Ground four - the verdicts were unreasonable, cannot be supported having regard to the evidence and/or are effected by the errors of law dealt with in the other grounds of appeal such as to constitute a substantial miscarriage of justice.
72 In support of this ground the appellant relies on the cumulative effect of what are said to be the errors the subject of grounds one to three. For the reasons that I have already given I am not persuaded that there is merit to this aspect of ground four.
73 The appellant also submits that in all the circumstances a properly instructed jury ought to have entertained a reasonable doubt as to his guilt; M v The Queen (1994) 181 CLR 487. The appellant relies both upon the sufficiency of the evidence in the Crown case to support the verdicts and upon the contention that the acquittals of Jenkins on each of the counts so diminished the credibility of Thickpenny and Curtis that it was not open for the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt as to his guilt: Jones v The Queen (1997) 191 CLR 439.
74 The Crown case against Jenkins was that he was a party to a joint criminal enterprise with the appellant to commit each of the offences. In the course of his summing up the trial judge directed the jury that the case against each of the accused must be considered separately. His Honour went on to direct:
"There is nothing in law or commonsense which requires you to return the same verdict in respect of each and you should not, in your deliberations, seek to decide whether, as a couple, they are guilty. That is wrong and unfair. You must consider the case against each of them and for each of them quite separately (SU14).
…
Now all these counts are alleged against both of the accused. I am now going to tell you about what you have heard described as joint illegal enterprise. What I have to say to you is not simple but it is something that is extremely important and I would ask you to listen carefully. I may have to go over some of this material a few times before we get on top of it.
This is a very important direction in relation to the case against Mr Jenkins who is accused of having committed the same offences as Mr Pearson, the offences of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. The alternative charge, the malicious wounding and the stab wound, and the assault on Tanya Pearson.
The Crown says that he was a joint participator in that illegal enterprise. The Crown says that he was present at the time when the crimes were committed by Mr Pearson and the Mr Jenkins intentionally assisted or encouraged Mr Pearson in the commission of that crime.
A person who does that is just as guilty of the crime as the person who actually committed it. Mere presence of the accused at the scene of the crime is not sufficient to make the accused jointly liable.
The Crown must satisfy you beyond reasonable doubt that there was also intentional assistance or encouragement by Mr Jenkins of Mr Pearson in the commission of the crime.
Encouragement is established if the Crown satisfies you beyond reasonable doubt that Jenkins was both present and ready to assist Pearson in actually committing the crime if required. And readiness to give assistance amounts to an encouragement.
…
Before you can find Mr Jenkins intentionally gave either aid or encouragement in the commission of the crime, you must be satisfied beyond reasonable doubt that Mr Jenkins knew all the essential facts or circumstances that the Crown must satisfy you of beyond reasonable doubt, in respect of Mr Pearson.
The intention that the Crown has to prove must be based on Mr Jenkins' knowledge of the essential facts. What the Crown seeks to do here is to prove beyond reasonable doubt, firstly that Mr Pearson committed the offence, secondly that Mr Jenkins was there. For that they rely on the evidence of Ms Curtis and Mr Thickpenny who say that both of them were present at the relevant times. Thirdly, that Mr Jenkins knew all the essential facts or circumstances necessary to show that the crime was committed by Mr Pearson and that he intentionally assisted or encouraged Mr Jenkins to commit that crime" (SU21-23).
75 After the luncheon adjournment on 4 December 2001 his Honour returned to directions concerning the case brought against Mr Jenkins. He said this:
"Now you must also be satisfied, in respect of Mr Jenkins, that what happened when Mr Thickpenny received serious injury, was something which was at least a possibility that Mr Jenkins should have been aware of when he entered into that agreement or undertaking by agreeing to be present with Mr Pearson when crime was committed. So he must have been aware that serious harm to Mr Thickpenny was a possibility at the time" (SU50).
