New South Wales Court of Criminal Appeal CITATION : R v HOUSSEIN [2003] NSWCCA 74 HEARING DATE(S) : 10 December 2002 JUDGMENT DATE : 28 March 2003 JUDGMENT OF : Meagher JA at 1; Hulme J at 2; Hidden J at 61 DECISION : See paragraph 60 PARTIES : Regina Mustafa Max HOUSSEIN FILE NUMBER(S) : CCA 60382/02 COUNSEL : Crown: EA Wilkins Appellant: MC Ramage QC SOLICITORS : Crown: SE O'Connor Appellant: Voros Lawyers LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/0022 FILE NUMBER(S) : LOWER COURT Gibson DCJ JUDICIAL OFFICER : - 22 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60382/02 MEAGHER JA HULME J HIDDEN J Friday, 28 March 2003 R v Mustafa Max HOUSSEIN Judgment 1 MEAGHER JA: I agree with Hulme J. 2 HULME J: On 8 April 2002 Mustafa Hussein pleaded not guilty to 2 counts on which he was indicted before Judge Judith Gibson, viz.- (1) For that he on 25 October 2001… did maliciously inflict grievous bodily harm upon David Houssein with intent thereby to do grievous bodily harm to the said David Houssein. (2) Further that he on 25 October 2001… did threaten to cause an injury to Christopher Petersen intending thereby to influence Christopher Petersen a person intended to be called as a witness in a judicial proceeding, namely Regian v Max Houssein to withhold true evidence. 3 The first count was laid under s33 of the Crimes Act. Section 34 and 35 of that Act relevantly provide:- 34. Where, on the trial of a person for an offence under s33, the jury are satisfied that the accused is guilty of the wounding, or inflicting grievous bodily harm, mentioned in the indictment, but are not satisfied that the person is guilty of the intent charged therein, they may acquit the person of such intent and find the person guilty of an offence under s35, and the person shall be liable to punishment accordingly. 35. (i) Whoever maliciously by any means:- (a) wounds any person; or (b) Inflicts grievous bodily harm upon any person, shall be liable to imprisonment for 7 years 4 It was thought desirable to formulate in writing the alternative for which ss34 and 35 provided. This was done by counsel appearing for the Appellant at his trial and, at least implicitly, acquiesced in by counsel for the Crown and her Honour. The formulation was in terms:- That on 25 October 2001 … (the accused) did maliciously inflict grievous bodily harm upon David Houssein and did thereby occasion grievous bodily harm to the said David Houssein. 5 On 12 April 2002, the jury acquitted the Appellant on the two charges in the indictment but convicted him of the alternative charge. On 14 June 2002, her Honour sentenced him to imprisonment for 3 years including a non-parole period of 2 years and 3 months, both periods commencing on 25 October 2001. 6 A Notice of Appeal dated 20 June 2002 and stating 4 grounds of appeal was filed. On 14 October 2002 another document "Grounds of Appeal" listing 9 grounds was received by the Registry. It apparently was not served on the Crown. The grounds in this document, in the light of which the appeal was ultimately conducted and may conveniently be considered, were:- 1. The trial miscarried. 2. The Appellant was convicted of an offence not known to law. 3. The trial judge erred in putting to the jury as an alternative count (the charge which I have set out above). 4. The trial judge erred in giving wrong, misleading and confusing directions concerning the alternative count. 5. The trial judge erred in her directions to the jury concerning the accused's innocence. 6. The trial judge erred in permitting the Crown to read onto the record a statement of Peterson in re-examination. 7. The trial judge erred in failing to direct the jury in respect of the evidence referred to in 6 above. 8. The trial judge erred in permitting cross-examination of the accused on a conviction and order. 9. The Applicant seeks leave to appeal against sentence. Ground 1 The trial miscarried 7 The only argument advanced on behalf of the Appellant under this ground was that the trial miscarried because of the errors the subject of the other grounds advanced. Given the way in which the other grounds are dealt with herein no further consideration of this ground is required. Grounds 2 and 3 The Appellant was convicted of an offence not known to law. The trial judge erred in putting to the jury as an alternative count (the charge which I have set out above). 8 I agree that the alternative charge on which the Appellant was convicted is, as formulated, not known to the law. However the words "and did thereby occasion grievous bodily harm to the said David Houssein" add nothing to the earlier words "did… inflict grievous bodily harm upon David Houssein". There was no dispute that the Appellant stabbed Mr David Houssein, and in the circumstances of this case if the Appellant inflicted grievous bodily harm, he occasioned it and vice versa. The additional words are surplusage and do not render the formulation of the charge or the conviction defective - Smith & Kirton v R (1990) 47 A Crim R 43 at 49. 