SUPREME COURT OF QUEENSLAND

1. DAVIES JA:  I have read the reasons for judgment of Thomas JA.  I agree with the orders he proposes and, subject to two matters, one minor, the other substantial, I agree with his reasons.

2. The minor matter concerns the nature of Mr Campbell's concession with respect to the admissibility of the disputed evidence pursuant to s 15 of the Evidence Act.  It is true that, in his written outline, Mr Campbell submitted that cross-examination of the complainant activated the discretion under that section.  However I did not understand him to persist with that submission.  I understood that, in his oral submissions, he conceded that the evidence was not admissible under this section but submitted that it was admissible in relation to motive and to rebut provocation.  In any event I agree with his Honour that the evidence was not admissible pursuant to that section.

3. The substantial matter is whether evidence of the earlier assault ought, in any event, to have been admitted as part of the Crown case.

4. On the material before this Court, in my opinion, that evidence was relevant to explain and render credible what might otherwise have seemed inexplicable and incredible; the complainant's evidence that the appellant apparently entered the hotel without her noticing, came up behind her and, without prior warning, grabbed her by the hair and commenced assaulting her.

5. It is true that the complainant had given evidence that there had been some prior animosity between, on the one hand, the appellant and her partner and, on the other, the complainant and that she had avoided their company. But that could not have explained conduct by the appellant of the kind of which she gave evidence.

6. On the other hand, on the limited material before this Court, the previous assault by the appellant on the complainant, albeit 15 months earlier, explained how this could have happened and made it credible because it was also an occasion on which, without prior warning or any immediately preceding altercation the appellant attacked the complainant. It consequently rendered credible a contention by the prosecution that the relationship between the appellant and the complainant was one which could cause the appellant, without warning or any immediately prior altercation, to assault the complainant. It would, in my opinion, be relevant and sufficiently probative on that basis that it ought not to be excluded on the ground that its prejudicial effect exceeded its probative value.

7. Of course the facts on which the appellant pleaded guilty on the earlier occasion, or facts which may be proved not inconsistent with those facts, may show that the circumstances were not as I have indicated, in which case the evidence would not be relevant on that basis. But this is a matter for a subsequent trial.

8. However, if this evidence was admissible on the above basis, the learned trial judge's direction was incorrect and inadequate, as Mr Campbell conceded.

9. THOMAS JA:  This is an appeal against a conviction of assault occasioning bodily harm.  The sole ground is that his Honour erred in granting leave to the Crown prosecutor to cross-examine the appellant so as to adduce her prior conviction of assault occasioning bodily harm to the same complainant.

10. The relevant incident, which occurred on 1 August 1999, involved two mature-age women. Some 15 months previously the appellant had assaulted the complainant and subsequently the appellant had pleaded guilty of assault occasioning bodily harm in respect of that incident.

11. The complainant’s evidence in the present matter is that at about 7 pm on 1 August 1999 she met a female friend at the Kawana Hotel.  She had been there for some time and was dancing with her friend when without prior warning she was grabbed from behind by the appellant who took hold of her hair, scratched her fingernails into the complainant’s head and proceeded to shake and jostle her.  According to the complainant the appellant’s boyfriend, Graham Parter also became involved in the scuffle.  The police officer to whom a complaint was made confirmed that the complainant had a cut to her left little finger and that there was scratching and redness to her scalp.  No eye witnesses were called to give evidence other than the two contestants themselves.

12. The appellant gave evidence admitting that she had been involved in a scuffle with the complainant but said that the incident was started by the complainant’s remark “Oh, here’s the nigger lover.” (The appellant’s partner was described by counsel as “a large man of Island extraction with a Malaysian background”). The appellant immediately approached the complainant and said “What’s your fucking problem?” and was then pushed by the complainant. She then “saw red” and an altercation and scuffle ensued. It lasted only a short time. She acknowledged that she had pushed the complainant back who had then fallen against some objects before falling to the floor. She also conceded that she may have grabbed her by the hair and scratched her during the hostilities.

13. The defence of provocation was therefore raised and left to the jury.

14. Before evidence was called the Crown prosecutor indicated an intention to call evidence of the prior assault on 29 May 1998. He alleged that on that day an incident had occurred at the Kawana Surf Club in which the complainant when emerging from a toilet had for no apparent reason been struck by the appellant with a chair. His contention was that the evidence should be led as “similar fact evidence”. This was in my view rightly rejected by the learned trial judge. However he also submitted that such evidence could show animosity towards the complainant by the appellant and would support the complainant’s statement that she had always thereafter sought to avoid the appellant.

15. The first of these submissions, and arguably the second, could prima facie be regarded as showing sufficient relevance to justify its admission. However, if its probative value is significantly outweighed by its prejudicial effect, the appropriate course is to exclude such evidence in the exercise of a judicial discretion. In the exercise of his discretion his Honour ruled against the calling of such evidence. It will be necessary to return to this topic later.

