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[2009] QCA 332
respondent. Appeal dismissed.
The appeal was dismissed. The Court identified errors concerning the hostile-witness ruling and the admission of the whole police statement, and considered evidence of Baira’s decision to stop answering police questions inadmissible. It nevertheless found no miscarriage of justice: the challenged statement passage did not show Baira acting aggressively, the injury images were relevant to intent, and the jury directions were adequate when read as a whole. The Court also considered that the jury could reasonably infer an intent to cause at least grievous bodily harm from the severity and nature of the injuries.
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3,209 words · generated 02/10/2026
Lew James Baira appealed his jury conviction for murdering Luis Planas. The Queensland Court of Appeal heard the appeal on 3 August 2009 and dismissed it on 30 October 2009. Holmes JA gave the principal reasons; Mullins J and Philippides J agreed with the order and reasons ([1], [50]–[52]).
1 cited instrument linked from this judgment.
The appeal arose from events at Dora Morseu’s Innisfail home in the early hours of 19 August 2006. Morseu was Baira’s aunt. Planas, her friend, had been staying at her house. On the night in question, Morseu and Planas encountered Baira while drinking at local hotels, and Baira arranged to stay at the house. Morseu later saw Baira in the bedroom Planas occupied. She heard him say, “Get up, get up”, and called out for him to leave Planas alone. She next saw Planas lying on the hallway floor ([2]–[3]).
Planas’s naked body was found in the front yard the following morning. The medical and forensic evidence described extensive injuries. The pathologist considered that Planas had sustained ten or more blows to the face. Injuries to his face, ears, head and ribs were consistent with forceful blows and with kicking or stomping while he was on the ground. He died from inhaling blood from his nasal passages into his lungs, and also had subdural and subarachnoid haemorrhages ([5]–[10]).
In a police interview, Baira initially said there had been no fight. Later, he said that Planas had hit him and that he had punched Planas once with each hand in the face. He said he left after finding Planas bleeding and unconscious ([11]–[13]). At trial, Baira did not give evidence. His counsel conceded that he had unlawfully killed Planas, making intent the central issue. The defence argued that the Crown had not proved intent to kill or cause grievous bodily harm and raised intoxication, provocation and self-defence ([14]).
The appeal challenged several aspects of the trial. They included the admission of 43 still photographs and a video of the injuries; the decision to declare Crown witness Colin Mow hostile and admit his police statement; the admission of the recorded interview, including Baira’s decision to stop answering after legal advice; the absence of proposed directions on lies and circumstantial evidence; an alleged reversal of the burden of proof; and whether the murder verdict was unreasonable ([15]–[16], [21]–[49]).
The Court assessed the challenged rulings and directions in the context of the whole trial, not in isolation. The central factual issue was whether Baira had the intent required for murder. Evidence of the injuries therefore mattered to the jury’s consideration of the nature and force of the assault.
Holmes JA considered the photographs and video probative because they allowed the jury to see the nature and location of the wounds, particularly those to the face and head ([18]). The images were not, relatively speaking, shocking or gruesome; the brief image of a fly on Planas’s mouth was unlikely to have caused a lasting or significant reaction ([17]). The police scientific officer identified the marks, explained their locations and clarified which photographs were close-ups of injuries shown elsewhere. Labels and scales also helped distinguish injuries and views ([19]). The trial judge directed the jury to put aside sympathy and prejudice and to assess the evidence calmly ([16], [20]). On that basis, admitting the images did not cause a miscarriage of justice.
The Court found problems with the handling of Mow’s evidence. Mow gave different accounts of what he had heard outside Morseu’s house. His police statement described two voices, one male, and banging noises. His evidence shifted from saying he heard only Morseu’s voice to saying that he had heard two voices, one of which he attributed to Planas. He also expressed uncertainty, explaining that he had been intoxicated and that time had passed ([21]–[24]).
The judgment explains that a witness’s inconsistency alone does not establish that the witness is hostile. The relevant concept was a witness unwilling to tell the truth in response to non-leading questions. A court could consider demeanour and prior inconsistent statements, but Holmes JA noted that the trial judge had not made a finding about Mow’s demeanour, and the evidence did not establish that Mow was deliberately being unhelpful ([30]–[31]). The declaration of hostility therefore lacked a sufficient basis.
The Court also held that the entire police statement should not have been tendered. Section 17 of the Evidence Act 1977 (Qld) applied to a witness the court considered adverse; s 18 operated through a different procedure and did not apply to the hostile-witness situation. Under s 17, the admissible material was confined to the actual inconsistent statements, rather than the whole document ([29], [32]). The entire statement included an account of an earlier encounter at a hotel. Although the Court identified the error, it found no relevant prejudice. The passage relied on to suggest aggression said that Baira did not say anything and did not act against Mow ([28], [33]).
The Court also accepted that the evidence that Baira stopped answering questions after receiving legal advice was inadmissible because it proved nothing ([35]). But it did not follow that the conviction had to be set aside. Counsel had not objected, and the Crown did not ultimately argue that Baira’s earlier lies showed consciousness of guilt. Instead, the Crown urged the jury to reject the interview account as untruthful. The defence relied on intoxication to explain Baira’s answers and did not ask for a direction about lies. In that context, Holmes JA concluded that the absence of a direction did not cause a miscarriage ([36]–[39]).
The circumstantial-evidence and onus complaints were assessed by reading the directions as a whole. The trial judge told the jury that circumstantial guilt had to be the only rational inference and that a reasonable inference consistent with innocence required acquittal. He also explained that the Crown had to prove the relevant intent beyond reasonable doubt, including despite the evidence of intoxication ([41]–[45]). The Court considered the intoxication argument to be the only alternative inference suggested at trial and found that it had been fairly put to the jury ([45]). Separate directions had also made clear that Baira did not have to prove his innocence and that the Crown retained the burden ([47]).
