Two men convicted of grievous body harm have won an appeal against their convictions on the grounds the trial judge gave two directions to the jury which unduly confined its task, leading to miscarriage of justice.
Jason Rudi Lourens and Jake Michael Micallef were convicted in Maroochydore District Court on 28 May last year over the violence at a drunken “boys’ weekend” at Alexandra Headlands in July 2021. They were found not guilty on count 1 of common assault, and guilty on count 2 of grievous bodily harm.
In a Court of Appeal decision delivered on Tuesday, Justices Mullins, Gotterson and Henry allowed the appeal, set aside the convictions and ordered a new trial.
The trial judge’s first direction – the “exclusory effect direction” – was that if the jury accepted the complainant’s account of what happened, the acceptance would exclude the operation of the defences of self-defence and aiding in self-defence, and the jury’s duty would be to convict both defendants.
The second direction – the “same verdicts direction” – was that the jury’s verdicts on count 2 in respect of both defendants should be the same, whether guilty or not guilty.
Justice Henry, with whom Justice Mullins and Gotterson agreed, said the “confining effects of those directions involved error of a kind which means the appeals should succeed”.
The primary judge had explained the operation of the defences of self-defence and aiding in self-defence, as contained respectively in ss 271(1) and 273 of the Criminal Code Act 1899 (Qld).
“However, there was no elaboration upon how the facts gave rise to the potential operation any of the defence provisions,” Justice Henry said.
He said aspects of the complainant’s evidence were variable, which meant there was more than one interpretation open of his evidence.
Those aspects included those related to the identification of Mr Micallef and Mr Lourens as assailants, the possibility that the two men acted in self-defence, the extent of the complainant’s injuries, and whether there had been two episodes of violence.
“By assuming there was only one interpretation of the complainant’s evidence open, the direction disentitled the jury from developing their own understanding of the complainant’s version of what took place and thus removed the need for the jury to consider the potential operation of the defence provisions,” Justice Henry said.
He said all who gave evidence had been adversely affected by alcohol on the night of the incident.
“In recalling the events of the night when giving evidence, the complainant’s answers were not always fully responsive and proffered limited detail. It is unclear whether this was a symptom or cause of variability which emerged in his evidence of both episodes,” he said.
Justice Henry said during the trial, the court had received a note from the jury asking if it could return separate verdicts for each defendant.
The trial judge had directed the jury that because of the circumstances of the case, the jury’s answer would be “both guilty or not guilty”.
Justice Henry said the same verdicts direction wrongly assumed there was only one interpretation open on the complainant’s evidence.
“The effect of the same verdicts direction and its reiteration of the exclusory effect direction had the effect of telling the jury that if they accepted the complainant’s account it excluded defences and meant both defendants should be found guilty on count 2,” he said.
He said after considering all the relevant facts, the jury may or may not have reached the same verdicts in respect of either defendant, but the jury should have been able to consider those facts.
“The two directions’ implicit removal of such consideration denied the defendants a chance of acquittal fairly open to them,” he said.
“There was for that reason a miscarriage of justice. The decision to answer the jury’s question in the way which occurred also involved a wrong decision on a question of law. Either way, the result is that the appeal must be allowed.”
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