9 That said, I cannot but register my surprise that, faced with the very simple words of s35, none of the Crown Prosecutor, defence counsel nor her Honour managed to formulate the charge properly. Ground 4 The trial judge erred in giving wrong, misleading and confusing directions concerning the alternative count. 10 The directions Her Honour gave to the jury which are the subject of complaint were as follows:- "I am going to come to the charges. Do you have this document? Were you each given a copy of the charges? Well as they say on the advertisements, "There's more". Because you might remember that the Crown said in his address to you, that there was an alternative charge and we have had some copies made which I am now going to pass out to you. I will explain this in a minute but what it is, is we have just put in writing an alternative to the first charge in the event you are satisfied he caused grievous bodily harm but that he did not intend to do so. It is like a fall back charge or an alternative charge. I remind you, and I am going to tell you this again, that if you find that the accused acted in self-defence, that concept applies to this new charge just as much. This charge, this alternative charge that you have, this one here, this one relates to a situation where you say "well look, we think he did cause grievous bodily harm. We just don't think he intended to do it." In other words, if you are satisfied that he is guilty of grievous bodily harm but not with the intent to do so, you can still return a verdict of guilty but to this alternative charge. Just hang on to that piece of paper. I thought that might be a bit of a surprise but nevertheless I am sure you will be able to take it on board because I would now like to talk to you about this charge and what the elements are. This indictment specifies the charges against the accused in language which I will frankly admit to you is legalese. It is lots of legal words but they are not difficult words because they do not have some special magic or terrifying meaning that you will only find in a legal dictionary. Each charge has an essential element and you will recall that the Crown went through them and he told you what those elements are. He said to you, and I say to you again, that what the Crown has to prove beyond reasonable doubt is that the essential elements of these charges are proved. So let us have a look at them, this is this sheet here, the first one you got. Leaving out obvious bits like the date and the DPP and her Majesty and whatever. We have got on the date, I do not think there is going to be much dispute about that. "At Five Dock in the State of New South Wales did maliciously inflict grievous bodily harm." "Maliciously" means deliberately, intentionally, it is not an accident. It is maliciously. "Wounding", you just need to have a breaking of the skin, that is a wound but we have got "inflict grievous bodily harm". What is "grievous bodily harm"? Well you might think there is not much dispute, that this is a man who was stabbed at least 4, probably 5 times and spent 10 days in hospital but grievous bodily harm is really serious injury and although there has not been very much dispute about it, it is still a matter that you have to be satisfied with beyond reasonable doubt. That is what you have to establish. So you have got "maliciously", "inflict", that is caused, do something, and then "grievous bodily harm" that is really serious injury. Now being stabbed once is not something that you would want to go through again but again while there has not been much dispute about it, and you did not hear anybody carrying on about this was something where he got up the next day and he went off without any problems, nevertheless it is a matter you have to be satisfied with beyond reasonable doubt, as it is with everything else. That really is all there is in the first charge. Then there is this alternative, we will just very quickly look at this other sheet. The alternative charge is that he maliciously inflicted grievous bodily harm. The difference is, let us suppose you are satisfied "well look he did inflict harm. He just didn't mean to. It was an accident". Then this is the alternative charge but it is the alternative charge you consider only if the first charge you find "well he didn't have the intention". Remember that, it is a fall back. So when we ask you what your verdict is we will read out all three but the thing is you cannot find him guilty of one and two, it is one or two. If you find him not guilty then he is not guilty and that is fine. That brings me to the second charge. "On 25 October 2001 at Five Dock in the State of New South Wales did threaten to cause an injury", really members of the jury, the words are there … ." 11 Although I have set out the above quotation in a number of paragraphs, the transcript of what I have quoted from the summing up suggests Her Honour paused only long enough to indicate three, the first, fifth and sixth as they appear in the quotation. 