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[2009] QCA 196
Court of Appeal (Qld)
2009-07-17
McMurdo P, Fraser JA and Cullinane J, Separate, reasons for judgment of each member of the Court, each concurring as to the
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Beckett [2009] QCA 196
PARTIES: R v BECKETT, Leonard John (appellant)
FILE NO/S: CA No 293 of 2008 / DC No 545 of 2007
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Townsville
DELIVERED ON: 17 July 2009
DELIVERED AT: Brisbane
HEARING DATE: 3 June 2009
JUDGES: McMurdo P, Fraser JA and Cullinane J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: **Allow the appeal.****Quash the conviction.**Order a new trial.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where appellant convicted of grievous bodily harm for punching the complainant in the jaw outside a nightclub – where the appellant and various prosecution witnesses were employees at the club – where defence counsel wished to cross-examine a prosecution witness with reference to security video footage – where footage showed a group of club employees, including the prosecution witness, assaulting a man at the same venue only 20 minutes after the assault alleged against the appellant had taken place – where the trial judge ruled that the video footage was irrelevant and directed the jury not to have regard to it – where defence counsel was precluded from cross-examining the prosecution witness on this topic – whether the trial judge erred in ruling that the proposed cross-examination should not be permitted / CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where the appellant was denied the opportunity to cross-examine a prosecution witness with reference to relevant evidence – where the respondent argued that, even if the trial judge had erred, the Court should apply s 668E(1A) Criminal Code 1899 (Qld) – whether the appellant had suffered a miscarriage of justice / CRIMINAL LAW – EVIDENCE – PROPENSITY, TENDENCY AND CO-INCIDENCE – ADMISSIBILITY AND RELEVANCY – PROPENSITY EVIDENCE – where appellant argued that the video footage and proposed cross-examination had the potential to demonstrate that the prosecution witness had the propensity to commit offences of the nature charged against the appellant – whether the law requires that there be a ‘striking similarity’ between the circumstances of the offence charged and those of the propensity evidence / Criminal Code 1899 (Qld), s 668E(1A) / Jones v The Queen (2009) 254 ALR 626; [2009] HCA 17, considered / Knight v Jones, ex parte Jones [1981] Qd R 98, cited / R v Randall [2004] 1 All ER 467; [2003] UKHL 69, cited / R v Roughan & Jones (2007) 179 A Crim R 389; [2007] QCA 443, considered
COUNSEL: B G Devereaux SC for the appellant / M Cowen for the respondent
SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Qld) for the respondent
McMURDO P: The appeal should be allowed, the conviction quashed and a new trial ordered for the reasons given by Fraser JA.
FRASER JA: On the evening of 2 April 2005, the appellant was in charge of security at the Irish Club at Mount Isa. Mr Watson was a patron at the club. On his own evidence he was getting drunk by the time he went to the nightclub area downstairs. After an altercation he was ejected by security staff out of a rear door on that lower level. He then returned to the main reception area where he collected his hat and sunglasses, which he had left there earlier. He walked out of the club and continued walking towards a courtesy bus stop outside the front doors. Whilst he was outside the club, one or more of a group of three or four men hit him in his face, fracturing his jaw.
On 13 October 2008, after a five day trial in the District Court at Townsville, a jury found the appellant guilty of unlawfully doing grievous bodily harm to Mr Watson.
The appellant appeals from his conviction. The ground of his appeal is that the trial judge erred in ruling that defence counsel could not cross-examine a Crown witness about what the appellant contended was a similar assault of another person committed in much the same place only some 20 minutes later by that witness and the two other Crown witnesses who implicated the appellant in the assault of Mr Watson. The appellant contended that the evidence sought to be elicited by the proposed cross-examination would have been relevant as showing that it was more likely that those witnesses rather than the appellant had assaulted the complainant. He argued that the ruling deprived him of a fair trial according to law.
The issues at trial
The Crown case was that the appellant and three others working at the Club that night, Messrs Kuzmanovic, Power, and Mailman, pursued the complainant after he had left the club; that Kuzmanovic grabbed the complainant, turned him around and spoke to him; and that the appellant then kicked the complainant on the left side of his face, inflicting the complainant’s serious injury.
