's jeans. Blood grouping tests carried out on one area of the appellant's joggers excluded the possibility that the blood on that area had come from either Gary Edwards or Eli Edwards. There was insufficient DNA material in two other areas of staining on the shoes for testing to be performed. 21 The appellant's former business partner, Mr Eyles, gave evidence that the appellant had made admissions to him about his involvement in the attack. In about 1995 he and the appellant went into partnership in a bakery business. At first his relationship with the appellant was good but it did not take long for it to sour. He saw Colin Stevens at the shop quite often and he knew of Stevens's problem concerning his daughter and Jesse Edwards. About two weeks before the attack he spoke to Stevens about the trouble he was having with the Edwards's. Stevens told him that he was going to do something about it. He was getting some people into town to bust some heads. Mr Eyles told the appellant that Stevens had told him that they were going to get some blokes out of town to bust some heads. The appellant said, "Yes Stevens was getting some people out of town to fix the Edwards's up". 22 Mr Eyles learnt of the attack on the Edwards's on the night that it occurred. The next morning he went to work at about 4am. He had last finished work at 6pm on the previous Wednesday. While he was at work he observed that the appellant had an injury to one of his fingers. The finger was bleeding and the appellant was putting a piece of Elastoplast-type tape on it. At first Mr Eyles thought it was a fresh cut but then he realised that it was not fresh because it had white skin around it. The injury was a "pretty jagged cut" and looked like it needed stitches. Mr Eyles remarked to the appellant that it was a bad cut. The appellant told him that he had done it a couple of days beforehand. 23 Mr Eyles said that one Sunday morning about four or five weeks after the attack he spoke to the appellant and asked him if he was involved in the Edwards bashing. The appellant replied that he was and that he enjoyed it. The appellant told him that he went with "Col to do the bashing". The appellant also said "I hated the Edwards's" and "it was great havin' Louis on the ground thumpin' the shit out of him. He was yelling for mercy. He was yelling out, 'why me, what did I do?' With that Eli come out the door. Eli ended up on top of his father so we flogged shit outa him." 24 Mr Eyles said that a couple of weeks later he had another conversation about the matter with the appellant. There had been some trouble with Mr Edwards senior standing at the front of the shop and yelling out that he was going to kill the appellant. Mr Eyles spoke to the appellant about Mr Edwards coming to the shop. The appellant became very aggressive and said, "we should've gone back and finished what we started". 25 In about September 1999 My Eyles went to the appellant's home. At the time there were problems with the business. He told the appellant that a lot of trouble stemmed from the appellant's association with Colin Stevens and that he had had enough of it and wanted to get out of the business. The appellant said that he had listened to Colin Stevens and that he was sorry that he'd done it and it had caused him nothing but trouble. 26 On 15 September 1999 Mr Eyles made a statement to the police. 27 In cross examination Mr Eyles classed his relationship with the appellant as a "love-hate" one. He agreed that at many times the relationship was rocky and that it culminated in him deciding that he would sell out to the appellant for the sum of $50,000. He agreed that he went to the police and made a statement two days after he received the final payment from the appellant. It was suggested to Mr Eyles that the appellant had tackled him over the appellant's belief that Mr Eyles was taking money out of the business. Mr Eyles said that the appellant had never spoken to him about it and that he had not heard any mention of it before. He did not remember that such a proposition had been put to him at the committal proceedings. 28 It was put to Mr Eyles that because of his feelings of animosity towards the appellant he was prepared to say anything, whether it be true or untrue. Mr Eyles disagreed and said that he was not prepared to lie. He wanted to get his money. That was why he waited until September 1999 before he went to the police. Mr Eyles agreed that he had refreshed his memory from his statement and that he could not rely on his memory to give precise words of the admissions. It was suggested to Mr Eyles that at no time did the appellant say anything to him that could be construed as a confession to being involved in the attack. Mr Eyles disagreed. 29 In re-examination Mr Eyles said that he had a friend named Lindsay Church. On at least one occasion he had confided in Mr Church about what the appellant had told him about his involvement in the assault upon the Edwards's. 30 Mr Church gave evidence that he had known Mr Eyles for about six years. He knew Colin Stevens. In 1998 Stevens lived not far from him. He knew the appellant from going to his bread shop. At about 10am on the morning of Friday 3 July 1998 he saw the appellant and Colin Stevens driving in the direction of McGill Place, where the Edwards's lived. Mr Church said that he and Mr Eyles fished together regularly. About ten months after the attack on the Edwards's, Mr Eyles said words to the effect of, "Snow [the appellant] admitted to me that he was with Stevens when they bashed the Edwards's [sic]". 