The Queen v Taylor[1999] QCA 315

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 80 of 1999

Brisbane

THE QUEEN

v

GLENN ALEXANDER TAYLOR

Appellant

de Jersey CJ

McMurdo P

Demack J

Judgment delivered 13 August 1999

Separate reasons for judgment of each member of the court; each concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.

REASONS FOR JUDGMENT - de JERSEY CJ

Judgment delivered 13 August 1999

1. I agree that the appeal should be dismissed for the reasons given by Demack J.

2. As emerged during oral submissions, the complaint about the questioning as to the appellant’s past criminal history resolved into concern that the material would prejudice him, and that plainly did not require the learned judge to exclude it.

3. As to the second ground of appeal, while the judge should himself desirably have identified the possible lies, other, that is, than just in recapitulation of the Crown contentions,  the comprehensive way in which he covered them while dealing with the Crown case would have left the jury in no doubt as to what they were.   The deficiency did not, in this case, have any significant consequence adverse to the appellant.  Indeed, had the possible lies been restated by the Judge, when giving the primary direction on lies, the prejudicial consequence to the appellant would likely have been increased, because they were so adverse to the appellant for the reasons given by Demack J.

4. As to the Judge’s failure to offer illustrations of possible explanations for the lies other than a consciousness of guilt, the Judge did tell the jury there must be “no other explanation”, and especially where the inference that he lied through consciousness of guilt was, as here, so compelling, the judge’s failure to go further was in this case without consequence, and the criticism takes on an undue pedantry.

5. I would dismiss the appeal.

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 13 August 1999

1. I have read the reasons for judgment of the Chief Justice and Demack J and agree with them that the appeal should be dismissed and generally with their reasons.

2. I would only make these additional brief comments.  As to the first ground of appeal,  that the judge erred in allowing the accused's criminal history to be placed before the jury, his Honour was entitled to exercise his discretion to allow the cross-examination as to previous convictions even though this disclosed propensity to commit offences of the kind charged.^[1] Importantly his Honour gave careful directions to the jury as to the use to be made of that evidence immediately before it was received, again in his summing up and later repeated  those directions to the jury at their request.  There has been no error in the exercise of the discretion to permit this cross-examination or in the receipt of the evidence.

3. As to the second ground of appeal, that the learned judge failed to adequately direct the jury on the issue of lies, it is true that the judge failed to precisely identify the lie and the circumstances and events said to indicate that it constitutes an admission against interest in the manner required by Edwards v The Queen.^[2]  The lies were however identified in a general way during the summing up and as the Chief Justice points out in his reasons, had the lies been precisely identified by the judge it is likely that this would have further highlighted the implausibility of the defence case. 

4. His Honour told the jury that they "must be satisfied that there is no other explanation for his making such false statements other than an attempt to conceal his guilt ..." but he did not tell them, as required by Edwards, that -

"there may be reasons for the telling of a lie apart from the realisation of guilt.  A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognised that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters.  And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused.  He may not recollect something which, upon his memory being jolted in cross‑examination, he subsequently does recollect."^[3]

Whilst a fuller direction on this issue should have been given, the strength of the prosecution case was such that it is difficult to envisage any plausible explanation for the lies other than a consciousness of guilt. Dr Peter Miller who examined the complainant in the Gold Coast Hospital Emergency Department listed the horrific injuries received by the complainant: a large area of bruising and swelling over the left frontal and parietal region; a large area of swelling over the face, a swollen eye and a low level of consciousness; intracranial bleeding; a complex facial fracture of the cheek bone and many of the bones in the face and multiple fractures on both sides of the ribs.  The rib injuries were consistent with blunt trauma or a fall from a great height: a high degree of force would be required to inflict the injuries such as a three storey fall or a car accident with the car travelling at 60 to 70 kmph.  The injuries were inconsistent with having occurred in any manner claimed by the appellant and there was no real possibility on the evidence of their infliction by any means other than infliction by the appellant.

5. This is a clear case where, like in Green v The Queen,^[4] no miscarriage of justice has occurred and the appeal should be dismissed.

REASONS FOR JUDGMENT - DEMACK J

Judgment delivered 13 August 1999

1. Glenn Alexander Taylor (Taylor) was tried in the District Court upon a charge of unlawfully doing grievous bodily harm to Keith Dean (Dean) with intent to do grievous bodily harm. The jury acquitted him of that charge but found him guilty of unlawfully doing grievous bodily harm. He was sentenced to seven years imprisonment and declared to be a serious violent offender. He has appealed against his conviction. His notice of appeal contained one ground of appeal. He was given leave to add a second ground of appeal.