Finally, the Court rejected the challenge to the weight of the evidence. Holmes JA considered that the jury could regard the nature and severity of the injuries as leaving no rational possibility that Baira had not intended at least grievous bodily harm ([48]–[49]).
The judgment’s discussion of hostile witnesses is tied to the Queensland statutory provisions identified in the reasons. Section 17 permitted a party, with leave, to prove a prior inconsistent statement where the court considered its witness adverse. Section 18 dealt with a different situation: cross-examination about a former inconsistent statement where the witness did not distinctly admit making it. Holmes JA relied on R v Booth to distinguish these mechanisms, concluding that s 18 did not govern the hostile-witness procedure under s 17 ([29]).
The reasons also give content to the limit on what can be introduced under s 17. The prior inconsistent material is the particular statement or words that conflict with the witness’s evidence, not automatically the entire police statement or document containing them. Holmes JA adopted the reasoning about the meaning of “statement” in Price v Bevan, which considered a similar provision in South Australian legislation ([32]). The judgment therefore identifies a procedural boundary: declaring a witness hostile does not convert every part of a prior statement into admissible evidence.
The case does not purport to replace those statutory provisions or establish a general rule that every inconsistency is insufficient to demonstrate hostility. Rather, it applies the stated test to the evidence before the trial judge. The reasons cite R v Hayden and Slattery for the description of an adverse witness and McLellan v Bowyer for the caution that not every witness who testifies inconsistently with an earlier statement can properly be regarded as hostile ([30]). The specific conclusion was that Mow’s changes, uncertainty and apparent difficulty recalling events did not, without more, justify the hostility ruling ([31]).
The judgment also illustrates how an appellate court may distinguish an error from a miscarriage of justice. The hostile-witness ruling lacked a sufficient basis, the entire statement should not have been tendered, and evidence of Baira’s decision to stop answering questions was inadmissible. Nonetheless, Holmes JA assessed the effect of each matter on the trial. The statement passage did not establish aggression, and the interview evidence did not result in a miscarriage in the context of the defence’s approach and the Crown’s arguments ([33], [35]–[39]). The outcome shows that identifying an error does not itself resolve whether an appeal succeeds.
On circumstantial evidence, the judgment records the trial judge’s direction that guilt must be the only rational inference and that a reasonable inference consistent with innocence required acquittal ([41]). The Court did not treat the failure to repeat that direction during the later discussion of intent as a misdirection. It considered the summing-up as a whole, including the directions on intent, intoxication and the Crown’s burden ([42]–[45]). The reasons therefore demonstrate the importance of context when reviewing jury directions; they do not state that repetition is never necessary.
The provided judgment text reports the law and authorities as applied in 2009. It contains no account of any subsequent statutory amendment or later appellate treatment of R v Baira. Any claim about the law after this judgment, beyond what appears in the supplied text, cannot be established from this source alone.
At [29], Holmes JA says that s 17 “permits proof” of an inconsistent statement made by a hostile witness and that s 18 “has no application” where the court has found the witness adverse. In plain English, the judgment treats the two sections as separate routes. The procedure used depends on the court’s assessment of the witness and should not be confused with the procedure for putting a prior statement to a witness who is not declared adverse.
At [30], the judgment describes an adverse witness as one unwilling to tell the truth and the whole truth in response to non-leading questions. This frames hostility as more than a difference between a current account and an earlier one. The court is concerned with the witness’s willingness to give truthful evidence, assessed on the available circumstances.
At [31], Holmes JA concludes that Mow’s changes did not, on their own, provide a sufficient basis for declaring him hostile. The significance is fact-sensitive: Mow had changed his account, but the reasons also record his uncertainty, lapse of time, intoxication and the absence of a finding about demeanour. The conclusion should not be read as saying that inconsistent statements can never support a hostility ruling.
At [32], Holmes JA states that only the actual inconsistent statements were admissible, not the whole police statement. In practical terms, the ruling did not allow unrelated or consistent parts of a document to be introduced merely because one part contradicted the witness’s evidence.
At [35], Holmes JA says that evidence that Baira stopped answering after legal advice was inadmissible because it “did not prove anything”. The Court nevertheless considered the trial context and concluded that its admission had not caused a miscarriage. This passage distinguishes the admissibility question from the separate question of whether an error affected the safety of the conviction.
At [41], the recorded direction required the jury to find guilt to be “the only rational inference” available from the circumstances. The judge also said that a reasonable inference consistent with innocence required a not-guilty verdict. The Court treated that direction as important to the later assessment of the intent directions.
At [43], the trial judge told the jury that if the Crown did not prove the relevant intent beyond reasonable doubt, including in light of intoxication, the verdict must be not guilty of murder. In plain English, intoxication was not presented as automatically excluding intent; the Crown still had to prove that the required intent was formed.
At [47], Holmes JA considered the challenged passage about assessing Baira’s interview account alongside the earlier directions on the presumption of innocence and the Crown’s burden. The passage did not, in context, tell the jury that Baira had to prove his account or that rejecting it relieved the Crown of its obligation.
At [49], Holmes JA concluded that the jury was entitled to view the injuries as leaving no rational possibility that Baira lacked an intent to cause at least grievous bodily harm. This was the Court’s answer to the argument that the murder verdict was against the weight of the evidence.
The statutory discussion is most directly relevant where a party seeks to treat its own witness as adverse after that witness gives evidence inconsistent with an earlier statement. The case signals that the court’s decision should not be based on inconsistency alone. The circumstances must support the conclusion that the witness is unwilling to tell the truth in answer to non-leading questions. The reasons direct attention to the witness’s evidence and demeanour, while cautioning against treating every changed account as hostility ([30]–[31]).