31 In cross examination Mr Church said that when he saw the appellant and Stevens on the morning of 3 July 1998 they were in Stevens's wife's car. The car was red. It was "a Hyundai or Kia or something like that". 32 Colin Stevens gave evidence that he was serving two custodial sentences, one for the attack on the Edwards's, and the other for a home invasion committed at Tabulam on 1 June 1999. He committed the Tabulam offence with Phillip Leadbeater. He had pleaded guilty to both offences. He agreed that by the time he pleaded guilty to the Tabulam offence, Leadbeater had already pleaded guilty. He was aware that Leadbeater had given the police a statement implicating him in the Tabulam offence and identifying him as the principal offender. When he pleaded guilty to the Edwards offence on the morning of his trial, he was aware that the Crown proposed to call Leadbeater to given evidence that he had confessed his involvement in the offence to him. He said that Leadbeater had lied. 33 Stevens said that he had committed the offence against the Edwards's. He had been accompanied by Phillip Leadbeater and Shane Campbell. The Crown prosecutor suggested to Stevens that the only offence that Leadbeater had been involved in with Stevens was the offence at Tabulam. Mr Stevens replied, "You can suggest that as much as you like." He said that when they came back from the "Leadbeaters" (Edwards's) there were four other people in his house: Theresa Parker, Robert Freeman and his, Stevens's, son and wife. Stevens said that the police had never questioned any of these people. 34 Stevens said that he had hired a motor vehicle on the morning of the offence because he had had trouble with his car, a Holden Commodore. There were two other vehicles at his house besides the Commodore: a Willeys Jeep and his wife's Hyundai. The Hyundai was blue. After Stevens hired the car he went straight to work. He did not see the appellant that morning. 35 Asked how he came to be with Leadbeater on the night of the offences Stevens said that he had picked him up from his caravan park in Ballina. Stevens was asked if that was where Leadbeater was living and he replied, "Yes when he – when he was in Ballina that's where he was living". It was suggested to Stevens that in July 1998 Leadbeater was living and working in Brisbane, and he replied, "Yeah he was, yeah I know". 36 It was put to Stevens that after the police spoke to him about the attack on the Edwards's he produced an alibi notice. He could not recall, but it was more than likely that he did. It was put to him that his wife had given a statement and that it was proposed that she would give evidence that he had been home all night and had not left. He had not seen the statement but his wife could well have made one. He did not really know what his wife was going to say. He was asked if he was aware that his wife was going to say that when she got home there was nobody there except him and the children. He said that he could not recall. 37 Mr Stevens was asked about the attack on the Edwards's. He said that he attacked Mr Edwards senior, that he hit him, that he fell off the porch and landed on a pile of rocks where he stayed and was not touched again. He struck him one blow with a round piece of wood. The piece of wood was like a blockbuster handle. Mr Edwards senior was only hit once by him and the other two men did not attack him. The one blow struck Mr Edwards Senior across the face. 38 Stevens said that it was Leadbeater and Campbell that attacked Eli Edwards. They were armed with sticks. He was asked if anybody was armed with a baseball bat and he said that Campbell's stick was shaped like a baseball bat. He was aware that the baseball bat type object had been broken and that that had occurred when Campbell hit Eli Edwards. 39 Stevens said that Campbell was with him from about 4.30pm onwards on the afternoon of the offence. Campbell was dropped off at the farm by his sister. The appellant came to the farm, which was at Uralba, at about 3pm and he stayed there until probably about 4.30 or 4.45pm. He was asked if he was saying that the appellant was there when Campbell was there and he said he couldn't recall. The appellant left in his own car. 40 Stevens said that he had the weapons in the back of the car from about lunchtime onwards. He was asked if a baseball bat and two pieces of timber were in the back seat and he said that he thought that it was just Campbell's stuff that was in the back. The baseball bat was Campbell's and it was in the back seat on the floor. He had three beers with the appellant and they were sitting in the car drinking. Sometimes he sat in the back and sometimes the appellant sat in the back. 41 Stevens said that after they had committed the offence he and the other two men dumped "the balaclavas and that" in an industrial waste bin outside of Wollongbar and then went back to his house. Then they decided to retrieve the items, which they burnt. They went to Ballina where he dropped the other two men off and he went home. 42 Stevens said that Leadbeater was lying when he said that he had read Stevens's brief when they were both in gaol at Grafton. He never had a brief for Leadbeater to read. The only reason that Leadbeater knew about the Edwards matter was because he was there. 43 It was put to Stevens that on 8 May 2001 he spoke to Detectives King and Brown while he was in Grafton gaol and told them that he would give evidence against the appellant but that he wanted two years home detention for doing so. Stevens denied saying that, and said that he had already been sentenced and that he could not get any time off his sentence. 