SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The appellant, Robin William Kelly, was convicted on 10 June 2005 after a four day jury trial of wilfully and unlawfully killing a dog.  He was sentenced on 15 June 2005 to four months imprisonment suspended after one month for an operational period of five years and in addition fined $5,000 payable within six months in default of which two months imprisonment.  He appeals against his conviction and applies for leave to appeal against his sentence contending it is manifestly excessive.

[2] The relevant evidence at trial is set out in Jerrard JA's reasons for judgment so that I need not repeat it.

[3] The only ground of appeal against conviction ultimately pursued was that the trial judge erred in giving leave under s 15(2) Evidence Act 1977 (Qld) to the prosecutor to cross‑examine the appellant as to his previous convictions.  Section 15(2) relevantly provides:

"Where in a criminal proceeding a person charged gives evidence, the person shall not be asked, and if asked shall not be required to answer, any question tending to show that the person has committed or been convicted of or been charged with any offence other than that with which the person is there charged, ... unless -

...

(c)... the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution ...;".

[4] Before a trial judge's discretion to allow cross-examination is enlivened under that part of s 15(2)(c) set out above, the notice or conduct of the defence must be such as to involve imputations on the character of the prosecutor or of a prosecution witness.  Here the relevant imputations relied on by the prosecution were that the appellant gave evidence that he did not tell police officers about the bites to his ankle from the dog because the police had been heavy-handed in their treatment and arrest of him and had "lost all credibility" with him and that other police officers at the watch house said that he had killed a Labrador with a cricket bat and sarcastically referred to him as a "hero".  In essence the appellant was implying that he did not tell the police officers about the dog bites to his ankle because he believed the police had prejudged the issue against him. 

[5] I am not persuaded that the appellant's evidence in this respect involved imputations on the character of prosecution witnesses sufficient to enliven the discretion under s 15(2) of the Act.  In many cases it will be clear that the person charged has conducted the defence so as to make imputations on the character of prosecution witnesses, for example, where the person charged gives evidence that the police fabricated prosecution evidence or bashed, threatened or intimidated the person charged into making a false confession.  Here the appellant, in attempting to explain why he did not show police officers dog bite marks on his leg, did no more than give evidence to the effect that he was not inclined to discuss the matter with them because he believed the police had overreacted, treated him more harshly than necessary and prejudged the issue they were investigating against him.  It was an area where witnesses may well have held honest but different perceptions of what occurred depending on their own perspectives.  The appellant's explanation in evidence leading to the s 15(2) application was not conduct of the type to which s 15(2) was intended to relate:  cf R v Preston;[1]  R v Symonds[2] and R v Kalliris.[3]

[6] If I am wrong on that preliminary issue and the appellant's evidence was sufficient to amount to conducting his defence so as to involve imputations on the character of prosecution witnesses, I agree with Jerrard JA that the judge wrongly exercised that discretion in allowing the cross-examination as to the appellant's prior convictions.  The cross-examination of the appellant related to offences which occurred 14 years earlier; they were serious offences of demanding the performance of services with threats, kidnap for ransom or gain and procuring the execution of a document in order that it might afterwards be dealt with as a valuable security by threats;  it was also put in cross-examination that he received seven years imprisonment for those charges.  By contrast, the imputations, if of the sort to which s 15(2) applied, were comparatively mild; they amounted to little more than an assertion that the appellant believed the police treated him rather roughly and with some prejudgment so that he was not prepared to confide in them.  The fact that these allegations which he made during his evidence were not put to the police officers by his lawyer in their earlier cross-examination so that they were unable to comment upon them could have been adequately balanced with a judicial direction to the effect that the jury could use that fact to reach an adverse assessment of the appellant's credibility.  This was all that was necessary to remedy any disadvantage or unfairness to the prosecution arising out of the appellant's conduct of his defence and to restore fairness and balance to the trial from the perspective of the prosecution witnesses.  The primary judge did in fact give such a direction to the jury, fairly adding that before the jury would draw that adverse inference they should consider other possible explanations for it such as whether it was the lawyer's mistake during the pressure of the trial and that they should only draw the adverse inference as to the appellant's credibility if there was no other reasonable explanation for the failure.  To additionally bring out the appellant's stale but extremely serious criminal history risked prejudice to him far exceeding its legitimate evidentiary effect on his credit:  see R v Brown,[4] approved by the High Court in Phillips v The Queen[5] and most recently discussed and applied by this Court in R v Kalliris.[6]

[7] It follows that the appeal against conviction must be allowed unless this Court is of the opinion that the appeal should, despite that error, be dismissed because no substantial miscarriage of justice has actually occurred:  s 668E(1A) Criminal Code.