16. The trial proceeded, during which the appellant’s version was put to the complainant and she rejected it. The appellant then gave her account and was cross examined by the Crown prosecutor. During the cross examination the following questions and answers were given:

“You would agree that someone saying or someone calling someone a nigger lover is particularly nasty and indecent thing to say, isn’t it?  --  Yes.

And you’re accusing Miss Grayson of having said those words?--- Yes.

You’re saying, in effect, aren’t you, that she’s a racist?--- Might be, I don’t know.

What about yourself, do you consider yourself to be a person  of good character?---  I’m of good character, yeah.

Did you consider yourself to be a violent person?---  No.

Matter of law, your Honour, if I may.”

17. The learned prosecutor submitted that it was unfair to the Crown if the appellant were able to “put the complainant’s character in issue and claim to be of good character herself” without having her background tested. He used the metaphor of “sauce for the goose is sauce for the gander”. His Honour agreed with the submission and granted leave to the Crown to cross-examine the appellant about her previous conviction. The ruling was based on s 15 of the Evidence Act 1977.

Exercise of discretion under s 15

18. It is true that the previous convictions that may properly be admitted under s 15 of the Evidence Act 1977 are not limited to offences of dishonesty and that similarity in kind of the prior offences is not per se a reason for exclusion.^[1]  However the risk that “the actual prejudicial effect of the cross-examination, if allowed, might far exceed its legitimate evidentiary effect upon credit” is one of the important factors identified by the High Court in Phillips v The Queen^[2] that operate against the granting of such leave.

19. Although an exercise under s 15 may attack an accused person’s character on a wider level than credibility, it seems to me that the primary objective of proceeding with such an exercise is to diminish the accused’s credibility as a witness. It is difficult to see in the present matter how the previous conviction for assault had anything directly to do with the appellant’s credibility. It would however be likely to have a very telling effect through its demonstration of propensity.

20. It was pointed out that his Honour gave the jury no assistance as to how this evidence might properly be used to consider credibility. That was no doubt due to the fact that no sensible assistance in that regard could have been given. This tends to support the proposition that leave should not have been granted in the first place.

21. The need to exercise the discretion proposed in criminal courts by s 15 of the Evidence Act has repeatedly been stated as one that must be exercised sparingly.^[3]  Mr Callaghan (Counsel for the appellant) submitted that the present trial was a “text book case” of word against word.  The cross-examination of the complainant suggesting that she had used the words “nigger lover” was essential to raise the only defence which was relied upon by the appellant.  The cross-examiner did not over-emphasise the point, and there was no gratuitous attack upon the complainant.  The complainant took advantage of the opportunity in re-examination to respond to amplify reasons why she would not have used those words.

22. Mr Campbell (Counsel for the Crown on the appeal) has fairly conceded that the appellant’s answers to the Crown prosecutor during cross-examination do not suffice to activate the direction under s 15, but submitted that the cross-examination of the complainant sufficiently enlivened it. Notwithstanding the partial concession it is desirable that something be said in relation to questioning such as that relied on by the Crown prosecutor at trial. The assertion by the Crown prosecutor that the appellant had claimed to be of good character was an artifice. The appellant did not raise the subject of her good character - the Crown prosecutor did. The question (“What about yourself, do you consider yourself to be a person of good character?”) has a number of objectionable features, but it is enough to note that in seeking the witness’s opinion of her own character, it was an artificial ploy to found a submission under s 15. The cross-examination by defence counsel of the complainant and in turn the evidence of the appellant had gone no further than the presentation of her essential defence. Even under prompting from the Crown prosecutor the appellant refrained from actually suggesting that the complainant was in fact racist. In my view it is not appropriate for a Crown prosecutor to contrive a situation in which an accused’s character, hitherto not an issue, is converted into a trigger for the introduction of otherwise prohibited evidence. If such questioning occurs, it ought not to be used as a valid basis for affirmative exercise of the discretion under s 15.

23. In a case like the present where the contest was essentially word against word there was a significant risk that the evidence of the appellant’s previous conviction would be regarded by the jury as decisive. In my view the prejudicial effect of the earlier incident and conviction was likely to far outweigh any value it might have had in rectifying any imbalance of the kind that s 15 is designed to cure. Taking into account the factors identified in Phillips as relevant to the exercise of the discretion, I consider that his Honour erred in permitting such cross-examination of the appellant.

Whether evidence of earlier assault ought to have been admitted as part of the Crown case

24. Mr Campbell further submitted that any error under s 15 was immaterial, as the evidence of the earlier assault (as distinct from the conviction) ought to have been admitted in the first place. He submitted it ought to have been received as evidence of animosity and as tending to rebut the appellant’s suggestion of provocation, and that without the fuller explanation of what had previously transpired between the two women the jury would be left with the impression that there had been a sudden inexplicable act of violence by the appellant. The complainant’s story was of course not presented as a sudden inexplicable act of violence, as she gave evidence that there was some animosity between them and between her and Mr Parter. That however deprived her evidence of some potential force, in that on her story the animosity was that of the appellant only, and she claimed that she had at all times tried to avoid contact with the appellant. The general statement of animosity between them might well be taken as mutual animosity and as affording some degree of support for the possibility that the complainant may have made the insulting remark that was alleged. For this reason there is some force in the observations in paragraph [6] of Davies JA’s reasons which I have now had the advantage of reading. However in the absence of a statement of the evidence that the Crown would wish to call, it would be premature for this Court to express any opinion as to whether or not such evidence should in due course be excluded on the ground of excessive prejudicial effect.