The s 17 discussion is relevant where a party seeks to prove a hostile witness’s prior statement. The judgment says that the material admitted should be confined to the actual inconsistent statements, rather than the entire police statement or document ([29], [32]). The case may therefore help identify whether the tendered material contains passages that do not contradict the witness’s evidence. The judgment itself does not decide every possible question about the form of proof or every statutory setting; its reasoning is based on the Queensland provisions and the authorities discussed there.
The evidence-of-injuries discussion concerns cases in which the extent and location of injuries bear on a live issue such as intent. The judgment assessed whether photographs and video added probative value, whether they were unnecessarily disturbing, how the witness explained them, and what directions were given to the jury ([17]–[20]). It does not establish that any particular number of images is automatically acceptable. Its analysis depended on the nature of the images, the explanatory evidence and the importance of the injuries to the issue in dispute.
The interview discussion concerns evidence that an accused stopped answering questions after seeking legal advice, together with an argument that the jury should have been directed about lies or consciousness of guilt. The Court described the stopping evidence as inadmissible but assessed the alleged impact in light of the objections made, the way the Crown put its case, the defence’s intoxication argument and the directions sought or not sought ([35]–[39]). The reasons do not establish that every failure to object or request a direction has the same consequence.
The circumstantial-evidence analysis is relevant where intent is inferred from conduct and surrounding circumstances rather than established by direct evidence. Here, the jury had a general direction on the only-rational-inference test and a later direction specifically addressing intent and intoxication. The Court found the directions adequate in the context of the live issues and the alternative hypothesis advanced at trial ([41]–[45]). The judgment’s application should be understood in that context rather than as a universal rule about how every summing-up must be structured.
The supplied judgment contains no later cases applying, distinguishing, overruling or otherwise treating R v Baira. It therefore does not support a sourced account of the decision’s subsequent reception or present precedential status.
The authorities mentioned in R v Baira are earlier authorities, not later treatment of the case. Holmes JA applied R v Booth to explain the relationship between the statutory procedures for hostile witnesses and other witnesses ([29]). The Court applied Price v Bevan in explaining that the admissible prior statement is limited to the specific inconsistent statements ([32]). It also cited R v Hayden and Slattery, McLellan v Bowyer and R v Lawrie in discussing the concept of an adverse witness and the relevance of inconsistency ([30]).
The judgment referred to Zoneff v The Queen and Edwards v The Queen in considering possible directions about lies and consciousness of guilt. It concluded that an Edwards direction was not called for because the Crown had not relied on the lies as demonstrating consciousness of guilt. A Zoneff direction might have been given, but the defence had not asked for one ([38]–[39]). Those references explain the reasoning in this appeal; they do not establish how later courts have treated R v Baira.
Accordingly, any professional research requiring the later history of the case, the continuing status of its statutory analysis, or the treatment of its reasoning by subsequent courts would need sources beyond the judgment supplied here. That limitation is about the available source material, not a conclusion that later treatment does or does not exist.
The judgment does not decide how the hostility test should be applied across a fuller range of factual situations. It states that a court may consider demeanour and prior inconsistent statements, but it does not give an exhaustive list of relevant factors or specify how competing explanations, such as faulty memory, confusion or deliberate recantation, should be weighed in every case ([30]–[31]). Its conclusion rests on the particular record concerning Mow.
The reasons also do not address every practical question about identifying the exact admissible words in a lengthy or complex prior statement. They establish that the whole document is not automatically admissible and that the actual inconsistent statements are the relevant material ([32]). The supplied text does not discuss how a court should handle surrounding context needed to make a particular inconsistent passage intelligible, or other statutory provisions that might independently affect admissibility.
On the injury evidence, the judgment does not set a general numerical ceiling for photographs or video footage. Holmes JA considered the images’ content, their explanatory context and their relevance to intent in this trial ([17]–[20]). The case therefore leaves open how the balance would apply where images are more distressing, less probative, repetitive in a different way, or insufficiently explained to the jury.
On evidence of stopping a police interview after legal advice, the Court said the evidence was inadmissible because it proved nothing, but found no miscarriage in the circumstances ([35]). The judgment does not set out a comprehensive account of the treatment of such evidence in all criminal proceedings or address every possible jury direction that might be appropriate if it is inadvertently admitted.
