Lane v Nowitzki[2010] QDC 317

[2010] QDC 317

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No 065 of 2009

BRISBANE 

DATE 12/08/2010

DAY 1

CATCHWORDS

Justices Act 1886, s 222, s 225

Appeal against conviction of assault - Magistrate applied the rule in Browne v Dunn (in the absence of submissions about it) to reject appellant's evidence as "made up as she went along" given her lawyer's failure to put important contentions to prosecution witnesses - lawyers in possession of a document including such contentions - conviction set aside - appellant's request for an order there be no retrial refused - court declines to order a retrial

HIS HONOUR:  This is an appeal under section 222 of the Justices Act 1886 complaining of the conviction of the respondent of an offence of assault at the premises of the Family Court in Tank Street, Brisbane on 9 July 2007.  The conviction followed the trial of a single count of common assault on the 10th of March 2009.

The allegation against the appellant is that she hit the complainant, Cara Derik, in the face with a handbag whilst proceeding through security in the front entrance of the Court building.  Proceedings were listed that day before Federal Magistrate Baumann between the appellant and her former partner, her husband.

The complainant was his new partner.  She came under some indirect criticism from her Honour in the course of sentencing, which is not a subject before this Court, for going out of her way to attend the Family Court proceedings against a history of multiple occasions of unpleasantness involving the three protagonists.

A mark of the fraught nature of their relations is the Appellant’s having obtained non-contact orders under the domestic violence legislation against both Mr Lane and Ms Derik.  He is facing an indictment in this Court containing multiple counts, including one of doing grievous bodily harm to the complainant. 

This appeal was listed before Judge Martin SC. Court staff became concerned about the appropriateness of his Honour's sitting, given that he had been the presiding judge when Mr Lane's trial came on for hearing last year.  That trial was aborted, I was told by Court staff because the complainant gave some evidence that she should not have given.  I took the opportunity of reading the file in this matter last Tuesday against the possibility that Judge Martin would recuse himself which, indeed, happened today.

The appellant now has new legal representation and relies on a "Further outline of submissions" prepared by Ms Freeman, who specifically states therein that she's counsel for the appellant on a pro bono basis, rather than relying on the outline of submissions filed by the appellant personally on 6 June 2009 in compliance with the practice direction.

The respondent has rested content with the original respondent's outline which was filed on 21 September 2009. That was prepared by Ms Litchen, rather than Ms Meisenhelter who appears for the respondent today.

There's been a later version of the appellant’s outline filed today by leave, the purpose of that being to correct some typing deficiencies.  Ms Meisenhelter had no objection to the raising in the further outline of an additional ground of appeal.

The original grounds were that the decision of her Honour as against the evidence, that inappropriate weight was given to inconsistent identification witnesses and that the appellant's legal representation at the trial was incompetent; only the last was persisted in by Ms Freeman.

The representation was by an experienced counsel, although he may not have been acting as counsel on the day.  Unfortunately he has suffered a health crisis and is not available to give evidence today, even by telephone, which means that had Ms Freeman pursued the notion of cross-examining him upon his affidavit which Ms Meisenhelter previously offered, it would not have been possible for him to give further evidence at all.

His affidavit was prepared before the affidavit of the appellant.  Hers exhibits a lengthy document which she had prepared to support a "no case" submission to be made to the magistrate.  The lawyer refused to make that application which is an indication that he proceeded by exercising his own professional judgment as to what was in the best interests of Ms Lane.  Having read her document, I think he was correct in that.

The document, however, does contain factual assertions about events being made by the appellant.  These relate, by way of example, to friction or unpleasantness that occurred between the two women outside the Family Court before the incident in question.

These matters, with some important ones among them, were not put to the complainant at the trial when she was cross-examined.  The significance of what appears to be an admission is made clear by the added ground of appeal,

"That the magistrate erred in drawing an inference of lack of credibility on the part of the appellant as a result of the appellant's legal representative's failure to comply with the rule in Browne v Dunn and fails to direct herself as to the existence of other possibilities for the failure."

Ms Freeman, points B and C that you refer to-----

MS FREEMAN:  Your Honour, that was one of the things I amended in my outline this morning.

I have now listed them A through to G, I think, and then the next paragraph over I have indicated-----

HIS HONOUR:  It makes sense now because-----

MS FREEMAN:  Correct.

HIS HONOUR:  -----instead of having asterisks or dot points I have got letters.

MS FREEMAN:  That's exactly right, your Honour.  So my submission reads that there are, in fact, four:  A, B, C and G, in my submission, four points that are contained in that written no case to answer submission that Mr Winn would have known about prior to cross-examination.

HIS HONOUR:  So it's A, B, C and G?

MS FREEMAN:  Yes.

HIS HONOUR:  Just as well you seek leave to read and file a new document?

MS FREEMAN:  Indeed.