The defence case was that the appellant had remained in the club throughout this incident and that one of the other employees must have assaulted the complainant and inflicted his injury.
Summary of the evidence
The complainant gave evidence that after he had left the club with his hat and sunglasses he heard people running up behind him. He said there were three or four people there. A man hit him on the side of his head, held him, and chastised him for breaking a glass door. The complainant said that this man appeared to have a white English background, was of average build, and was wearing black pants and a green shirt. (This and other evidence suggests that the man was Kuzmanovic.)
The complainant described another man he saw to his left hand side. After seeing that man the complainant felt the blow that caused him a lot of pain on the left hand side of his face and thought he had a broken jaw. He could not say who hit him. In cross-examination, the complainant confirmed his earlier statement to police to the effect that immediately before the blow which injured his jaw he had seen a "big, solid Caucasian, fat fellow wearing a white shirt and black pants lunging towards me with a raised fist". That description did not fit the appellant who, the complainant agreed, was not Caucasian in appearance.
The Crown case that the appellant was the man who delivered the damaging blow to the complainant depended upon the evidence of the appellant’s co-employees, Kuzmanovic, Power and Mailman.
Kuzmanovic was the first witness called for the prosecution. He worked as a security officer at the club. The appellant was the head of security at the time. Kuzmanovic said that he received a radio call to go upstairs shortly after the complainant was ejected from the downstairs (rear) door of the club. He saw that the glass entry doors to the club were broken. He ran after the complainant, who he noticed walking down the street and kicking sprinklers and staggering around. Kuzmanovic grabbed the complainant by the shoulder, spun him around and said, “Why the fuck did you do that for?” After that the appellant came from the side and pushed him (Kuzmanovic) down. When Kuzmanovic got up he saw that the complainant was on the ground. He did not see the appellant hit the complainant. Kuzmanovic thought that Mailman and Power were running down the street at that point. As Kuzmanovic returned to the club together with the appellant, Power and Mailman, the appellant might have said that “there was a good kick or a pretty high kick, something like that…”
The prosecutor tendered a videotape which showed a series of still images, taken some seconds apart from each other, of scenes in and outside the club’s main reception area. The images are not very clear and the area in which the assault occurred was outside the range of the cameras.
The following passage then occurred during defence counsel's cross-examination of Kuzmanovic:
"Well, I'd suggest to you that you and - you and Mr Powers and Mr Mailman, assaulted Mr Watson. Wasn't Mr Beckett?-- Is that a question is it?
Yes?-- No. We didn't.
Well, you assaulted somebody else a little - little later outside the - the club on that night, didn't you?-- Later on in the club?
Yes. That same night?-- Not that I recall.
Okay. Well, we'll come back a moment."
The first segment of videotape was not of particular relevance to the issue in this appeal, but defence counsel cross-examined Kuzmanovic about what was shown on the second segment of the videotape. In summary, Kuzmanovic agreed that the second segment of videotape showed the complainant walking out of the club, followed by Kuzmanovic, Mr Murell (running), Power and Mailman. There was evidence that Murell was also working at the club that night. He was not called as a witness. Kuzmanovic agreed that Murell was wearing a white shirt and might be described as a fat, Caucasian man. Kuzmanovic agreed that a later portion of the second segment of the videotape appeared to show him, Murell and Power returning after the complainant had been assaulted. There were other people who he could not identify apparently walking back towards the club. Kuzmanovic could not identify the appellant on the videotape.
Defence counsel asked for the third (last) segment of the videotape to be played. The trial judge acceded to a request by the prosecutor for the jury to leave the room so that a question of admissibility could be raised. After argument, the trial judge made the ruling which is in issue in this appeal and to which I will return.
In re-examination, Kuzmanovic said of a person depicted on the second segment of the videotape walking back into the club after the assault of the complainant (who he had originally thought might be Power) that it "looks like" the appellant, but he retreated from that answer when questioned further by the trial judge.