Finally, the judgment’s assessment of intent depended on the evidence of this assault and the instructions given at this trial. It held that the jury could infer an intention to cause at least grievous bodily harm from the injuries, and that the summing-up adequately dealt with circumstantial evidence and intoxication ([41]–[45], [49]). It does not establish that severe injuries invariably prove that intent, or define how a different combination of medical evidence, conduct and intoxication would affect the inference.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Baira [2009] QCA 332
PARTIES: R v BAIRA, Lew James (appellant)
FILE NO/S: CA No 57 of 2009 / SC No 37 of 2008
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: Supreme Court at Cairns
DELIVERED ON: 30 October 2009
DELIVERED AT: Brisbane
HEARING DATE: 3 August 2009
JUDGES: Holmes JA, Mullins and Philippides JJ / Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER: Appeal dismissed
CATCHWORDS: Evidence – admissibility and relevance – in general – other cases – where appellant convicted by jury of murder – where at trial appellant conceded he unlawfully killed victim, so only issue was intent – where Crown tendered 43 photographs and a video recording of injuries to victim’s face, head, torso and limbs – whether the number of photographs and video had a prejudicial effect in excess of their probative value – whether admission of photographic and video evidence caused miscarriage of justice / Criminal law – procedure – witnesses – hostile witnesses – where a Crown witness gave evidence inconsistent with prior police statement – where witness declared hostile because his evidence was “different” from his police statement – where, as a result, Crown prosecutor cross-examined the witness and tendered his police statement – whether hostile witness ruling properly made – whether, under s 18 of Evidence Act 1977 (Qld), statement should not have been admitted – whether s 17 alone applies where witness declared hostile – whether whole statement admissible – whether trial judge should have directed jury about use of statement – whether miscarriage of justice / Criminal law – appeal and new trial – miscarriage of justice – particular circumstances not amounting to miscarriage – misdirection or non-direction – where record of appellant’s police interview tendered – where in it appellant told lies and later, after taking legal advice, refused to answer further questions – where no direction sought or given about that evidence – where trial judge invited jury to weigh appellant’s account given in his police interview – whether evidence of appellant’s refusal to answer questions properly admitted – whether jury should have been given direction about lies – whether trial judge’s direction reversed onus of proof – whether miscarriage of justice / Criminal law – appeal and new trial – verdict unreasonable or insupportable having regard to evidence – appeal dismissed – where evidence of appellant’s having intent to kill or do grievous bodily harm circumstantial – whether trial judge’s direction on use of circumstantial evidence adequate – whether jury could have been satisfied beyond reasonable doubt that the circumstantial evidence was only consistent with appellant’s having the necessary intent – whether murder verdict against weight of evidence / Evidence Act 1977 (Qld), s 17, s 18 / McLellan v Bowyer (1961) 106 CLR 95; [1961] HCA 49, cited / Price v Bevan (1974) 8 SASR 81, applied / R v Booth (1981) 74 Cr App R 123, applied / R v Hayden and Slattery [1959] VR 102, cited / R v Lawrie [1986] 2 Qd R 502, cited
COUNSEL: S M Ryan for the appellant / M J Copley SC for the respondent
SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Qld) for the respondent
The events of 18 & 19 August 2006
Luis Planas died in the early hours of the morning of 19 August 2006 at the Innisfail home of a woman named Dora Morseu. He was a friend of hers, and had been staying there, sleeping in her son’s bedroom, for about three weeks. The appellant was Ms Morseu’s nephew, but before the night of 18 August 2006, he and Mr Planas were not known to each other. On that night, Mr Planas and Ms Morseu were drinking at various Innisfail hotels, when they encountered the appellant, who arranged to stay at Ms Morseu’s house for the night. Mr Planas was the first to give up drinking and go back to Ms Morseu’s house; she returned there with the appellant at around 2.00 am. Ms Morseu was extremely intoxicated. She went straight to bed, noticing as she passed her son’s bedroom that the door was closed.
Ms Morseu described waking later and seeing that her nephew was in the bedroom Mr Planas occupied. She could see that his right arm was moving, with his hand clenched, and she heard him saying, “Get up, get up”. She called to her nephew, “[L]eave him alone, he’s asleep, and he’s staying with us”. The last she saw of Mr Planas before she fell back to sleep was that he was lying on the floor in the hallway. She could see his lower body, clothed in the shorts he usually wore to bed. Later still, her nephew came into her bedroom urging her to come and have a drink with him, but she refused. At this stage she could no longer see Mr Planas’ legs.
A neighbour of Ms Morseu, David Mow, had also spent the night drinking, with his younger brother Colin, at Innisfail hotels. They also returned home in the early hours of the morning and sat for a while smoking on their back patio. David Mow gave evidence that he heard a man and woman arguing and yelling from Ms Morseu’s house. He recognised the woman’s voice as that of Ms Morseu, whom he had known for five or six years. Colin Mow said in his evidence that he heard Ms Morseu yelling. Questioned as to whether he heard anyone else’s voice, he said he had not, nor had he heard any other noise besides Ms Morseu’s voice. That was not consistent with his police statement. What followed will be set out in more detail later, but for present purposes it is sufficient to say that he was ultimately declared hostile. His statement was admitted; in it he had described hearing two voices yelling, one of them male, and two big bangs, as well as other muffled banging noises, coming from Ms Morseu’s house.
Mr Planas’ naked, dead body was found lying face down in the front yard of Ms Morseu’s house on the following morning. An ambulance arrived at about 7.40 am. That morning a taxi driver took a male passenger from an Innisfail rank to Gordonvale; the appellant subsequently admitted that he was the passenger. He was arrested that afternoon at a Gordonvale hotel.
Evidence concerning the injuries to Mr Planas
A paramedic, Mr Faulks, had attended with the ambulance. He saw injuries to Mr Planas’ face: there was swelling to his nose, suggestive of a fracture, and severe bruising to the left side of the face, particularly around the eye socket. Mr Faulks also noticed dried blood and bruising around the chest area, abrasions to the feet and bruising to the right bicep and ankles. A police scientific officer, Sergeant Ganzer, arrived shortly after and directed the taking of photographs and video footage of the body, the yard and the house.
The video recording was tendered. As it was played in court, Sergeant Ganzer identified the various cuts, abrasions, bruising and bloodstains on the dead man’s face, head, torso and limbs. Forty-three still photographs of Mr Planas’ injuries were also tendered, without objection. There were nine of the face and head; for each mark or injury on the torso and limbs, there was one photograph showing its position on the body and a second, close-up shot. Sergeant Ganzer explained what the photographs depicted. There were abrasions and cuts on Mr Planas’ face and head, with, in particular, some skin lost from his forehead and scalp, bruising below one ear, blood coming from the ears, and bruising around his eyes. Blood had clotted in his nose and mouth. He had bruising to his upper arms, abrasions on both hands, blood stains on the right upper arm and hands, some grazes on his shoulder blade, blood stains and bruising on the left side of his torso near the rib cage, and an abrasion on the ankle.
