R v Kong
[2009] QCA 34
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Kong[2009] QCA 34
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R v Kong[2009] QCA 34
R v Kong[2009] QCA 34
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Appeal against Conviction |
ORIGINATING COURT: | |
DELIVERED ON: | 27 February 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 November 2008 |
JUDGES: | Holmes and Fraser JJA and McMurdo J |
ORDER: | The appeal is allowed, the conviction set aside and a new trial ordered |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – particular grounds of appeal – conduct of the trial judge – where appellant convicted by a jury of one count of dangerously operating a motor vehicle causing grievous bodily harm – where appellant appealed his conviction – where the learned judge declared a Crown witness hostile, notwithstanding that the witness was not shown to have made any previous inconsistent or untrue statement – whether the witness was not desirous of telling the truth – whether the learned judge applied the test correctly – whether the learned judge’s ruling was wrong – whether miscarriage of justice Criminal law – appeal and new trial – miscarriage of justice – particular circumstances amounting to miscarriage – misdirection or non-direction – where appellant convicted of one count of dangerously operating a motor vehicle causing grievous bodily harm – where appellant appealed his conviction – where complainant had a personal injuries claim for damages – where defence counsel reminded the jury of this fact in his closing address – where the learned judge directed the jury not to have regard to the complainant’s interest in his claim for damages – whether the learned judge erred in giving the direction – whether miscarriage of justice Criminal Law – Appeal and New Trial – verdict unreasonable or insupportable having regard to evidence – other matters – where appellant convicted of one count of dangerously operating a motor vehicle causing grievous bodily harm – where appellant appealed his conviction – where opposing versions were given of the manner in which appellant rode his motorcycle – where expert opinion supported the defence case – where Crown case was far from strong – whether it was open to a properly instructed jury to reach a verdict of guilt on the evidence McLellan v Bowyer (1961) 106 CLR 95; [1961] HCA 49, cited R v Hadlow [1992] 2 Qd R 440, cited R v Lawrie [1986] 2 Qd R 502, cited |
COUNSEL: | J J Allen for the appellant M J Copley SC for the respondent |
SOLICITORS: | Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent |
[1] HOLMES JA: The appellant was convicted by a jury of one count of dangerously operating a vehicle causing grievous bodily harm. He appeals that conviction on the grounds that a hostile witness ruling was wrongly made; that a direction to the jury that they could not have regard to the injured complainant’s interest in a claim for damages was wrong; and that the verdict was unreasonable.
The Crown case
[2] The charge of dangerous operation of a motor vehicle arose from a collision on a Sunday morning in January 2005 between two motorcycles, one ridden by the appellant and the other by Glenndon Fleming. The defence made two admissions at the trial. The first was that Mr Fleming suffered injuries amounting to grievous bodily harm (among other injuries, he lost the lower part of his right leg); and the second, that the two motorcycles had no mechanical defects which could have played any part in the collision.
[3] The morning of the collision was clear and dry. The appellant was riding his Kawasaki motorcycle north and uphill through a series of ‘S’ bends on the Kilcoy-Beerwah Road. He was first in a group of five or six motorcyclists. They included Jason Reddy, the witness who was declared hostile. Another motorcyclist who was a witness, Ronald Smith, was also heading north up the road that day. Coming south and downhill along the road was a group of four motorcyclists: in order, Stephen Allen, Raymond Ireland, Michael Groth, and Glenndon Fleming. They were riding Harley Davidson motorcycles, with the exception of Mr Ireland, who was on a Yamaha. In the lead-up to the collision, the appellant’s Kawasaki was travelling up a hill around a left curve. Behind it was the Yamaha motorcycle ridden by Mr Reddy. At the point at which the accident occurred, the speed limit was 100 kilometres per hour. There were advisory speed signs on some of the preceding curves, but not on this one.
[4] The Crown’s first witness was David Tulloch, a forensic crash investigator who at the relevant time was an officer in the Queensland Police Force. He identified the point of collision from marks on the road. The impact had happened on the centre line of the road, about 20 metres past the apex of the curve. But there was no way, Mr Tulloch said, of judging from those marks the speed at which either motorcycle might have been travelling. He did, however, say that it was simply not possible to ride through the bends at speeds of over 120 kmph; nor was it possible for someone coming up the hill on the wrong side of the road to be able to get back to the correct side within only 20 metres if he were travelling at a high speed.