[8] The learned primary judge warned the jury that the appellant's convictions for offences of dishonesty were long ago and were relevant only to his credibility;  the evidence was not presented to show his propensity to commit criminal acts and jurors must not use propensity evidence in their reasoning.  The judge clearly and strongly warned the jury that the evidence of his criminal history had no relevance whatever as to whether or not the prosecution had proved the elements of the offences charged beyond reasonable doubt.  The jury can be taken to have understood and acted on that warning in reaching their verdict.  The evidence set out by Jerrard JA in his reasons convincingly demonstrates that the case against the appellant was overwhelming and that he did not impress as an honest or reliable witness.  I am satisfied that the evidence properly admitted at trial proved the appellant's guilt beyond reasonable doubt.  I am also satisfied that in the light of the trial judge's clear and strong directions as to the limited use of the evidence of the appellant's criminal history, this is not a case where there has been such a significant denial of procedural fairness that the verdict of guilty should be overturned and a retrial ordered:  Weiss v The Queen.[7]  It follows I am satisfied that no substantial miscarriage of justice has actually occurred despite the wrongful admission of the appellant's criminal history under s 15(2).  I would dismiss the appeal against conviction.

[9] I did not understand the appellant to be pursuing his application to adduce further evidence but, if so, I would refuse it.  The unedited tape-recording of his arrest by police was available to him at the time of this trial in June 2005.  It would not have assisted the appellant in the light of the strong case against him.  The appellant has not demonstrated that, if this Court were to receive that further evidence, it, in combination with the evidence at trial, would require the appellant's conviction to be set aside to avoid a miscarriage of justice:  R v Condren;  ex parte A-G (Qld);[8]  R v Young (No 2);[9]  R v Main;[10]  R v Daley;  ex parte A-G (Qld).[11]

[10]  I turn now to the application for leave to appeal against sentence.  The maximum penalty for this offence was two years imprisonment.  The appellant was 51 at the time of the offences and 53 at sentence.  He had a concerning criminal history to which I have already referred.  It included offences of abduction, detention and threatening of a complainant with a view to forcing him to restore the appellant and his co-offenders to the financial position they thought they were entitled to be placed in by the complainant.  Concerningly, those offences, like the present offence, involved the appellant taking the law into his own hands.  The behaviour of dogs and the responsibility of their owners is closely controlled in Brisbane by council regulations so that the appellant had adequate lawful remedies to turn to if he was concerned about the dog's behaviour.  A further concerning aspect of the present offence is that it involved the violent killing of a domestic pet which was confined at the time on its owners' premises.  No doubt the offence caused great distress to the dog's owners and also anxiety to other neighbours, especially those who owned domestic pets.  The appellant showed no remorse in his conduct at the trial, nor did he have the mitigating benefit of an early plea of guilty or co‑operation with the administration of justice.  In all those circumstances a sentence which required the appellant to serve a short period of actual imprisonment, although not mandatory, was certainly open.

[11]  The sentence of imprisonment imposed was not only four months imprisonment suspended after one month with an operational period of five years but it also included a $5,000 fine payable within six months in default two months imprisonment.  The appellant contends that to combine an actual period of imprisonment before suspension of the four month sentence with a five year operational period and a very substantial fine of $5,000 is to make the overall sentence in combination manifestly excessive.

[12]  There is some merit in that submission.  The appellant has now paid $1,000 of the fine imposed and has served the one month period of imprisonment.  Because of his demonstrated and worrying tendency towards vigilantism, the judge was entitled to impose the lengthy five year operational period.  It is fitting that the appellant be at risk of serving the remaining three months imprisonment if he reoffends during that operational period.  The additional imposition of a modest fine was also within range but a substantial fine of $5,000 made the combined sentence excessive.  I would grant the application for leave to appeal against sentence, allow the appeal against sentence and vary the sentence imposed at first instance to the limited extent of ordering that he be fined $1,000 rather than $5,000.

