DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The Defendant is charged with one count of unlawfully doing grievous bodily harm to the complainant Justin Whitfield at Gladstone on or about 24 December 2011.

2. [2]
   On 15 November 2013 the Crown Prosecutor objected to the defence asking questions as to the complainant’s alleged violent propensity on another occasion.

3. [3]
   In evidence-in-chief the witness McCann (a hotel manager) alleged that the complainant had caused problems for him about two weeks prior to the incident in question.

4. [4]
   Defence counsel sought to elicit the details of this in the presence of the jury. Objection was taken on the grounds of relevance by the Crown.

5. [5]
   After hearing evidence from the witness on voir dire and after hearing submissions I permitted the questions to be asked in the presence of the jury and stated that I would give more detailed reasons on another occasion for allowing this course.

6. [6]
   These are my reasons.

The evidence

7. [7]
   As noted earlier Mr Smith is charged with unlawfully doing grievous bodily harm of Justin Whitfield on 24 December 2011 in Gladstone.

8. [8]
   The allegation against him is that there was a verbal altercation between Mr Smith’s group and Justin Whitfield outside the Reef Hotel in Goondoon Street, Gladstone. The Reef Hotel is part of the entertainment precinct of Gladstone. The Port Curtis Hotel is about 60 metres away from the Reef Hotel.

9. [9]
   After this verbal altercation the complainant walked further down the street away from the Defendant and his group and picked up a bottle and smashed it. He was turning around in the direction of the Defendant’s group. The Defendant came over to him and punched the complainant, as a result of which he went to the ground. It seems that his head struck the ground and he sustained significant brain injuries. It is also alleged that the Defendant punched the complainant twice more (or thereabouts) to the head, although there was contradictory evidence on this point (see for example the evidence of Mr Brennan, who suggests another person did this).

10. [10]
    The injuries to the complainant included a brain injury as a result of which he is unable to give evidence.

11. [11]
    The Crown in its opening raised the fact that self‑defence would be an issue. The witness McCann gave evidence that he thought the complainant was acting in a threatening manner not only at the time of the verbal altercation but also at the time he was holding the broken glass. He gave evidence in effect that it was the complainant who was the aggressive one on the night of the charged offence.

12. [12]
    It may therefore be seen that a significant issue in the trial is as to who was the aggressor. This fact directly relates to the applicability of self-defence under s 271(1) and (2) of the Criminal Code (Q) 1899.

13. [13]
    Turning then to the evidence objected to, Mr McCann (who was the manager of the Port Curtis Hotel) gave evidence on voir dire that about two weeks before the charged event he observed an altercation on the other side of the road of the Port Curtis Hotel. The complainant was being aggressive towards Ms Gibbs, who was unknown to the complainant. Mr McCann and another person went over to intervene to stop the complainant from attacking Ms Gibbs. The complainant continued to try and push past him and his companion in order to try and assault Ms Gibbs. The complainant then picked a fight with both Mr McCann and his companion and then spat towards Ms Gibbs and at the complainant and his companion. Mr McCann gave evidence that the complainant’s behaviour in terms of agitation and aggression was very similar to his agitation and aggression exhibited on the night of the charged offence.

14. [14]
    This incident occurred sometime between 12 midnight and 3 a.m. The incident the subject of the charge occurred at about 4 a.m.

15. [15]
    He gave evidence that his opinion the complainant was affected by liquor and/or drugs.

Submissions

16. [16]
    The Prosecutor submitted that the evidence of the earlier occasion was not admissible. It was submitted that the court was not bound by the single Judge decision of R v Ellem (No 1) [1995] 2 Qd R 542.

17. [17]
    The Crown relied upon the statements made by Thomas JA in R v Mogg (2000) 112 A Crim R 417 where his Honour doubted that which Lee J stated in Ellem. It was submitted that in those circumstances the evidence was simply not admissible.

18. [18]
    Alternatively the Crown submitted that even if the evidence could be admissible, in the present case it was not. It was submitted that the evidence did not establish a general reputation for aggression. It was simply an isolated act, was not sufficiently similar and was not sufficiently similar to establish a pattern of behaviour. In particular the Crown relied upon the fact there was no weapon or bottle involved. It was not probative on the issue of general aggression.

19. [19]
    The Crown sought to distinguish cases such as Ellem (supra) and R v Lawrence [2001] QCA 441 as cases where there was no eyewitness where such evidence became more than ordinarily relevant. In the instant case there are seven eyewitnesses to be called. It was submitted the evidence was very remote.

20. [20]
    Defence counsel submitted that the principles expressed in Knight v Jones ex parte Jones [1980] Qd R 98 were applicable. It was submitted that relevant features were that the earlier incident occurred in the entertainment precinct. It occurred only approximately two weeks prior. It happened at the same time of night (the early hours of the morning). The behaviour was the same by the complainant. It happened near the post office corner. It was clear the complainant was the violent aggressive one. It was submitted that the earlier incident bore enough similarity to be relevant on the issue as to who was the aggressor.