[5] Mr Tulloch considered that there were two ways in which the collision could have occurred. The first was rider error on the appellant’s part which caused him to go wide on the left hand curve confronting him as he rode up the hill, so as to move into the opposite lane. The other was that Mr Fleming’s Harley Davidson had crossed the centre line as he travelled around what was for him a downhill right hand curve. The natural line of travel for the Harley coming down the hill was to move to the centre of the road at the curve’s apex and away from it thereafter. The fact that 20 metres past the apex the Harley was still on the centre line suggested that it may have been further across as it went through the curve’s apex, or at least on the centre line. The Harley was a large bike; if its rider had stayed on the centre line but leaned to the right, its handle bars could have protruded as much as a metre into the opposite lane.
[6] On the other hand, the Kawasaki as it entered the curve was more likely to have moved towards the left of the road than towards its centre. The physical evidence, taken with the geometry of the road curve, in Mr Tulloch’s opinion made it unlikely that the Kawasaki was at any stage in the immediate lead-up to the accident outside its correct lane. Visibility on that section of road was poor, about 50 metres. If both riders were travelling at 60 kmph, they would have seen each other for about one and a half seconds; if one was travelling at 60 kmph and the other at 100 kmph, it would have been about a second. The only reaction available to the rider of the Kawasaki in that time would be to try to brake, but that would cause the bike to “sit upright” and enlarge its radius of travel, taking it closer to the Harley.
[7] Mr Fleming, the complainant, said that he and his companions had ridden from Gympie that day. After stopping for a cigarette, they had travelled between 150 and 200 metres down the Kilcoy-Beerwah Road before the collision occurred. He was riding down the hill about 20 metres behind Mr Groth. As he came to the third downhill curve, he suddenly saw a motorcycle which he estimated was about 35 metres away, a couple of inches into his lane, heading towards him at great speed. Mr Fleming thought his own bike was travelling at between 40 and 50kmph. The rider of the other motorcycle was sitting upright and seemed to come straight towards him. There was nothing for him to do but brace himself; he assumed he had also put on his brakes. At the last minute the other rider angled his bike away, but still struck Mr Fleming on his right side.
[8] Under cross-examination, Mr Fleming refused to accept that the collision occurred on the centre line, because he always rode at least two feet on the correct side of the white line and was doing so on this occasion. He conceded, however, that he would have been leaning to his right as he came into the curve. He agreed that he had omitted in his police statement to mention the fact that the other rider was on the wrong side of the road.
[9] Mr Fleming said that Mr Allen was a long standing close friend; Mr Ireland and Mr Groth were people he was on friendly terms with but knew less well. He, Mr Fleming, had been instrumental in Mr Groth’s and Mr Smith’s having spoken to his solicitor, who was handling a personal injuries action for him, and his solicitor had given him his friends’ statements to read. He did not, however, discuss the accident with any of them in any detail before they gave their police statements. He hoped to receive $300,000 from his personal injuries claim; he appreciated that he could not expect to receive damages if the accident were his fault.
[10] Mr Allen was the lead rider in Mr Fleming’s group. He said that as he was entering the curve beyond the one at which the collision occurred, he saw a motorcycle coming in the opposite direction, the speed of which he estimated (without objection being taken) at 120 kmph. He estimated that speed on the basis that the bike was leant right over so that the rider’s knee was close to the ground. He himself was travelling at about 80 kmph. After seeing the motorcycle he recalled seeing a four-wheel drive, followed by two other motorcycles, about 50 metres on from the first motorcycle. In cross-examination, he said that although he had not seen the collision, he had gone to make a statement to Mr Fleming’s solicitor,
“to say that the other fellow was definitely in the wrong and riding like a lunatic … because I believe in justice ... and I think if this fellow is let off it will be a big injustice.”
[11] Mr Ireland was riding his Yamaha behind Mr Allen. He said that a stroke he suffered since the incident had affected his memory to some extent. He recalled that as he was going down the hill on a small straight section he moved his motorcycle onto the double centre lines in order to take an approaching curve. A bike came “flying around just past me”, very close to where he was on the centre line. It crossed some inches into his lane and just missed the back of his motorcycle. It was necessary for him to lean his motorcycle hard away from it, scraping his foot pedal on the road. He did not recall seeing any other motorcycles before or after that one, although the incident of the motorcycle’s passing so close had distracted him, so that he did not notice other traffic.
