15 On the initial hearing of the appeal, the appellant raised additional matters which could most accurately be taken as raising a further ground to the effect that the conviction was, having regard to the evidence, unreasonable. He asserted that there was evidence that he had not been identified in an identification parade; that descriptions of the offender given by witnesses of the person who committed the offence did not match his own personal characteristics; that there were inconsistencies between the evidence of Mr Dobbin and his wife as to the number of men, besides himself, who were present; that Mrs Dobbin was unable to describe how her husband had left the car.
16 Another matter put by the appellant - that is, that he admitted having been present and had even handed police a piece of the clublock - somewhat, but not completely, diminishes the value of the complaints concerning the description of him and lack of identification. In any event, the appellant's own account given in the trial acknowledged his presence. Identification was never an issue. In my opinion, those complaints that raise identification are without substance.
17 Where the ground of appeal is that a verdict is, in the old language, unsafe and unsatisfactory, or, in the new language, unreasonable having regard to the evidence, the obligation of this Court is to make its own assessment of the evidence.
18 Having regard to the additional ground of appeal, and to the absence of transcript, the Chief Justice, pursuant to s 11 of the Criminal Appeal Act 1912, requested Judge Tupman to furnish to the Registrar of the Court of Criminal Appeal her notes of the trial and a report giving her opinion: (a) upon the case; and in particular (b) the extent to which any discrepancy appeared to her to be material; (c) the relative credibility of the various witnesses; (d) the extent to, and the circumstances in, which Crown witnesses were, during the trial, permitted or encouraged to refresh their memories from statements they had made.
19 Judge Tupman was able to provide extensive notes of the evidence, which she had recorded on computer. They cover sixty closely typed pages and, in fact, amount almost to a transcript, or so it seems. This substantially overcomes the difficulties created by the loss of the tape recordings. The notes show that a jury was empanelled on 3 February 1999, but the case was not opened until the following day, 4 February.
20 Thereafter, Senior Constable Peter Hartley, Selwyn David Gamble, Dr Stapleton, Mathew James Fawcett, Linda Dobbin (the complainant's wife), Naomi Walton, Senior Constable Frost and Mr Dobbin gave evidence in the Crown case. The appellant gave evidence and called Catherine Elizabeth Stevenson (his de facto wife) and Kathleen Stevenson (his de facto wife's mother).
21 Judge Tupman in her report has conveniently summarised, from her notes, the evidence of these witnesses. I have also had recourse, where necessary, to the notes taken by her on the computer during the course of the trial. According to that summary, Mr Dobbin gave evidence of an encounter with another car, a Fairlane, which was being driven by the appellant. When both cars were forced to stop at traffic lights, two men approached his vehicle; one of them pulled open the passenger door and grabbed Mr Dobbin by the jacket. Mr Dobbin reached down and picked up the clublock and used it to hit the man in the chest. The man then dragged Mr Dobbin from the car. Mr Dobbin continued to hit him once or twice with the clublock, which came apart in two pieces.
22 The other man then picked up a piece of the clublock that had fallen to the ground and hit Mr Dobbin over the head with it. He said he was hit several times with the clublock and was dragged across the concrete median strip, where he was repeatedly kicked and hit with the clublock. He said the first time he was hit was by the other man, but on every other occasion it was by the driver of the Fairlane.
23 The appellant was legally represented at the trial by Mr Sandilands, an experienced solicitor employed in the Legal Aid Commission. He cross-examined Mr Dobbin. Judge Tupman's notes do not indicate any cross-examination suggesting any inconsistency between the account given by Mr Dobbin in evidence and that given by him in statements made for the purpose of the proceedings.
24 Mr Dobbin's wife gave evidence that was substantially consistent with his. There was, however, one significant discrepancy: her recollection was that three men approached the car. Mr Dobbin had only ever described two men. The appellant has sought to make something out of the fact that she did not see Mr Dobbin get out of the car and did not know how he did so, suggesting that this reflected on her credibility.