44 It was suggested that the only reason that Stevens had given evidence was because he had a grudge against Leadbeater for implicating him in the Tabulam offence and that he was out for revenge. 45 In cross examination Stevens was shown a copy of the rental car agreement showing that he had checked the car out at 9.50am (exhibit 4). He said that he drove to Farmer Charlie's where he collected some boxes. He was there for about 10 or 15 minutes and then he drove straight to his farm at Uralba. He did not see the appellant until the afternoon. The appellant stayed with him for about an hour and a half, during which time they drank some beers and the appellant gave him a hand with some packing. He observed that the appellant had a cut because he dropped some blood on the car. He could not remember where the cut was. He was asked if he discussed the cut with the appellant and he said that he thought that the appellant had got his hand stuck in the dough maker at work. 46 Phillip Leadbeater gave evidence that he was involved with Stevens in a home invasion in Tabulam on 1 June 1999. He had offered to give evidence for the Crown against Stevens in relation to that matter. The source of his knowledge in relation to Stevens's involvement in the Edwards bashing was seeing the brief when he was in gaol. When he was in gaol Stevens told him that he had been involved in the bashing. He said that Stevens did not tell him who else had been involved. 47 Leadbeater said that in July 1998 he was living in Geebung in North Brisbane. He was definitely not in Alstonville with Stevens on the night of 3 July 1998. He was definitely not in New South Wales that night. Leadbeater first met Stevens sometime in early 1999 about three or four months before he committed the Tabulam offence. He had met him very briefly before that when he had lived in Ballina years ago, and his and Stevens's children had played together. He first met Stevens's wife, Debra Stevens, on 1 June 1999, on the night of the Tabulam offence. Leadbeater said that he worked for Calmac in Brisbane from 1 March 1997 to 4 March 1998 and from 29 June 1998 to 15 July 1998. 48 According to Mr Leadbeater he was roughly 180 centimetres or 6 feet one inch tall. 49 Ms Gill gave evidence that on 21 September 2001 she was asked to compare Leadbeater's DNA profile with the results that she had already obtained. She said that Leadbeater's sample had been typed using the Profiler Plus system. The only items which had been typed using the same system were the timber handle and the left shoe and she was able to exclude Leadbeater from those articles. The defence case 50 The defence case can be summarised as follows. The appellant gave evidence and was cross examined. He said that he was a man of good character and had never been convicted of any offence of violence. 51 He had formerly been in partnership with Mr Eyles. About twelve months after starting the business he spoke to Mr Eyles because he was worried about how much was being produced and how much money was in the bank. Even after the initial business loan was paid off things did not improve. After he bought out Mr Eyles, the takings went up. 52 The appellant knew Colin Stevens through his children but Stevens was not a good friend. The first time he went to Stevens's farm was on 3 July 1998 to look at the farm and to get some spinach. He went to the farm with Stevens in Stevens's white Camry vehicle. He arrived at the farm at about 3.30 or 4pm and he stayed there for "probably a bit over an hour, hour and a half". They picked spinach for probably about 15 minutes. They were having a few beers while they were doing that. He was watching Stevens bunching the spinach. He was sitting around in the Camry. The Camry's doors were open. He sat in the front and back of the Camry. 53 The appellant said that when he was sitting in the front seat he went to move the seat back and his hand hit a stick. He looked down and saw a small children's bat. He handled the bat and put it back under the front passenger seat. The bat was not broken. 54 The appellant said that on the Thursday night – Friday morning shift, before going to the farm he injured his left index finger when he was cleaning his high-speed dough mixer. He described the injury as "a jagged sort of broken skin, deep injury". It was not a neat cut. The injury bled a lot at first and bled on and off over the next couple of days. 55 The appellant said that when he got home from work he showed the injury to his wife, Sue. He showered and put more band-aids on his finger and then went to bed because he knew that Colin Stevens was going to pick him up to take him to the farm. He thought his finger bled while he was at the farm but he didn't pay any particular attention. He helped Stevens pick spinach and Stevens brought him back home. 56 The appellant said that on the morning of 3 July at approximately 10am he did not drive with Stevens in a red car past Mr Church's place towards McGill's Avenue. The first time that he saw Stevens that day was at approximately 3.30 or 4pm when Stevens picked him up. When he got home he helped his wife with the tea because she was feeling sick. After tea he watched television with his children and went to bed at about 8.30 or 8.45pm. He got up at about 10.45pm and went to work. He would have arrived at work at about midnight or five to ten minutes later. During the shift he received a telephone call from Debbie Stevens, who told him that Colin had been arrested and that her son Brodie would not be at football the next day. He spoke to Debbie Stevens for probably a maximum of two or three minutes. 