Mr Planas’ blood-stained clothing was recovered from a wheelie bin outside the house. Blood stains were found at the entrance to the house, in the lounge room which led off the entrance and on numerous items in one of the bedrooms. Sergeant Ganzer suggested that some of the stains on boxes on the bedroom floor were consistent with blood aspirated from Mr Planas’ mouth and nose. There was some blood staining on the linoleum of the kitchen floor, which seemed to have been wiped over; a blood stained mop was found. Most of the blood stains found in the house matched the DNA profile of Mr Planas, except for two on the doona cover in the bedroom, which matched that of the appellant. Blood stains matching Mr Planas’ DNA profile were also found on the appellant’s shorts, socks and shoes.
A forensic pathologist, Dr Williams, gave evidence. He described a number of abrasions and lacerations to the head and body. The right ear had a crushed appearance, with lacerations at its base consistent with a kick or a blow with a weapon or fist. There had been 10 or more blows to the face. Injuries to the face and ears, he said, commonly resulted from applications of force when a body was lying on the ground, more likely through a kick than a punch. There were patterned abrasions on Mr Planas’ face, probably produced by whatever was used to inflict the injuries. Severe force would have been required to produce the degree of injury to Mr Planas’ face, particularly the crushing injury to the right ear. There was damage to the brain consistent with kicking or stomping to the head. Dr Williams thought it likely that Mr Planas had been knocked to the ground and then kicked in the head.
The appellant’s police interview
The appellant was interviewed on the evening of 19 August 2006. He claimed that after he, Ms Morseu and Mr Planas had all returned from the hotel to his aunt’s house, they had some drinks together. His girlfriend arrived and he left with her at 4.15 am. She gave him a lift to Edmonton. When he left, Mr Planas was sleeping in the bedroom. He had had no fight with him and had not punched him.
After a break in the interview, however, the appellant’s account changed. He said that he had had an argument with Mr Planas about the latter causing problems in the relationship between Ms Morseu and her ex-boyfriend. Mr Planas had hit the appellant with his fist. The appellant had responded by punching him once with each hand in the face. He had hit Mr Planas in the hallway, not the bedroom, then dragged him to the toilet and left him there. Mr Planas was bleeding from the nose. The appellant’s girlfriend had arrived and he left the house with her, after waking Ms Morseu to tell her that he was going and that Mr Planas was unconscious. He agreed that he had taken a taxi to Gordonvale at about 7.30 am. His girlfriend had, he said, dropped him at the taxi rank.
After about two hours, the interview was suspended in order to change the tapes. When it resumed, the interviewing police officer reminded the appellant of his rights to remain silent and to contact a legal representative. He then asked the appellant to confirm that while the tapes were off, he had said that he would like to contact Legal Aid. The taping was again suspended for that purpose, and resumed after about half an hour. The police officer asked the appellant whether he had had time to speak with his legal representative by telephone and whether he had been given certain instructions; the appellant answered in the affirmative to both questions. He was asked whether he wished to continue with the interview and said he did not. The police officer continued, “Okay, so you were advised from your solicitor not to continue with the interview any more, is that right?” and the appellant replied, “Yeah”. The police officer went on to say that he would ask no further questions because of that advice, and the interview was terminated.
The defence case
The appeal grounds
The admission of the photographs and video recording of Mr Planas’ injuries
Counsel for the appellant submitted that the prejudicial effect of the photographs and video recording of Mr Planas’ injuries was far in excess of its probative value. It was conceded that the photographs were not particularly gruesome or distressing (although the video recording contained an unattractive image of a fly crawling on the dead man’s mouth), but their number was excessive. What was really in issue at the trial was the appellant’s intent, to which it was relevant to establish the cause of death and the force used to inflict the injuries. The photographic and video evidence did not serve that purpose. It was difficult to get a proper perspective of the number of injuries, because two photographs had been taken of each individual injury. That could give the impression of an assault of greater severity than in reality occurred. The photographs and the video recording did not, it was submitted, add anything to the evidence of the witnesses who described the injuries. They were not adverted to by the forensic pathologist when he gave his evidence, and indeed no expert explained what was seen in either.
The learned judge had given the jury a direction about the photographs:
“You should dismiss all the feelings of sympathy or prejudice, whether it be prejudice for or against the defendant or anyone else. This is a consideration of some importance in this particular case. The injuries that Mr Planas, the deceased, sustained as disclosed by the medical evidence and the photographs, you might think were quite shocking, but the defendant is not charged with the offence of assault, he is confronting the most serious charge, namely murder. You must be especially careful not to allow any sense of revulsion or
outrage at the severity of the deceased’s injuries to deflect you from a calm, rational assessment of what the evidence reveals concerning the central issues.”
Counsel submitted that the direction was confusing: it was not clear what the learned judge meant to convey by telling the jury that the appellant was not charged with assault.
That part of the video recording which shows Mr Planas’ body lasts for about a minute and a half. Some 34 of the still photographs show marks on the torso, back and limbs: cuts, abrasions and some bruising. (The genitalia are not shown in either photographs or video tape.) There are nine still photographs and a brief portion of the video tape focussing on the injuries to Mr Planas’ face and head which are more disturbing, because they show bruising around the eyes and some areas of congealed blood, particularly in the area of the mouth and nose. Even so, however, they are not, relatively speaking, shocking or gruesome photographs. Similarly, although the fly on the dead man’s mouth is an unhappy image, it is brief, and not likely to have occasioned any lasting or significant reaction in the jury.
It was important, in a case which turned on proof of intent, that the jury see for itself the nature and location of the wounds, particularly those to the face and head. Both the video tape and the photographs were probative in establishing the extent of the injuries. And although the pathologist did not give evidence directly about the photographs, his descriptions of the injuries and their likely causes could be related to them.