Power worked as a glass collector at the club. He was Kuzmanovic’s brother-in-law. He denied that he was good friends with Mailman and said that he did not train with him. He gave evidence that he had a poor memory of the events. He recalled that after an incident concerning the doors he followed Kuzmanovic, the appellant, and Mailman out of the club. He saw someone, who he thought was Kuzmanovic, grab the complainant and turn him around. He said that “there was a bit of a jump and a kick or whatever” and the complainant was down. He said it was the appellant who kicked the complainant. Power said that he returned to the club with the others. He said that he could not recognise anyone on the videotape.
Mailman was a “senior yardie” at the club who also helped with security if asked by the head of security. He said that he followed the others to where the complainant was and overtook Power on the way. (In cross examination he agreed that he had told police that he saw the appellant, Kuzmanovic and Power run past the main reception area and he chased after them.) He saw Kuzmanovic asking the complainant “pretty politely” why he had kicked the doors. He then saw the appellant kick the complainant on his chin. The complainant fell to the ground and Mailman “swore at him to go away before, you know, anything else happened – for his safety”. Mailman gave evidence that whilst they walked back to the club, the appellant bragged about how he had kicked the complainant. Mailman said that he was impressed with the kick because he could not kick that high himself. In cross- examination he said that he practised a form of boxing which involved striking with the hands and feet; soon after this event he went to Thailand to practise the sport. Mailman identified himself on the videotape and agreed that he could not see the appellant on the videotape.
The ruling in issue
I return now to the trial judge's ruling made during defence counsel’s cross-examination of Kuzmanovic.
In the absence of the jury, the prosecutor informed the judge that the (third) segment of video with reference to which defence counsel proposed to cross-examine Kuzmanovic related to a time some 20 minutes after the time of the alleged offence. The prosecutor said that he suspected that defence counsel was "going to cross-examine the witness on his behaviour after the incident when another altercation takes place between patrons out the front of the Irish Club." What follows is somewhat confused, but the prosecutor ultimately submitted that "it's just not relevant to this case".
The trial judge asked defence counsel to identify the proposed topic of cross-examination. Counsel responded that the videotape showed the same group of club employees, excluding the appellant, within 20 minutes of the alleged assault acting in a similar sort of manner with another person. He submitted that it showed “propensity”. The trial judge responded, "That's not relevant, is it?" Counsel argued that the proposed propensity evidence was relevant. This debate was followed by the following exchange:
"HIS HONOUR: But what if - what if the witness - you're going to put to him, "Look, you" - "punched a witness" - "punched another person half an hour later" or-----
MR WALTERS: No. I don't wish to go into that. I just want to - want to identify who is in that video acting in that way. I don't want to litigate the issue-----
HIS HONOUR: Well, what's the relevance of that if they're acting that way towards someone else?
MR WALTERS: If within - 20 minutes at the same place and the same time-----
HIS HONOUR: Yes.
MR WALTERS: -----those persons are acting in that manner, your Honour, in my submission, a jury could use that to draw the inference that - that 20 minutes previously they have acted in a similar manner. It is a propensity argument.
HIS HONOUR: Well - but the issue here is - is not whether they've acted in a particular way, but whether the accused has been identified as the person who caused injury to the complainant.
MR WALTERS: No. I appreciate that, your Honour, but it shows the same group of men - as I've put to that witness, acting in that same way shortly after. And your Honour, in my submission, it would lend weight to the fact that they have acted in concert together previously.
HIS HONOUR: No. I - I don't think it's admissible.
MR WALTERS: If your Honour pleases.
HIS HONOUR: I - I won't-----
MR WALTERS: The only difficulty I have is - is the images are in evidence. And - and I wanted to use those also to show what the persons were wearing on the night-----
HIS HONOUR: Well, I just have to - I just have to tell them. No, these images aren't. I mean, in one sense they are because they're on the tape, but I'll have to tell the jury to go no further than the - the tape showing the - outside of the entrance to the club.