HIS HONOUR:  The exchange between the Court and Ms Freeman which has just occurred has identified the matters which the lawyer had been instructed about that were not put as the following: 

"(A) Ms Lane stated she was carrying a handbag as well as a large shoulder briefcase which may have impacted upon how she picked these items up from the conveyer belt; (B) Ms Lane stated that she had an altercation with Ms Derik prior to the alleged assault, whereby Ms Derik told her she was pathetic and she didn't have a hope in Hell; (C) Ms Lane indicated that there was another altercation between the grey-haired lady and Ms Derik at the security point and; (G) Ms Lane stated that she did not say to the security guards that it was an accident and, in fact, they didn't speak to her at all."

The point of (A) is that the appellant contended that in moving her briefcase laden with papers for the court appearance and her much lighter handbag from the conveyor belt, the handbag may have been inadvertently swung.  The primary assertion of Ms Lane is that there hadn't been any striking at all, and, indeed, what happened is not put high by Ms Derik who indicated that the bag had merely "scuffed" her Face, which she attributes to having seen it in motion and got out of the way.

The grey-haired lady referred to in (C) was accompanying Ms Lane to the court to support her.  She, according to the evidence, was critical of Ms Derik for supporting a man who had seriously harmed Ms Lane.  There were some curious aspects of (G) and, indeed, the whole scenario, in that Ms Lane was apprehensive that something might follow from the interaction in the security area.  She says she went to the head of security who was not present at the scene and gave him some version of events, to be told that she should forget all about it - nothing would happen.

Following that approach Ms Lane’s concern continued, as is established by correspondence sent to seek access to security footage that cameras in the location might have taken.  Her efforts in that regard were unavailing.  It was said that the two security guards who were at the location who gave evidence before the magistrate prepared reports on the day which have gone astray.  They prepared new reports some weeks later which the magistrate accepted as reliable given that the incident was one of a kind that neither had witnessed before, presumably likely to be memorable to them.

Another oddity of the circumstances is that Ms Derik, who said she was minded to complain on the day, failed to find anyone in the Family Court's premises to take an interest in her case.  The duty solicitor to whom she was referred was apparently not there.  It doesn't seem that she took steps to involve the two security guards who made statements and, indeed, it was only when she returned to Central Queensland with Mr Lane that she made contact with a police officer who was prepared to pursue the matter.  Ms Lane, it seems, would not have known that she faced the charge until receiving a notice to appear nearly a year afterwards.

The point and significance of the failure to put the identified matters to prosecution witnesses is that her Honour in her detailed reasons placed express reliance on that failure to resolve the conflict of credit which faced her in deciding the charge against the appellant.  She stated that the conclusion was that the appellant was making things up as she went along which, if it were the truth of the matter, was a potent reason for regarding her as not a witness of credit.

The material before the Court indicates that the lawyer was in possession of instructions in relation to certain matters.  It appears that it was her Honour's idea to have recourse to the so-called rule in Browne v Dunn [1893] 6 R 67, nothing being said about this by the police prosecutor or by Ms Lane's lawyer, as counsel agreed.

It is very clear that in a criminal trial before a jury, great caution has to be exercised in resorting to the rule in Browne v Dunn (see in particular Foley [2000] 1 Qd R 290) which refers to earlier cases such as Robinson [1977] Qd R 387 at 394, and Birks [1990] 19 NSWLR 677, where it was said at page 690,

"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...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.” 

The ordinary principle is that where matters have not been put, it may well be appropriate for the jury to be told that it mustn't be held against a witness that he or she failed to deal with some proposition never referred to him or her.  There may be all sorts of explanations or reasons why the failure to put matters, as was said at Foley at 292, does not

“reflect upon the credibility of the client.  Counsel, for example, may have misunderstood the instructions or the failure may be through oversight...If then a jury is to be instructed in a way in 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 an accused the jury should be satisfied that there is no other reasonable explanation for the omission to cross-examine."

A conviction was set aside where there had been excessive reliance on a Browne v Dunn approach by the prosecutor and the trial judge.  More recently there was a similar outcome in MAP [2006] QCA 220.  I refer to the reasons at paragraph [54] and following where pertinent High Court and other authority is referred to.  At paragraph [59] the Court of Appeal noted the

"strong considerations of fairness which militated against an invitation to the jury to infer a tacit acceptance by the appellant that he had digitally penetrated the complainant, Ms S from the manner in which his counsel had conducted the cross-examination of Ms S...his Honour should have refrained from commenting to the jury in the terms in which he did.  There was no good reason for his Honour's prejudicial intrusion into the functions of the jury."

In that unusual case reliance was placed on the failure to put to one complainant a proposition which had been put to the other complainant whose matter was before the same jury.

In paragraph [58] the necessity of the jury being warned that a possible - indeed, the likely reason in the circumstances for that particular aspect of the appellant's case not being put was that counsel simply overlooked it.

In an appeal under section 222 against conviction the magistrate's decision should be accorded the respect which a jury's decision commands.  It is as important that a magistrate deciding a charge summarily should be every bit as alert to the limitations of Browne v Dunn as a jury instructed as to the laws by a Judge.

What's troubling to my mind here is the absence of reference by her Honour to the possibility of "innocent" explanations of failure to put things to prosecution witnesses.  With the wisdom of hindsight it can be seen that to some extent, at least, matters about which counsel had instructions were not put.  An interesting question has been raised as to whether it would have been open to the lawyer when her Honour began to make it clear in her reasons that an adverse inference was being drawn in reliance on a Browne v Dunn approach that there was, in some respects at least, no recent invention and that that could be established by Ms Lane's document.  Ms Freeman may well be right that it would have been open to the lawyer, even if it was difficult, to interrupt her Honour and seek to place that earlier document before her.

It may well be that even if that had occurred an adverse view of the appellant's credit would have been adhered to.  We will never know.  It's true that her Honour gave another reason for disbelieving the appellant.  This related to her assertion that she was in fear of the complainant in light of things that had happened earlier: it was thought inconsistent with assertions along those lines for the appellant to place herself in proximity to the complainant in the security area. Once again the circumstances are not straightforward.  The complainant had gone through security first, but unexpectedly was held up when security staff asked her to remove some items not permitted in court from her bag.

It may not have been deliberate that the two women came into the close contact which they did.  Ms Meisenhelter has appropriately reminded the Court of the deference which is due to a magistrate's advantages in seeing and hearing witnesses.  The Court is also reminded that it may not have the wide discretion which the Court of Appeal has to set aside a conviction which strikes it as unsafe or satisfactory.  What is really required here is a miscarriage of justice or a failure of the trial court to provide a fair trial for an accused person.

I have reached the conclusion that such tests are satisfied here.  So far as her Honour's reasons go there is no indication of awareness that the Browne v Dunn principle is to be applied only if there is no other explanation reasonably open.  My unease is heightened by the circumstance that it appears to have been the magistrate's idea to consider application of that principle in any event.  It would be unfortunate if a too ready application of it were used as the yardstick for resolving a conflict depending on credit of witnesses, where there can be no confidence that the Foley safeguards have been remembered and respected.  Notwithstanding that there were independent witnesses, namely, the security officers, tending to support the complainant, I have a serious concern that things went wrong and would set aside the conviction.

It is unnecessary to consider the other ground pursued by Ms Freeman.  I say nothing against the competence of Mr Winn, who must have been surprised at the basis on which her Honour proceeded.

Ms Freeman has asked the Court to act as the Court of Appeal did in Foley and not order a retrial.  In the unusual circumstances there where Foley had been detained in this country in which he was a stranger to face trial and where, indeed, he'd served some months of the sentence, the Court of Appeal specifically directed that there be no retrial, rather than leave it to the Director of Public Prosecutions to decide whether to prosecute further.  I'd be reluctant to give the direction which the Court of Appeal did in Foley, but would express the view that even on the complainant's version of what happened, although regrettable and unpleasant, seems to be something of minor proportions which may not justify the trouble and expense of another trial.  Of course the marriage break-up background to the whole story plays an important part here. 

HIS HONOUR: Can this be prosecuted again?  What happens if I don't order a retrial?  The Court of Appeal said no retrial, which is unusual.

MS MEISENHELTER:  Your Honour, I haven't got the sections. Would it be something that would be out of time?

MS FREEMAN:  No, I don't think it would be out of time.  I think that your Honour either orders a - if your Honour has quashed the conviction,  order a retrial and then it is a matter for the prosecuting authority as to whether they run the trial again, or the alternative is that your Honour orders no trial, but I think an order does have to be made. 

HIS HONOUR:  Have you got the Justices Act?  Can you see that?  Is it section 225?

MS MEISENHELTER:  Yes, your Honour, it is.

HIS HONOUR:  What does it say?

MS MEISENHELTER:  It says - if the Judge sets aside an order the Judge may send the proceeding back to whoever the order - or to any Magistrates Court with directions of any kind for the further conduct of proceeding, for example, directions for a rehearing or consideration.

HIS HONOUR:  So it says "may"?

MS MEISENHELTER:  Yes, it does.

HIS HONOUR:  It doesn't say it has to?

MS MEISENHELTER:  No.

HIS HONOUR:  If it is still within time, I don't see how Ms Lane could say, "Autrefois convict" or "Autrefois acquit" Could she?

MS MEISENHELTER:  No, not if there has been an appeal and the matter is to begin again, because the conviction then has been quashed.  I don't think that there could be an argument that the trial couldn't be run again.

HIS HONOUR:  That's right, but I don't think I have to order that there be another trial.  I think I'll say nothing about it.

MS MEISENHELTER:  Certainly.

HIS HONOUR:  I am expressing the view that I don't think it should be a retrial.  But the section doesn't actually say that I can order a retrial.

-----which I'm declining to do.  We'll just see what happens from that.

MS FREEMAN:  Thank you, your Honour.

HIS HONOUR:  I'm allowing the appeal, and I am setting aside the conviction, and obviously the sentence orders go too.

MS FREEMAN:  Yes, thank you, your Honour.

HIS HONOUR:  Now, are you asking for costs?

MS FREEMAN:  No, not in these circumstances, your Honour.

HIS HONOUR:  Okay.

THE COURT ADJOURNED AT 1.52 P.M.