12 Her Honour continued explaining the second count in the indictment and the concept of intention and continued:- "Something else about these two charges, well they are really two and a half, if I regard the extra one as well … There is no legal requirement that the two verdicts you are required to give must be the same. It is true that the Crown and the Defence have addressed you generally on the basis that you would find the same verdict whether it is guilty or not guilty but you are not bound to find your verdict in that way because it may be, for example, that you are satisfied in relation to the first issue but not the second or vice versa or it may be you are satisfied in relation to both or neither. So do you see that they are not inter dependent charges? I know I have just confused you terribly by giving you this extra sheet but nevertheless that is an alternative to one, but the second charge, it is a separate event. Just think of them as being, if you like, on separate – they are separate charges in relation to separate actions so think of them in that sense." 13 Her Honour continued on the topic of the separateness of the first and second counts, returned briefly to the topic of intention and then to the topic of inferences and some other matters. She then gave the jury directions concerning self defence and warned them against inferring from evidence of the accused that he had previously been in trouble with the police that he was guilty of the offences charged. In explaining the law of self defence her Honour used terms appropriate to both the first count and its alternative under s35 but at that time did not specifically indicate that self-defence applied to both of these charges. Thus the only direction that self-defence applied to the alternative charge was the isolated passage in the first quoted paragraph. 14 Some time later Her Honour sent the jury out for a break. The Crown then sought some re-directions in consequence of Her Honour's use of the word "accident". When the jury returned the transcript records:- "Her Honour: Members of the jury, I promised I would be only 5 more minutes and I plan to try and keep that promise. Speaker:..(not transcribable...) bit overloaded - - Her Honour: If you think your brains are overloaded, I know just how you feel so we have got no problems with that. What I will do is I will finish and then we might get you back tomorrow and send you out formally tomorrow, I think, yes… First of all, I just want to make a couple of corrections because when you talk this long of course you always use the wrong words somewhere. Now, it may be in relation to the first charge you were a bit thrown because I accidentally, I assure you, used the word "accident". You must be satisfied that the accused maliciously caused the injury. That means you must be satisfied that the act causing the injury was willed by him, was intended by him, that he was aware and meant to do the act that caused grievous bodily harm because "accident" is not enough, alright. So if I said the word "accident", and I obviously did, I am very sorry, I did not mean to, it was an accident… Finally, I used the word, "fallback" in relation to this sheet (holding up second charge sheet with alternative count) but as I tried to emphasise, this is not a charge to which any lesser onus applies, it is the same. What it is, is if you do not find the grievous bodily harm charge here (holding up first charge sheet) perhaps I should call it an alternative rather than a fallback. I think it actually says "Alternative Charge" up the top. So could you just forget I said the word "fallback". That way everybody will be clear." 15 Shortly afterwards Her Honour adjourned. On the following day at 10.10am she sent the jury out. At some time during the morning the jury sent a note asking two questions:- "May we please have further clarification on the word "intent", what level of intent is required to find guilty or innocent for the accused? Does the alternate charge imply self defence?" 16 Her Honour answered the jury's questions in these words:- "Now, intent is just the formation of an idea to do something. Intent just means the idea to do a particular act. What needs to be proved beyond a reasonable doubt is that the accused had the intention to wound the victim and whether his intention was to cause really serious injury, if it is the first charge. Now, next we have the question of this alternate charge: Does the alternate charge imply self defence? If the Crown has not disproved self defence beyond reasonable doubt you must acquit on both counts. That is both the original count on the first typed sheet and the alternative count, because the Crown has not proved the requisite intent. In relation to the first count the intent the Crown has to prove beyond a reasonable doubt is the intent to inflict really serious harm and if you are not satisfied that there was an intention to inflict really serious harm, that there has been proved that the accused intended to cause harm less than really serious harm, then you can convict him of the alternate charge, you see? It is an alternative. Remember I said I wrongly used the word "fallback". The first one is about intention to cause grievous bodily harm, really serious injury. The second is about the intention to cause harm." 17 (The division into paragraphs is again mine, as is the underlining.) 