MR WALTERS: Yes. I - the difficulty I have is I discussed the matter with my friend this morning, he didn't - and the use I was going to make, he didn't tell me then at that stage he'd be objecting.
HIS HONOUR: Mmm.
MR WALTERS: I - I appreciate now your Honour has ruled on the matter."
Discussion
Mr Devereaux SC, who appeared for the appellant in this Court, submitted that the trial judge erred by ruling that the proposed cross-examination should not be permitted. He argued that it was open to an accused person to adduce evidence of the violent propensity of another for the purpose of showing that it was more likely that such other person, rather than the accused, was guilty of the offence of violence with which the accused was charged.
For the respondent, Mr Cowen conceded in his written submissions that as a general proposition such evidence might be relevant to credit. In his oral submissions he conceded, again as a general proposition, that such evidence might be admissible as tending to show that it was more likely that a person other than the accused had committed the offence.
That concession was appropriate, as is demonstrated by the authorities cited by Mr Devereaux, Knight v Jones, ex parte Jones;1 R v Randall;2 R v Roughan & Jones.3
In R v Roughan & Jones, Keane JA said:4
"[68]The general proposition of law on which this submission depends, viz, that the considerations of undue prejudice which limit the deployment of evidence of propensity by the prosecution have no application to prevent a co-accused from adducing such evidence, is supported by the decisions of the House of Lords in R v Randall [(2004) 1 Cr App R 26 esp at 382 – 387 [20] – [36]] the Privy Council in Lowery v The Queen [[1974] AC 85 at 102], the decision of the Full Court of the Supreme Court of Queensland in Knight v Jones; ex parte Jones [[1981] Qd R 98 at 101 – 104] and the Western Australian Court of Criminal Appeal in Winning v The Queen [[2002] WASCA 44 at [34] – [43]].
[69]These authorities support the general proposition that evidence showing a disposition or propensity for a co-accused to act in a certain way may be tendered by a co-accused to disprove his or her guilt. Where one or other of the co-accused must be the offender, evidence which tends rationally to show that the character and personality of one of the co-accused is such that he, rather than the other, is the guilty man will be admissible. Thus, in R v Mason and Priestley [Unreported, CA No 142 of 1985; CA No 188 of 1985, judgment delivered on 22 November 1985, at 16], Williams J (as his Honour then was) said of Lowery v The Queen that it:
"establishes that if evidence tends to support the contention that one of the two accused persons alone committed the offence, it may be led as part of the case of the defendant who would thereby be exonerated, notwithstanding the fact that it really does no more than show that the other accused had a disposition or propensity to commit that particular crime … it is important to remember the peculiar circumstances on which the decision in Lowery was based; the killing was a particularly sadistic one and psychological testing indicated that one of the two accused persons had sadistic tendencies – that was therefore a relevant matter for the jury to know when they were deciding whether either or both of the accused persons was guilty of the crime."
[70]It may, therefore, be accepted that evidence which shows a disposition or propensity of a co-accused to do the very sort of thing with which the accused are charged is not to be excluded for the reasons of policy or fairness which prevent the deployment of such evidence by the Crown.
[71]In Lowery v The Queen, the evidence showing criminal propensity was the opinion of an expert. In other cases the evidence said to demonstrate criminal propensity may involve proof of similar facts. Where it is sought to prove criminal propensity by proof of similar facts, as Connolly J, with whom Williams and Ambrose JJ agreed, said in R v Livingstone [[1987] 1 Qd R 38 at 43]: "as with all similar fact evidence the occasions for its admission will be rare."
[72]In a case such as the present where the evidence relied upon to show a co-accused's propensity is evidence of similar facts, those facts must exhibit the kind of "striking similarity" which makes it probable that the co-accused committed the crime with which he and the co-accused are charged. …"
"… I would not accept that in this context the propensity of a co-accused would have to be the subject of evidence showing some striking similarity between the other matter and the present charge, or that, for example, it would have to bear any other characteristic as described in the joint judgment of Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen [(1988) 165 CLR 292, 294-295]. So in Lowery v The Queen [[1974] AC 85], an accused was permitted to lead evidence of the propensity of the co-accused, not by similar fact evidence, but by a psychologist’s evaluation."