[13] Orders

1. Application to adduce further evidence refused.

2. Appeal against conviction dismissed.

3. Application for leave to appeal against sentence granted and appeal against sentence allowed.

4. The sentence imposed at first instance is varied by substituting a $1,000 fine for the $5,000 fine.

[14]  JERRARD JA: On 10 June 2005 Robin Kelly was convicted of an offence under   s 468 of the Criminal Code 1899 (Qld), namely willingly and unlawfully killing a dog, the property of Jon Lee Thorlton, on 28 September 2003.  He was sentenced to four months imprisonment suspended after one month for an operational period of five years, and in addition was fined $5,000 in default two months imprisonment, cumulative if served, and allowed six months to pay.  Mr Kelly has appealed against his conviction, and sought leave to appeal the sentence; he complains that the sentence was manifestly excessive in that actual imprisonment was imposed, as well as a substantial fine. 

The evidence

[15]  A neighbour saw Mr Kelly, armed with a baseball bat, enter a gate into the premises of the dog’s owner, and he was heard apparently kicking and hitting the dog, which was heard yelping.  He was seen to emerge from the dog owner’s yard and approached the neighbour and her husband, remarking that he had done something that those neighbours should have done ages ago.  He said the dog was vicious and had tried to bite his children, and when one of those two neighbours asked if the dog needed attention, that neighbour swore Mr Kelly said “don’t worry about it, the dog’s dead.”[12] Her husband recalled his saying that he had “taken care of the dog”.[13]  Those neighbours could not see the dog in the yard, and when the dog’s owner returned home, the owner could not find the dog or its body.  Mr Kelly approached the dog’s owner later, and told the husband and wife that the dog was “vicious” and he had “got rid of it”[14] or had “taken care of it”,[15] and that it had bitten him; he presented his right arm as if in proof of the bite, although no injury was visible to the dog’s owner. 

[16]  The dog’s owner called the police, and Mr Kelly was arrested soon after the police arrived at his home and spoke with him.  Before his arrest he had told the police that (other) neighbours had told him the dog had frightened his children on occasions when they were returning from school, and that on that day (28 September 2003) he had seen the dog go “berserk”, racing up and down the fence as if attempting to get out and bite when one of his children was riding a scooter past the dog’s owner’s premises.  Mr Kelly had gone to speak to the dog’s owner about the dog’s behaviour, but he was not home; and when he was in the owner’s yard, the “dog went about me”, meaning that it attacked him. 

[17]  When asked what happened to the dog, Mr Kelly said to the police: “Well I got rid of it”; and that he had put it in a vehicle and dumped it in the bush.  He did that out of respect for the owners of it, because “Well, would you like to come home and find your dog dead in the yard?”  A little later he said “And the dog had a go at me, so I killed it.”

[18]  Other evidence, including from a different neighbour who was called as a witness by Mr Kelly, and evidence from Mr Kelly himself, established that what Mr Kelly did was render the dog apparently dead, on Mr Kelly’s own description. Mr Kelly then threw its inert body over the fence, and into the yard of the neighbour whom he called as a witness.  Later he put the body in that neighbour’s wheelie bin; thereafter what actually happened to it was not clear.  Mr Kelly, who gave differing accounts about that, intended to convey the possibility that the dog had recovered consciousness and escaped, either from the bin or from wherever Mr Kelly had taken its apparently lifeless body.

The trial

[19]  The police recorded their conversations with Mr Kelly at his home, including what was said when he was arrested.  At the trial, which resulted in his conviction, the jury heard only the record of the relevant questioning already described, but not the record of his actual arrest at his home.  The transcript of that latter event, which is attached to an affidavit Mr Kelly filed in the appeal on 30 January 2006, records that Mr Kelly complained that the police were hurting his (broken) shoulder, and that the police told him to relax, that there was no need for him to get aggressive, and that they would be very relaxed with him.

