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- Notable Unreported Decision
- Appeal Determined (QCA)
R v Smallwood QCA 132
SUPREME COURT OF QUEENSLAND
R v Smallwood  QCA 132
SMALLWOOD, Terry Edward
CA No 220 of 2020
DC No 242 of 2020
Court of Appeal
Appeal against Conviction
District Court at Townsville – Date of Conviction: 25 September 2020 (Dick SC DCJ)
Date of Orders: 8 June 2021
Date of Publication of Reasons: 18 June 2021
8 June 2021
Fraser and Mullins JJA and Henry J
Orders delivered: 8 June 2021
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of grievous bodily harm by a jury – where it was in issue whether the complainant suffered the injury alleged to constitute grievous bodily harm in the impugned assault on the afternoon of 17 November 2018 or in an alleged assault earlier on the same day – where the appellant argued that a miscarriage of justice arose because the trial judge failed to direct the jury that no adverse inferences could be drawn from the election of the appellant to not give evidence – where the respondent argued the proviso under s 668E(1A) of the Criminal Code (Qld) should be applied due to the way the defence case was conducted at trial and the strength of the prosecution case – where the complainant gave evidence against the accused – where the appellant called his brother to give evidence – where the appellant’s account was not in front of the jury in any form (such as a police record of interview) – where the trial judge gave directions in relation to the appellant’s decision to call evidence immediately after mentioning his election to not give evidence – whether there was a miscarriage of justice occasioned by that non-direction and if so, whether the proviso should be applied
Criminal Code (Qld), s 668E(1), s 668E(1A)
Azzopardi v The Queen (2001) 205 CLR 50;  HCA 25, applied
Dhanhoa v The Queen (2003) 217 CLR 1;  HCA 40, cited
Graham v The Queen (2016) 90 ALJR 820; (2016) 333 ALR 447;  HCA 27, cited
Kalbasi v Western Australia (2018) 264 CLR 62;  HCA 7, cited
R v Bevin  QCA 310, cited
R v DAH (2004) 150 A Crim R 14;  QCA 419, cited
R v GAJ  QCA 141, cited
R v Hartfiel  QCA 132, cited
Weiss v The Queen (2005) 224 CLR 300;  HCA 81, cited
M Hibble for the appellant
A J Walklate for the respondent
Keir Steele Waldon Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- FRASER JA: The appellant was found guilty by a jury that on 17 November 2018 he did grievous bodily harm to Lachlan Friday. He appealed against his conviction upon the grounds that a miscarriage of justice had arisen because the trial judge failed to direct the jury about a claim of privilege against self-incrimination by the appellant’s brother and that the verdict was unsafe and unsatisfactory. At the hearing of the appeal the appellant acknowledged that the verdict was open upon the evidence and did not press the ground that the verdict was unsafe and unsatisfactory. The appellant was given leave to add a ground of appeal that a miscarriage of justice arose because the trial judge failed to direct the jury that no adverse inferences could be drawn from the failure of the appellant to give evidence.
- After hearing argument, the Court ordered that the appeal be allowed, the conviction be set aside, and a retrial be ordered. These are my reasons for joining in those orders.
- The complainant and the appellant’s brother, Mr Gabriel Smallwood, were at a party on the night of 16 November 2018 and in the early hours of the following day. The complainant gave evidence that at the party the appellant’s brother wanted to fight him but they did not fight. In the afternoon of 17 November the complainant sent a text message to the appellant to the effect that the complainant had not touched the appellant’s brother on the preceding night, the appellant’s brother had fought with Mr Levi Baira (the complainant’s friend), the complainant had stopped that fight, and the complainant did not want to fight the appellant. The appellant responded, “Na not me I got him here. You to straight up.”
