R v Butterworth

This important decision considers two key issues, namely whether a defendant ought to have been permitted to cross-examine a complainant about their prior criminal history, and whether the same defendant should have been allowed to cross-examine a police officer in relation to the violent history of an alternative suspect. On the first issue, the Court considers the limits of the authority in Warry v P B Pty Ltd, including a finding that, unlike in Warry, the cross-examination on criminal history in this case went directly to a relevant fact: the drug use of the complainant at the time of the offence. However, by majority, the Court held that there was no substantial miscarriage of justice and so the appeal was not upheld on this ground. On the second issue, the Court was divided but the majority found that there was no error in the trial judge refusing to allow defence counsel to cross-examine regarding the alternative suspect’s violent history. Accordingly, the appeal was dismissed.

Margaret McMurdo P, Morrison JA and McMeekin J

23 March 2017

This matter concerned an appeal against conviction. It raises an important issue about the right to cross-examine witnesses on prior criminal history.

The appellant was convicted of unlawfully wounding the complainant with intent to do grievous bodily harm, and also of unlawfully wounding him doing grievous bodily harm. [1]. He appealed against his conviction on the grounds that the court erred in (i) refusing him leave to cross-examine the complainant about his criminal history, and (ii) refusing to allow him to lead evidence of the violent criminal history of an alternative suspect. [1].

The complainant’s evidence was that the appellant had stabbed him in the neck with a knife, and injured him to the left flank with a pair of stationery scissors. [3]. Although the appellant did not give evidence, the defence case in cross-examination was that he did not assault the appellant, and was not present at the time. [4]. The complainant was asked in cross-examination about alleged drug use at the time of the offences, but he refused to answer, claiming privilege against self-incrimination. [4].

The complainant’s credibility and reliability were in issue. [4]. Defence counsel began to cross-examine the complainant on his criminal history, but this was objected to by the prosecution. [5]–[6]. Defence counsel sought to rely on convictions for contravening a direction or requirement that the complainant attend a drug diversion appointment in order to show that, at the time of the alleged offences, the complainant was using drugs. [7]. The trial judge did not allow the appellant to cross-examine the complainant on these convictions and other charges, relying on the decision in Warry v P B Pty Ltd [1999] QCA 154. [8]. In that case, involving an action for damages and personal injuries, the Court held that the fact that the plaintiff had been charged with an offence was not relevant to an issue in the proceedings. [17].

On appeal, the appellant argued that the trial judge erred in his application of Warry and in failing to exercise the discretions given by s 5(3)(b) of the Criminal Law (Rehabilitation of Offenders) Act 1986 and s 15A of the Evidence Act 1977. [9]. The text of these provisions is set out at [11]–[13]. The respondent conceded that the trial judge had erred, but submitted that no substantial miscarriage of justice had occurred, thereby engaging the proviso in s 668E(1A) of the Criminal Code. [10].

McMurdo P (with whom Morrison JA and McMeekin J agreed on this point) noted that the respondent’s concession was rightly made. [11]. Her Honour stated that there was “nothing in those provisions or the common law that permitted [the trial judge] to disallow the cross-examination of the complainant about … his criminal history where convictions were recorded and the rehabilitation period under the Criminal Law (Rehabilitation of Offenders) Act had not expired”. [15].

In respect of a number of entries on the complainant’s criminal history, no conviction had been recorded. [16]. McMurdo P concluded that the trial judge erred in relying on Warry to refuse defence counsel’s application to cross-examine the complainant on these matters. [18].  Her Honour considered that this was clearly distinguishable from the present case, where “the credit of the complainant was at the heart of the sole issue in the case”. [18].  Her Honour stated that “[a]s they were charges under s 5 [of the Criminal Law (Rehabilitation of Offenders) Act] and they were relevant to an issue in the trial, counsel was entitled to cross-examine the complainant about them under the first limb of s 5(3)(b)”. [18]. Her Honour also noted that, had it been necessary to exercise the discretion to permit cross-examination under s 5(3)(b), “there were strong reasons to allow the cross-examination”. [19]. Her Honour rejected the respondent’s submission that no substantial miscarriage of justice had occurred. [20].

As for the second ground of appeal, the appellant contended that the trial judge erred in not allowing defence counsel to cross-examine the investigating police officer about the violent criminal history of an alternative suspect “M”. [21]. CCTV footage depicted someone other than the appellant running away from the premises two minutes before the injured complainant was seen leaving the premises. [21]. There was no evidence at trial that M was the person running away, but the prosecution “did not exclude that possibility”. [21].

Having regard to the defence case, namely, “that someone other than the appellant attacked the complainant”, McMurdo P concluded that “defence counsel should have been permitted to question the police officer about M’s criminal history”. [22]. Her Honour was also of the view that this resulted in a substantial miscarriage of justice. [23].

Morrison JA agreed that the trial judge erred in not permitting defence counsel to cross-examine the complainant on his criminal history but disagreed that this involved a miscarriage of justice. [25]. The jury were already aware of matters indicating the complainant was a drug user, and there was no doubt that the attack had occurred. [32]–[33], [36].

His Honour also disagreed with McMurdo P in respect of the second ground of appeal. His Honour noted that the additional evidence, if permitted, would not have overcome the hurdles “that there was no evidence [M] was there, he gave an alibi, there was no evidence that he matched the description of the person who went out the gate two minutes before, and the complainant’s identification of the appellant”. [40].

McMeekin J also agreed with McMurdo P that the appellant should have been permitted to cross-examine the complainant on his criminal history. [44]. However, like Morrison JA, his Honour did not consider that any substantial miscarriage of justice occurred. [45]–[62]. His Honour also agreed with Morrison J in respect of the second ground of appeal. [63]–[69].

Accordingly, the appeal was dismissed. [70].

J English