King v Cork [2004] WASCA 98

1 The respondent, Mr Robert Cork, was tried on 14 August 2003 in the Court of Petty Sessions in Rockingham before Mr Burton SM in respect to a charge of assault occasioning bodily harm in contravention of s 317(1) of the Criminal Code (WA). It was alleged in the complaint that Mr Cork had unlawfully assaulted Aaron Lee La Touche at Parmelia and had thereby done him bodily harm.

2 At the trial, the police prosecutor called Ms Shirley Roberts as a witness. The prosecutor had not obtained a statement from Ms Roberts although he was aware she was a potential witness. Ms Roberts presented herself on the morning of the trial and informed the police prosecutor that she had evidence to give in relation to the offence. The prosecutor determined that Ms Roberts' evidence was probative and that she should be called.

3 When the police prosecutor called Ms Roberts to give evidence, the defence objected on the basis that it had not been given notice that she was going to be called and it should have been given notice pursuant to s 611B of the Criminal Code. The prosecutor then requested that the witness be called at a later date, after a statement had been obtained from her and a copy given to the defence and the defence had had a chance to discuss the statement with Ms Roberts. The learned Magistrate ruled that the prosecution could not call Ms Roberts as a witness, stating (AB pages 40 and 42 - 43):

"[T]he defence has got to know what she's going to say in case they might want to answer it ... I'm going to rule that you can't call the witness ... I say that there's this case of Kingston in Queensland where they said ... you can demand all the statements ... for the defendant to defend himself properly, he's got to have advance notice of what the allegations are against him so he might be able to answer them ... There's been a custom in Perth to show all the statements ... I say no because the defence has got to have advance notice of it in order to prepare their defence properly. She might say things in there which might need 3 weeks' investigation to find the answer to. That's about where we are ... I still decide that you can't call her."

4 At the conclusion of the prosecution case the defence made a no case to answer submission. The defence submitted that the test to be applied was that outlined in Morrison v Kwik Electrix Pty Ltd [1998] WASCA 203; (1998) 19 WAR 482, namely whether the evidence of the prosecution taken at its highest is capable of establishing beyond a reasonable doubt the guilt of the accused. The learned Magistrate noted that the evidence of the prosecution taken at its highest was a video in which Mr Cork admitted hitting Mr La Touche (AB page 50). The defence submitted that the video record of interview that had been played in court raised the defences of provocation and self-defence and that these defences had not been negatived by the prosecution. His Worship held (AB page 63):

"There's no doubt at all that there's been an assault ... and there's no doubt there's bodily harm ... I come to the conclusion that there's no evidence before me to negative self-defence or provocation ... I dismiss the charge on that basis, that there's no evidence ... from the prosecution negativing self-defence or provocation and the charge is dismissed."

5 The complainant now appeals against the learned Magistrate's decision on two grounds:

(1) The learned Magistrate erred in law and fact in determining that the prosecution could not call a witness primarily on the basis that the defendant must have advance notice of what the allegations against him are.

(2) The learned Magistrate erred in law and fact in dismissing complaint RO2222/03 following a no case submission made by defence counsel on the basis that the prosecution had not negatived a defence of self-defence or provocation.

6 The appellant submits that the learned Magistrate erred in law in not allowing the prosecution to call Ms Roberts as a witness because there is no requirement for the prosecution to disclose her statement. The appellant makes the following arguments in support of this submission:

(1) In relation to charges dealt with summarily, "there is no statutory requirement for pre-trial disclosure in any form and it quite lawfully may be the case that the first that a defendant knows of the content of the case against him and how it is to be presented and by which witnesses, will be upon the trial": Carew v Carone (1991) 5 WAR 1, at 8, per Murray J.

(2) The prosecution disclosure requirements set out in s 611B of the Criminal Code only relate to offences dealt with on an indictment and do not relate to offences dealt with summarily, which are governed by the Justices Act 1902 (WA). There is therefore no statutory requirement for the prosecution to disclose any matters prior to trial in the Court of Petty Sessions.

(3) The prosecution disclosure requirements outlined in s 103(1) of the Justices Act have no application as the defendant elected to have the charge of assault occasioning bodily harm dealt with summarily and the matter proceeded in accordance with s 99(2) Justices Act.