[20]  The relevance of the existence of a record of the actual circumstances of his arrest lies in the evidence Mr Kelly gave at his trial. This was relied on by the Crown to persuade the learned trial judge to allow cross-examination by the prosecution about Mr Kelly’s prior convictions.  Mr Kelly’s principal complaint when the appeal was finally argued was that the learned trial judge erred in granting leave to the prosecution, pursuant to s 15(2) of the Evidence Act 1977 (Qld), to cross-examine Mr Kelly regarding those prior convictions.  Mr Kelly’s defence at the trial relied on s 458 of the Criminal Code, namely that he was protecting himself from imminent injury by the dog, and (only) did what was reasonably necessary to do that.  His case at trial was that he did not tell the police in more detail about the imminent attack, because he was offended at how they had treated him.

[21]  When questioned at his home before being arrested, Mr Kelly had said that the dog “went about me”, and “had a go at me”, but not that it injured him at all.  After being arrested at his home, Mr Kelly said that he had taken a baseball bat into the yard with him to protect himself, and he twice told the police in that questioning, after his arrest, that “the dog had a go at me, so I killed it”.  He did not say then that the dog had actually bitten him.

[22]  In his evidence at the trial, he swore that it did, that it had bitten him both on the arm and on the leg, and that was why he struck it on the head with the baseball bat, believing he had killed it, namely in defence of himself.  He called evidence from a medical practitioner, whom he visited on 29 September 2003, complaining of being bitten by a dog the previous day, and the doctor saw what appeared to be puncture wounds on the outer and inner side of his right calf, consistent with a dog bite, and consistent with what the doctor was told by Mr Kelly.  The Crown suggested to Mr Kelly in cross-examination that those wounds were self-inflicted by Mr Kelly following his release from custody, but Mr Kelly denied that; and the doctor’s evidence did not support the Crown’s contention.

[23]  Mr Kelly also called the neighbour into whose bin he had put the dog’s body, who swore that Mr Kelly had told that neighbour he had been bitten by the dog; and that neighbour said Mr Kelly had shown him what appeared to the neighbour to be a dog bite on Mr Kelly’s “legs”, “just above the ankle”.  It should be said that that neighbour’s answers in cross-examination were unresponsive, aggressive, and unconvincing; that neighbour’s evidence also advanced the claim that the neighbour had heard the dog apparently moving or making noises from within the wheelie bin, suggesting it was still alive, but the neighbour had to agree that although questioned by the police, the neighbour had never spoken of the dog apparently moving in the wheelie bin before giving evidence.

[24]  This description of the evidence should suffice to explain that both for the prosecution, and also for the defence, it was of some significance that Mr Kelly had not told the police that the dog had actually bitten him, and had not shown the police the marks he said he had showed the neighbour he called as a witness, and which he showed the next day to a doctor.  His omission to do that was highlighted by evidence the prosecution called, to establish that when taken to the Indooroopilly Police Station Mr Kelly had been questioned by the custody officer, about his health.  That was in the form of a series of standard questions which had included (as question number 2) “Are you suffering from any injuries?”, and that Mr Kelly had replied “Yes”, and drawn attention to a “[t]orn and dislocated right shoulder from 10 days ago”[16], and said that he had received treatment for that injury the previous Monday; but Mr Kelly had not adverted to any other injuries.  The same sequence of questions were asked all over again, with the same result, at the City Watch-house.[17]  The questions were asked there by the Charge Sergeant.

[25]  Mr Kelly’s evidence on that point was that he recalled only being asked if he had any significant injuries, and for that reason had told the custody officer and Charge Sergeant about his shoulder, and – as the Sergeant had recorded – the medication he was taking for it, and which he was then still taking.  His alternative or further explanation in the witness box, for not saying anything about having been bitten and having his leg injured by the dog, was that the police had when arresting him “twisted my right arm up my back” after he had told them it was sore, handcuffed him as tightly as they could, and then dragged him by the handcuffs to a police vehicle.[18]  This had resulted in “the police lost all credibility with me.  I was just simply talking to them, telling them what happened and they decided to arrest me, and the way they arrested me.”[19] 

