Criminal law and procedure - Rule in Browne & Dunn - Extent of compliance - Courts and judges - Allegation of bias - Whether demonstrated - Adequacy of reasons

Anderson v Davis [2009] WASC 38

Cameron v Hume [2009] WASC 265

Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 at 247

MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436

Pallot v Harrison (Unreported, WASC, Library No 950261, 12 May 1995)

1 Mr Tetlow and Ms Clifford had been in a de facto relationship during which they had a child 'C' who was 10 years old in February 2008. After separation, C lived with her dad. On 8 February 2008 Ms Clifford and her partner, Mr Davies, came down to pick up C and take her to Donnolly Mill for the weekend. C decided not to go. There followed a confrontation between Mr Tetlow and Ms Clifford as a result of which Mr Tetlow was in due course charged and convicted of assaulting Ms Clifford and doing her bodily harm and unlawfully damaging the windows of Mr Davies' motor car. Mr Tetlow appeals against those convictions.

• Did the magistrate misapply the rule in Browne v Dunn (1893) 6 R 67 (HL)?

There has been a miscarriage of justice and there must be a retrial.

2 Ms Clifford gave evidence that at one point Mr Tetlow had an axe which he picked up and later slammed back into a piece of wood. Near the car, a short time later, he was handed a mattock handle and hit Ms Clifford on the back of her knee with it. There was a struggle during which Mr Davies disarmed Mr Tetlow. Mr Tetlow asked Mr Scorer to get the axe which he did, although he did not in any way attempt to wield it. Ms Clifford and Mr Davies got in the car to leave and Mr Tetlow, who had regained the mattock handle, smashed the car with it. Mr Davies' evidence was that he did indeed struggle with Mr Tetlow after Mr Tetlow had hit Ms Clifford with the axe handle but did not take it off him.

3 Mr Tetlow gave evidence that he never picked up the axe but did pick the mattock handle up at a point, when he said Ms Clifford was stabbing the window of the house with a knife. His intention was to scare them away. Mr Tetlow gave evidence that he hit the car at a time when the car was being driven towards Mr Scorer.

4 This is by way of background to the issue of bias. In the course of cross-examination of Mr Tetlow, the prosecutor took him through the events and confirmed that at some point Mr Tetlow had the mattock handle. He then put the matters from the video record of interview (ts 70) and after evidence by Mr Tetlow that:

Stephen [Mr Davies] was in front of the - in front of the other car, but she was reversing back, to try to run Matt over and slammed his car, and then she put it into forward, Drive; then she tried to run me over, and Stephen, then went back again in reverse at Scorer again; that's when I hit the glass window.

Thank you. Now if we can move forward in time.

HER HONOUR: You mentioned about the mattock but not about the axe yet.

PROSECUTOR: Yes, I'm getting to the axe, your Honour.

Mr Tetlow, you heard evidence today - well, from Kathy [Ms Clifford] in Manjimup and Mr Davies today about the axe?---Yes, yes, yes.

6 Counsel for Mr Tetlow then objected on the basis:

That prompt about the axe from the bench I would say brings you off the bench and down into the arena.

7 The magistrate disagreed and the prosecutor asked more questions about the axe.

8 Mr MacFarlane submits this was an overt indication of bias in favour of the prosecution. It directed or alerted the prosecutor to cross-examine on a particular matter at the behest of the magistrate.

9 There is no merit in the ground. A magistrate charged with the responsibility of finding facts may, from time to time, prompt counsel on either side as to a matter the magistrate regards as important and which may have been overlooked by counsel. A mere reminder of a matter in issue cannot amount to bias. The magistrate did not direct that the issue should be the subject of cross-examination or ask questions about it herself. The comment was prompted by the prosecutor's indication that he was moving on.

10 This issue first arose in the evidence of Constable Calland after the video record of interview was played. The magistrate raised with counsel (ts 24 of 5 December 2008) that nothing from the interview had been put to Mr Davies in accordance with the rule. The magistrate concluded (ts 25):

My view is you must comply strictly with the rule in Browne v Dunn. It doesn't invalidate your case; it's only a matter for submissions, at the end of the day, the weight that I give the evidence if the rule is not complied with strictly. It is not good enough to throw an allegation in the air without putting the specific allegation, and that's really what is required.

If you fail to cross-examine on that point, then it becomes a matter of weight. It doesn't mean you can't lead the evidence, it simply becomes a matter of your closing submissions because it hasn't been strictly complied with, and then the court will ... it must be transparent, otherwise the other party hasn't been given the opportunity to answer the proper question.

You can't then make a submission that I should accept your client's point of view when you failed to put that to the witness in cross-examination.