25 Evidence broadly corroborative of the Dobbins' evidence was given by two uninvolved observers. Selwyn Gamble lived in a house overlooking the intersection where the altercation occurred. A friend, Mathew Fawcett, was also present. Mr Gamble's attention was attracted by yelling and screaming and he went to his window to investigate. He saw a woman and three men. They were standing in front of a Commodore.
26 Mr Gamble walked onto his verandah for closer observation. He said the three men appeared to be fighting and one was being punched or, at least, pushed or shoved. Towards the end of the incident he went inside to ring the police. At about this time he saw a clublock. It was then intact. Shortly after he saw that the clublock had separated into two pieces and that two of the men had a piece each. One was shouting and waving the clublock around. He then saw two men jump into a car and drive away.
27 The Crown made an application under s 38 of the Evidence Act 1995 for leave to question Mr Gamble as through cross-examining. Leave was granted. Subsequently a similar application was made in respect of Mr Fawcett, with the same result. Judge Tupman said in her report that, although she would have given extempore reasons for her decision, she could not, at the time of writing her report, recall what they were. For obvious reasons, they do not form part of the notes that she has provided.
28 Mr Gamble was then cross-examined by the Crown Prosecutor on the contents of a statement he had made to police shortly after the events. In the statement he said that he saw the man who had been dragged away from the car being kicked by one of the other two men, and being hit with a clublock by the other. In cross-examination, Mr Gamble rejected the proposition that it was Mr Dobbin who had approached the appellant's car (the Fairlane) rather than the other way around.
29 Mr Fawcett's evidence was also largely corroborative of Mr Dobbin's evidence. However, it seems unlikely that Mr Fawcett made any observation of the commencement of the altercation and, indeed, it seems unlikely that Mr Gamble saw its commencement. He described seeing two cars, one a Commodore parked in the street, and three people, all men, who were in a group and seemed to be having an argument. He then saw a woman alight from the passenger's side of the Commodore. One of the men was being "thrown around" by the other two. The two men had possession of a club lock but he didn't see how they came to have it. They used it to strike the third man around the body. They also kicked him.
30 Evidence was given in the Crown case by Ms Naomi Walton, who was acquainted with the appellant and who was walking along the highway on her way home when she saw a car she recognised as belonging to the appellant. She saw two men rolling on the ground, one of whom held a metal object aloft, but she was unable to say who was holding the object because of an obstruction to her view. She paid no further attention at the time. The following day she saw the appellant at his home and saw that he was bruised. She said that the appellant told her that when he had stopped his car at the intersection a second car had stopped behind him and a person had alighted and approached him with an iron bar. Leave was given, in a limited way, to the Crown to cross examine Ms Walton, but neither the notes nor the summary of evidence suggest that this cross examination threw any further light upon the issues.
31 That was the conclusion of the Crown case.
32 The appellant in his evidence maintained that Mr Dobbin was the aggressor and had hit him at least three times with the club lock. He asserted that it was only after this and in self defence, that he hit Mr Dobbin. He denied ever having had possession of the club lock. He said that an unidentified person entered the fray, pulled him off Mr Dobbin, and assaulted Mr Dobbin. He denied that any third person had been in his car and taken part in an assault of Mr Dobbin. This account was corroborated by Ms Catherine Stevenson, and, to a lesser extent, by Mrs Kathleen Stevenson. However, Judge Tupman in her report expressly observed that her memory of the demeanour of Miss Catherine Stevenson "made her not particularly compelling". Her Honour noted that Miss Stevenson's evidence was given over two days, or with an adjournment at some point in her evidence, and that, at one stage at least, she gave the appearance of a person affected by some form of substance. Judge Tupman was of the view that she was more probably than not under the influence of some sort of drug.
33 In relation to the specific questions asked of Judge Tupman, she expressed the view that discrepancies between evidence given by the Crown witnesses and that given by the accused and his witnesses were very significant. These discrepancies involved the issues of who had instigated the fight, at which car it took place, who had the club lock, the number of people involved and many other issues relevant to the Crown case. She considered that the resolution of these questions hinged upon the jury's acceptance of the reliability of the accused and his two female witnesses. That opinion is borne out by the summary of the evidence I have given above. The trial really involved a clear factual contest between the competing versions. It is, therefore, to be observed that in the summing up Judge Tupman correctly directed the jury that the onus of proof lay upon the Crown and the jury's task was not to determine which of two competing versions of events it preferred.
