R v Bartzis [2012] QCA 225

Director of Public Prosecutions (Queensland) for the respondent

[1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Gotterson JA. I agree that the appeal should be dismissed, for those reasons.

[2] FRASER JA: I agree with the reasons for judgment of Gotterson JA and the order proposed by his Honour.

[3] GOTTERSON JA: On 1 November 2011, the appellant Stavros Bartzis, was convicted on a single count of an offence against s 320 of the Criminal Code in that on 10 February 2009, he did grievous bodily harm to Steven Franey. He was that day sentenced to imprisonment for a term of three years with a date for release on parole fixed at 30 April 2013.

[4] The appellant appeals against his conviction. Counsel who represented the appellant at the hearing of the appeal informed the court that an application for leave to appeal against sentence that had been filed, was not being pursued. The court ordered that that application be dismissed.

[5] The Notice of Appeal filed on 15 November 2011 contained a single ground of appeal against conviction. At the commencement of the hearing of the appeal, the appellant sought leave to substitute for that ground, some four grounds being those set out in the Appellant's Outline of Submissions filed on 28 May 2012. Leave so to amend was granted.

[6] The appellant's grounds of appeal as amended are:

1. That a miscarriage of justice occurred as the result of the failure of the learned judge to explain to the appellant as a self-represented defendant, that without his evidence there would be practically no evidence of self defence;

2. That the learned judge erred in failing to permit the appellant to lead evidence of 000 calls he made;

3. That the learned judge erred in failing to permit the appellant to lead his record of interview; and

4. The learned judge erred in allowing the evidence of Jennifer Norton regarding what the appellant had said on the morning of 11 February 2009 to go to the jury as evidence of an admission.

[7] The appellant and the complainant were known to each other, the latter having resided in a caravan on the former's property for about six months prior to the incident. Following a dispute over the complainant's use of a shed on the property to park his vehicle, the complainant and his girlfriend, Jessica Blackman, moved out of the caravan in late January 2009, leaving some of their possessions, including two cars, on the property.

[8] At about 4 pm on 10 February 2009, the complainant and Ms Blackman went to visit her father who had continued to reside in a caravan on the appellant's property. There was a brief verbal altercation between the appellant and the complainant over damage to some items they had left at the property. This was followed by a physical altercation in which the appellant bent back fingers on the complainant's injured right hand while demanding an apology for something that the complainant had just said. The complainant responded by swinging the appellant round and pushing him. Neither the appellant nor the complainant struck at each other.

[9] After these altercations, the appellant called the police. A little later, Ms Blackman called the police at Logan and advised them that their attendance was not required. The complainant and Ms Blackman then left the property. As they left, they passed the verandah of the appellant's house. Further words were exchanged between the appellant and the complainant.

[10] According to the complainant's account, the appellant told him to move his vehicles or they would not be there in the morning. Sometime later, he and Ms Blackman returned to the property to obtain identification numbers from the two vehicles for the purpose of transferring registration of them to Ms Blackman's father. The vehicles were parked on the driveway near the appellant's house. By this time, it was dark with a full moon.

[11] The complainant testified that he was kneeling down to read and write down the registration number of one of the cars. He heard someone approaching. He looked over his shoulder and saw the appellant who was carrying a Dolphin torch. He was struck in the face with the torch. He fell to the ground on his back. The appellant then hit him a number of times. The complainant's evidence on these matters was substantially corroborated by that of Ms Blackman.

[12] The complainant was taken to Logan Hospital by ambulance. He had a CT scan and was sent home with painkillers. On the following day, he attended at Royal Brisbane and Women's Hospital. He was found to have sustained depressed nasoethmoidal complex fractures which were treated successfully on 23 February 2009 by open reduction and internal fixation.

[13] The appellant was arrested by police on 26 February 2009. He participated in an electronically recorded interview with them.

[14] The trial at which the appellant was convicted was held in the District Court at Beenleigh over five days commencing on 25 October 2011. The appellant represented himself, assisted by a McKenzie Friend. Conforming with s 21O of the Evidence Act 1977, Mr Menolotto of Legal Aid attended at the trial for the purpose of cross-examining the appellant.

[15] At the commencement of the trial, the appellant was provided with a copy of the directions from the Benchbook relating to unrepresented persons. Those directions were also given to the appellant orally by the learned judge.

[16] The appellant participated in the trial by cross-examining witnesses other than the complainant and by addressing the jury. At the close of the prosecution case, the appellant informed the court that he wished not to give evidence himself, or to call any witnesses, or otherwise to adduce evidence in his defence.

[17] As noted, the appellant was represented by counsel at the hearing of the appeal. Leave was sought to read an affidavit of the appellant sworn on 7 June 2012. The affidavit contains factual assertions concerning the 000 calls and the record of interview referred to in the grounds of appeal and some circumstances of his not giving evidence on his own behalf.

[18] The court received the affidavit reserving decision on its admissibility. The appellant was present by video link and was cross-examined on his affidavit. Answers given by the appellant on that occasion have relevance for the disposal of the appeal. In these circumstances, it is appropriate that the leave sought be granted.

