R v Genrich[2001] QCA 466

COURT OF APPEAL

McPHERSON JA

AMBROSE J

CULLINANE J

BRISBANE

DATE 25/10/2001

JUDGMENT

McPHERSON JA:  The appellant was convicted after a trial in the District Court at Cairns of housebreaking, doing grievous bodily harm, and armed robbery in company, for which he was sentenced to an effective term of seven years imprisonment.  He appeals against this conviction and also applies for leave to appeal against sentence.  At the trial his defence was essentially one of false identification; that is, that it was not he who had committed the offence and, in substance, that he had been framed by others.  For that purpose he now seeks leave to adduce further evidence on this appeal. 

Two of the grounds of appeal can be readily disposed of.  One is that special security precautions being taken at the trial became known to at least two jurors when they arrived at Court from what seems to have been an unexpected direction.  The other is that, despite a pretrial ruling by the Judge, one of the witnesses at the trial referred to "Bandidos" which is the name of a well-known bikie gang.  In both instances the learned trial Judge refused to discharge the jury.  In my opinion, it has not been shown on appeal that, whether considered in isolation or together, either of those rulings or decisions by her Honour involved an erroneous exercise of her discretion or produced a miscarriage of justice. 

The other principal ground of appeal concerns a pretrial ruling that defence counsel should not be permitted to cross-examine the complainant, who is a Mr Watson, about a particular matter.  It arose in this way.  The attack giving rise to these charges occurred at Mr Watson's home at night and was said to have involved at least two men, one of whom was said to be the appellant, who struck the complainant with a baseball bat, or so it was alleged.  Mr Watson was, it may be accepted, reluctant to make a complaint to the police, evidently for fear of the consequences to himself from his attackers or their allies.  On or about the night of the attack he at first made a statement or statements to the police.  He then withdrew his complaint, but reinstated it as I understand some 18 or so months later.

Counsel for the defence, who was Mr Lynham, had access to a document described as a CRISP Report, which is some form of police summary, synopsis or assessment of the material available in support of the prosecution.  In it there is a reference to a report by a Detective Thompson to the effect that the complainant Mr Watson had given three different versions of the incident.  What those three versions were was something that was apparently not known by the time of the trial, and in any event Detective Thompson did not himself give evidence at the trial of the appellant.

However, all that Mr Lynham wished to do was to cross-examine the complainant Watson about whether he had given three different versions of the incident.  That was something that he was plainly entitled to do, whether or not he would have been in a position to adduce evidence thereafter to contract or rebut the answer to the question which he was proposing to put to the complainant.  Her Honour, however, ruled that the question was "inadmissible" for the reason, so she said at one stage, that it would only cause the jury to "speculate". 

With respect, that was no reason for refusing to permit such questioning in cross-examination.  In R v. Wakeling (1990) 63 ALJR 321, the High Court held that a good deal of liberty ought to be allowed to counsel in cross-examination.  Their Honours said (at page 325):

"The limits of cross-examination are not susceptible of precise definition for a connection between a fact elicited by cross-examination and a fact in issue may appear, if at all, only after other pieces of evidence are forthcoming.  Nor is there any general test of relevance which a trial Judge is able to apply in deciding at the start of a cross-examination whether a particular question should be allowed.

Some of the most effective cross-examinations have begun by securing a witness's assent to a proposition of seeming irrelevance...  Although it is important in the interests of the administration of justice that cross-examination be contained within reasonable limits, a Judge should allow counsel some leeway of cross-examination in order that counsel may perform the duty where counsel's instructions warrant it of testing the evidence given by an opposing witness."

With respect, I regard it as elementary that a question of the kind that Mr Lynham was proposing to put to the complainant should have been allowed and without concern for or inquiry about the details of the information on which he might have been justified in asking that question.  The decision in Wakeling was applied by the Court of Appeal of New South Wales in a case with the name of Margaret Greatorex (1994) 74 ACrimR 497 in circumstances not altogether unlike those in this case.  The result, in my opinion, is that the ruling against the defence in the matter of the proposed question in cross-examination was wrong in this instance, and indeed I would have thought that the ruling was itself quite premature.  There was no reason why the question should not have been put to the complainant in cross-examination at the ordinary time and in the ordinary way in the course of cross-examination of the complainant. The possibility that the jury might be led to speculate was no reason for excluding it.  Entertaining a reasonable doubt based on the response of a witness to cross-examination about an alleged prior statement is something that forms part of the proper function of a jury at trial. 

Whether this conclusion would have had the consequence that this conviction must be set aside or whether it could be saved by applying the proviso to s.668E of the Code (now s.668E(1A)) is something on which it is not necessary to reach a final decision in this case.  That is so because there was, in my opinion, a much more fundamental defect in the trial process.  I will explain it in the following way.

