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R v JAE[2021] QCA 287

SUPREME COURT OF QUEENSLAND

CITATION:

R v JAE [2021] QCA 287

PARTIES:

R

v

JAE

(appellant)

FILE NO/S:

CA No 127 of 2021

DC No 18 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gympie – Date of Conviction: 13 May 2021 (Porter QC DCJ)

DELIVERED ON:

17 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2021

JUDGES:

Holmes CJ and McMurdo and Mullins JJA

ORDERS:

  1. 1.Appeal allowed.
  2. 2.The convictions upon counts 2, 3 and 4 on the indictment be quashed.
  3. 3.The appellant be retried on those counts.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – CREDIBILITY – FAILURE TO PUT MATTER TO WITNESS – where the appellant had different counsel representing him at different stages – where, on the first day of the trial, there was an application to further cross-examine the complainants – where the basis of the application was that relevant instructions had not been put during a pre-recording of evidence – where there was discussion between counsel and the trial judge about the application of the rule in Browne v Dunn – where the trial judge refused the application to cross-examine – where it was suggested that, due to the delay, the prosecution could put that the omission to cross-examine at an earlier stage was suggestive of a recent invention – where, on appeal, the appellant gave evidence that he did not give evidence at the trial as a result of the refusal of his application to recall the complainants – whether the defendant was unfairly deterred from giving evidence – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted on three counts of offences involving domestic violence and acquitted on two others – whether the convictions were unsafe and unsatisfactory, as irreconcilable with the verdicts of acquittal

Browne v Dunn (1893) 6 R 67 (HL), considered

Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36, considered

R v Birks (1990) 19 NSWLR 677, cited

R v Foley [2000] 1 Qd R 290; (1998) 105 A Crim R 1; [1998] QCA 225, cited

R v Manunta (1989) 54 SASR 17; [1989] SASC 1628, cited

COUNSEL:

Y Chekirova for the appellant

S L Dennis for the respondent

SOLICITORS:

O'Sullivans Law Firm for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    HOLMES CJ:  I agree with the reasons of McMurdo JA and with the orders his Honour proposes.
  2. [2]
    McMURDO JA:  After a trial by a jury in the District Court, the appellant was convicted of three offences, each committed in the one incident on 1 December 2018.  One was an offence of unlawfully choking a woman, whom I will call L, with whom he was then a domestic relationship.[1]  Another was that he unlawfully assaulted L.  The third offence was that he unlawfully assaulted L’s teenage daughter, whom I will call P.  At the same time, he was acquitted by the jury of another charge of unlawfully assaulting L in the same incident, and a charge of unlawfully choking L in a separate incident, on 28 December 2018.
  3. [3]
    He appeals against his convictions on three grounds.  The first and second grounds are two parts of the same complaint, which is that there was a miscarriage of justice by his instructions not being put to the complainants, or at least to the complainant L, with the consequence that he did not give evidence at his trial.  The other ground of appeal is that the convictions are unreasonable because they are inconsistent with the verdicts of not guilty on the other charges.

The course of the evidence

  1. [4]
    The complainants’ evidence was pre-recorded, commencing on 9 April 2020.  On that day, L gave her evidence in chief, and was cross examined before that was interrupted for the evidence in chief and cross-examination of P.  On 24 April 2020, L was further cross-examined.  This evidence was given before the same judge (Porter QC DCJ) who ultimately tried the case.
  2. [5]
    On 29 March 2021, different counsel, instructed by different solicitors, appeared for the appellant before another judge.  That counsel successfully applied for permission to further cross-examine L, upon the basis that the appellant’s case about the offence in the second incident had not been put to her.  L was recalled and cross-examined about that incident on 31 March 2021.
  3. [6]
    The trial before the jury commenced on 10 May 2021.  That morning, before the jury was empanelled, an application was made to the trial judge to have the complainants recalled for further cross-examination.  By this stage, the appellant had yet another barrister, instructed by the same solicitors as in March 2021, appearing for him.  The application was made in order for counsel to put what she said was the appellant’s version of the first incident, which she said had not been put previously.  That application was refused by the trial judge.  The first ground of appeal is that the trial miscarried by the judge wrongly refusing that application.  The second ground of appeal is that by reason of the incompetence of the appellant’s lawyers in 2020 (and perhaps also in March 2021) his case about the first incident was not put to the complainants and there was thereby a miscarriage of justice.
  4. [7]
    In this Court, there is an affidavit by the appellant which exhibits a statement of his instructions, written by him and dated 10 May 2021.  The appellant says that this was, in substance, the same as a statement which he gave to the solicitors who were acting for him in 2020.  Unlike what occurs in many cases in which there is a complaint of incompetence of an appellant’s former lawyers, counsel for the respondent did not cross examine the appellant on his affidavit and neither side tendered any evidence from the appellant’s former counsel or solicitors.  Counsel for the respondent seemed to concede that this Court should proceed by accepting the evidence in the affidavit.
  5. [8]
    The trial before the jury commenced and the prosecution case was closed two days later.  In addition to the pre-recorded evidence of the complainants, the prosecution heard evidence from two police officers who attended the house at which the first incident occurred, not long after a triple zero call was made to police.
  6. [9]
    No evidence was called for the appellant, and as I have said, he did not give evidence.