[26]  Additionally, Mr Kelly swore that when at the police station and in the holding cells, one police officer called out “Oh, look, Harry, we’ve got a hero here. Killed a labrador with a cricket bat.”[20]  Another police officer then began abusing Mr Kelly.  Accordingly Mr Kelly “didn’t want to talk to them”[21], and volunteered no more information to the police.  That evidence from Mr Kelly overlooked that after his arrest at his home, he had volunteered information (twice) that the dog had had a go at him, and so he had killed it; and that he had the baseball bat for self-protection.  The fact that this information was volunteered after his arrest was not apparent from the edited tape and transcript provided at the trial resulting in his conviction.  It was clear on the unedited version.

[27]  Those criticisms of the police – the manner in which his actual arrest had been affected, and the remark made about him, put forward as his reason for not mentioning the bite - were the basis of an application to cross-examine him on prior convictions.  The application was made at the end of his evidence in chief, and granted.  The convictions were in 1991, 14 years earlier, for serious offences, including kidnapping for ransom.  The learned judge was sympathetic to the application because the judge considered that Mr Kelly had volunteered information in the witness box, to suggest that the police had displayed poor character in the way in which they dealt with him.  The learned judge said that Mr Kelly was essentially saying that the police were gratuitously brutal to him during the arrest, and also that another officer had gone out of that officer’s way to ridicule and embarrass Mr Kelly with the comment about the “hero”, thus belittling him publicly to other police at the police station.  While the second matter had been put to the particular officer, who had denied making any such statement, nothing had been put to any of the arresting police by way of a complaint about the circumstances of the arrest, or any alleged heavy-handedness when the arrest was made.

[28]  Not only had there been no suggestion in cross-examination that the arrest was made with unnecessary force, or in a way capable of upsetting an ordinary person, or that it obviously did upset Mr Kelly, but also there was no challenge to the evidence from a number of police officers to the effect that Mr Kelly did not have any visible injuries.  One officer did agree that Mr Kelly was wearing socks, and Mr Kelly’s evidence was that the socks concealed the bite marks on his leg.  He swore he did not tell the police of those, because he was angry at their behaviour to him; so he kept his own counsel.

[29]  The law governing the exercise of the discretion to permit cross-examination about a defendant’s previous convictions, granted pursuant to s 15(2) and (3) of the Evidence Act 1977, was summarised by Thomas JA in R v Symonds [2002] 2 Qd R 70, as follows:

“1.The legislation is not intended to make the introduction of an accused’s previous convictions other than exceptional;

2.The prejudicial effect on the defence of questions relating to the accused’s criminal record needs to be weighed against such damage as the trial judge might think had been done to the Crown case by the imputations;

3. On the issue of credibility it might be unfair to the Crown to leave the Crown witnesses under an imputation while preventing the Crown from bringing out the accused’s record;

4.The actual prejudicial effect of the cross-examination, if allowed, might far exceed its legitimate evidentiary effect upon credit;

5.The fact that an accused, in making imputations against the prosecution witnesses, is not doing anything more than presenting his defence, should tend against allowing cross-examination as to previous convictions.  But if the accused makes quite gratuitous imputations that are not necessarily involved in the proper conduct of the defence, the court will be more ready to exercise its discretion in favour of the Crown.”[22]

[30]  It was very recently restated in the judgment of Holmes JA in R v Kalliris [2006] QCA 321,[23] in similar terms.  Holmes JA remarked that the fundamental criterion for the exercise of the discretion was what fairness required, and that necessitated a weighing of the prejudice to be suffered by the defendant against the damage to the Crown case by the imputations made by the defence.  In this matter, while the learned trial judge expressly considered the nature of the imputations Mr Kelly made, the judge neither expressly considered the prejudice he would suffer from disclosure of his convictions, nor expressly weighed that prejudice against the harm to the Crown by the imputations.  The judge erred in that approach, but it should be said that the learned judge did give the jury express directions not to use the prior convictions as propensity evidence, and to use it only inasmuch as the evidence of those was relevant to credit.