Muir JA expressed his Honour's general agreement with the reasons of Keane JA and McMurdo J but did not find it necessary to express a view on the question whether the general principles governing the admissibility of similar facts as evidence of a co-accused's propensity to commit a crime in the nature of the subject crime were always applicable without qualification.6
In the subsequent appeal to the High Court the difference in the approaches of Keane JA and McMurdo J was discussed but not resolved. In Jones v The Queen 7 French CJ, Heydon, Kiefel, and Bell JJ said:
"[20]In the Court of Appeal each of their Honours accepted that evidence of the propensity of one accused may be relevant and admissible in the case of a co-accused. They differed concerning the basis for the admission of evidence of this character. Keane JA considered that where the evidence is of conduct evidencing propensity the facts must exhibit the kind of “striking similarity” which makes it probable that the co-accused committed the crime with which he and the co-accused are charged. McMurdo J considered that the propensity of a co-accused may be established by evidence that does not show striking similarity between the other matter and the subject charge, nor any other characteristic as described in the joint judgment in Hoch v The Queen.
[21] In Pfennig v The Queen (Pfennig) a tendency to treat evidence of similar facts, past criminal conduct and propensity as if they raise the same considerations in terms of admissibility was noted. It was explained that the requirement that evidence of similar facts when adduced by the Crown possess a “striking similarity” is because the capacity of the evidence to establish a step in the proof of the prosecution case on the criminal standard depends upon the improbability of its having some innocent explanation. The appellant was not seeking to adduce similar fact evidence to prove Roughan’s guilt by a process of improbability reasoning. He was seeking to demonstrate that Roughan was a person having a particular propensity which made it more likely that Roughan had killed the deceased, as the appellant claimed that he had done. The issue which appears to have troubled Keane JA was whether evidence of some general propensity in Roughan to behave violently had a capacity rationally to bear on the determination of the likelihood that it was he who carried out this murderous assault.
[22] In Lowery v The Queen expert evidence adduced by one accused of the personality of his co-accused was held to have been rightly admitted. The offence involved the motiveless, sadistic killing of a young girl. The expert evidence tended to establish that Lowery possessed a personality with sadistic traits and that his co-accused did not. Lowery has been said to be high authority for the proposition that the propensity to violence of a co-accused may be relevant to the issues between the Crown and the accused tendering the evidence. In R v Randall it was said that there must be cases in which the propensity of one accused may be relied on by the other irrespective of whether he has put his character in issue. As the admissible evidence of Roughan’s propensity which the appellant claims to have been prevented from adducing is unknown, this appeal does not provide the occasion to consider the principles discussed in Randall. It is trite to observe that all evidence, including that adduced by an accused in order to raise a doubt as to guilt, must be relevant in the sense that it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. At the trial, in the course of the submissions made prior to the initial ruling, the appellant’s counsel identified the propensity which he sought to establish as “a propensity to violence”. On the appeal senior counsel identified it with greater particularity, as a propensity to form an intention to kill and to use a knife to give effect to that intention. Accepting for present purposes, that proof that Roughan was a person with a propensity to have this state of mind and to act in this way, may support a reasonable possibility that the appellant’s account (given in his interview with the police) was true, the fact remains that counsel did not seek to adduce admissible evidence that Roughan had such a propensity."
"[35]In Lowery v The Queen, the Privy Council said that in the circumstances of that case it would be unjust to prevent either of two co-accused from calling any evidence of probative value which could point to the probability that the perpetrator was the one rather than the other. Accordingly, expert evidence said to show that one of two men accused of a brutal murder had a “basic callousness”, and that the other did not, was held to be relevant and admissible. Some emphasis was given to the fact that the accused who was alleged to have a “basic callousness” had put his character in issue, but the proposition that it would be unjust to prevent the adducing of any evidence of this kind was not expressed in terms that readily admit of qualification. And as Lord Steyn later rightly pointed out in R v Randall, it may be doubted that the Privy Council was correct to say in Lowery that the evidence in question was “not related to … criminal tendencies”.