L’s evidence

  1. [10]
    The appellant and L met in 2015 and began living together, L bringing two children from a previous relationship, one of whom was P.  In January 2018, the appellant and L had a son whom I will call Z.
  2. [11]
    L’s evidence about the first incident was as follows.  On Friday 30 November 2018, the appellant and L went to a club, arriving there between 5.30 and 7.00 pm.  L said that she drank up to ten bourbons, and that she was intoxicated but not to a point where she could not walk or talk.  The couple arrived home between 11.00 and 11.30 pm and they began to argue.  L said that the appellant was threatening to take her children from her, and was saying that she was a bad mother.  The children were asleep whilst the argument continued until about 1.30 am.
  3. [12]
    She described the first incident in this evidence in chief:

“I remember I was standing near – there was a fish tank near the loungeroom and the laundry, and he was going to – well, I’d say he went to strangle me, but he sort of missed and then that’s got my lip and I think, possibly, my eye. And then he’s grabbed me from my leg. And then, somehow – I think I’ve gone to, sort of, duck. And so I’ve, sort of, ended up on the floor. And then he’s grabbed my leg, dragged me up the hallway and then, when I was at the end of the hallway, against [Z’s] bedroom door, that’s when he was strangling me and my tongue – I remember feeling my tongue come out, and my eyes felt like they got really big. I doubt they did, but that's sort of how it felt, like they were bulging. And then that – [P] must have woken up. She has seen what he was doing.

I guess she’s tried to stop him. He’s then picked her up and tipped her upside-down over me, because I was on the ground. And then she’s fallen on me, I've gotten out from under her – I think, possibly, even gone between [the appellant’s] legs, because there wasn’t7 much room and she was, sort of that end of me, on top. And then I’ve gotten out and then he's been able to grab me again as I got to the loungeroom and he’s pretty much chucked me from that side of the loungeroom over to where the TV unit is. And then that’s when he continually was stomping on my head. I can remember up to at least five times; but it could have been longer, I think.”

L said that she could remember P’s screaming “stop, stop doing that to my mum”, before the appellant picked P up and threw her.

  1. [13]
    L said that she suffered injuries from the assaults in this incident, which she photographed some days later.  She identified three photographs which were tendered, which she said showed her injuries.  One showed a mark on her lip and a black eye, another a mark on her neck and the other, bruising on her leg.  She did not seek any treatment for the injuries.
  2. [14]
    She said that the incident “just stopped”.  She said that P called the police, who arrived and told her and P to stay in a room while they spoke to the appellant.  After they had done so, the police officers left and the appellant continued his threats to take Z from her.  This made her yell at the appellant, in response to which the police officers came back into the house and took her to the watchhouse.  She was released at about 8.30 am on that morning.
  3. [15]
    L returned to the house and the appellant went away to his work at a mine for a fortnight.
  4. [16]
    The second incident, she said, also occurred at the house.  At that time, the appellant’s sons from a previous relationship were staying there, together with L’s two children and the baby, Z.  After the couple had been drinking, they argued.  The appellant packed to leave the house, and then went to the bathroom for a shower.  L said that she opened the door of the bathroom and grabbed the keys to their car which were next to the basin.  She said that she was then assaulted:

“And then he’s gotten out of the shower and I was – as I was, like, getting out of the bathroom, he’s gotten me, thrown me on the floor, had his hands around my neck while also using his other hand to try and get the keys.  And I think it got to a point where I’ve just let them go or he’s been able to get them out of my hand.  And then he went back into the bathroom, got dressed and left with his sons.”

  1. [17]
    L said that (as well as one of the appellant’s sons) P came out of her bedroom and yelled at the appellant to let her go.
  2. [18]
    In a further answer in evidence in chief, she said that the appellant had just one of his hands on her neck, which she described as choking, but not “as strong as the first incident”.  She said that he was choking her for five to seven seconds.  She said that there was no injury which she suffered and there was “no marking or anything”.
  3. [19]
    L said that the appellant then went away for some weeks, again for his work, but did not return to the house.  He left the car at the house, which he collected “the day after Mother’s Day.”
  4. [20]
    L said that she was contacted by Sergeant Reid of the Gympie Police, asking her what had happened, and she then made a statement to police about these incidents.  There was a formal admission that Sergeant Reid attended the house on 6 April 2019, after which L made a police complaint against the appellant.
  5. [21]
    It was also admitted that it was on approximately 5 December 2018 that L took the photographs of her injuries which were tendered, and that she emailed those photographs to police on 18 May 2019.
  6. [22]
    The cross-examination of L then commenced.  Counsel established that L had been subject to a number of domestic violence orders, and that the only such order made against the appellant was that which was obtained on the basis of what allegedly happened in the first incident.
  7. [23]
    L disagreed with the suggestion that she had not told police, when they attended the house, that she had been assaulted.  L said that she had shown police her lip which was bleeding.  There was this cross-examination:

“What you told the police on that night was that you’d had an argument with [the appellant], and that he was standing over you in the hall; do you accept that?---No. I don’t recall that at all.