18 With one exception, the directions contained in the second of these paragraphs follow almost word for word suggestions made by counsel then appearing for the Appellant. The one exception lies in the use of the underlined word "that". Counsel had suggested the word "but" and her Honour had said that she was going to write down exactly counsel's formulation. The sense of the passage also suggests that "but" is a more appropriate word and one must clearly recognise the possibility that there has been an error in transcription. 19 In its written submissions, the Crown conceded that the directions prior to the re-directions given at the instigation of the Crown may have confused the jury but submitted that ultimately the directions given to the jury were satisfactorily clear. The Crown also submitted that, in light of the fact that the directions given in answer to the jury's questions were formulated by counsel for the Appellant, the complaint is one to which rule 4 applied. 20 For my part it is only her Honour's answer to the jury's question which may save the directions. In the circumstances of the instant case, where there was no doubt that grievous bodily harm was inflicted and that the Appellant inflicted it, the first count and its alternative needed but the simplest of directions and it really is unfortunate both that her Honour seems to have felt that the alternative was confusing and that she did not manage to express herself far more economically and clearly. That the jury was confused is clear from their first question. 21 Was the response to the jury's questions adequate to cure the earlier deficiencies? The clarity of that response was not improved by her Honour directing attention firstly to the topic of intent, secondly to self defence, thirdly returning to the topic of intent, fourthly to her earlier use of the "fallback" reference she regretted, and fifthly again to the topic of intent. Nevertheless, the conclusion at which I have arrived is that, the response was (just) adequate to instruct the jury on this aspect. Accordingly, this ground of appeal fails. Ground 5 The trial judge erred in her directions to the jury concerning the accused's innocence. 22 The remarks of her Honour which are the subject of this ground were as follows. In an address to the jury at the outset of the trial, her Honour said:- "Now one of the most vital things you must keep at the front of your minds is that the Crown has the task of satisfying you of the guilt of the accused and the level at which you must be satisfied is the level called "beyond reasonable doubt". So you have to decide whether the Crown has satisfied you beyond reasonable doubt of the matters which are alleged against the accused. … If you are satisfied beyond reasonable doubt that the Crown has proved the matters necessary to make up the offence, your oath as jurors requires you to enter a verdict of guilty. However, if on the other hand, you are not so satisfied, then your oath requires you to enter a verdict of not guilty and that verdict must be unanimous. Remember, however, it does not matter by what line of argument each of you comes to your individual decision, but the decision of guilt or innocence, the verdict, requires the agreement of all of you." 23 In her summing up, her Honour said:- "How you arrive individually at the decision as to whether or not the accused is guilty or innocent of one or both of the charges, is a matter for you." And later "So you are not to use the evidence of the previous bad character of the accused as a fact upon which you can conclude his guilt or innocence in this matter…" 24 Elsewhere in Her Honour's summing up she emphasised that the Crown had the onus of proving the guilt of the accused and that the accused had no burden to prove anything and was not required to prove his innocence. Her Honour repeated on a number of occasions that the standard of proof required was proof beyond reasonable doubt. 25 There can be no doubt that the references to "guilt or innocence" – an expression calculated to indicate that these were alternatives for the jury to consider - were quite inappropriate. The issue in a criminal trial is whether an accused's guilt has or has not been proved. Even if not innocent, he or she is entitled to be acquitted if the Crown has not proved guilt. 26 However, when the totality of Her Honour's remarks is considered, the errors, the subject of this complaint, were not significant and I would not uphold this ground of appeal. Ground 6 The trial judge erred in permitting the Crown to read onto the record a statement of Peterson in re-examination. 