[31]  There is a more fundamental point about the application. It is that if Mr Kelly’s counsel had put to the police that Mr Kelly had become upset when arrested, and was thereafter unco-operative, it would have been more obvious that when Mr Kelly complained of how the police had arrested and otherwise dealt with him, he was giving evidence of matters related to his defence, a consideration relevant to the exercise of the discretion.  It would also have been more obvious that the two separate enquiries that other police had made about his health made a reasonable response to claims of mistreatment.  The result is that Mr Kelly had his prior conviction put before the jury, really because of a Browne v Dunn[24] situation.  It should be said in fairness to the learned trial judge that the judge also explained to the jury that they had not had the benefit of hearing from the prosecution witnesses on the matters not put to them.

[32]  Without any reference at all to prior convictions, the prosecution still had good grounds at the time of the application for inviting the jury to dismiss Mr Kelly’s explanation for not mentioning then and there, when questioned at his home, that the dog had bitten him on the leg, or arm, if that had actually happened; and for contending – as the prosecution did – that Mr Kelly had not been bitten by the dog at all, and had only later demonstrated bite marks which he may have put there himself.  Those grounds included that Mr Kelly had actually answered questions at his home, in which he said the dog had “had a go” at him, and yet had said nothing about any bite; none of the neighbours called in the prosecution case had been told of any actual bite to the leg or legs; and none of the police who went to his house, or who were at the police station to which he was taken, had seen any injuries to either leg.  Mr Kelly’s response in evidence, that he was wearing socks, which concealed the injury, may have seemed unconvincing.  Further, whatever the degree of force used when arresting him, Mr Kelly had answered questions at his home after his arrest and had volunteered information about being attacked by the dog, but had said nothing about injuries; and the Crown had led evidence of two opportunities specifically given to him to describe being bitten or injuries, and he made no reference on either of them to a dog bite.

[33]  The learned judge granted leave because the judge held that Mr Kelly, in the witness box, had presented a defence which involved imputations on the character of various of the prosecution witnesses, in circumstances where a number of those witnesses were given no chance to comment on or reply to the imputation made against the witness.  Mr Kelly had certainly done that.  The judge also considered that the offences of which Mr Kelly had been convicted in the Cairns District Court on 3 June 1991 included elements of dishonesty, and so leave was given to cross-examine him about those.  Those were convictions for demanding the performance of services with threats, kidnapping for ransom or gain, and procuring by threats the execution of a document in order that it might afterwards be dealt with as a valuable security.  For those offences Mr Kelly was sentenced to seven years imprisonment.  The jury learned of those convictions, and the sentence, right at the end of Mr Kelly’s cross-examination.

[34]  Mr Kelly had not fared well in the witness box prior to that last piece of cross-examination, just like the neighbour Mr Kelly called as a witness.  Mr Kelly was argumentative in the witness box, remarking at one stage that “You’re a pretty obnoxious prosecutor”, an attitude that rarely helps a defendant.  Often his answers were unresponsive; and he had difficulty explaining why he told one neighbour that the dog was dead, and the police the same thing at his home on three separate occasions, when his evidence in cross-examination was that it was definitely not dead when he threw it over the fence. He had difficulty explaining why he told a media representative on the morning of 29 September 2003 that he had thrown the dog over the next door neighbour’s yard, and that when he went back to get it from the yard “it wasn’t there”; whereas he told the jury that he had taken it a number of kilometres into bush and deposited its body there, and had gone back the next day to find it missing from that place. 

[35]  Those inconsistencies – and a number of others – were the subject of effective cross-examination.  So too was fact that Mr Kelly’s lawyer had not put to the arresting officers that they had manhandled Mr Kelly and had thrown him into the police vehicle.  Likewise he was cross-examined to good effect about a complaint he made to the Brisbane City Council on 29 September 2003, and a suggestion Mr Kelly had made to a Council Officer on 1 October 2003 that the dog was not dead, and that Mr Kelly believed it had “been stashed” somewhere, and would reappear.  Mr Kelly unsuccessfully endeavoured to contend in the witness box that he was not suggesting that it was the dog’s owners who had stashed it; the conversation with the Council worker was tape-recorded, and the jury would have been entitled to conclude that Mr Kelly had clearly asserted on 1 October 2003 that the dog’s owners had hidden the body. That proposition was not put to them in cross-examination.