It is most unlikely the jury would have been in any state of confusion about the number of wounds it was looking at. Sergeant Ganzer identified what each mark or injury was (cut, abrasion or bruise) and the part of the body on which it appeared. She also made clear the relationship between the photographs, in terms of which were closer images of the same injuries shown in other photographs. And it is clear enough from the photographs themselves what they depict. Each bruise or abrasion has a scale placed against it in the photograph, and each photograph is labelled on the back indicating, for example, “mark left side” or “close up view mark left side”. The photographs of limbs and torso might have been culled, but given their relative innocuousness, I do not think that the greater number meant any unnecessary prejudice.
The learned judge’s direction emphasised the need for caution against allowing any reaction of revulsion to overwhelm clinical assessment of the evidence. The reference to assault, it seems probable, was a reminder to focus on the task of considering whether the charge of murder had been made out, rather than being deflected by the individual injuries that Mr Planas had sustained. No objection was taken to either photographs or video tape at the trial. Their admission into evidence did not occasion any miscarriage of justice.
The hostile witness ruling
Colin Mow had, as already mentioned, denied hearing any other noise besides Ms Morseu’s voice, although in his statement to police, he had referred to two voices, one of them male, and said he had heard banging noises coming from Ms Morseu’s house. On the strength of that difference between his statement and his evidence, the Crown prosecutor applied for, and was given, leave to cross-examine Mr Mow on a voir dire. She asked whether it was possible that he had heard more than one voice, and he said that it was. He was shown his statement and agreed to the passages in which he had referred to hearing various banging noises. He also agreed that the prosecutor had read the statement to him over the telephone eight days previously (since he did not have it with him), and he had indicated that it was accurate.
The prosecutor sought leave to cross-examine Mr Mow before the jury as hostile, but the trial judge pointed out that she would have to “go further” to have Mr Mow declared hostile, and the application was not proceeded with. Instead, the jury was called back and the examination-in-chief continued. The prosecutor, without objection from defence counsel, confirmed with the witness that he had refreshed his memory from his statement, and asked again how many voices he had heard. He said that he had heard two: they were those of Ms Morseu and the white male (Mr Planas) whom he knew to be staying at the house. He recognised the latter’s voice because he had heard it the preceding night. Apart from that, he heard two bangs, the voice of the white male again, and the slamming of a door. He had never spoken to the appellant and did not know his voice.
At that point the prosecutor again asked for the jury to be sent out and renewed her application to have Mr Mow declared hostile. Mr Mow in his police statement had said he did not know whose the male voice was; in particular, he was unable to say whether it was Mr Planas’ voice. The learned judge indicated that the prosecutor should examine Mr Mow further on the voir dire. She did so, drawing his attention to the passage in the statement where he had indicated he was unable to say that the voice he heard yelling was “the white guy’s voice”. He was asked why he had said in evidence that it was, and why he had also said earlier that the only voice he heard was Ms Morseu’s; his response was that it had “been a while for me to remember all this”.
Cross-examined by defence counsel, Mr Mow agreed that this was the first day on which he had been able to read through his statement. Asked whether he thought now that it was “the white guy’s voice” that he heard, he answered first, “Oh, I was pretty sparked [apparently meaning intoxicated] at the time when I heard that so, yeah”, then agreed that he was “not really sure”. Defence counsel, ending cross-examination there, observed that the evidence was in line with what the witness had said in his statement. The learned judge ruled at that point:
“Well, the point of his statement is really to hear – to give evidence of what he heard in a very short period of time. He gave this statement one day after the events and obviously very aware of the critical nature of the questions that were being asked of him in preparation of a statement and I find that his evidence-in-chief before the jury just – is – is different. So I’m – I’m of a mind to declare him hostile and allow the Prosecutor the opportunity to cross-examine.”
Mr Mow was then cross-examined by the prosecutor in front of the jury. She put to him the relevant parts of his police statement in which he said that he had heard two voices yelling, one which he recognised as Ms Morseu’s, the other, a male’s voice; that he could not identify the male’s voice and in particular could not say that it was the “white guy’s” voice; and that he heard muffled banging and two big bangs, the noise sounding like someone “getting thrown around a bit”. He accepted that he had said all of those things in his statement. The paragraphs of his statement that dealt with what he had heard that night were read to the jury. The whole of the statement was made an exhibit. The learned judge told the jury members that they were entitled to read it in its entirety, and he encouraged them to do so.
Counsel made a number of complaints of the ruling that the witness Colin Mow was hostile and the admission of his statement into evidence. First, she said, the learned judge erred in exercising his discretion because he failed to undertake a proper assessment of the witness’ attitude to testifying truthfully. He should have considered the witness’ explanation for the change in his evidence, namely, the passage of time and his intoxication, both when he heard the noises emanating from Ms Morseu’s house and when he gave his statement to the police. Secondly, the finding that the witness was “obviously very aware of the critical nature of the questions that were being asked of him” was not open on the evidence.
Thirdly, it was said, even if the witness were properly declared hostile, the statement should not have been tendered. Section 18 of the Evidence Act 1977 (Qld) governed the situation. It provides:
“(1)If a witness upon cross-examination as to a former statement made by the witness relative to the subject matter of the proceeding and inconsistent with the present testimony of the witness does not distinctly admit that the witness has made such statement, proof may be given that the witness did in fact make it.
(2)However, before such proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such statement.”
The section did not, counsel submitted, permit tender of a statement or parts of it unless the witness did not distinctly admit them. Under cross-examination, Mr Mow had agreed with everything put to him by the prosecutor.
“I remember when I said this that the guy with the dreadlocks started walking towards her and me. I was a bit worried because I thought the lad with the dreadlocks was gonna start something with me but he didn’t. He didn’t say anything to me and he just stood there staring at me. I remember that I just walked away from both of them and ended up finishing my drink.”