Ground 1. That the Judge erred in law in permitting the accused’s criminal history to go before the Jury.

2. Taylor gave evidence and, before commencing cross-examination, the Prosecutor made an application for leave to cross examine him about his previous convictions. He contended that Taylor had made imputations against the character of prosecution witnesses and had given evidence of his own good character in that:-

• it was suggested that Detective Purcell had assaulted Taylor after a video-taped interview had occurred and that Detective Sweet had permitted this to happen, and
• a witness, Samuels had assaulted Taylor and threatened him,
• Taylor portrayed himself as a helpful man both in respect of Samuels and Dean.

3. The experienced District Court Judge allowed cross-examination about previous convictions. Before that part of the cross-examination began, he explained to the jury why it was happening. He told them that they must not proceed on the basis that because Taylor had previous convictions for assault or violence it was likely that he committed the offence. He told them the only use to be made of the previous convictions was in assessing the credibility of the accused. These directions were repeated in the summing up. Taylor had been convicted in the Magistrates Court on four occasions on various assault charges, once for wilful and unlawful damage, once for imposition and once for drug offences.

4. Mr Rafter, who appeared for Taylor, accepted that the conduct of the defence case involved imputations on the character of prosecution witnesses and that the trial judge was not obliged to disallow cross-examination because the prior convictions are for offences similar to the one charged: R v Chinmaya [1995] 1 Qd R 542. However, he submitted this was a case where cross-examination should have been restricted to the convictions involving dishonesty. He pointed to the Prosecutor’s questions which included “You’re the sort of person who goes round striking people” and “You have in your past assaulted a number of people”.

5. The conduct of every trial depends upon the issues raised. Here Taylor had completed a video recorded interview which contains no hint of any improper conduct by the police.  Taylor was allowed to give an account in which he claimed that he had no part in causing Dean’s injuries. His allegation was that, after this interview was concluded, Purcell pushed him off the chair, called him a bloody liar and threatened that if he didn’t tell the truth he’d bust Taylor’s jaw. No attempt was made to interview him further. In such circumstances, the prosecutor’s questions could not be said to be unfair. The imputation was of senseless violence by the police which had no bearing on the interview they had with Taylor.

6. After the jury retired in the afternoon of the eighth day of the trial, they were locked up over night. The next morning they asked for an explanation why Taylor’s past history had been revealed. The Judge gave a further direction in similar terms to that given previously.  He added that they did not have to have any regard to that evidence and reminded them that convictions for dishonesty did not necessarily mean that the person could not tell the truth.

7. The Court was referred to one case where the trial Judge limited cross-examination to prior convictions involving dishonesty: The Queen v Stephen Boyd Warren (CA Nos 234 and 248 of 1989, 11 October 1989). However, in Chinmaya, the Court rejected the submission that the discretion ought not to be exercised to permit questioning of an accused person about prior convictions that disclose a propensity on his part to commit offences of the kind charged. Here the learned trial Judge could properly exercise his discretion to allow cross-examination about previous convictions. In the light of the allegations made by Taylor it could not be said to be unfair to allow cross-examination about the offences involving assaults.

Ground 2That the learned Trial Judge did not adequately direct the jury on the issue of false statements alleged to have been made by the appellant.

8. The contention in respect of this ground is that two of the directions required by the decision in Edwards v The Queen (1993) 178 CLR 193 were not given. Those directions are first, that when a lie is relied on to prove guilt, that lie should be precisely identified (p 210) and second, that the jury should be instructed that there may be reasons for telling a lie apart from the realisation of guilt (p 211).

9. To consider this, it is necessary to refer in some detail to the evidence. Taylor and Dean lived together at Unit 2, 28 Leonard Avenue, Surfers Paradise. On the night of 16 May 1998, Dean suffered serious injuries while in the unit, namely, head injuries with intracranial bleeding, a complex facial fracture involving the cheek bone and many bones in the face, a fracture to the cartilage of the larynx and multiple fractures to ribs on both sides of the chest, some ribs being fractured in two places. Dean did not recover sufficiently to provide a statement to the police or to give evidence.