27 This ground does not state accurately what occurred. Christopher Lloyd Peterson said that he was an eye-witness to, and in part participant in, events. In cross-examination, counsel appearing for the Appellant at trial questioned the witness on the topic of his memory. He drew the witness' attention to some evidence in chief and asked whether it was part of a condition of Attention Deficit Disorder from which the witness suffered that his memory was not as good as it should be. The answer was yes. Counsel obtained the concession that the witness' long term memory might be faulty. He obtained from the witness agreement that in the witness' statement of 25 October 2001 the witness had done his best to reconstruct events of the night before. Counsel suggested to the witness that at the time of trial his recollection of events was hazy and that he had "got things out of sequence". The witness replied "Definitely not". – T88 28 The cross-examination also included the following:- Q. The general condition that you have of Attention Deficit Disorder that means it is difficult for you to concentrate doesn't it? A. Yes. Q. It means your memory is not very good? A. This is not totally correct. Q. "Sometimes my memory is not as good as what it should be" that was your evidence yesterday is that correct? A. That is correct. Q. And in fact if you think about things that happen a while ago you've got to reconstruct them in your mind haven't you? A. I haven't answered some of your questions because I can't remember. The ones I have answered I can remember. Q. Do you think perhaps that sometimes you do things out of sequence. You remember things that happen but you get them in the wrong order. A. No – that's dyslectic. Q. Sorry. A. That's dyslectic, it's not ADD. 29 Counsel for the Crown then sought leave under s108 of the Evidence Act to re-examine by putting in front of the witness a statement made by him on 25 October 2001 and taking him through it by leading questions "so that nothing else gets in that shouldn't get in.". 30 The transcript records her Honour saying "all right" and that discussion ensued. Otherwise, no objection to this course or to the questions is recorded. The witness was then provided with a copy of the document, acknowledged it bore his signature and that it was a statement made by him on 25 October. Then the Crown Prosecutor took the witness to various passages and procured the witness' agreement that statements in the terms the Crown Prosecutor enunciated appeared in the document. 31 It was submitted that the evidence was inadmissible and that, at the very least, her Honour was obliged, before allowing the re-examination, to give consideration to s192 of the Evidence Act and to imposing, under s136 of that Act, restrictions as to the use that could be made of the evidence. 32 There are a number of provisions of the Evidence Act which are also relevant. They include parts of ss 37, 55, 102, 108, 136 and 192 which provide:- 37(1) A leading question must not be put to a witness in examination in chief or in re-examination unless: (a) The court gives leave; or (b) … (c) No objection is made to the question… 55(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness; or (b) the admissibility of other evidence ;or (c) a failure to adduce evidence. 102 Evidence that is relevant only to a witness's credibility is not admissible. 108(1) The credibility rule does not apply to evidence adduced in re-examination of a witness. (3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) Evidence of a prior inconsistent statement of the witness has been admitted; or (b) It is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or reconstructed (whether deliberately or otherwise) or is the result of a suggestion; and and the court gives leave to adduce the evidence of the prior consistent statement. 136 The Court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading. 192(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the maters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and (b) the extent to which to do so would be unfair to a party or to a witness; and (c) the importance of the evidence in relation to which the leave, permission or direction is sought; and (d) the nature of the proceeding; and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. 33 The fact that no objection is noted in the transcript suggests, notwithstanding the reference to "discussion ensued", that there was no objection. However, even if there was, it is impossible to fault her Honour's decision permitting of the course which was followed. There can be no doubt that, particularly in light of the cross-examination, the evidence of what the witness had said on the night of events and before the passage of a substantial period of time had possibly dimmed or rendered defective or unreliable his memory was, in light of the terms of s55, relevant. Section 108(1) had the effect of overcoming the prohibition in s102. 34 Again given the terms of the cross-examination, it could not be, within the terms of s136, unfairly prejudicial to the Appellant or misleading that the jury should know what the witness said at a time when the events of the night of 25 October 2001 could be expected to have been fresh in his memory. Nor could any of the considerations referred to in s192 be regarded as arguing against the grant of leave. There remains s37. 