7 The respondent submits that there is a requirement for the prosecution to disclose to the defence that a person will be called as a witness and makes the following arguments in support of this submission:

(1) Carew v Carone (supra) has limited application in this case because the offence here is not a simple offence, but is an indictable offence that was heard summarily by election.

(2) The Western Australian Police Service has a full disclosure policy.

(3) The defence was denied "further avenues which [it] could have explored in its legitimate challenge to the credit of the police witnesses and a denial of access placed a limitation upon the potential scope of cross-examination which may have been substantial": R v Kingston (1986) 2 Qd R 114, at 128, per Macrossan J. As such, the defence has a "legitimate cause for complaint": R v Kingston (supra), at 128, per Macrossan J.

(4) Section 611B Criminal Code and s 103 Justices Act set out a statutory requirement for the prosecution to disclose certain matters prior to trial in the Court of Petty Sessions.

(5) The prosecution has not shown that a serious injustice has resulted from the learned Magistrate refusing them an adjournment: Myers v Myers [1969] WAR 19.

8 The appellant further submits that the learned Magistrate erred in determining that the defendant had no case to answer on the basis that the prosecution had not negatived a defence of self-defence or provocation. The appellant makes the following arguments in support of this submission:

(1) In reaching a determination in respect of a no case submission, a judicial officer must ask whether the evidence of the prosecution taken at its highest is capable of establishing beyond a reasonable doubt the guilt of the defendant: Morrison v Kiwi Electrix Pty Ltd (supra), at 489, per Malcolm CJ.

(2) In determining a no case to answer submission at the conclusion of the prosecution case, a judicial officer is determining a question of law, whereas the determination of the ultimate question of guilt beyond reasonable doubt is a question of fact. A "[M]agistrate is required to proceed on the assumption that all the evidence of primary facts, considered at its strongest from the point of view of the case for the prosecution" in determining whether a defendant could be lawfully convicted: Cox v Salt (1994) 12 WAR 12, at 15, per Ipp J.

(3) At the conclusion of the prosecution case a judicial officer is required to determine the sufficiency of the evidence and "must disregard any evidence favouring the defendant and have regard only to that evidence which favours the prosecution": Wentworth v Rogers [1984] 2 NSWLR 422, at 429, per Glass JA.

(4) On the basis that the defendant made admissions during his video record of interview the prosecution case when taken at its highest was an admission of guilt in respect of the commission of the offence for which he was tried.

9 The respondent submits that the prosecution case taken at its highest was incapable of establishing beyond reasonable doubt the guilt of the respondent. It makes the following arguments in support of its submission:

(1) The question is whether the prosecution has proved each element of the offence beyond reasonable doubt: Scarce v Killalea [2003] WASCA 81.

(2) When a no case to answer submission is made, the trial Judge is required to ask whether the evidence of the prosecution taken at its highest is capable of establishing beyond a reasonable doubt the guilt of the defendant: Morrison v Kiwi Electrix Pty Ltd (supra), at 489, per Malcolm CJ.

(3) There is no onus on the accused to make out a positive case or to persuade the jury positively: Powell v R, unreported; CCA SCt of WA; Library No 404; 2 December 1980.

(4) Once the necessary evidentiary basis is laid for provocation (or self-defence), it is for the prosecution to prove beyond a reasonable doubt that the accused was not provoked (or did not act in self-defence): Chu v Hampson, unreported; SCt of WA; Library No 9804897; 28 August 1998.

(5) The prosecution did not attempt to negate provocation or self-defence during the trial.

(6) There was a fatal defect in the prosecution case such that, taken at its highest, it could not sustain a verdict of guilty as it failed to negate the defences of provocation and self-defence: Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207.

(7) When the prosecution chose to admit the video record of interview it became evidence for both the prosecution and the defence: Wace v R, unreported; SCt of WA; Library No 980124; 24 March 1998. Thus, statements made by Mr Cork must be taken in the context of raising the defences of provocation and self-defence.