13 When Mr Tetlow was giving evidence, Mr MacFarlane sought to tender some photographs of damage to the flyscreens, which Mr Tetlow said had been caused by Ms Clifford. The magistrate would not let him because they had not been shown to Ms Clifford during cross-examination.

14 Further into Mr Tetlow's examination, as he gave evidence of the actions of Mr Davies, the magistrate repeatedly pointed out that the evidence had not been put to Mr Davies. At one point the witness responded (ts 55):

I think I said that in the video. I said that she was trying to run me over with the car.

During the trial, some of the evidence given in the video record of interview and by the accused were not put in question form to Kathy or Stephen.

Specifically it was not put to Stephen that he attacked Bob [Mr Tetlow] inside Bob's house or that he three a beer bottle at Bob.

Further in the evidence given by the accused in court he stated that Kathy came to the back door and sort of dragged her (Chelsea) outside. This was not put to Kathy.

Nor was it put to Kathy or Stephen that Kathy hit the accused in the eye inside the back door and that Stephen then came in and punched the accused to the side of the head.

Nor was it put to Kathy or Stephen that after the mobile phone was snapped in half that they both attacked the accused again.

Nor was it put to Kathy or Stephen the sequence of events in respect of the motor vehicle being driven at the accused and Mr Scorer.

Some of these matters were generally put to Kathy and Stephen that they were the aggressors but not specifically or in the sequence of events as stated in the accused's evidence.

The Court needs to determine the credibility of the witnesses. All the adult witnesses gave evidence, however not every witness sees the same events or is able to recall every matter that occurred.

...

It was not put in cross-examination to either Kathy or Stephen that they hit Bob inside the back door.

I find that I accept the evidence of Stephen and Kathy that they did not hit Bob inside the house and I do not accept the evidence of Bob, Corinna or Matt on this point.

16 The rule in Browne v Dunn, especially in its applicability to the Magistrates Court, has been recently analysed by Johnson J in Anderson v Davis [2009] WASC 38. It has two aspects. The first is a rule of practice to achieve fairness to witnesses and a fair trial. The second relates to the weight or cogency of the evidence. It is the second aspect which is chiefly important in this case.

17 The magistrate correctly identified that the failure to comply with the rule in Browne v Dunn (if there was such a failure) went to the weight or cogency of the evidence. The magistrate gives scant reasons why she accepted certain evidence and did not accept other evidence. The allegation by Mr Tetlow that Mr Davies and Ms Clifford hit him inside the house was an important matter to resolve. The magistrate resolved it by accepting the evidence of Ms Clifford and Mr Davies' and rejecting the evidence of the defence witnesses. She reached this conclusion immediately after noting that it was not put in cross-examination to either Kathy or Stephen that they hit Bob inside the back door.

18 It is clear that the magistrate used the lack of cross-examination or a failure to comply with the rule of Browne v Dunn as giving weight to the evidence of prosecution witnesses. Caution must be applied to the application of the rule in criminal cases: MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436. The rule has limited application in the Magistrates Court and no application in respect of evidence seeking to prove an element of the offence: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 at 247.

19 Unlike Cameron v Hume [2009] WASC 265, the failure to cross-examine seems to have been an influential factor in the magistrate's reasons. Mr Tetlow had taken part in a record of interview shortly after the event and gave his version of events. The failure of his counsel to comply with the rule in Browne v Dunn of itself could not then affect his credibility. Nor could the failure bolster the evidence of the prosecution witnesses. As a matter of fairness, some matters should have been put to them for comment. But the failure to comply with the rule did not, of itself, increase confidence in the evidence of the prosecution witnesses. The ground of appeal is sustained.

20 The conclusion that the magistrate's misapplication of the rule in Browne v Dunn is a miscarriage of justice is reinforced by a further error made by the magistrate in her reasons at 35:

In cross-examination of Kathy by the accused's solicitor, it was put to Kathy that Bob struck her in response to her breaking his mobile phone, however in evidence Bob stated that at no stage did he hit Kathy. There is an obvious inconsistency.

21 Mr MacFarlane cross-examined Ms Clifford about breaking of the phone and whether she deliberately broke it:

So why did you say you didn't deliberately break it?---Well, you were telling me I've broke the phone - I got it and snapped it.

Well, I put it to you that you broke the phone in half and threw it on the ground. What do you say to that?---Well, I did drop it on the floor.

And it was at that time that my client actually hit you?---No, it wasn't.

