R v MDL[2021] QCA 271

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA: I agree with the reasons for judgment given by Mullins JA and the order proposed by her Honour.
2. [2]
   MULLINS JA: The appellant who was 15 years old at the time of the offending pleaded not guilty to one count of assault occasioning bodily harm in company and proceeded to trial before the learned President of the Childrens Court of Queensland.  The appellant was acquitted of assault occasioning bodily harm and found guilty of common assault.
3. [3]
   The appeal ground is that there was a miscarriage of justice in that:

3. (1)
   the trial judge erred in permitting the prosecution to amend the indictment to anonymise a known complainant;

3. (2)
   the trial judge erred in refusing the application to stay temporarily the indictment until the complainant could be called at trial.

4. [4]
   The indictment, as initially presented, nominated the full name of the complainant, but I will refer to him as AB.  The prosecution was unable to locate AB for the purpose of calling him as a witness at the trial and, as a consequence, the prosecution elected to proceed to trial without calling AB.  A new indictment was presented that had been amended to substitute “a person” for AB.  The appellant unsuccessfully opposed this amendment.  The appellant’s related application that the indictment should be stayed temporarily until AB was in a position to be called at trial was refused.
5. [5]
   The essence of the miscarriage of justice asserted by the appellant is that the failure of the prosecution to call AB made the trial materially unfair to the appellant, as possible defences, such as self-defence and provocation, and the issue of whether AB had consented to the assault could not be explored in cross-examination of AB.  During the submissions on this issue on appeal, it became apparent that the real issue was the effect of the failure to call AB, rather than the amendment that had been made to anonymise AB in the new indictment, as the identity of the complainant as AB remained a known and indisputable fact.  The first ground can therefore be dealt with briefly.
6. [6]
   Under s 564(1) of the Criminal Code (Qld), an indictment must set forth the offence with which the accused person is charged, in such a manner, and with such particulars as to the alleged time and place of committing the offence, and as to the person (if any) alleged to be aggrieved, and as to the property (if any) in question, as may be necessary to inform the accused person of the nature of the charge.
7. [7]
   The appellant was charged jointly with a co-defendant and the allegation in the indictment was that they were in company.  The date and place of the assault were identified.  The identity of the person assaulted is not essential to the proof of the charge of assault occasioning bodily harm, or common assault, as for the purpose of proving the charge it must be proved that the accused person assaults another.  The prosecution’s case was one person was being assaulted by a group of other persons and, even without naming AB, the charge in the indictment was sufficient to inform the appellant of the nature of the charge.
8. [8]
   In fact, there was no point in the prosecution’s presenting the replacement indictment that anonymised AB, as the trial was conducted on the basis of the same evidence in the absence of AB, whether he was named in the indictment or not.  The ground of appeal based on the amendment to the indictment cannot succeed.
9. [9]
   In order to deal with the ground of appeal based on the refusal of the stay, I will refer briefly to the relevant evidence at the trial and the findings made by the President.

The evidence and findings

10. [10]
    Admissions were made for the purpose at the trial including the following.  The police obtained CCTV footage depicting areas at and within the train station (which was where the assailants went after the assault on 23 October 2018).  The appellant was arrested at approximately 3.07 pm on 23 October 2018 on the northbound platform of the subject train station.  When the appellant was arrested the police seized and photographed his bag, hat, short-sleeved shirt, a pair of long pants and a pair of shoes.  At the same time an alleged co-offender was also arrested at the subject train station and the police seized and photographed his hat, a pair of long pants and a pair of shoes.  The appellant’s co-defendant with whom he went to trial was also arrested in the afternoon of 23 October 2018.  The police seized and photographed his hat, a long-sleeved jacket, a pair of shorts and a pair of shoes.
11. [11]
    Ms K who was a high school student and wearing a school uniform was walking home from school on 23 October 2018.  There were two boys from the same school walking in front of her, a Japanese student and AB who was Chinese and was tall and thin.  They were also wearing school uniforms and heading in the same direction as Ms K.
12. [12]
    At one point, Ms K lost sight of the Japanese student and AB.  She estimated they were out of her sight for three to five minutes.  Then when she saw them next, there was “one big guy” beside AB with his arm completely around AB’s body.  The assailant was wearing a red top.  There were “two other guys” present beside them and one of them was swearing.  Ms K saw the assailant slapping AB on his face with the palm of his hand and then the assailant and his two friends walked off.  Ms K went up to AB and had a conversation with him.  AB then followed the assailant and his friends and said, “give his phone back”.  The assailant and his friends went back to AB and pushed him hard and AB started walking backwards with his arms in front of him.  Ms K could not remember which of the three was pushing AB.  AB was pushed to the other side of the road and ended up lying on the ground with the three assailants punching and kicking him on the top of his body and swearing.  AB was saying “Stop it.  Stop it”.  Two cars stopped and people from those cars were then asking the assailants to stop.
13. [13]
    The assailants stopped punching and kicking AB and began walking towards the subject train station.  Ms K could see red scars and a little bit of blood on AB’s face and blood on his mouth.
14. [14]
    A mother and daughter were in one of the cars that stopped at the incident.  The mother was driving and the daughter was seated on the passenger side.  The daughter’s evidence included the following.  They parked their car on the opposite side of the road to the group of people.  Half of them were in school uniforms and half were not.  There was a young Asian man on the ground in a school uniform and “three guys around him beating him up”.  One of the assailants was wearing a blue shirt and trackpants, another was wearing a red shirt with trackpants, and the third was wearing a red cap, shorts and a jacket.  Some were kicking and some were punching the man on the ground.  There was another person across the street who was wearing something red who was yelling out and laughing.  The daughter moved towards the group and told the attackers to get off the man on the ground and that she was going to call the police.  There was another young Asian boy who was not involved in the fight but was standing close by and also a young Asian girl.  The daughter took photos on her phone of the three guys that were attacking the Asian guy on the ground.  She saw the attackers walk towards the subject train station.  The man who had been attacked had a swollen eye and cuts and grazes over his arms and legs and on his face.  The daughter did not see anyone else with an injury.
15. [15]
    When the mother first saw a group of boys walking from one side of the street to the other, she thought they were play fighting, but then she noticed the boys kicking and hitting an Asian student on the ground and yelling at him.  She did not leave her car, after she stopped it.  There were three attacking the Asian boy on the ground and a fourth person on the sidelines who was not doing anything.  When the attack stopped, the four of them headed off towards to the subject train station.
16. [16]
    The fourth witness was driving her car from school about 3 pm at the location where AB was assaulted, when she saw about four guys where it looked like words were being exchanged and there were lots of hand motions and back and forth conversation.  She described them as “a couple of Asians and a couple of gentlemen in red and white”.  She drove slowly past them and then looked in her rear view mirror and saw they were now in the middle of the road that she had been driving on.  One had his hands up and was backing away.  He looked Chinese and was in a school uniform.  A bigger guy with a red hat, white shirt and red pants was “sort of tearing in at him”.  The fourth witness did a U-turn and came back to the group and pulled up.  The gentleman in the red hat was throwing punches at the Chinese fellow.  There was another tall gentleman off to the side of the road who had a red and white hat on and was yelling something.  The fourth witness was focused on the gentleman in the red hat throwing punches at the Chinese guy.  When the fourth witness got out of her car, the Chinese guy had started to defend himself and threw a couple of punches back. When the woman who had pulled up yelled at them that she had taken photos, the tall gentleman broke the fight up and coaxed his friend away.  The two of them walked away and then there were two others with them heading to the subject train station.  The Chinese guy was hurt.  He had a graze and mark near his eye and was holding his head.
17. [17]
    The appellant did not give or call evidence.
18. [18]
    There were no challenges to the findings of the President.  The President accepted Ms K and the daughter as honest and reliable witnesses.  The President accepted the mother and the fourth witness as honest witnesses, but they lacked credibility in some respects, particularly the fourth witness whose evidence the President found was significantly different from the evidence of the other witnesses and different from the independent evidence.
19. [19]
    The President noted that, because of the absence of AB as a witness, the prosecution relied on circumstantial evidence to prove lack of consent to the assault.  Putting aside the earlier slap to AB’s face, the only inference that could be drawn from what happened after AB asked for his phone back was that AB was not consenting to the attack.  When the three assailants turned and advanced on AB and he was pushed backwards across the road, he retreated with his hands in the air which was a clear gesture that he did not want to fight.  All three assailants then kicked and punched him when he was lying on the ground.
20. [20]
    On the basis of the photographs taken by the daughter and her identification of which of them were assaulting the victim and on the basis of the evidence of Ms K and the mother as to the three boys punching and kicking the boy on the ground, together with the evidence of the CCTV footage, the President was satisfied beyond reasonable doubt that the appellant was one of the three people who assaulted AB by kicking and punching him when he was on the ground without his consent.  On the basis that there was no evidence that AB did not have any injuries before the assault, the President was not satisfied beyond reasonable doubt that bodily harm was caused by the assault of AB.