10 The appellant contends that the order of the learned Magistrate to dismiss Complaint No RO2222/03 should be set aside and the matter remitted back to the Rockingham Court of Petty Sessions for trial according to law. The respondent contends that the appeal should be dismissed.

11 Section 611B of the Criminal Code is headed "Disclosure by the prosecution". Subsection (1) provides that "if an indictment has been presented to a court" against a person, the prosecution is required to file and serve on the person:

(a) a copy of every statement or deposition obtained by the prosecution of any person who may be able to give relevant evidence at the trial;

(b) notice of the name and (if known) address of any person from whom no statement, report or deposition has been obtained but who the prosecution thinks may be able to give relevant evidence at the trial and a description of the relevant evidence concerned;

(c) notice of any person whom the prosecution proposes to call as a witness at the trial;

(d) a copy of every other document or exhibit that the prosecution proposes to adduce at the trial, or if it is not practicable to copy the document or exhibit, a description of it and notice of where and when it can be inspected;

(e) a copy of the criminal history of the accused; and

(f) any other document prescribed by rules of court.

12 An "indictment" is defined in s 1 to mean a written charge preferred against an accused person in order to his trial before some court other than justices exercising summary jurisdiction.

13 In this case the respondent elected to have the charge against him dealt with summarily. As such, no indictment was presented to a court and s 611B is not applicable.

14 Section 103 of the Justices Act is also headed "Disclosure by the prosecution". Subsection (1) provides that the prosecution is required to serve on the defendant and file with the clerk of petty sessions the same items set out in s 611B(1)(a), (b), (d), (e) and (f) of the Criminal Code. Section 103 is found in Part V of the Act, which is entitled "Proceedings in case of indictable offences".

15 In this case, as the charge was dealt with summarily, s 103 of the Act has no application. Section 99 of the Act applies instead. Section 99(2) states that if the defendant elects to have the charge dealt with summarily by a court of petty sessions, the justices shall deal with the charge according to law. The section does not however impose any disclosure obligations on the prosecution.

16 Therefore, there was no statutory obligation on the prosecution to disclose to the defence either the existence of Ms Roberts as a potential witness or any statement she may have made.

17 In Carew v Carone (supra) the appellant appealed a decision of the Court of Petty Sessions where he was convicted after trial of being disorderly and creating a disturbance. The appellant alleged that there was a substantial miscarriage of justice because the police had failed to disclose to him the name and address of another person involved in the incident for which he was arrested.

18 Murray J drew a distinction between the disclosure requirements for simple and indictable offences. His Honour stated, at 8, that in relation to simple offences, there is no statutory requirement for pre-trial disclosure in any form. In indictable cases, however, it is practice for the Crown to disclose to an accused person the evidence to be given by the witnesses whom it proposes to call. His Honour went on to state that:

"But it remains the case that criminal proceedings on indictment or summarily are adversarial in character. They are not in the form of an inquisition and, except perhaps in exceptional circumstances, it is the prerogative of the parties, both prosecution and defence, to determine which witnesses should be called."

19 Murray J noted, at 9, that in Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 Barwick CJ stated, at 667, that:

"It is good practice, in my opinion, in general for the prosecution to inform the defence of the identity of any witness from whom a statement in the possession of the prosecution has been obtained. But, clearly, in my opinion, there is no obligation of any kind resting on the prosecution to provide the defence with a copy of such a statement."

20 Murray J stated that this observation might also be made with respect to a person known to be capable of giving material evidence, but for some reason not proposed to be called by the prosecution. However, his Honour stated that such observation remains "a matter of practice". In conclusion, his Honour held that it could not be contended that a miscarriage of justice occurred simply because the prosecution declined to disclose the identity of a particular witness to the defence.

21 R v Kingston (supra) (the Queensland case referred to by the learned Magistrate) involved an appeal against a conviction for possession of marijuana. The Magistrate who heard the matter ruled that the defence was not entitled to a copy of a statement that had been made by one of the arresting police witnesses. The court held, at 128 per Macrossan J, that to deny the defence the knowledge contained in the statement impeded the task of the defence and placed a limitation upon the potential scope of cross-examination of the police witnesses. It was this restriction which gave the defence a legitimate cause for complaint.