Senior Constable Robert Martin – on the first occasion, I’m suggesting to you that you said to, at least Senior Constable Robert Martin, that you’d had an argument with him – that is [the appellant], that they have a child together, and you told him that [the appellant] was standing over you in the hallway, and that your teenage daughter intervened?---I can’t remember the exact words I used, so if I was able to tell him that, then I would have been telling him that, yes, he was strangling me and my daughter tried to stop him, which is what started the 000 calls.

Can you please listen to question and answer the question. Do you accept  that you said that or not?---Okay, I don’t recall. I don’t recall.

And that you also said that [the appellant] had pushed your daughter – sorry pushed – yes, pushed your daughter off him – that is, away from him – and also pushed you?---I don’t agree that I said that, so no.”

  1. [24]
    L was then stood down, and the appellant’s counsel told the judge that she wished to play a video recording to the witness.  There was then an exercise of trying to find the particular recording which counsel had in mind before, after the luncheon adjourned, it was agreed that the evidence of P would be interposed.
  2. [25]
    On 24 April 2020, the cross-examination of L by the appellant’s original counsel, resumed.  But before that happened, the prosecutor told the judge that she was concerned that the appellant’s counsel intended to play a video recording, made by the appellant on the night of the first incident, during her cross-examination.  The prosecutor told the judge that it was not a recording “of the actual offending”, and that it was “a matter going to credit”.  The appellant’s counsel said that the recording should be put to the witness, in case the appellant gave evidence at the trial and the recording was to be played as part of his evidence.  Counsel said that the evidence was not relevant only to credit, but was “real evidence and it’s the best evidence of how she was conducting herself on that night”.  The judge saw the evidence as being relevant as evidence of a prior inconsistent statement of some kind.
  3. [26]
    His Honour ruled that the video recording could not be played to the witness in the course of her cross-examination.  There is no ground of appeal which complains of the correctness of that ruling.  The relevance of that debate is that it indicates that counsel then had substantial instructions from the appellant, as also appears from the cross-examination which followed.
  4. [27]
    L was asked whether she, rather than P, had called triple zero on that night, and responded that she could not recall.  However, L accepted that there was evidence that showed that she did ring triple zero on that night, but said that she had no recollection of it.  A recording of the triple zero call was then played, and the recording was tendered by the prosecutor.  L accepted that it was her voice that could be heard on the recording, referring to her daughter P, but saying nothing about any assault upon herself.  She accepted that she could be heard in the recording saying “I just want my baby back”.  L said that this was because the appellant had been threatening to take Z from her.  She rejected counsel’s suggestion that the appellant was only trying to keep her from Z on that night, because she was so intoxicated.
  5. [28]
    The cross-examination then went to events in 2019, which marked the end of the couple’s relationship.  L agreed that the relationship had ended by February.  There were some conversations between them in May, about his taking the car and paying her $5,000 for it.  It was after that was arranged, she agreed that L applied for a temporary protection order against the appellant on 15 May 2019.  L agreed that in that application, she did not disclose that the relationship had ended.
  6. [29]
    Counsel further cross-examined L about this application for a protection order, in the circumstance that the relationship had ended and that the appellant had made arrangements for the payment of rent on the house in which they had lived.  Having obtained a temporary protection order on 15 May 2019, L agreed that she made her statement to police, about the alleged offences, three days later.  She agreed that Sergeant Reid came to her house on 6 April 2019, because the appellant had obtained a protection order against her on 20 February 2019.
  7. [30]
    The cross-examination then returned to the first incident.  L agreed that she had to be forcefully taken from the house by police.  She was asked whether on that night, she thought that the appellant was filming her.  She agreed but said that she could not recall whether she grabbed a phone from him.  She was shown two photographs, which the prosecutor then tendered.  She agreed that in one photograph, she could be seen to be carrying Z, but did not agree that the photograph was from the night of the first incident.  She agreed that the photograph did not show any marks to her neck, but added that “I’m not one to bruise straight away either”.
  8. [31]
    L was recalled for further cross-examination on 31 March 2021.  The cross-examination was limited to the second incident.  L rejected the suggestion that the appellant had taken the car keys with him into the bathroom, because L had threatened to “fuck the car up so no one gets to go to fucking Brisbane”.  She rejected another suggestion, namely that he had locked the bathroom door and that she had gained entry by using a butter knife.  L did agree, however, that she came into the bathroom, grabbed the car keys and immediately left.  She disagreed with the suggestion that at no time, had the appellant’s hands been on her throat.  She said that “he was on top of me, strangling me, trying to take them off me”.  She disagreed with the suggestion that the appellant had one hand which was grabbing the keys which he had taken back from her, and that his other hand was covering his genitals.  She said that one of his hands was on her throat and one was on the keys, and that this struggle lasted about five seconds.