35 The discussion which occurred after the Crown Prosecutor said that he was seeking leave indicated that there were some passages in the statement of the witness which, had they been admitted, were likely to be unfairly prejudicial to the Appellant. A copy of the witness' statement was clearly available to both counsel and there does not seem to have been any scope for doubt as to what the document contained. Any attempt to have the witness recount his recollection of what the statement contained, was liable to suffer from the same defects of memory as the witness' recollection of events which occurred in the 24 hours before the statement was made. In these circumstances, no error is shown in her Honour's decision to permit re-examination in the form which occurred. 36 This ground fails. Ground 7 The trial judge erred in failing to direct the jury as to how they could use the statement of Peterson. 37 It was submitted that the jury were given no directions in this regard and at the very least the jury should have been given a "S165 Evidence Act direction". 38 At the trial no application was made for a warning under s165 or for a direction as suggested in this ground. The evidence was not of a "kind" – see R v Stewart [2001] NSWCCA 260 to which s165 refers nor the risks of inappropriate use sufficient to justify excusing the Appellant from the strictures of Rule 4 of the Criminal Appeal Rules. The Appellant should not have leave to argue this ground. Ground 8 The trial judge erred in permitting cross-examination of the accused on a conviction and order. 39 The transcript records that, during cross-examination of the Appellant, "Crown Prosecutor made application for leave to be granted pursuant to s104(4) to cross examine the accused as to (1) the fact that an AVO had been sought by and granted to Mrs Houssein, the accused's and complainant's mother, restricting the accused from attending upon her premises as well as the usual orders that accompany such AVO's; and (2) convictions of dishonesty and violence and convictions that go to matters such as carrying cutting implements. Discussion ensued." 40 So far as is relevant, her Honour's response was as follows:- "In view of the time I will not give extensive reasons but looking at the nature of s104 and s110 and, for that matter, ss135 and 136, it seems to me that the circumstances in which such highly prejudicial material as prior criminal offences would be allowed in, do need the raising of specific good character such as, 'I'm not known to the police' or similar such statements and a winsome admission of bad character, it seems to me is one of those ways of getting around it. However, in relation to the AVO involving Mrs Houssein, it is my view that that is evidence of a specific kind for which s104 was created and I grant leave to ask the questions which have been adumbrated by the Crown. I might just briefly read onto the record, the order that I have made. That order is leave granted pursuant to s104 subs (4) of the Evidence Act (1995) to cross-examine the defendant on an apprehended violence order dated 28 January 2000 being taken out by his mother, Mrs Zera Houssein at a Local Court, its terms and its duration." 41 The cross-examination which followed this leave was also brief. It was as follows:- Q Mr Houssein, finally, on 28 January 2000, an apprehended violence order was granted to your mother, Mrs Houssein..? A Yeah Q For approximately 2 years. Is that correct? A Yeah I think – I'm not sure of the dates, but yeah, yeah. Q And the terms of that order were that you should not go within 50 metres of the premises where she resided. Correct? A Yeah, but I was still going there. Q And further that you shouldn't intimidate, threaten or harass her? A That's right yeah, I never done that. Q Or any person in a domestic relationship with her? A That's correct sir. Q Your mother really did choose David over you, didn't she? A That's life. It doesn't matter I'm a big man. 42 Before I turn otherwise to the merits of this ground of appeal, it is convenient to record in a little detail the issues as they were presented to the jury. The Crown case depended primarily on the evidence of the victim who was the Appellant's brother, and Mr Peterson. 43 David Houssein's evidence included that the Appellant arrived back at Mr Peterson's flat around midnight, apparently affected by drugs. The Appellant went to the kitchen where he was observed playing with a knife and announced to David Houssein who was watching television in the lounge-room that he was going to stab him, as payback for a fight they had had some weeks earlier. The Appellant sat down in the lounge-room briefly and then, after some further conversation, lunged at David and stabbed him 3 times. Mr Peterson who had been in his bedroom, lying down, intervened, holding a machete. David then grabbed what he referred to as a lamp post – I infer from a standard lamp - and swung it but hit Mr Peterson. The Appellant then left with the knife. 