22 However, the situation in the case before me is distinguishable from that in Kingston. There was no attempt in this case to deny the defence knowledge contained in a statement because there was no statement in existence. In addition, the prosecutor indicated that he was prepared to obtain a statement from Ms Roberts and give a copy of it to the defence (AB page 41).

23 On the basis of these authorities, it is evident that there is no general law obligation of disclosure on the prosecution. Therefore, the prosecution was not obliged to disclose to the defence that Ms Roberts was a potential witness in the case or provide the defence with a copy of any statement made by her.

24 It became apparent during submissions that the Western Australian Police Service has a policy to disclose all material statements and other documents to defence counsel.

25 In this case it cannot be said that this policy was not complied with, as the defence was provided with copies of all the relevant statements. It was simply that a statement had not been obtained from Ms Roberts and there was no relevant document to be disclosed in relation to her potential evidence.

Conclusion on failure to allow prosecution to call a witness

26 The learned Magistrate held that the prosecution could not call Ms Roberts as a witness because the defence was not given advance notice (AB page 43). It is clear from the transcript that in so ruling the learned Magistrate believed he had no discretion to grant an adjournment given the alleged non-compliance by the prosecution with s 611B of the Criminal Code.

27 As is evident from the discussion above, there was no obligation on the prosecution to give the defence advance notice that it was going to call Ms Roberts. In addition, it is clear, from argument before me, that defence counsel was aware that the alleged assault had occurred at Ms Roberts' residence and that she was a potential witness.

28 In these circumstances, the learned Magistrate made an error of law in refusing to allow the prosecution to call Ms Roberts as a witness. The first ground of appeal is, therefore, made out.

Appropriate test to be applied in determining a no case submission

29 Cox v Salt (supra) concerned an appeal from a decision by a Magistrate to uphold a no case submission. In considering the submission, the Magistrate assessed the credibility of witnesses, rejected testimony and weighed up the evidence according to the criminal standard.

30 Ipp J, at 14, accepted that the law to be applied by a judicial officer on a submission in a criminal case of no case to answer is that expressed by Burt CJ in R v Briggs (1987) 24 A Crim R 98 where his Honour stated, at 104:

"When, at the close of the case for the prosecution, a submission is made that there is 'no case to answer', the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law ... ."

31 Ipp J stated, at 15, that when adjudicating the evidence whether a defendant could lawfully be convicted, the magistrate is required to proceed on the assumption that all the evidence of primary facts, considered at its strongest from the point of view of the case for the prosecution, is accurate.

32 Ipp J then held, at 15 and 17, that the appropriate test to be applied in determining a no case submission is whether the prosecution has established a prima facie case upon which the defendant could be lawfully convicted, which means that the case for the prosecution does not need to be proved beyond a reasonable doubt before there is a case for the defence to answer. His Honour, at 18, dismissed the appeal after determining that there had been no substantial miscarriage of justice by virtue of the Magistrate upholding the no case submission.

33 Morrison v Kiwi Electrix Pty Ltd (supra) was an appeal against a judgment dismissing an appeal from a decision of a Magistrate of the Court of Petty Sessions that two complaints be dismissed. It was alleged that the Magistrate had failed to take into account circumstantial evidence that was unfavourable to the defendant in making his decision. Malcolm CJ noted, at 489, that Burt CJ in Briggs had doubted the incorporation of the criminal standard in the test to be applied when a no case to answer submission is made. The Chief Justice stated, at 489, that in his opinion, where a no case to answer submission is made by an accused in reply to a prosecution case, the test is whether the evidence of the Crown taken at its highest is capable of establishing beyond a reasonable doubt the guilt of the accused. His Honour, at 490, cited The Queen v Bilick and Starke (1984) 36 SASR 321 in support of this proposition, where King CJ stated, at 335:

"The question of law is whether on the evidence as it stands the defendant could lawfully be convicted. He could lawfully be convicted only if it is capable of producing in the minds of a reasonable jury satisfaction beyond reasonable doubt."