P’s evidence

  1. [32]
    I go then to the evidence of the complainant P.  Her evidence in chief was largely contained in the record of her interview by police, conducted on 18 May 2019.  P was born in 2005, and she was 13 years old at the time of the alleged offences.
  2. [33]
    She described the first incident as follows.  She woke up and walked out of her room and saw the appellant “over Mum and … like strangling her and like hitting her and stuff”.  She said that she went up to the appellant and started hitting him in the back of the head or “like just slapping the back of him”, “like just slapping the back of him,” and “saying get off her …”.  She said that he then “turned his waist around and picked me up by my waist and flipped me over him … against the wall onto Mum …”.  She said that “Mum somehow got out from under me and went past [the appellant]”, before the appellant “turned, gone up to Mum, grabbed her and thrown her into the lounge room … and started like punching her … in the head and stuff … and … stomping on her”.  She said that this was when then she used her mother’s phone to call the police.
  3. [34]
    After a short break, the interview resumed and P gave an account of the second incident.  P said:

“Um they were arguing again. … then he's packed up his clothes and stuff like all the stuff he had and then he grabbed the keys and went for a shower and took the keys into the shower and then mum walked into the shower to go grab the keys and he's hopped out of the shower and um and grabbed her and like thrown her on the floor and um like started like strangling her … I heard [the appellant] like yell at her and I've gone up there and I've seen like [the appellant] throw her on the ground and like start strangling her. … and then he’s gotten off her and he’s like grabbed the towel and wrapped it around him …”

  1. [35]
    P was cross-examined by the appellant’s original counsel.  The cross-examination about the first incident proceeded as follows.  P disagreed with a suggestion that when she came out of her room on that night, at no stage did she see the appellant assaulting her mother.  She did not remember whether there was an argument between the appellant and L about the appellant’s phone, but she did agree that she heard an argument between them about the appellant filming her mother with the phone.  P was asked whether she told the police, who were at the house on that night, what she had seen happening to her mother.  She answered that she “went to start and they said to just in my room and just wait …”.  She disagreed with the suggestion the appellant and L had been arguing about Z.
  2. [36]
    In relation to the second incident, P agreed that on this night, as on the night of the first incident, L seemed to be drunk.  She agreed that L and the appellant argued about car keys.  She disagreed with the suggestion that the appellant did not strangle her mother on that night.  She was adamant that she saw this happen.  There was then this cross-examination:

“So did that happen immediately after [the appellant] got out of the shower, or did it happen later on?---It happened during.

All right. And do you remember that [the appellant] was a bit concerned – or he was trying to be modest about the fact that he’d obviously got out the shower and he was naked?---Yes.

And he was trying to cover himself up?---Yes.

Okay. And so he was doing that with one hand, trying to cover up his - - -?---No.  He had one hand around mum’s throat, and was using the other hand to try and take the car keys out of her hands, and he was just – had his back towards me and he was kind of just putting his legs together and, like, telling me to go away.

All right. So – but that was – did he say – sorry. Did he look to you like he was trying to cover himself up from you?---Yes.”

The application to further cross-examine the complainants

  1. [37]
    On the day in which the trial was to commence, and before the jury was empanelled, the appellant’s counsel applied to have the complainants recalled for further cross-examination.  The purpose, counsel explained, was to put the appellant’s case to them about the first incident.  The judge requested a summary of that case.  It was provided in terms which, it can now be seen, were those of the appellant’s statement which he had written on that morning.  Counsel gave this as the appellant’s version:

“At one stage, he – he got out of bed to go and talk to [L] about the noise she was making. And he walked into the laundry to tell her, basically, to quiet down, but also to tell her that he was recording her. He then returned to the bedroom. [L] continued her loud and noisy behaviour and so he started recording her again. During this period of time, she entered the bedroom about four to five times over a period of about an hour. And this involved opening the bedroom door and closing it loudly or slamming it on a number of occasions. And [Z] remains unsettled throughout this period. [the appellant], at one stage, had to take [Z] with him to the toilet when he urinated because of his concern about [L’s] behaviour.

The accusations that [L] was making were such things that he was a hopeless and useless father; that he still had feelings for his ex-partner, who’s the mother of his other sons, [R] and [J]; that his older son, [J], owed her – that’s [L] – an apology because he stole some of her cannabis; and that the younger son, [R], owed [P] an apology because he shunned [P] on Facebook; and that he had stuffed up with his entire family and none of his kids love him. [L] then tried to take [Z] from [the appellant’s] arms and he was shielding [Z] with his arms. And then [L] snatched [the appellant’s] mobile phone. She snatched it and ran out of the bedroom. [the appellant] then put [Z] down on the bed, in the middle of the bed, to go and retrieve the phone from [L].

When he came out of the bedroom, he saw [L] lying on her side, in the hallway, near the door of a spare bedroom, on which the handle on the doorway side is missing, such that if the door is open one can enter the spare bedroom. Upon closing the bedroom door, if one is inside the bedroom, there is a handle that can be used to open the door. However, if one is in the hallway, you need a knife or a screwdriver to insert into the place where the handle would be and thus open the door. She was lying near that door. [The appellant] asked for his phone back while he approached her in the hallway. She was still lying there. He then started to feel around her body and around on the floor for the phone. While he was doing this, he was bending over her.