[19] Counsel for the appellant addressed the court on the first ground of appeal only relying on the written submissions for the other grounds. Since the absence from evidence of the 000 calls and the record of interview is relevant to the first ground of appeal, it is convenient to consider those other grounds first.

[20] The appellant's telephone record shows that he made four 000 calls on the evening of 10 February 2009, at 6.46 pm, 7.27 pm, 7.29 pm and 7.43 pm respectively. Transcripts of the conversations that occurred during each of these calls are exhibited to the appellant's affidavit to which I have referred. The longest of these calls, the fourth, involved a conversation of five minutes 10 seconds duration.

[21] The first call occurred shortly after the initial verbal and physical altercations had taken place. The complainant testified that he heard the appellant make a telephone call to the police at that point. The second and third calls were "follow up" calls enquiring as to when the police might arrive. The fourth call occurred after the incident in which the complainant was struck with the Dolphin torch.

[22] The appellant has identified certain statements made by him in two of the calls as relevant to this ground. They are as follows:

"Yeah I've got some people that I don't want in my yard and the guy hit me they attempt to [INDISTINCT]."

"My emergency someone's threatened me and hit me as well and he's threatened. ...

... I have some people I don't want here and they threatened me and they hit me and they try to demolish my property and they attempted to demolish part of my property and I just don't want them on my property I went (sic) them out of here. ...

...Well I locked myself in the car they try to hit the car and I tried to drive away and I disappear and when I drive back in my yard you know I try to keep myself away I lock myself in the car. They're here in the back yard still."

[23] During the trial, the appellant made what the learned judge described as "an application or a submission that the Prosecution should play" tape recordings of the 000 calls to the jury.[1] Her Honour declined to require the prosecution to do so.[2] The appellant did not at any point seek to tender the tape recordings himself.

[24] The appellant submits on appeal that evidence of the conversations should have been admitted either as part of the res gestae or as evidence of the appellant's state of mind in the period between the initial altercations and the later incident.

[25] Two factors stand in the way of characterisation as res gestae of what was said by the appellant in the telephone calls. The first is that his statements are evidently a narrative account of events that had happened. The events were not occurring concurrently with the conversations.

[26] The second reason derives from a rationale for admitting statements as part of the res gestae, namely, that their contemporaneity with the factual circumstances which they narrate, render them both unlikely to be concocted and likely to be reliable.[3] At odds with this rationale is the fact that here some statements made by the appellant during the calls are demonstrably false or unreliable so as to undermine the overall reliability of statements made by him during the calls. For example, in the first call, he said that he had shot the persons in his yard. That was not so. In the fourth call, he complained that those persons had demolished his property and had tried to hit a car in which he had locked himself. There was no evidence of damage to either the car or other property of his. Moreover, it was not put in cross-examination of either the complainant or Ms Blackman that the appellant's property had been destroyed, that his car had been hit, or that they had tried to hit it.

[27] As to state of mind, the respondent accepts that the fact that the appellant called 000 is capable of being evidence of his state of mind as to apprehension of harm to himself. The complainant himself had given evidence that the appellant had called 000. That evidence was before the jury.

[28] However, the narratives of fact in the conversations, had they been admissible, would have had relevance for the jury's task only as evidence of the truth of those facts. They could scarcely have had a secondary function for the jury as evidence from which to draw an inference as to the appellant's state of mind for the purposes of s 271(2) and s 272(1) of the Criminal Code given that the appellant in one of the calls had replied to a question whether his life was in danger, that it was not. In any event, the falsities and inconsistencies within the statements to which I have referred would have made them an unreliable basis from which to draw an inference of that kind.

[29] Accordingly, in my view, the learned judge was correct to rule that the conversations were inadmissible as hearsay and to refuse to direct that the tape recordings of them be adduced as evidence in the prosecution's case.

[30] The appellant participated in a recorded interview with Plain Clothes Constable R L Swan and Detective Senior Constable Lorraine Burkin of Logan Central Police on 26 February 2009. A transcript of that interview is also exhibited to the appellant's affidavit. Prior to adducing evidence at the trial, the Crown prosecutor informed the court that he did not propose to play the recorded interview to the jury. Towards the end of the first day of the trial, and in absence of the jury, the appellant stated that he wished to question Constable Swan about matters contained in the transcript of the interview. The prosecutor submitted that the transcript was self serving, containing no admissions on the appellant's part. The following morning, the learned judge ruled that the transcript contained largely prior self serving statements which were inadmissible as evidence of the truth of them.[4] Her Honour refused the appellant's application to cross-examine Constable Swan about statements made by the appellant during the recorded interview.

[31] In my view, the learned judge correctly categorised the recorded statements that the appellant had made. As to his involvement in the first altercations, the appellant said only:

"... and for me to defend myself I just gave him a little bit push and he fall on the ground."

This statement is largely exculpatory of himself. Further, the appellant denied using the torch for any purpose other than as a light in the dark. This was a denial of the essence of the prosecution case that he had used the torch to strike the complainant. The transcript is not apt to be characterised as "mixed" containing both inculpatory and exculpatory elements.