- The complainant gave evidence that later in the afternoon of 17 November he was walking through a paddock towards his home, three cars pulled up, and a group of men got out of the cars. The group included the appellant and the appellant’s brother. The group of men approached the complainant. The complainant said he hadn’t done anything. Whilst the complainant was looking at the appellant’s brother the appellant hit him in the left eye. The complainant put his arms up in front of his face. The appellant and the appellant’s brother punched him. The rest of the men came over and hit him. They punched and kicked him after he was knocked to the ground. They stopped after a lady came out of nearby units and screamed at them. The complainant walked home. He was taken to hospital by ambulance. The complainant had a headache, his eye was swollen up, and he had double vision. He sustained a fracture to his left eye and bruising. He did not have those injuries before then.
- In cross-examination the complainant agreed he saw the appellant’s brother get into a fight after the party. The complainant gave evidence the fight wasn’t with him. The appellant’s brother did not punch him in the head on the night of 16 November. The complainant tried to break up the fight between the appellant’s brother and the complainant’s friend. The complainant agreed he called out to his friend to get into the appellant’s brother and used profanity. The complainant denied he encouraged his friend to get stuck into the appellant’s brother. He subsequently agreed that a recording of the events played to the jury depicted him not wearing a shirt and telling his friend to fight the appellant’s brother. (The complainant used profanities in place of the appellant’s brother’s name.) The complainant denied the appellant’s brother assaulted him that night, that he woke up with a sore and bruised left eye, that the appellant’s brother had punched him to the left eye, and that he had swelling and bruising to his left eye before he was assaulted on the afternoon of 17 November. In relation to the assaults on the afternoon of 17 November, the complainant denied the appellant’s brother was the first of the group of men to be in close proximity to him, the appellant’s brother punched him to the left of his face, and that punch knocked him to the ground.
- The complainant’s friend, Mr Levi Baira, gave evidence that at a party in November 2018 he met the appellant’s brother for the first time. When he was walking home after the party he had a fight with the appellant’s brother. He did not see the complainant have any fights that night. The complainant was present when he (Mr Baira) fought with the appellant’s brother but was not involved in the fight. In cross-examination, it was put to the complainant’s friend that before the fight he saw the appellant’s brother king hit the complainant. The complainant’s friend responded “That was afterwards”. The complainant’s friend agreed he saw the appellant’s brother king hit the complainant to the left side of his head, to his eye. He agreed the complainant had taken his shirt off. He said the complainant didn’t fight anyone and was trying to break up a fight. The complainant’s friend agreed the complainant was a bit sore from where he had been hit, and was starting to get bruising to his left eye. The complainant’s friend gave evidence that on the next day the appellant and the appellant’s brother arrived at his house. The appellant abused and swore at the complainant’s friend and told him to fight the appellant’s brother. The complainant’s friend responded that he did not want to fight the appellant’s brother. As the appellant and the appellant’s brother drove off they said they were going to bash the complainant and kill him.
- A medical practitioner gave evidence the complainant presented at the Townsville Hospital on 17 November 2018. The complainant had a left orbital floor fracture. He subsequently underwent surgical repair, which involved a titanium plate being put in the bottom of the eye socket to prevent the eye from sinking down. The hospital records recorded on 28 November 2018, and not, earlier, that the complainant had double vision in his left eye in certain quadrants of his field of vision. If the complainant suffered a blunt force trauma to his eye in the early hours of 17 November 2018 it could not be ascertained whether it was that trauma which caused his double vision or whether it was caused by a trauma later that day.
- Mrs Baira (the complainant’s friend’s mother) gave evidence that during the day on 17 November 2018 the appellant and the appellant’s brother were outside her home. The appellant asked for the complainant’s friend. The appellant asked the complainant’s friend why the complainant and the complainant’s friend “doubled” the appellant’s brother. When the appellant left he told Mrs Baira to let the complainant know he was the next person on the list. The complainant’s sister gave evidence that in March 2019 she asked the appellant whether he had fun “doing that to my brother”. The appellant responded “yes, that’s what he gets for doubling my brother.” Two witnesses who lived near to the place where the complainant was assaulted on the afternoon of 17 November 2018 gave evidence they saw a group of people attacking a man. One of those witnesses gave evidence of seeing a big man punching a man, who went down and didn’t want to fight. After the man was attacked by the group, that witness heard someone saying, “Gabriel, he’s had enough”.