At this point, [L] started yelling to [P] – yelling out to [P]. [P] exits her bedroom, yelling at [the appellant]. [L] is yelling at [P] to, “Call the police. Call the police.” [The appellant] then feels [P’s] body come up over onto his back and – and she started hitting him in the head. And [P] fell from [the appellant’s] back, down onto the floor, landing on [L]. [The appellant] then saw [L].

He then sees [L] flick his phone out and that it lands – and I don’t know whether this is lands or slides – it lands near the bathroom door. He picks up the phone and walks back towards the bedroom, inspecting the phone for any damage. Then he feels [L] barge into his back and bounce off him, landing in the lounge room area, on the carpet. He returns to the bedroom to attend to [Z] and try to get him to sleep. [L] continues yelling abusive language, profane language and comments – that’s my language – swearing and is becoming louder and more – he says there are less quiet breaks. He starts to record [L] again from the kitchen. [L] has then taken [Z] out of the main bedroom during this time and taken him to [P’s] room. The police have been called and [the appellant] stays in the kitchen until the police arrive. [P] brings [Z] back out to him and [the appellant] makes the infant a bottle.

Police arrive and [the appellant] speaks to Sergeant Greaves to show him the video of [L]. There’s a discussion about the circumstances of the night and they both agree that if [L] goes to sleep in [P’s] room, that the police can leave and the matter can be sorted out in the morning. [The appellant] and [Z] return to the bedroom and attempt to go back to sleep. Then at around 10 minutes later, they are woken by [L] yelling and bashing on the door. [The appellant] gets up to ask her to stop. And upon opening the door, he sees Sergeant Greaves escorting [L] through the front door, holding her arm behind her back and his right hand around the back of [L’s] neck. He hears the police asking her to cooperate and get into the pod. And after a few minutes, it quietens down and he hears them drive off.”

  1. [38]
    Some of that account had been canvassed in the cross-examination of the complainants.  The fact of L’s intoxication, and that her grievance with the appellant was about her children, or at least Z, had been the subject of the cross-examination of L.  What had not been put was the nature and sequence of the physical interactions between the appellant and the complainants.
  2. [39]
    The appellant’s counsel submitted to the trial judge that:

“On the Browne v Dunn point, those witnesses certainly should … be given the opportunity to comment on that version of events.  But also, should [the appellant] elect to give evidence, those instructions need to have been put, so that he’s not accused of recent invention.”

  1. [40]
    In response, the judge said as to the concern about a suggestion of recent invention: “that horse has bolted”.
  2. [41]
    After some further discussion with defence counsel, the judge asked the prosecutor for her position on the application.  The prosecutor accepted that some of the proposed cross-examination had not been put to the witnesses.  The prosecutor added that she had spoken to defence counsel, and had told her “that I would put on record that I would not take the Browne v Dunn point in a closing address to the jury.”  There was then this exchange between the prosecutor and the judge:

“HIS HONOUR: The Browne v Dunn point … being not just you havent heard their version about the detail, but also that you wouldnt suggest to him if he gives evidence that this detailed version was recently invented. Is that where that goes?

PROSECUTOR: I only went as far as the first point yesterday.”

The judge asked the prosecutor to consider that “second point”, and after some further discussion with counsel, his Honour adjourned for about half an hour.

When he returned, the judge immediately gave his reasons for ruling that the complainants would not be further cross-examined.  He had not heard from the prosecutor as to whether she would suggest a recent invention, if the appellant testified and gave evidence of something which had not been put in cross-examination.

  1. [42]
    In his reasons, the judge said that:

“[O]ne issue that does not arise is the disadvantage that might arise from the Crown seeking, and me making, a Browne v Dunn direction in the event that I refuse leave to further cross-examine.  The prosecutor has accepted that as a reasonable concession, should the further examination not be permitted.

A distinction has to be drawn between that and … it being put to [the appellant] if he gives evidence that the account … that he would give in the witness box would be the subject of recent invention. But no matter what I do now, it would be open for that to occur. And nothing I can do on this application will change that. There is therefore no cause to call on the Crown to make any such concession that that would not be put if he gave evidence, no matter what.”

I will return to that reasoning, and the effect it may have had on the fairness of the trial.

  1. [43]
    The judge reasoned that if he refused leave to further cross-examine, the appellant would have to give evidence.  With respect, that reasoning is questionable.  Unless a complainant agreed with a suggestion in the proposed cross-examination, the suggestion itself would have no probative value.  Counsel had argued that her client’s testimony would have more force if the jury had heard that case put to the complainants, and that if leave to further cross-examine was refused, it would be problematical for him to testify.
  2. [44]
    His Honour identified factors which were against the grant of leave: the commencement of the trial would be delayed, there was a potential unfairness to the witnesses being recalled so long after their original testimony, and there had been an ample opportunity on several occasions to put the appellant’s case.  Further, the judge said, it was not obviously a mistake by the appellant’s former counsel; a forensic judgment may have been made not to put such a detailed version of events.  On balance, his Honour concluded, the relevant considerations were against granting leave to further cross-examine.