25. The basis upon which relationship evidence is received when it reveals criminal conduct that is not charged, and the extent to which directions may be necessary concerning the use to which it may be put and the use to which it may not be put, continue to raise some difficulty, particularly in sexual cases. These questions have been dealt with by the High Court in BRS v The Queen,^[4] Gipp v The Queen^[5] and KRM v The Queen.^[6]  The approach that should be taken and the directions that seem necessary or unnecessary from case to case in the light of these High Court decisions have been the subject of consideration in various decisions in State Courts of Appeal, and in particular, by this Court in matters such as LSS,^[7] Kenward,^[8] Rankin,^[9] Chevathen and Dorrick,^[10] and Self.^[11]  The evidence in the present matter is admissible as it has the capacity to show hostility or motive.  The true question is whether it should be excluded in the exercise of the Court’s discretion. That discretion was referred to by McHugh J in KRM above as “the ordinary discretion to reject evidence in a criminal trial where the prejudice likely to result from evidence outweighs the probative value of the evidence.”^[12]  The exercise of the discretion has been the subject of judicial discussion on many occasions since Makin v Attorney-General for NSW.^[13]  The cases were reviewed in the Court of Criminal Appeal in R v Hasler Ex Parte Attorney-General,^[14]and those general principles remain substantially unaffected by more recent authorities. Recent illustrations in this Court include Morrison^[15] where it was held that evidence was rightly received of the accused’s use of a knife the evening before the alleged killing, in order to rebut his defence of physical incapacity, notwithstanding the tendency to show misconduct on another occasion: whilst in R v S,^[16] the capacity of evidence to make evidence of a Crown witness more cogent and comprehensible, was regarded as insufficient to justify its reception when this would necessarily have brought out previous convictions of the accused.

26. There will be cases where the full details of a hostile relationship may need to be received in order to allow a proper understanding of the evidence, or where a Crown case will be unfairly truncated unless evidence of the attitude of the accused person towards the complainant is permitted to be called. R v Witham^[17] is a strong example of this. On the other hand evidence of an isolated incident between two women occurring 15 months before the relevant event, with no contact in the interim, might be regarded as too remote and as incapable of throwing much if any light on the merits of a different incident such as that which was here litigated.  If the probative value of such evidence is light and its prejudicial potential heavy, it should be ruled out.  Failure to do so may result in unfair prejudice as well as the unnecessary multiplication of issues.

27. In the present case it cannot be said that his Honour erred against the Crown in ruling as he did. However I would not wish to preclude the Crown from re-visiting this particular issue if any retrial takes place. This is because only the barest details of the original assault are disclosed in the appeal record. A more satisfactory ruling might result from a wider examination of the available evidence.

Error in Summing up

28. The cross-examination that his Honour permitted concerned the appellant’s conviction, not the circumstances of the previous assault.  In the summing up, his Honour told the jury –

“The fact of the previous conviction can only be used for the purpose of considering the credibility of the accused person and is relevant to the question of weight to be attributed to her evidence on contentious issues.  Evidence of any previous conviction must not be used by you as evidence tending to the proof of guilt of the accused.”

I am unable to see that the commission of an earlier assault on the complainant has any proper bearing on the question of credibility.  The only relevance on that question would be through recourse to propensity.  If the evidence of the circumstances of the prior assault had been received on the basis upon which the Crown now contends, the summing up would have informed the jury of the basis of its reception and of its limited function, probably accompanied by a warning against reasoning upon any basis of propensity.  In the context of the present trial the above direction might be regarded as a misdirection although, as earlier indicated, it is really an indication of the incorrectness of admitting such evidence under s 15.  In the circumstances it is immaterial whether it is also regarded a misdirection.

Order

29. The appeal should be allowed. The conviction should be set aside with a direction for retrial.

30. WILSON J:  I agree with the reasons of Thomas JA, and with the further observations of Davies JA.

31. Counsel for the respondent conceded that evidence of the appellant’s prior conviction of assault occasioning bodily harm to the same complainant was not admissible pursuant to s 15 of the Evidence Act 1977.  It may well have been admissible as relevant to motive or to rebut provocation, but it would have been necessary for the trial judge to give the jury careful directions about the use they could make of it.  In circumstances where such directions were not given, the trial judge’s error in admitting the evidence resulted in the trial miscarrying.

32. I agree with the orders proposed by Thomas JA.