[36]These questions apart, the House of Lords held in Randall that one of two co-accused jointly tried for murder was entitled to tender evidence of the propensity to violence of the other co-accused as relevant to the issues between the prosecution and the accused tendering the evidence. The evidence was treated as relevant not only to the co-accused’s credibility, but also the likelihood of his having attacked the deceased.
[37]Whether the applicable principle is expressed as it was in Lowery or as it was in Randall, the adducing of evidence by one co-accused about the propensities of another co-accused presents real difficulties for the conduct of a trial, especially a joint trial. There may be a question about whether the admissibility of evidence of this kind depends upon the accused against whom the evidence is led having first put his or her character in issue. There are also other more deep-seated questions that may require examination. In particular, if it is suggested that where each of two co-accused attributes guilt of the offence to the other, one may tender evidence about the criminal propensities of the other, there is no little risk of the trial being diverted into the byways of collateral issues about the nature, extent and probative significance of those propensities. And questions like whether or how a rule of the kind described in Pfennig v The Queen could, or should, be applied in these circumstances, or whether a rule of that kind, if applied, would address the fears that the tribunal of fact would be diverted from focusing upon the central issues that are being tried in the matter, are questions that did not arise and were not examined in argument in this matter. Nor was there any consideration of whether or when, if evidence of the criminal propensities of one co-accused is to be admitted, the trial should nonetheless continue as a joint trial. These are questions that are to be reserved for another day."
In this appeal the parties’ submissions did not address the question reserved by Muir JA and in the High Court and it is not necessary or appropriate to resolve that issue here. There was no dissent in this Court or in the High Court from the general proposition expressed by Keane JA and McMurdo J9 that evidence which tends rationally to show that the character and personality of one co-accused is such that he or she, rather than the other co-accused, is the guilty person will be admissible. The expressed purpose of defence counsel’s proposed cross-examination upon the videotape was, in summary, to elicit evidence that a very short time after and at much the same place as the violent assault of a club patron alleged against the appellant whilst Kuzmanovic, Mailman and Power were present, the latter three club employees illustrated their propensity for violence of the kind charged against the appellant by their participation in a similar violent altercation with another patron of the club. That description reveals a number of integers in common between the later alleged assault and the assault the subject of the charge here. It is conceivable that other common features might have been established by the proposed cross-examination.
Because the cross-examination was disallowed before any question was framed or asked, it is not clear whether the evidence potentially might have demonstrated a "striking similarity" with the assault of which the appellant was accused or whether the evidence would in any event have been admissible as tending to show that the character and personality of one of the Crown witnesses made it more likely that such witness, rather than the appellant, had committed the violent assault upon the complainant. For the same reason, any attempt now to resolve the question which was left open in this Court in R v Roughan & Jones and by the High Court in Jones v The Queen would amount merely to a hypothetical exercise.
In my respectful opinion, the trial miscarried because the trial judge prevented defence counsel from exploring a legitimate line of cross-examination of a critical Crown witness.
Mr Cowen argued that the trial judge ruled only that the third segment of the videotape was inadmissible as itself demonstrating the propensity of one of the Crown witnesses and that defence counsel was not prevented from cross-examining the Crown witnesses about the subsequent alleged incident. He drew support for that argument from the passage in which the trial judge suggested to defence counsel, who denied, that "you're going to put to him, 'Look, you' – 'punched a witness' – 'punched another person half an hour later' or …". He argued that no miscarriage of justice resulted from the ruling because examination of this segment of the videotape demonstrates that it could not have advanced the defence case.
Order
I would allow the appeal, quash the conviction, and order a new trial.
CULLINANE J: I have read the draft reasons of Fraser JA in this matter and agree with the reasons and the orders he proposes.