The rule in Browne v Dunn

  1. [45]
    The rule in Browne v Dunn[2] is a general rule of practice by which a cross-examiner should put to an opponent’s witness matters that are inconsistent with what that witness says and which are intended to be asserted in due course.[3]
  2. [46]
    In R v Birks,[4] Gleeson CJ, sitting in the New South Wales Court of Criminal Appeal, described the central object of the rule as being to secure fairness.  However, he said, it is often suggested that the practical effect of the rule goes a good deal further.  Gleeson CJ said:[5]

“It is one thing to say that the interests of fairness to a witness or a party may require observance of the rule, and that some interests of fairness may well produce various consequences if the rule is not observed. However, the rule is often invoked for the purpose of entering into another area of discourse, that is to say, the drawing of inferences by a tribunal of fact. This is what is often behind references that are made to a “comment” following apparent non-observance of the rule. It is important, in the interests of accuracy, to consider the substance of the comment to which reference is made. It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly. It is quite another thing to comment that the evidence or unsworn statement of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination to other witnesses by that person’s counsel. Depending upon the circumstances of the case either or both of those comments may be available: see, eg, R v Robinson [1977] Qd R 387 at 394. However, especially in a criminal trial, there are considerations which may indicate the need for caution.”

  1. [47]
    Gleeson CJ quoted with approval this passage from the judgment of King CJ in the Court of Criminal Appeal in South Australia in R v Manunta:[6]

“I have been concerned about the prominence which the learned judge gave to these matters in the course of the summing up. It is legitimate, of course, to draw appropriate conclusions from counsel’s failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds.”

  1. [48]
    In the judgment of this Court (de Jersey CJ, Thomas JA and Derrington J) in R v Foley, with reference to that passage in Birks this was said:[7]

“While variations in circumstances of particular cases may call for different responses, it is now generally recognised in criminal trials that in summing up on this issue, the judge should simply point out to the jury that the particular matter was not put to the relevant witness; that it should have been put so that the witness could have the opportunity of dealing with the suggestion; and that the witness has been deprived of the opportunity to give that evidence and that the Court has similarly been deprived of receiving it. There will be exceptional cases where it is necessary to go further, for example where there seems to be a tenable case of recent invention. There may for example be a strong perception that the cross-examiner has deliberately preserved a case from damage by preventing it from being tested, and that this has enabled the client to lie by and present the case that belatedly seems opportune. The giving of additional directions in such cases is, however, fraught with difficulty.

There are many possible explanations of a failure by counsel to observe the rule, and some of these do not reflect upon the credibility of the client. Counsel, for example, may have misunderstood the instructions, or the failure may be through oversight. Jurors are not familiar with the rules and practices of preparation for trial, the special relationship between lawyer and client or counsel’s duties and responsibilities to the Court in conducting a case. If then a jury is to be instructed in a way which will permit adverse inferences to be drawn against the credibility of a defence witness, there must be at least some explanation of these factors, and particular mention of the possibility of other explanations such as misunderstanding or error on the part of counsel. It should also be made clear that before drawing an adverse inference against the accused, the jury should be satisfied that there is no other reasonable explanation for the omission to cross-examine.”

(Citations omitted)

  1. [49]
    The consequences of a breach of the rule in Browne v Dunn by defence counsel when cross-examining the complainants in a jury trial were assessed by the High Court in the recent case of Hofer v The Queen.[8]  When the defendant in that case gave evidence, the prosecutor put to him that aspects of his evidence, which had not been suggested in the cross-examination of the complainants, were, in effect, of recent invention.  Defence counsel did not pursue objections to the prosecutor’s cross-examination and the trial judge did not direct the jury as to the use which could be made of that evidence.  The High Court unanimously held that the prosecutor’s questioning amounted to a miscarriage of justice, but by a majority dismissed the appeal by the application of the proviso.
  2. [50]
    In the joint judgment of Kiefel CJ, Keane and Gleeson JJ, this was said:

“[29] The difficulty respecting the rule in criminal proceedings arises not so much from adherence to it as from the proper course to be followed when it is not observed. Criminal proceedings are not only adversarial. In our system of criminal justice, they are also accusatorial in nature, which requires that the Crown prove its case and cannot require an accused to assist in doing so [X7 v Australian Crime Commission (2013) 248 CLR 92 at [101], [159]; 87 ALJR 858; Lee v New South Wales Crime Commission (2013) 251 CLR 196 at [20], [125], [159]; 87 ALJR 1082]. The position of an accused person, who bears no onus of proof, cannot be equated with that of a defendant in civil proceedings [MWJ v The Queen (2005) 80 ALJR 329 at [41]]. Moreover, fairness in the conduct of a criminal trial may have a different practical content [R v Birks (1990) 19 NSWLR 677 at 688] and require more restraint on the part of a prosecutor.