- The appellant did not give evidence.
- The appellant called his brother to give evidence. The appellant’s brother gave evidence that in the early hours of 17 November 2018, after a party on 16 November 2018 was shut down, he and the complainant agreed to fight each other on the road. They shaped up, the complainant stepped in towards the appellant’s brother, and he hit the complainant in his left eye with a hard punch. After an exchange of about 10 to 15 blows, the complainant walked away. He had a bit of swelling around or under his eye and was rubbing his eye. The appellant’s brother and the complainant had taken their shirts off when they fought. After that fight the appellant’s brother had a fight with the complainant’s friend.
- The appellant’s brother adhered to that account in cross-examination. The prosecutor suggested to the appellant’s brother that on the next day he went looking for the complainant’s friend, he (the appellant’s brother) was at the place where the complainant was assaulted on that day, he approached the complainant with the appellant, and a number of other people also assaulted the complainant. The appellant’s brother declined to answer each question on the grounds that it might incriminate him. His claim for privilege was not accepted by the trial judge in relation to the different suggestion by the prosecutor that the appellant threw the first punch at the complainant. The appellant’s brother disagreed with that suggestion. The appellant’s brother agreed with the prosecutor’s suggestion that he would do anything for the appellant.
- When addressing the jury defence counsel referred to evidence the complainant had drunk 24 beers on the night of 16 November and into the morning of 17 November, evidence of the appellant’s brother and the complainant’s friend about a fight of which there was a video, and the medical evidence. Defence counsel submitted the Crown could not prove beyond reasonable doubt that the serious injury to the complainant’s eye had occurred on the afternoon of 17 November 2018. The prosecutor argued that the incident on the night of 16 November 2018 was a red herring, the complainant’s evidence denying he was punched on that night should be accepted, and the jury would accept that on the afternoon of 17 November 2018 the appellant caused the serious injury to the complainant by punching him in the left eye. Alternatively, the prosecutor submitted that if the jury was satisfied that the complainant’s serious injury to his eye was caused by a punch or a kick by someone else in the course of the assault that afternoon, the jury should find the appellant guilty upon the basis that the appellant was aiding or encouraging the group to assault the complainant.
- The trial judge gave the following direction to the jury:
“Here, the accused did not give evidence. He called evidence. That he has done so does not mean that he has assumed the responsibility of proving his innocence. The burden of proof has not shifted to him. The evidence you heard is added to the evidence called for the Prosecution. As I have said, the Prosecution has the burden of proving each of the elements of the offence – I will go to those in a moment – beyond reasonable doubt, and it is upon the whole of the evidence that you must be satisfied beyond reasonable doubt that the Prosecution has proved the case before he may be found guilty.
Sometimes criminal cases are called “word against word”. That is not correct. You should understand that in a criminal trial it is not a question of your making a choice between the evidence of the chief Crown witness – Prosecution witness and the other witnesses, say, called for the Defence. The proper approach is to understand that the Prosecution case depends upon you, the Jury, accepting the evidence of the Prosecution’s principal witnesses, that is, Mr Friday, was true and accurate. So there is two notions there: true and accurate – I will have something more to say about that in a moment – beyond reasonable doubt.”
- The trial judge did not give any other direction to the jury about the appellant not giving evidence or any direction about the claim of privilege made by the appellant’s brother.
- In Azzopardi v The Queen Gaudron, Gummow, Kirby and Hayne JJ accepted that if a judge said nothing to the jury about the fact that an accused had not given evidence the jury may use the accused’s silence in court to his or her detriment. Their Honours continued:
“It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make–weight in assessing whether the prosecution has proved its case beyond reasonable doubt.”