Relevant principles

21. [21]
    In BBH v R (2012) 245 CLR 499 French CJ at [50] stated:

“All evidence must pass the threshold test of relevance which is the necessary condition of admissibility. As was said in Smith v The Queen:

‘Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received.’

Relevance is determined by reference to the content of the proposed evidence and the issues at trial, including the elements of the offences with which the accused is charged, issues about the facts constituting those elements and issues about facts relevant to facts in issue. … 

[51] … According to Stephen's Digest, in a definition adopted in the eighth Australian edition of Cross on Evidence, ‘relevant’ means that:

‘[A]ny two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other.’”

22. [22]
    In R v Ellem (No 1) [1995] 2 Qd R 542, Lee J examined the principles associated with the admissibility of a deceased’s general reputation for violence. His Honour at 545 stated:

“In a sense, evidence of the deceased’s previous bad character and violent disposition is the converse of similar fact evidence which may, in some circumstances, be admitted on a trial against an accused person. Just as evidence of propensity to commit offences other than that with which an accused person is charged is generally inadmissible as being prejudicial to the accused, unless it is otherwise significantly relevant in some way of showing whether the accused is guilty or not of the offence charged, so also, it might be thought, is evidence of past conduct or disposition of a deceased person in ordinary circumstances, unless it is relevant in some way to the charge before the court and, in particular, to explaining what occurred at the time of the incident in question and also in explaining the accused’s state of mind and reasonableness or otherwise of his conduct.”

23. [23]
    In the circumstances, Lee J held that where self-defence was raised as a defence to a charge of manslaughter, evidence of the deceased’s reputation for violence was admissible as a circumstance to show whether it was more likely he was the aggressor regardless of knowledge of the accused provided it was not too remote (pp547.10). In Ellem the evidence was disallowed as the alleged violent conduct occurred almost 20 years prior and hence was too remote.

24. [24]
    As in this case the complainant cannot give evidence because the state of his injuries, a case involving an unlawful killing is not dissimilar from the instant case.

25. [25]
    In R v Mogg (supra) the appellant (who succeeded on other grounds) sought to lead evidence from the investigating police officer of the deceased’s prior drug convictions. The trial Judge did not allow the appellant’s counsel to elicit evidence of this because there was nothing to show the appellant was aware of those matters. The appellant relied on R v Ellem. The President in Mogg noted that a similar approach to Ellem’s case had been adopted in Victoria (see R v Knowles [1984] VR 751 at 768; R v Gibb and McKenzie [1983] 2 VR 155 at 170-171; R v Hector [1953] VLR 543 at 547). The President found that the facts did not come within Ellem’s case as the appellant did not establish that the convictions for unparticularised drug offences established a general reputation for violence (see [59]).

26. [26]
    Thomas JA at [78] expressed serious reservations concerning the propositions mentioned in Ellem, Knowles and Gibb and McKenzie.

27. [27]
    It is clear that there is no binding decision upon me with respect to this issue as Ellem is a single Judge decision of the Supreme Court and the statements by Thomas JA in Mogg are obiter dicta.

28. [28]
    In Knight v Jones; ex parte Jones (supra) (not referred to in Mogg) the Full Court allowed an appeal and the majority held that a Magistrate was wrong in excluding evidence of the unlawful conduct of a police officer on another occasion involving another person on a charge of failing to provide a specimen of breath for analysis. The lawfulness of the request was in issue in the trial.

29. [29]
    It was held by Sheehan J at 101 that:

“With respect to the question as to whether the evidence sought to be adduced was relevant and admissible, it seems to me that the magistrate was clearly in error in refusing to allow that evidence to be called for the reasons given by him and referred to earlier. It is of course well settled that evidence of ‘similar facts’ is admissible in both criminal and civil cases in certain circumstances.”

30. [30]
    At 103 his Honour held:

“The evidence sought to be adduced in the court below, if accepted, would show that Knight, on two separate occasions, had arrested a person without any lawful reason or excuse for so doing, which of course was the allegation made by the appellant in the court below. That being so, is it evidence ‘tendered in disproof’, of the appellant’s guilt or ‘relevant to prove’ his innocence? … I consider as a matter of justice and commonsense, that any evidence tending to cast a doubt on the lawfulness of the arrest of the appellant by Knight is evidence ‘in disproof’ of the appellant’s guilt.”

31. [31]
    And further at 104:

“I prefer to categorise the evidence in question here as admissible to show a propensity or disposition on the part of Knight to arrest persons unlawfully. If that be so I consider that an accused person who alleges an unlawful arrest by Knight should be free to support that charge by all legitimate and relevant means (R v Lowery [1974] AC 85). Furthermore, in general, evidence may be tendered of similar acts preceding, as well as subsequent to, the main fact.”

32. [32]
    Macrossan J (in dissent) at 107 noted that “on two additional occasions the arresting constable had acted with similar recklessness and similar disregard of the law in making an unlawful arrest without cause.”