[12] The third of the group, Mr Groth, said he was riding about 20 metres ahead of Mr Fleming. He saw a motorcycle come into a curve ahead of him, leaning right over into the corner, which suggested to Mr Groth that it was travelling fast. As he passed by Mr Groth the rider had straightened up; the motorcycle passed very close to Mr Groth. Almost immediately he heard the noise of an impact. Looking in his rear vision mirror, he saw Mr Fleming’s cycle flying through the air. He turned to go back up the road to him, but had to let another motorcycle pass before doing so. No other motorcycle had passed him before the accident occurred.
[13] Under cross-examination, Mr Groth agreed that in his police statement he had said that the on-coming motorcyclist came around the corner at 120 kmph, accelerated out of it, and was travelling up to 150 kmph as he passed him, and that the other rider was at that stage on Mr Groth’s side of the centre line. To an insurance assessor he had simply said that the motorcycle had passed him “in excess of 100 kmph”, and that the motorcycle was either on the centre line or on his, Mr Groth’s, side of the road. Mr Groth conceded that the motorcycle rider might have been on the double centre lines.
[14] The Crown called the two motorcycle riders who were travelling along the Kilcoy-Beerwah Road in the same direction as the appellant. Ronald Smith, who was riding alone, said he had joined the road at Woodford and was riding at 100 kmph. After he had travelled some kilometres, a group of five motorcycles travelling in the same direction caught up to him and overtook him. He guessed that this was about 15 kms before he came upon the site of the collision. Of those motorcycles, he noticed what he had first thought was a Yamaha, but later concluded was a Kawasaki, followed by another motorcycle of the same make, and three other motorcycles: a Ducati and two Suzukis.
[15] Mr Smith said he increased his speed in order to catch up and overtook the Suzukis at the start of the winding uphill stretch. He caught sight of the Ducati close to the scene of the collision. He arrived there to see the Harley Davidson still moving immediately after the impact; the Ducati rider was dismounting nearby. He had not seen the Kawasakis again. He rejected a suggestion that he had passed them, pulled over to the side of the road, as he came up the hill. Mr Smith said that he had passed three Harley Davidson motorcycles before coming upon Mr Fleming; he could fairly have been described, he conceded, as “flying past them”. When he was going around the curves, his own motorcycle’s foot pedal was grinding on the road and his knee was very close to the road surface.
[16] Mr Smith agreed that he had sent a letter to Mr Fleming’s solicitor in which he described two Yamahas and a Ducati overtaking him. Mr Fleming’s solicitor had given him the statements of the appellant (who, of course, said that he was riding a Kawasaki) and Mr Reddy (whose statement said that he was the owner of a Kawasaki motorcycle). Because he was provided with that information as to the makes of the motorcycles, Mr Smith agreed, he made a statement to the police in which he identified the motorcycles which sped past him as Kawasakis. In that statement he also said that both motorcycles had underseat exhausts. Shown a photograph of the appellant’s motorcycle, which had a side exhaust, he agreed that it was not one of those that passed him. In re-examination, he said he only had a matter of seconds in which to observe the two leading motorcycles, and of the first three motorcycles, it was the Ducati which stood out.
[17] The Crown prosecutor opened Mr Reddy’s evidence. However, when the time came to call him as a witness, the prosecutor informed the court that he was not prepared to do so. The reason, as he explained it to the court, was as follows. Mr Reddy had made a statement to an insurance company investigator on 26 April 2005. In the second paragraph of that statement he said he was the owner of a Kawasaki motorcycle. Some paragraphs later, in relation to the day of the collision, he said, “On that Sunday I rode my motorcycle to the Dayboro Hotel”. According to the prosecutor, in conference Mr Reddy had informed him that he was riding a Yamaha on the day of the collision, not a Kawasaki. What the prosecutor seemed to be complaining of was that a person reading the statement would infer that the motorcycle Mr Reddy said he had ridden on the day of the collision was the Kawasaki he said he owned as at the statement’s date. In addition, the prosecutor said, Mr Reddy had an “attitude” which led him to believe that he was not a witness of truth. The learned judge suggested a voir dire which would enable the prosecutor to apply to have Mr Reddy declared a hostile witness. The voir dire took place; that process will be explored later in these reasons. For the present, it suffices to say that Mr Reddy was declared hostile.
[18] As a result of the ruling, Mr Reddy was cross-examined at considerable length and with some bellicosity on the prosecutor’s part as to his statement to the insurance investigator. He was challenged as to the make of the motorcycle which he was riding and as to the number of riders in his group; he maintained his position that he was on a Yamaha and there were six in the group. Mr Reddy was also cross-examined about his traffic history, which included a number of fines and two licence suspensions for speeding.