10. The prosecution called the following witnesses:-

1. Constable Cannone from Surfers Paradise Police Station who said that on 16 May 1998 at 9.50 pm he received a telephone call from a man who identified himself as Glenn Taylor. He said he was having problems with his flat mate Keith, who had verbally harassed him and pushed him around. He was asked to come to the station and make a complaint. Telstra records showed this call was made from Taylor’s unit at 9.50 pm.
2. Ambulance Officer Severina of the Southport Ambulance Service gave evidence of a telephone call received at 10.02 pm. The call was recorded on tape and the tape played to the jury.
3. Ambulance Officer Parkinson arrived at the unit with Officer Busby at about 10.15 pm. Taylor told her Dean had had a fit and fallen over in the hallway. Later he told her Dean had a gammy leg and that he had tripped and fallen over in the hallway. She asked him if Dean had had a fit or tripped and he said tripped.
4. Ambulance Officer Busby said that Taylor had initially said Dean had had a seizure and fallen over. Later he said had just fallen over and banged his head. He said Dean was unconscious with severe bleeding from a laceration to his forehead and bleeding from his ears.
5. Constable Parker spoke to Taylor at the Southport Hospital sometime after 11.15 pm.  He noticed what appeared to be blood on his right hand, on the front portion of his right shoe and on the heel of his right shoe. Taylor said Dean had become abusive towards him earlier in the evening, had apparently blacked out, fallen to the floor and hit his head. He went on to say that Dean had a gammy leg and was supposed to wear a brace. During the interaction between them Dean had turned to walk away, his leg gave way, he fell and struck his head. The constable recorded a further conversation in his note book which included, “Keith then turned and headed for his room. As he turned his leg gave out, he tripped towards the toilet and hit his head on the door.”
6. Detective Purcell recorded an interview with Taylor which commenced at 1.52 am on 17 May 1998. It was suspended and resumed at 2.54 am. Taylor said that Dean had become abusive to him.   He had told him to go back to his bedroom. Dean was very staggery and he fell, hitting his head on the bathroom door. He rang the ambulance and was told to put a towel around Dean’s head. Taylor said that Dean had made the phone call to the Surfers Paradise Police Station. Taylor later said he had not seen Dean fall into the door frame. He spoke of two pools of blood on the floor, but could not explain the blood near the toilet.
7. James Samuels gave evidence that in April 1998 he and Dean had rented the unit at Leonard Avenue. He said Dean had a slight limp and he had seen him stumble. A week later Taylor moved in and occupied a bedroom with Dean. He observed verbal arguments between Taylor and Dean, mainly about Taylor’s ex-boyfriend. Samuels was involved in a car accident about three and a half weeks after moving into the unit.  He agreed he had been kicked out of the unit by Dean. He denied having threatened Dean and Taylor with violence. He said he was in Brisbane on the night of 16 May 1998.
8. Darren Samuels, James’ brother, gave evidence that his brother was residing with him at Coopers Plains on 16 May 1998. He was still receiving medical treatment, his jaw was completely wired and he experienced pain all the time.
9. David Klaehn, who had been in a relationship with Taylor for two and a half years, knew Dean and said he had no difficulty walking and he had not seen him stumble or fall. He had been rung by Taylor on the evening of 16 May 1998 at about 9.20 pm.  He had been angry because he had a silent number. Taylor told him he had gone for a walk to get some cigarettes and had rung on his way back home. He asked Klaehn if he was coming over to see Dean and Taylor the next day.

11. Taylor gave evidence including:-

1. Samuels had been kicked out of the unit by Dean.
2. Samuels had said if he “ever gets kicked out he will be back to square it up with whom ever kicked him out”.
3. Samuels said “he would always have an alibi wherever he was”.
4. Samuels was physically and verbally abusive towards Dean and Taylor. He used to punch Dean and push him around. He used a stick on him.
5. On 16 May 1998 Dean and Taylor had gone to the RSL. Dean was betting on races.
6. Taylor left the RSL about 3 pm and had gone home. Dean arrived home about 4 pm and was abusive.
7. Taylor told Dean he was “a bit pissy” and to go to his bedroom and sleep. As he was going to his room he stumbled and fell. He resisted Taylor’s offer of help. He had a bleeding nose. He went to his room to watch television.
8. Later Taylor left the unit to go to a shop. He left the unit door ajar.
9. When he returned the door was completely closed. Entering, he found Dean lying in a pool of blood.
10. He rang the ambulance and, following instructions, placed a towel around Dean’s head.
11. He had problems with his recollection from that time on because earlier, before he went out, he had “taken some sleepers” intending to go up the road, shop and come back to bed.
12. He could not recall speaking to a police officer at the hospital.
13. He was upset and distressed during the video-taped interview.
14. He had not mentioned going out and finding Dean on his return because he was in a  state of shock and confused.
15. After the interview he had been assaulted by a police officer, called a bloody liar and  threatened with a busted jaw if he did not tell the truth. He was punched in the stomach.
16. He denied assaulting Dean.