[32] Significantly, the transcript does not contain any statement against interest by the appellant on which the prosecution could rely for that purpose. There was, therefore, no general requirement on the prosecution to tender it.[5] A fair presentation of the Crown case did not require its tender. The ruling of the learned judge on this issue was correct.

[33] Mrs Jennifer Norton, the complainant's mother, gave evidence that on 11 February 2009, she, the complainant and others went to the appellant's property. They encountered the appellant and his partner. According to Mrs Norton's evidence, on that occasion the appellant looked over at the complainant, laughed, turned around to his partner and then said words to the effect:

Mrs Norton then questioned the appellant whether he was admitting to having caused injuries to the complainant to which the appellant replied:

[34] The appellant submits that the words spoken by the appellant are equivocal and could not constitute evidence of an admission. To my mind, the words are to no degree equivocal. In their context, they are clear evidence of an admission by the appellant. In written submissions, the appellant concedes that the learned judge correctly directed the jury as to this evidence in accordance with R v Burns.[8] This ground of appeal cannot succeed.

[35] The jury heard some evidence relevant to self defence. A resident of another caravan on the appellant's property, Denis Carlisle, testified that about 8 pm that evening he saw several people from his caravan. One of them was being asked to leave the property by another. Then he saw "some sort of scuffle" taking place. In the summing up, the learned judge directed the jury comprehensively as to self defence.[9] No issue is taken by the appellant with that direction.

[36] This ground of appeal is centred upon the appellant's self-represented status. At the hearing of the appeal, his counsel submitted that at the end of the Crown case, the learned judge ought to have said to the appellant that there was a most tenuous case of self defence to go to the jury and explained to him that if he wished the jury to consider his account of events, then he would have to give it to them in evidence.[10]

[37] It is well settled that a judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial.[11] Whether particular information ought to have been given at any particular time in a trial in order to fulfil this requirement is a matter to be assessed against the circumstances, and within the context, of the trial as a whole.

[38] On a number of occasions, the learned judge told the appellant that if he wished his version to go to the jury, he would need to give evidence of it in his case. She did so on the second day of the trial and in a context where she had just explained to the appellant why the prosecution was not required to tender the record of interview.[12]

[39] Later that day, the learned judge explained to the appellant that if he testified, both he and the Crown prosecutor would have the opportunity to address the jury; but that if he adduced no evidence, then only he would have that opportunity.[13] A dialogue ensued with regard to addresses and the summing up in the course of which her Honour said to the appellant:

"... what they need to find - what they need to be satisfied of beyond reasonable doubt to prove that the prosecution has proved that you've committed grievous bodily harm and one of the things that - and this is why I think you have to consider whether you're going to give evidence or not, is because if there's evidence before the Court from somebody that you were acting in self defence, for example, then that is something that the jury have to consider whether they - whether the prosecution has satisfied them that you weren't acting in self-defence. ..."[14]

[40] On the fourth day of the trial, the learned judge explained to the appellant if cross-examination of witnesses showed their evidence to be untruthful or unreliable, then he could comment upon that in his address. Her Honour told the appellant that he could not use his address as a vehicle for giving evidence. She said:

"... You cannot talk about anything that is not evidence already before the Court. So, you cannot tell your story in your address. The only way you can tell your story is if you give evidence like the other witnesses have had to do from the witness box. ..."[15]

[41] Moments later, the learned judge told the appellant:

"...You don't have to prove anything. The prosecution are the ones that have to prove the case but if you wish your version of what happened that night to go before the jury, then you are going to have to give evidence and - yourself as to what happened and then like the other witnesses, you will then be cross-examined by ..."[16]

[42] At that point, the appellant interjected, saying:

"No, I'm not going to be cross-examined, your Honour. I make that clear from the beginning and I repeat myself again now."[17]

[43] In that context, it is not plausible that the appellant did not understand that if his account was to be before the jury, then he would have to give evidence of it. It is significant that in cross-examination before this court, the appellant conceded that he knew that neither the content of the 000 calls nor the record of interview was to go to the jury.[18] As they were the two materials which he claimed to be relevant to self defence, it is equally implausible that the appellant did not appreciate that it would be necessary for him to give evidence himself in order to present fully to the jury the evidence on which he wished his defence to be based.

[44] Judging by his words and conduct, the appellant appears to have had a fixed determination not to give evidence. Whether his rationale for that lay in wishing to avoid cross-examination or in precluding an address by the Crown prosecutor or in some other reason is beside the point. What is significant is that he evidently made a conscious decision with adequate appreciation of what that course would have for his defence of self defence.

[45] I am of the view that the learned judge gave the appellant sufficient information with respect to giving evidence as to self defence to enable him to have a fair trial. No miscarriage of justice occurred in that regard.

[46] For these reasons I would dismiss the appeal against conviction.

[3] Vocisano v Vocisano (1974) 130 CLR 267 per Barwick CJ (Stephen and Jacobs JJ concurring) at 273.

[5] R v Kochnieff (1987) 33 A Crim R 1; R v Callaghan [1993] QCA 419; [1994] 2 Qd R 300.

[10] Appeal Transcript 1-14 LL38-55; 1-16 LL22-32.

[11] MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 per Gibbs CJ and Wilson J at 524.