- As was submitted for the respondent, the issue in Azzopardi concerned a comment by a trial judge about the way in which the jury might use the fact that the accused did not give evidence. That does not deny the persuasive force of the statement by the majority that it will “almost always” be desirable for the trial judge to warn the jury in the way described in the quoted passage. That statement has been applied in many cases. In R v Hartfiel, Muir JA (with whose reasons McMurdo P and Dalton J agreed) referred to those decisions and endorsed the statement by White J in R v DAH of the essential elements which must be conveyed to the jury by the trial judges’ directions: no adverse inference may be drawn from an accused’s failure to give evidence; the onus of proof remains on the prosecution; the presumption of innocence remains; and the failure to give evidence does not strengthen the prosecution case or supply additional proof against an accused.
- The trial judge’s omission to give the jury directions to the effect of those set out in Azzopardi was submitted by the respondent to be inconsequential in light of the way in which the defence had been conducted at the trial and the strength of the prosecution case. The prosecution case that the appellant assaulted the complainant on the afternoon of 17 November was certainly strong, but it was in issue whether the complainant suffered the injury alleged to constitute grievous bodily harm in that assault. That issue arose upon the evidence given by the complainant’s friend in the Crown case, and the evidence of the appellant’s brother called by the appellant, to the effect that the appellant’s brother punched the complainant in his left eye in the early hours of the same day, leaving the complainant with a visible facial injury. The guilty verdict was reasonably open upon the whole of the evidence, particularly having regard to the complainant’s unwavering evidence that he was not injured before the appellant punched him in his left eye on the afternoon of 17 November. It does not follow that the omission to direct the jury about the failure of the appellant to give evidence may not have been significant for the verdict.
- The reference in Azzopardi to a direction being almost always desirable is a strong indication of the high degree of the perceived risk of inappropriate reasoning in the absence of an appropriate direction. Even so, whether a direction of that character should be given and the terms of any such direction must depend upon the circumstances of each case.
- The following considerations tend to confirm that in this case a direction to the effect described in Azzopardi should have been given because there was a substantial risk that, in the absence of such a direction, the jury might have used the appellant’s election not to give evidence to his detriment:
- (a)The appellant did not give evidence even though the complainant gave evidence against him and he called his brother to give evidence.
- (b)Whatever account the appellant might give about the offence alleged against him was not before the jury in any other form (such as a record of a police interview).
- (c)The jury might have considered that, at the time when the complainant was assaulted on the afternoon of 17 November, the appellant would have observed whether or not the complainant already had the injury to his left eye described by the complainant’s friend and the appellant’s brother as having been sustained in the early hours of the same day.
- The respondent submitted that in the passage of the summing up quoted in  of these reasons the trial judge directed the jury that the burden had not shifted to the appellant on account of him not giving evidence. In the first paragraph of that passage the trial judge adverted to the facts that the accused did not give evidence and that he called evidence in his defence, but the directions given by the trial judge concerned only the effect of the appellant having called evidence. Furthermore, the very fact that the trial judge gave directions about the appellant having called evidence, but did not give similar directions about the appellant not having given evidence, might have conveyed to the jury that no directions of that kind applied in relation to the appellant not giving evidence.
- The respondent relied upon directions given by the trial judge about the Crown’s onus of proof. Most relevantly in that respect, the trial judge directed the jury:
“You must reach your verdict on the evidence and only on the evidence, and you, that is, what you have heard from the evidence box.
So if someone says, “I saw something,” and you believe that person, that is direct evidence, but in addition to direct evidence you are entitled also to draw deductions and conclusions, inferences from facts you find to be proved. So we start with facts you find to be proved. They do not directly prove something, but if there is a logical and rational connection between that and the conclusion you are drawing, you are entitled to do that.
The burden of proof rests on the Prosecution to prove the guilt of the accused. There is no burden on an accused person to prove anything, let alone his innocence, and that is because an accused person is presumed to be innocent, and he may be found guilty only if the Prosecution establishes that he is guilty of the offence charged and he is – you find him guilty of that on the evidence you have heard and beyond reasonable doubt.”