[36]  That effective cross-examination really made it unnecessary for the prosecution to conclude the attack on Mr Kelly’s credibility by referring to convictions 14 years earlier for very serious offences.  His credibility had already been severely damaged.  Further, the prosecution had a better way of responding to his complaints about how he was arrested, other than by referring to those previous convictions.  Instead of doing that, the prosecutor could simply put in the whole of the tape, of which part was already before the jury, recording what had happened when the police went to Mr Kelly’s home as described.  An edited portion of that had been placed before the jury, which portion excluded the actual events of the arrest.  Mr Kelly annexed a full transcript of the taped conversation to his affidavit for this appeal sworn 30 January 2006, and his affidavit accepts that the recording was accurate and the transcript was complete.  The full transcript is probative of relevant matters, and I would admit it on this appeal.

[37]  The trial which resulted in his conviction was his second trial on the charge of killing the dog.  The first trial had been aborted.  At that first trial the Crown had put in the unedited tape, and Mr Kelly’s contention in his affidavit was that his then legal representative had cross-examined the arresting officer to some effect about the circumstances of the arrest.  Mr Kelly’s affidavit implies that that was perhaps the reason the prosecution presented an edited version of it at the trial; whether that is correct or not, allowing the jurors to hear the record of the actual arrest itself would have gone a long way to allowing the jury to determine for themselves whether there was any merit in Mr Kelly’s complaint that the arrest was conducted with more force than was necessary, or that it upset Mr Kelly, and whether the circumstances of the arrest might possibly explain reticence about saying to the police that he had been bitten by the dog.   

[38]  The learned trial judge seems not to have been told by anyone that a record existed of the actual arrest itself, and accordingly granted leave to cross-examine on the prior convictions without being told of any other and better means by which the prosecution could respond, during Mr Kelly’s cross-examination, to the complaints he made about his arrest.  Allowing cross-examination on those convictions introduced evidence which was particularly prejudicial to Mr Kelly, and which was actually unnecessary for a challenge to his description of his arrest.  Those prior convictions made a very limited response to his evidence complaining about the remark made by a police officer about his having killed a dog with a cricket bat.  Whether the police officer said that or not – and the officer denied it – was irrelevant to whether Mr Kelly had killed the dog with the baseball bat, and the rest of the evidence showed that the remark – if made – was irrelevant to why Mr Kelly did not earlier tell any police officer about a dog bite to his leg.

[39]  As it ultimately fell out, because of the quite effective demolishing of Mr Kelly’s evidence in the cross-examination before reference was made to his prior convictions, it would have been appropriate for the learned trial judge to intervene before the end of the cross-examination and revoke the permission previously given to cross-examine about prior convictions, even on the assumption that the permission previously given was a proper exercise of the discretion.  I consider it was flawed because of the failure to engage in the balancing or weighing exercise described.  Mr Kelly had certainly made an attack on the character of a number of police officers when in the witness box, on matters not put to most of those, but Mr Kelly’s lack of credibility had already been revealed, and - unknown to the judge – better answers were available.  Further, that attack was relevant to his defence.

[40]  The evidence overwhelmingly established that Mr Kelly killed the dog, and the jury had to decide whether his s 458 defence had been disproved beyond reasonable doubt.  That depended on whether the jury accepted Mr Kelly was so truculent that he just might refuse to tell the police of matters favourable to himself, an issue of credibility.  He was certainly truculent in the witness box.  Adducing evidence of his serious prior convictions introduced evidence of past violence and dishonesty and the seven year sentence, which went beyond what was needed to reply to his complaints in evidence.  I cannot conclude that evidence had no part in his conviction, and so would allow the appeal.   I would not order a retrial, because he has served the one month sentence; and so would order an acquittal be entered.

[41]  Accordingly, I would give leave to Mr Kelly to read and rely on his affidavit filed on 30 January 2006, and the annexure thereto, allow the appeal against conviction, and direct that an acquittal be recorded.

[42]  WILSON J:  I respectfully agree with the President’s reasons for judgment and with the orders proposed by her Honour.