33. [33]
    In R v Harmer (1985) 28 A Crim R 35 the applicant had been convicted of five counts of assaulting a police officer. He was prevented from calling a witness to testify that he, the witness, had previously been assaulted by one of the police officers in a similar manner to that which the applicant claimed. The appeal was allowed. It was held that the applicant was not entitled to call evidence going merely to the credit of the Crown witness but was entitled to call evidence in support of his defence in disproof of the Crown case which might include evidence relevant to disposition, character or violent propensity of another person. It was held at pp 41:

“In our opinion, credible evidence in the circumstances that L had committed an assault on H of similar severity, using a not dissimilar technique in analogous circumstances, albeit some three or four months beforehand, would have been relevant and was admissible. Of course, it was for the jury to determine whether the evidence was credible. If it did, its tendency in disproof of the prosecution case could hardly be thought insignificant.”

34. [34]
    In R v Lawrence [2002] 2 Qd R 400^[1], the Court of Appeal considered the collateral finality rule. In Lawrence the defence sought to lead evidence which would show that the complainant (in a male rape charge in prison) had allegedly told a witness he was going to “set him up” by telling officers the witness propositioned him for sex. The trial Judge refused to permit the evidence to be led. MacPherson JA at [32] referred to Knight v Jones (supra). MacPherson JA held that the evidence was admissible as it could support a submission that the complainant had both a reason and disposition for making such a false complaint (see [37]).

35. [35]
    White JA noted at [44]:

“It is important not to elevate the finality rule and its exceptions to the status of a statutory pronouncement. As the Full Court of the Federal Court said in Natta v Canham (1991) 32 FCR 282 at 300:

‘... the court is not bound to the view that the exclusionary rule is absolute or that the categories of exceptions to it are closed. It is a rule of practice related to the proper management of litigation. A trial judge should not be precluded from determining in an appropriate case that the matter on which the witness’ credit is tested is sufficiently relevant to that credit as it bears upon issues in the case that such evidence may be admitted.’”

36. [36]
    In Gibb and McKenzie (supra) the evidence of the bad character of an accused was introduced into evidence by a co-accused.

37. [37]
    It was held “The evidence that Gibb was a person of violent disposition was evidence of a kind that is often sought to be lead by an accused in a case of self defence." It was further held adopting Sholl J in R v Hector (supra) that such evidence not only known to the accused, but from third parties consistent with evidence given as to the accused’s state of mind is admissible.

Conclusions from the authorities

38. [38]
    The touchstone of admissibility is relevance. At the least, if propensity evidence is admitted on occasions in favour of the Crown on the basis of relevance, then so too should such evidence be admitted in favour of the defence.

39. [39]
    If the evidence can logically and rationally prove a relevant disposition on the part of a complainant then the evidence is admissible.

40. [40]
    In my view the approach taken by Lee J in Ellem (supra) and in R v Gibb and McKenzie (supra) is the correct one^[2].

Conclusion

41. [41]
    It was my respectful opinion taking into account the requirement for a fair trial, the fact the complainant cannot be cross examined at the trial and the probative value of the proposed evidence I determined to admit the evidence. It seemed to me that in a case where the complainant was not able to give evidence (whether this be because he is deceased or because of incapacity he is unable to give evidence) then evidence of his violent disposition even not known to the accused can be admissible in certain circumstances.

42. [42]
    In this case the complainant acted in a violent and aggressive way to persons he did not know, at a similar time and in a similar location merely two weeks prior. He was not dissuaded from his violent attempts to assault the woman Gibbs on the earlier occasion, indeed he was intent on doing so. That fact seems highly relevant when one examines the present case. In the present case the complainant smashed a bottle and on one view of the evidence was turning towards the direction of the Defendant.

43. [43]
    In those circumstances it seemed to me that the evidence is highly relevant to the probability of whether an assault was or was about to be committed by the complainant upon the Defendant. This is clearly enough a key issue to be considered by the jury when the jury considers whether the Crown has excluded self-defence under either limb of s 271 of the Criminal Code.

44. [44]
    If proper management of litigation be an issue, this evidence was not such that the management of this trial was adversely affected in terms of time.

45. [45]
    I also took into account that the prosecutor lead in chief the fact that the witness McCann recognised the complainant. The following exchange occurred in evidence in chief at T1-16:

“All right. Had you seen this person prior to seeing him punch the person with no shirt?‑‑‑No. I've only had a ‑ a problem with the guy with no shirt at our ‑ at our venue.

All right. Perhaps my question was unclear. Well, first I say, do you know the person with no shirt on?‑‑‑No, I don't know him but we'd had a ‑ an incident at our hotel with him.

All right. And was that that night or some other night?‑‑‑No, that was another night.”

46. [46]
    In those circumstances it was my opinion and I so ruled that counsel for the defence was permitted to ask questions about the earlier incident.