- Directions of the same kind as those and the other conventional directions about the onus of proof given by the trial judge were also given in R v Hartfiel, in which an appeal was allowed because the trial judge did not give an Azzopardi direction. As Muir JA explained:
“Jurors, untrammelled by the weight of authority, may not necessarily reason precisely, logically or in the same manner as judges when considering the effect of an accused’s failure to give evidence. However, they could be expected to conclude that the accused’s case would be materially weakened by the failure and the prosecution’s correspondingly strengthened. Moreover, it is likely that they would not advert to the possibility that an accused person, even if in a position to contradict or explain evidence, may wish to remain silent.”
- In my respectful opinion, the trial judge’s summing up, considered as a whole, was not apt to convey to lay jurors that the failure of the accused to give evidence did not strengthen the prosecution case or, as it was put in Azzopardi, “may not be used as a make–weight in assessing whether the prosecution has proved its case beyond reasonable doubt”.
- Upon the necessary objective analysis, it seems very unlikely that the failure of defence counsel to ask for a re-direction can have been a forensic decision. It seems much more likely that this was merely an unfortunate oversight. Had the prosecutor or defence counsel noticed the absence of the direction it is to be expected that the oversight would have been brought to the trial judge’s attention and rectified. Because no redirection was sought by the appellant, it cannot be said that the trial judge made any “wrong decision of [a] question of law”, so the appellant could succeed in his appeal only if the trial judge’s failure to give the appropriate direction amounted to a miscarriage of justice: Criminal Code (Qld), s 668E(1). In the circumstances of this case, there was a miscarriage of justice because, for the reasons already given, the appropriate direction should have been given and it is reasonably possible that the failure to give it may have affected the verdict.
- It would have been prudent for the trial judge also to have directed the jury that they should not draw any adverse inference against the appellant’s brother for the reason that he had claimed privilege against self-incrimination, but it is not necessary in this appeal to consider the consequence of the failure to give such a direction.
- The respondent submitted that if the Court concluded that there was a miscarriage of justice the appeal should be dismissed because there had been no substantial miscarriage of justice. That submission invoked the proviso in s 688E(1A) of the Code, which empowers the Court to dismiss an appeal if it considers that no substantial miscarriage of justice has actually occurred. In this case much depends upon an assessment of the credibility and reliability of the evidence given by the witnesses, particularly the complainant, the complainant’s friend, and the appellant’s brother, in relation to the issue about when the complainant suffered the alleged grievous bodily harm. Because the Court has not seen and heard the oral evidence as it was given, it is not possible for the Court to be satisfied that the appellant was proved beyond reasonable doubt to be guilty of the offence upon which the jury returned its verdict of guilty. The proviso is therefore not capable of application. That being so, it is not necessary to give separate consideration to the question whether the trial judge’s omission to give the appropriate direction should be characterised as a “fundamental irregularity” such as to preclude the application of the proviso in any event.
- Those conclusions required the Court to allow the appeal and to make the other orders set out in  of these reasons.
- MULLINS JA: I agree with Fraser JA.
- HENRY J: I agree with the reasons of Fraser JA for why the appeal was allowed, the conviction set aside and a retrial ordered. This was an obvious oversight of a usually standard direction. It regrettably went unnoticed on what was an unusually busy court day.
 (2001) 205 CLR 50 at .
 For example, see R v DAH  QCA 419, R v Bevin  QCA 310 and R v GAJ  QCA 141.
  QCA 132 at .
  QCA 419.
  QCA 132 at . I have omitted an internal citation.
 Dhanhoa v The Queen (2003) 217 CLR 1 at ; Graham v The Queen (2016) 333 ALR 447 at , , .
 See Weiss v The Queen (2005) 224 CLR 300 at 316  and Kalbasi v Western Australia (2018) 264 CLR 62 at .
 Cf R v GAJ  QCA 141 at .
- Published Case Name:
R v Smallwood
- Shortened Case Name:
R v Smallwood
 QCA 132
Fraser JA, Mullins JA, Henry J
18 Jun 2021
- White Star Case: