R v Broadby[2023] QCA 127

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Morrison JA.
2. [2]
   MORRISON JA:  The appellant was charged with murder arising out of the death of a man who was kicked, punched, and stomped on by the appellant and another man.  The appellant was convicted of manslaughter after a six-day trial.
3. [3]
   The appellant was sentenced to imprisonment for nine years, and the offence was declared to be a serious violent offence.  Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), it was stated that the appellant had been held in pre-sentence custody for a period of 241 days, all of which was declared to be time served under the sentence.
4. [4]
   The appellant seeks to challenge the verdict on two related grounds:

   1. (a)
      Ground 1 – a miscarriage of justice was occasioned by the introduction of prejudicial evidence given by Ms Gallo in relation to an intervention order; and
   2. (b)
      Ground 2 – the jury was reminded of the inadmissible evidence because the transcript of proceedings was erroneously given to the jury without being appropriately redacted.

The background facts

5. [5]
   The following summary has been taken from the appellant’s submissions and the learned trial judge’s sentencing remarks.  As no ground is advanced that the verdict was unsafe or unsatisfactory, or unsupported by the evidence, there is no need to review the evidence beyond what appears below.
6. [6]
   An incident occurred at the Mareeba show grounds on 10 July 2019 resulting in the deceased being found badly beaten underneath a caravan annexe.  Ambulance officers arrived and performed cardio-pulmonary resuscitation upon the deceased.  The deceased’s airways were closed for a period of 13 minutes.  Thereafter, the deceased was taken to the Mareeba Hospital.  He was later flown to the Townsville University Hospital where he remained on life support in the intensive care unit.  He died five days later on 15 July 2019.
7. [7]
   The appellant was employed with an amusement company that operated rides.  He had travelled to Mareeba as a part of his employment for the Mareeba show.  At that time, he was in a relationship with Ms Bell-Pickett, who worked for the same company.  He had been friends with the deceased, and the two had worked together.
8. [8]
   On the evening of 10 July 2019, the appellant socialised with Ms Bell-Pickett and other show workers, including Ms Marshall, Mr Davis, and Ms Hume.  All persons present were drinking alcohol, with the exception of Ms Bell-Pickett.
9. [9]
   At some point in the evening, the appellant, with Ms Bell-Pickett and Mr Davis, travelled to Cairns and attended a service station.
10. [10]
    Whilst the appellant and the others were in Cairns, the deceased remained at the Mareeba showgrounds.  The deceased had been drinking, as had Ms Marshall, both to excess.  Something occurred between them between them, and the deceased headbutted Ms Marshall.  Ms Marshall phoned the police.  Police attended at 11.06 pm and observed the deceased to be intoxicated, though it appeared he had calmed down.  He was not arrested, nor was he taken to the police station.
11. [11]
    Later, the deceased had gone to the back of his truck.  The appellant arrived back from Cairns with Ms Bell-Pickett and Mr Davis.  Ms Marshall was there in a very upset state, and the appellant became aware of what had happened.  The appellant, Mr Hume, and Mr Davis went to the deceased’s truck to see why he did it.
12. [12]
    A scuffle broke out between the deceased and Mr Hume, and Mr Hume punched the deceased.^[1]  The deceased was pulled out of, or fell out of, the truck.  He had a hammer in his hand.  He started swinging it around.  There was yelling and swearing and some attempts to get him to put the hammer down.
13. [13]
    The appellant, Mr Hume, and Mr Davis walked towards the deceased.  The deceased had threatened to hit the appellant’s car with the hammer.  The deceased then moved towards Ms Bell-Pickett with the hammer.  She was scared and upset, and phoned the police.  The appellant then intervened and, angry, punched the deceased.  The deceased also swung the hammer towards the appellant.
14. [14]
    In anger, the appellant took off his shirt, picked up a hammer, and told the deceased he would kill him.  The appellant subsequently lowered the hammer.  At that point in time, the deceased picked up a piece of firewood and a star picket, and the interaction between the appellant, Mr Davis, and at least Mr Hume, escalated.  The three of them walked towards the deceased and the deceased walked backwards, then turned and ran, dropping the star picket as he went.
15. [15]
    The deceased was last seen running away into the darkness, towards a line of nearby caravans.  Ms Bell-Pickett observed Mr Davis and the appellant give chase.
16. [16]
    The appellant, Mr Hume, and Mr Davis went after him, but Mr Hume abandoned the chase.  The deceased hit the annex of a bus.  By that time, the appellant and Mr Davis were in pursuit.  The appellant either put the flashlight on his phone on, or had a torch, as did Mr Davis.
17. [17]
    The deceased hid in the shadows of a caravan annex.  The appellant found him first.  He yelled: “Keep away from my fucking woman”.  He then punched the deceased, and the deceased fell.  The appellant then punched, kicked, and stomped on the deceased.  Mr Davis then joined in the assault.
18. [18]
    When the deceased had stopped moving and was unconscious, the appellant pulled Mr Davis off.  The appellant went back to the camp.  He spoke to Ms Bell-Pickett, but left quickly with the arrival of the police, and hid under a caravan.
19. [19]
    The assault was short but ferocious, leaving the deceased with severe facial fractures – including a Le Fort fracture, which resulted in his facial structure becoming disconnected from his skull – and neck injuries.  The injuries and resultant bleeding contributed to the deceased going into cardiac arrest.
20. [20]
    Ambulance officers arrived approximately seven minutes after the police.  The deceased was revived by paramedics, but only after some 13 minutes had passed, by which time the deceased’s brain had been deprived of blood flow and oxygen for too long, and his condition was not compatible with life.  His life support was turned off on 15 July 2019.
21. [21]
    The medical evidence determined the deceased died from cardio-respiratory arrest caused by significant injuries to his face and neck.