[34] Where there remains a number of possible explanations as to why a matter was not put to a witness, there is no proper basis for a line of questioning directed to impugning the credit of an accused. Except in the clearest of cases, where there are clear indications of recent invention, an accused person should not be subjected to this kind of questioning. The potential for prejudice to an accused is obvious.

[35] Proceeding on the basis of a mere assumption as to lack of instructions is likely to be productive of further unfairness in the course of the crossexamination. The assumption will inevitably lead to impermissible questions of the accused, put expressly or arising implicitly, as to the actual instructions he or she gave [See, eg, R v Birks (1990) 19 NSWLR 677]. An accused person faced with questioning of this kind is likely to feel obliged to attempt to explain by reference to the instructions he or she in fact gave when in reality the accused carries no such onus. Questioning of this kind may result in the need for counsel or the solicitor for the defence having to disclose those instructions. This is a circumstance which should not arise.”

(Original citations included in text.)

  1. [51]
    It should be apparent that the ruling of the trial judge, in what his Honour said about the permissibility of the defendant being cross-examined about recent invention, was inconsistent with these authorities.  In fairness to his Honour, Hofer had not been heard, let alone decided, before this trial.  But it was already established that the risks from such a cross-examination of a defendant giving evidence at his trial are such that it should not be permitted except in an exceptional case, and according to the unanimous judgment in Foley, only where there is no reasonable explanation for the omission to cross-examine than a recent invention.[9]

The first and second grounds of appeal

  1. [52]
    The question here is whether the judge’s disallowance of the further cross-examination so prejudiced the defence case that it resulted in a miscarriage of justice.  Because this is an appeal against conviction, rather than an appeal against that ruling, the reasons for the ruling are of less significance than the effect of the ruling on the fairness of the trial.  Nevertheless, as I have discussed already, there were errors in the judge’s reasoning.
  2. [53]
    The judge did accept that the defence case would be prejudiced by the refusal of leave, at least in one way.  His Honour accepted the submission advanced by the appellant’s counsel that the putting of the full instructions would provide the “opportunity of setting the narrative of the defence case” which would then be “amplified” by her opening of the appellant’s evidence.  His Honour described this as the loss of “the tactical advantage of having his account put in detail, line by line, to the jury so that they can hear that account through cross-examination”, and added that “[t]here is no doubt, what I might call the narrative aspect, of this, is an advantage”.
  3. [54]
    The problem for the appellant in testifying, after having been refused leave to further cross-examine, was compounded by the judge’s reasoning on the question of recent invention.  He reasoned that there was nothing which could be done to prevent that suggestion being made by the prosecutor in cross-examining the appellant, and decided that there was no cause to call on the prosecutor to disavow that course.  Those unequivocal statements could only have discouraged the appellant from giving evidence.  The uncontested evidence in this Court is that the appellant did not give evidence at the trial as a result of the refusal of his application to recall the complainants.  One of the stated purposes for that application was to avoid a suggestion of recent invention, and it must be inferred what the judge said about that issue, in refusing the application, was influential in any advice which was given to the appellant, and for the course which he took in not giving evidence.
  4. [55]
    This is not a case where an appellant complains of a miscarriage of justice by advice, incompetently given, that he should not give evidence.  In cases of that kind, the appeal will succeed only where the course which was taken was incapable of reasonable explanation.[10]
  5. [56]
    In this case, the appellant did wish to give evidence, but he was deterred from doing so by the judge’s ruling.  Of course, that ruling did not preclude the appellant from testifying.  But it is demonstrated that it resulted in his not doing so.
  6. [57]
    The considerations which the judge identified as being adverse to the application were of relatively little weight.  In my respectful opinion, there was no basis for his Honour’s concerns about how this version could be “fairly addressed” by the complainants in further cross-examination.  Further, it is notable that the judge did not conclude that the omission of previous counsel to put this version was a forensic decision, rather than an oversight.
  7. [58]
    It cannot be said that the further cross-examination and testimony by the appellant at his trial would have improved his prospects of being acquitted on these charges.  Nevertheless, it is demonstrated that the judge’s ruling, including his reasoning for that ruling, must have deterred, unfairly, the appellant from giving his version of events to the jury.  No defendant is required to give evidence in defending a criminal charge.  But a defendant is entitled to do so, and where by the judge’s conduct of the trial, the defendant is unfairly deterred from doing so, a miscarriage of justice occurs.
  8. [59]
    There is no submission for the application of the proviso.  For this reason, the convictions should be quashed and, subject to the remaining ground of appeal, a retrial should be ordered.