44 Mr Peterson said that when the Appellant returned, at a time Mr Peterson placed at about 2 to 3 am, the Appellant seemed a bit hazy. Mr Peterson returned to his bedroom and went to sleep. He was awakened by the sound of an argument. He heard David Houssein say, "Put the knife down". Mr Peterson rose, obtained what he said was a machete blade, opened his bedroom door, saw the other two arguing and then saw the Appellant dive across the room and stab David Houssein. Mr Peterson grabbed the Appellant and the 2 then fell onto the lounge. David Houssein then swung a tall wooden lampshade. Mr Peterson then asked the Appellant to leave and he did so, taking the knife with him. 45 There was also evidence from a Constable Smith that after the Appellant walked into a police station and gave himself up and was placed in the dock, an exchange of conversation between the Appellant and someone in an adjoining dock was heard. Constable Smith said that the other person said, "What are you in for?" and the Appellant replied, "I stabbed the cunt". Constable Smith seems to have made no note of the conversation at the time. He denied the suggestion put to him by the Appellant's counsel that he had left out of his account of the conversation something further to the effect "but it was in self defence". 46 The only evidence in the Applicant's case came from him. He recounted a history of disagreement including that the victim had stolen some $800 from him some weeks previously. He said that on the night he and his brother were arguing. The victim threw a punch, the two commenced to struggle on a couch, the Appellant pushed the victim off and the latter grabbed a lamp base and the latter took hold of a knife that was nearby. Mr Peterson, holding a machete, then grabbed and somewhat confined the Appellant on the couch while the victim commenced to hit him. The Appellant panicked and struck out with the knife an unknown number of times. The three separated and the Appellant ran off. In cross-examination the Appellant seemed to suggest that it was only after the victim had commenced to hit him that the knife was acquired. The Appellant also denied that Mr Peterson's actions were only restraint, as opposed to joining in the attack on the Appellant. 47 The Appellant acknowledged that in the course of his interview with the police he told some lies including that he had not been at Mr Peterson's house on the night of the stabbing. Other of his evidence, e.g. that even though he believed the victim was soon to receive a cheque for $1200, he did not want from it the $800 he said the victim had stolen, was not inherently believable. 48 So far as is presently relevant s104 provides:- (1) This section applies only in a criminal proceeding and so applies in addition to s103. (2) A defendant must not be cross examined about a matter that is relevant only because it is relevant to the defendant's credibility, unless the court gives leave. (4) Leave must not be given for cross examination by the Prosecutor about any matter that is relevant only because it is relevant to the defendant's credibility unless:- (a) Evidence has been adduced by the defendant that tends to prove that the defendant is, either generally or in a particular respect, a person of good character; or (b) Evidence adduced by the defendant has been admitted that tends to prove that a witness called by the prosecutor has a tendency to be untruthful, and that is relevant solely or mainly to the witness's credibility. 49 I confess myself completely unable to understand what her Honour had in mind by her statement to the effect that evidence of the AVO was evidence of a specific kind for which s104 was created. Sub-sections 2 and 4 of s104 are directed to evidence which is relevant to a defendant's credibility. In their inherent nature apprehended violence orders and the proceedings in which they are sought say nothing about credibility. 50 The Crown however sought to justify the admission of the evidence upon the basis that the Appellant and his counsel had attacked the credibility of a number of witnesses called by the Crown and that the evidence reflected on evidence that the Appellant had advanced to the effect that he was someone concerned to protect his mother and ensure that she did not face circumstances where persons, feeling aggrieved by conduct of Mr David Hussein, would break her windows. 51 That there was an attack on the credibility of the Crown witnesses may be conceded. Furthermore, the Appellant did give evidence that earlier on the day of the stabbing he had suggested to Mr Peterson that the latter find the Appellant's brother because there were people all around his mother's place. Mr Peterson on his return announced to the Appellant that all of his mother's windows were smashed. The Appellant suggested that his brother was responsible for what had occurred and said that on the day of the stabbing he and his brother had argued about the broken windows. The Appellant also said that after he had been informed of the window smashing he had tried to make some money (by gambling) to pay off the person responsible to avoid trouble. He was unsuccessful and after he returned to Mr Peterson's place he asked his brother what he intended to do about the situation and an argument then developed. It was in the course of that argument that his brother attacked him. 52 Under cross-examination the Appellant agreed that he was terribly concerned about his Mother when he heard that his mother's house was surrounded, and having seen the "Telopea boys" there. Having failed in his attempt to make money he rang his mother and told her not to go home. He agreed that on an earlier occasion he had smashed one little window of his mother's on the day his brother stole his money. He also agreed that his mother would not have him living with her as at October 2001 although she would have David there. 