The Queen v Hollis[1998] QCA 231

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

 C.A. No.  149 of 1998

Brisbane

[R. v.  Hollis]

THE QUEEN

v.

TONY RAY HOLLIS

(Applicant)   Appellant

de Jersey C.J.

Pincus J.A.

Thomas J.A.

Judgment delivered 21 August 1998

Judgment of the Court.

APPEAL AGAINST CONVICTION DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL LAW - whether miscarriage of justice - credibility of witnesses - whether trial judge's summing-up erroneous - admissibility of identification evidence - disclosure of matters prejudicial to accused - whether trial judge erred in failing to discharge jury - sentencing - whether adequate provision for pre-sentencing custody - assault occasioning bodily harm while armed.

Counsel: Mrs D. A. Richards for the applicant/appellant

Mr M.C.  Chowdhury for the respondent

Solicitors: Legal Aid Queensland for the applicant/appellant

Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 23 July 1998

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21 August 1998

The appellant appeals against his conviction for assault occasioning bodily harm while armed.

The Crown case was that the appellant and the complainant had been friends, but that their friendship had broken down.  On the day of the assault, the appellant abused and threatened the complainant over the telephone.  At lunch time, the appellant drove to the complainant’s house.  The complainant came out to confront the appellant in response to his taunts.  The appellant brought a baseball bat from behind him, and hit the complainant on the side of the knee.

The principal ground of appeal was added by amendment at the hearing.  It is “that the learned trial judge erred in failing to direct the jury that there was no requirement for the accused to prove a motive for the complainant to lie, and that even if they reject the motive to lie put forward by the appellant, that does not mean that the witness is necessarily telling the truth, and that the Crown must still satisfy them that the witness is telling the truth”.  In support of this ground, counsel for the appellant, Mrs Richards, pointed out that the Crown case depended heavily on the evidence of the complainant: he was the only witness who could identify the appellant, and the only witness who gave evidence of the striking.  She submitted that in those circumstances the learned trial judge should have directed the jury as to the use they could make of motive, that the appellant bore no onus to establish motive, and that even if the jury rejected the motive put forward by the appellant, that did not mean that the witness should be taken necessarily to be telling the truth.  She relied on R v. Uhrig (Unreported New South Wales Court of Criminal Appeal, 24 October 1996).

At the trial, defence counsel challenged the complainant on the basis that the complainant had fabricated the complaint against the appellant, in order to secure the appellant’s incarceration, and thereby facilitate the complainant’s recovery from the appellant’s premises of some of the complainant’s own property - the return of which the complainant had been seeking, unsuccessfully, by means of telephone calls.  In his address to the jury, the prosecutor apparently rather demeaned that challenge.  When summing-up to the jury, in the course of reminding the jury the points made respectively by the Crown and the defence, the learned judge said this:

“The defence, the Crown reminds, you has to be that Hite is a liar, a wicked liar who has come here to commit perjury to have an innocent man face the consequences of the law, and it is done, Mr Davies said, apparently with the motive of getting his property back, whereas up till this point he has been content simply to make phone calls asking for the return of his property.  Mr Davies says it is not much of a motive to go and commit the wilful act of perjury against an innocent man.  Mr Davies concedes that Hite is not an angel, that he has some convictions, but when you look at them there is nothing very terrible, and there is no crime of dishonesty - in other words, suggesting that he is somebody who is dishonest, who would tell a lie.  They are crimes of - some crimes of violence and crime of doing damage to property and the offence of drink driving.”

Applying their commonsense, the jury should have reasoned that even if they rejected the motivation attributed to the complainant by the defence, they would not necessarily automatically believe him.  The jury was properly directed on its approach to the assessment of the credibility of witnesses.  If exploration of a complainant’s particular motivation possibly to lie has assumed prominence at a trial, then it may be appropriate - and depending on the particular case sometimes necessary - for the trial judge to remind the jury that even if not satisfied that there was the suggested motive, they must nevertheless still be satisfied that the witness is telling the truth before relying on the witness’s evidence.  That is because the focus on the issue of the motivation may, in a particular case, unduly distract the jury from the need to go through the ordinary process of the assessment of the witness’s credibility.  See R v. Uhrig (supra) and Palmer v. R (1998) 72 A.L.J.R. 254, 258, 268-9.  But in this case, the issue did not assume that degree of prominence.

All the learned judge did was to repeat the point made by the prosecutor, in the course of recapitulating upon the addresses.  It was not a situation where the judge took the course of offering a separate direction on the point, as if it warranted independent direction.  Significantly, experienced defence counsel at the trial made no complaint about the judge’s direction: no re-direction was sought.

This Court considered Palmer in W (C.A. 476 of 1997, 12 May 1998).  In that case Pincus JA observed:

“Whether or not anyone turns the jury’s attention towards that topic, a jury may well give consideration to it and may ponder the problem of why a complainant  in a sexual case, or indeed any other witness for either side, might invent his or her evidence.  There is nothing wrong with that approach; what must be avoided, in my opinion, is a summing-up which suggests to the jury that unless they can think of a good reason why a person complaining of an offence might make up his or her story they must be inclined to believe it, or one which says in effect that there is in truth no good reason to think the complainant has a motive to lie.”

This summing-up made no such suggestion.