57 The appellant denied being one of the people who went with Colin Stevens to bash the two Edwards men. 58 The appellant said that the conversations that he had with Mr Eyles about the money aspect of the business created quite a bit of friction and that the partnership began to sour because of the friction. His relationship with Mr Eyles during 1998 through into 1999 was not very good at all. He would not classify the relationship as "love-hate". It was "Basically a dislike on both sides… continuous". 59 The appellant said that Mr Eyles never asked him about his involvement in the bashing and that he never said anything to Mr Eyles that could be construed by him as an admission as to his involvement in the bashing of the two Edwards men. The bashing was spoken about in the workplace amongst the workers and it was spoken about all over town. 60 The appellant said that Mr Eyles came to his home on about 5 August 1999. They spoke about the business and Mr Eyles asked him for an extra $10,000. He told Mr Eyles that he would ask his wife and he left the room and went into the bedroom and spoke to his wife. His wife told him, "No way", and he went back to Mr Eyles and told him they could not afford to do it. Eyles then said, "Right I'll play my trump card'. Eyles said, "Saad has been putting pressure on me to involve you in the Edwards bashing, if you don't give me the 10,000 I will". He told Eyles that he was mad and to "fuck off". 61 Mr Eric Thompson, an accountant, gave evidence that he took over the auditing of the appellant's business after the partnership with Mr Eyles was dissolved. He examined the records of the business before the dissolution of the partnership. During the period 1997, 1998 and through to 30 June 1999, when the partnership was in existence, it appeared that money had been removed from the business before being banked. It appeared that $30,000 to $40,000 per annum had disappeared from the business. 62 The appellant's de facto wife, Susan Thompson, gave evidence. She said on 3 July 1998 she stayed at home because she was sick. The appellant told her that he was going to get some spinach for the shop and she told him that she wanted him home before 6pm so that he could help her with dinner and with the children. The appellant came home as requested and he stayed there for the rest of the night until he went to work. The appellant went to bed at about 9pm and went to work around 11.30pm. 63 Ms Thompson said that on the morning of 3 July 1998 her husband showed her an injury around the knuckle of his left index finger. She said that the injury was more like a gash than a cut. A couple of days after Detective Saad first came to their house, he telephoned and spoke about obtaining a blood test from the appellant. She said to Detective Saad, "Peter was not involved in that incident… You could have asked me about it, he wasn't involved, he wasn't there, he was with me, with me at home". She told the appellant's solicitor that the appellant was at home with her, a considerable period of time prior to the alibi notice going to the police. 64 Ms Thompson said that she was at home when Mr Eyles came to the house and spoke to the appellant about being bought out of the partnership. She was in the bedroom and could hear the conversation between the appellant and Mr Eyles. Mr Eyles said that he wanted an extra $10,000. The appellant came and spoke to her about it. She said, "No", and the appellant went back and told Mr Eyles. Mr Eyles raised his voice and said, "Detective Saad's been trying to implicate you in this Edwards bashing, he's been on to me." He said, "I'll pull out my trump card". The appellant said, "Trump card?" and Mr Eyles replied, "Yes, if you don't give me the $10,000 I'm going in to implicate you". Grounds of appeal 65 There were two substantive grounds of appeal filed. The first was that the jury's verdict was unsafe in that the jury should have found reasonable doubt in relation to the guilt of the appellant for reasons or combination of reasons set out in 17 paragraphs that followed. The second ground of appeal in the alternative was that the appellant did not receive a fair trial for eight reasons which were set out. Mr Bellanto QC, who appeared for the appellant, abandoned many of the grounds of appeal including those itemised under ground 2. Mr Bellanto invited the Court to uphold the appeal on the ground that the verdict of the jury was unsafe and unsatisfactory or, in the language of s6(1) of the Criminal Appeal Act 1912, that it was unreasonable or could not be supported having regard to the evidence. Counsel submitted that the following matters combined to lead to this conclusion: 1. The appellant was, as he stated in evidence and the Crown conceded, a man of good character who had never been convicted for any offence of violence or dishonesty. Accordingly, he was an unlikely person to have engaged in the conduct of which he was accused. 2. He was not identified by anyone as the perpetrator of the offences. 3. He had no motive to commit the offences. 4. There was no forensic evidence which linked the appellant with the scene of the crime. 