[1981] Qd R 98. ↩
[2004] 1 All ER 467. ↩
(2007) 179 A Crim R 389. ↩
R v Roughan & Jones (2007) 179 A Crim R 389 at 403-404, [68]-[72]. ↩
R v Roughan & Jones (2007) 179 A Crim R 389 at 410 [102]. ↩
R v Roughan & Jones (2007) 179 A Crim R 389 at 406 [88]. ↩
Jones v The Queen (2009) 254 ALR 626 at [20]-[22]. I have omitted the citations. ↩
Jones v The Queen (2009) 254 ALR 626 at [35]-[37]. I have omitted the citations. ↩
R v Roughan & Jones (2007) 179 A Crim R 379 at 403 [69] per Keane JA; at 410 [102] per McMurdo J. ↩
R
Beckett
(2009) 254 ALR 626
It seems to have become common ground that the appellant was not shown in any scene in the videotape. In summing-up to the jury the trial judge recorded submissions to that effect both by defence counsel and by the prosecutor.
The appellant gave evidence in his own defence. He was of aboriginal West Indian descent and had dark skin. On 2 April 2005 he was wearing a blue long sleeve shirt and black pants. He said that he and another security worker (not one of the witnesses) escorted the complainant out the club’s back door. He did not see the complainant again. He denied being present during the assault outside the club. He did not have any martial arts training or skill.
Pursuant to s 15 of the Evidence Act 1977 (Qld) the trial judge permitted the prosecutor to cross-examine the appellant on his character. The cross-examination established that the appellant had convictions for offences of dishonesty.
It should first be observed that the trial judge did not reason in that way. His Honour ruled without first viewing the third segment of the videotape and on the footing that the propensity evidence sought to be adduced in cross-examination was necessarily irrelevant. That ruling was in error for the reasons I have given. Nor would I construe the trial judge’s ruling in the narrow way advocated for the respondent. The prosecutor’s objection was not to the tender of the third segment of the videotape (which was by then an exhibit) but to defence counsel’s cross- examination of a Crown witness with reference to scenes depicted on that videotape. Defence counsel made plain that he intended to seek to identify who was shown in the videotape acting in what was said to be the similar manner in which such person had acted 20 minutes earlier. That necessarily involved cross-examination of Kusmanovic and, presumably, the other Crown witnesses, with reference to the scenes shown on the videotape.
The videotape is not very clear, as I have mentioned, but I would not be prepared to conclude merely from my own viewing of it that it was incapable of providing useful forensic assistance to defence counsel in his proposed cross-examination for the legitimate purpose he identified at the trial.
It is true, as was also submitted for the respondent, that defence counsel was not prevented from cross-examining any of the Crown witnesses on credit, but it was reasonable for defence counsel to regard the trial judge's ruling as precluding cross-examination of any of Kuzmanovic, Power and Mailman about their suggested involvement in the alleged assault shortly after that charged against the appellant.
It was submitted for the respondent that, given that the jury had the benefit of seeing and hearing the witnesses, including the appellant, and assessing all matters of credit, this is an appropriate case in which to apply the proviso in s 668E(1A) of the Criminal Code 1899 (Qld) in that no substantial miscarriage of justice has actually occurred. A variety of features of the evidence require rejection of that contention. Ultimately, the issue turned upon the jury’s assessment of the reliability of the oral evidence, particularly that of the complainant, Kuzmanovic, Mailman and Power. The complainant’s description of a man shaping to hit him just before the apparently serious blow did not fit the appellant. Whilst the portions of the videotape played to the jury could not provide conclusive evidence that the appellant was not present (because it captured variable quality images only every few seconds, because there was no video of the place where the assault occurred, and because the appellant could have left the club through the rear door which was not captured on the videotape), the inability of Kuzmanovic, Mailman and Power to identify the appellant on the videotape was useful evidence for the defence. That is particularly so in light of the evidence that the appellant left and returned to the club with those witnesses and that Kuzmanovic was able to identify himself and others on the videotape. There is also the evidence of the presence at the relevant time of Murell, when the Crown witnesses’ original description of the group did not include him.
In my opinion, the Court plainly could not be satisfied that the Crown case was so strong that the wrongful preclusion of the proposed cross-examination could not have resulted in a substantial miscarriage of justice. This is not an appropriate case in which to apply the proviso.