At the trial the prosecution proposed to, and did in fact, call a witness named Ryan Hallam in support of its case against the appellant.  He is one of those who was alleged to have accompanied the appellant to the complainant's home when and where the offences were committed.  He had, it seems, been given a form of witness indemnity by the former Attorney-General, Mr Matthew Foley.  Before Hallam gave evidence against the appellant at the trial, a Detective Sergeant Dowie was called to testify in the prosecution case.  He said he had been involved in arranging the indemnity in favour of Hallam.  The indemnity or a copy of it was in writing and was received in evidence at the trial as ex.4.  Before it was tendered Detective Sergeant Dowie was asked in the witness box to read out the schedule in the indemnity, which described the matters in respect of which the indemnity was given to Hallam.  His evidence, which follows closely the terms of that schedule, was as follows:

"Proceedings against Mark William Genrich for alleged offences of carrying on the business of unlawfully trafficking in a dangerous drug, supply a dangerous drug, unlawful possession of a weapon in contradiction of the Weapons Act, receiving, armed robbery in company with personal - with personal violence, burglary and unlawfully doing grievous bodily harm." 

This represented an oral statement of the contents of the schedule which, as I have said, was put before the jury in full as ex.4. 

The purpose of this exercise in the Crown case is not perhaps entirely clear, but was apparently designed to establish that the subject offences, or one or more of them, with which the appellant was charged were not in all respects the same as those for which Hallam had received his indemnity from the Crown.  To permit the prosecution as part of its case against an accused to lead evidence to establish credit, or the absence of bias, on the part of one of its own witnesses before any challenge to that effect has been made by the defence seems to me to be contrary to both principle and good trial practice, if it is not in fact in contravention of positive rules of evidence.  The proper course would, of course, have been for the Court to adduce that evidence if, and only if, and after, Hallam's impartiality had been put in issue by cross-examination on the part of the defence which raised matters of that kind. 

However that may be, the real vice of the procedure adopted here was that it disclosed to the jury that there were many other charges of very serious criminal offences pending against the appellant.  It defies belief that the prosecution should have led evidence in chief at the trial of the appellant on matters of that kind, and that it should have succeeded in doing so without objection from the defence or intervention from the Judge.  Mr Weston, who on appeal appeared for the Crown, was unable to explain how this could have happened except on the basis that there might have been an agreement between counsel that this information would be admitted in evidence and that there might have been a tactical reason why the defence did not  object to it.  It seems to me that that is an extremely improbable explanation of what happened; but, in any event, the whole of the trial process under our system of law is designed to exclude prejudicial information of that character from coming before a jury who are empanelled to determine the guilt of the accused on admissible evidence. 

It is for that reason that s.15(2) of the Evidence Act 1977 expressly prohibits the questioning of an accused person about other offences with which he has been charged, except with the express leave of the Judge who is expected to exercise a careful discretion before giving permission for such questions to be asked.  The evidence of Detective Dowie was, in my view, plainly inadmissible, as well as highly prejudicial to the appellant, both in itself and when taken in conjunction with some of the other grounds of appeal which, as I have said, on their own might otherwise not be of much consequence.  I refer to the witness's reference to "Bandidos" and the special security arrangements that were observed by two of the jurors.

The admission at the trial of the schedule to the indemnity ex.4, and Detective Dowie's oral evidence about it, is not the subject of a ground of appeal before us; but its admission plainly breached one of the fundamental safeguards of a fair trial.  In the face of that fact - that is, its admission - the conviction cannot, in my view, be allowed to stand.  There must be a new trial of the appellant in relation to all the counts in the indictment.  This makes it unnecessary to consider his application to call fresh evidence on appeal.  If a new trial takes place the appellant will, of course, be afforded ample opportunity of producing further evidence of the kind he has in mind in order to assist in demonstrating his innocence of the charges he will be facing. 

I would therefore allow the appeal, set aside the conviction and verdict and order that there be a new trial of the counts in the indictment.

AMBROSE J:  I agree.

CULLINANE J:  I agree also.

McPHERSON JA:  The order will be as I have stated it.

Is there anything further that I should have said in relation to the order that I have omitted?

MR WESTON:  No, you haven't, your Honour, no.

McPHERSON JA:  Bail is not a question in this case.

MR WESTON:  No, that's so.  Mr Genrich is serving a sentence for another unrelated matter.

McPHERSON JA:  Yes.  I think in fact some of them may be among the offences mentioned in Hallam's indemnity, by the look of it.

MR WESTON:  That is correct, yes.

McPHERSON JA:  But that's neither here nor there.  Very well, that will be the order of the Court and we will now - do you want to say something, Mr Genrich?

APPELLANT:  No, your Honour.

McPHERSON JA:  We will now adjourn.