R v Kalf [2000] QCA 499

Court of Appeal (Qld)|2000-12-08|Before: McMurdo, P, Williams J, Douglas J, Separate reasons for judgment of each member of the court, each concurring as, to the order made

Director of Public Prosecutions (Queensland) for the respondent

[1] McMURDO P: The appellant was convicted in the Supreme Court at Townsville on 13 April 2000 of one count of burglary and stealing (count 1), one count of burglary with intent (count 2) and one count of attempted murder (count 3).

[2] The appellant, who is unrepresented, appeals against those convictions, first contending that the primary judge should have discharged the jury following prejudicial and inaccurate media coverage broadcast during the trial of the appellant and, second, that the verdict was against the weight of the evidence.

[3] His co-accused, Ronald Cummings, originally appealed against his conviction on similar grounds but has since abandoned his appeal.

[4] In his oral and written submissions, the appellant limits his appeal to count 3 (attempted murder): he admits count 1 and as to count 2 claims that he went to the complainant's flat with the intention of stealing his video recorder and alcohol.

The verdict is against the weight of the evidence

[5] It is convenient to deal first with the appellant's claim that the verdict was against the weight of the evidence. This necessitates a consideration of the evidence.

[6] The complainant said that he first met the appellant and Cummings in the early hours of 28 February 1999; they were wet and the complainant invited them to his flat where they changed their clothes; he offered them a scotch whisky and gave them money to purchase cigarettes and Coke at a nearby shop. When they returned, the appellant and his co-accused kissed and fondled each other. The complainant, a homosexual male, played an erotic gay video; he masturbated and the appellant and Cummings masturbated themselves and each other. They offered to have sex in front of the complainant for payment but he declined payment. Cummings fell asleep and the complainant gave the appellant oral sex at the appellant's request. They continued to watch videos. The complainant fell asleep and woke up about an hour later to find that the appellant and Cummings had disappeared, together with the complainant's wallet, keys, clothing, compact discs, jewellery, glassware and alcohol.

[7] The complainant reported the theft to police.

[8] On 2 March 1999, the complainant went to bed at about 11.30pm; his home was secured. He was awakened by someone on top of him. He saw a second person come through the window and felt pressure as that person landed on the bed. He felt the physical sensation of two sets of hands on him, either by rolling into the hands or being pushed during the attack. He realised he was bleeding and screamed for help.

[9] A female neighbour also called out and his assailants fled.

[10] The complainant followed his attackers to the front door and watched them run up his driveway. The appellant looked back at the complainant who recognised him as the person John who had come to his house in the early hours of 28 February.

[11] He found a knife on the floor of his flat that was not present before the attack and noticed that some of his property had been moved and placed in stacks.

[12] The complainant was taken to hospital and treated for numerous lacerations to the chin, teeth, gums, a stab wound to the right hand side of the neck which was spurting arterial blood, a laceration to the right shoulder and lacerations to his left hand. He was unstable and coughing up large volumes of arterial blood. He was given a general anaesthetic and his injuries to the neck were drained and repaired. Six hours of micro-surgery was required to repair the tendons and nerves of his hand. Without treatment, death would have been likely.

[13] Whilst in hospital, he identified the appellant from a photo board.

[14] The events of 2-3 March 1999 constituted counts 2 and 3.

[15] Jaklyn Koroi and Rebecca Silsbury shared a flat in late February and early March 1999 and the appellant and his co-accused stayed with them. In late February 1999, they noticed bags of clothes, some CDs and alcohol in the area of the flat occupied by the appellant and Cummings. The appellant told Ms Koroi that someone had tried to rape Cummings and they were very angry about it; Cummings said in the presence of the appellant that if he had been conscious he would have stopped the sexual encounter and he was very angry about it.

[16] On 2 March 1999, the appellant and his co-accused left the flat at about 8pm returning at about 5am when they woke her up. Cummings, who had blood on him, told Koroi in the presence of the appellant that he, Cummings, might be in trouble. Ms Koroi let them in to the flat. Cummings said he might have killed someone. He had a scratch down his face and what appeared to be blood on his shirt.

[17] Rebecca Silsbury identified the knife located at the complainant's house as belonging to the appellant. When the appellant and his co-accused returned to the flat in the early hours of the morning of 3 March, the appellant said that Cummings had been molested and "they'd done the guy that did it". She was sure the appellant in this context used the plural "we've". The appellant had stitches from a prior injury and these had opened up a little. He also had some blood on him.

