A HERVEY Bay man convicted of stabbing a former classmate with scissors and a knife for being a snitch when they were at school has lost his appeal.
David Matthew Butterworth was sentenced to six and a half years in jail, with parole eligibility in January 2019, after a jury found him guilty of wounding with intent to do grievous bodily harm and doing grievous bodily harm on April 28, 2015.
The victim, 19, suffered two wounds to his right flank from scissors and a much more serious injury to his neck from a knife.
Butterworth had argued in the Queensland Court of Appeal that his trial counsel was wrongly prohibited from cross-examining the victim about his criminal history and the court erred in disallowing information about the violent criminal history of a possible alternative assault suspect.
The Crown agreed there had been an error regarding cross-examination but argued the appeal should be dismissed because its existence would not have affected the jury verdict and "no substantial miscarriage of justice has actually occurred".
Court of Appeal president Margaret McMurdo, in a judgment handed down on Thursday, said she would have allowed the cross-examination to occur because the victim's criminal history was "all relevant in assessing the truthfulness of his evidence at trial that the person who attacked him was (Butterworth)".
"The (victim) alleged that, as a 13-year-old, he was cajoled into criminal behaviour by (Butterworth) and his mates and later informed police about their involvement," she said.
"The prosecutor alleged this was the motive for (Butterworth's) violent attack on him six years later.
"The (victim's) criminal history demonstrates that he was involved in other dishonest offending at that age.
"This information was capable of throwing doubt on the truthfulness of his evidence that (Butterworth) had cajoled him into committing an offence when he was 13."
Justice McMurdo also disagreed with the trial judge's conclusion that an alternative suspect's criminal history was irrelevant.
She said defence was arguing someone else attacked the victim and CCTV footage showed someone other than Butterworth fled the crime scene.
But her two appeal court colleagues Justice Philip Morrison and Justice Duncan McMeekin did not agree and dismissed the appeal.
Justice Morrison said the case came down to identification and the victim had known Butterworth since they met at school aged about 13.
He said, when looking at all the evidence already before the jury, adding the victim's criminal history to the mix was unlikely to have changed the outcome.
Nor did he agree the criminal history of alternative suspect M should have been allowed.
"All that the extra evidence might have added was that M was a person who had a history of violence, and therefore was someone who, if he had been there, could have carried out the assault," he said.
"But that does not overcome the hurdles that there was no evidence he was there, he gave an alibi, there was no evidence that he matched the description of the person who went out the gate two minutes before, and the (victim's) identification of the appellant.
"Once the jury accepted the (victim's) evidence as to identification of his assailant, M ceased to be relevant."
- ARM NEWSDESK
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