34 Judge Tupman had no clear recollection of her impressions of the credibility of the witnesses other than Ms Catherine Stevenson (which have been outlined above) nor of the appellant's assertion that witnesses had been permitted to refresh their memories from statements.
35 Finally, Judge Tupman said that as far as she could recall she had regarded the verdict as appropriate and available on the evidence. She considered that, in addition to other factors, the version of events contended for by the appellant was undermined by the medical evidence as to the number and severity of injuries suffered by Mr Dobbin.
36 I have attempted to make an independent evaluation of this assessment by Judge Tupman. Given the difficulties, it nevertheless appears to me to be in accordance with her quite extensive notes of the evidence of each witness. That is, an assessment of the evidence, both Crown and defence, leaves no sense of disquiet about the verdict of guilty. I would, accordingly, reject the ground of appeal that asserts that the verdict could not be sustained by the evidence. It was open to the jury to be satisfied beyond reasonable doubt that the altercation had taken place as contended in the Crown case.
37 The four grounds of appeal originally pleaded and set out above all concern one matter: the appellant's assertion that witnesses "were coached to perfection" in the jury's absence. There is no evidence of any such coaching and, even taking into account the difficulties confronting the appellant by reason of the absence of transcript, I am satisfied that these grounds are based upon a misunderstanding of criminal trial procedure. It is not uncommon for witnesses to be permitted to refresh their recollections from statements, whether this occurs in or outside the court. There is no impropriety in the use of statements for this purpose. This falls far short of "coaching". It maybe that what the appellant is complaining of is the use of statements by two witnesses after the Crown had made an application under s 38 of the Evidence Act. This was, in each case, a perfectly proper application to make and was completely above board. While I can understand that the appellant might have felt that that course gave the prosecution an unfair advantage, I am of the view that that perception is a result of a lack of legal training. There was nothing untoward about what took place. I would, therefore, reject each of the grounds of appeal based upon the proposition that witnesses were coached. On the resumption of the hearing of the appeal the appellant was legally represented. Counsel then appearing challenged the leave granted by Judge Tupman under s 38 of the Evidence Act to permit two witnesses, Gamble and Fawcett, to be cross examined. In this respect exactly what happened can be discerned from the notes Judge Tupman has furnished.
38 Mr Gamble was called to give evidence and he gave evidence that covers about two and a half closely typed pages. Towards the end of that process he gave an answer that he couldn't remember and he was shown a photocopy of a statement that he made to police. At that point Judge Tupman's notes record that an application was made and this obviously was an application under s 38 for leave to cross examine.
39 The notes then refer to a series of paragraphs and contain a very short summary of what may be taken to be contained in those paragraphs. It is reasonable to infer that those paragraphs are references to the statement made by Mr Gamble, which is also before this court as part of the police brief which the court has in the circumstances of this case, received.
40 A short summary of what those references show and reference back to the notes of the evidence given by Mr Gamble shows that there were some discrepancies between what was contained in the statement and what he said in his evidence.
41 Further light is cast upon this in the affidavit evidence, particularly that of Miss Taylor, the solicitor who instructed the Crown Prosecutor at the trial, who said that a conference had been held with both Mr Gamble and Mr Fawcett. The affidavit does not identify when that conference was conducted but it does show that both witnesses had said in conference that they had some difficulty in recollection but when shown these statements they agreed that the statements appeared to be the statements that they had made at an earlier stage, and it may be presumed when their recollections were fresher.
42 As I have said, when Mr Gamble gave evidence the evidence he gave was in some respects not in accordance with that statement. It was that that gave rise to the application under s 38.
43 Section 38 (1) is relevantly in the following terms:
38. Unfavourable witnesses