[18] Early on 6 March 1999, the appellant and Cummings presented themselves to the police in the presence of news crews from local television stations who had been contacted by the appellant and Cummings; the appellant was interviewed by police later that morning.

[19] He told police that when he and Cummings first went to the complainant's home, the complainant gave them alcohol spiked with a drug which, from his experience, seemed to be rohypnol. He fell asleep on the toilet; when he woke up he saw the complainant raping Cummings. Whilst the complainant was unconscious or asleep, he punched him in the stomach area. When Cummings woke up they left with some of the complainant's property.

[20] The next day he told Cummings what had occurred and Cummings said he felt like killing the complainant. The appellant then retracted that statement to police.

[21] When they returned to the complainant's flat a few nights later, he and Cummings were drunk. He intended to take the complainant's video for an ounce of pot. Cummings entered by a window and let him in through the door. He stacked some bottles of alcohol and CDs on the dishwasher intending to steal them. Cummings asked for his knife which he always carried and which had belonged to his grandfather. He gave it to Cummings believing that it would be used to cut the complainant's video cables. He did not see Cummings walk towards or enter the complainant's bedroom. He heard screaming and saw Cummings, covered in blood, run out of another room. The complainant and a neighbour were screaming and yelling and he and Cummings fled.

[22] The appellant denied that he and Cummings were homosexuals or that he had consented to any sexual contact with the complainant.

[23] Cummings had been "stewing" on the complainant's sexual attack upon him; it was "playing on his mind". The appellant had nightmares about it because he had been molested in the past. He told police he felt angry with the complainant and would have liked to give him "a good flogging". Nevertheless, he maintained that his intention was merely to get even with the complainant by stealing property. He denied he was involved in any attack on the complainant or had prior knowledge that Cummings intended to attack him.

[24] Neither the appellant nor his co-accused gave or called evidence.

[25] The appellant submits that the jury should have accepted his account to police that he was not involved in the attack and had no knowledge that Cummings intended to kill the complainant when he gave him the knife; the jury should at least have had a reasonable doubt and acquitted him of attempted murder. In his written and oral argument, he stressed that his version was supported by the complainant's evidence that CDs and alcohol had been moved from their usual position on the night of the attack. The complainant did not see or identify the appellant during the attack and because he was violently attacked whilst he was asleep in a dark room, was not a reliable witness.

[26] The evidence does not support the appellant's argument. The complainant said that he physically felt a second pair of hands upon him in the bed and the appellant was one of only two intruders. Even without the complainant's testimony, there was a body of other evidence from which the jury could have inferred beyond reasonable doubt that the appellant at least intentionally aided Cummings in the attack, knowing that Cummings intended to kill the complainant. He admitted that both he and Cummings were angry with the complainant because they believed he had earlier raped Cummings and he gave Cummings his knife whilst in the complainant's home late at night when the complainant was asleep. That knife was used in the vicious attack. Ms Silsbury heard the appellant say afterwards that "they'd done the guy that did it"; the appellant's stitches from a previous injury had opened up a little and he had some blood on him.

[27] The learned trial judge gave careful directions in his summing up, repeated in redirections, as to the elements of the offence of attempted murder and as to joint enterprise; he emphasised that the appellant must have intentionally assisted or encouraged Cummings to attempt to murder the complainant knowing that Cummings intended to kill the complainant, not just to frighten or injure him.

[29] The appellant also claims that the trial judge erred in declining to discharge the jury following prejudicial and inaccurate media coverage during the trial.

[30] On the fifth day of the trial, counsel for the appellant and counsel for his co-accused applied for a mistrial because of misinformation broadcast on the Channel 10 News the previous night. The news bulletin reported that the appellant and his co-accused admitted the attack on the complainant which was motivated by revenge. Cummings made no admissions which were relied on at trial and the appellant in his police interview did not admit attacking the complainant. Television footage shown on a number of occasions during the news bulletin depicted the appellant and Cummings apparently intoxicated when they presented themselves to police.