53 However, it still does not seem to me that the evidence of the apprehended violence order was admissible. The fact that there was such an order, while consistent with the Appellant not caring for his mother, is not inconsistent with having some concerns for her or with the Appellant's suggestion that his brother might have alienated others willing to display aggression. The evidence had nothing to do with the Appellant's credibility. 54 Her Honour seems to have thought that the evidence went to issues in the case, including motive. While the relationship – like, dislike, love, jealousy etc. - between the Appellant on the one hand and the victim and, possibly, their mother on the other may well have been relevant in the case, the mere fact of an apprehended order being made or its terms, as revealed, had absolutely no relevance to any of the issues in the proceedings. Accordingly leave to cross-examine on the topic should not have been granted. 55 But even if the evidence was regarded as of some relevance, the question would still arise whether it should have been disallowed on discretionary grounds. In proceedings where the Crown case was that the Appellant had exhibited uncalled for and serious violence to his brother, the potential for the evidence presently under consideration to be unfairly prejudicial was great. Her Honour's reasons for admitting the evidence do refer to ss135 and 136 and prejudice but make no reference to ss137 or 192 or to the need under the former section to consider the probative value of the evidence or, under the latter, its importance. Although I do not take the view that a judge's failure to mention such provisions or the factors referred to in them is necessarily indicative of ignoring them, both the decision to allow the cross-examination and the wholly inadequate way in which her Honour's reasons for that decision are expressed lead me to the conclusion that s192 and probably s137 and their mandatory requirements were not considered. In the context of the issues in the Appellant's trial, the evidence of the AVO order was supremely unimportant. Even if otherwise admissible, I do not see how her Honour could properly not have exercised her discretion to exclude it. 56 In my view this ground of appeal is made out. The Proviso 57 The conclusion arrived at in relation to ground 8 means that, subject to the application of the proviso to s6 of the Criminal Appeal Act, the appeal against conviction must be allowed. The issue of whether the proviso should be applied involves consideration of whether in light of the error in the admission of the evidence of and relating to the AVO the Court can be satisfied that there was no substantial miscarriage of justice. In the context of a Crown case of a violent attack by the Appellant on his brother, the evidence of the apprehended violence order directed to the protection of their mother was calculated to create substantial prejudice against the Appellant. There was no suggestion that the requirements of s97 of the Evidence Act – the tendency rule- were met and in these circumstances, it is impossible to conclude that there had been no miscarriage of justice by the wrongful admission of the evidence. Accordingly, it is inappropriate to apply the proviso to s6 of the Criminal Appeal Act. 58 On the other hand, there clearly was admissible evidence upon which the Appellant could have been convicted. There is still a deal of both the non-parole period and the balance of his sentence left to run and in these circumstances, it is appropriate that there be an order for a new trial. Ground 9 The Applicant seeks leave to appeal against sentence 59 In light of my conclusion as to the disposition of the appeal, it is unnecessary that I embark upon any consideration of this ground. Orders 60 The orders I propose are as follows: 1. Appeal allowed. 2. The conviction of the Appellant before Judge Gibson on 12 April 2002 and the sentence imposed on 14 June 2002 by her Honour are quashed. 3. Subject to the discretion of the Director of Public Prosecutions, there should be a new trial. 61 HIDDEN J: I agree with Hulme J that Ground 8 is made out and that there must be a new trial. However, I would not wish to be identified with a number of comments in his Honour's judgment critical of the trial judge. 62 I also agree with his Honour's reasons for rejecting Ground 6, but I would prefer to express no concluded view about Ground 7. I say this because the problem which gave rise to those grounds could recur at a new trial. It appears to me that the evidence led in re-examination of the witness Peterson was hearsay and, for that reason alone, a warning might have been called for: s165(1)(a) of the Evidence Act. That, however, would be a matter for the trial judge to determine. ****************** Last Modified: 04/01/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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