The relevant law

21. [21]
    In the context of the prosecution’s seeking to rely on parts only of an accused’s out of court statement where the statement contained incriminatory and exculpatory statements, the High Court referred to the principle that the prosecution in a criminal trial has a fundamental obligation to put its case “fully and fairly”: Nguyen v The Queen (2020) 269 CLR 299 at [27], [48] and [52].  In relation to the calling of witnesses, it was explained in R v Apostilides (1984) 154 CLR 563, 575 that the prosecutor bears the responsibility of deciding whether a person will be called as a witness for the Crown and a decision of the prosecutor not to call a particular person as a witness “will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice”.
22. [22]
    Whitehorn v The Queen (1983) 152 CLR 657 is an example of a case where the verdict of guilty of indecent assault was found to be an unreasonable verdict, when the complainant who was seven years old at the date of the offence was not called as a witness in the trial.  Dawson J (with whom Gibbs CJ and Brennan J agreed on this aspect) referred at 674 to the function of a prosecutor to call “all available material witnesses” and then stated:

“Nevertheless, there is good guidance in the cases for what constitutes a material witness. All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made.”

23. [23]
    In Whitehorn the complainant had used a nickname for the offender in her statement to the police.  When first asked by the police about the nickname, the applicant said he was not known by that nickname, but claimed that the nickname was that of the husband of the complainant’s mother.  Subsequently, the applicant denied committing the offence in a record of interview, but after two hours the applicant confessed to the offence.  No reference was made by the police in the record of interview to the nickname.  The confession was admitted into evidence at the trial.  The applicant gave evidence at the trial in which he denied the offence and explained that he had become confused at the interview and signed the record of interview.  The prosecutor’s explanation to the trial judge and the applicant’s counsel (in the absence of the jury) for not calling the complainant as a witness was that the prosecutor was not satisfied that “she would be any use as a witness” and that “she would not have been capable of giving evidence”.  It was found by Dawson J (with the agreement of Gibbs CJ and Brennan J) at 690 that in the circumstances of the applicant’s trial, the failure of the prosecution to call the complainant as a witness was of major significance, when no adequate explanation was given for that failure and no evidence was called by the prosecution by way of explanation.  Without the evidence of the complainant, there was no direct evidence of the commission of the assault, except for the evidence of the appellant’s confession obtained in circumstances which raised issues about its reliability.
24. [24]
    Whitehorn was applied in R v Manning [2017] QCA 23 at [27].  The offender in Manning was successful on appeal in obtaining a retrial, when the prosecutor decided not to call evidence at the trial from the offender’s wife and brother that was relevant to the complainant’s allegations.  The trial was the third trial of the offences.  The defence had called the offender’s wife and brother in the first and second trials and they had given some evidence that was favourable to the offender.  The offender had been convicted in the first trial, but a retrial was ordered on appeal.  The jury was discharged without reaching a verdict in the second trial, because of the conduct of one of the jurors.  At the third trial, the offender’s counsel asked the prosecutor to call the offender’s wife and brother, but the prosecutor declined to do so.  The court on the appeal (at [19]) referred to Whitehorn (at 674-675) for the proposition that a prosecutor should call all material witnesses, even if a material witness would give an account inconsistent with the Crown case, but is not bound to call a witness whose evidence the prosecutor considers to be unreliable, untrustworthy or incapable of belief.  The prosecutor in Manning had formed the view that the evidence of the offender’s wife and brother was unreliable rather than irrelevant, but the court on appeal concluded (at [24]-[25]) that the evidence of each of the witnesses was material and not demonstrably unreliable.  The court concluded (at [27]) that fairness required the prosecution to produce all the material evidence which was available to it which extended to the offender’s wife and brother, before putting the defendant to his election as to whether to give or call evidence.
25. [25]
    The appellant relies on Manning to submit that unfairness in the trial followed from the prosecution’s failure to call AB that deprived him of the opportunity to explore possible defences in cross-examination.  The respondent sought to distinguish Manning on the basis that the circumstances of the appellant’s case were materially different, as the prosecution was willing to call AB as a witness, but it was common ground on the basis of the inquiries made by the police that the prosecution was unable to do so.  The respondent relies on the approach of the High Court in R v Edwards (2009) 83 ALJR 717 as to whether a stay of an indictment was appropriate, where there was lost evidence.
26. [26]
    In Edwards, the pilot and the first officer (the pilots) of an aircraft landed the aircraft and took off again at an airport on 23 October 2001 when the control tower was unattended.  The pilots were required to activate the runway lights from the aircraft.  It was alleged that they failed to reactivate the lights on departure and committed offences against the Civil Aviation Act 1988 (Cth).  By the time the Civil Aviation Safety Authority (CASA) appointed an investigator, the information on the aircraft’s flight data recorder (FDR) had been overwritten.  The Monitor List at the airport recorded the activation of the Pilot Activated Lighting (PAL) system, but when a printout was obtained two days after the incident, it only contained records of activations on 24 and 25 October 2001.  The loss of information on the FDR and the record of the activation of the PAL on 23 October 2001 was referred to as the lost evidence.  Statements were obtained by CASA from five witnesses to the effect that the runway lights were not on when the aircraft departed.  Two other witnesses to the aircraft’s departure were unable to comment on whether the lighting was on or off at the relevant time.  The pilots asserted that the runway lights had been activated for the departure.
27. [27]
    There were delays in the prosecution of the pilots, in addition to the lost evidence, that persuaded the primary judge to order a stay of the indictment.  The Crown appealed directly to the High Court.
28. [28]
    In relation to the lost evidence, the court observed (at [31]):

“Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.”  (footnote omitted)

29. [29]
    The court made the further observations (at [33]):

“The content of the Monitor List and the recording made by the FDR is unknown. In these circumstances it is not correct to characterise their loss as occasioning prejudice to the respondents. The lost evidence serves neither to undermine nor to support the Crown case. It is to be observed that if the Crown is unable to exclude the hypothesis, that the runway lighting was illuminated as the aircraft moved along it and that it ceased operating coincidentally at the time of take-off, it would fail to establish an element of the principal and the alternative offence.”

30. [30]
    As the above authorities show, the question of whether a verdict is unreasonable or there has been a miscarriage of justice, as a result of the failure of a material witness to give evidence in the prosecution case at a criminal trial, will depend on all the circumstances, including the reason for why the material witness did not give evidence.
31. [31]
    Even though the appellant expressed his ground of appeal in terms of a miscarriage of justice being caused, as a result of the President’s refusing to stay the indictment until the complainant was located, the issue is better expressed as whether there was a miscarriage of justice, as a result of the trial proceeding without AB being available to give evidence for the prosecution.

Was there a miscarriage of justice in the trial proceeding when the complainant was unavailable?

32. [32]
    The prosecution was unable to produce AB as a witness at the trial through circumstances that were beyond the control of the prosecution.  The prosecution therefore had to prove the appellant’s guilt beyond reasonable doubt of an offence against the person of AB without the benefit of AB as a witness.
33. [33]
    It is a standard defence strategy in a criminal trial to use cross-examination of the complainant (and other witnesses) for the purpose of eliciting evidence that may be relevant to the arguments that the defence counsel anticipates will ultimately be put before the jury on whether the prosecution has proved the defendant’s guilt beyond reasonable doubt.
34. [34]
    Despite AB’s unavailability as a witness, there were four independent witnesses whose evidence was comprehensive as to the assault of AB.  The ultimate findings by the President focussed on that part of the altercation involving the appellant and his friends against AB that happened after AB was heard by Ms K to ask the assailants for his phone back.  The evidence of what then occurred as related by Ms K and the daughter that was accepted by the President meant that the appellant’s counsel’s desire to cross-examine the complainant on matters relevant to self-defence and provocation was extremely speculative and bore no relation whatsoever to the compelling evidence of the assault of AB that took place after he asked for his phone back.
35. [35]
    In the circumstances of this trial, there was no unfairness caused to the appellant by the prosecution’s inability to produce AB as a witness at the trial.

Order

36. [36]
    It follows that the order should be: Appeal dismissed.
37. [37]
    NORTH J: I agree with the reasons for judgment of Mullins JA and the order proposed.