The impugned evidence

22. [22]
    Ms Gallo was the former (short term) partner of the appellant.  She was not present in Mareeba when the deceased was injured.  Her evidence was admitted as evidence of post-offence conduct in the form of admissions made by the appellant.
23. [23]
    Ms Gallo’s evidence concerned what the appellant told her of the events on the night the deceased was attacked.  She said the appellant confessed to having jumped on the deceased’s throat, and stomping and kicking him in the head multiple times.  She also gave evidence that the appellant had told her that he hid underneath a caravan and later shaved his head to avoid detection by police.
24. [24]
    She said she knew the appellant because he was her ex-partner whom she met around May 2019.^[2]  She described her situation at that time:^[3]

“All right.  At that particular time, did you have a partner?---I was coming out of an abusive relationship with my ex-partner.

And what was his name?---[X].

Okay.  Now, when – or at the time that you’d met Mr Broadby, and after the relationship with [X], did you and Mr Broadby have a – or start a relationship, an intimate relationship?---Yes.”

25. [25]
    Ms Gallo said that, when she met the appellant, she was pregnant, and the father of the child was her ex-partner, X.^[4]
26. [26]
    Ms Gallo explained that the appellant sought her assistance by way of money for a plane ticket, which she refused.  Shortly after the appellant returned to Melbourne, Ms Gallo accompanied him across the Bass Strait.  The pair caught the ferry, and stayed with his family in Tasmania.^[5]  She stopped seeing the appellant when she returned to Melbourne.  Her evidence in cross-examination was that the breakup with the appellant was “messy”, and caused by herself and Ms Bell-Pickett discovering that the appellant was cheating on both of them.^[6]
27. [27]
    Having given evidence about what the appellant told her as to the events on the night the deceased was attacked, she was cross-examined about the two times she gave a statement to police.  Specifically, one account was given to Queensland police, and a second to Victorian police.  Cross-examination concentrated on the account to the Victorian police.^[7]
28. [28]
    In re-examination, she was asked:^[8]

“Right.  And then the Victorian Police were the next police to speak to you; is that right?---Yes.

Did you ring the Victorian Police or did they just turn up, contacting you?---I can’t remember - - -

All right?--- - - - but I do know that I did contact Vic Police when I did put an intervention order in place.”

29. [29]
    It is this passage of evidence on which Grounds 1 and 2 depend.