The next ground of appeal is that the learned judge erred in allowing the admission of identification evidence from a witness, Jane Smoothy; and that if admissible, the evidence should, in any event, have been excluded on a discretionary basis.   It is important to note how the witness came to give the challenged evidence.

In her evidence in-chief, the witness described the offender, a man with a baseball bat, as having “short dark hair, olive skin, slim to medium build, he had no shirt on at the time and that’s about it”.  In cross-examination, defence counsel asked her if she had noticed any tattoos on the man with the baseball bat.  (The appellant had tattoos on his body).  The witness said that she did not take any notice of tattoos, and that she would not have seen them anyway.  Defence counsel then asked her to view the tattoos on the appellant.   She did so.  He asked her whether she could  say that she had seen a person with those tattoos on the relevant day.  She said that she could not.  The prosecutor then sought the learned judge’s permission to ask the witness whether the appellant matched the description of the person she had seen; whether she could identify the appellant as the offender.   Defence counsel objected.  The judge determined to hear the witness’s answers to the questions in the absence of the jury.  That occurred.   The witness said that she could only say that the appellant was similar to the man she had seen with the baseball bat.  The judge took the view that because defence counsel had, through cross-examination, raised the issue of the appellant’s appearance, he should allow the questions to be asked before the jury.  He also said he would give the jury an appropriate warning.  That course was followed.

The evidence was admissible and the judge did not err in allowing it to go before the jury.  One should note that the witness did not purport to identify the appellant as the offender.   This was not evidence of positive identification, or what might be termed a “dock identification”.  All the witness said was that the appearance of the appellant was similar to that of the offender.  In light of other evidence in the case implicating the appellant - including a positive identification by the complainant himself, and a description of the car driven by the offender which matched that of the appellant’s car - the evidence of this witness on the point was admissible and properly received.

The final ground of appeal is that the learned judge erred in not discharging the jury “after the complainant had revealed a number of matters which were prejudicial to the accused”: specifically, that the accused had a criminal record, that there would be concern in taking children to his house, that he should be asked where he had obtained money to buy certain cars, and that he, the complainant, preferred not to disclose his address or the name of his sister in-law.

The experienced counsel appearing for the appellant at the trial did not seek the discharge of the jury in reliance on these matters: indeed, he stated expressly that he was not applying for the discharge of the jury.  It may be noted that inter alia this evidence exposed the hostile attitude borne by the complainant towards the appellant.  Counsel for the appellant points to the learned judge’s failure to give directions to minimise any prejudice resulting to the appellant from these disclosures.  The judge raised the question of curing any problem through appropriate directions.  The matter was not, however, taken any further.  No re-direction on the point was ultimately sought.  It may be, as submitted by counsel for the Crown, that any prejudicial consequence dissipated as the trial went on.  But in any event it could not be said that the learned judge erred in failing to discharge the jury, or that the failure to give any direction on the point led to any miscarriage of justice.

The appeal against conviction is dismissed.

The appellant also applies for leave to appeal against sentence.   He was sentenced to twelve months imprisonment cumulatively upon a sentence of seven years he was then serving for armed robbery. 

He is a twenty-eight year old man with a substantial prior criminal history, including numerous offences of dishonesty and previous convictions for assault occasioning bodily harm, indecent assault and common assault.  He was on parole in respect of the seven year sentence for the armed robbery in company at the time of committing this offence.

The applicable maximum penalty at the time of commission of this offence was ten years imprisonment.  The maximum was increased from seven years in July last year.  This offence was committed in January this year.  The circumstances of the commission of this offence were serious.  It involved the applicant going to the home of the complainant, against whom he bore ill-will, armed with a weapon.  When the complainant emerged to confront the applicant, the applicant struck him in the knee with a baseball bat, injuring him.  Such conduct must be deterred, and an appropriate custodial sentence was warranted especially given the applicant’s criminal history and the circumstance that the offence was committed while the applicant was on parole.  The sentence of twelve months imprisonment, imposed cumulatively upon the then current sentence for the armed robbery, was amply justified.

A question arises whether the learned judge adequately provided for pre-sentence custody.  He declared that twenty-six days, referable to the period 11 January 1998 to 6 February 1998, was time already served under the sentence.  The applicant contended, however, that the whole period of custody from 11 January 1998 to 23 April 1998 should have been taken into account, notwithstanding that for the period after 6 February, the applicant was on remand for other offences also, obstructing police officers and possession of a dangerous drug.  Mrs Richards submitted that as the matter was put to the judge, it was likely that he was on remand only for the additional charge of obstructing police officers, although that is not clear from the record, and defence counsel apparently failed to take up the judge’s suggestion that they approach him subsequently if it emerged that he had “proceeded on an incorrect assumption”.  Mrs Richards’ submission assumed that a charge of obstructing police would not have involved the applicant being remanded in custody, if taken alone.  We were referred to Skedgwell (C.A. 434 of 1997, 15 May 1998).  It is not clear, however, that in selecting twelve months imprisonment as the appropriate penalty, the learned judge did not allow for something beyond the twenty six days, the subject of his particular declaration, consistently with Skedgwell.  In the result, we are not satisfied that the declaration was erroneous, or that the sentence imposed was manifestly excessive.

The application for leave to appeal against sentence is refused.