76 The circumstances of the present case do not seem to me to raise the issues with which the Court was concerned in Jones. The Crown made quite different cases as against the two accused. It was the Crown case that the appellant was the principal in the first degree. He alone was said to have broken Thickpenny's jaw, stabbed Thickpenny in the left shoulder and assaulted Curtis. In the way the matter was put to the jury it was necessary for the Crown to establish beyond reasonable doubt not only Jenkins' presence at the scene and willingness to give encouragement or assistance to the appellant, but his realisation "that serious harm to Thickpenny was a possibility" at the time he entered into the arrangement to be present with the appellant when the crime was committed. It appears to have been common ground that on two occasions Jenkins took action to remove the appellant from the scene.
77 The test to be applied in determining whether verdicts are inconsistent was discussed by the High Court in MacKenzie v The Queen (1996) 190 CLR 348 and more recently in MFA v the Queen [2002] HCA 53. In MacKenzie at 367 Gaudron, Gummow and Kirby JJ observed:
"Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense (see Mercer v Commission for Road Transport and Tramways (NSW) (1936) 56 CLR 580 at 595; Ward v Roy W Sandford Ltd (1919) 19 SR (NSW) 172). Thus, if there is a proper way by which the appellant court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted ( R v Wilkinson [1970] Crim LR 176). If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury ( Hayes v The Queen (1973) 47 ALJR 603 at 604-605). In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt ( R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40)."
78 The acquittal of Jenkins on each of the counts charged against him does not carry with it as a necessary conclusion that the jury did not accept the evidence of Thickpenny or Curtis. The differing verdicts are explicable upon a view that the jury considered that the Crown had failed to establish that Jenkins' presence was that of an aider and abettor providing encouragement to the appellant with respect to the commission of the offences.
79 I turn now to a consideration of the appellant's submissions concerning the sufficiency of the evidence to support the convictions. In his written submissions Mr Dalton contended:
"Critical to the Crown case was the evidence of the alleged victims Ms Curtis and principally Mr Thickpenny. There was little evidence which in fact corroborated Thickpenny's version which essentially involved a brutal unprovoked attack by the appellant and Mr Jenkins with fists, feet, timber and scissors. There was certainly medical evidence regarding the broken jaw, a wound to the shoulder and a chip fracture behind the left knee. These injuries were certainly consistent with Mr Thickpenny's account but become equivocal in the light of the appellant's claim of self-defence. No bruises are noted by Dr Vickers upon Mr Thickpenny's body which whilst the doctor gave evidence one wouldn't necessary observe bruises when a person had been repeatedly kicked and punched by two men, the absence of same certainly, and at the very least, does not lend positive support to Mr Thickpenny's version of events. Perhaps most importantly the appellant suffered multiple stab wounds which is consistent with the appellant's account and inexplicable upon that of Mr Thickpenny's."
80 Mr Dalton also complained of the Crown's failure to call two neighbours who it would seem may have been in a position to support aspects of the two complainant's evidence.
81 Ultimately, in Mr Dalton's submission, the Crown case depended upon the credibility of the two complainants. Jenkins' evidence was at odds with that given by the two complainants and was, in general terms, consistent with that of the appellant. In all the circumstances it was contended that the jury ought to have entertained a reasonable doubt.
82 The events giving rise to counts one and three were not witnessed by Curtis. The Crown case depended upon an acceptance of the evidence of Thickpenny. This was a matter to which the trial judge directed attention during the course of his summing up. His Honour said this:
"Now in this case one witness is essential to the proof of a substantial part of the Crown case and that is Kane Thickpenny, because he is the only witness to a number of the events that the Crown says took place on the late evening of 27 April or the morning of 28 April. Tanya Pearson was there at the beginning, but on the accounts of all the witnesses, she left. And she left, she was not present, when Mr Thickpenny says that he was assaulted with the piece of wood, when his face was stomped on and his jaw broken, or when he was stabbed. So for this reason his evidence is the only evidence to support those charges and you must take particular care with it.
Since the Crown must prove its case beyond reasonable doubt and the evidence given by Mr Thickpenny is the only evidence relating to essential matters which the Crown must prove, then it follows you must be satisfied beyond reasonable doubt that his evidence is reliable and that you accept it, otherwise each of the accused must be found not guilty.