It just pushed him too far and he smacked you, didn't he?---No, he didn't hit me there, no. Because he went over to pick the axe handle up and he was still arguing and threatening us as he was holding the axe handle. (ts 35 23 October 2008)

She grabbed my phone and snapped my phone in half and then she started slamming back into me and the other fellow, he started punching me on the side again too.

Did you hit her at all?---No, I did not hit her once.

What about after she broke your phone?---No. I went off my head; I yelled and screamed at her, but I didn't hit her, no.

So what do you say about you punching her to the jaw?---I did not do that, no. (ts 44 5 December 2008)

23 Mr Scorer said that when Ms Clifford snapped the phone (ts 85):

24 Counsel's questions are not evidence. In some circumstances there may be a divergence between what is put by counsel and evidence given later by that counsel's witness. That divergence might be explored in cross-examination with a consequent effect on credibility. Cross-examination is necessary because there may be an explanation for the divergence that does not reflect on the witness's credibility. The supposed inconsistency was not explored here. The magistrate impermissibly took it into consideration in a manner adverse to Mr Tetlow's credit.

25 Unless it is apparent on the face of the reasons why the magistrate arrived at the conclusion she did, the entire process is called into question: Pallot v Harrison (Unreported, WASC, Library No 950261, 12 May 1995) 14 (Owen J).

26 The judgment runs to 36 pages. The first 31 pages recounts, without analysis or comment, the evidence and the relevant statutory provisions. Any findings of credibility on the witnesses are based on impressions in the witness box, although not impressions as to truthfulness. For example:

My impression from assessing Kathy in the witness box she has issues with her behaviour and has a tendency to react quickly to any situation. She was not an educated woman and felt a genuine grievance against Bob for past matters.

My impression of Bob from my assessment of him in the witness box was that he also had issues with his behaviour and thought it appropriate to give his opinion evidence about Kathy's behaviour to justify his position and specifically behaviour towards C.

27 The magistrate accepted the prosecution witnesses and did not accept the defence witnesses about whether Mr Tetlow was hit inside the house.

28 Apart from demonstrating a misunderstanding of the limits of the rule in Browne v Dunn there is no explanation as to why the evidence of Mr Tetlow and his witnesses was rejected. The magistrate explained why she accepted Mr Davies' and Ms Clifford's evidence that Mr Tetlow held an axe in a threatening manner while arguing with Kathy. The magistrate did not accept Mr Scorer's evidence but does not explain why it was rejected.

29 Ms Clifford denied breaking the telephone. She said:

I didn't deliberately break it. It just dropped on the floor.

I find that Kathy deliberately broke Bob's mobile phone and threw it onto the ground as they were arguing because Bob threatened to call the police.

31 Yet the magistrate made no adverse finding on Ms Clifford's credit. To make the finding about the phone she must have accepted the evidence of Mr Tetlow on that point. Yet the magistrate found his evidence inconsistent because of something his counsel had put. The burden of proof was on the prosecution to prove its case beyond reasonable doubt and that depended on the acceptance of the evidence of Ms Clifford in material respects. The magistrate did not explain why Ms Clifford's evidence was accepted to the appropriate standard despite the adverse finding.

32 The magistrate nowhere exposes the intellectual process which led to her acceptance of the body of evidence comprising the prosecution or explains why she rejected the body of evidence called by the defence. As a result, the findings are unsupported by reasons as to why they were made.

33 One aspect of the defence was whether Mr Tetlow used more than necessary force to remove a person who wrongfully remained on his property or who was behaving in a disorderly manner. The magistrate found Ms Clifford was acting in a disorderly manner:

Kathy did not refuse to leave, but did keep arguing with Bob. Bob denies that he struck Kathy but I find that he deliberately struck Kathy and exceeded 'necessary force' in the removal of a person who is acting in a disorderly manner.

34 The magistrate does not explain why the blow exceeded necessary force.

The court needs to determine the credibility of the witnesses.

36 However, she did not do so. This was a highly contested factual case involving a number of people. As the magistrate, herself, commented:

All the adult witnesses gave evidence, however not every witness sees the same events or is able to recall every matter that occurred.

37 It was incumbent on the magistrate to analyse the evidence of each witness as opposed to simply reciting it and say clearly why a particular piece of evidence or a particular witness was accepted or rejected. The magistrate quoted the Magistrates Court Act 2004 (WA) s 31. It is true that a magistrate does not need to canvass all the evidence or all the factual and legal arguments or issues arising in the case. However, the magistrate must give reasons for identifying the facts that the court has accepted. The magistrate failed to comply with the statutory duty. There has been a miscarriage of justice.

38 The appeal is allowed. The convictions set aside and the matter returned to the Magistrates Court for retrial.