Consideration – ground 1

30. [30]
    The appellant’s contention is that the passage of evidence quoted above, and in particular the reference to an “intervention order”, was neither relevant nor admissible as it had no bearing upon any facts in issue in the trial.  Consequently, it was submitted that the evidence was inadmissible and prejudicial evidence about seeking an intervention order, inferentially against the appellant.
31. [31]
    There are a number of reasons why that submission cannot be accepted.
32. [32]
    First, there is no basis to consider that Ms Gallo was speaking of the appellant as the subject of the intervention order.  Her relationship with the appellant was not described as being one of abuse of any kind, but rather described in neutral terms – albeit with a “messy” breakup.^[9]
33. [33]
    By contrast, her relationship with her ex-partner, [X], was explicitly described in terms of one where she was bearing his child, and where he had been abusive towards her.^[10]
34. [34]
    Secondly, the appellant’s own evidence was that his relationship with Ms Gallo was one of caring, whereas her experience with [X] was one where he was violent towards her, to the extent that the appellant had to rescue her.^[11]
35. [35]
    Thirdly, given that state of the evidence, there was no perceptible risk that the jury would think the intervention order was applicable in any way to the appellant.  The suggestion is risible and the inference impossible.  Neither Ms Gallo nor the appellant gave any evidence that would suggest that.  To the contrary, their evidence would have suggested that the intervention order was likely directed at [X].
36. [36]
    The appellant’s submissions overstate the case when asserting that “[t]he impugned evidence had the very real likelihood of the jury impermissibly reasoning that the appellant was predisposed to violence because Ms Gallo sought an intervention order and as a result, the appellant was more likely to have assaulted the deceased with an intention to cause at least grievous bodily harm”.^[12]
37. [37]
    The vice can be seen in the highlighted passage.  There is no basis for thinking the jury would have gone down that path of reasoning.
38. [38]
    Equally, the appellant submitted that the context of the evidence was concerned with the violence related by the appellant to Ms Gallo, and that is why the jury would have accepted it was a comment about the appellant’s capacity for violence.  I do not agree.  The question arose out of Ms Gallo’s uncertainty as to when the contact with the Victorian police occurred, and whether it was prompted by a phone call or not.  In that context, the evidence had nothing to do with any violent account by the appellant.
39. [39]
    Fourthly, to the extent that the submission attempts to gain leverage from the fact that Ms Gallo dealt with Victorian police, that was something the jury already knew from the cross-examination.^[13]
40. [40]
    Fifthly, in the absence of the jury, the evidence was noted by the trial judge in this passage:^[14]

“HER HONOUR: I did – I did note the reference to an intervention order in Ms Gallo’s evidence, but because it flowed straight on, I thought it was actually better not to bring any attention to that.

MR LONGHURST: I agree.”

41. [41]
    Plainly, to the extent that the evidence was considered irrelevant, defence Counsel: (i) agreed with the approach that the jury should not be reminded of it; and (ii) did not seek a direction to the jury about it.
42. [42]
    Before this Court, the appellant’s submissions accepted that this was a forensic decision made by defence Counsel.^[15]  That approach was soundly based, as there was nothing whatever to suggest that any intervention order was, or even might be, directed at the appellant.
43. [43]
    In my view, the admission of the impugned evidence and the failure of the trial judge to warn the jury to ignore such evidence did not prejudice the appellant’s right to a fair trial and did not lead to a miscarriage of justice.

Consideration – ground 2

44. [44]
    The contention on ground 2 was that the evidence as to the intervention order was not cut from the transcript that was given to the jury.  Consistent with the Benchbook direction concerning the provision of transcripts to the jury, the trial judge instigated a regimen under which the daily transcript was edited by Counsel.  The contention is that the regimen failed because the transcript given to the jury still contained the evidence from Ms Gallo as seeking an intervention order.
45. [45]
    Specifically, the appellant submitted:^[16]

“[36] On the morning of day four of the trial … the trial judge enquired of the parties whether they had had the opportunity to review the transcript.  The learned Crown Prosecutor had prepared a schedule of proposed changes.  Counsel for the appellant had been provided with the schedule and agreed with the proposed amendments.  The trial judge marked the schedule MFI ‘F’.