34 Malcolm CJ further noted, at 491, that the Court in Gebert, Haley and Black v The Queen [1992] SASC 3637; (1992) 60 SASR 110 approved and applied the test stated by King CJ in Bilick and Starke as follows:

"The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be asked by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt ... Where the case is a circumstantial or partly circumstantial case and therefore depends upon inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt, of the guilt of the accused?"

35 His Honour concluded, at 491, that the doubt expressed in Briggs should be resolved in favour of the criminal standard and the test expressed in Bilick should be applied in determining a no case submission.

36 The appropriate test to be applied in determining a no case submission is therefore that enunciated by Malcolm CJ in Morrison, rather than that of Ipp J in Cox.

37 Wentworth v Rogers (supra) concerned s 41 of the Justices Act 1902 (NSW). Section 41(2) provided that after all the evidence for the prosecution had been taken the Justice shall:

"(a) if he or they is or are of opinion that such evidence is not sufficient to warrant the defendant being put upon his trial for an indictable offence, forthwith order the defendant, if in custody, to be discharged as to the information then under inquiry;

(b) if he or they is or are of opinion that a prima facie case has been made out, proceed as hereinafter provided."

"[I]s required to rule upon the sufficiency of the evidence. Accordingly he must disregard any evidence favouring the defendant and have regard only to that evidence which favours the prosecution ... It is not his function to weigh the evidence or assess its acceptability whether in relation to the character of the evidence itself or the credibility of the witness who gave it. He is required to assume that it is accepted without reservation by a jury ... Upon that assumption he asks himself whether a jury ... could acting reasonably be satisfied of the defendant's guilt beyond reasonable doubt ..."

39 After considering whether the evidence of the Crown taken at its highest was capable of establishing beyond a reasonable doubt the guilt of Mr Cork, the learned Magistrate concluded that the evidence of the prosecution taken at its highest failed to negate the defences of self-defence and provocation and dismissed the case against the respondent.

40 The evidence before the Court was essentially that:

(1) there were no injuries to the complainant prior to the date of the alleged assault;

(3) Mr Cork said the following in his interview with police:

• I've pushed him, he's pushed me, I've pushed him back

• It felt like he just wanted to hurt me, so I grabbed him again, held him down and he threw a punch and hit me in the face again, so I hit him, I hit him, I hit him, I hit him

• He got up and said you're a dog and I'm gonna kill you, walked out the back, picked up a big stick, ran out the front

• Actually I think I did (in response to the question whether he thought he had gone overboard a bit).

• That the blood on his person was that of Mr La Touche.

41 On the basis of this evidence, it is plainly open to infer that the respondent caused the bodily harm suffered by Mr La Touche. It can therefore be concluded that the prosecution evidence, taken at its highest, established that the respondent assaulted Mr La Touche. However, this is not the same as stating that the prosecution evidence was capable of establishing beyond a reasonable doubt the guilt of Mr Cork.

42 Mr Cork's guilt can only be established if the prosecution can, firstly, establish the elements of assault and, secondly, negative the defences of self-defence and provocation, which are clearly raised in the video record of interview. It therefore becomes necessary to consider whether the evidence, taken at its highest, can negative these defences.

43 Given that the respondent admitted to going overboard while hitting Mr La Touche, and stated "I hit him, I hit him, I hit him, I hit him", and also said he pushed Mr La Touche first at one stage, the prosecution evidence taken at its highest is capable of indicating that the force used by the respondent was disproportionate to any provocation caused by Mr La Touche and was more than was reasonably necessary to make effectual defence against the assault. As such, the prosecution evidence at its highest can negate the defences of provocation and self-defence. Therefore, the learned Magistrate erred in law in upholding the no case submission and the second ground of appeal is made out.

44 For the reasons set out above, the appeal should be allowed on each ground and the matter remitted to the Court of Petty Sessions to be tried according to law. I will hear from counsel as to the formal orders which should now be made.

• Background
• Grounds of appeal
• Submissions
• Statutory obligation of disclosure
• General law obligation of disclosure
• Policy of disclosure
• Conclusion on failure to allow prosecution to call a witness
• Appropriate test to be applied in determining a no case submission
• Weighing the evidence
• Conclusion on no case finding
• Conclusion and order