Now you must assess not only what the witness says but also his honesty and reliability as a witness. And the Crown has given you a number of reasons why it says you should accept Mr Thickpenny's evidence.
There is some objective material. First of all there is no doubt that Mr Thickpenny suffered some injuries, although there is a dispute about the extent of his injuries. There is no doubt that there was a lot of blood on the floor and on the furniture in his unit, and on the telephone. The Crown says that the place where blood was found on the floor between the wall and the bed, supports Mr Thickpenny's version of events, namely that when Mr Pearson went to attack Tanya Curtis he crawled under the bed and subsequently Pearson moved the bed to get at him and attacked him there. The Crown makes similar arguments to you in respect of the blood on the floor in the foyer, although you have heard a lot of contrary arguments from other counsel. And I will be saying more about those at a later stage. The Crown says that Mr Thickpenny is the one who called the police and that tends to corroborate his evidence.
So I emphasise that the Crown must establish that Mr Thickpenny is honest and reliable, in giving evidence that supports the Crown case. It is not for the accused to show that Mr Thickpenny was either dishonest or unreliable" (SU37-39).
Now the part of the evidence to which I was referring earlier when I said you had to give special attention to Mr Thickpenny's evidence, is that evidence of what happened after Curtis left, because after that he is the only Crown witness who has told you about what happened.
He says that at that time he was on the floor near the bed, he rolled under the bed and Mr Pearson came back and moved the bed. Now you have also heard Mr West, at least, address you on that. Both Ms Curtis and Mr Thickpenny said that the bed was up against the wall to begin with, and Mr Thickpenny said it was moved. And you will see a photograph of the bed at an angle to the wall, and you will see that between the bed and the wall there is blood on the floor, there is some blood on the wall. There is some blood on the bedding.
It is for you to make of that what you think. You may think it is consistent with what Thickpenny said. You may think that it is Mr Pearson's blood that was there when there was a scuffle on the bed, although Thickpenny's evidence, as I recall, was that this scuffle was on the other side of the bed and it was pulled off him.
After that, he says, that after Mr Pearson had punched him, on the floor, Mr Pearson left and Thickpenny went out into the foyer area for help and he went to the other flat that opens onto that landing, and hung onto the screen door. He said the lady came and said she did not want to be involved, to ask somewhere else. At that time, he says, Mr Pearson and Mr Jenkins came back. Mr Pearson was carrying a piece of wood.
It is really only Thickpenny's evidence of that. Curtis gave evidence about that, but she said, when she was cross-examined, that she did not actually see the piece of wood, she was told about it and she believed it, but she did not actually see it. So Thickpenny was the only person who saw it" (SU53-54).
83 The Crown points to a number of matters which are said to have provided some support for an acceptance of Thickpenny's evidence beyond reasonable doubt. These included the history of deteriorating relations between the appellant and Curtis. The appellant chose to visit the Thickpenny residence at around midnight after he had been drinking. In the Crown's submission the jury might well have accepted the evidence both of Thickpenny and Curtis concerning the circumstances in which the incident commenced, namely, an assault by the appellant upon Thickpenny.
84 The Crown placed reliance on aspects of the forensic evidence including the broken ceramic vase and the evidence of the blood staining in the vicinity of the futon bed. Both of these were said to point to an acceptance of Thickpenny's account.
85 The jury were entitled in evaluating the evidence of Thickpenny (that he was the victim of an unprovoked assault and not the aggressor) to take into account that he was suffering injury to both legs at the time.
86 This was a case that depended on an assessment of the credibility of the witnesses. In M v The Queen Mason CJ, Deane, Dawson and Toohey JJ said at 493:
"[T]he court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
87 I note that in some respects Thickpenny's evidence differed from that given by Curtis in matters of detail. However, I am not persuaded that the Crown case contained discrepancies or displayed inadequacies or otherwise lacked probative force such that I would conclude, making full allowance for the advantage enjoyed by the jury in assessing the evidence of the witnesses, that the jury ought to have entertained a doubt.