[37] The schedule marked MFI ‘F’ did not seek the removal of the impugned evidence.  Counsel for the appellant referred specifically to the impugned evidence and the following exchange occurred:

COUNSEL: ‘I’m just cautious.  It doesn’t look like, sort of, offending comment Ms Gallo made about AVO or something to that effect – it doesn’t look like that actually made it to the transcript, but what it [sic] did make it to the transcript was, of course, your Honour’s reference to it later.’

JUDGE: ‘That has to go out.’

COUNSEL: ‘And I’m not – and I’ll guess we’ll cross the bridge if it comes to it.  Thankfully, it hasn’t in this.  If there is something particularly objectionable that makes it out onto the record, whether that would end up going to the jury, and, of course, my position would be that it shouldn’t, but it may be the case that that has to be redacted and the jury needs to be given some direction so they don’t go searching…’

[38] Counsel for the appellant was wrong.  The impugned evidence had made it to the transcript, which was a fact that he clearly overlooked.”

46. [46]
    In my view, there are two reasons why this ground fails.
47. [47]
    First, it depends upon the proposition that the jury would have understood the evidence as to an intervention order as being directed at the appellant.  For the reasons already canvassed above, that proposition cannot be made out.  That is sufficient of itself to dismiss this ground.
48. [48]
    Secondly, in my view, there are reasons to conclude that defence Counsel tacitly agreed to its inclusion, and did not consider that it was, in fact, objectionable or prejudicial to his client.
49. [49]
    The appellant contends that the transcript given to the jury contained the passage about the intervention order:^[17]

“[39] The trial judge permitted a copy of the transcript be provided to the jury and marked that transcript MFI ‘R’ for identification.  The transcript given to the jury contained the inadmissible and prejudicial evidence of Ms Gallo, however, the trial judge’s reference to the impugned evidence had been removed.”

50. [50]
    Reference to MFI “R” shows that it contained what Ms Gallo said: see paragraph [28] above.  Further, it did not contain the trial judge’s comment set out at paragraph [40] above.
51. [51]
    The trial judge canvassed the adoption of the protocol concerning distribution of a transcript to the jury.  It must be borne in mind that the protocol is just that, and not something akin to a Practice Direction.  Its use requires the involvement of the parties, via their Counsel.
52. [52]
    Early in the trial, the way in which the transcript would be edited under the protocol was discussed with her Honour observing:^[18]

“HER HONOUR: Now, I sent you the protocol about transcript, which – in light of the change that’s recently happened in the court and which has been the subject of additional directions now in – I think it’s 4(b) of the bench book.

MR LONGHURST: I understood it to say it’s still a discretional issue for the trial judge and if it were to be that the jury would be provided then the protocol has effect or is a good guide to it anyway.

HER HONOUR: Yes.  So what I was going to do is the – I think – I want to put the protocol in place with you so that if at the end of the trial we’ve got to do it, it’s done.

…

HER HONOUR: All right.  Now, what I propose to do just – so, yes, if you can just – the two of you – look at the transcript each night so we are in a position to do that and follow the protocol so there won’t be a rush if they ask us at the end.”

53. [53]
    There is no doubt that both Counsel and the trial judge intended that the trial judge’s reference to what was said by Ms Gallo was to be deleted from the edited transcript that went to the jury:^[19]

“MR CRANE: Good morning, your Honour.  I had forwarded to your Honour’s Associate, consistent, I think, with the protocol, some changes to the transcript or some amendments to the transcript, and can I formally hand up to your Honour a copy of the schedule that I’d provided.

HER HONOUR: Yes.  I’ll make it MFIF, just so we’ve got a record of it on file.

MFI #F MARKED FOR IDENTIFICATION

MR CRANE: Thank you.

HER HONOUR: And has Mr Longhurst - - -

MR CRANE: I’ve provided that to him.

…

MR LONGHURST: I’ve seen it.  I agree with that.

HER HONOUR: You agree with that.  All right.  Well, I’ll ensure those changes occur to the transcript.

…

HER HONOUR: We also have to – we have to remove material, though, in terms of taking out exchanges when the jury weren’t here, etcetera.

MR CRANE: Yes.  Mr Longhurst was actually doing that this morning, which I understood your Honour’s Associate, as part of the protocol, would be doing that and I broke that bad news to Mr Longhurst, for he’d spent some time doing it.