12. In his summing up, the learned Trial Judge gave the following direction:-

“Now, you have heard evidence in this case as to certain statements made by the accused or false statements of persons which are alleged to have been false.  Now, when you are considering false statements by an accused person, perhaps the obvious thing you look at is, you say to yourselves, well, if those statements are false why did he make those false statements.  Normally if a person is innocent and has  nothing to hide he does not make false statements, allowing of course for some discrepancies in detail as to what might have happened. So, the making of false statements by an accused person is evidence from which you can draw an inference adverse to the accused.

However, before you draw such an inference you must be satisfied, first of all, that the statements made by the accused were in fact false and that the accused knew they were false at the time he made them.  You must be satisfied that there is no other explanation for his making such false statements other than an attempt to conceal his guilt, and of course, you should bear in mind that the false statements are not made on oath.

So as I say, if you are satisfied that there are false statements made by the accused person, that those false statements are relevant to the charge that you are considering, that the accused knew they were false, there is no other explanation for his making those false statements, it is something that you can take into consideration.”

13. In dealing with the prosecution case, he said:-

“He subsequently gave an account to the ambulance officers when they first arrived at the unit.  His original account was similar to the one he gave when he made the 000 call, but subsequently changed that account later on when he said that Mr Dean fell because of his gammy leg as he was walking away from the accused after they had had an argument I think it was.

That he gave a similar account to that to the police officer, Mr Parker who you will recall spoke to him outside the hospital.   He repeated that account initially in his record of interview with the police officers which took the form of a videotape where he says he tripped; Mr Keith Dean tripped and fell and hit his head on the door and after that he, the accused, phoned the ambulance.

It was suggested to you that at some stage the accused must have realised that his account that he had given could not really be supported. The account that the complainant had sustained these injuries as a result of a fall in the unit, that once he realised that he changed his story by, in effect saying well, I was not there at the time these injuries must have been sustained.

The Crown drew your attention to inconsistencies - or to other inconsistencies during the record of interview about whether - particularly inconsistencies between what he said in the record of interview and the evidence he gave before you about not leaving the unit. Although at one stage in the record of interview you will recall he said he did leave the unit, that he went to get a bottle of coke and a few other things, and cigarettes and then returned to the unit and had a drink with Mr Dean.

So the Crown says, well clearly, if he left the unit as he said he did, that was before the incident involving Mr Dean and not subsequently, or not at the time that Mr Dean must have been injured as the accused subsequently suggested in evidence before you.”

and

“It is suggested that he must have concocted this latest version, the version he gave in evidence, and the version which would completely exculpate himself by indicating that he wasn’t at the scene of the offence when the offence was committed; that he was away for that brief period.  Well the Crown suggests to you really, that that is an unacceptable, incredible explanation. That it would be really an amazing coincidence if for the comparatively short period he left the unit, say between half past 9 and 10 o'clock, some unknown person, or some person, came in and committed the offence and then left before the accused got home and was able to see him.  It was suggested that you should regard his evidence in that respect as incredible.”

14. While this summary does not have the judicial imprimatur, it does identify the significant lies:-

1. the original account of Dean having a fit, changed to
2. Dean having a gammy leg, changed to
3. Taylor being absent when Dean was injured.

These changes are consistent only with guilt. The many other inconsistencies are not itemised, but they are subsidiary to these major changes in his account of how Dean was injured. It is obvious from the extent of Dean’s injuries that they are inconsistent with a fall, unless, as Dr Miller said, it was a fall from a great height; for example three stories.

15. There was no reference by the trial Judge to this possibility that these lies could have been told for reasons other than a realisation of guilt. However in this trial, the prosecution case was so precise that there was no other rational possibility. The relevant phone calls were  logged by Telstra and they fix the following pattern:-

9.14 pm-call to Klaehn- in which Taylor says he is on his way home.

9.50 pm-call from the unit to Police by person identifying himself as Taylor.

10.03 pm-call to emergency services with recorded account of a fall occurring while having a fit.

Following these calls the evidence has the following sequence:-

10.15 pm-account to ambulance officers, first of a fit and then of a gammy leg.

11.15 pm-both versions given to Constable Parker, but concluding with he “hit his head on the door”

2.54 am-version to Detective Purcell with Dean very staggery and hitting head on bathroom door. Blood near toilet unexplained.

16. At the trial Taylor gave a very different version which attempted to cover most of the unexplained problems. There was a bleeding nose incident and an assault while Taylor was absent. When Taylor was cross examined about the call to Klaehn which indicated he would have been back in the flat well before 9.50 pm, he suggested there were two calls to Klaehn. There really was no doubt that he would say anything to avoid admitting that he had inflicted the injuries on Dean. In those circumstances, the failure to tell the jury that there may be reasons for lying  apart from the realisation of guilt did not deny Taylor a fair trial.

17. It follows that neither ground has been made out. The appeal is dismissed.