Counsel submitted that in circumstances where the issue for the jury was the intent with which the appellant inflicted the injuries on Mr Planas, evidence showing a propensity to act aggressively was highly prejudicial. The jury was not given any direction about what use might be made of the evidence. Instead, the trial judge had, when the statement was tendered, encouraged the jury to read the whole of it and, in summing up, had adjured them again, “in fairness and in accordance with your duty, [to] read the whole statement”.
“(1) A party producing a witness shall not be allowed to impeachthe credit of the witness by general evidence of bad character but may contradict the witness by other evidence, or (in case the witness in the opinion of the court proves adverse) may by leave of the court prove that the witness has made at other times a statement inconsistent with the present testimony of the witness.
(2) However, before such last mentioned proof can be given, thecircumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such statement.”
In R v Booth1 the English Court of Appeal was considering provisions of the Criminal Procedure Act 1865 (Eng) in very similar terms to the Evidence Act sections. The Court observed that the equivalent of s 17 applied to hostile witnesses, the equivalent of s 18 to cross-examination of the other party’s witnesses. It seems to me that the same analysis applies equally for the Evidence Act provisions. Section 17 permits proof, once leave is given, of the inconsistent statement of a hostile witness, which then, by virtue of s 101, becomes admissible as evidence of the facts stated in it. Section 18 is an entirely different mechanism, and has no application to the situation where the court has formed the opinion that the witness is adverse.
“unwilling, if called by a party who cannot ask him leading questions, to tell the truth and the whole truth in answer to non-leading questions – to tell the truth for the advancement of justice.”2
In exercising the discretion to declare a witness hostile, the court may have regard not only to the demeanour of the witness but to previous inconsistent statements; although
“not every witness who testifies inconsistently with an earlier statement can properly be regarded as hostile . . .”3
Mr Mow certainly shifted in his evidence, from having said in his statement that he had heard two voices, one of them male and not Mr Planas’, to saying that he had heard only Ms Morseu’s voice, and then that he had heard two voices, one of them Mr Planas’. But the learned judge did not make any finding about his demeanour, and he was not shown to have had any interest in the outcome of the case. There was not any basis in the evidence on which to conclude that he was deliberately being unhelpful, as opposed to having a poor recollection, and having made some rather confused attempts under cross-examination to expand on his evidence when pressed by the prosecutor. The finding that Mr Mow’s evidence-in-chief was different from what he had said in his statement was not of itself sufficient to warrant a declaration of hostility.
Even had the hostile witness ruling been correctly made, it did not follow that the entire statement to the police should have been admitted. In Price v Bevan,4 s 27 of the Evidence Act 1929 (SA), which is in almost identical terms to s 17, was under consideration. Bray CJ discussed what was meant by the term “statement”:5
“Next, what is allowed to be proved is a prior inconsistent statement and I understand by that some precise form of words related to the issues of the case. I do not think that ‘statement’ is used in the loose sense in which a solicitor speaks of the whole document he has prepared as the witness’s proof as a statement by the witness.”
Walters J agreed with that interpretation of s 27. I think, with respect, given the purpose of s 17 and s 27 of the South Australian Act, that that view must be correct. Only those actual statements inconsistent with the witness’ evidence were admissible; the whole of the police statement should not have been tendered. And, as counsel for the respondent here pointed out, once Mr Mow admitted to the previous statements, the prosecutor had succeeded in proving them and there was not any real need for the tender of the written document.
The record of interview, right to silence, lies and consciousness of guilt
Counsel submitted that the jury should not have had placed before it that part of the appellant’s interview in which he refused to answer further questions having taken advice from a Legal Aid office lawyer. It was prejudicial and had no probative value. The jury was not cautioned against using his refusal to answer further questions to infer guilt. There were also lies told to the police in the interview about how the appellant had sustained a cut to his forehead and about when and in what circumstances he left his aunt’s house. The jury was not directed as to how it should approach the issue of lies and there was a risk that it might have inferred a consciousness of guilt of murder when, at best, the lies were equally consistent with guilt of manslaughter. In a similar vein, the jury should have been given a direction about use of the evidence of an attempt at cleaning the kitchen floor of blood, as revealing a consciousness of guilt.
The evidence that the appellant had desisted on legal advice from answering further questions was, in my view, inadmissible. It did not prove anything. One can imagine, however, that defence counsel may have refrained from objecting to it because it was thought better that the jury not be left with a sudden, unexplained cessation of the interview. It would have been evident that the appellant had answered a number of questions and then stopped. Counsel may well have preferred that it be made clear to the jury that the appellant, an uneducated man, was acting on the instructions of a lawyer in deciding not to proceed with the interview. And counsel might reasonably have thought, too, that it was better to leave matters there than to labour the point by asking his Honour to give a direction about the right to silence. I do not think that course of events occasioned any miscarriage of justice.
Defence counsel did not seek any direction about lies. In fact, he submitted to the jury that, from his appearance in the tape of his interview with police, the appellant was obviously intoxicated. A blood alcohol reading taken after he had been in custody for eight or nine hours suggested that his blood alcohol level during the interview was probably in excess of .15 ml. His intoxication had caused him to give rash and unreliable answers.
The prosecutor had originally intended to suggest that the appellant had told lies out of a consciousness of guilt, but she abandoned that approach when defence counsel indicated that he was “conced[ing] manslaughter”, so that the only issue was intent. In the event, she confined her submissions on the point to urging the jury to reject the appellant’s account in the interview as untruthful. She also suggested that the appellant was the person who attempted to clean the kitchen, but that was not relied on as manifesting any consciousness of guilt; rather, it was to show that he was more capable and less intoxicated than the defence suggested.