The third ground of appeal

  1. [60]
    By this ground, it is contended that the convictions on these three counts cannot be reconciled with the jury’s verdicts of acquittal on the other counts, with the consequence that the convictions should be quashed as unsafe and unsatisfactory.
  2. [61]
    The respect for the function which the law assigns to juries have led courts to express repeatedly a reluctance to accept a submission that verdicts are inconsistent in this sense.[11]  If there is a proper way by which the appellant court may reconcile the verdicts, that conclusion will generally be accepted.[12]
  3. [62]
    The appellant’s argument is that the convictions are, in the relevant sense, inconsistent with both the acquittal on the remaining charge from the first incident, and the acquittal on the charge from the second incident.
  4. [63]
    A distinguishing feature of the evidence on that charge from the first incident is the likelihood, on the complainants’ evidence, that the complainant P came onto the scene only after that alleged offence was allegedly committed.  As I have discussed, P’s evidence of the first incident was that when she woke up and walked out of her room, the appellant was already “over mum and … like strangling her …”.  The evidence of L was that the initial assault upon her occurred when she was standing “near the lounge room and the laundry”, when the appellant “went to strangle me, but he sort of missed and that’s got my lip and … my eye”.  She described being grabbed by her leg and dragged up the hallway, and being strangled when she “at the end of the hallway”.  The other counts from the first incident were supported by the evidence of P.  It was open to the jury to see sufficient support for those counts in P’s evidence, whilst being in doubt on the remaining count, which depended entirely on L’s evidence.  Although P’s credibility was challenged, as was L’s credibility, the jury may have reasoned that P should be believed, whilst considering L an unreliable witness, given the evidence of her heavy intoxication, including evidence which was given by the police officers who arrived at the scene.
  5. [64]
    As to the count which came from the second incident, P was a witness of that incident.  However the jury may have considered that her evidence in that respect had less force than her evidence of the first incident.  This was a charge of choking.  It required proof of some detrimental effect on L’s breathing.[13]  The jury may have been in no doubt that the appellant assaulted L in this incident, whilst doubting that there was a choking.[14]  I have set out a passage from the cross-examination of P earlier at [36].  In that passage, P described the appellant doing a number of things at once: trying to take the car keys out of L’s hands and trying to cover himself, whilst having one hand on L’s throat.  There was a similar description by L of the appellant doing a number of things at once, which I have set out earlier at [16].  As also noted earlier, L described this as choking, but not “as strong as the first incident”.
  6. [65]
    In my conclusion, it is not demonstrated that the convictions were unsafe and unsatisfactory, as irreconcilable with the verdicts of acquittal.  The third ground of appeal fails.

Orders

  1. [66]
    I would order as follows:
  1. 1.Appeal allowed.
  2. 2.The convictions upon counts 2, 3 and 4 on the indictment be quashed.
  3. 3.The appellant be retried on those counts.
  1. [67]
    MULLINS JA:  I agree with McMurdo JA.

Footnotes

[1] Criminal Code s 315A(1)(a), (b)(i) and s 564(3A).

[2]  (1893) 6 R 67 at 70-71.

[3] R v Foley [2000] 1 Qd R 290 at 290-291; (1998) 105 A Crim R 1.

[4]  (1990) 19 NSWLR 677; (1990) A Crim R 385.

[5]  (1990) 19 NSWLR 677 at 690-691.

[6]  (1989) 54 SASR 17 at 23.

[7]  [2000] 1 Qd R 290 at 291-292.

[8]  (2021) 95 ALJR 937; [2021] HCA 36.

[9] R v Foley [2001] 1 Qd R 290 at 292 as set out earlier at [48].

[10] TKWJ v The Queen (2002) 212 CLR 124 at 130-131 [16] per Gleeson CJ, 133 [26]-[28] per Gaudron J and 158 [107]-[108] per Hayne J; R v NE [2003] QCA 574; [2004] Qd R 328 at [2] per McMurdo P and [37] per Davies JA.

[11] MacKenzie v The Queen (1996) 190 CLR 348 at 367 per Gaudron, Gummow and Kirby JJ.

[12]  Ibid.

[13] R v HBZ [2020] QCA 73; (2020) 4 QR 171 at 187 [57] per Mullins JA (McMurdo JA and Boddice J agreeing).

[14]  There was no alternative verdict left to the jury on this count.

Close

Editorial Notes

  • Published Case Name:

    R v JAE

  • Shortened Case Name:

    R v JAE

  • MNC:

    [2021] QCA 287

  • Court:

    QCA

  • Judge(s):

    Holmes CJ, McMurdo JA, Mullins JA

  • Date:

    17 Dec 2021

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC18/20 (No citation)13 May 2021Date of conviction; tried on five offences of violence committed against ex-partner (L) and her daughter (P); found guilty of choking L, assaulting L and assaulting P in one incident; acquitted of assaulting L in that incident and choking L in another; trial judge refused application to further cross-examine complainants; his Honour reasoned that nothing could be done to prevent Crown from criticising accused’s testimony as recent invention; accused consequently declined to testify.
Appeal Determined (QCA)[2021] QCA 28717 Dec 2021Appeal against convictions allowed, convictions quashed, retrial ordered; miscarriage of justice; trial judge’s reasoning inconsistent with authority; accused unfairly deterred from giving evidence; verdicts of guilty not irreconcilable with verdicts of not guilty: McMurdo JA (Holmes CJ and Mullins JA agreeing).

Appeal Status

Appeal Determined (QCA)

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