[19] As to the substance of his evidence, Mr Reddy said that he had known the appellant for a number of years. On the day of the collision they met at the Dayboro Hotel and formed a group with four other motorcycle riders to travel back to the north coast. After riding through Woodford, they turned right onto the Kilcoy-Beerwah Road. The appellant was the leading rider, with Mr Reddy behind him. Riding up the hill, Mr Reddy saw a group of motorcycles stopped on the left-hand side of the road on a wide gravel shoulder. At that point he saw two Harley Davidsons going past him in the opposite direction. The appellant was ahead of him; occasionally he lost sight of him on the curves. Neither of them was speeding or travelling too fast for the conditions; both were riding at between 60 and 80 kmph. He saw the appellant lean left and then go into the left-hand curve, still at a speed in that range and within his own lane. He lost sight of him and then heard the crash.
[20] The last witness for the Crown was a police officer who interviewed the appellant on 25 April 2005. The tape of the interview became an exhibit. In it, the appellant said that he was riding a Kawasaki motorcycle on the day in question in a group of five including Mr Reddy, heading up the range along the Kilcoy-Beerwah Road. He remembered seeing six or eight bikes on the left-hand shoulder of the road on the curve preceding the one on which the accident happened. He could also remember passing two or three motorcycles going the other way. He had slowed down from there and then entered the curve where the collision occurred. His next recollection was of waking up lying on the road. He did not know how the accident had happened. He did not believe his motorcycle had left its lane.
The hostile witness ruling
[21] During the voir dire, Mr Reddy was cross-examined by the prosecutor. It was put to him that he knew that it was important to give the investigator every available fact to make the situation clear for the appellant’s benefit; Mr Reddy responded that when he was asked a question, he gave a response. He was asked as at the date of the statement whether he presently owned a motorcycle and he answered that question accurately, by saying that he was the owner of a Kawasaki. In cross-examination, it was established that when he gave the information there was no reason for him to suppose that the make of the motorcycle he was riding was of any significance at all.
[22] Mr Reddy said that it was his intention to tell the truth, no matter who called him as a witness. He had no adverse feelings towards the Crown, although his pre-court encounter with the prosecutor had not been a happy one:
“He just fronted me and asked some questions rather aggressively and then walked off on me. He didn't introduce himself and I found his manner to be quite aggressive. I'm here to conduct myself in a professional manner and I would have appreciated the same courtesy.”
So far as can be gleaned from the transcript, Mr Reddy, although unwilling to agree with the prosecutor’s assertions, including those to the effect that he had been deliberately misleading, was not evasive or unresponsive. His answers, although tending to the impatient at times, were not unusually aggressive; one cannot, of course, say what the tone or pitch of voice might have been.
[23] The prosecutor submitted that Mr Reddy should be declared a hostile witness because it was not an adequate explanation of his statement to say that he simply answered the investigator’s questions. He should have known that the investigator would want to know what motorcycle he was riding on the particular day. The court should infer that although Mr Reddy was the owner of a Yamaha as in April 2005, he might really have been riding a Kawasaki, because he worked for a Kawasaki dealer, and that he had changed his evidence in response to Mr Smith’s statement. On the strength of those submissions, the prosecutor argued Mr Reddy was not telling the truth and the interests of justice would be served by the Crown being able to cross-examine him.
[24] Counsel for the defence made the point that there was no reason for Mr Reddy to want to lie to the insurance investigator. The trial judge responded to that submission with these observations:
“This is the way I see it, and I should have corrected myself because it's very easy to confuse hostility as a word in the vocabulary and what you need to declare somebody a hostile or adverse witness. It's a tricky area of law and it may be summed up in this way: it doesn't necessarily involve deliberate lying or hostility. Let me say this to you: if it were just this statement, I would think it was a very close call on whether I would make the declaration, but apart from the fact that he and Mr Vasta sparked off each other here in a way that was most unfortunate, I think he is a witness who the Crown should cross-examine and I will tell you why I think that, I think that's in the interests of everybody for this trial.
I think he needs to give evidence and that the Crown needs to be able to cross-examine him and the only way they can do that is a declaration of hostility or a declaration that he is either hostile or adverse or both and it's not just this statement, because I agree with you that this statement is arguable, although I can see what Mr Vasta is saying, but when you look at this statement and things like his demeanour, his conduct in the witness box, his choice of language and his he - just his general attitude, the only way that we're going to get a clear enough picture for the jury is for him to be cross-examined by the Crown as well as you.”