In the summing-up, the learned trial judge reminded the jury that the appellant had falsely denied having any fight with Mr Planas or going to his room. He continued,
“So there’s no need to dwell on that. You’re aware that in the record of interview he changed those denials to say what you would now have regard to as his version of the events.”
After the jury had retired, the prosecutor raised with the learned judge whether he was minded to give a Zoneff direction6 in relation to the lies. His Honour said that he was not, and counsel for the defence did not support the prosecutor’s suggestion.
The trial judge’s direction on use of circumstantial evidence
By way of circumstances from which they could infer an intent to cause death or grievous bodily harm, the prosecutor directed the jury to the number of injuries, the force applied and the fact that Mr Planas had probably been kicked in the head while on the ground. Counsel for the appellant said that the learned judge’s direction on the issue was inadequate, because he did not remind the jury that it had to be satisfied that an intention to kill or to do grievous bodily harm was the only reasonable inference that could be drawn from the circumstantial evidence. Another reasonable inference was that the appellant assaulted Mr Planas with no intention to achieve a particular result.
The learned judge early in his summing-up explained the process of drawing inferences from circumstantial evidence. In so doing, he cautioned:
“However, there is one qualification, and it’s an important one. To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but that it should be the only rational inference you can draw from the circumstances. So often times you look at the circumstances as you find them to be and it might admit of a number of reasonable conclusions. But to convict, based on that type of evidence, you have to come to the view that the only rational conclusion is the one that leads to guilt.
So if, after considering all the circumstantial evidence, there was any reasonable inference consistent with innocence, it is your duty to find the defendant not guilty, and that really is simply a requirement that guilt must be established beyond reasonable doubt.”
“What a person intends is something that you must necessarily infer from all the circumstances surrounding his actions as you find those circumstances to be.
The prosecution points to the severity of the defendant’s assault – the number of blows, the force, et cetera – and the time over which it must have taken to deliver those blows. They rely also on the way in which the defendant behaved afterwards – the cleaning up, the removing of clothes and so on – all of which suggests that there was at the time – I'm sorry, I shouldn't have said – it’s not part of the prosecution’s – they look at the nature of the assault and its duration and its location to suggest there was at least an intention to do grievous bodily harm.”
“If, because of the evidence as to the effect of intoxication or otherwise you are not satisfied beyond reasonable doubt that the defendant did, in fact, form the relevant intent, then you must find him not guilty of murder.”
He went on to explain that intoxication of itself would not necessarily result in a verdict of not guilty, because an intoxicated person might still form the relevant intent, and concluded on the point:
“So, putting it in context, it is for the prosecution to satisfy you beyond reasonable doubt that, although intoxicated, the defendant did have that relevant intention. If the prosecution fails to satisfy you of that beyond reasonable doubt, or if you are left in doubt about it, you must find the defendant not guilty of murder, but it would then be open to you to find him guilty of manslaughter.”
“So the case from the defendant’s point of view is really based on circumstances, and it is argued that those circumstances are inherently unreliable. That being the case, you will at least retain some doubt about these matters of whether the defendant was capable, or, indeed, formed the relevant intention. If you are not satisfied, or if you are left in doubt, then your proper verdict would be not guilty of murder, but guilty of manslaughter. If you are so satisfied beyond reasonable doubt, then your proper verdict is guilty of murder.”
The direction on the onus of proof
“Also, you have heard that the defendant left school at year 11. He has not had full-time employment since then but appears to have survived on social security payments, and notwithstanding that he appears to have spent – certainly on the weekend you have been concerned with – a considerable amount of money on alcohol and taxi fares, again, you must be careful not to allow any view you have about that type of lifestyle to colour your assessment of his version of events as he recounted them to the police officers. You need to weigh up the content of what he said, assess its reasonableness, its reliability, against the other evidence you accept as being correct. In other words, you must approach your duty dispassionately and move away any sense of sympathy, prejudice, or whatever, and decide on the facts on the whole of the evidence.”
It was said that this amounted to an invitation to the jury to compare the appellant’s version in his interview with other evidence in the case. The trial judge should, it was said, have gone on to explain that even if the jury rejected the appellant’s version, the prosecution retained the onus of proof.
The reasonableness of the verdict
Counsel for the appellant said that the verdict was against the weight of the evidence. The evidence showed that the deceased had been punched and then probably kicked while he was on the ground. He had died from aspiration of blood, having been punched in the face; the subdural and subarachnoid haemorrhages were likely to have been sustained when he fell. Although he had suffered a deep seated brain injury, that would not have been apparent to the appellant. A verdict of murder could not be supported because the jury could not have been satisfied that the circumstantial evidence about the injuries was only consistent with an intention to do grievous bodily harm or to kill.
In my view, the jury was entitled to take a view of the injuries inflicted on Mr Planas as leaving no room for a rational possibility that the appellant had not meant to do at least grievous bodily harm to him. The contention that the verdict was against the weight of the evidence (or was in any other way unreasonable) must be rejected.
I would dismiss the appeal.
[51] MULLINS J: I agree with Holmes JA.
[52] PHILIPPIDES J: I agree that the appeal should be dismissed for the reasons stated by Holmes JA.
R
Baira
(1961) 106 CLR 95
(1974) 8 SASR 81
(2000) 200 CLR 234
(1993) 178 CLR 193
Appeal dismissed.
Mr Planas’ ribs were fractured on both sides, consistent with a diffuse force having been applied to his chest. It was difficult to fracture ribs by direct punches to a standing person’s body; those injuries were likely to have been caused by stomping when Mr Planas was on the ground. His sternum mastoid muscle on the right side was bruised, suggesting an application of force to the right side of his neck. Mr Planas had died from the inhalation of blood from the nasal passages into the lungs, but he also had suffered subdural and subarachnoid haemorrhages.