[31] After viewing the videotapes the learned primary judge concluded that, although it was unfortunate that a news outlet would publish material which went beyond the reporting of matters before the jury, thereby putting at risk the fairness of the trial process, he was nevertheless satisfied there had been no prejudice which could not be cured by an appropriate direction to the jury. In reaching this conclusion, his Honour noted that the jury would know that there was no record of interview with Cummings before them and they already had the record of interview with the appellant which did not include such admissions.

[32] The judge did not immediately raise the matter with the jury; the prosecution case was closed; the appellant and Cummings elected not to give or call evidence and counsel completed their addresses. The jury then set a message to the judge enquiring "Was Cummings interviewed? If so, why weren't the jury shown that interview?"; the jury also questioned whether the appellant was left or right handed and whether the complainant was short or long sighted. Their first query may have been prompted by the Channel 10 news bulletin the prior evening.

[33] After discussing the matter with counsel, his Honour gave the following direction to the jury:

"There is no evidence of Cummings having been interviewed.

Now I don't know whether that request was provoked by any reporting in the media and, in particular, television.

I have received evidence that there was reporting on Monday evening in a news program on Channel 10 in which it was said by the presenter, in effect, that the pair had made an admission to police, and there was a reference to partners in that context. Now, you've seen and listened to Kalf's record of interview. That is the extent of his admissions to police. There is no evidence, as I've mentioned, of Cummings making admissions to the police or to anybody else for that matter, with the possible exception of Miss Koroi, and what you made of Miss Koroi's evidence in that regard is a matter for you.

You must put out of your mind, if you have seen or heard of any media reporting or read any newspaper reports for that matter, anything that you've seen, read or heard in that regard. We all know from experience over the years, that with the best will in the world, media reports can be inaccurate, sometimes seriously inaccurate. But even more importantly, verdicts are returnable in criminal cases, on the evidence which is led in court in those cases and on nothing else. And of course there are very good reasons for that. Neither the Crown nor the accused can possibly conduct a case on the basis of anything other than the evidence which is led in the case. The accused can't defend themselves against anything that may be said in the media or said by somebody else outside the courtroom, and nor could the Crown possibly run a case on any such basis."

[34] The next day, during the summing up, his Honour again relevantly told the jury:

"In making your deliberations, you must decide the case solely on the basis of the evidence before you in this trial. That is a fundamental right of an accused person. You must, therefore, disregard anything you may have seen, read, or heard outside this courtroom; whether in the television; the media; reports of friends, neighbours, acquaintances, or the like; and I remind you of what I said yesterday in that regard: you must consider the evidence as a whole; that is, all of the evidence which has been led in the case by the Crown, considering that evidence as a whole, you should then decide whether beyond reasonable doubt you are satisfied of the guilt of each accused in relation to each charge.

The evidence, I remind you, is the evidence which the witnesses in this case have given; that is, their answers to questions and the documents and other things which have been tendered and received as exhibits in the case. That is the evidence."

[35] Having viewed the videotape of the news bulletin, I agree with his Honour's conclusion; as ordinary members of the community, jurors are aware that the media can seriously misreport matters; the court can also expect jurors to follow the clear judicial directions which were given here. There is no reason to conclude that the jury did not follow those firm directions and reach their decision solely on the evidence. This ground of appeal is also without substance.

[36] The appellant in his written outline claims that during his barrister's final address to the jury, some members were playing games and laughing but there is nothing in the transcript or elsewhere before this Court to support that allegation.

[37] He also complains that late on the last evening of the trial some members of the jury appeared distressed and may have felt pressured to reach a verdict. When the jury retired after a redirection at 9.06pm, the prosecutor noted that there had been a suggestion that some of the jurors may have been in tears and he was concerned about an improper compromise verdict. For that reason, the judge decided not to place any temporal pressures on the jury and a few minutes after completing the last of his re-directions, indicated to the jury through the bailiff that he would not take a verdict before 9am the next morning. The jury returned with their verdicts at 9.42am the next morning. There is nothing in this to suggest that the jury's deliberative process was in any way compromised.

[38] In his written submissions, the appellant complained of the reporting of the matter in the Townsville Daily Bulletin during the course of the trial. Those reports were not placed before us and no complaint was made at the trial in respect of them. He also complained about reporting of the case on the ABC's Four Corners programme. Material filed by the respondent since the hearing of this appeal establishes that this programme was screened on 17 July 2000, some months after the completion of the trial.