[25] Defence counsel submitted, accurately, that a witness was adverse or hostile when the witness showed that he or she was not desirous of telling the truth. He went on to say that there needed to be some clear and vital inconsistency. The learned judge responded, “But you don’t just need an inconsistency for a declaration of hostility and adverse witness [sic]”. She continued:
“If this witness had done that voir dire entirely differently, I would have thought it was such a close call I would have been in a dilemma as to whether to declare him hostile or adverse. Now I have no doubt. Just the minute he opened his mouth in the witness box he had hostile and adverse written all over him, made worse perhaps by the personality clash, but it is there…
He's got the point now, but only because I intervened. He's a prickly man who is adverse, who is hostile, who thinks he wants to run it his way and the only way we're going to get any sort of balanced picture for the jury is for him to be declared hostile or adverse.
In making that ruling I have got an open mind as to what might happen with his evidence in terms of what he said in this statement. I'm not making a ruling that this shows a deliberate untruthfulness or even untruthfulness. I think it's equally open, but he didn't think about it or it could well be as Mr Vasta says. I'm not making a ruling on the statement itself. I'm just saying overall I think he is hostile and adverse and I - well, potentially adverse and the declaration should be made for those reasons.”
[26] A declaration that a witness is hostile should be made only where the witness demonstrates an unwillingness to tell the truth for the advancement of justice in answer to non-leading questions.[1] In determining hostility, a judge may have regard to the witness’ demeanour and any previous inconsistent statements made by him.[2] Mr Reddy was not shown to have made any previous inconsistent statement. The statement to the insurance investigator, while it might have exhibited some pedantry, was literally true, and nothing Mr Reddy said subsequently contradicted it. The fact that in clarifying it he did not endear himself to the prosecutor was not a basis for an application to have him declared hostile, let alone a ruling to that effect.
[27] The learned judge, who said that she was not ruling that the statement showed “a deliberate untruthfulness or even untruthfulness”, had plainly not reached the view that Mr Reddy was not desirous of telling the truth. Rather, she seems to have taken the view that because of what she perceived as his difficult personality and prickly demeanour, it would be advantageous for him to be cross-examined. That was not a proper basis for the ruling. It was a case in which:
“No grounds exist[ed] which [were] capable of justifying leave to treat a witness as hostile and leave [was] granted on entirely wrong principles.”[3]
[28] In consequence of the trial judge’s ruling, Mr Reddy was aggressively cross-examined by the prosecutor. That cross-examination extended to eliciting the fact that he had previous traffic convictions. In addition, the prosecutor made what seem to me to have been most intemperate and unfair comments in his address, referring to Mr Reddy as a “bald-faced liar” who had treated the Bible as if it were “a stack of comic books”. In fact, at no stage had Mr Reddy said anything which was demonstrated to be untrue. In a trial in which there were opposing versions of the manner in which the appellant rode his motorcycle, the balance was fundamentally altered by having a Crown witness who would have supported the appellant’s account declared hostile, and his credit attacked. In my view, this was an erroneous ruling which has caused a miscarriage of justice, and the conviction should be set aside because of it.
The direction as to the complainant’s interest in the verdict
[29] There is a second reason for setting aside the verdict. Counsel for the appellant in the course of his address reminded the jury that Mr Fleming had a personal injuries claim for $300,000. He said this:
“You will also realise, ladies and gentlemen, that if Mr Fleming says here that he was at fault, that he had leaned too far into the defendant's lane, his chances of getting a pay-out decrease, definitely don't increase. That means he has a motive not to be frank with this Court.”
In her summing up the learned judge commented on that submission:
“Now, during his address to you Mr Toweel said, ‘Oh, he's got a motive not to be frank in this Court. Chances of a payout increase.’
Now, there's no evidence of that, and quite apart from that, that's just not right as a matter of law, and Mr Toweel in fact later on corrected himself. He had the decency to say to you, ‘Look, it's irrelevant that this man, the accused, and Mr Fleming have made civil claims.’ And it is. He got that bit right. It's irrelevant. We're not a civil Court, and one day these people may have it out in a civil Court. They may even have a civil jury. It's not 12, by the way, it's four – you might be interested to know. But you should not - and I instruct you in the strongest terms to take that into account today. It's unfair and wrong as a matter of law. Unfair and wrong. You will not do it.”