HER HONOUR: Well, look, if Mr Longhurst wants to contribute to the process and indicate what his work has resulted in, that would be helpful.

MR LONGHURST: I’m just cautious.  It doesn’t look like, sort of, offending comment Ms Gallo made about AVO or something to that effect – it doesn’t look like that actually made it in the transcript, but what did make it into the transcript was, of course, your Honour’s reference to it later.

…

HER HONOUR: That has to go out.

MR LONGHURST: And I’m not – and I guess we’ll cross the bridge if it comes to it.  Thankfully, it hasn’t in this.  If there is something particularly objectionable that makes it out onto the record, whether that would end up going to the jury, and, of  course, my position would be that it shouldn’t, but it may be the case that that has to be redacted and the jury needs to be given some direction so they don’t go searching - - -

HER HONOUR: Yes.

MR LONGHURST: - - - for it.

HER HONOUR: Well, what I’ll do is my Associate will strike through what’s going to be removed - - -

MR LONGHURST: Yep.

HER HONOUR: - - - so that you both can clearly see it.

MR LONGHURST: Perhaps I can assist your Associate by forwarding what I’ve done so far to all parties.

HER HONOUR: Well, that’d be very helpful if you did that.  So it’ll be struck through.  The both of you can look at it before – and we can discuss whether anything else needs to be done in relation to that - - -

MR LONGHURST: Thank you, your Honour.

HER HONOUR: - - - in order to ensure that that’s addressed.”

54. [54]
    As those passages demonstrate, Counsel were centrally involved in the editing process.  The consequence is that it may be inferred that the final version of edited transcript that became MFI “R” was one agreed by defence Counsel.
55. [55]
    Further, to the extent that defence Counsel appeared to miss the fact that Ms Gallo’s reference was in the transcript, there was ample time thereafter to correct the error.  That it remained in the edited version is consistent with defence Counsel taking the view that the reference was not actually objectionable or prejudicial to the appellant.
56. [56]
    The question of how the protocol was to operate was again the subject of some comment shortly thereafter:^[20]

“HER HONOUR: Mr Crane, I’m sad to tell you that Mr Longhurst’s construction of the protocol is actually, I think, the preferable construction.

MR CRANE: Right.  Okay.

…

HER HONOUR: If at a convenient time you can look at what Mr Longhurst as done … so that we can at least get that point agreed, and then we can get the rest – but as it – as I read it, it is – the two of you confer - - -

MR CRANE: Getting rid of everything.

HER HONOUR: - - - about what’s to be revised in the transcript so that, if the jury ask for it, it can go in, or any corrections as you’ve done, and if you can agree to them, then that’s great.  My Associate will mark it up.  You will be provided with that marked up version.  If you can’t, we’ll have a discussion about it.

MR CRANE: Thank you.”

57. [57]
    In the circumstances, the inclusion of what Ms Gallo said, and the exclusion of the trial judge’s comment, were in accordance with defence Counsel’s responses to the trial judge: see paragraphs [40] and [48] above.
58. [58]
    Thirdly, even if one did not reach the view that the edited transcript was the product of Counsel’s agreement, but merely inadvertence on the part of defence Counsel, the outcome would be no different.  The jury would not have understood that comment to have been directed at the appellant.
59. [59]
    There is no basis to conclude that a miscarriage of justice has occurred.

Conclusion

60. [60]
    I propose the following order:

1. Appeal dismissed.

61. [61]
    NORTH J:  I have read the reasons of Morrison JA.  I do not share his Honour’s confidence that the impugned evidence was included in the jury transcript with the tacit agreement of defence Counsel.^[21]  My conclusion is that the trial judge favoured the exclusion from the jury transcript both the impugned evidence and the subsequent exchange with Counsel^[22] and that Counsel agreed.  In that circumstance it is improbable that Counsel would take it upon himself to include the impugned evidence without raising the issue with the trial judge or for that matter prosecuting Counsel.  Consequently, I favour an inference that its inclusion was a consequence of inadvertence by Counsel burdened with the demands and distractions of a lengthy homicide trial.  But whatever be the explanation, it is of little moment.  I otherwise agree with the reasons of Morrison JA and with the order proposed by his Honour.