[39] I am not satisfied that any of these matters, alone or collectively, raise genuine concern as to the fairness of the conviction.

[40] I would dismiss the appeal against conviction.

[41] WILLIAMS J: I have had the advantage of reading the reasons for judgment of McMurdo P and there is little I wish to add. Those reasons contain a broad overview of relevant facts.

[42] In the course of his submissions the appellant referred to some observations by the learned trial judge when sentencing the appellant, and he contended that those observations supported his contention that the verdict was against the weight of the evidence.

[43] In the course of his sentencing remarks the learned trial judge made the following observation with respect to the evidence of the complainant:

"The complainant was asleep in bed at the time. He woke up when he sensed the presence of intruders. His recollection is that he woke up when he felt the weight of a body on him, and that he fought off his attackers using his arm as a shield in order to do so. I have some difficulty in accepting the complainant's account of events. As I mentioned in the course of submissions, the complainant would clearly have been in an extremely terrified state. The attack occurred in darkness, late at night and, the complainant was awoken from his sleep."

[44] The appellant's account to the investigating police, which was before the jury, and which the jury was asked to accept as stating the true position, was that he only entered the unit to steal property and never entered the complainant's bedroom. According to that statement, Cummings entered the unit through the bedroom window and then opened the door to allow the appellant to enter. In that statement the appellant said he handed the knife over to Cummings whilst they were in the lounge room believing that Cummings wanted to use it to cut some cables.

[45] If there was evidence which the jury could accept as placing the appellant in the bedroom at the time of the attack, then there was a much stronger basis for them concluding that the appellant was an active participant in that attack. It was in that context that the appellant submitted to the this court that the remarks quoted above at the time of sentence supported his case.

[46] Undoubtedly those remarks of his Honour reflected the evidence that the appellant and his co-accused had been in the unit for some time prior to the actual attack on the complainant. That was clearly established by the fact that alcohol and other items were stacked ready for removal from the unit. If that be so then a second person did not come through the bedroom window as alleged by the complainant in his evidence and immediately join in the attack. But that does not necessarily mean that a reasonable jury had to reject the entirety of the complainant's evidence. There is, of course, no doubt that he was viciously assaulted; that may have been principally by Cummings. He was awoken from sleep by the attack and as was said in the passage quoted above he would have been in an "extremely terrified state". In those circumstances it may have been clear to him that there were two people involved in the attack (he felt two pairs of hands on him) but he mistakenly assumed from the position of one of the assailants when he first saw him that that person had just entered through the window. The jury was, in my view, entitled to accept the complainant's evidence that there were two people involved in the actual assault, but reject that part of his evidence which had a person coming through the window and immediately joining in the attack.

[47] On that basis the necessary intent to kill could be inferred by the jury from at least the following:

(i) the fact that the appellant (and Cummings) were angry with the complainant because of what happened on 28 February 1999;

(ii) the fact that Cummings said to the appellant that "he felt like killing him", that is the complainant. (That admission was made by the appellant in his record of interview though he went on to say that he would "take that back". Nevertheless the jury were entitled to accept that statement as being truthful and accurate);

(iii) the fact that when the appellant and Cummings went to the complainant's unit on the evening of 2 March 1999 the appellant had with him a knife;

(iv) the fact that when the appellant and Cummings were in the unit and collecting items to steal the appellant handed Cummings, at his request, the knife;

(v) the fact the appellant participated in the attack to the extent that he was in the complainant's bedroom and placed his hands on the complainant in the course of the attack;

(vi) the fact that immediately on returning to the place where he had been residing from time to time the appellant said to the witness Silsbury: "We've done the guy that did it".

[48] Though the appellant did not accept that the term "revenge" described the motive for his going to the complainant's unit on the night in question, it is difficult to find another word which objectively describes his motivation for acting as he did. If the jury accepted that revenge was the motivation that may well have made it easier for them to draw the inference as to intention.

[49] The jury was properly instructed, and a reasonable jury was entitled to draw the inference from those facts that at the material time the appellant had the requisite intention to kill.

[50] On all other aspects of the matter there is nothing I wish to add to the reasons for judgment of the President. I agree that the appeal should be dismissed.

[51] DOUGLAS J: I agree with the reasons of McMurdo P and with the further observations of Williams J.

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