5. The evidence of confession was given by Mr Eyles. That evidence was flawed. Mr Eyles did not make any statement or complaint about the appellant until 14 months after the offences were committed. There was a history of animosity between the appellant and Mr Eyles and a suggestion that Mr Eyles had skimmed the business in which they were partners of between $30,000 – $40,000 per annum. In order, Counsel said, to re-establish Mr Eyles' credit evidence was given by Mr Church who said that on one occasion Mr Eyles had said to him words to the effect, "Snow [the appellant] admitted to me that he was with Stevens when they bashed the Edwards's." However, Mr Church had also given evidence that on the morning of the crime at approximately 10am he saw the appellant in company with Stevens driving in the direction of McGill Place where the crime was committed. In cross-examination he said that the car was Stevens's wife's car, a red car, a Hyundai or Kia or something like that. There was other evidence that Stevens's wife did not own a red car at the time and that at 10am Stevens was hiring the Camry, which was white, and which was used that night to take him to the scene of the crime. The hiring arrangements were being made by him in Lismore, which was 25 km from Alstonville. As to the blood found on the handle of the child's baseball bat and on the side of the shoe worn by Stevens when committing the crime, these were reasonably explained by the appellant's evidence about his cut finger and his visit to Stevens's house during the afternoon of the crime to buy spinach. 6. Counsel stressed the alibi evidence and particularly that of the appellant's de facto wife who remembered being home sick with her husband at the time the crime was committed, particularly because, as could be demonstrated by a document produced by the doctor, she had been at a doctor's surgery on the previous day. It was said that the wife's evidence was not shaken in cross examination. 7. The appellant gave evidence consistent with his wife's and was not shaken in cross examination. 8. Mr Stevens gave evidence that the appellant did not take part in the assault. The other assailants, apart from himself, were Shane Campbell and Philip Leadbeater. Leadbeater gave evidence in which he denied he was present and said he was resident in Brisbane at the time. There was some evidence that Stevens had indicated that he was bringing people from Brisbane to join him in the attack on the members of the Edwards family. Discussion 66 In R v Markuleski (2001) 52 NSWLR 82 at 87-88, Spigelman CJ said: "The respect which the Court pays to the constitutional role of the jury was emphasised in M v The Queen (1994) 181 CLR 487 at 493, in a passage referred to with approval in Jones v The Queen (1997) 191 CLR 439 at 451: … the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (Footnotes omitted). It is against this background, that the test for an unreasonable verdict – whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty – must be applied to the whole of the facts and the circumstances of a particular case." 67 To my mind, despite the careful submissions Mr Bellanto put, the attack on the verdict in this case amounts to no more than saying that the Crown's case – based upon evidence of a confession and evidence of the appellant's blood on an implement used in the assault and on a shoe worn by one of the assailants – could not safely and beyond reasonable doubt be accepted in preference to the defendant's denial that he took part in the assault, his alibi supported by his wife's evidence and an innocent explanation for the presence of his blood. There are indications in the material that we have that Mr Eyles, in the language of the trial Judge on sentence, showed a degree of malice towards the offender which raised a question as to whether his evidence could be trusted. Again, to use the trial Judge's language when sentencing, it was a puzzling feature of the case as to how and why the appellant, a man with no previous history of violence or dishonesty, became involved in committing such crimes. Mr Bellanto pointed out that the jury retired at 12.38pm on 28 September 2001 and returned with their verdict at 2.06pm that same afternoon, suggesting a less careful consideration of the evidence than the case required. 68 On the other hand the Crown referred to the curious fact, according to Mr McFadden's evidence, that after the appellant arrived at the bakery sometime after 1am on the morning after the crimes were committed, Mrs Stevens rang and asked to speak to the appellant. On one account they spoke together on the telephone for approximately 10-15 minutes. The appellant recalled that Mr McFadden answered the telephone. The appellant said that Mrs Stevens told him Colin had been arrested and that his youngest son, Brodie, wouldn't be at the football "tomorrow because of what had happened to Col". 69 The jury heard the evidence of these witnesses and saw them give it. Mr Bellanto did not press any submission suggesting fault in the learned trial Judge's summing up. The appellant's counsel did not seek any redirection. In my opinion the appellant's grounds of appeal have not been made out. Upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences charged. I would grant the appellant an extension of time up to and including the date of the filing of the notice of appeal but I would dismiss the appeal. 70 DOWD J: I have had the advantage of reading the judgment of Sheller JA in draft form. I agree with the proposed orders and his Honour's reasons. 71 CARRUTHERS AJ: I agree with Sheller JA. ********** 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.